text:
    STATE OF CONNECTICUT v. CLYDE MEIKLE
    (AC 20516)
    Foti, Zarella and Dupont, Js.
    Argued September 25
    officially released November 21, 2000

      Martin Zeldis, assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Donna Mambrino, assistant state’s attorney, for the appellee (state).
   Ojp-inion

FOTI, J.

The defendant, Clyde Meikle, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant contends that the trial court improperly (1) rejected his claim that the state, during jury selection, exercised a peremptory challenge in a racially discriminatoiy manner, (2) permitted certain opinion testimony and (3) denied his motion to strike certain testimony and allowed the state to open its casein-chief to introduce further evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 1, 1994, at approximately 7 p.m. in the rear parking lot of297-299 Enfield Street in Hartford, the defendant and the victim, Clifford Walker, became involved in a dispute. The dispute resulted in each yelling and cursing at the other. The argument began because the victim wanted the defendant to move his car, which the defendant did not move quickly enough. The argument did not stop even after the defendant moved his car. The defendant subsequently walked to the passenger side of his car, withdrew a sawed-off shotgun from the car and approached the victim. After seeing the weapon, the victim raised his hands with his palms facing out and said, “What are you going to do, shoot me?” The defendant, standing about four feet away, said, “Fuck you,” and shot and killed the victim. The defendant then fled, discarded the weapon and spent two days hiding from authorities in New Haven. Police officers arrested the defendant when he returned to Hartford to retrieve some money. The defendant stated to the police that the shooting was accidental but refused to give a sworn statement.

I

The defendant claims that the state violated his rights under the equal protection clause of the fourteenth amendment to the United States constitution by exercising a peremptory challenge in a racially discriminatory manner. We disagree.

The following additional facts and procedural history are necessary to our resolution of this claim. The court initially gave the state and the defendant each eighteen peremptory challenges. The defendant is African-American. Counsel questioned J, an African-American female, on the second day of jury selection. When asked by the assistant state’s attorney if she had ever been the victim of a crime, J described an incident that occurred one year earlier at a restaurant in Manchester. She recalled that while sitting at an empty booth near the entrance to the restaurant waiting for her take-out order, a man told her to get up and let him sit at her booth. She said that he followed her out of the restaurant, where she told him that his conduct toward her violated her civil rights “as an American woman, as a black American woman.” The police arrested the man after J filed a complaint. At trial, the court convicted, fined and sentenced him to probation. J later said that she believed she had been treated fairly following the incident.

The assistant state’s attorney next informed J that she had worked as a prosecutor in Manchester when that incident occurred and that she specifically recalled the case. When questioned, J responded that she did not know the assistant state’s attorney. At the conclusion of J’s examination, the assistant state’s attorney told the court that she faced a “bizarre problem” because she thoroughly recalled the details surrounding the incident and believed that J had acted in an especially difficult manner during the prosecution of that case. She stated that she did not believe J truthfully conveyed her feelings about the incident and that J was “not telling us the whole story . . . .” Although the assistant state’s attorney never clearly stated to the court that she was moving to excuse J for cause, defense counsel raised an objection to the court’s considering a challenge for cause on the basis of facts that were not elicited during questioning of J. After the state exercised a peremptory challenge, defense counsel raised a Batson challenge, arguing that the state failed to set forth a race neutral reason for its use of a peremptory challenge. The assistant state’s attorney argued that race neutral characteristics that she knew about J made her uncomfortable having J serve as a juror. The assistant state’s attorney stated: “I know this person as a result of my official capacity, and I know something about her that causes me to feel the need to exercise aperemptory challenge.”

After the court expressed concern about deciding the issue on the basis of facts that were not on the record, the assistant state’s attorney made an offer of proof. The state gave four reasons for seeking to excuse J, arguing that several areas of J’s voir dire raised questions about her ability to serve as a juror. First, the state pointed out that J expressed difficulty in applying the law to the facts found in the case. Second, the state noted its concern with J’s initial response when asked if she could sit in judgment of others. Third, the state recalled that J hesitated when asked if she could be a fair and impartial juror to both sides in the case.

The assistant state’s attorney also provided the court with additional details of the incident that occurred at the restaurant. In the opinion of the assistant state’s attorney, the initial argument occurred simply because the man asked J for her seat so he could dine at the restaurant. The assistant state’s attorney said that on the basis of statements from others who were at the restaurant that night, the confrontation did not involve racial issues. The assistant state’s attorney said that her ultimate decision to have the man arrested derived from his conduct outside the restaurant, where he had continued to argue with J. She stressed that at one point after the incident, J had threatened to sue every entity connected with the incident, and that she did not want someone on the jury who behaved in such an emotional and irrational manner.

Defense counsel argued that none of J’s responses in other areas of the voir dire questioning raised concerns. Defense counsel asserted that one could not characterize the assistant state’s attorney’s concerns regarding J’s behavior during and following the incident as race neutral. The defense contended that it would not be race neutral if the state could use a peremptory challenge to excuse J simply because J had brought a civil rights claim that ultimately resulted in a conviction. The assistant state’s attorney once more addressed the issue, noting that the reasons for wanting to excuse J related not to the civil rights claim but to J’s behavior during the prosecution of that claim.

The court denied the defendant’s challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), on the basis of all four reasons proffered by the state. The court found that J’s answers in the three areas of voir dire questioning that were not related to the restaurant incident warranted a valid, race neutral exercise of a peremptory challenge by the state. Noting that the incident at the restaurant did not constitute the only reason offered by the state to challenge J, and since no for cause motion to challenge J had been made, the court declined to hold a separate hearing to resolve questions surrounding that issue on the record.

Our Supreme Court has summarized the applicable law as follows: “In Batson [v. Kentucky, supra, 476 U.S. 79] the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . The court concluded that [although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race .... State v. Robinson, [237 Conn. 238, 243-44, 676 A.2d 384 (1996)]. Relying on the rationale underlying Batson, the United States Supreme Court has held that gender-based challenges also are impermissible. J.E.B. v. Alabama ex rel. T.B., [511 U.S. 127, 146, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994)].

“Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. . . .

“We have identified several specific factors that may indicate that [a party’s removal] of a venireperson through a peremptory challenge was . . . motivated [by race or gender]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case ... (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race [or gender] were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race [or gender] as the challenged juror were not struck ... (5) the [party exercising the peremptory strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race [or gender]. . . .

“In assessing the reasons proffered in support of the use of a peremptory challenge . . . [a]n explanation . . . need not ... be pigeon-holed as wholly acceptable or wholly unacceptable . . . and even where the acceptability of a particular explanation is doubtful, the inquiry is not at an end. In deciding the ultimate issue of discriminatory intent, the judicial officer is entitled to assess each explanation in light of all the other evidence relevant to prosecutorial intent. The officer may think a dubious explanation undermines the bona fides of other explanations or may think that the sound explanations dispel the doubt raised by a questionable one. As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances. . . . United States v. Alvarado, [951 F.2d 22, 26 (2d Cir. 1991)]. . . .

“Finally, the trial court’s decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court’s evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991); Batson v. Kentucky, supra, 476 U.S. 98 n.21; United States v. Alvarado, supra, 951 F.2d 25; State v. Gonzalez, [206 Conn. 391, 395, 538 A.2d 210 (1988)]. Accordingly, a trial court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous. State v. Hinton, [227 Conn. 301, 323-24, 630 A.2d 593 (1993)]; see State v. Gonzalez, supra, 406-407. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . State v. Hodge, 248 Conn. 207, 218-24, 726 A.2d 531 (1999).” (Internal quotation marks omitted.) State v. King, 249 Conn. 645, 657-60, 735 A.2d 267 (1999).

At trial, the defendant characterized each of the four reasons given by the assistant state’s attorney as pre-textual. The court disagreed after examining each of the reasons and analyzing each under the six Batson factors. Once the state sustained its burden of producing a race neutral explanation, the burden of persuasion shifted to the defendant to demonstrate that the state’s reasons were insufficient or pretextual. State v. Beltran, 246 Conn. 268, 280, 717 A.2d 168 (1998). The defendant failed to meet his burden. The record fully supports the court’s conclusions that J (1) demonstrated difficulty in accepting the principle that it is the duty of jurors to apply the law as given by the court to the facts as found by them, (2) showed a reluctance to judge others and (3) hesitated in affirming that she could be fair and impartial to both sides. After finding that those race neutral reasons existed, the court concluded that it was unnecessary “to hold a trial in a trial on the question of what happened in the . . . restaurant in Manchester .. . .”

On appeal, the defendant argues that he raised a dual motivation claim at trial “because the dual motivation found in this case is a function of the multiple reasons belatedly claimed by the state when the predominate motivating force for her challenge was the . . . [restaurant [incident] . . . [and this] claim was the heart of the defendant’s argument at the Batson hearing relative to three ‘other’ reasons.” “[T]he trial court must consider all of the proffered reasons together in determining whether, as a factual matter, the party exercising the peremptory challenge was motivated, in whole or in part, by impermissible discriminatory considerations.” State v. Hodge, supra, 248 Conn. 223-24. If a defendant fails to raise a dual motivation claim, and the trial court never addresses that claim, the record is inadequate for appellate review. Id., 226-27. It is clear from the record that the court neither addressed nor performed a dual motivation claim analysis under Howard v. Senkowski, 986 F.2d 24 (2d Cir. 1993). It appears from the record that the defendant never raised that claim. Even if we assume arguendo that the defendant did raise the claim, he failed to move for an articulation of the court’s Batson decision to address a dual motivation claim. We will not review the unpreserved claim.

The defendant further argues that the court should have granted his Batson motion or, in the alternative, held an evidentiary hearing relative to the restaurant incident prior to ruling on the motion.

Our review of the record discloses that defense counsel originally agreed with the court’s suggestion that an offer of proof could be submitted in lieu of testimony. In any case, however, the defendant cannot sustain his burden of demonstrating on appeal that he was entitled to an evidentiary hearing as a matter of law or that the court abused its discretion in denying such a hearing.

The defendant fails to demonstrate that the court’s finding in regard to the state’s exercise of a peremptory challenge to excuse J was clearly erroneous. Accordingly, the defendant cannot prevail on his claim that the state improperly excused J.

II

The defendant next claims that the court improperly admitted into evidence certain testimony during redirect examination of an expert witness. We disagree.

The following additional facts are necessary for our resolution of this claim. The state called Robert O’Brien, a forensic criminologist, as its last witness during its case-in-chief. The court designated O’Biien an expert with respect to firearms in regard to distance determination. On direct examination, O’Brien testified that he conducted four tests with the defendant’s shotgun and that he analyzed the victim’s shirt, which contained a bullet hole. The tests involved firing the gun at a special type of paper from four different distances and collecting data on the types of hole or pattern each bullet made on the paper. O’Brien then compared that data with the bullet hole in the victim’s shirt. O’Brien explained the differences he detected in the patterns caused by the gun’s being fired at varying distances from the target. O’Brien also testified about the bullet hole in the victim’s shirt.

On cross-examination, defense counsel asked O’Brien about his examination of the victim’s shirt, the process he used when firing at the paper and the possible differences that could exist when comparing bullet pattern results on the test paper with the bullet hole in the victim’s shirt. O’Brien also answered specific questions on cross-examination relating to substances found on the shirt, whether the wadding portion of the shotgun shell separated from the bullet prior to impact and the specific “scalloping” type pattern near the vie-tint’s gunshot wound. Several questions required O’Brien to explain what difference, if any, a change in the distance between the firearm and the target would have on the tests O’Brien performed.

On redirect examination, in the context of the firearm used in this case, the assistant state’s attorney asked O’Brien, “Now, specifically, when you were making your determination, based on these four separate ranges, what was your conclusion as to the range that this particular firearm was fired?” Defense counsel objected on the ground that the question was beyond the scope of cross-examination. The assistant state’s attorney noted that she sought nothing new or different because defense counsel had asked several questions about the testing O’Brien performed and what it revealed about distance between the firearm and its target. Defense counsel argued that he asked specific questions about experiments O’Brien performed, but he maintained that the assistant state’s attorney, on direct examination, never inquired about O’Brien’s opinion as to the specific distance at which the firearm was fired in this case. The assistant state’s attorney argued that the questions related to distance asked during cross-examination entitled her to ask that question. The court overruled the objection, and the witness testified that he determined that the distance between the muzzle of the shotgun and the victim’s shirt was between three feet and six feet.

“The basic purpose of redirect examination is to enable a witness to explain and clarify relevant matters in his testimony which have been weakened or obscured by his cross-examination. . . . The scope of redirect examination, however, is limited by the subject matter of cross-examination.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 666, 534 A.2d 1199 (1987). The court has broad discretion in considering whether to allow redirect examination, and its decision will not be reversed unless it has abused that discretion. Id., 666-67.

In this case, the court properly exercised its discretion in allowing the state to present redirect testimony as to the approximate firing distance because defense counsel opened the door to such evidence. Defense counsel asked O’Brien during cross-examination about gunpowder residue and the results of the tests performed on the victim’s shirt relative to gunpowder residue. In response to questions, O’Brien testified that although the shirt contained no visible signs of residue, he found residue in the form of some nitrates and nitrites. He further testified that although he performed no similar tests on the test firing impact points, test firings from the three, four and six foot points produced no visible residue; that the six foot firing test produced evidence of wadding separation; and that the victim’s shirt contained no such evidence of wadding separation.

“The litigant who initially elicits testimony on a certain issue is said to have opened the door to rebuttal by the opposing party.” (Internal quotation marks omitted.) State v. Jones, supra, 205 Conn. 666. “Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). In determining whether it should allow further inquiry into the subject matter, the court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal in the form of redirect. State v. Moore, 49 Conn. App. 13, 20-21, 713 A.2d 859 (1998).

Applying the foregoing principles to the facts of this case, we conclude that the court did not abuse its discretion. The questions and answers of the witness on cross-examination delved into the approximate distance between the shotgun and the victim, suggesting that it was less than what O’Brien testified to on direct. We conclude that regardless of whether the redirect testimony rebutted or modified answers given on cross-examination, or clarified or reiterated O’Brien’s testimony on direct, the court did not abuse its discretion in allowing that evidence.

Ill

The defendant also claims that the court improperly denied his motion to strike O’Brien’s testimony and improperly allowed the state to open its case-in-chief after resting to admit evidence regarding the victim’s shirt.

The following additional facts and procedural history are necessary to our resolution of this claim. After the state rested, the defendant moved to strike O’Brien’s testimony, arguing that the state had failed to show that the shirt O’Brien used as a basis for comparison during the various test firings was the shirt worn by the victim on the night of the murder. The state moved to open its case. The court denied the defendant’s motion to strike and granted the state’s motion to open for the limited purpose of establishing the chain of custody of the shirt. Thereafter, the state called three additional witnesses.

The defendant argues that he made substantial arguments in support of his motion to strike and in opposition to the state’s motion to open. He argues that his motion highlighted the defects in the state’s case, and that after the court denied his motion, the state, to his detriment, presented new and not merely cumulative evidence as to the degree of culpability.

The decision to open a criminal case to add further testimony lies within the sound discretion of the court, which “should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The purpose ... is to preserve the fundamental integrity of the trial’s truth-finding function.” (Internal quotation marks omitted.) State v. Montini, 52 Conn. App. 682, 687, 730 A.2d 76, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999). Where the state fails to present an essential element of the crime and the defendant specifically identifies the evidentiary gap, it is an abuse of discretion to open the case to supply the missing evidence. State v. Allen, 205 Conn. 370, 383-84, 533 A.2d 559 (1987).

In the present case, it appears that the state presented a prima facie case, not omitting any essential element of the crime. The court exercised its discretion to allow the state to present additional evidence. We will reverse that discretionary exercise only upon a showing of manifest abuse of discretion or injustice. State v. Dunbar, 51 Conn. App. 313, 319, 721 A.2d 1229 (1998), cert. denied, 247 Conn. 962, 724 A.2d 1126 (1999). Substantial justice includes fairness to the state as well as to the defendant.

In determining whether the court abused its discretion, we must make every reasonable presumption in favor of its action. State v. Prioleau, 235 Conn. 274, 304, 664 A.2d 743 (1995). The defendant failed to sustain his burden of demonstrating that the court abused its discretion in granting the state’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a provides: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.”

       The fourteenth amendment to the United States constitution provides in relevant part that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

       We have chosen not to use the name of the venireperson to protect her privacy.

       The relevant portion of the voir dire is as follows:
      “[ Assistant State’s Attorney]: . . . Have you yourself ever been the victim of a violent crime?
      “[ J]: Yes.
      “Q. Could you tell me a little bit about that?
      “A. It wasn’t violent, but it happened in Manchester last year when this man told me to get up out of a seat in a restaurant, and I told him I wouldn’t move until my lunch was ready. I had asked the man to have a seat, but he told me to get up and that was it, and he followed me out of the restaurant, and I told him he had violated my civil rights as an American woman, as a black American woman.
      “Q. And what happened?
      “A. They arrested him.
      “Q. They arrested him?
      “A. Uh-huh.
      “Q. Do you know what happened to him?
      “A. Yeah, he got a year supervised probation and a five hundred dollar fine that he was supposed to donate to the [National Association for the Advancement of Colored People],
      “Q. As a result of that experience and as a result of what happened to that defendant in that case, where you were the victim, do you feel that you were treated fairly as a victim?
      “A. I believe that the system worked.
      “Q. So you think you were treated fairly?
      “A. Uh-huh.
      “Q. Okay, when you went through that experience last year, as a victim, do you remember coming into contact with anybody from the court?
      “A. Just the prosecutor, and I brought my lawyer in just to be there with me. That was it, and Officer Ravoired, the policeman that took down my statement.
      “Q. Okay, and do you remember who the prosecutor was?
      “A. Oh, my Lord, no. It was a woman prosecutor, though. I don’t remember her name.
      “Q. Do I look familiar to you at all?
      “A. I've never seen you before.
      “Q. Okay, because I used to work in Manchester.
      “A. Yeah?
      “Q. I was a prosecutor in Manchester.
      “A. You’re not the one, though.
      “Q. And I know exactly what case you’re talking about. That’s why I’m asking you about it.
      “A. Oh, I don’t remember you.
      “Q. Okay.
      “A. Okay.
      “Q. But the fact that I was a prosecutor in Manchester and I know your case —
      “A. Uh-huh.
      “Q. —would that affect your ability to sit on this case as a fair and impartial juror?
      “A. No.”

       The relevant portion of the voir dire is as follows:
      “[Assistant, State’s Attorney]: Okay, do you have any problem sitting in judgment of other people?
      “[ J]: He who judges will be judged. Yes, I do, I do.
      “Q. As a juror, that is basically your function.
      “A. I know."

       The state’s attorney addressed the court on this issue, noting that “especially, I had a problem that when I asked her, ‘Do you think you could be a fair and impartial juror both to the state and to the defendant?’ there was a very, very long hesitation before her answer. There wasn’t hesitation in any of her answers except for that one, and it was a very long hesitation before she gave an answer and then she said yes . . . .”

       The court rendered judgment in this case prior to the publication of State v. Hodge, supra, 248 Conn. 207.

        “Batson challenges may be brought by defendants who can show that racial discrimination was a substantial part of the motivation for a prosecutor’s peremptory challenges, leaving to the prosecutor the affirmative defense of showing that the same challenges would have been exercised for race-neutral reasons in the absence of such partially improper motivation.” Howard v. Senkowski, supra, 986 F.2d 30.

       In support of his objection, defense counsel argued: “I’m not sure what the thrust of this question is, but if the thrust of the question is to ask his opinion regarding, regarding, the range that this weapon was fired at from the, from the, victim, then she had ample opportunity to get to any and all of that on her direct examination of this witness, and I didn’t aslc any questions along those lines. It’s far beyond the scope of direct examination and inappropriate at this time. She had ample opportunity to ask him anything she wanted to as her witness. If that’s the intent of the question, I’m not really sure.”

       The state also argues, in the alternative, that it had introduced sufficient evidence to allow the jury to infer that the shirt used for testing was the one worn by the victim. The state posits that the granting of the state’s motion to open served to elaborate or to explain testimony already given.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ANNA H. HATHAWAY v. STEPHEN G. HATHAWAY
    (AC 20480)
    Lavery, C. J., and SchaUer and Cretella, Js.
    Argued October 26
    officially released November 21, 2000

      Renee Marie Houle, with whom, on the brief, was C. George Kanabis, for the appellant (defendant).

      RaymondL. Baribeault, Jr., with whom, on the brief, was Jeffrey W. Hill, for the appellee (plaintiff).
   Opinion

PER CURIAM.

This matter involves the dissolution of a fifty-seven year marriage. The defendant has appealed from the judgment of dissolution, claiming that the trial court abused its discretion in its financial and property award and in ordering the defendant to pay $10,000 toward the plaintiffs attorney’s fees. We affirm the judgment of the trial court.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parlies at the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).

In determining whether there has been an abuse of discretion, “the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). “[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 90-91, 699 A.2d 1029 (1997).

In reaching its decision in the present case, the court properly considered the criteria set forth in General Statutes §§ 46b-81 (c), 46b-82 and 46b-62, the applicable case law and the evidence presented by the parties. Our review of the record, transcripts and briefs fails to disclose any abuse of discretion. The court’s conclusions were in accordance with applicable law.

The judgment is affirmed.

       General Statutes § 46b-81 (c) provides: “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, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, 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.”

       General Statutes § 46b-82 provides: “At the time of entering the decree, the Superior Court, may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the cotut may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. MICHAEL PERSON
    (AC 20189)
    Lavery, C. J., and Foti and Landau, Js.

      Argued September 14
    officially released November 28, 2000

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Michael Person, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and criminal trespass in the first degree in violation of General Statutes (Rev. to 1991) § 53a-107 (a) (2). On appeal, the defendant claims that the trial court (1) improperly instructed the jury on the affirmative defense of extreme emotional disturbance, thereby creating the reasonable possibility that the jury was misled, and (2) abused its discretion by failing to order an examination of him pursuant to General Statutes (Rev. to 1991) § 17a-566. We affirm the judgment of the trial court.

The relevant facts pertaining to the defendant’s arrest were set out by our Supreme Court in State v. Person, 236 Conn. 342, 673 A.2d 463 (1996). “The defendant and [the victim, Leshea Pouncey] had been romantically involved and had planned to marry. Pouncey, however, terminated their engagement, after which she commenced a relationship with Donald Moody. The defendant testified that on May 19, 1991, he had forcefully entered Pouncey’s apartment while she was away in order to recover his personal belongings. While the defendant was in the rear bedroom gathering his possessions, Pouncey returned home with her child. The defendant further testified that after speaking on the telephone, Pouncey had confronted him in the bedroom with a can of Mace in one hand and two knives in the other. According to the defendant, Pouncey had instigated a struggle by spraying Mace in his eyes. In the course of the struggle, the defendant stabbed Pouncey. The defendant then fled the apartment and later surrendered himself at the New Haven police station.” Id., 346. The defendant confessed to killing the victim. At trial, the defendant asserted the affirmative defense of extreme emotional disturbance pursuant to § 53a-54a.

I

The defendant first claims that the court improperly instructed the jury on the affirmative defense of extreme emotional disturbance because it failed to explain that when considering the defendant’s “situation,” the jury should take into account testimony regarding his mental illness. We disagree.

A

As a preliminary matter, we address the state’s assertion that we should decline to review this claim because it was not properly preserved for appeal. “To preserve a challenge to the jury charge, the defendant must make a written request to charge, or take exception to the jury instructions when they are given by the trial court. . . . This court is not bound to review claims of instructional error if the party raising the claim neither submitted a written request to charge, nor excepted to the charge given by the trial court. Practice Book § 852 [now § 42-16]. The purpose of [Practice Book § 42-16] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) State v. Faria, 254 Conn. 613, 632, 758 A.2d 348 (2000).

Although the defendant submitted proposed jury instructions, his proposal did not contain a request to elucidate the word “situation. ” The defendant requested that the court emphasize the testimony regarding his mental state to underscore the subjective element of the affirmative defense of extreme emotional disturbance. As a result, the defendant’s exception did not specifically refer to an explanation of the term “situation.” Nevertheless, the court has “an obligation to do justice and to be vigilant and vigorous in protecting individuals.” State v. Sirimanochanh, 224 Conn. 656, 665, 620 A.2d 761 (1993). Indeed, although this court is not bound to do so, it will review the defendant’s claim despite his technical noncompliance with the rules of practice. See State v. Williams, 59 Conn. App. 771, 781, 758 A.2d 400 (2000). The requirement that a party distinctly state the matter to which it objects serves the purpose of alerting the court to any claims of error while there is still an opportunity for correction. State v. Deptula, 31 Conn. App. 140, 146, 623 A.2d 525 (1993), appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994). The defendant’s “situation” and mental state raise an issue that falls within the subjective-objective portion of the affirmative defense of extreme emotional disturbance. Thus, although the defendant’s exception could have been more specific, it put the court on sufficient notice that the instructions might contain deficiencies and thereby satisfies the purpose of Practice Book § 42-16. We conclude, therefore, that the defendant properly preserved the present claim for review.

B

Our Supreme Court’s standard of review regarding claims of improper jury instruction is well established. “[A] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Faria, supra, 254 Conn. 634. “As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) Id.

Here, the defendant claims that the charge, viewed as a whole, may have misled the jury in analyzing the defendant’s affirmative defense of extreme emotional disturbance. We disagree.

The court provided the jury with comprehensive instructions regarding the affirmative defense of extreme emotional disturbance. The defendant submitted preliminary and final requests to charge. In the proposed charges, the defendant requested that the court instruct the jury that it should consider the defendant’s mental illness as part of the reasonable explanation or excuse for his extreme emotional disturbance. That is not required under State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991), or State v. Raguseo, 225 Conn. 114, 622 A.2d 519 (1993). In those cases, in which the defendants presented evidence of mental illness, our Supreme Court held that jury instructions, precisely like the ones here, properly explained the law.

We conclude, therefore, that despite the court’s rejection of the defendant’s proposed charges, the instructions that the court gave accurately explained the law, and it was not reasonably possible that the charge, when considered as a whole, misled the jury. Although the word “situation” may not usually mean mental illness, “[j]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . [A]n error in the [charge] requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the juiy was misled in reaching its verdict.” (Citation omitted; internal quotation marks omitted.) State v. Sanders, 54 Conn. App. 732, 740, 738 A.2d 674, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999).

Indeed, although the defense raises a novel argument, we respectfully disagree with the assertion that the term “situation,” without further elucidation, mighthave misled the jury into thinking that it could not consider the evidence of the defendant’s mental state. In State v. Elliott, 177 Conn. 1, 4-5, 411 A.2d 3 (1979), the seminal case on the affirmative defense of extreme emotional disturbance, our Supreme Court found the language of our murder statute to be identical to that of New York Penal Law § 125.25 (1) (a). We agree with the following language in People v. Casassa, 49 N.Y.2d 668, 680, 404 N.E.2d 1310, 427 N.Y.S.2d 769, cert. denied, 449 U.S. 842, 101 S. Ct. 122, 66 L. Ed. 2d 50 (1980): “[W]e believe that what the Legislature intended in enacting the statute was to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows. Perhaps the chief virtue of the statute is that it allows such discretion without engaging in a detailed explanation of individual circumstances in which the statute would apply, thus avoiding the ‘mystifying cloud of words’ which Mr. Justice Cardozo abhorred.”

“Situation,” as it is used in this case, is not a term of limitation, but a term that allows all of the facts brought forth to be considered. Because the court properly instructed the jury as to the affirmative defense of extreme emotional disturbance and the jury concluded that the defendant was guilty of murder, we find no basis for reversal of the judgment on the ground that the court did not give a jury instruction that explained the word “situation.”

Accordingly, we conclude that there was no reasonable possibility that the jury misunderstood the court’s instructions regarding the affirmative defense of extreme emotional disturbance and, therefore, those instructions could not have misled the jury.

II

The defendant next claims that the court improperly failed to order an examination of him pursuant to § 17a-566. It is well settled that “[t]his court will not review issues of law that are raised for the first time on appeal. ” (Internal quotation marks omitted.) State v. Morales, 33 Conn. App. 184, 190, 634 A.2d 1193 (1993), rev’d on other grounds, 232 Conn. 707, 657 A.2d 585 (1995). This court has repeatedly held that it “will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).

In State v. Cummings, 46 Conn. App. 661, 682-84, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997), this court specifically held that the defendant’s failure to initiate action seeking a presentence psychiatric examination precluded review of the claim on appeal. Moreover, the defendant has not asked for review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. We decline, therefore, to review this claim, as the defendant has failed to invoke a principle that entitles him to review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extr eme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes (Rev. to 1991) § 53a-107 (a) provides in relevant part: “A person is guilty of criminal trespass in the first degree when ... (2) such person enters or remains in abuilding or any other premises in violation of a restraining order issued by the superior court.”

       General Statutes (Rev. to 1991) § 17a-566 (a) provides in relevant part: “Except as provided in section 17a-574 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers . . . may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such a request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the institute.”

       The trial that led to this appeal resulted from the Supreme Court’s reversal of the judgment of conviction on the same charges in State v. Person, supra, 236 Conn. 342.

       The defendant’s proposed preliminary jury instructions read in part as follows:
      “The reasonableness of that explanation or excuse, however, must be determined from Michael Person’s viewpoint of the situation, under the circumstances as he believed them to be and keeping in mind his diminished mental capacity should you find that to have been established by the evidence. You must not look at the defendant’s situation from your viewpoint. Rather, you must examine the totality of the circumstances from the defendant’s viewpoint and then you must determine whether the defendant’s explanation or excuse for his extreme emotional disturbance was reasonable under those circumstances.”
      The defendant’s proposed final jury instructions read as follows:
      “This affirmative defense relates to Michael Person’s state of mind at the time he caused Leshea Pouncey’s death. You will recall that one of the elements of the crime of murder is that the person intended to cause the death of another. Extreme emotional disturbance does not negate, does not wipe out, that intent. Rather, it serves to explain the circumstances leading to the formation of that intent. Its purpose is to permit the defendant to show that his actions were caused by a mental infirmity not rising to the level of insanity, and that he is less culpable, less blameworthy because his intentional acts were caused by extreme emotional disturbance. . . .
      “Third, that he had an extreme emotional reaction to that stress as a result of which there was a loss of self-control, and his reason was overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or similar emotions.
      “You should give consideration to whether the intensity of these feelings was such that the defendant’s usual intellectual controls failed and that his normal rational thinking no longer prevailed at the time of the act. Thus, it is your responsibility as jurors to determine, from Michael Person’s point of view, to what extent, if any, his emotions governed his conduct at the time of the death of Leshea Pouncey. . . .
      “If you find that the state has established beyond a reasonable doubt that Michael Person intentionally caused the death of Leshea Pouncey and further that Michael Person has established by a preponderance of the evidence that he was acting under the influence of an extreme emotional disturbance for which, under the totality of the circumstances as Michael Person believed them to be, there is a reasonable explanation or excuse, your verdict should be guilty of manslaughter in the first degree. . . .”

       Practice Book § 42-16 provides: '‘An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

       Counsel stated the following exception: “I have just one [exception], Your Honor, that we mentioned, I think, in chambers, about this reasonable explanation or excuse, and that a reasonable person, [State v. Raguseo, 225 Conn. 114, 622 A.2d 519 (1993)]. All right. And not including in whether there was a reasonable explanation or excuse from the defendant’s viewpoint as taken into consideration his diminished mental capacity; other than that exception, I have no others.”

       The court instructed the jury on extreme emotional disturbance in relevant part as follows:
      “Now, what is meant by extreme emotional disturbance? Extreme emotional disturbance is the emotional state of an individual who is exposed to extremely unusual and overwhelming stress and has an extreme emotional reaction to it as a result of which there is a loss of self-control and reason is overborne by intense feelings such as passion, anger, distress, grief or other similar emotions. Extreme emotional disturbance is composed of three elements which must be proved by the defendant by the preponderance of the evidence.
      “First, that at the time the defendant intentionally caused the death of Leshea Pouncey, he acted under the influence of an emotional disturbance.
      “And, second, that such emotional disturbance was extreme.
      “And, third, that under all of the circumstances as the defendant believed them to be, there was a reasonable explanation or excuse for such extreme emotional disturbance influencing his conduct. It is for you to decide to what extent, if any, the defendant’s emotions did govern his conduct at the time he intentionally caused the death of Leshea Pouncey.
      “In reaching that decision, you may consider all of the emotion which you find, in fact influenced the defendant’s conduct. For example, passion, anger, distress, grief, resentment, fright, hatred or other emotions.
      “While the emotional disturbance need not necessarily have been a spontaneous or sudden occurrence and, indeed, may have simmered in the defendant's mind for a long period of time, the disturbance must actually have influenced his conduct at the time of the killing. . . .
      “If you find the defendant acted under the influence of emotional disturbance and that it was extreme, you must then consider whether there is a reasonable explanation or excuse for such disturbance.
      “In determining the reasonableness of a defendant’s excuse, you must measure the reasonableness from the viewpoint of a reasonable person in the defendant’s situation under the circumstances as the defendant believed them to be. That is, from the viewpoint of a person of ordinary intellect and faculties under the circumstances as the defendant believed them to be. ”

       See footnote 5.

       As pointed out by the state, although the defendant has not requested review under State v. Golding, supra, 213 Conn. 239-40, the claim is not reviewable under that case because it is a statutory claim rather than a constitutional one. See State v. Gates, 198 Conn. 397, 401-402, 503 A.2d 163 (1986).


author: O’CONNELL, J.

text:
    GERARD TOMPKINS v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19412)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs September 15
    officially released November 28, 2000

      Jeffrey D. Brownstein and Gregory A. Thompson filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Robert L. Marconi, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

O’CONNELL, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant commissioner of motor vehicles (commissioner) suspending his license to operate a motor vehicle pursuant to General Statutes § 14-227b (b). The plaintiff claims that (1) the court improperly concluded that there was substantial evidence in the record to support the finding that the plaintiff refused to take a breath test and (2) he was denied due process of law. We affirm the .judgment of the trial court.

The following facts and procedural history are relevant to the issues raised in this appeal. On November 17, 1998, the plaintiff was arrested in Colchester for operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. The police officers transported the plaintiff to the Colches-ter state police barracks where they advised him of his Miranda? rights, read him an implied consent advisory and gave him the opportunity to contact an attorney. Thereafter, the plaintiff agreed to submit to a breath test. The arresting officer explained the test to the plaintiff, specifying that he was required to take a deep breath and form a tight seal around the mouthpiece. The plaintiff failed to make a tight seal, took short breaths and released only short bursts of air into the machine. As a result of the plaintiffs actions, the allotted time on the machine expired, which prevented the officer from obtaining a sufficient sample for analysis.

Subsequently, the commissioner suspended the plaintiffs license to operate a motor vehicle for a period of one year. The plaintiff requested and received an administrative hearing in which the commissioner, acting through his hearing officer, upheld the suspension. Pursuant to General Statutes § 4-183, the plaintiff appealed to the Superior Court, which dismissed the appeal on the merits.

I

The plaintiff contends that there was not substantial evidence in the record of his refusal to take the test. The state argues that although the plaintiff orally agreed to take a breath test, his subsequent conduct amounted to a refusal. Refusal to take a breath test can occur through conduct as well as an expressed refusal. See State v. Corbeil, 41 Conn. App. 7, 19, 674 A.2d 454, cert. granted on other grounds, 237 Conn. 919, 676 A.2d 1374 (1996) (appeal dismissed as moot because of death of defendant).

In Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 714-15, 692 A.2d 834 (1997), this court held that “where it is undisputed that the motorist submitted to the chemical alcohol test, the fact that he failed to provide an adequate breath sample does not automatically constitute refusal within the meaning of § 14-227b. Such refusal must be supported by substantial evidence.” The gravamen of the holding in Bialowas is that, without more, an officer’s conclusory statement that an operator has failed to provide an adequate breath sample and has, therefore, refused, does not constitute substantial evidence. In Bialowas, the officer failed to furnish supporting evidence for his conclusion that the plaintiff in that case had refused to take the test.

In the present case, however, the court found that “[the plaintiff] was instructed to blow into the intoxi-lizer forming a tight seal around the mouthpiece, but continually failed to do so. He was also instructed to take an initial deep breath prior to blowing into the machine, but made no attempt to do so. [He was] observed taking short breaths and released very little air into the machine on each attempt he made. He then began to release short bursts of air into it, instead of continuous breath and the allotted time expired.” The court also noted that the evidence before the hearing officer contained the police officer’s observations that the plaintiffs chest and stomach did not rise or fall or exhibit any other indication of breathing and that no air was being expelled.

In the present case, as contrasted with the naked conclusion of the police officer in Bialowas, the officer furnished supporting details. Factual determinations of the commissioner must be upheld if there is substantial evidence in the record to support such a finding. O’Rourke v. Commissioner of Motor Vehicles, 33 Conn. App. 501, 506-507, 636 A.2d 409, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). “An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule. ... In determining whether an administrative finding is supported by substantial evidence, a court must defer to . . . the agency’s right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” (Citations omitted; internal quotation marks omitted.) Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 400, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998).

Whether the plaintiffs actions constituted a refusal to submit to the test presented a question of fact, and, therefore, the trial court’s review was limited to determining whether the hearing officer’s finding was supported by substantial evidence. See Altschul v. Salinas, 53 Conn. App. 391, 398, 730 A.2d 1171 (1999).

Pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., the court may not substitute its judgment for that of the commissioner and must affirm the commissioner’s decision unless it is “clearly erroneous in view of the rehable, probative and substantial evidence on the whole record . . . .” General Statutes § 4-183 (j). In the present case, the court properly concluded that substantial evidence existed to support the commissioner’s findings.

II

The plaintiff also claims that he was denied due process of law because, when he was testifying, the hearing officer asked him if he had ever taken a breath test before. The record shows that the plaintiff did not object to the question or the answer given. Accordingly, the plaintiff waived any objection he may have had to the question or answer. His failure to make a proper objection at the administrative hearing precludes him from raising the issue on appeal. See Finkenstein v. Administrator, 192 Conn. 104, 114, 470 A.2d 1196 (1984). Thus, we will not consider this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-2271) (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was tenhundredlhs of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. . . .”

        Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The suspension was for a period of one year because the plaintiff was a repeat offender. General Statutes § 14-227b (i).

       General Statutes § 4-183 (j) provides in relevant part: “ The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record . . . .”


text:
    WILLIAM H. REID v. COMMISSIONER OF CORRECTION
    (AC 19628)
    Lavery, C. J., and Landau and Pellegrino, Js.
    Submitted on briefs October 18
    officially released November 28, 2000

      Deborah G. Stevenson, special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, and Terence Mar-iani and John A. East III, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, William H. Reid, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus and denying his request for certification to appeal to this court. On appeal, the petitioner claims that the habeas court (1) abused its discretion when it denied the petition for certification to appeal from the denial of the amended petition and (2) improperly determined that he was not deprived of the effective assistance of counsel. We dismiss the appeal.

After reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s denial of the petitioner’s petition was predicated on a factual review of the petitioner’s claim and a determination that he had failed to rebut the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). We conclude that the habeas court had before it sufficient evidence to support its finding and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. GUY LOUISE-JULIE STATE OF CONNECTICUT v. ANN LOUISE-JULIE
    (AC 19477)
    (AC 19479)
    Lavery, C. X, and Spear and Pellegrino, Js.
    Argued September 11
    officially released November 28, 2000

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellants (defendant in each case).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Susan Naide, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendants, Guy Louise-Julie and Ann Louise-Julie, appeal from the trial court’s denial of their motions to vacate their guilty pleas. On appeal, the defendants claim that the court improperly denied their motions because their separate trial counsels were ineffective when they (1) failed to conduct aproper forensic investigation, (2) did not prepare for trial, (3) first advised the defendants that their trial was going forward shortly before the trial was scheduled to begin, thereby depriving them of time to review and consider their options, and (4) advised the defendants, without any factual basis, that racism would infect the trial because of pretrial publicity. We affirm the judgments of the trial court.

The court’s memorandum of decision and the record disclose the following facts and procedural history. The defendants are married and self-employed. After several business reversals, they applied for and received state assistance. In February, 1997, the state seized business records from the defendants’ home pursuant to a search warrant. After reviewing the records, the state accused the defendants of concealing income and assets when they applied for state aid. On March 25,1997, the defendants were arrested in connection with the defrauding of a public community. The state charged each defendant with one count of larceny in the first degree in violation of General Statutes § 53a-122 and one count of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122.

On July 8, 1998, the defendants entered guilty pleas under the Alford, doctrine. During the plea canvass, the defendants agreed that they had sufficient time to talk to their respective counsel and were satisfied with the advice that counsel provided. Prior to sentencing, the defendants filed identical motions to vacate their guilty pleas, claiming, inter alia, that their pleas were a result of ineffective assistance of counsel. At the hearing on the motions to vacate, the defendants presented only their own testimony. They did not call their trial attorneys or the forensic financial consultant who their trial counsel had retained. The court denied their motions to vacate and thereafter sentenced each defendant. This appeal followed.

I

The defendants first claim that the court improperly denied their motions to vacate their guilty pleas because their counsel were ineffective when they failed to conduct a proper forensic investigation, thereby violating the defendants’ rights to effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. We disagree.

Our standard of review of the court’s denial of a motion to vacate a guilty plea is limited to a determination of whether, by such denial, the court abused its discretion. See State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985); see also State v. Leavitt, 8 Conn. App. 517, 524, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986). In making that determination, we must assess the merit of the defendants’ claims of ineffective assistance of counsel.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court adopted a two part standard for evaluating claims of ineffective assistance of counsel pursuant to which a defendant must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that defense counsel’s deficient performance prejudiced the defense. Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995); see also Daniel v. Commissioner of Correction, 57 Conn. App. 651, 664-65, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000). To prevail, a defendant must satisfy both prongs of the Strickland test. Quintana v. Commissioner of Correction, 55 Conn. App. 426, 445, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999).

Here, the court determined that the defendants failed to meet the first prong of the Strickland test. We agree. The defendants failed to show that their counsels’ representation fell below an objective standard of reasonableness or that counsels’ conduct was deficient with regard to the forensic investigation. The court found and concluded in its memorandum of decision that “[a] forensic financial consultant was retained by defense counsel. The consultant examined financial documents that the state had disclosed to the defendants and provided defense counsel with an analysis of the state’s claims.” We conclude that there is evidence to support the court’s finding that there was no deficient performance; therefore, the court did not abuse its discretion by denying the defendants’ motions. Because the defendants failed to prove deficient performance, we need not consider the prejudice prong of the Strickland test. See Foreshow v. Commissioner, 48 Conn. App. 122, 128, 708 A.2d 600, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998).

II

We next turn to the defendants’ additional claims that their counsel (1) did not prepare for trial, (2) first advised the defendants that their trial was going forward just before the commencement of the trial, thereby depriving them of time to review and consider their options, and (3) without any factual basis, counseled the defendants that a trial would be infected by racism because of pretrial publicity. We decline to review these claims.

Pursuant to Practice Book § 61-10, it is the appellant’s responsibility to provide an adequate record for review. That responsibility includes moving for articulation when the trial court has failed to state the basis of a decision; Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995); the legal basis of a ruling is unclear; Leverty & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 379, 471 A.2d 958 (1984); or the court has overlooked a matter. Wolk v. Wolk, 191 Conn. 328, 335 n.1, 464 A.2d 780 (1983). The court made no specific findings regarding these three additional claims, and the defendants failed to seek an articulation pursuant to Practice Book § 66-5. We will not review these claims without a basis for ascertaining why the court made no specific findings as to them.

The judgments are affirmed.

In this opinion the other judges concurred.

       We treat the appeals as one appeal because the facts of each case, and the defendants’ briefs and claims are identical.

        North Carolina v. Alford, 400 U.S. 25, 35-39, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), permits a criminal defendant to plead guilty without admitting that he committed the crime in order to take advantage of a plea bargain and to avoid tire risk of conviction after a trial and possibly a more severe sentence.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . .
      Article first, § 8, of the constitution of Connecticut also guarantees the right to effective assistance of counsel and provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . .

       At oral argument before us, the defendants also claimed that they should prevail because (1) the state did not present evidence to contradict their testimony, (2) the court did not expressly state that it disbelieved their testimony and (3) the court improperly “ignored” some of their claims. Those claims were not briefed and, therefore, axe not entitled to review. See In re Adelina G., 56 Conn. App. 40, 42, 740 A.2d 920 (1999) (issue regarding dispositional phase raised during oral arguments not briefed and, therefore, not entitled to review); see also Shew v. Freedom of Information Commission, 245 Conn. 149, 166 n.20, 714 A.2d 664 (1998) (issue not briefed not entitled to review).

       Practice Book § 61-10 provides: “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ’record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”

       Practice Book § 66-5 provides in relevant part: “A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought. . . .”


author: PETERS, J.

text:
    SUFFIELD DEVELOPMENT ASSOCIATES LIMITED PARTNERSHIP v. NATIONAL LOAN INVESTORS, L.P.
    (AC 20007)
    Foti, Spear and Peters, Js.

      Argued September 19
    officially released November 28, 2000

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellant-appellee (plaintiff).

      Pa,ul M. Geraghty, for the appellee-appellant (defendant).
   Opinion

PETERS, J.

The dispositive issue in this civil appeal is the construction of a payment term in a stipulated judgment. The payment term limited monetary liability in this case to the proceeds of a judgment yet to be rendered in a pending case that would determine the liability of a third party to the putative payor. Specifically, the question is whether the right to recover such proceeds includes proceeds that resulted from a settlement of the third party action during the pendency of a retrial subsequent to appellate reversal of the original judgment against the third party. We agree with the trial court’s resolution of this issue.

The plaintiff, Suffield Development Associates Limited Partnership, brought a declaratory judgment action to clarify its obligation to pay the defendant, National Loan Investors Limited Partnership, $200,000 from the settlement of its claims against Society for Savings (bank). The defendant asserted its right to payment. After a trial, the court rendered judgment against the plaintiff, from which the plaintiff appeals. The defendant has filed a cross appeal challenging the court’s calculation of the amount of its recovery.

The court’s memorandum of decision and the record reveal the following undisputed facts. On December 17, 1996, the plaintiff and the defendant entered into a stipulated judgment to settle a foreclosure action. At that time, the plaintiff had succeeded at trial in a lender liability action against the bank, but the bank had filed an appeal that had not yet been resolved. Subsequently, on appeal, our Supreme Court reversed the judgment and remanded the case for a new trial on one issue. Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 846, 708 A.2d 1361 (1998).

Before the commencement of the new trial, the plaintiff and the bank entered into a settlement of the lender-liability case. Shortly thereafter, the defendant brought the present action asserting a claim of entitlement to a portion of the proceeds from the settlement in the lender liability action pursuant to the terms of the stipulated judgment entered into by the plaintiff and the defendant in the foreclosure action.

The plaintiff objected to the defendant’s claim on the ground that the deficiency judgment in favor of the defendant could be satisfied only from the proceeds of a “certain Lender Liability Judgment” in a “certain civil action.” According to the plaintiff, the decision of our Supreme Court reversing that “certain Lender Liability Judgment” had the effect of extinguishing that judgment in its entirety so that there no longer was any basis for any monetary recovery from the plaintiff.

The trial court in this case concluded, as the defendant had argued, that the proceeds from the settlement of the lender liability action pending retrial after reversal constituted proceeds from the “certain Lender Liability Judgment” described in the stipulated judgment. Accordingly, it rendered judgment ordering the plaintiff to pay $200,000 to the defendant. The plaintiff has appealed on the merits, and the defendant has cross appealed with respect to the amount of the judgment.

I

PLAINTIFF’S APPEAL

On appeal, the plaintiffs principal argument is that the court misconstrued the phrase “a certain Lender Liability Judgment” in the stipulated judgment. Because the plaintiffs appeal turns on the construction of documentary evidence of the terms of a stipulated judgment, which is a contract, our review of the court’s judgment is plenary and its language is accorded its common meaning and usage. HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 356-57, 727 A.2d 1260 (1999).

The plaintiff makes two arguments to persuade us to overturn the court’s construction of the phrase “certain Lender Liability Judgment” in the foreclosure action. The first is that the lender liability action was terminated not by judgment but by settlement and, therefore, the prerequisite judgment was not established. The second is that the lender liability action was terminated by our Supreme Court’s reversal and that subsequent events fall outside of the “certain Lender Liability Judgment.” We find no merit in either of these contentions.

The plaintiffs first argument cannot survive in light of its own concession, in its brief and at oral argument, that had the lender liability action been settled before the reversal of the judgment, the defendant would have been entitled to proceeds pursuant to the stipulated judgment. We are not persuaded that a post-reversal settlement stands on a different footing.

In its principal argument, the plaintiff claims, in essence, that we should break the lender liability action into two parts, the judgment before disposition of the appeal to the Supreme Court, and the remand for retrial ordered by that court. It essentially argues that, upon reversal by our Supreme Court, the “certain Lender Liability Judgment” contemplated in the stipulated judgment was extinguished for two reasons.

First, the plaintiff argues that our Supreme Court’s reversal of the judgment in the lender liability action extinguished the judgment contemplated by the parties to the foreclosure action because the retrial of the lender liability action, had it taken place, would have addressed a legal issue that previously had not been part of that action. At oral argument, the plaintiffs counsel conceded that the fact that the case was remanded on a previously undecided claim of promissory estoppel was not “where the action” was and, had our Supreme Court reversed the judgment on the basis of an evidentiary issue, he would still advance the same argument. Therefore, it did not matter that the lender liability settlement involved a cause of action based on promissory estoppel.

Second, the plaintiff argues, essentially, that our Supreme Court’s reversal of the trial court’s judgment in the lender liability action was a final judgment. Therefore, it maintains that the “certain Lender Liability Judgment” contemplated by the parties was extinguished, leaving the defendant with virtually nothing on which to premise its monetary claim.

Our Supreme Court has held that, if an appeal is pending and “there is reversible error, the final judgment is that of the appellate court.” Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 415, 525 A.2d 83 (1987); see Varley v. Varley, 181 Conn. 58, 61 n.4, 434 A.2d 312 (1980); see also Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953). Preisner and the cases cited therein did not, however, involve circumstances in which the judgments of the trial court were reversed and the cases were remanded for new trials. In such a situation, because the parties’ rights still maybe affected by further proceedings, the judgment is not final. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

We conclude, as did the trial court, that the more reasonable construction of the reference to a “certain Lender Liability Judgment” is that the parties intended to await the outcome of any further judicial action relating thereto. In our view, the use of the language “a certain Lender Liability Judgment” from “a certain civil action” was intended to identify the particular action to which the parties were referring in order to distinguish it from several other pending actions between the parties. Before and after the order for a new trial, that case was still the same case, based on the same complaint against the same party. Furthermore, the plaintiff has offered no reason to suppose that, in entering into the stipulated judgment, the defendant was bargaining for the possibility of a windfall in favor of the plaintiff.

We conclude, therefore, that the defendant is entitled to proceeds from the settlement that resolved the lender liability action before its retrial. On the plaintiffs appeal, the judgment is affirmed.

II

DEFENDANT’S CROSS APPEAL

On cross appeal, the defendant claims that, in construing the stipulated judgment, the court improperly (1) determined that the amount of proceeds from the lender liability settlement should be reduced by the plaintiffs attorney’s fees and (2) held the defendant responsible for the costs of the sheriffs execution against the bank instead of allowing the sheriff to recover his execution fees pursuant to General Statutes § 52-261 (6). We decline to review the merits of either claim.

A

Net Proceeds

The defendant first claims that the trial court improperly determined that it was entitled to proceeds based only on the net amount received by the plaintiff in the settlement of the lender liability action. Specifically, the defendant claims that, because the court took attorney’s fees into account when it determined the award to the plaintiff, it improperly reduced the amount the defendant was to receive under paragraph 3 of the stipulated judgment. We conclude that the record before us is inadequate for our review of this issue on its merits.

In rendering judgment for the defendant, the court awarded it only $200,000. The court arrived at this figure pursuant to paragraph 3 (b) of the stipulated judgment. It concluded that section (b) controlled because, in its view, the proceeds actually received by the plaintiff, after taking attorney’s fees into account, were less than $1,333,333.33. The defendant had argued to the contrary that because the lender liability settlement was in the amount of $1,500,000, pursuant to paragraph 3 (a) of the stipulated judgment, the defendant was entitled to 15 percent of $1,500,000, or $225,000. The defendant renews this argument on appeal.

The plaintiff argues that the court correctly determined that the terms “proceeds received,” as stated in paragraph 3, referred to the net proceeds, and, therefore, the defendant is entitled only to $200,000, pursuant to paragraph 3 (b) of the stipulated judgment. In paragraph 5 of the stipulated judgment, counsel for the plaintiff subordinated his attorney’s hens up to the first $200,000 in proceeds from the lender liability action. Because paragraph 5 applies only to the first $200,000 in proceeds, where the gross proceeds exceed $200,000, according to the plaintiff, the court must take attorney’s fees into account before the defendant’s recovery is determined.

The defendant argues that because this court is required to read a contract as a whole, giving all of its provisions the proper contextual meaning and effect; Regency Savings Bank v. Westmark Partners, 59 Conn. App. 160, 165-66, 756 A.2d 299 (2000); see also Enfield Pizza Palace, Inc. v. Ins. Co. of Greater New York, 59 Conn. App. 69, 75-76, 755 A.2d 931 (2000); we must focus on paragraphs 2 and 3, together with paragraph 23. In paragraphs 2 and 3 the parties stipulated that the plaintiff was to satisfy the judgment from the foreclosure action with proceeds received from the lender liability judgment. In paragraph 23 of the stipulated judgment, the parties agreed on how they would distribute any proceeds the defendant would receive if it sold the premises after June 30,1997. The defendant argues that because the parties chose to use the terms “net amount” in paragraph 23, it is logical to conclude that failure to use such language in paragraphs 2 and 3, means that the parties did not intend the term “proceeds” to have the same meaning.

The court’s memorandum of decision is uninformative about the reasoning behind its award of $200,000. There is nothing in the printed record or the court file to indicate that the defendant asked the court to reconsider, reargue, articulate or the like, its monetary award in light of its argument on appeal.

For this court to determine how the trial court arrived at $200,000, without the benefit of an explanation by the court, would be speculative. That is not our role. State v. Collic, 55 Conn. App. 196, 209, 738 A.2d 1133 (1999). It is the cross appellant’s burden to provide an adequate record for review. Practice Book § 60-5; Cadlerock Properties Joint Venture, L. P. v. Commissioner of Environmental Protection, 253 Conn. 661, 674, 757 A.2d 1 (2000). We therefore decline to review this issue.

B

Execution Costs

The defendant’s second claim on its cross appeal is that the court improperly found that the defendant was responsible for the payment of execution costs from the proceeds due it. Again, we conclude that the record is inadequate for our review.

In its memorandum of decision, the trial court found that the “execution costs and statutory interest claimed by [the defendant did] not apply to paragraph 3 (b) [of the stipulated judgment] and, therefore, [did] not award them.” The defendant filed a motion for further articulation, asking the court to explain why it denied the defendant its statutory right to have the sheriffs fees paid. The court denied the defendant’s motion. The defendant did not file a motion for review.

In its brief, the defendant renews its contention that the court’s decision was unclear “as to whether the fact that the parties entered into a written stipulation precludes [the defendant] from collecting . . . execution fees through a bill of costs . . . .” It argues that if that was the court’s reasoning, the court’s decision was improper.

“[ W]here a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal ... to this court via the motion for review.” Barnes v. Barnes, 190 Conn. 491, 493 n.2, 460 A.2d 1302 (1983). Here, the defendant failed to file a motion for review. It is the appellant’s burden to provide an adequate record for review. Practice Book § 60-5; Cadlerock Properties Joint Venture, L. P. v. Commissioner of Environmental Protection, supra, 253 Conn. 674. Because the record is inadequate, we decline to review the merits of this issue. We therefore affirm the judgment with respect to the cross appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Sometime during the proceedings, Bank of Boston succeeded the Society for Savings.

       Pursuant to paragraph 2 of that stipulated judgment, the defendant was to receive a deficiency judgment in the amount of $375,000, “which judgment shall be satisfied only by proceeds from a certain Lender Liability Judgment in favor of [the plaintiff] in a certain civil action known as Suffield Development Associates, L. P. v. Society for Savings, Docket No.: CV-94-0534196-S.” In this “certain civil action,” the plaintiff brought a two count complaint against the bank. The first count was brought on a breach of contract theory and the second count was brought on the theory of promissory estoppel.

       The stipulated judgment resulted in the settlement of three separate lawsuits and released all others, including the plaintiffs general partner and

        all of the plaintiffs guarantors from any and all liabilities to the defendant. The term defendants, as defined in the stipulated judgment, included the plaintiff, the general partner and the guarantors of the plaintiffs debt obligations. Pursuant to the terms of the stipulated judgment, the parties agreed to enter into a strict foreclosure with a deficiency judgment on a sliding scale starting at the amount of $375,000.
      In exchange for entering into the stipulated judgment, the defendant agreed not to pursue the guarantors or the general partner on the deficiency judgment. Furthermore, the defendant agreed to withdraw a separate action it had against the plaintiff and to release any and all garnishments or attachments of properly obtained in connection with said separate action.

       General Statutes § 52-261 provides in relevant part: “The following fees shall be allowed and paid ... (6) for levying an execution, when the money is actually collected and paid over, or the debt secured by the officer to the acceptance of the creditor, ten per cent on the amount of the execution, provided the minimum fee for such execution shall be twenty dollars . . . .”

       Paragraph 3 provides in relevant part: The plaintiff and the defendant “agree that the above-referenced deficiency judgment . . . shall be satisfied only from proceeds of the Lender Liability Judgment received by the [plaintiff], as follows . . . b) Two Hundred Thousand ($200,000) Dollars from the Lender Liability Judgment, if the proceeds received fall between . . . ($200,000) . . . and . . . ($1,333,333.33) . . . .”

       Paragraph 3 provides in relevant part: The plaintiff and the defendant “agree that the above-referenced deficiency judgment . . . shall be satisfied only from proceeds of the Lender Liability Judgment received by the [the plaintiff], as follows: a) Fifteen percent (15%) of the Lender Liability Judgment ... if the proceeds received are equal to or exceed . . . ($1,333,333.33)

       Paragraph 5 of the stipulated judgment provides: “Richard P. Weinstein hereby consents to and does hereby subordinate any and all attorney liens which he or his law firm may have against the above-referenced Lender Liability Judgment in favor of [the defendant] with respect to the first Two Hundred Thousand ($200,000.00) Dollars in proceeds of said Lender Liability Judgment.”

       In describing the distribution, the parties used a sliding scale similar to that used in paragraph 3; however, paragraph 23 specifically uses the term “net amount.” It states: The defendant “agrees that if it sells the Premises after June 30, 1997 for a ‘net amount,’ in excess of . . . ($1,500,000) . . . then [the defendant] will receive . . . (25%) of the net amount in excess of . . . ($1,500,000) . . . and [the plaintiff] shall receive . . . (75%) . . . of the net amount in excess of . . . ($1,500,000).” This paragraph goes on to define some of its terms: “For purposes of this Stipulation, [the defendant] and [the plaintiff] agree that the term ‘net amount in excess of . . . ($1,500,000) . . .’ shall mean the proceeds . . . from the sale of said Premises, afterpayment of the sum of . . . ($1,500,000) ... to [the defendant], together with the payment and/or reimbursement of . . . legal fees . . . .” (Emphasis added.)

       Although the terms “net amount” requires the total amount received by the defendant to be reduced by more than just legal fees, because the parties specifically defined the phrase “net amount in excess of $1,500,000” to include the payment of legal fees, it is logical to conclude that, if they intended the defendant to receive net proceeds from the lender liability settlement, they would have specifically stated that.

       There was no evidence that the defendant first filed a motion for articulation.