author: Dupont, C. J.

text:
    William J. Griffin III v. Planning and Zoning Commission of the Town of New Canaan et al.
    (10674)
    (10987)
    Dupont, C. J., Heiman and Schaller, Js.
    Argued December 8, 1992 —
    decision released March 23, 1993

      Louis Ciccarello, with whom, on the brief, were Benjamin E. Gershberg and Harry H. Hefferan, for the appellants (named defendant et al.).

      Ridgely W. Brown, for the appellant (intervening defendant Victor Christ-Janer).

      Richard C. Stewart, for the appellee (plaintiff).
   Dupont, C. J.

This mandamus action concerns a dispute over the meaning to be accorded a judgment rendered in accordance with a stipulation executed in settlement of a zoning dispute. The principal issue is whether the stipulated judgment allows the use of the ground floor of the plaintiffs building for a new car dealership sales office. The case was tried to an attorney trial referee who determined that the stipulated judgment allowed the first floor of the building to be so used. The trial court rendered judgment for the plaintiff and granted the plaintiff’s request for a writ of mandamus, directing the defendant building inspector of the town of New Canaan “to issue all approvals necessary for the plaintiff to use the ground floor [of the property] for office purposes.” The town and its building inspector now appeal from the judgment of the trial court. We affirm the judgment of the trial court.

The plaintiff, William J. Griffin III (Griffin), and his son, William J. Griffin IV, are the owners of lot 718 on the New Canaan assessor’s map. This lot is also known as 26 Forest Street. Griffin also owns three additional lots on Forest Street. Lots 711 and 712, known collectively as 32 Forest Street, are located north of and adjacent to lot 718. Lot 713 is located on the opposite side of Forest Street. It is lot 718 and the use of its ground floor that is the subject of this appeal.

Prior to 1985, lot 717, which is south of and adjacent to lot 718, was owned by the defendant-intervenor, Victor Christ-Janer. At this time, lots 717, 711, 712 and 718 were located in retail zone A. Lots 711 and 712 contained a large building that the Griffins used as a new car dealership and lots 717 and 718 were vacant. The New Canaan zoning regulations in effect at that time exempted properties in retail zone A from any off street parking requirements.

In 1985, the defendant planning and zoning commission rezoned certain properties in the town center, including lots 711, 712, 717 and 718, from retail zone A to retail zone B. The zoning regulations enumerate twelve categories of permitted uses in retail zone B, including new car dealerships, but prohibit offices on the first floor of any building. Retail zone B also imposes various off street parking requirements, depending on the specific use of the site.

Griffin and Christ-Janer appealed the rezoning of their properties to the Superior Court, alleging “spot zoning,” and thereafter entered into settlement negotiations with the commission. Prior to settlement, but subject to such settlement, Griffin agreed to purchase lot 717 from Christ-Janer so that Griffin could use the lot in connection with the proposed renovation of his properties. A proposed settlement of the litigation, in the form of a stipulation, was submitted to the commission for approval. Attached to the proposed stipulated judgment was a proposed plot plan and site plan of the Griffin and Christ-Janer properties. The proposed stipulated judgment did not specifically mention any restrictions on the future use of lot 718, with the possible exception that trees were to be planted on the lot. The proposed plot plan, however, included a notation within lot 718 stating, “new structure 2 story retail and office.” The proposed site plan similarly included a notation for lot 718 stating, “new 2 story structure retail and office.”

The commission held a public meeting on July 5, 1988, to consider the proposed stipulation. At that time, various architectural drawings and plans were presented to the commission showing the exterior elevation of the proposed buildings to be constructed or renovated by Griffin on Forest Street. One drawing showed two signs reading “Antiques” and “Florist” over the ground floor areas of the building to be constructed on lot 718. This drawing was not attached to the proposed stipulated judgment.

The commission approved the stipulation and judgment was rendered pursuant to the stipulation by the court on August 12,1988. The stipulated judgment provided, inter alia, that all of the lots owned by Griffin would remain in zone B, but Griffin was relieved from the off street parking requirements except for the obligation to maintain twenty-nine preexisting spaces located primarily on lot 713. Christ-Janer fully complied with all the detailed requirements imposed on him by the stipulated judgment, including the construction of a park on lot 717.

The stipulated judgment outlines, in great detail, all Griffin’s obligations; those obligations, however, relate solely to lots 711, 712 and 713. The stipulated judgment fails, with the possible exception of its provision related to the planting of trees, to address lot 718 at all. The stipulated judgment also provides that “all necessary zoning permits and approvals shall be issued” to allow Griffin to construct and use the proposed improvements “in accordance with local ordinances and regulations.”

Subsequent to the entry of the stipulated judgment, Griffin constructed a two story building on lot 718. After the construction on lot 718 was completed, the town building inspector issued a certificate of occupancy for the offices located on the second floor of the new building, but refused to issue a certificate of occupancy for the ground floor because he claimed that the ground floor’s use as an automobile sales office violated the stipulated judgment.

After the trial was concluded and the parties had filed briefs, the attorney trial referee issued a report containing forty-four findings of fact. Specifically, the attorney trial referee found that (1) the stipulated judgment is clear and unambiguous and does not restrict the use of the ground floor of the building on lot 718 to retail business, (2) the existence of the words “Antiques” and “Florist” on the elevated drawings shown to the commission at the public hearing but not attached to the stipulation do not modify the terms of the stipulated judgment, (3) the stipulation is silent with respect to lot 718, and (4) because lot 718 is in retail zone B it can be used for any of the twelve uses permitted in that zone by the New Canaan zoning regulations. The referee therefore concluded that the defendant building inspector had a ministerial duty to perform what was imposed by law and did not involve the exercise of his discretion, that Griffin had a clear legal right to the performance of that duty and that Griffin did not have an alternate remedy at law. The attorney trial referee thus recommended that a mandamus should issue directing the building inspector to issue a permanent certificate of occupancy for the use of the property at 26 Forest Street, and that judgment for Griffin should enter to the effect that Griffin could use the property at 26 Forest Street for any of the twelve uses permitted in retail zone B, and could use the ground floor for new car dealership sales offices.

The trial court found “that the referee’s recommendations are sound and logical, and that there is no material error in his report or any other reason why it is unacceptable.” The court therefore rendered judgment for the plaintiff and directed the building inspector to “issue all approvals necessary for the plaintiff to use the ground floor at 26 Forest Street for office purposes.”

Before reaching the main issue in this case, we must first address Christ-Janer’s claim that the present appeal is moot because there is no longer an actual controversy as Griffin has voluntarily vacated the premises at issue and the ground floor is now occupied by a retail business. Christ-Janer argues that the relief sought by Griffin, a writ of mandamus compelling the issuance of a certificate of occupancy, is no longer required because the ground floor is now being used for retail purposes and not as a new car dealership sales office. Griffin counters that no subsequent change in use can moot this case or appeal because, at the time Christ-Janer was permitted to intervene, the parties stipulated and recognized that the uses to be permitted on the ground floor would be decided by this appeal. Griffin also argues that the property’s current use is irrelevant because the final disposition of this case will necessarily affect the property’s future permitted uses. We agree with Griffin that his leaving the ground floor of 26 Forest Street and the use presently being made of the property does not moot the appeal.

Griffin is correct in his argument that the property’s present use is irrelevant. Zoning regulates the use of land and is not concerned with present ownership or limited to actual use, but includes the potential future use of property. See Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 274, 545 A.2d 530 (1988). If mandamus should issue in this case, Griffin would have the right to use the ground floor of his property for a new car dealership sales office, regardless of whether he presently chose to exercise that right. The appeal is not moot.

The defendants’ main contention is that although lot 718 is now within retail zone B, which permits any of twelve different uses, the stipulated judgment limits the ground floor of the building on lot 718 to retail use. The defendants’ assertion is based principally on the fact that the plot plan and site plan attached to the stipulated judgment each contained a notation that lot 718 would eventually contain a two story retail and office structure. Because the zoning regulations do not permit the ground floor of any building within retail zone B to be used for office purposes; New Canaan Zoning Regulations § 60-9.2 B (5); the defendants argue that the ground floor is restricted to retail use. The defendants also contend that Griffin implied that the ground floor would be limited to retail use when he presented the elevation drawings to the commission at the public hearing.

The testimony at trial centered around the parties’ intent with respect to the stipulated judgment. The attorney trial referee heard testimony from the Griffins, Christ-Janer, the building inspector, two members of the commission and from the architect who prepared both the plot plan and the site plan attached to the stipulated judgment, as well as the elevation drawings shown to the commission.

The attorney trial referee correctly noted that the stipulated judgment itself, with the possible exception of the obligation to plant trees, is silent with respect to lot 718. The defendants point out, however, that the site and plot plans attached to the stipulated judgment both contain notations regarding lot 718. The defendants argue that, because the stipulated judgment makes express reference to the attached site and plot plans, they are thereby incorporated into the stipulated judgment. We agree. This does not necessarily mean, however, that the use of the ground floor of any building constructed on lot 718 is limited to retail use.

A stipulated judgment is in the nature of a contract between the parties. Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956); Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 122, 492 A.2d 536 (1985). Therefore, the interpretation of a stipulated judgment, like the interpretation of a contract, is usually a question of fact. See Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991); Sagamore Group, Inc. v. Commissioner of Transportation, 29 Conn. App. 292, 298, 614 A.2d 1255 (1992); Jacobs v. Seaboard, Inc., 28 Conn. App. 270, 273, 610 A.2d 189, cert. denied, 223 Conn. 923, 614 A.2d 822 (1992).

Here, the referee had the stipulation itself and testimony on which he could base his conclusions of fact. Where the fact finder’s conclusions as to intent are based on such factors as the credibility of witnesses and the testimony of live witnesses as to the meaning of a contract or as to the circumstances surrounding the execution of a contract, a question of fact as to intent of the parties exists. Jacobs v. Seaboard, Inc., supra, 273-74.

At trial, the attorney trial referee heard testimony from the architect who produced the site and plot plans. He indicated that the words “new 2 story structure retail and office” were placed on the site plan because he knew what retail zone B allows and that whenever he does any type of presentation drawings for a site plan he usually puts down on the drawing whatever use he thinks the zone would allow. He expressly stated that at the time the drawings were prepared he had no idea what type of use would actually be made of the property. He fiirther testified that he thought the property could be used for any purpose allowed by the regulations for properties located in retail zone B, and that the property’s ground floor would not be further limited as to use.

The attorney trial referee also heard testimony from William Griffin IV, who was principally responsible for implementing his father’s plans. The younger Griffin testified that, in entering the stipulation, it was never his nor his father’s intent to limit the use of the ground floor of lot 718 to retail. He testified that, to the contrary, it was their intent to relocate their sales personnel and showroom to the ground floor of lot 718 while they demolished and renovated an existing building on lots 711 and 712. He also testified that after the new showroom was completed and the sales staff had been moved back into the building on lots 711 and 712, it was their intention to rent out the ground floor of lot 718 for any use permitted within retail zone B.

The defendants argued that the commission intended the stipulation to prohibit the use of the ground floor for offices. As evidence of this intent, the defendants cite the elevation drawings presented at the public hearing. This hearing was held prior to the execution of the stipulation and prior to the rendering of judgment pursuant to the stipulation. The elevation drawings, however, were not attached to, or made part of, the stipulation. Furthermore, the testimony given at the public hearing was not heard by the attorney trial referee, and the only evidence he could consider was the testimony at trial, together with the stipulation and attachments to it.

On the basis of the testimony presented to the attorney trial referee, we conclude that the attorney trial referee’s explicit determination as to intent was not clearly erroneous. In making this explicit factual determination, the attorney trial referee implicitly found certain witnesses to be credible and believable in their testimony. This was precisely his function as a fact finder. “The resolution of conflicting factual claims falls within the province of the trial court.” Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). Additionally, “[w]e cannot retry the facts or pass on the credibility of . . . witnesses]. ” Id.

The trial court determined that the notations contained on the site and plot plan were not intended to limit the uses that could be made of the ground floor of the building constructed on lot 718. On the basis of this determination, the attorney trial referee ultimately determined that the stipulated judgment did not limit the plaintiff’s use of the ground floor of the property beyond those limitations embodied in the town zoning regulations with respect to properties within retail zone B. He also determined that a certificate of occupancy should issue for the plaintiff’s use of the property as a new car dealership sales office. We find that the attorney trial referee’s factual findings and ultimate conclusions and recommendations are adequately supported by the record and are not clearly erroneous.

We also conclude that the trial court properly issued a writ of mandamus in this case. “A party seeking a writ of mandamus must establish: (1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to performance of that duty; and (3) that the plaintiff has no adequate remedy at law. . . . Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus. ... In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity.” (Citations omitted; internal quotation marks omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990); Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906 (1967); Hackett v. New Britain, 2 Conn. App. 225, 228-29, 477 A.2d 148, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984).

Here, the attorney trial referee determined that the plaintiff satisfied the three necessary elements for issuance of the writ, and recommended that a mandamus should issue. The trial court agreed with the attorney trial referee that “[m]andamus is proper in this instance because plaintiff has met the three part test prescribed by Hennessey v. Bridgeport[, supra]” and therefore ordered the issuance of “all approvals necessary for the plaintiff to use the ground floor at 26 Forest Street for office purposes.” The trial court’s decision to issue the mandamus was within its sound discretion. Hennessey v. Bridgeport, supra, 659.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant-intervenor, Victor Christ-Janer, also appealed from the judgment of the trial court and the appeals were consolidated by this court.

       The plaintiff sought, in his writ of mandamus, the temporary use of the first floor as a new car dealership sales office and we treat the judgment of the trial court as allowing that use as well as all of the twelve uses permitted by the New Canaan zoning regulations for properties located in retail zone B.

       After completion of the building on lot 718, Griffin apparently used the ground floor as a sales office for his automotive dealership until voluntarily vacating the premises in February, 1992. The ground floor is apparently now occupied by a cycle shop.

       In his report, the attorney trial referee noted the following: “The parties apparently have stipulated, at a contempt hearing held before [then Superior Court] Judge Landau on February 20, 1990, that the issue of whether a mandamus should issue would be decided in this case and, also, that the issue of what uses are permitted for 26 Forest Street under 60-9.2B of the zoning regulations following entry of the stipulated judgment in the prior zoning appeal should also be determined as part of the judgment in this case.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Edward Williams
    (11096)
    O’Connell, Landau and Freedman, Js.
    Argued December 9, 1992 —
    decision released March 23, 1993

      Mark Rademacher, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 53a-48 and 21a-278 (b), and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court (1) improperly admitted hearsay evidence, (2) improperly allowed invocation of the attorney-client privilege, (3) violated the defendant’s right to compulsory process and due process, and (4) abused its discretion by excluding evidence that a third party may have committed the crime. We affirm the judgment of the trial court.

The New Haven police, authorized by search warrant, raided premises at 34-36 Legion Avenue in that city. Lissette Gotay, the defendant’s girl friend, was in her second floor apartment at 34 Legion Avenue with her six year old son when the warrant was executed. Although the defendant frequently stayed at the apartment, he was not present at that time. The police seized a gram scale, a pager, cash and numerous glassine packets containing cocaine that had been hidden in various locations in the apartment. They also seized the defendant’s jacket from a closet and discovered $1300 packaged in groups of $100 in the pocket of the jacket. As a result of the raid, Gotay and the defendant were charged with multiple offenses. Gotay pleaded guilty as part of a plea agreement and, prior to her sentencing, testified for the state at the defendant’s trial.

Additional facts are included as necessary in the discussions of the individual claims.

I

The defendant first claims that the trial court improperly admitted a portion of Gotay’s testimony. On direct examination, the state asked Gotay, “[w]hen [the police] discovered these drugs did you tell the officers who the drugs belonged to?” Gotay replied, “Edward Williams.” The defendant objected on hearsay grounds. The court overruled the objection and allowed the statement to be admitted as an excited utterance and as a declaration against penal interest.

We do not reach the issue of whether the trial court’s ruling was proper. This is a claim of an erroneous evidentiary ruling and as such does not implicate the constitution. In nonconstitutional claims, the defendant has the burden of demonstrating the harmfulness of the claimed error. State v. Robinson, 213 Conn. 243, 259, 567 A.2d 1173 (1989). He must show that it is more probable than not that the claimed error affected the verdict. Id.

Other evidence that the drugs belonged to the defendant was introduced in this case without objection. In addition to Gotay’s testimony concerning her remarks at the time of the raid, she also testified that on the day following the raid the defendant admitted to her that the drugs were his. This testimony came into evidence without objection and was properly before the jury.

It is well established that a judgment need not be reversed merely because inadmissible evidence has been admitted, if permissible evidence to the same effect has also been placed before the jury. State v. Barber, 173 Conn. 153, 160, 376 A.2d 1108 (1977). Accordingly, the testimony that is the subject of this claim was merely cumulative and cannot be said to have affected the verdict.

II

The defendant’s next claim involves the court’s ruling allowing Timothy Pothin, Gotay’s attorney, to invoke the attorney-client privilege concerning advice he had given to Gotay. Pothin represented Gotay on charges arising out of this incident. Gotay was originally charged with possession of narcotics with intent to sell by a person who is not drug-dependent, conspiracy to possess narcotics with intent to sell and risk of injury to a child. She later entered into a plea agreement wherein, in exchange for her guilty plea, the state agreed to drop the risk of injury charge and reduce the possession charge to possession with intent to sell, which, unlike the original charge, does not require a mandatory minimum sentence. Consequently, she pleaded guilty to the conspiracy charge and the reduced possession charge and the state agreed to recommend a sentence of ten years suspended after seven with the right to argue for less.

Gotay’s testimony linking the defendant to the narcotics was a significant part of the state’s case. Gotay indicated on direct examination that she was not promised leniency in exchange for that testimony. On cross-examination, defense counsel extensively challenged that representation. The trial court, ruling that the cross-examination had opened the door to further testimony concerning the plea agreement, permitted the state to call Pothin. He testified that there were no deals made either on or off the record regarding leniency in exchange for Gotay’s testimony. Pothin acknowledged, however, that he was hopeful that Gotay’s cooperation would be considered by the judge at the time of sentencing.

On cross-examination, defense counsel asked Pothin whether he had expressed to Gotay his “best judgment as to what type of sentence she could expect at sentencing in light of all the good things you could say including her cooperation in this matter by way of testimony?” Pothin answered in the affirmative and counsel asked, “What was that advice?” Pothin refused to answer and invoked the attorney-client privilege. The trial court honored Pothin’s exercise of the privilege and the defendant now claims that the court’s ruling improperly precluded him from fully challenging Gotay’s credibility.

Pothin’s invocation of the attorney-client privilege implicates the conflict between the candor necessary for effective legal advice and the need for full disclosure in court. State v. Cascone, 195 Conn. 183, 188, 487 A.2d 186 (1985). In resolving those competing interests, we “employ a fact-specific balancing test.” Id., 189. The trial court should honor the privilege if the injury to the attorney-client relationship resulting from disclosure outweighs the benefit to the adjudicative process. Id.

The defendant relies heavily on State v. Cascone, supra, to support his contention. In Cascone, the defendant claimed that an exculpatory statement, allegedly made by a codefendant to an attorney representing both defendants at the time the statement was made, should have been admitted at trial. At the time of trial, the attorney no longer represented either defendant. Our Supreme Court held that the statement should have been admitted because under the facts of that case the “harm of its exclusion outweighed the cost of its admission.” Id., 190.

In the present case, however, the balancing test favors the trial court’s honoring of the privilege. Unlike the situation in Cascone, at the time of trial here, Pothin still represented Gotay, who had not yet been sentenced. An ongoing attorney-client relationship weighs heavily in favor of nondisclosure because of the potential for injury to that relationship. State v. Edwards, 201 Conn. 125, 141, 513 A.2d 669 (1986). Moreover, the adjudicative process would not have been significantly advanced by disclosure. In Cascone, the disclosure went directly to the question of the defendant’s guilt. Here, however, the disclosure concerned only the credibility of Gotay and Pothin, and the defendant cross-examined both witnesses at length on that issue. See State v. Silva, 201 Conn. 244, 256-57, 513 A.2d 1202 (1986).

The defendant further claims that even if the exercise of the privilege was warranted, Gotay waived it through her testimony and Pothin’s testimony as her agent. There is no merit to this claim. “[A]n attorney is not bound to remain silent as to all information regarding his client, but only as to that information bom of confidential communication.” State v. Manning, 162 Conn. 112, 121, 291 A.2d 750 (1971). Prior to the question at issue, neither Pothin nor Gotay had testified as to what advice he had given her concerning the type of sentence she would receive. Consequently, the privilege was not waived and Pothin properly invoked it at the point when he was asked to disclose information arising from a confidential communication. Because the privilege was not waived and the balance of interests favors application of the privilege, the trial court properly honored Pothin’s exercise of the privilege.

Ill

A

The defendant next claims that the trial court denied his constitutional rights to compulsory process and due process by prohibiting him from calling Judge Thomas J. Corradino and assistant state’s attorney John O. Waddock as witnesses. Judge Corradino was not the trial court judge but had participated in pretrial conferences with Pothin and Waddock in Gotay’s case. Waddock, however, participated not only in the pretrial conferences in Gotay’s case, but was also the state’s attorney prosecuting the case against the defendant.

The purpose of calling Judge Corradino and Waddock was to ask them what had been discussed during plea negotiations in Gotay’s case and what had been said at a bench conference during Gotay’s plea. In an offer of proof, the defendant showed that he hoped to elicit testimony from Judge Corradino and Waddock to the effect that Gotay had been promised leniency in her sentencing if she cooperated with the state by testifying against the defendant. The defendant hoped to use Judge Corradino’s and Waddock’s testimony to contradict Pothin’s and Gotay’s testimony that she had not been promised leniency.

“A witness may be impeached by the introduction of contradictory evidence of other witnesses as long as the evidence is in fact contradictory . . . and that evidence does not relate to a collateral matter. . . . A contradiction is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict a witness. . . . Whether extrinsic evidence contradicts testimony of a witness so as to require its introduction into evidence for impeachment purposes is within the trial court’s discretion, subject to review only for abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Viet X. Nguyen, 17 Conn. App. 234, 239-40, 552 A.2d 823 (1989). The evidence that the defendant was seeking to introduce was not relevant to any issue in the case apart from its tendency to contradict Pothin and Gotay and was, therefore, collateral to the issue of the defendant’s guilt. The trial court did not abuse its discretion in disallowing this collateral evidence.

B

Notwithstanding that our collateral evidence analysis is dispositive of this claim, we feel compelled to address special considerations implicated in the attempt to require the testimony of a judge and an assistant state’s attorney. “[T]he calling of judges of the Superior Court as witnesses should be avoided whenever it is reasonably possible to do so. Counsel should never summon them if the rights of their clients can be otherwise protected.” Woodward v. Waterbury, 113 Conn. 457, 465, 155 A.2d 825 (1931). Calling a judge as a witness is not encouraged unless there is a compelling need for his testimony. Gold v. Warden, 222 Conn. 312, 320, 610 A.2d 1153 (1992). A judge, however, is not automatically disqualified by virtue of his office and is competent to testify concerning facts that he observed at a prior or collateral proceeding. Id. Such examination, however, may not extend into a judge’s mental processes in arriving at a judicial decision. Id., 319 n.11. Accordingly, Judge Corradino could not have been examined concerning the factors he would take into consideration in imposing sentence.

The test is whether there is a compelling need for the judge’s testimony. The present case can be distinguished from Gold v. Warden, supra, in which the Supreme Court found that a habeas corpus court abused its discretion in excluding a trial judge’s testimony. The issue in Gold was the defendant’s mental competency during a prior trial. The Gold court concluded that the trial judge’s location in the courtroom afforded him a unique opportunity to observe the defendant’s demeanor during the trial. The court explained that “[i]t stands to reason that the trial judge’s prolonged observation of the petitioner’s demeanor over the course of the entire trial would be highly significant in assessing the petitioner’s competency.” Id., 320. The uniqueness of the judge’s testimony in Gold contrasts sharply with the present case in which the defendant availed himself of the opportunity to cross-examine both Gotay and Pothin extensively concerning the pretrial and bench conferences. There was no showing that Judge Corradino possessed unique information not otherwise available to the defendant. The defendant failed to satisfy his burden that there was a compelling need to call Judge Corradino as a witness.

C

The compelling need test also applies to permitting a defendant to call, as a witness, the state’s attorney-prosecuting the case against him. State v. Thompson, 20 Conn. App. 290, 296, 567 A.2d 837 (1989). The Thompson court identified four policies served by applying the compelling need standard to the prosecutor-witness situation: “First, there is the risk that the prosecutor may not be a fully objective witness. . . . Second, there exists the justifiable fear that, when a prosecutor takes the witness stand, the prestige or prominence of the prosecutor’s office will artificially enhance his credibility as a witness. . . . Third, the jury may understandably be confused by the prosecutor’s dual role. . . . Finally, a broader concern for public confidence in the administration of justice suggests the maxim that justice must satisfy the appearance of justice.” (Citations omitted; internal quotation marks omitted.) Id.

The distinctions between advocate and witness and between argument and testimony will undoubtedly confuse the jury if a defendant is permitted to call his prosecuting attorney as a witness. United States v. Schwartzbaum, 527 F.2d 249 (2d Cir. 1975), cert. denied, 424 U.S. 942, 96 S. Ct. 1410, 47 L. Ed. 2d 348 (1976). “ ‘[T]he potential for jury confusion is perhaps at its height during final argument when the prosecutor must marshall all the evidence, including his own testimony, cast it in a favorable light, and then urge the jury to accept the government’s claims.’ ” State v. Thompson, supra, quoting United States v. Prantil, 764 F.2d 548, 553 (9th Cir. 1985). Requiring a prosecutor to testify thrusts him into the awkward position of arguing his own credibility to the jury.

The defendant has not satisfied his burden of showing that there was a compelling need for the testimony of the assistant state’s attorney prosecuting this case.

IV

The defendant’s final claim is that the trial court improperly excluded evidence he proffered in an attempt to prove that Gotay’s brother, Louis, placed the narcotics in Gotay’s apartment. The excluded evidence would have shown that Louis was on probation for a narcotics conviction, was living in a halfway house and had recently had a urine analysis that tested positive for narcotics. In addition, Louis had access to a key to Gotay’s apartment and was found there the day after the raid. The trial court ruled that the evidence was merely speculative and refused to admit it.

It is axiomatic that “[ejvidence concerning a third party’s involvement is not admissible until there is some evidence which directly connects that third party with the crime.” (Emphasis in original; internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 117, 591 A.2d 1246 (1991); see also State v. Boles, 223 Conn. 535, 549-50, 613 A.2d 770 (1992). If the evidence merely suggests a possible grounds of suspicion against another person, it is within the discretion of the trial court to exclude it. State v. Payne, supra. The trial court here did not abuse its discretion by refusing to admit the proffered evidence of a third party’s culpability.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Freedman, J.

text:
    Steven Elliot et al. v. Sears, Roebuck and Company
    (11185)
    Daly, Landau and Freedman, Js.
    Argued January 14 —
    decision released March 23, 1993

      Philip T. Newbury, Jr., for the appellant (defendant).

      John J. Nazzaro, with whom, on the brief, was Melissa Clott Shafner, legal intern, for the appellees (plaintiffs).
   Freedman, J.

In this product liability claim brought pursuant to General Statutes §§ 52-572m through 52-572r, inclusive, the defendant appeals from the judgment in favor of the plaintiffs in the amount of $132,277.62. On appeal, the defendant claims that (1) the trial court improperly refused to charge the jury as requested on the issue of product alteration or modification, (2) the trial court improperly refused to charge the jury as requested on the issue of product misuse, (3) the trial court improperly instructed the jury that the plaintiffs need not prove a specific defect in order to recover, and (4) the plaintiffs failed to set forth a prima facie case of liability. We affirm the judgment of the trial court.

The jury could reasonably have found the following relevant facts. The plaintiffs began adding a second story to their house in 1987. When the framing for the addition was complete and the plywood flooring had been laid, but before the staircase to the second floor had been installed, the plaintiff Steven Elliot placed a sixteen foot aluminum extension ladder, which he borrowed from his father-in-law, as a temporary stairway to the second floor. The ladder had been sold by the defendant.

For approximately four months, the plaintiffs and others used the ladder to climb to and from the second floor. The base of the ladder was secured by a two-by-four nailed to the first floor landing. The top of the ladder was tied by rope to a two-by-four on the second floor landing. The rails of the ladder extended approximately one foot above the second floor landing. The ladder was erected at an angle of approximately sixty degrees, and there was no railing on either side of the ladder.

On April 17, 1987, Steven Elliot ascended the ladder to show a friend the work being done on the second floor. The telephone rang, and Elliot began to descend the ladder to answer the telephone. As was his customary practice, he descended the ladder with his back to the rungs. By his own admission, Elliot never read the warning and instruction labels which were placed on the ladder by the manufacturer. Among other things, these warnings and instructions state: “Always face ladder when climbing, working or descending. Keep body centered between side rails. Always maintain a firm hold on the ladder.”

As he proceeded down to the first floor with his back to the ladder, Elliot lost his footing and began to fall. In an effort to stop his fall, he reached back with his left arm and attempted to grab hold of the ladder. In the course of grabbing the top of the ladder, the wedding ring on Elliot’s left ring finger caught on a sharp, raw metal edge of the ladder, which caused the skin and soft tissue of the finger to be removed and left only the bone intact. The defendant was rushed to the hospital and his left ring finger was amputated.

The jury returned a verdict in favor of the plaintiffs’ as follows: for the plaintiff, Steven Elliot, in the amount of $136,050 reduced by 25 percent for his comparative responsibility, for a net award of $102,037.50; for the plaintiff, Robin Elliot, in the amount of $10,000 reduced by 25 percent, for a net award of $7500. After the trial court denied the defendant’s postjudgment motions and rendered judgment on the jury verdict, this appeal followed.

I

The defendant’s first two claims are interrelated and will be discussed together. The defendant first claims that the trial court should have instructed the jury on the issue of alteration or modification of the product in accordance with its request to charge. The defendant next claims that the trial court should have instructed the jury that misuse of the product by the plaintiff is a bar to recovery. We are not persuaded.

“The court is under no duty at any time to charge in the exact language requested. . . . Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge. . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.” (Citations omitted.) Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981); State v. Commerford, 30 Conn. App. 26, 32, 618 A.2d 574, cert. denied, 225 Conn. 903, 621 A.2d 285 (1993). Under this standard of review, we conclude that the trial court properly discharged its duty to instruct the jury in a manner calculated to give a clear understanding of the issues presented for their consideration.

The defendant contends that the defense of product alteration or modification should have been submitted to the jury because the evidence showed that the plaintiff Steven Elliot changed the use of the product from that for which it was intended by using the ladder as a staircase and by using the ladder in a manner contrary to the clear and unambiguous warnings attached to the ladder. General Statutes § 52-572p defines alteration or modification as “changes in the design, formula, function or use of the product from that originally designed, tested or intended by the product seller” and provides in pertinent part that “[a] product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified by a third person unless . . . the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller.” Section 52-572p, therefore, relieves a product seller of liability for changes in product use (1) when such modified use should not have been reasonably anticipated by the seller and (2) when the injury would not have occurred but for the fact that the product was not used as anticipated. In doing so, our statute incorporates what is known as the defense of unforeseeable product misuse, recognized in our common law doctrine of strict liability in tort; see Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 505-506, 365 A.2d 1064 (1976); into the defense of product alteration or modification. Consequently, the defendant was entitled to have the jury consider the applicable principles of § 52-572p. Under the circumstances of this case, however, where the alteration or modification alleged by the defendant pertains only to the plaintiff’s use of the product, we will examine the court’s instruction to determine whether the jury was properly instructed on the defense of product misuse.

In a product liability claim, the defense of product misuse arises when a product is used in a manner that should not have been reasonably foreseen by the defendant. Norrie v. Heil Co., 203 Conn. 594, 600, 525 A.2d 1332 (1987); Hoelter v. Mohawk Services, Inc., supra, 517. “The concept of misuse concerns an issue of causation and provides a complete defense to liability, regardless of any defective condition, if an unforeseeable and unintended use of the product, and not the alleged defect, caused the plaintiff’s injuries.” (Emphasis in original.) States v. R.D. Werner Co., 799 P.2d 427, 429 (Colo. App. 1990).

Although the trial court refused to instruct the jury in the precise language of § 52-572p, it did instruct the jury on that aspect of § 52-572p most relevant to the factual dispute between the parties, namely, whether the plaintiff’s use of the ladder constituted “misuse” and, if so, whether it, and not the alleged defect, caused the plaintiff’s injuries. In this regard, the trial court instructed the jury at length on the issue of proximate cause, stressing that the plaintiff had the burden of proving that the alleged defect caused the plaintiff’s injuries. The court also instructed the jury on the defense of misuse and on the defendant’s claim “that the plaintiff’s conduct in misusing the ladder contributed to the injuries which he sustained.” In this manner, the court adequately instructed the jury that the defendant would not be liable if the plaintiff failed to establish that the defective product, and not some other factor, was the cause of the plaintiff’s injuries and that the jury could consider the role of the plaintiff’s alleged misuse of the ladder as it related to the question of causation.

As a corollary to its first argument, the defendant contends that the trial court should have instructed the jury that misuse is a bar to recovery. For this proposition, the defendant relies on General Statutes § 52-5721. The short answer to the defendant’s claim is that § 52-5721 does not apply to a product liability claim pursuant to General Statutes §§ 52-572m through 52-572r, inclusive. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 519, 562 A.2d 1100 (1989). The long answer is that while misuse can be a bar to a plaintiff’s recovery where it is established that the plaintiff’s misuse, and not the defect, is the cause of the injuries; State v. R.D. Werner Co., supra; misuse will not bar recovery where the misuse played only a contributing role in the plaintiff’s injuries. Under such circumstances, the principles of comparative responsibility embodied in General Statutes § 52-572o will mandate a proportionate reduction in, but not a complete bar to, the plaintiff’s recovery due to any responsibility attributed to the plaintiff due to product misuse.

Thus, as noted above, because the trial court adequately instructed the jury on the concept of proximate causation as it related to the plaintiff’s injuries, the jury was appropriately apprised of that aspect of the doctrine of unforeseeable product misuse that will relieve a product seller of liability. Likewise, because the court specifically instructed the jury to consider (and it did, in fact, consider) the relative responsibility of the plaintiff in his misuse of the ladder in contributing to his injuries and to apportion damages accordingly, the jury was appropriately apprised of that aspect of the doctrine of unforeseeable product misuse that will reduce, but not bar, recovery by the plaintiff.

The court’s instructions on the issues of proximate cause and product misuse, when read as a whole, were appropriately adapted to the issues in the case and were stated so as not to mislead the jury. We decline the defendant’s invitation to read portions of the jury instruction in isolation from the rest of the charge. See Drummond v. Hussey, 24 Conn. App. 247, 249, 588 A.2d 223 (1991). We, therefore, conclude that the court’s charge to the jury accurately and adequately described the legal and factual bases of the defense of unforeseeable product misuse so that the jury was given a clear understanding of the issues and proper guidance in determining those issues.

II

The defendant next claims that the trial court improperly instructed the jury that, in determining whether a product is in a defective condition because it is unreasonably dangerous to a user, “it is not necessary that the plaintiff establish a specific defect, so long as there is evidence of some unspecified danger.” The defendant argues that the principle of law set forth in the challenged language is limited to those situations, not present in this case, where the plaintiff cannot identify any specific defect in a product and seeks instead to establish the product’s defective condition through circumstantial evidence. See, e.g., Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., 35 Conn. Sup. 687, 690-91, 407 A.2d 1254 (1979). The defendant contends that the effect of the challenged instruction was to permit the jury to impose liability on the defendant if the jury determined that the ladder was dangerous due to its improper use by the plaintiff, rather than because of some physical quality of the ladder that would have constituted a defective condition. We do not agree.

In considering the defendant’s challenge to the court’s jury instruction, we must read the court’s instructions as a whole, rather than in isolation, to determine “whether the charge as a whole fairly presented the case so that no injustice was done.” Drummond v. Hussey, supra. Here, immediately after the court instructed the jury on the elements of a product liability claim, including the challenged language, it summarized those legal principles by carefully relating the applicable law to the facts of this case. We have recently noted that it is critically important that the trial court refer to the evidence in its instructions in order to assist the jury in “ ‘applying the law correctly to the facts which they might find to be established.’ ” State v. Wolff, 29 Conn. App. 524, 531, 616 A.2d 1143 (1992), quoting Jacques v. Carter, 2 Conn. App. 27, 33, 476 A.2d 621 (1984). Thus, the court explained that, for the plaintiff to prevail, the jury had to find “that the defendant distributed and sold the ladder with a dangerous sharp metal edge that should have been capped . . . [and] that the defective condition of the ladder proximately caused the plaintiff’s injuries.” Under these circumstances, the jury could not, as suggested by the defendant, have imposed liability because the ladder was dangerous due to the improper use of the ladder by the plaintiff. Rather, the jury was •clearly informed that the defective condition, alleged by the plaintiff and to be evaluated by the jury, was the condition of the ladder as manufactured and placed into the stream of commerce by the defendant. Thus, the jury was informed that the plaintiff had alleged, and was required to establish, the presence of a specific defect that rendered the ladder unreasonably dangerous and that that defect had caused the plaintiffs injuries. Considering the court’s instruction as a whole, as we must, we conclude that it “fairly presented the case so that no injustice was done.” Drummond v. Hussey, supra.

Ill

The defendant’s final claim is that the plaintiffs failed to establish a prima facie case of liability on the part of the defendant. This claim is without merit.

A verdict should be set aside only when the jury could not reasonably and legally have reached its conclusion. Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988). The defendant contends that the verdict was contrary to the weight of the evidence adduced at trial in two specific ways. First, the defendant argues that the plaintiffs failed to prove that Elliot was using the ladder for the purpose for which it was intended at the time of his fall as alleged in his complaint. Even if we accept the defendant’s claim that “[t]he undisputed evidence in this case was that Mr. Elliot was not using the product for its intended purpose,” product misuse is not necessarily a bar to recovery. See part I, supra. The jury determined that the plaintiff’s improper use of the ladder was not the sole proximate cause of his injuries. The jury then considered the relative responsibility of Elliot in this regard and reduced his recovery accordingly. Neither of these fact bound determinations was contrary to the evidence. Second, the defendant argues that the plaintiffs failed to establish that the ladder was defective and that the alleged defect was the cause in fact of Elliot’s injuries. Whether the existence of a sharp protruding edge on which jewelry can be snagged during an uncontrolled fall rendered the ladder unreasonably dangerous “is a question of fact to be determined by the jury. . . . [A]nd the jury can draw their own reasonable conclusions as to the expectations of the ordinary consumer and the knowledge common in the community at large.” (Internal quotation marks omitted.) Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486 (1980). Here, the jury reasonably could have found that the defendant’s ladder was both dangerous and defective in that it was designed with a sharp metal edge that failed to prevent snagging and sharp edge injuries and that the sharp metal edge, either by itself or with the ring snagged on it, caused the injury to Steven Elliot’s ring finger during his fall. Because the jury could reasonably and legally have reached its conclusion, the trial court properly refused to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff Robin Elliot, the wife of the named plaintiff, seeks damages for loss of consortium only, and, thus, her claim is entirely derivative of the named plaintiffs claim.

       At oral argument, the defendant withdrew three additional claims originally set forth in its brief.

       Upon motion of the plaintiff, the trial court also awarded Steven Elliot prejudgment interest on the verdict in the amount of $22,740.12 pursuant to General Statutes § 52-192a.

       The defendant submitted the following request to charge on “alteration or modification”:
      “The law provides that: ‘(a) A product seller shall not be liable for harm that would not have occurred but for the fact that his product was altered or modified . . . unless: (1) The alteration or modification was in accordance with the instructions or specifications of the product seller; (2) the alteration or modification was made with the consent of the product seller; (3) the alteration or modification was the result of conduct that reasonably should have been anticipated by the product seller.
      “ ‘(b) For purposes of this section, alteration or modification includes changes in the design, formula function or use of the product from that originally designed, tested or intended by the product seller.’ (Emphasis added). General Statutes § 52-572p.
      “The evidence in this case was that Mr. Elliot was using the ladder as a staircase at the time he fell. You also heard the testimony of Professor Jordan, Mr. Ver Halen and Mr. Records that a ladder is not designed nor intended to be used as a staircase, and that the clear and unambiguous instructions and warnings on the ladder itself state: ‘Always face ladder when climbing, working or descending’; and ‘Maintain a firm hold on the ladder.’
      “If you find that Mr. Elliot’s use of the ladder on April 17, 1987, was not intended nor anticipated by the defendant, then such a use would constitute an alteration or modification which absolves the defendant of liability, and your verdict should be for the defendant. General Statutes § 52-572p.” (Emphasis in original.)

       The defendant submitted the following request to charge on “misuse”:
      “The defendant claims that Mr. Elliot was misusing the product at the time of the accident. You will recall the testimony of Mr. Elliot himself that he was using the ladder as though it was a staircase. You also heard the testimony of Professor Jordan, Mr. Ver Halen and Mr. Records that a ladder is not designed nor intended to be used as a staircase, and that the clear and unambiguous instructions and warnings on the ladder itself state: ‘Always face ladder when climbing, working or descending’; and ‘Maintain a firm hold on the ladder.’ You will also recall Mr. Elliot’s testimony that he never read the warnings and instructions which were on the ladder, and that he was not facing the ladder, nor holding onto it, at the time he fell.
      “Misuse of a product is all possible types of use, or conduct affecting use, which is improper in light of the qualities and characteristics of the product itself. Peterson v. Parke Davis & Co., 705 P.2d 1001, 1003 (Colo. App. 1985). If you find that Mr. Elliot’s misuse of the ladder was the proximate cause of his injuries, then the defendant is not legally responsible for those injuries, and you should return your verdict for the defendant. General Statutes § 52-5721; Norrie v. Heil Co., 203 Conn. 594, 600-601, 525 A.2d 1332 (1987); States v. R.D. Werner Co., 799 P.2d 427, 430 (Colo. App. 1990).
      “The misuse alleged by the defendant is not only the act of descending the ladder as though it were a staircase, but also the failure to read and follow the instructions and warnings concerning the proper set-up and use of the ladder. A seller of a product has the right to expect that users or consumers will read and follow instructions pertaining to the use thereof, and the failure to follow clear and unambiguous instructions and warnings is itself a misuse of the product which absolves the defendant of liability. General Statutes § 52-572p; Peterson v. Parke Davis & Co., [supra]; Erickson v. Monarch Industries, Inc., 216 Neb. 875, 347 N.W.2d 99, 109 (1984).”

       General Statutes § 52-5721 provides: “In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery. The provisions of this section shall apply to all actions pending on or brought after June 7,1977, claiming strict tort liability notwithstanding the date on which the cause of action accrued. Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability.” (Emphasis added.)

       General Statutes § 52-572o (a) provides: “In any claim under sections 52-240a, 52-240b, 52-572m to 52-572r, inclusive, or 52-577a, the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall dimmish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.”

       The court’s entire instruction on the “defective condition” element of the plaintiff’s cause of action was as follows:
      “Secondly, it is for you, the trier of fact, to determine whether this particular product, the ladder, was in a defective condition.
      “A product is in a defective condition if it leaves the seller’s hands in a condition not contemplated by the ultimate consumer or user which will be unreasonably dangerous to him. Accordingly, a product may be defective, even though it was manufactured in the way it was intended to be manufactured and even though it was perfectly made in accordance with the manufacturer’s own standards, provided that the product is unreasonably dangerous to the user as a result of its normal use.
      “A seller, however, is not liable when the seller delivers the product in a safe condition and subsequent mishandling or other causes make it harmful at the time it is consumed or used.
      “The law provides [that] a product is unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinate knowledge common to the community as to its characteristics.
      “In this regard, it is important to keep in mind that it is not necessary that the plaintiff establish a specific defect, so long as there is evidence of some unspecified danger.
      “The second element, which the plaintiff must establish is that the product was in a defective condition unreasonably dangerous to the user. A product is in a defective condition unreasonably dangerous to the user if it is so likely to be harmful to persons that a reasonably prudent suppliér who had actual knowledge of its harmful character would not place it on the market.
      “It’s not necessary to find that this defendant had knowledge of the harmful character of the product, if it was harmful, in order to determine that it was in a defective condition unreasonably dangerous to the user.”

       We note that the court’s entire instruction on the law of defective condition; see footnote 8, supra; including the challenged “specific defect” language, is nearly identical to the legal principles set forth in Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 234-35, 429 A.2d 486 (1980), in Living & Learning Centre, Inc. v. Griese Custom Signs, Inc., 3 Conn. App. 661, 664, 491 A.2d 433 (1985), and in Liberty Mutual Ins. Co. v. Sears,

        Roebuck & Co., 35 Conn. Sup. 687, 690-91, 407 A.2d 1254 (1979). The factual settings in those cases, however, did not involve allegations of a specific product defect, but rather situations of defectiveness due to a failure to incorporate adequate warnings; see Giglio v. Connecticut Light & Power Co., supra; and defectiveness proven by inference from product malfunction; see Living & Learning Centre, Inc. v. Griese Custom Signs, Inc., supra; Liberty Mutual Ins. Co. v. Sears, Roebuck & Co., supra, 601. The challenged language, however, was inapplicable in a case, like the present one, where the plaintiff seeks to establish liability based on a specific and identifiable aspect of the manufacture of the product that is alleged to render the product unreasonably dangerous.

       The court summarized the essential elements of the plaintiffs strict liability claim as follows: “In summary then, as to the products liability doctrine, the plaintiffs must prove by a preponderance of the evidence, first, the defendant delivered the ladder, which was in a defective condition unreasonably dangerous to the plaintiff, and that the defendant distributed and sold the ladder with a dangerous sharp metal edge that should have been capped or in that the defendant failed to place safety caps on the side or end rails when it was not as feasible to do so. Second, that the ladder was expected to, and did, reach the plaintiff without substantial change in the condition in which the defendant delivered it; and third, that the defective condition of the ladder proximately caused the plaintiffs injuries.”

       The defendant failed to move for a directed verdict; see Practice Book § 321; or a nonsuit; see General Statutes § 52-210; at the conclusion of the plaintiffs case. The defendant has therefore waived any claim that the plaintiff failed to establish a prima facie case.
      The defendant did, however, move to set aside the verdict pursuant to Practice Book § 320 based, in part, on a claim that the plaintiffs failed to establish liability on the part of the defendant. Accordingly, we will review this claim as though it were a challenge to the court’s failure to grant the motion to set aside the verdict.

       Product misuse is a defense in a product liability claim. The defendant argues, however, that by pleading in their complaint that Steven Elliot was using the ladder “for the use [for] which it was intended” at the time of his fall, the plaintiffs assumed the burden of proving this fact. See, e.g., Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 553 n.18, 525 A.2d 940 (1987). Even if we accept this assertion to be true, under the comparative responsibility doctrine applicable in a product liability claim, “the comparative responsibility of, or attributed to, the claimant, shall not bar recovery but shall diminish the award of compensatory damages proportionately, according to the measure of responsibility attributed to the claimant.” General Statutes § 52-572o.


author: Daly, J. Landau, J.,

text:
    David L. Copas v. Warden
    (11241)
    Daly, Landau and Freedman, Js.
    Argued November 30, 1992 —
    decision released March 23, 1993

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, was Jacqueline J. Footman, assistant state’s attorney, for the appellant (respondent).

      Christopher C. Sheehan, deputy assistant public defender, for the appellee (petitioner).
   Daly, J.

The respondent was granted permission to appeal from the habeas court’s judgment granting relief to the petitioner on his writ of habeas corpus. The respondent challenges the habeas court’s conclusion that the petitioner’s counsel was ineffective at his sentencing hearing in violation of the petitioner’s rights guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The respondent also disputes the habeas court’s decision to vacate the petitioner’s conviction. We agree with the respondent’s second claim and reverse the decision of the habeas court in part and remand the case to the habeas court for further proceedings.

The trial court found the following facts. On April 27, 1986, the body of a teenage girl was found off Hop River Road in Coventry. The victim had been repeatedly stabbed and had been struck in the head with a rock. The police investigation revealed that two days earlier the petitioner had given a ride to the victim and two friends of hers from a bowling alley in Mansfield. The two friends were dropped off at 11:30 p.m. in Ash-ford. The victim was to be dropped off at her grandparents’ residence but she never arrived. The investigation further revealed that early in the morning of April 26, 1986, a man who resembled the petitioner was observed standing in front of a car similar to the petitioner’s on the site where the victim’s body was later discovered. On the same morning, the petitioner called a friend to help him get his car started. The friend came to help the petitioner, whose car was located near the site where the body was found.

On April 29, the petitioner was searched pursuant to a warrant. A knife was found on him. The petitioner was read his rights and detained by the police. During his detention, the petitioner confessed to the murder of the victim. Before confessing, he signed a waiver form and repeatedly assured the police that he did not want a lawyer.

In his confession, the petitioner described in detail the circumstances of the night of April 25 and the morning of April 26. His account was corroborated by the findings of the police investigation. He stated that after driving around for some time after dropping off the victim’s friends, he stopped on Hop River Road. He smoked marihuana with the victim. The petitioner admitted that he stabbed the victim, hit her on the head with a rock, and dragged her body into the woods. His statements were recorded and transcribed and he signed the transcription of his statements.

On May 1,1986, the petitioner was arrested for murder. The petitioner retained Attorney Jerry Gruenbaum, a self-described tax and corporate law specialist who had handled one felony prior to the petitioner’s case, and an appearance was filed on May 5,1986. On October 7, 1986, the petitioner pleaded guilty to the offense of murder in violation of General Statutes § 53a-54a. There was no plea bargain. On November 4, 1986, Gruenbaum argued a motion to withdraw his appearance before the trial court because the petitioner’s family had hired an investigator and another attorney, whose identity was not known. The court denied the motion. Prior to sentencing on November 19, 1986, the trial court heard arguments on the petitioner’s motion to withdraw his plea, filed prior to the hearing, and subsequently denied the motion.

As part of the presentence investigation, the court ordered a report regarding the petitioner by the court’s diagnostic clinic. The presentence investigation report stated: “He is the product of a hard working and well meaning family, certainly not a victim of a hopeless upbringing.” The diagnostic clinic report was attached. It describes the petitioner’s history, including the departure of his father shortly after his birth and the trouble he experienced in establishing a relationship with the man who married his mother when he was five years old. His maternal grandfather played an important role as a substitute father in his life. His grandfather died when the petitioner was fifteen and, according to the report, the petitioner never fully came to terms with the death. The petitioner’s relationship with his mother became strained after his mother forced his grandmother to leave the house that she and the petitioner’s mother had purchased together. The petitioner then moved in with cousins who exposed him to criminal behavior. The report also describes a history of psychiatric, educational, employment, and substance abuse problems experienced by the petitioner.

At sentencing, the state argued for the maximum sentence while Gruenbaum argued for forty years. The state presented two members of the victim’s family who spoke to the court. None of the petitioner’s family members was present. Gruenbaum’s own sentencing argument rehashed facts adduced during arguments for the motion to withdraw the plea. The petitioner was ultimately sentenced to serve a term of incarceration of fifty years.

The petitioner filed a petition for a writ of habeas corpus dated November 2,1987. An amended petition was filed on February 1,1991, alleging that ineffective assistance of counsel rendered his conviction illegal. The petitioner alleged that his counsel failed to consult and advise him, misinformed him of the consequences of his plea, failed to inquire into the petitioner’s history of psychological and substance abuse problems, failed to inquire and develop evidence of the petitioner’s mental state at the time of the incident, at the time of the confession and during the trial court proceedings, failed to get an independent evaluation of the petitioner, and failed to present evidence, information and arguments about the petitioner’s mental state to the prosecutor and the trial court during pretrial proceedings, plea negotiations, and sentencing.

A full evidentiary hearing was held. The habeas court reviewed the transcript of a grievance committee hearing concerning Gruenbaum’s performance on the petitioner’s case. The hearing was held March 16, 1988, and the transcript was made an exhibit in the habeas corpus proceeding. The habeas court noted that “[w]ith regard to a clinical evaluation of the petitioner that was ordered by the court for sentencing purposes, Gruenbaum stated: ‘That was definitely not a very helpful document. It was the most damaging document that was in David’s file, but it also talked about his past criminal record, and so forth, which I knew about .... It was an extremely biased document against him.’ ”

The habeas court determined that the petitioner’s trial counsel’s “conduct in preparing for and in his presentation of the sentencing hearing was not reasonably competent nor was it within the range of competence of Connecticut attorneys practicing criminal law in 1986.” The habeas court concluded that “but for Gruenbaum’s incompetent representation of the petitioner the result of the proceeding would have been different.” After it reached this determination, the habeas court did not consider any of the petitioner’s remaining claims concerning Gruenbaum’s ineffectiveness as it affected his conviction. Judgment was rendered in favor of the petitioner and the conviction was vacated. The respondent claims on appeal that the habeas court improperly determined (1) that the defendant’s trial counsel was ineffective, and (2) that the proper remedy for ineffective assistance of counsel at sentencing is to vacate the judgment of conviction.

I

“It is axiomatic that the right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984), quoting McCann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).” (Internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991). A defendant has the right to counsel at every critical stage, including sentencing. Consiglio v. Warden, 153 Conn. 673, 675-76, 220 A.2d 269 (1966).

“It is our obligation as an appellate court to make a two part analysis to determine whether the habeas court’s decision is clearly erroneous. First, where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts that are set forth in the memorandum of decision; second, where the factual basis of the decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence. ... In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony. . . . It is the right of the trier of fact to draw reasonable and logical inferences from the facts that it finds to be proved. State v. Martin, 195 Conn. 166, 171, 487 A.2d 177 (1985). We cannot substitute our judgment for that of the habeas court.” (Citations omitted.) Tyson v. Warden, 24 Conn. App. 729, 736-37, 591 A.2d 817, cert. denied, 220 Conn. 909, 597 A.2d 340 (1991).

“Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment ‘is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.’ Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). As such, that question requires plenary review by this court unfettered by the ‘clearly erroneous’ standard. Id.; see also Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S. Ct. 260, 102 L. Ed. 2d 249 (1988); Government of the Virgin Islands v. Zepp, 748 F.2d 125, 134 (3d Cir. 1984). Indeed, we have applied that scope of review, without specifically articulating it, to claims of ineffective assistance of counsel. See Johnson v. Commissioner, 218 Conn. 403, 423-29, 589 A.2d 1214 (1991); Siemon v. Stoughton, 184 Conn. 547, 440 A.2d 210 (1981). In accordance with this scope of review, we next consider the merits of the petitioner’s claim.” Phillips v. Warden, supra, 131-32.

There are two components to a claim of ineffective assistance of counsel. First, the petitioner must demonstrate that counsel’s performance was deficient. Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991). The petitioner also must demonstrate that counsel’s deficient performance prejudiced the defense. Id. “Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, [supra, 687]; Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).” (Internal quotation marks omitted.) Williams v. Warden, supra.

“Establishing that counsel’s performance was deficient requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, supra, 687. To demonstrate this, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Id., 687-88. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Id., 688.” (Internal quotation marks omitted.) Daniels v. Warden, 28 Conn. App. 64, 69, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992). “[T]he claim of ineffective representation must be examined as of the time the questioned representation occurred. Levine v. Manson, [195 Conn. 636, 649, 490 A.2d 82 (1985)]; Siemon v. Stoughton, [supra, 554].” (Internal quotation marks omitted.) Miller v. Angliker, 4 Conn. App. 406, 419-20, 494 A.2d 1226, cert. denied, 197 Conn. 809, 499 A.2d 59 (1985).

The transcript demonstrates that at sentencing the trial court reviewed the presentence investigation report and the arguments of petitioner’s counsel and the state’s attorney, as well as the pleas of the victim’s family. Defense counsel did not dispute the statement in the presentence investigation report indicating that the petitioner had been raised in a stable environment even though the court’s clinical evaluation indicated otherwise.

The habeas court found that Gruenbaum did not satisfy the requirements of Practice Book §§ 924 and 925 because he failed to clarify the inconsistencies between the presentence report and the clinical evaluation or to ask the trial court to consider the petitioner’s unstable background as set forth in the clinical evaluation in imposing the sentence despite the fact that the presentence report seemingly dismissed such facts stating that the petitioner was the “product of a hard working and well meaning family, certainly not a victim of a hopeless upbringing.” Gruenbaum explained at the habeas hearing that he did not consider the statement in the presentence investigation to be inconsistent with the petitioner’s history as set forth in the diagnostic clinic evaluation. He stated that his strategy was to rely on the mercy of the court. It is not evident that pointing out these inconsistencies would conflict with that strategy. We agree with the habeas court that counsel’s failure to bring these inconsistencies to the attention of the court during sentencing was improper and unjustified.

Counsel’s statements at sentencing consisted of a recitation of matters discussed earlier with regard to the motion to withdraw the plea. There was only minimal discussion of mitigating factors such as the petitioner’s mental state or family history. This is surprising considering the nature of the crime. Furthermore, the petitioner’s counsel did not ensure that the petitioner’s relatives were present at the sentencing hearing to speak on the petitioner’s behalf. At the habeas corpus hearing, the petitioner’s wife and mother testified that they did not know when the sentencing hearing was taking place.

We agree with the habeas court that the petitioner’s counsel’s preparation and presentation for the sentencing hearing were inadequate. The failure of the petitioner’s counsel to point out the inconsistencies between the presentence investigation and the diagnostic clinic evaluation coupled with his inadequate presentation at sentencing demonstrates that the performance component of the ineffective assistance of counsel analysis has been satisfied.

We also do not agree with the respondent that the habeas corpus court improperly determined that the petitioner was prejudiced by counsel’s ineffective representation because it is reasonably probable that, had his counsel been effective, the outcome of the sentencing hearing might have been different.

II

The respondent next claims that the habeas court improperly vacated the judgment of conviction against the petitioner. We agree. The habeas court’s conclusion that counsel at sentencing was ineffective is an insufficient basis for overturning the judgment of conviction. Instead, only the sentence should have been vacated. “In the adjudication of petitions for habeas corpus, the remedies available to a court depend upon the constitutional rights that are being vindicated.” Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984).

“In the exercise of its power under [General Statutes] § 52-470 to grant such relief ‘as law and justice require,’ the trial court, much like a court of equity, has considerable discretion to frame a remedy, so long as that remedy is commensurate with the scope of the constitutional violations which have been established.” Gaines v. Manson, supra, 528. Although the habeas court properly determined that the petitioner was not afforded effective assistance of counsel at his sentencing hearing, it did not order the proper remedy. The defect in the sentencing proceeding did not affect the judgment of conviction. Thus, the habeas court’s remedy should have been limited to resentencing because that is commensurate with the habeas court’s decision. See State v. Williams, 199 Conn. 30, 505 A.2d 699 (1986) (where pro se defendant was not provided counsel when he requested it at sentencing hearing in violation of his rights, the court remanded the case with instructions to vacate the sentence and the case was remanded only for sentencing); Consiglio v. Warden, supra (remedy for lack of counsel at sentence review was a new sentence review hearing and not a new sentencing hearing). We, therefore, reverse the order of the trial court vacating the judgment of conviction and order that this case be remanded for resentencing. See Miller v. Commissioner of Correction, 29 Conn. App. 773, 617 A.2d 933 (1993) (case remanded for resentencing because the trial court improperly sentenced beyond the scope of the plea agreement); State v. Dennis, 30 Conn. App. 416, 621 A.2d 292 (1993) (case remanded because the defects in sentencing necessitated resentencing by the trial court).

We recognize, however, that the habeas court did not address the claims raised in the petition related to ineffective assistance of counsel as it affected the plea negotiations and the petitioner’s decision to plead guilty. Our Supreme Court has in the past remanded cases to the habeas court for an evidentiary hearing on a particular matter where there was none below and the record was inadequate for a determination of the issues on appeal. See Galland v. Bronson, 204 Conn. 330, 527 A.2d 1192 (1987) (remanded for an evidentiary hearing on the issue of deliberate bypass because the record was inadequate to make a determination on that issue). In this case, an evidentiary hearing was held but the trial court did not reach any issues beyond ineffective assistance of counsel at sentencing. The habeas court must address these claims.

We, therefore, remand the case for its consideration of the remaining claims. See Clark v. Duckworth, 906 F.2d 1174 (7th Cir. 1990) (when the district court’s judgment granting relief to the petitioner was reversed, the case was remanded for consideration of ineffective assistance of counsel claim the district court had not yet addressed). If the habeas court determines that there was ineffective assistance of counsel at the time of the petitioner’s conviction, then the habeas court may properly vacate the judgment of conviction. Should it determine that counsel was not ineffective in relation to the petitioner’s conviction, the habeas court should order a new sentencing hearing for the petitioner.

The judgment of the habeas court vacating the judgment of conviction is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Freedman, J., concurred.

Landau, J.,

dissenting. I respectfully dissent from the decision of the majority and would affirm the decision of the habeas court.

As the majority correctly points out, whether the underlying historical facts found by the habeas court constitute “a violation of the petitioner’s rights under the sixth amendment ‘is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.’ Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). As such, that question requires plenary review . . . unfettered by the ‘clearly erroneous’ standard.” I agree with the majority that the petitioner’s counsel’s performance was deficient at the sentencing stage of the hearing. Counsel’s performance during the plea and negotiation stage of the petitioner’s trial, however, was also wholly defective and inadequate. The habeas court found as much, and its decision to vacate the petitioner’s entire conviction should be affirmed.

In order to prevail on a claim of ineffective assistance of counsel, the petitioner must demonstrate that the counsel’s performance was deficient and that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991). Thus, “[w]hen a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, supra; Williams v. Warden, supra. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland v. Washington, supra, 688. “ ‘A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ . . . Id., 689.” Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).

“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland v. Washington, supra, 691. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Id., 689. “[Strategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable . . . .’’Id., 690-91. “[T]he [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id., 689. Furthermore, a court will not second guess the tactics and strategy chosen by trial counsel after reasonable investigation and research. See Strickland v. Washington, supra, 689; Aillon v. State, 597 F. Sup. 158, 164 (D. Conn. 1984).

I do not agree with the majority that the habeas court did not address the claims raised by the petitioner related to ineffective assistance of counsel at the plea stage. When the habeas court concluded that it would not address the other claims of ineffective assistance of counsel, it did so because it was apparent to that court that the result would be the same. That is, the petitioner’s entire conviction would be vacated. The record is replete with instances in which the habeas court found that the petitioner’s counsel was woefully unprepared and inadequate to represent his client effectively during the plea stage. This is not a simple problem of the trial counsel’s, “after reasonable investigation and research,” deciding what he thought was the most prudent course of action to represent his client effectively. Indeed, as the habeas court found, “[although he had filed a notice to the state respecting a defense based upon mental disease or defect, Attorney Gruenbaum was unable to define ‘extreme emotional disturbance.’ He was unable to set forth the elements of the crime of murder .... It became apparent that trial counsel, at best, was confused about presenting an affirmative defense based upon mental disease or defect.”

A similar issue was addressed in Rinehart v. Brewer, 561 F.2d 126 (8th Cir. 1977). In Rinehart, the petitioner’s habeas relief, based on, inter alia, a claim of ineffective assistance of counsel, was affirmed after the court noted that “[tjhere is uncontroverted evidence in the record which suggests that [the defendant] was not informed of the elements of the crime of second-degree murder. Since his own defense counsel were confused as to the distinctions among first and second-degree murder, and manslaughter, it is inconceivable to conclude that [the defendant] would have known . . . that a guilty plea would be an admission of the existence of the intent to kill.” Id., 130-31. The court continued: “One of the defense lawyers did not discuss the law of manslaughter with [the defendant] . . . and himself was unfamiliar with its elements. ... It is unlikely that [the defendant] would have understood manslaughter to be the appropriate result when the record reveals his own lawyers were confused as to the difference between manslaughter and murder.” Id., 131.

As in Rinehart, defending a person on trial for murder and not knowing the elements of the crime fall far below the level of “reasonableness under prevailing professional norms.” Strickland v. Washington, supra, 688. Here, counsel’s actions were not based on informed strategic choices made by the petitioner. We can hardly expect a defendant to make informed choices when it is clear that his attorney has no idea which choices to present to his client. It is apparent that there was no investigation of the law by defense counsel in this case. Thus, the petitioner clearly demonstrated that counsel’s performance was deficient.

The habeas court found that the petitioner was prejudiced by his counsel’s deficient performance at the plea stage. First, the court noted that Gruenbaum never argued the petitioner’s motion for discovery or his motion to suppress. “According to trial counsel, he never requested an independent psychiatric examination because he did not feel that any psychiatrically oriented defenses applied.” In some instances, this decision might be seen as strategic. Gruenbaum was unable, however, to define extreme emotional disturbance and was confused about “presenting an affirmative defense based upon mental disease or defect,” as well as unable to appreciate the “differences between ‘insanity,’ ‘extreme emotional disturbance’ and ‘diminished capacity.’ ” Such confusion conclusively demonstrates that the petitioner did not receive effective assistance when determining whether to mount a psychiatric defense. Second, the habeas court found that there was absolutely no plea bargain. The defendant pleaded guilty, the state would argue for the maximum sentence, and the defense “was free to argue for any lesser sentence.” Under other circumstances, this could be also interpreted as a trial strategy. This decision, however, was born of a lack of reasonably expected investigation and research into the law, the facts, and the procedures surrounding a crime of this nature.

The habeas court concluded that the defendant was prejudiced by the deficient performance of defense counsel at both the plea stage and sentencing. Therefore, I would affirm the judgment of the habeas court vacating the judgment of conviction.

       In 1986 Practice Book § 924 provided: “Defense counsel shall familiarize himself with the contents of the presentence report, including the evaluative summary, and any special medical or psychiatric reports pertaining to his client.”
      In 1986 Practice Book § 925 provided: “Defense counsel shall bring to the attention of the judicial authority any inaccuracy in the presentence or alternate incarceration assessment report of which he is aware or which the defendant claims to exist.”

       General Statutes § 52-470 provides: “(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.
      “(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       In Rinehart, the Eighth Circuit determined that the defendant’s plea was involuntarily made because the court, as well as defense counsel, failed to explain adequately the elements of the crime to the defendant. Rinehart v. Brewer, 561 F.2d 126, 130 (8th Cir. 1977).
      The court in the present case did canvass the defendant and explained the elements of the crime of murder. The court, however, also asked the defendant if his counsel had adequately explained the elements of the crime to him. While the defendant said that his counsel had, this admission directly conflicts with the habeas courts’ finding that petitioner’s counsel was unable to set forth the elements of murder. A canvass of the defendant, while absolutely essential, cannot replace the need for effective assistance of counsel.

       Even if we assume that the habeas court did not explicitly make such a finding, there is no reason to remand this case for a hearing on the petitioner’s additional claims. “Conclusions of fact may be drawn on appeal . . . where ‘the subordinate facts found by the trial court make such a conclusion inevitable as a matter of law.’ ” State v. Reagan, 209 Conn. 1, 8-9, 546 A.2d 839 (1988).