author: PALMER, J.

text:
    STATE OF CONNECTICUT v. MICHAEL A. YOUNG
    (SC 16339)
    Sullivan, C. J., and Borden, Palmer, Vertefeuille and Zarella, Js.

      Argued May 31
    officially released September 18, 2001

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Nina Rosen, supervisory assistant state’s attorney, for the appellant (state).

      Arthur L. Ledford, certified legal intern, with whom was Kent Drager, senior assistant public defender, for the appellee (defendant).
   Opinion

PALMER, J.

Following a jury trial on three consolidated informations involving three separate incidents, the defendant, Michael A. Young, was found guilty of three counts of criminal violation of a protective order in violation of General Statutes (Rev. to 1995) § 53a-110b and General Statutes (Rev. to 1995) § 53a-110b, as amended by Public Acts 1995, No. 95-214, § 5, and one count each of breach of the peace in violation of General Statutes § 53a-181 (a) (2), disorderly conduct in violation of General Statutes § 53a-182 (a) (l), reckless endangerment in the second degree in violation of General Statutes § 53a-64 and criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A). After the trial court rendered judgments in accordance with the jury verdicts, the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court improperly had granted the state’s motion for a missing witness instruction regarding the defendant’s failure to produce an eyewitness to one of the three incidents, in accordance with Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). The Appellate Court concluded that: (1) this court’s decision in State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), in which we abandoned the Secondino rule in criminal cases, has retrospective applicability and, therefore, the missing witness instruction given by the trial court was improper; and (2) the impropriety constituted harmful error, thereby entitling the defendant to a new trial in connection with the charges stemming from the incident to which the Secondino charge related, namely, one count each of criminal violation of a protective order, breach of the peace, disorderly conduct, reckless endangerment in the second degree and criminal mischief in the third degree. State v. Young, 57 Conn. App. 566, 572-73, 750 A.2d 482 (2000). Thus, the Appellate Court reversed the trial court’s judgment pertaining to the defendant’s conviction on those charges but affirmed the two other judgments pertaining to the defendant’s two other convictions for criminal violation of a protective order.* ** See id., 580-81.

The state sought certification to appeal from that portion of the Appellate Court’s judgment reversing the trial court’s judgment, claiming that the Appellate Court improperly had concluded that our decision in Malave should be applied retroactively. We granted the state’s petition limited to the issue of whether Malave has retrospective applicability. State v. Young, 253 Conn. 922, 754 A.2d 799 (2000). We do not decide this certified issue, however, because, even if we assume, as the state contends, that our decision in Malave should not be applied retroactively, we nevertheless conclude that the trial court abused its discretion in granting the state’s motion for a Secondino charge and, consequently, the charge should not have been given. We further conclude, however, that, contrary to the determination of the Appellate Court, the trial court’s Secondino charge was harmless. We, therefore, reverse in part the judgment of the Appellate Court.

I

As we have indicated, the defendant was charged in connection with three separate incidents.* The first and third incidents, which occurred on August 4, 1995, and November 30, 1995, respectively, resulted in the defendant’s arrest for one count of criminal violation of a protective order per incident. The second incident, which occurred on November 25,1995, resulted in the defendant’s arrest for one count each of, inter alia, criminal violation of a protective order, breach of the peace, disorderly conduct, reckless endangerment in the first degree and criminal mischief in the third degree. Although only the convictions stemming from the November 25, 1995 incident are the subject of this appeal, we also set forth the facts that the jury reasonably could have found in regard to the other two incidents because those facts are relevant to the issue of whether the improper Secondino charge was harmful. See part III of this opinion.

“On August 18, 1994, the court issued a protective order prohibiting the defendant from having any contact with the victim, Brandis Breedlove. The order remained in effect until January 11, 1996. The defendant was involved in three separate incidents ....

“The first incident occurred on August 4, 1995. The defendant knocked on Breedlove’s door at approximately 1 a.m. Breedlove refused to let him into her home. The defendant then went to Breedlove’s car and started pulling out wires from the engine. Breedlove told the defendant that she was going to call the police and the defendant left. Breedlove then called the police and reported the incident. Shortly thereafter, the defendant called Breedlove and inquired about the whereabouts of the police. Breedlove told him that the police had been called and were on their way.

“State Trooper Jack Richard Sauve arrived at the scene and began taking Breedlove’s statement. The telephone rang and Breedlove answered. She told Sauve that the defendant was on the telephone and handed the telephone to him. Sauve said, ‘Michael, this is Trooper Sauve. Where are you?’ The defendant replied, ‘I’m around. Why do you want to know?’ At no point did the caller deny being the defendant. Initially, Breedlove did not sign the statement prepared by Sauve. Three weeks later she contacted Sauve and signed the statement, alleging that the defendant had continued to harass her.

“The second incident occurred on November 25, 1995. Breedlove and Robert Cormier were at a bar in Stafford [known as Munn’s Pub]. As they were leaving, the defendant and a friend, Lanny Martin, arrived at the parking lot in the defendant’s car. The defendant got out of the car, walked to Breedlove, spit on her, pushed her to the ground and then started fighting with Cormier. The fight was broken' up by patrons of the bar. Breedlove and Cormier got into Breedlove’s car and drove away.

“As they were driving home, Breedlove noticed that the defendant was following her. The defendant rammed his car into her car from behind five or six times at a speed of approximately forty-five miles per hour. Breedlove stopped her car and got out. The defendant and Martin got out of the defendant’s car, and the defendant [approached] Cormier. Breedlove intervened and the defendant hit her with a closed fist. He then picked up Breedlove by her hair and dragged her down the road. While this was taking place, Martin held Cormier back by brandishing a broken beer bottle. Breedlove managed to get back into her car, at which point the defendant kicked in the driver’s side window. Breedlove received cuts on her forehead, nose and lower lip. She also had bruises on her cheek and mouth from being hit, and was left with a bald spot where her hair was pulled out.

“The third incident occurred on November 30, 1995. The defendant telephoned Breedlove at home approximately fifteen times and drove by her home later that night. The defendant was charged in a separate information stemming from each incident.” State v. Young, supra, 57 Conn. App. 568-70.

After the court rendered judgments in accordance with the jury’s verdicts, the defendant appealed from those judgments to the Appellate Court, claiming, inter alia, that the trial court had abused its discretion in granting the state’s motion for a missing witness instruction with respect to the defendant’s failure to call Martin as a witness to testify about the November 25, 1995 incident. The Appellate Court did not address the merits of the defendant’s Secondino claim but, rather, concluded that this court’s decision in State v. Malave, supra, 250 Conn. 738, in which we abandoned the missing witness rule in criminal cases, applied retroactively to the present case, and, further, that the instruction was harmful. State v. Young, supra, 57 Conn. App. 572-73. The Appellate Court, therefore, reversed the trial court’s judgment of conviction arising from the November 25, 1995 incident. Id., 580. Although we do not decide the issue of whether Malave should be applied retroactively, we agree with the defendant that, under the circumstances presented, the state was not entitled to a Secondino instruction. We conclude, however, that the giving of that instruction was harmless.

II

We first address the propriety of the trial court’s decision to grant the state’s motion for a missing witness instruction. The opinion of the Appellate Court sets forth the following additional facts that are necessary to our resolution of this issue. “The defendant and Martin were charged as codefendants as a result of the events that occurred on November 25, 1995. They were tried separately and, at the time of the defendant’s trial, Martin’s case was pending. At the defendant’s trial, State Trooper Colleen Anuszewski testified that she had seen Martin the day before and that he could be located in Hartford. On cross-examination, the defendant testified that Martin was a friend and the defendant knew where he could be located.

“At the close of all of the evidence but prior to summation, the state filed a request for a Secondino . . . instruction to be given to the jury. The defendant objected and made an offer of proof outside the presence of the jury. Defense counsel offered the testimony of Phillip N. Armentano, an attorney for Martin in his pending criminal trial. Armentano testified that if Martin were to take the witness stand, he would advise him to invoke his fifth amendment privilege against self-incrimination. The court concluded that the privilege was personal to Martin and overruled the [defendant’s] objection. The court found that Martin was available and that he was a witness whom the defendant naturally would be expected to call to testify. The court refused to speculate as to whether Martin would invoke his fifth amendment privilege and granted the state’s request for the Secondino instruction.” Id., 571.

“Prior to the issuance of our opinion in [State v. Malave, supra, 250 Conn. 722], we had permitted missing witness instructions in certain circumstances. We

recently summarized our pre-Malave missing witness jurisprudence as follows: The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. . . . [T]he two requirements for a Secondino adverse inference instruction against a party are that the witness: (1) is available; and (2) could reasonably be expected, by his [or her] relationship to the party or the issues, to have peculiar or superior information material to the case that, if favorable, the party would produce. . . . The party seeking the adverse inference instruction bears the burden of proving both prongs of the test, and the trial court must make a preliminary determination that there is evidence in the record to support these elements.

“Whether a party has established the requirements for a Secondino instruction is a factual determination that is committed to the sound discretion of the trial court. . . . We will not disturb that discretion unless the failure to give such an instruction amounts to a clear abuse of that discretion. . . . State v. Lewis, 245 Conn. 779, 813-14, 717 A.2d 1140 (1998).” (Citations omitted; internal quotation marks omitted.) State v. Woods, 257 Conn. 761, 767-68, 778 A.2d 933 (2001). Under Secondino, therefore, it was the state’s burden to establish, first, that the missing witness, Martin, was available to testify.

The defendant contends that Martin was unavailable to testify because, if called, Martin almost certainly would have invoked his fifth amendment privilege against self-incrimination. The defendant bases his contention on the following facts: (1) Martin, himself, had pending charges arising from the November 25, 1995 incident at the time of the defendant’s trial; (2) Martin’s attorney, Armentano, testified that he would have advised Martin to exercise his constitutional privilege against sell-incrimination if Martin had been called to testify; and (3) Martin had a compelling reason to accept his attorney’s advice in light of the pending charges. The state claims that, because the constitutional privilege against self-incrimination is a personal one, only the witness, himself, can invoke it, and, consequently, the court reasonably refused to assume that Martin, who physically was available, would have declined to testify by exercising his privilege against self-incrimination. We agree with the defendant.

There can be no doubt that a witness who, like Martin, has pending criminal charges, generally will be well advised to invoke his privilege against self-incrimination to avoid subjecting himself to examination under oath in advance of his own trial. This is especially true when, as in the present case, the charges pending against the witness stem from the very same incident that would be the subject of the witness’ testimony if he were to agree to testify. It, therefore, would have been highly unusual if Martin’s attorney did not indicate that he intended to advise Martin to invoke his privilege against self-incrimination if the defendant called Martin as a witness. Under the circumstances, there is scant reason to think that Martin would have agreed to testify in this case notwithstanding his attorney’s advice to the contrary.

The state relies on State v. Cecarelli, 32 Conn. App. 811, 631 A.2d 862 (1993), in support of its contention that the trial court did not abuse its discretion in concluding that the state had satisfied its burden of showing that Martin was available to testify for the defendant. In Cecarelli, the Appellate Court held that the trial court erred when it failed to conduct a hearing to determine whether a witness would invoke his privilege against self-incrimination instead of relying on the testimony of the witness’ attorney that his client would invoke that privilege. Id., 818-19. Although we agree with the state that the court in Cecarelli was correct in characterizing the privilege against self-incrimination as a personal one; see id., 818; Cecarelli did not involve the invocation of that privilege in the context of determining whether a missing witness instruction was unwarranted on the basis of the witness’ unavailability.

In Cecarelli, the defendant, John Cecarelli, sought to call a witness, Anthony Gentile, who, after his arrest on narcotics charges, agreed to cooperate with the police. Id., 813. Thereafter, Gentile, at the behest of the police, purchased narcotics from Cecarelli, who, following his arrest for that sale, claimed entrapment by the police. Id., 816. To support his entrapment defense at trial, Cecarelli attempted to call Gentile as a witness. Id., 817. Gentile’s attorney informed the court, however, that, if called, Gentile would exercise his privilege against self-incrimination. Id. The trial court accepted counsel’s representation and, over the defendant’s objection, declined to conduct a hearing at which Gentile personally could be questioned, outside the presence of the jury, as to whether, in fact, he would invoke his privilege against self-incrimination. Id., 817-18. In concluding that the hearing was necessary, the Appellate Corut noted not only that the privilege against self-incrimination is personal to the witness but, in addition, that Cecarelli might have had a bona fide claim that, under the circumstances, Gentile’s constitutional privilege simply did not pertain to some of the questions that Cecarelli might wish to ask him regarding the drug transaction. Id., 818-19.

We agree that, in circumstances such as those presented in Cecarelli, it is necessary for the court to conduct a hearing to determine whether a witness whom a party seeks to call is unavailable. Indeed, in that case, Cecarelli’s ability to call Gentile as a witness implicated his constitutional right to present a defense, and it, therefore, was imperative that the court hear from Gentile, himself, regarding his decision to invoke his privilege against self-incrimination. The hearing also was necessary to ensure that Gentile’s invocation of the privilege was proper. Such certainty regarding a witness’ invocation of the privilege against self-incrimination is not nearly so important in the context of determining unavailability under the Secondino rule, however, because, with respect to the latter situation, neither the party seeking the Secondino instruction nor the patty opposing the instruction is attempting to call the witness to testify; the issue, rather, is whether the jury may draw an adverse inference due to a party’s failure to call a particular witness. Because “ [t]he giving of a, Secondino charge is purely an evidentiary issue and is not a matter of constitutional [dimension]”; (internal quotation marks omitted) State v. Malave, supra, 250 Conn. 738; the defendant’s right to present a defense is not implicated by a determination that, because there is a high likelihood that the witness will exercise his privilege against self-incrimination, a missing witness instruction is unwarranted.

This court previously has indicated that a witness need not personally invoke his privilege against self-incrimination to justify a finding of unavailability for Secondino purposes when, in light of all the facts, it nevertheless is apparent that the witness will refuse to testify. See State v. Rosa, 170 Conn. 417, 430-31, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976) (trial court properly rejected defendant’s request for missing witness instruction regarding state’s failure to call defendant’s accomplice as witness because, inter alia, it appeared from record that, if called, witness would invoke her privilege against self-incrimination unless state granted her immunity). Several other courts also have concluded that a witness’ personal invocation of his privilege against self-incrimination is not a necessary prerequisite to a finding that the witness is unavailable when, as in the present case, it is quite clear that the witness, if called, will exercise that privilege. E.g., United States v. Martin, 526 F.2d 485, 487 (10th Cir. 1975); Robinson v. State, 315 Md. 309, 316, 554 A.2d 395 (1989); see Lawson v. United States, 514 A.2d 787, 792 (D.C. 1986); see also State v. Cavness, 46 Haw. 470, 473, 381 P.2d 685 (1963) (prosecutor improperly urged jury to draw unfavorable inference from defendant’s failure to call accomplice). Because it virtually was certain that Martin would have invoked his privilege against self-incrimination and would have refused to testify if called by the defendant, we conclude that the trial court abused its discretion in granting the state’s motion for a missing witness instruction regarding the defendant’s failure to produce Martin.

Ill

Our conclusion that the trial court abused its discretion in granting the state’s motion for a missing witness instruction does not end our inquiry; we also must determine whether the impropriety was harmful, thereby entitling the defendant to a new trial on the charges stemming from the November 25,1995 incident. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. As we recently have noted, we have not been fully consistent in our articulation of the standard for establishing harm. State v. Shabazz, 246 Conn. 746, 759, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. [E.g.] State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997) ; State v. Wilkes, 236 Conn. 176, 188, 671 A.2d 1296 (1996) .... A second line of cases indicates that the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict. See, e.g., State v. Askew, 245 Conn. 351, 371-72, 716 A.2d 36 (1998) .” (Citations omitted; internal quotation marks omitted.) State v. Marshall, 246 Conn. 799, 812, 717 A.2d 1224 (1998). For purposes of the present case, we need not choose between the two formulations or decide whether there is any functional difference between them because, on the basis of our careful examination of the record, we conclude that the defendant has not satisfied his burden of proving harm under either formulation of the standard.

Breedlove and Cormier were the only eyewitnesses to testify for the state regarding the defendant’s alleged criminal conduct and, therefore, they provided the key testimony against the defendant. Breedlove testified that the defendant repeatedly had continued to assault and otherwise harass her after the issuance of the protective order in August, 1994, and that the defendant’s conduct on August 4, 1995, compelled her to contact the police. She also testified in detail regarding the events of November 25, 1995, and did not waver from her version of those events on cross-examination. She similarly was steadfast in her testimony regarding the defendant’s violation of the protective order on November 30,1995. Cormier’s testimony regarding the November 25, 1995 incident corroborated Breedlove’s testimony in all material respects. Although a friend of Breedlove, Cormier had no apparent motive to fabricate a story about the events of November 25, 1995.

To be sure, both Breedlove’s and Cormier’s testimony was not unimpeachable. In particular, Breedlove had given two written statements prior to the incident of November 25, 1995, in which she stated—falsely, according to her trial testimony—that the defendant never had harmed her. In Cormier’s case, he testified that he was intoxicated when he left Munn’s Pub in the early morning hours of November 25, 1995, and conceded that his powers of observation consequently were “not that good.” Breedlove, however, explained that she had made those false statements because she was afraid of the defendant and because she hoped that, by doing so, he would leave her alone. Furthermore, although Cormier candidly admitted that he had been drinking heavily at Munn’s Pub prior to the November 25, 1995 incident, he also testified that he had a clear recollection of those events.

Moreover, both Breedlove’s and Cormier’s testimony was corroborated by other witnesses. For example, with respect to the incident of August 4, 1995, State Trooper Sauve, who had been dispatched to Breedlove’s residence at approximately 1 a.m., spoke to the defendant on the telephone when the defendant attempted to contact Breedlove. In addition, Sauve testified that Breedlove was frightened and upset, and that she became even more concerned after the defendant’s telephone call. Finally, Sauve’s testimony regarding what Breedlove had told him about the defendant’s conduct

on August 4,1995, was consistent with Breedlove’s testimony concerning the incident.

The testimony of Breedlove and Cormier regarding the incident of November 25, 1995, also was corroborated by State Trooper Anuszewski, who arrived at Breedlove’s residence at approximately 3 a.m. in response to Breedlove’s call to the police. Anuszewski interviewed Breedlove and Anuszewski’s testimony about her investigation of the November 25, 1995 incident was consistent with Breedlove’s testimony. Anuszewski observed that Breedlove’s face was bruised and swollen, that her lip had been cut, that her hair had been pulled out, leaving a bald spot on the left side of her scalp, and that the driver’s side window of Breedlove’s car had been smashed. Anuszewski also observed scratches and scrapes on the car’s rear bumper, which were consistent with Breedlove’s explanation that the defendant repeatedly had rammed her car from behind. Anuszewski further noted that Breedlove appeared to be very “shaken” by the incident. According to Anuszewski, Cormier, who had accompanied Breedlove to her residence, also was upset by the events, but was “calm and very cooperative, and willing to assist in any way he could.” Finally, Anuszewski, who traveled to the area where the defendant allegedly had smashed Breedlove’s car window, found a substantial amount of broken glass in the roadway where Breedlove had indicated that it would be.

Finally, State Trooper Kevin Lyons testified that he had been dispatched to Breedlove’s residence at approximately 2 a.m. on December 1, 1995. According to Lyons, Breedlove informed him that the defendant had been calling her and driving by her home on November 30, 1995. Lyons further testified that Breedlove appeared to be “visibly shaken” by the defendant’s persistent and menacing conduct.

The defendant testified regarding the events of November 25 and 30, 1995. With respect to the second of these two incidents, the defendant denied that he had called Breedlove on the telephone on November 30 or that he had driven by her home. His version of the events of November 25, 1995, also was completely contrary to the evidence adduced by the state. Specifically, he claimed that Breedlove had approached him in the parking lot near Munn’s Pub and, without provocation, proceeded to assault him. The defendant éxplained that Breedlove had attacked him because she was upset that he was romantically involved with someone else. The defendant also explained that he did not strike Breedlove but, rather, ran away to avoid any further conflict -with Breedlove. According to the defendant, Martin, who was driving the defendant’s car, picked him up shortly thereafter.

The defendant further testified that he and Martin were parked on the side of the road when Breedlove, accompanied by Cormier, drove past his car, pulled in front of him and stopped. According to the defendant, he got out of his car and walked over to Breedlove, who also had exited her vehicle. The defendant stated that he hugged Breedlove and told her that he loved her. The defendant testified that Breedlove initially was calm, but that she started hitting him again. According to the defendant, he endeavored to protect himself by repeatedly pushing Breedlove away, but, in doing so, accidentally knocked her to the ground. The defendant stated that when Breedlove got up, she went into her car to retrieve a flashlight. Concerned that Breedlove was going to use the flashlight as a weapon against him, the defendant kicked her driver’s side door closed and then returned to his vehicle and drove away to avoid any further trouble. The defendant testified that Breedlove, herself, inadvertently smashed the driver’s side window of her vehicle with the flashlight that she had retrieved from her car.

On cross-examination, the defendant stated that Breedlove’s physical attack against him “was her way of telling [him] she still loved [him].” He also stated that he frequently is falsely accused, and that the police have arrested him many times for no reason.

The state’s case and the defendant’s version of the events, therefore, were diametrically opposed. Consequently, the jury’s primary task was to assess and determine the relative credibility of the state’s witnesses, on the one hand, and the defendant, on the other hand. As its verdicts reflect, the jury credited the testimony of the state’s witnesses. We do not believe that the improper Secondino instruction was likely to have affected the jury’s credibility assessment.

Because Martin was not a witness to the incidents of August 4,1995, and November 30, 1995, the improper Secondino charge related only to the incident of November 25, 1995. It is apparent that the jury, by virtue of its guilty verdict on the charge of criminal violation of a protective order arising out of the incident of August 4, 1995, credited Breedlove’s testimony regarding that incident. As to the jury’s finding of guilty of criminal violation of a protective order stemming from the incident of November 30, 1995, it is clear that the jury not only credited Breedlove, but also necessarily disbelieved the defendant’s contradictory testimony. Inasmuch as the jury found Breedlove to be credible with respect to those two incidents, and found the defendant to lack credibility with respect to the November 30, 1995 incident, the defendant has a difficult burden to show that the improper Secondino charge so undermined the credibility of his version of the November 25,1995 incident, as to entitle him to a new trial on the charges arising therefrom.

We are not persuaded that the defendant has satisfied that burden. The defendant’s explanation of what occurred on November 25, 1995, is highly implausible; it strains credulity to believe that Breedlove attacked the defendant, both outside Munn’s Pub and again as she was on her way home with Cormier, as a way of demonstrating her love for the defendant. More importantly, however, it is very unlikely that the jury, having concluded that the defendant, on two separate occasions, had violated a protective order that Breedlove obtained to protect herself from the defendant, would credit the defendant’s claim that Breedlove, in the company of another man, Cormier, attacked the defendant because she still loved him so much.

As we have explained, the trial court abused its discretion in granting the state’s motion for a Secondino charge. See part II of this opinion. Moreover, under the circumstances, the assistant state’s attorney should not have been permitted, during closing arguments, to draw the jury’s attention to the fact that the defendant did not called Martin as a witness. Nevertheless, we conclude that the instruction, when viewed in the context of the entire trial and in the light of the verdicts returned in connection with the charges to which the improper instruction did not pertain, did not affect the result and was not so prejudicial as to undermine confidence in the fairness of the verdict of guilty of the charges arising from the November 25, 1995 incident.

The judgment of the Appellate Court is reversed insofar as it reversed the trial court’s judgment of conviction on the charges arising from the November 25, 1995 incident and the case is remanded to that court with direction to consider the defendant’s remaining claim.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1995) § 53a-110b provides in relevant part: “(a) A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b~38c has been issued against such person, and such person violates such order. . . .”
      Public Acts 1995, No. 95-214, § 5, amended subsection (a) of § 53a-110b to include protective orders issued pursuant to General Statutes § 54-lk. The protective order that the defendant was found guilty of violating in the present case, however, was issued pursuant to General Statutes (Rev. to 1993) § 46b-38c (d).

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (2) assaults or strikes another . . .

       General Statutes § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior . . . .”

       General Statutes § 53a-64 provides in relevant part: “(a) A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical iqjury to another person. . . .”

       General Statutes § 53a-117 (a) provides in relevant part: “A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally or recklessly (A) damages tangible property of another . . . .”

       The trial court sentenced the defendant to a total effective sentence of forty-four months imprisonment.

       “In Secondino v. New Haven Gas Co., supra, 147 Conn. 672, this court stated that [t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. . . . Id., 675. This principle, previously articulated by this court in Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928), and subsequently approved for use in criminal cases; see State v. Daniels, 180 Conn. 101, 109, 429 A.2d 813 (1980); State v. Annunziato, 169 Conn. 517, 536-39, 363 A.2d 1011 (1975); commonly is referred to as the Secondino rule or the missing witness rule. Similarly, the jury charge explaining the rule commonly is referred to as the Secondino instruction or the missing witness instruction. We use these terms interchangeably throughout this opinion.” (Internal quotation marks omitted.) State v. Woods, 257 Conn. 761, 764 n.7, 778 A.2d 933 (2001).

       The defendant filed a petition for certification to appeal from that portion of the Appellate Court’s judgment affirming the trial court’s judgments. That petition, however, was denied; State v. Young, 253 Conn. 922, 754 A.2d 799 (2000); and, consequently, the defendant’s two other convictions for criminal violation of a protective order are not at issue in this appeal.

       The state claims that, contrary to the conclusion of the Appellate Court, this court’s decision to abolish the Secondino rule in criminal cases in State v. Malave, supra, 250 Conn. 738, does not apply retroactively. The defendant, on the other hand, contends that the Appellate Court properly concluded that our decision in Ma,lave has retroactive applicability.

       Thus, whether our decision in State v. Malave, supra, 250 Conn. 738, should be applied retroactively is not determinative of this appeal. Rather, the dispositive issues are: (1) whether the trial court improperly granted the state’s motion for a Secondino instruction; and (2) if so, whether the trial court’s impropriety constituted harmful error.

       Each incident, and the charges stemming therefrom, formed the basis of a separate information and a separate judgment of conviction. The defendant has not challenged the consolidation of those three informations for trial.

       Although the charges arising from the events of November 25, 1995, involved two separate altercations, we refer to those events as the November 25, 1995 incident for ease of reference.

       The defendant was charged with reckless endangerment in the first degree. The jury, however, found the defendant guilty of the lesser included offense of reckless endangerment in the second degree. See footnote 4 of this opinion.

       The defendant also was charged with assault in the third degree and threatening in connection with the November 25, 1995 incident. The jury, however, found the defendant not guilty with respect to those charges.

       We note that the defendant testified in his own defense with respect to the incidents of November 25,1995, and November 30,1995. He, however, invoked his fifth amendment privilege against self-incrimination with respect to the August 4,1995 incident. The opinion of the Appellate Court incorrectly states that the defendant also invoked his privilege against self-incrimination in connection with the November 30, 1995 incident. State v. Young, supra, 57 Conn. App. 575.

       On appeal to the Appellate Court, the defendant also claimed that the trial court improperly had: (1) precluded evidence of the victim’s prior misconduct; (2) admitted evidence of a telephone conversation without a proper evidentiary foundation; (3) precluded the defendant from impeaching the victim regarding an alleged act of fraud; and (4) allowed the state to cross-examine the defendant regarding certain prior acts of misconduct. State v. Young, supra, 57 Conn. App. 568. The Appellate Court rejected all but the last of these claims. Id., 576, 578, 580. With respect to the defendant’s claim that the trial court improperly had permitted the state to cross-examine him regarding certain prior acts of misconduct, the Appellate Court declined to address that claim, concluding that the prior misconduct evidence related only to those charges stemming from the November 25, 1995 incident and, further, that the issue was unlikely to arise at a retrial on those charges. See id., 575. In view of our determination that the Appellate Court improperly concluded that the Secondino charge given by the trial court entitles the defendant to a new trial, the defendant’s claim regarding the prior misconduct. evidence must be addressed. Because of the limited nature of the certified issue in this case, the parties did not address the issue concerning the prior misconduct evidence in this court. Thus, the case must be remanded to the Appellate Court for consideration of that remaining issue.
      It. is also important to note that the Appellate Court’s conclusion that the prior misconduct evidence related only to those charges stemming from the November 25, 1995 incident may have been based, at least in part, on its erroneous belief that the defendant testified only as to the November 25 incident, and invoked his privilege against self-incrimination as to the incidents of August 4, 1995, and November 30, 1995. See footnote 15 of this opinion (noting that, defendant invoked his privilege against self-incrimination only as to August 4 incident, and not as to November 30 incident). The trial court, in overruling defense counsel’s objection to the state’s cross-examination of the defendant regarding his prior acts of misconduct, concluded that the defendant opened the door to such cross-examination and stated that it would allow the state to use the prior misconduct evidence to shed light on the defendant’s “credibility.” It is indeed plausible that the jury might have viewed the prior misconduct evidence as casting doubt on the defendant’s credibility in general and, because the defendant testified regarding the November 25 and November 30 incidents, the prior misconduct evidence may have contributed to the jury’s decision to discredit the defendant’s testimony regarding both the November 25 and November 30 incidents. Consequently, the Appellate Court’s resolution on remand of the defendant’s claim regarding the prior misconduct evidence may affect not only the trial court’s judgment pertaining to the November 25 incident but, also, the trial court’s judgment of conviction of criminal violation of a protective order arising out of the November 30 incident.

       This court decided Híatowe during the pendency of the defendant’s appeal of the present case to the Appellate Court. See State v. Young, supra, 57 Conn. App. 571.

       In anticipation of the court’s Secondino instruction, the assistant state’s attorney stated during closing arguments: “I ask you, ladies and gentlemen, where is Lanny Martin? . . . Martin was the other person that was at that scene, and he is a friend of this [defendant). Why isn’t he here to testify? Why didn’t the defendant call him and put him on the stand? Why do you think, ladies and gentlemen, that didn’t happen? . . . [WJhere is . . . Martin to confirm all this, I would like to know. Where is he? He is [the defendant's] friend."
      The assistant state’s attorney made the following additional comments during her rebuttal argument: “And once again, I ask you, where is Lanny Martin, [the defendant’s] friend . . . who was there and saw everything? He was holding the . . . broken bottle to [Cormier], . . . Why isn’t he here to testify to tell us what happened? He is [the defendant’s] friend, and the state is not only relying on . . . Breedlove’s testimony. The state has . . . Cormier’s testimony.”

       The state does not dispute that Martin, although physically available, would have been unavailable for Secondino purposes if he personally had invoked his privilege against self-incrimination.

       Thus, as the Appellate Court observed, “it is highly unlikely that the defendant could have obtained Martin’s testimony because of his fifth amendment privilege . . . .” State v. Young, supra, 57 Conn. App. 575.

       Indeed, in abandoning the Secondino rule in criminal cases, we noted that a witness’ probable invocation of his privilege against self-incrimination might constitute one of several justifications for not calling a witness who otherwise is available. State v. Malave, supra, 250 Conn. 734 n.13. In such circumstances, it simply is unfair for the court to invite the jury to draw an inference, based solely upon a party’s failure to produce the witness, that the testimony thereof would be unfavorable to that party.

       Cormier, who indicated that he had dated Breedlove for a short time, testified that they were not romantically involved at the time of the trial.

       The state also presented the testimony of Evan Stark, an expert in the field of domestic violence, who testified about battered woman’s syndrome. Stark’s testimony regarding domestic violence tended to buttress Breedlove’s credibility by explaining to the jury how women in Breedlove’s circumstances frequently may respond to episodes of domestic violence.

       The defendant’s testimony is particularly implausible in light of the fact that he was barred from Munn’s Pub and, therefore, had no apparent reason to be in the parking lot on November 25, 1995, other than to confront Breedlove.

       The Appellate Court stated that, because the defendant was acquitted of two charges arising out of the November 25, 1995 incident; see footnote 14 of this opinion; the jury did not fully credit Breedlove’s testimony. State v. Young, supra, 57 Conn. App. 575. We acknowledge that that is one of several possible inferences that reasonably may be drawn from the two findings of not guiliy. As the state points out, however, those findings, along with the jury’s finding of guilty of the lesser included offense of reckless endangerment in the second degree instead of reckless endangerment in the first degree; see footnote 13 of this opinion; indicate that the improper missing witness instruction was not so harmful as to cause the jury to convict the defendant of all of the crimes with which he was charged.

       Although the Secondino charge was improper, it is important to note that the court, in instructing the jury, emphasized the fact that the jury was
        permitted, and not required, to draw an inference that Martin’s testimony, if presented, would have been adverse to the defendant.

       We also note that, although the assistant state’s attorney’s argument should not have been permitted, the argument was not expressly couched in terms of an adverse inference.

       See footnote 16 of this opinion.


source: Caselaw Access Project

author: VERTEFEUILLE, J.

license: Public Domain

text:
    INDUSTRIAL RISK INSURERS v. HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY v. INDUSTRIAL RISK INSURERS
    (SC 16155)
    Borden, Norcott, Katz, Palmer and Vertefeuille, Js.

      Argued March 13
    officially released September 18, 2001

      Lawrence Zelle, pro hac vice, with whom were Linda L. Morkan, Richard L. Voelbel, pro hac vice, and, on the brief, Michelle K. Enright, pro hac vice, and Louis I. Parley, for the appellant (Industrial Risk Insurers).

      Thomas E. Birsic, with whom was Maurice T. FitzMaurice, for the appellee (Hartford Steam Boiler Inspection and Insurance Company).
   Opinion

VERTEFEUILLE, J.

In this appeal, Industrial Risk Insurers (Industrial Risk), appeals from the judgment of the trial court denying its application to vacate an arbitration award and granting the application to confirm the award filed by Hartford Steam Boiler Inspection and Insurance Company (Hartford Steam Boiler). On appeal, Industrial Risk claims that the trial court improperly confirmed the arbitrator’s award because: (1) the submission to the arbitrator was restricted; and (2) the arbitration panel exceeded the scope of its authority. We conclude that the trial court properly confirmed the award and accordingly we affirm the judgment of the trial court.

The following facts and procedural history, as set forth by the trial court in its memorandum of decision, are relevant to this appeal. “The present action arises out of a catastrophic loss which occurred at the Monsanto Corporation’s [Monsanto] Chocolate Bayou plant in Alvin, Texas, on January 13, 1992 (Monsanto loss). The parties to this dispute, [Industrial Risk] and [Hartford Steam Boiler], are parties to a reinsurance [contract], A dispute arose between the parties concerning whether the Monsanto loss was covered by the reinsurance [contract]. The dispute eventually led to a complex series of arbitrations. ... At the time of the Monsanto loss, [Hartford Steam Boiler] provided [Industrial Risk] with reinsurance for boiler and machinery coverage pursuant to a reinsurance [contract] between the parties that dated back to 1975. While [Industrial Risk] insured Monsanto for all risks, including, but not limited to, boiler and machinery losses, [Hartford Steam Boiler] reinsured [Industrial Risk] only for specific types of boiler and machinery losses. Only a portion of the coverage [Industrial Risk] afforded to Monsanto, therefore, was reinsured by [Hartford Steam Boiler]. [Industrial Risk] and [Hartford Steam Boiler] disagreed as to the nature of the Monsanto loss. [Industrial Risk] believed that the Monsanto loss was a boiler and machinery loss, which was reinsured. [Hartford Steam'Boiler], meanwhile, took the position that it was not a reinsured boiler and machinery loss. Rather, [Hartford Steam Boiler] asserted that the loss was covered by [Industrial Risk], pursuant to the nonreinsured portion of [Industrial Risk’s] insurance policy with Monsanto, and by Monsanto’s other all risk insurers.

“[Industrial Risk] entered into an agreement with Monsanto’s all risk insurers later in 1992. Under this agreement, [Industrial Risk] and the all risk insurers would participate in an arbitration to determine whether the loss was covered by the all risk policies or by the boiler and machinery portion of [Industrial Risk’s] policy. Although [Industrial Risk] was itself an all risk insurer in addition to its status as a boiler and machinery insurer, it agreed exclusively to advocate the boiler and machinery position for the purposes of the arbitration. [Hartford Steam Boiler] contested this arrangement, and filed two civil actions in the Hartford Superior Court seeking, inter alia, to enjoin [Industrial Risk’s] all risk arbitration from proceeding.

“After [Hartford Steam Boiler] had filed the two civil suits, [Industrial Risk] and [Hartford Steam Boiler] entered into a written settlement agreement in February, 1993. Pursuant thereto, [Hartford Steam Boiler] would drop its civil actions, and the parties would allow the pending arbitration between [Industrial Risk] and the all risk insurers—referred to in the agreement as the phase I arbitration—to continue to a final adjudication. After phase I, [Industrial Risk] and [Hartford Steam Boiler] would move on to the phase II arbitration. The phase II arbitration panel’s role was to determine ‘the identification of the terms and conditions of the reinsurance contract between [Industrial Risk] and [Hartford Steam Boiler].’. . . Following the phase II arbitration, the parties would move on to phase III where ‘the sole issue to be adjudicated . . . [was] whether any loss which [Industrial Risk] is required to pay as a result of the decision in the Phase I Arbitration is reinsured under the contract of reinsurance as identified by the Phase II Arbitration.’ . . . The settlement agreement defined the phase III arbitration as ‘a separate arbitration between [Hartford Steam Boiler] and [Industrial Risk] pursuant to ARTICLE 9 of the reinsurance agreement between Factory Insurance Association, [Industrial Risk’s] predecessor in interest, and [Hartford Steam Boiler] . . . ,

“The phase I arbitration proceeded without [Hartford Steam Boiler’s] participation. . . . [T]he phase I panel determined that the Monsanto loss was within the terms of [Industrial Risk’s] boiler and machinery coverage. . . . Pursuant to the panel’s determination, [Industrial Risk] was liable to Monsanto for $103 million.

“[Hartford Steam Boiler] and [Industrial Risk] then commenced phase II, and . . . the phase II panel rendered its final decision identifying the terms and conditions of the reinsurance [contract] between [Hartford Steam Boiler] and [Industrial Risk], Essentially, the phase II final award provided that the reinsurance [contract] was on a ‘following form’ basis, meaning that the terms and conditions of [Industrial Risk’s] policy with Monsanto took precedence and controlled over any conflicting terms of the reinsurance [contract].

“Before the phase III arbitration commenced, a dispute arose as to the scope of the arbitrable issues to be determined in the phase III hearing. Specifically, [Hartford Steam Boiler] claimed that it was not bound by the phase I award and was entitled to a de novo hearing concerning the nature of the Monsanto loss in the phase III arbitration. When the phase III panel decided that it would conduct an evidentiary hearing to determine whether [Hartford Steam Boiler] was entitled to a de novo hearing, it became apparent that the parties disagreed as to the scope of the phase III panel’s authority to decide the de novo issue. [Hartford Steam Boiler] contended that the court, not the phase III panel, should decide the de novo issue, while [Industrial Risk] argued that the panel could conduct the evidentiary hearing.

“Because of this dispute, [Hartford Steam Boiler] filed a motion to stay arbitration. . . . [T]he court ruled that the phase III panel, rather than the court, had the authority to decide whether to afford [Hartford Steam Boiler] a de novo hearing concerning the nature of the Monsanto loss and whether it would be bound by the phase I final award. . . . Pursuant to that ruling, the phase III panel conducted a preliminary hearing to determine whether [Hartford Steam Boiler] would be entitled to a de novo hearing in the phase III arbitration. After the hearing, the phase III panel agreed with [Hartford Steam Boiler] and issued an interim award to that effect: ‘Having considered the submissions of the parties, including prehearing memoranda, exhibits, testimony of witnesses] and arguments of counsel at the preliminary hearing . . . and after due deliberation, the majority of the Panel has concluded that [Hartford Steam Boiler] is not estopped by the Phase I Final Award from taking exception to the loss adjustment made by [Industrial Risk], and that [Hartford Steam Boiler] is entitled under Article 9 of the Reinsurance Agreement to a de novo hearing on that issue as part of the Phase III hearing before this Panel.’ ... By letter . . . the phase III panel clarified its interim award by stating: ‘The Phase III hearing will involve a de novo determination by the Panel of the underlying facts of the loss and coverage under the policies, with consideration but not binding effect to be given to the Phase I award.’ . . .

“The phase III arbitration hearing was conducted in October, 1998. The panel heard testimony from eleven witnesses and received over 400 exhibits. . . . [T]he phase III panel rendered its unanimous award: ‘The loss that [Industrial Risk] was required to pay to Monsanto Company is reinsured to the extent of [$22 million] under the reinsurance [contract] between [Industrial Risk] and [Hartford Steam Boiler].’ ” (Citations omitted.)

Hartford Steam Boiler then filed an application in the trial court to confirm the phase III arbitration award pursuant to General Statutes § 52-417. Subsequently, Industrial Risk filed an application in the trial court to modify and confirm as modified or to vacate the arbitration award pursuant to General Statutes §§ 52-418 and 52-419. The trial court granted Hartford Steam Boiler’s application to confirm the award and denied Industrial Risk’s application to modify and confirm as modified or to vacate the award. This appeal followed.

I

Industrial Risk first claims that the trial court improperly confirmed the arbitration award because it improperly determined that the submission to the arbitration panel was unrestricted. We conclude that the award in this case arose out of an unrestricted submission.

Our analysis is guided by the well established principles of law governing consensual arbitration. “Arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators. Waterbury v. Waterbury Police Union, 176 Conn. 401, 403, 407 A.2d 1013 (1979).” (Internal quotation marks omitted.) United States Fidelity & Guaranty Co. v. Hutchinson, 244 Conn. 513, 519, 710 A.2d 1343 (1998). “The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584-85, 440 A.2d 774 (1981); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106-107, 438 A.2d 1171 (1981).” Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992).

“Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 304, 680 A.2d 1274 (1996). Under an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. American Universal Ins. Co. v. DelGreco, 205 Conn. 178,186, 530 A.2d 171 (1987); Carroll v. Aetna Casualty & Surety Co., [189 Conn. 16, 19, 453 A.2d 1158 (1983)]. The resulting award can be reviewed, however, to determine if the award conforms to the submission. Garrity v. McCaskey, supra, 223 Conn. 4. Such a limited scope of judicial review is warranted given the fact that the parties voluntarily bargained for the decision of the arbitrator and, as such, the parties are presumed to have assumed the risks of and waived objections to that decision. . . . It is clear that a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results. . . . American Universal Ins. Co. v. DelGreco, supra, 186-87. The significance, therefore, of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators’ decision.” (Internal quotation marks omitted.) United States Fidelity & Guaranty Co. v. Hutchinson, supra, 244 Conn. 519-20.

In the present case, the settlement agreement between Industrial Risk and Hartford Steam Boiler constituted the submission to arbitration. See Bennett v. Meader, 208 Conn. 352, 363, 545 A.2d 553 (1988). The parties agreed that “[t]he sole purpose of this [Phase III] Arbitration will be to determine whether any loss which [Industrial Risk] is required to pay as a result of the decision in the Phase I Arbitration is reinsured under the contract of reinsurance as identified by the Phase II Arbitration.”

Industrial Risk claims that the inclusion of the language “under the contract of reinsurance as identified by the Phase II Arbitration” evidences the parties’ intent to create a restricted submission. We disagree. In an analogous line of cases regarding arbitration awards, this court consistently has concluded that submissions that require arbitrators to determine whether a party has violated a particular section of a collective bargaining agreement constituted unrestricted submissions. For example, in Bic Pen Corp. v. Local No. 134, supra, 183 Conn. 581 n.1, the issue submitted for arbitration was “whether the Company violated article IV (n) or other relevant provisions of the collective bargaining agreement by failing to distribute overtime equally among all toolmakers and, if so, what shall the remedy be?” The court concluded therein that “[s]ince neither the submission formulated by the arbitrator, nor the issues suggested by the parties, contained conditional language, the submission at issue is unrestrictive.” Id., 584-85. In Bridgeport v. Bridgeport Police Local 1159, supra, 183 Conn. 103, the submission provided: “ ‘Is this matter arbitrable? If so, was the City required to terminate non-resident police department employees under the Collective Bargaining Agreement and applicable ordinances of the City of Bridgeport?” The court concluded that, “[although that submission directed the arbitrators to examine the ordinances and the collective bargaining agreement, that direction was not made a condition of the submission,” and therefore the submission was unrestricted. Id., 107.

Like the submissions in Bic Pen Corp. and Bridgeport, the submission in the present case did not contain any conditional language. The submission here required the arbitration panel to determine what amount Hartford Steam Boiler was required to pay Industrial Risk under the terms of the reinsurance contract. The fact that the submission in the present case required the arbitration panel to examine both the settlement agreement and the contract of reinsurance to resolve the issue submitted did not render the submission a restricted one.

Industrial Risk also relies on the references in the settlement agreement to “the sole issue” to be determined and “the sole purpose” of the phase III arbitration to support its claim that the parties intended to form a restricted submission. That reliance is misplaced. A “submission is unrestricted unless otherwise agreed by the parties.” Bennett v. Meader, supra, 208 Conn. 363. We are not persuaded that the mere inclusion of the word “sole” in the settlement agreement evidences the parties’ intent to form a restricted submission. Although the references to the “sole question” and the “sole issue” resemble “language restricting the breadth of issues”; Garrity v. McCaskey, supra, 223 Conn. 5; if we were to adopt Industrial Risk’s argument that the parties’ submission is restricted because it required the arbitration panel to address only one question, many otherwise unrestricted submissions to arbitration would be transformed into restricted ones. See United States Fidelity & Guaranty Co. v. Hutchinson, supra, 244 Conn. 521-22 (whether plaintiff “legally entitled to recover damages” pursuant to language of insurance policy created unrestricted submission); Bic Pen Corp. v. Local No. 134, supra, 183 Conn. 581-85 (“whether the Company violated article IV [n] or other relevant provisions of the collective bargaining agreement by failing to distribute overtime equally among all toolmakers” constituted unrestricted submission). We conclude, therefore, that the trial court properly determined that the submission in the present case was unrestricted.

II

Industrial Risk next claims that, even if the trial court properly determined that the submission was unrestricted, it nevertheless improperly confirmed the award because the arbitration panel exceeded the scope of its authority in violation of § 52-418. We conclude that the arbitration panel did not exceed the scope of its authority, and, accordingly, affirm the judgment of the trial court.

“The well established general rule is that [w]hen the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. American Universal Ins. Co. v. DelGreco, [supra, 205 Conn. 185]. When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988). Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. Garrity v. McCaskey, [supra, 223 Conn. 4-5]. Furthermore, in applying this general rule of deference to an arbitrator’s award, [e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings. . . . Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 119, 676 A.2d 825 (1996).” (Internal quotation marks omitted.) Groton v. United Steelworkers of America, 254 Conn. 35, 43-44, 757 A.2d 501 (2000).

“When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. Waterbury Board of Education v. Waterbury Teachers Assn., [168 Conn. 54, 62, 357 A.2d 466 (1975)]. An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission. New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 562, 424 A.2d 263 (1979); Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 291, 377 A.2d 323 (1977).

“A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission. . . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the inteipretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 [1977].” (Internal quotation marks omitted.) Bic Pen Corp. v. Local No. 134, supra, 183 Conn. 584. The party challenging the award bears the burden of producing evidence sufficient to demonstrate a violation of § 52-418. See Metropolitan District Commission v. AFSCME, Council 4, Local 184, supra, 237 Conn. 119.

With these legal principles in mind, we examine whether the award conformed to the submission in the present case. The submission asked the arbitration panel to decide: “[W]hether any loss which [Industrial Risk] is required to pay as a result of the decision in the Phase I Arbitration is reinsured under the contract of reinsurance as identified by the Phase II Arbitration.” See footnote 7 of this opinion. The award of the arbitration panel provided: “The loss that [Industrial Risk] was required to pay to Monsanto Company is reinsured to the extent of [$22 million] under the reinsurance agreement between [Industrial Risk] and [Hartford Steam Boiler].”

Industrial Risk claims that the arbitration panel exceeded the scope of its authority by determining what portion of the Monsanto loss was reinsured by Hartford Steam Boiler and fixing the amount owed by Hartford Steam Boiler. In its brief, Industrial Risk alters the plain language of the submission arguing that it limited the arbitration panel to determining “whatever loss, if any," for which Industrial Risk was hable as the phase I arbitration panel determined, was reinsured by Hartford Steam Boiler, making it an “ ‘all or nothing’ ” question. (Emphasis added.) Industrial Risk contends, therefore, that the arbitration award did not conform to the submission because the arbitration panel determined that Hartford Steam Boiler was responsible for only a portion of the loss determined in the phase I arbitration. In making this argument, however, Industrial Risk misconstrues the language of the submission. The exact language of the submission identified the issue as “whether any loss which [Industrial Risk] is required to pay ... is reinsured [by Hartford Steam Boiler] . . . .” (Emphasis added.) Industrial Risk’s argument that the plain language of the submission required the arbitration panel to determine “whatever loss, if any,” was reinsured by Hartford Steam Boiler is not consistent with the exact language of the submission, but instead alters it by adding the words “if any.” We are bound to review the exact language of the submission.

As the party challenging the award in this case, Industrial Risk bears the burden of producing evidence sufficient to demonstrate that the award does not conform to the submission. See Metropolitan District Commissions. AFSCME, Council 4, Local 184, supra, 237 Conn. 119. Industrial Risk has not satisfied its burden. The language of the submission required the arbitration panel to determine “whether any loss” Industrial Risk owed to Monsanto was reinsured by Hartford Steam Boiler. (Emphasis added.) Industrial Risk asserts that there is only one reasonable interpretation of this language, namely, that it required the arbitration panel to issue a yes or no answer deciding whether the full amount of the Monsanto loss was reinsured, not determining whether a portion of that loss was reinsured. We disagree.

The plain language of the submission does not clearly support Industrial Risk’s interpretation of the terms of the submission. In interpreting statutes that contain the word “any,” we have recognized that “any” can have a variety of meanings. See Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 428, 572 A.2d 951 (1990); King v. Board of Education, 203 Conn. 324, 334, 524 A.2d 1131 (1987). The word “any” can be used to denote “all,” “every,” “some” or “one.” See Stamford Ridgeway Associates v. Board of Representatives, supra, 428. Because “any” can be interpreted as “some,” the language of the submission does not support Industrial Risk’s claim.

Industrial Risk further claims that the settlement agreement in its entirety evidences the parties’ intent to be bound by the phase I arbitration. Specifically, Industrial Risk cites the use of the phrase “as a result of the decision in the Phase I Arbitration” in the settlement agreement to support its claim. See footnote 7 of this opinion. In response, Hartford Steam Boiler argues that reading the language of the submission in light of the entire settlement agreement, specifically, article nine, demonstrates that the arbitration panel had the authority to examine all of the underlying facts and coverage issues surrounding Industrial Risk’s adjustment of the Monsanto loss. We agree with Hartford Steam Boiler.

“Arbitration is a creature of contract. . . .” (Internal quotation marks omitted.) United States Fidelity & Guaranty Co. v. Hutchinson, supra, 244 Conn. 519. “When interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result. See Tremaine v. Tremaine, 235 Conn. 45, 57, 663 A.2d 387 (1995); Ceci v. National Indemnity Co., 225 Conn. 165, 175, 622 A.2d 545 (1993); Board of Education v. State Board of Labor Relations, 217 Conn. 110, 116, 584 A.2d 1172 (1991).” O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, 843, 669 A.2d 1221 (1996).

The contract establishing the authority of the arbitration panel in the present case was the settlement agreement. The settlement agreement defined the phase III arbitration as follows: “The term ‘Phase III Arbitration’ shall mean a separate arbitration between [Hartford Steam Boiler] and [Industrial Risk] pursuant to ARTICLE 9 of the reinsurance [contract] between Factory Insurance Association, [Industrial Risk’s] predecessor in interest, and [Hartford Steam Boiler] . . . .” (Emphasis added.) See footnote 7 of this opinion. This portion of the settlement agreement contained two manifestations of the parties’ intent for the phase III arbitration. First, it demonstrated that the phase III arbitration was to be a separate arbitration between Hartford Steam Boiler and Industrial Risk. Second, it evidenced that the phase III arbitration was to be conducted pursuant to article nine of the reinsurance contract. Both of these manifestations of intent are integral to our understanding of whether the arbitration award conformed to the submission.

The fact that the parties agreed that the phase III arbitration was to be a separate arbitration between Hartford Steam Boiler and Industrial Risk is significant because it evidenced that the parties understood that the phase III arbitration would not be controlled by the phase I arbitration, in which Hartford Steam Boiler did not participate. At the time that Hartford Steam Boiler and Industrial Risk had entered into this settlement agreement, Hartford Steam Boiler had filed two civil actions in which it had challenged Industrial Risk’s decision to arbitrate its dispute with Monsanto regarding whether the loss was a boiler and machinery loss without Hartford Steam Boiler’s participation. As part of the settlement agreement, Hartford Steam Boiler agreed to withdraw its civil actions in favor of the arbitration procedure set out in the settlement agreement. In the settlement agreement, Hartford Steam Boiler agreed not to participate in the phase I arbitration between Industrial Risk and Monsanto in exchange for the phase II and III arbitrations established in the settlement agreement. It is not reasonable to presume that Hartford Steam Boiler relinquished its right to participate in the phase I arbitration while also agreeing to be bound by that arbitration between Industrial Risk and Monsanto. In light of the events that gave rise to the settlement agreement between the parties, the use of the term “separate arbitration” in the settlement agreement evidences that the parties intended the phase III arbitration to be an independent arbitration that was not subject to the terms of the phase I arbitration between Industrial Risk and Monsanto.

The parties’ incorporation of article nine of the reinsurance contract in the settlement agreement’s definition of the phase III arbitration further demonstrates that the parties intended that the phase III arbitration be a means for settling the amount of reinsurance owed by Hartford Steam Boiler to Industrial Risk. In the definition of the phase III arbitration contained in the settlement agreement, the parties explicitly stated that the “Phase III Arbitration [will be] . . . pursuant to ARTICLE 9 of the reinsurance [contract] . . . .” Article nine of the reinsurance contract provides in relevant part: “If there is a lack of agreement with respect to the facts or the interpretation of applicable coverage, [Industrial Risk] shall proceed to adjust the loss with [Monsanto]. If [Hartford Steam Boiler] shall take exception to such loss adjustment, it shall be adjudicated by a Boiler and Machinery Sub-Committee of [Industrial Risk’s] Standing Loss Committee.” The terms of article nine provide Hartford Steam Boiler with the right to dispute the adjustment between Industrial Risk and Monsanto. As a result of the incorporation of article nine into the definition of the phase III arbitration, Hartford Steam Boiler reserved the right to dispute the loss adjustment between Industrial Risk and Monsanto. The incoiporation of article nine into the definition of the phase III arbitration in the settlement agreement further demonstrates that the parties intended the phase III arbitration to be a means for Hartford Steam Boiler to dispute Industrial Risk’s adjustment of the Monsanto loss, including the phase I arbitration.

An examination of the settlement agreement as a whole, specifically its definition of the phase III arbitration and its incorporation of article nine of the reinsurance contract, indicates that the submission asked the arbitration panel to determine the amount of the Monsanto loss for which Hartford Steam Boiler was responsible under its contract of reinsurance with Industrial Risk. In its award, the arbitration panel determined that “[t]he loss that [Industrial Risk] was required to pay to Monsanto Company is reinsured to the extent of [$22 million] under the reinsurance agreement between [Industrial Risk] and [Hartford Steam Boiler].” Consequently, the arbitration panel’s award clearly conformed to the unrestricted submission. We conclude, therefore, that the trial court properly confirmed the award of the arbitration panel.

The judgment is affirmed.

In this opinion the other justices concurred.

       Industrial Risk appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       As noted by the trial court in its memorandum of decision, in addition to the all risk policy Monsanto had with Industrial Risk, Monsanto also had all risk insurance policies with three other insurers that specifically excluded boiler and machinery losses from the scope of coverage afforded thereunder.

       Article nine of the reinsurance agreement provides: “A. If there is a lack of agreement with respect to the facts or the interpretation of applicable coverage, [Industrial Risk] shall proceed to adjust the loss with [Monsanto]. If [Hartford Steam Boiler] shall take exception to such loss adjustment, it shall be adjudicated by a Boiler and Machinery Sub-Committee of [Industrial Risk’s] Standing Loss Committee.
      “B. [Industrial Risk’s] Boiler and Machinery Loss Sub-Committee shall be appointed by [Industrial Risk’s] Standing Loss Committee and shall consist of five members, two of whom shall be representatives of [Industrial Risk] Members which do not maintain inspection service for boiler and machinery insurance; and two of whom shall be representatives of [Industrial Risk] Members which maintain inspection service for boiler and machinery insurance; the fifth member shall be a representative of the reinsurer [Hartford Steam Boiler] involved in the loss.”

       General Statutes § 52-417 provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       General Statutes § 52^118 provides: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators. Notwithstanding the time within which the award is required to be rendered, if an award issued pursuant to a grievance taken under a collective bargaining agreement is vacated the court or judge shall direct a rehearing unless either party affirmatively pleads and the court or judge determines that there is no issue in dispute.
      “(c) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the State Board of Mediation and Arbitration shall notify said board and the Attorney General, in writing, of such filing within five days of the date of filing.”

       General Statutes § 52-419 provides: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.
      “(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”

       The settlement agreement provides in relevant part: “1. . . . (c) The term 'Phase III Arbitration’ shall mean a separate arbitration between [Hartford Steam Boiler] and [Industrial Risk] pursuant to ARTICLE 9 of the reinsurance agreement between Factory Insurance Association, [Industrial Risk’s] predecessor in interest, and [Hartford Steam Boiler], executed by Factory Insurance Association on March 25, 1975, and by [Hartford Steam Boiler] on April 8, 1975. The sole purpose of this arbitration will be to determine whether any loss which [Industrial Risk] is required to pay as a result of the decision in the Phase I Arbitration is reinsured under the contract of reinsurance as identified by the Phase II Arbitration.
      “2. . . . (c) Within 45 days after a final decision in the Phase II Arbitration, the Phase III Arbitration panel shall have its initial meeting. No individual who is a member of the Phase II Arbitration panel may be a member of the Phase III Arbitration panel. Both [Industrial Risk] and [Hartford Steam Boiler] may call witnesses during the Phase III Arbitration, and witnesses can be questioned by either side. The sole issue to be adjudicated in the Phase III Arbitration is whether any loss which [Industrial Risk] is required to pay as a result of the decision in the Phase I Arbitration is reinsured under the contract of reinsurance as identified by the Phase II Arbitration.”

       See footnote 5 of this opinion. In its brief, Industrial Risk divided its second claim into two separate claims. Industrial Risk briefed its claim that the award does not conform to the submission separately from its contention that the arbitration panel exceeded the scope of its authority by determining what portion of the Monsanto loss was a boiler and machinery loss and fixing that amount. Each claim, however, is simply a different aspect of the same argument, namely, that the trial court improperly confirmed the award because the arbitration panel exceeded the scope of its authority. We therefore will address these contentions as a single claim.

       The arbitration award provided in relevant part: “I. The loss that [Industrial Risk] was required to pay to Monsanto Company is reinsured to the extent of [$22 million] under the reinsurance agreement between [Industrial Risk] and [Hartford Steam Boiler].
      “II. [Hartford Steam Boiler] is awarded the sum of [$35,740.44] as costs resulting from the continuance of the Phase III hearing.”