author: MCDONALD, C. J.

text:
    STATE OF CONNECTICUT v. WILLIAM TAFT
    (SC 16305)
    McDonald, C. J., and Borden, Katz, Palmer and Sullivan, Js.

      Argued December 7, 2000
    officially released October 16, 2001

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).

       Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion was officially released, his continued participation on this panel is authorized by General Statutes § 51-198 (c).

        The listing of justices reflects their seniority status on this court, as of the date of oral argument.

   Opinion

MCDONALD, C. J.

The defendant, William Taft, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the trial court’s judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). We granted the defendant’s petition for certification to appeal limited to the following question: “Did the Appellate Court properly conclude that the trial court properly denied the defendant’s motion for a mistrial?” State v. Taft, 253 Conn. 909, 753 A.2d 942 (2000). The defendant claims that there are two grounds upon which his motion for a mistrial should have been granted: that it was improper for the trial court to admit evidence (1) of the defendant’s failure, after his arrest, to contact his cousin; and (2) of the defendant’s disclosure that he did not contact his cousin on the advice of his counsel. We reject the defendant’s claims and affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. “On October 19, 1994, Ernest Herold drove to the Dunbar Cafe in New Haven with two friends. Herold parked his car behind the bar and proceeded to the front of the bar, where he began talking with the owner of the bar, Robert Williams. Herold then observed a tan Lincoln being parked in front of the bar. Three men exited the vehicle, walked to the bar entrance and began talking with Williams. The three men were Andre Provite, who is the defendant’s cousin, Phil Young and the defendant.

“The three men entered the bar and Herold followed shortly thereafter. Herold ordered a beer and watched the defendant, Williams and another man playing poker. After the card game, Herold heard the defendant ask Williams for money, which Williams refused. Herold then approached the bar, and the defendant turned toward him and asked Williams whether Herold was his nephew or bodyguard or had some other relation to him. Herold then left the bar. He walked to a nearby after-hours club, entered it briefly and decided to leave. Herold then headed toward his car to go home.

“As he approached the Dunbar Cafe, Herold saw the defendant, Provite, Young and two other men standing together near the entrance to the bar. As Herold passed by the group, he heard the defendant say to one of the men: ‘What the fuck is this? Who the fuck is this guy?’ Herold responded: ‘Why you keep asking who I am? Who are you to keep asking who I am? What is your problem?’ The defendant then told Herold, T will show you,’ and pulled out a chrome-colored pistol, which he pointed at Herold. Herold then turned to run, heard a gunshot and fell to the ground with a head wound. The bullet penetrated the back of his head, shattered his jaw and exited near- his left cheek. Herold was then rushed to a hospital.” State v. Taft, 57 Conn. App. 19, 20-21, 746 A.2d 813 (2000).

“The defendant fled the scene with Provite and Young and, subsequently, fled the state. He was apprehended in July, 1995, in Kansas City, Missouri, and was brought back to Connecticut to face criminal charges pertaining to these events.” Id., 21.

At the trial, Provite testified for the defense that, although he had been at the Dunbar Cafe, he was in his car at the time of the shooting and did not witness it. Provite testified that moments after he heard a shot being fired, he saw the defendant, who was not carrying a gun, approach Provite’s car.

Provite’s testimony was impeached by a tape-recorded statement that Provite had given to the police the day after the shooting. In that statement, Provite said that the defendant had shot Herold and that he had seen Herold fall to the ground, with the defendant standing over him holding a gun. Provite also stated that he had driven the defendant from the scene because he was afraid that, if he did not, the defendant would shoot him.

The defendant later testified in his own defense that an unidentified person had purchased drugs from Her-old and then stood behind Herold and shot him in the head. He also testified that he left the scene with Provite because he had been so disturbed by the shooting.

On cross-examination, the state’s attorney attempted to discredit the defendant’s testimony by asking the defendant why he did not contact Provite, his cousin, subsequent to his arrest. Both the defendant and Provite had testified that they had not spoken with each other after the defendant’s arrest. The defendant offered the following response: “No. Why I’m going to call them and tell them something for something I didn’t do.” In response to a later question about why he did not contact his cousin, the defendant replied: “I wouldn’t call them and tell or put no words in his mouth.” The defendant later testified, “First of all, I am not going to involve people in something I know I haven’t done.”

On redirect examination, the defendant testified that he had been instructed by his trial attorney not to talk to Provite or anyone “about the case.” The following exchange took place between the defendant and his attorney. Question: “Didn’t I tell you I didn’t want you talking to [Provite] about this case?” Answer: “Yes.” Question: “And I didn’t want you to talk to anybody about the case, right?” Answer: “Right.” The state’s attorney later elicited testimony from the defendant that Connecticut defense counsel did not represent the defendant, and did not so instruct him, until approximately two months after his arrest. See id., 23. The defendant had been arrested in Missouri in July, 1995, and his trial attorney did not enter her appearance until September 27, 1995, at the defendant’s arraignment in Connecticut.

Following this testimony, the defendant moved for a mistrial, claiming that the state’s questions concerning his postarrest silence were improper. He also moved to strike the testimony. The trial court denied both motions. The trial court reasoned that the state’s attorney’s line of questioning was proper because it was relevant to the credibility of the defendant and Provite and had nothing to do with the defendant’s constitutional right to remain silent. Id., 23-24. The trial court thereafter twice instructed the jury that “whenever anyone does not communicate with someone on the advice of counsel, it is not a negative factor at all,” and that, if the jury found that the defendant did not contact Provite on the advice of counsel, the jury should “draw no unfavorable inference” from that circumstance. This appeal followed.

The standard for review of an action upon a motion for a mistrial is well established. “While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . State v. Wooten, [227 Conn. 677, 693-94, 631 A.2d 271 (1993)]. On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972).The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 836-37, 661 A.2d 539 (1995). “The decision whether to grant a mistrial is within the sound discretion of the trial court.” State v. Correa, 241 Conn. 322, 351, 696 A.2d 944 (1997); State v. Day, supra, 835; see Practice Book § 42-43.

The defendant claims that the admission of the evidence violated his right to silence as enunciated in State v. Ferrone, 97 Conn. 258, 116 A. 336 (1922). We disagree. In Ferrone, this court held that “when the accused is in custody, our law accords him the right to reply to question or statement, or to remain silent. [The accused’s] silence under such circumstances cannot be laid in evidence against him.” Id., 266. In Ferrone, the state had offered the defendant’s silence in the face of accusatory police questions as an adoptive admission.

Ferrone concerns the doctrine of adoptive admissions under principles of the law of evidence. State v. Leecan, 198 Conn. 517, 526, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). As we said in Leecan, ”[w]hen a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part.” (Internal quotation marks omitted.) Id., 522. We went on in Leecan to hold that “[b]ecause many persons . . . are aware of their right to remain silent and are frequently advised by counsel to exercise that right when arrested, the custodial setting is simply not an occasion when the circumstances naturally call upon a defendant to speak or to reply to police inquiries. Accordingly, there is ordinarily no reasonable basis to infer that a defendant’s silence in such a situation indicates that he acknowledges the truth of some assertion implicit in a question asked by a police officer.” Id., 526.

Other cases the defendant relies upon also concern the doctrine of adoptive admissions by silence. In State v. Morrill, 197 Conn. 507, 534-36, 498 A.2d 76 (1985), the defendant was in police custody when he was interviewed by a state police officer. The defendant was silent in response to the officer’s questions as to whether the defendant had murdered the victim, and we held that the state improperly had attempted to introduce evidence of the defendant’s silence as an adoptive admission. Id., 530-31. In State v. Zeko, 177 Conn. 545, 547-48, 418 A.2d 917 (1979), cited by the defendant as well, we held that a police officer improperly had testified as to the defendant’s silence after being advised of his rights and accused of the crime.

The defendant also relies on State v. Bates, 140 Conn. 326, 328, 99 A.2d 133 (1953), in which we held in that it was improper for the state to use silence in the face of an accusation by a complaining witness as an adoptive admission by silence. In Bates, we based our decision on our conclusion that the defendant’s silence was not an adoptive admission because, under the circumstances, the accusation did not naturally call for a reply by the defendant. Id., 331.

In the present case, although the defendant was in custody, he was not silent in the face of accusatory police interrogation. The defendant’s failure to contact Provite had nothing to do with any custodial interrogation by a police officer or the defendant’s silence in the face of accusations. The testimony did not permit the jury to use the defendant’s right to silence as an adoptive admission in contravention of Ferrone in any manner.

The defendant also cites State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977). In Cook, the defendant made a claim under Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), which held that postarrest silence is not admissible in the wake of a defendant’s having been given Miranda warnings. In Cook, we held that the state improperly had cross-examined the defendant about his failure to tell the police of his alibi when he was arrested. We did so because, even in the absence of Miranda warnings, “many arrested persons know, without benefit of warnings, that silence is usually golden.” (Internal quotation marks omitted.) State v. Cook, supra, 77. We subsequently modified Cook in view of Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982), to apply Doyle only where the defendant had “received Miranda warnings.” State v. Leecan, supra, 198 Conn. 526. Cook does not apply in the present case because the defendant makes no claim under Doyle.

Furthermore, after denying the defendant’s motions for a mistrial and to strike the testimony, the trial court gave an instruction to the jury that this evidence was to be used only to assess the credibility of the defendant and Provite. The trial judge repeated that instruction at the conclusion of the trial, and we may presume that the jury followed this instruction. See Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 37, 761 A.2d 1268 (2000); State v. Gray, 221 Conn. 713, 730, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987).

We also reject the defendant’s claim that disclosure of the fact that he did not contact Provite on the advice of his counsel was grounds for a mistrial. First, we note that the defendant’s attorney made a decision to elicit from the defendant on redirect examination the fact that she had instructed him not to talk “about the case” with anyone. The law is clear that “voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege.” (Internal quotation marks omitted.) State v. Turner, 252 Conn. 714, 733, 751 A.2d 372 (2000). This disclosure therefore did not violate the attorney-client privilege.

Second, we note that the defendant’s attorney’s instructions did not fully explain the defendant’s conduct. The jury still could assess the defendant’s credibility on the basis of his two explanations for his conduct: his initial unwillingness to involve his cousin, and, later, his attorney’s instructions. Only after the attorney’s instructions were given could the defendant’s conduct be based on those instructions. The jury still reasonably could have considered the defendant’s earlier conduct regarding Provite as impeachment evidence.

The attorney’s advice that the defendant should not talk about the case with anyone, including Provite, was broader than advice to remain silent about the defendant’s own involvement in the shooting. Advice, if taken that way, that a defendant should not seek out and approach favorable eyewitnesses of whom he is aware, does not impact the defendant’s right to remain silent to avoid self-incrimination. This case does not involve an attempt to turn a defendant’s silence into self-incriminating testimony against the defendant such as an adoptive admission of an accusation. This case, rather, concerns the defendant’s failure to contact a known eyewitness, his cousin, to ask the cousin to help him. That conduct by the defendant could be considered as evidence of the fact that he knew that his cousin would not exonerate him. See 2 J. Wigmore, Evidence (4th Ed. 1979) § 278. Such conduct is admissible as a discrediting circumstance, as would be flight or similar conduct. Id., § 267.

It is well recognized that the rule against self-incrimination applies to testimonial or communicative acts and not to conduct that is noncommunicative in nature. See Schmerber v. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The testimony concerned the defendant’s nonassertive or nontestimonial act of failure to contact Provite. There was no suggestion that this conduct was self-incriminatory and testimonial in nature, the basis of the constitutional rule respecting a defendant’s right to silence. We do not equate this to the defendant’s becoming a witness and giving testimony against himself.

The defendant also relies on State v. Bryant, 202 Conn. 676, 523 A.2d 451 (1987), to support his claim that the motion for mistrial should have been granted. We do not agree. Bryant established a four part foundational requirement for the introduction of the silence of an alibi witness to impeach that alibi witness. Id., 705. Bryant concerned alibi witnesses’ failure, earlier on, to contact law enforcement officers. Id., 703. We are not persuaded that Bryant applies to the circumstances of this case.

The defendant argued at trial that the state’s attorney did not have a good faith basis to pursue the questions and failed to lay a necessary foundation that the defendant could have telephoned Provite from jail. The state responded that Provite had testified that he received no telephone call or letter from the defendant after the defendant’s arrest. The state also pointed out that the defendant had testified that he knew that his arrest was for the shooting to which Provite was an eyewitness. A proper foundation was established to question the defendant as to his conduct in not contacting Provite by any means after his arrest on assault charges.

The defendant also argues that State v. Turner, supra, 252 Conn. 737-38, demands that the Bryant standards be applied to a defendant’s testimony. Turner does not stand for that principle. In Turner, this court concluded that there was a proper foundation to cross-examine the defendant about his late disclosure of alibi. Id. Nowhere in Turner did this court hold that Bryant must be applied to the defendant’s testimony.

The defendant relies on State v. Correa, supra, 241 Conn. 351, citing Bryant, for the proposition that the state was required to establish a foundation outside the presence of the jury in this case before questioning the defendant about his failure to contact Provite. Correa, however, dealt with the question asked by the state’s attorney of the defendant’s brother about the brother’s hatred of drugs. Id., 349. The state’s attorney asked this improper question in an attempt to discredit the defendant’s explanation to police as to the origin of cocaine found in the apartment shared by the defendant and his brother. Id. When the defendant objected to this question, the state’s attorney argued, in the presence of the jury, that, if the defendant’s explanation to the police that he had obtained the cocaine without killing the victims was truthful, the defendant would have provided that same explanation to his brother, whom the defendant knew hated illegal drugs. Id. We stated that that line of questioning should have been pursued outside the presence of the jury or at a bench conference in keeping with the state’s attorney’s obligation to conduct himself according to the high standards of that office. Id., 351.

We are not persuaded that a hearing outside the jury’s presence was required in this case. In the absence of a prejudicial question such as in Correa, or an adoptive admission; see id., 351 n.20; such a requirement would unnecessarily impede a trial. There was, moreover, a sufficient foundation to question the defendant concerning Provite.

Furthermore, the trial court twice charged the jury to the effect that the defendant’s failure to contact Provite, if based upon his attorney’s advice, was to have no “negative” effect. We have held that such an instruction may cure the absence of a bench conference. See State v. Correa, supra, 241 Conn. 351-52.

For these reasons, we conclude that the trial court properly denied the defendant’s motion for a mistrial and that the Appellate Court properly affirmed that ruling.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon one’s person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same . . . .”

       Herold survived his wounds.

       Practice Book § 42-43 provides in relevant part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . .”

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

       Practice Book § 40-21 provides: “Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file within twenty days, or at such other time as the judicial authority may direct, a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi.”


source: Caselaw Access Project

author: SULLIVAN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ARTHUR WELWOOD
    (SC 16377)
    Sullivan, C. J., and Katz, Palmer, Vertefeuille and Ford, Js.
    Argued May 25
    officially released October 16, 2001

      John M. Massameno, senior assistant state’s attorney, with whom, on the brief was James E. Thomas, state’s attorney, for the appellant (state).

      Jon L. Schoenhom, for the appellee (defendant).

      Shelley R. Sadin filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
   Opinion

SULLIVAN, C. J.

The central issue in this appeal is whether a sentencing court has subject matter jurisdiction to impose conditions of probation that remain in effect after the expiration of the probation. The defendant, Arthur Welwood, was charged with sexual assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-70 three counts of sexual assault in the fourth degree in violation of General Statutes (Rev. to 1987) § 53a-73a, and two counts of risk of injury to or impairing the morals of a child in violation of General Statutes (Rev. to 1987) § 53-21, in connection with a series of incidents that took place between 1988 and 1990. The alleged victims of the crimes were the defendant’s two stepdaughters.

On July 12, 1991, the defendant entered into a plea agreement with the state and pleaded guilty to two counts of risk of injury to a child, and the state agreed to nolle the remaining charges. On September 18, 1991, the defendant was sentenced to ten years incarceration, execution suspended, and five years of probation with specific conditions. Pursuant to the conditions of probation, the defendant was to: (1) have no written, oral or physical contact with the minor victims, until they reached the age of twenty-one, unless, after a full hearing, a criminal judge ordered contact for therapeutic purposes only; (2) pay $7000 toward the past therapy bills of his natural daughter; (3) pay unreimbursed expenses for his natural daughter to an annual maximum of $2500 for a period of five years; (4) have no written, oral or physical contact with his natural daughter during probation unless she requested contact; (5) pay all unreimbursed medical and psychological expenses of the two victims until they reached the age of eighteen years; (6) obtain treatment through special services and abide by its conditions; (7) not reside at the family home, even if the two victims were not present there; (8) have no unsupervised contact with any other minor child under the age of sixteen years; (9) raise the issue of his alleged sexual abuse of his natural daughter during his treatment; and (10) enter into a written agreement concerning contact with the victims and payment of fees for their psychological care. The trial court noted that any violation of the defendant’s treatment contract would be grounds for termination of treatment and referral back to the probation department. In accordance with the last condition of probation, the defendant signed an agreement that provided in relevant part: “1.1 will have no contact of any kind, direct or indirect with the two natural children of my current wife . . . who now are twelve years of age and eight years of age, until each of them reaches her twenty-first birthday . . . .”

Between October, 1996, and June, 1997, certain witnesses saw the defendant with one or both of his stepdaughters, neither of whom had yet reached age twenty-one. The witnesses gave statements to the state’s attorney’s office. In June, 1997, one year after the defendant’s period of probation had expired without incident, the state filed a motion for contempt proceedings to enforce the plea agreement incorporated in the judgment. The trial court, Damiani, J., granted the motion on September 13, 1997, stating: “This court finds that the plea agreement was knowingly and voluntarily entered into by the defendant. Further, said agreement was incorporated into the court’s judgment and sentence and is enforceable beyond the term of probation. Hence, criminal contempt proceedings may be initiated against [the defendant].” The state then filed an information alleging thirteen counts of criminal contempt by the defendant in violation of what were then §§ 7G (4) and 7M of the Practice Book. Judge Damiani then signed a warrant for the defendant’s arrest.

Following his arrest, the defendant filed a motion to dismiss, claiming that the trial court lacked subject matter jurisdiction over postprobation conduct. The trial court, Maloney, J., concluded that the sentencing court had issued two distinct orders: (1) that the defendant refrain from contacting the victims until they reached age twenty-one; and (2) that the defendant enter into a written agreement with the state that he have no such contact. The trial court further determined that, “[i]n the absence of a contract or some agreement by the defendant, it is clear that the court had no power to enter a judgment imposing restrictions on the defendant’s activities after the expiration of his probation,” where the period of probation to which the defendant had been sentenced was the statutory maximum. General Statutes (Rev. to 1991) §§ 53a-29 and 53a-30. The trial court also concluded that the defendant could not agree to waive objections to the court’s continuing jurisdiction. State v. Jones, 166 Conn. 620, 627, 353 A.2d 764 (1974) (jurisdiction “is a matter of law and can neither be waived nor conferred by consent of the accused”). Accordingly, the trial court granted the defendant’s motion to dismiss.

On September 13, 1999, the state appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.* The state claims that for a variety of reasons, the trial court improperly dismissed the contempt proceedings. First, the state claims that the defendant was barred from challenging, in the contempt proceeding, the propriety of the original judgment, because the trial court had both personal jurisdiction over the defendant and subject matter jurisdiction over the criminal case, the no contact order was not “transparently invalid,” and the defendant did not appeal the original sentence. Second, the state claims that the substantial interest in the finality of judgments militates against a collateral attack on the judgment nearly six years after it was rendered, notwithstanding the fact that the attack was premised on jurisdictional grounds. Third, the state contends that principles of res judicata and collateral estoppel preclude relitigation of the validity of both the original judgment of conviction and the state’s postjudgment request for a criminal contempt referral, neither of which the defendant appealed. Fourth, the state maintains that the trial court has the power to render and enforce postprobation terms of plea agreements because: (1) Connecticut courts favor plea agreements that are negotiated fairly and are not against public policy; (2) Connecticut courts have determined that both parties to a plea agreement are entitled to the enforcement of its terms and that the authority to enforce such agreements lies with the judiciary; (3) such power flows from the court’s constitutional and statutory jurisdiction; and (4) parties to plea agreements who, like the defendant, have reaped substantial benefits under the agreements should be estopped from attacking those agreements. Fifth, the state claims that the doctrine of separation of powers is not implicated here because: (1) the enforcement of a plea agreement is not “punishment” beyond that authorized by the legislature; (2) postprobationary terms of a plea agreement do not constitute an extension of probation beyond that authorized by the legislature; and (3) once a plea agreement has been incorporated into a court judgment, the court has the inherent power to enforce its decree by way of a criminal contempt action. We conclude that the sentencing court exceeded its jurisdiction by imposing probationary conditions that continued beyond the maximum period of probation. Accordingly, we affirm the judgment of the trial court dismissing the criminal contempt action against the defendant for lack of subject matter jurisdiction.

As a preliminary matter, we set forth the standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn. App. 134, 137, 779 A.2d 817 (2001).

The defendant seeks to attack collaterally two of the conditions of probation imposed by the sentencing court, namely, that the defendant have no contact with the victims until they reach age twenty-one, and that the defendant enter into a written agreement with the state to that effect. The legislature, by statute, has limited the term of probation that the sentencing court may impose to five years. The sentencing court recognized that its jurisdiction over the defendant, and, therefore, its ability to enforce the conditions of probation, ended after the five year period of probation. Accordingly, rather than rely on the no-contact condition of probation, which it would be unable to enforce once probation had ended, the sentencing court also required that the defendant enter into the written agreement with the state, which the state could seek to enforce after the term of probation, and the court’s jurisdiction, had ended. We agree with the trial court that the sentencing court had no jurisdiction to impose the condition or to require the defendant to enter into such an agreement.

In reaching its decision, the trial court relied on Kennedy v. Kennedy, 177 Conn. 47, 411 A.2d 25 (1979). In that case, the relevant statute authorized court-ordered support for minor children, i.e., children under eighteen years of age. Id., 49. The parties had entered into an agreement, however, wherein one of the parties agreed to pay support until the child turned twenty-one. Id., 48. After the child turned eighteen, that party ceased paying support. Id., 49. This court held that “parties to an agreement relating to support and education of children cannot impose jurisdiction on the court beyond that granted by the statutes.” Id., 52. Furthermore, we concluded that “any order beyond [the age of majority] is of no force and effect as a court order.” Id.

The trial court also relied on State v. Yurch, 37 Conn. App. 72, 654 A.2d 1246, appeal dismissed, 235 Conn. 469, 667 A.2d 797 (1995). In that case, the defendant was found to have violated his probation. At sentencing for that violation, the sentencing court imposed a term of probation that, combined with the period of probation that the defendant already had served under the original sentence, exceeded the statutory limit. Id., 83-84. The Appellate Court concluded that the sentence violated General Statutes § 53a-30 (c). Id., 84.

Relying on Kennedy and Yurch, the trial court in the present case concluded that, “the state’s use of the 1991 judgment as the basis of the present contempt proceeding is not available because the court never had the power under the applicable statutes to order what the parties’ agreement provided; namely, that the defendant would continue to avoid contact with the children after the expiration of his probation.” It also concluded that “[a]ny such order would have the effect, in essence, of extending the term of probation” authorized by statute. We agree with the reasoning of the trial court. Because the sentencing court had no jurisdiction to impose conditions beyond the maximum term of five year s of probation, those conditions were void ab initio. See Davenport v. Quinn, 53 Conn. App. 282, 293, 730 A.2d 1184 (1999) (judgment that exceeds jurisdiction is void ab initio and is subject to collateral attack). The trial court, therefore, had no subject matter jurisdiction to entertain the state’s motion for a criminal contempt proceeding based on the violation of those conditions after the expiration of the five years of probation.

We note that, if the sentencing court’s jurisdiction were not limited in this way, then criminal defendants seeking to enter into a plea bargain could agree to greater restrictions on their liberty than the legislature authorized, in order to avoid going to trial. The state’s bargaining position could eclipse that of defendants, resulting in excessive periods of probation being imposed on defendants desperate to avoid the possibility of incarceration resulting from a trial and judgment of conviction.

Furthermore, we reject the state’s alternative claim that, by signing the agreement, the defendant waived any objection to subject matter jurisdiction. A criminal defendant may not waive the statutory limits on the court’s subject matter jurisdiction in a plea agreement. See State v. Vincent, 194 Conn. 198, 203 n.7, 479 A.2d 237 (1984) (“no party can waive a defect in the court’s subject matter jurisdiction”); see also State v. Jones, supra, 166 Conn. 627 (jurisdiction “is a matter of law and can neither be waived nor conferred by consent of the accused”).

Finally, we note that whether the state may enforce the agreement in a civil contract action, rather than in a contempt proceeding, is not at issue in the present case. See State v. Garvin, 242 Conn. 296, 314, 699 A.2d 921 (1997) (plea bargains governed by contract principles). Accordingly, we need not decide whether the contract is enforceable, or what an appropriate remedy for breach of the agreement might be.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       General Statutes (Rev. to 1987) § 53a-73a provides: “(a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (2) such person subjects another person to sexual contact without such other person’s consent, or (3) such person engages in sexual contact with an animal or dead body.
      “(b) Sexual assault in the fourth degree is a class A misdemeanor.”

       General Statutes (Rev. to 1987) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The terms of the no contact agreement also contained certain limited exceptions: “2. Contact between these two children and me may occur at the request of the therapist for the children provided:
      “(a) a motion is brought by me in the criminal division of the Superior Court in Hartford seeking such contact;
      “(b) a hearing is held on such request by a judge of the criminal division of the Superior Court in Hartford, and such contact shall be permitted only if the court concludes that such contact is in the best therapeutic interests of such children;
      “(c) the court shall, upon the request of either the state’s attorney or me, appoint an independent psychological evaluator to render a report to the court on the question whether such contact will be in the best interests of the children and such evaluator shall be available at such hearing to address his report; and
      “(d) in no event shall such contact with such children occur outside of such therapist’s presence and office.
      “3.1 agree to pay for all nonreimbursed expenses for any psychological care and treatment for such children as deemed appropriate by the criminal division of the Superior Court until each child attains her eighteenth birthday.
      “4.1 agree that the provisions of this agreement may be enforced by the state in the criminal division of the Superior Court in Hartford until they expire by their terms.”

       At. the time the state filed the information charging the defendant with criminal contempt, Practice Book § 7G provided in relevant part: “The judicial authority may punish by fine or imprisonment or both. ... (4) Any person disobeying in the course of a civil, family, juvenile or criminal proceeding any order of a judicial authority.” Prior to July 29, 1997, when it was temporarily renumbered as § 7G, this rule had been codified as § 986 of the 1978-1997 Practice Book. It was recodified in 1998 as § 1-15 and was repealed effective January 1, 2000.

       At the time the state filed the information charging the defendant with criminal contempt, Practice Book § 7M provided in relevant part: “The judgment of contempt shall be prepared within a reasonable time by the clerk and shall be signed by the judicial authority and entered on the record.
      . . .” Prior to July 29, 1997, when it was temporarily renumbered as § 7M, this rule had been codified as § 994 of the 1978-1997 Practice Book. It, was recodified as § 1-21 in 1998 and amended, in ways not significant for purposes of this appeal, effective January 1, 2000.

       The defendant also claimed that: (1) a conviction would violate the state and federal constitutional prohibitions against double jeopardy; (2) the prosecution of the contempt charges would abridge his right to associate with his wife and stepchildren; (3) the arrest warrant was not signed by a neutral and detached magistrate; (4) the prosecution of the contempt charges would violate the statute of limitations; and (5) the criminal contempt statute is void for vagueness. The trial court rejected these claims. Last, the defendant. claimed that the statute violated the principle of separation of powers. The trial court found this last claim to be subsumed within the defendant’s claim that the court lacked subject matter jurisdiction over the defendant’s postprobation conduct.

       General Statutes (Rev. to 1991) § 53a-29 provides in relevant part: “(a) The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice. . . .
      “(c) . . . When a person is sentenced to a period of probation the court shall impose the period authorized by subsection (d) and may impose any conditions authorized by said section 53a-30. . . .
      “(d) The period of probation or conditional discharge, unless terminated sooner as hereinafter provided, shall be as follows: (1) For a felony, not more than five years . . . .”

       General Statutes (Rev. to 1991) § 53a-30 provides in relevant part: “(a) When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant ... (2) undergo medical or psychiatric treatment and remain in a specified institution, when required for that purpose; (3) support his dependents and meet other family obligations; (4) make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance ... (6) post a bond or other security for the performance of any or all conditions imposed; (7) refrain from violating any criminal law of the United States, this state or any other state . . . (12) satisfy any other conditions reasonably related to his rehabilitation. . . .
      “(b) When a defendant has been sentenced to a period of probation, the office of adult probation may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.
      “(c) At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.
      “(d) The period of participation in an alternate incarceration program, unless terminated sooner, shall not exceed the period of probation authorized by section 53a-29 or two years, whichever is less.”

       The trial court noted that it was “not ruling on whether or not the contract between the state and the defendant is separately enforceable or by whom or what the appropriate remedy for breach might be.”

       Practice Book § 65-1 provides: “When, pursuant to General Statutes § 51-199 (c), the supreme court (1) transfers to itself a cause in the appellate court, or (2) transfers a cause or a class of causes from itself to the appellate court, the appellate clerk shall notify all parties and the clerk of the trial court that the appeal has been transferred. A case so transferred shall be entered upon the docket of the court to which it has been transferred. There shall be no fee on such transfer. The appellate clerk may require the parties to take such steps as may be necessary to make the appeal conform to the rules of the court to which it has been transferred, for example, supply the court with additional copies of the record and the briefs.”

       The defendant claims that the trial court properly granted his motion to dismiss on jurisdictional grounds. The defendant also raises the following alternate grounds for upholding the judgment of the trial court: If the trial court improperly dismissed the contempt charges, its judgment nevertheless should be affirmed on the grounds that: (1) the no contact provision of the plea agreement, which extended beyond the maximum term of probation, was not incorporated into the 1991 judgment of conviction and, therefore, any violation of the condition could not form the basis of a contempt charge; (2) the trial court, Damiani, J., was not acting as a neutral and detached magistrate in issuing the arrest warrant for nonsummary criminal contempt, given that the same judge had presided over the original criminal case, and, therefore, it was that judgment that the defendant had allegedly violated; and (3) the defendant’s due process rights were violated under the “void for vagueness” doctrine because he had no notice that his postprobation actions would subject him to criminal contempt proceedings and there were no statutory guidelines to govern law enforcement in these circumstances. We do not reach any of the defendant’s alternative claims.

       See footnotes 8 and 9 of this opinion.

       In response to the state’s assertion that the defendant would be required to pay all nonreimbursed psychological treatment expenses for the victims until they reached age eighteen, the trial court, Damiani, J., responded, “Is [the defendant] going to sign an agreement to that effect? Because once probation ends, my jurisdiction ends over him.” The state answered, “Yes, Your Honor. And there is reference to a specific written agreement later as a condition of probation.” The state further stated that “the seventh condition, Your Honor, is that the defendant will enter into a written agreement with the state’s attorney to abide by . . . both the contact provision concerning [the victims] that extends beyond the period of probation and also the assumption of responsibility for the unreimbursed psychological treatment expenses for [the victims until they reach age eighteen] . . . .”

       General Statutes § 53a.-30 (c) provides in relevant part: “At any time during the period of probation or conditional discharge, after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. . .

       Although we conclude that the probation conditions were void ab initio, we do not decide in this case whether the agreement signed by the defendant was enforceable in a civil action under principles of contract law.


author: PALMER, J.

text:
    LAURENCE SCANLON ET AL. v. CONNECTICUT LIGHT AND POWER COMPANY ET AL.
    (SC 16466)
    Borden, Norcott, Katz, Palmer and Zarella, Js.

      Argued March 21
    officially released October 16, 2001

      Brian T. Henebry, with whom, on the brief, was Richard L. Street, for the appellant (named defendant).

      Kathryn Calibey, with whom were Andrew Groher and Paul M. Iannaccone, for the appellees (plaintiffs).
   Opinion

PALMER, J.

This appeal arises out of an action brought by the plaintiffs, Laurence Scanlon and Louise Scanlon, against the named defendant, Connecticut Light and Power Company (defendant), among others, alleging that the defendant’s negligent installation and maintenance of certain electrical equipment caused harm to the plaintiffs’ dairy herd, thereby causing economic loss to the plaintiffs’ dairy business and severe emotional distress to the plaintiffs themselves. A jury returned a verdict in favor of the plaintiffs and awarded them $601,000 in economic damages for their business losses and $300,000 in noneconomic damages for then-emotional distress.

On appeal, the defendant claims that the trial court improperly instructed the jury on the plaintiffs’ negligent infliction of emotional distress claim. The defendant further contends that it is entitled to a new trial on that claim and on the plaintiffs’ claim for economic damages arising from the business losses that they had sustained as a result of the defendant’s negligence. We agree with the defendant that the trial court improperly instructed the jury on the plaintiffs’ emotional distress claim and, further, that that impropriety requires a new trial on that claim. We also conclude, however, that the trial court’s instructional error did not affect the jury’s verdict on the plaintiffs’ claim for economic damages and, therefore, we affirm the judgment of the trial court with respect to that claim.

The jury reasonably could have found the following facts. The plaintiffs began operating a dairy farm in Lebanon in 1976. At that time, the plaintiffs had approximately seventy dairy cows. In 1983 or early 1984, there was an increase in the incidence of infection and sickness among the cows, and the cows also started to exhibit unusual behavior, such as drinking out of mud puddles and drinking one another’s urine. At about the same time, the plaintiffs found it increasingly difficult to milk the cows due to their odd behavior and reluctance to eat grain. Consequently, milk production on the plaintiffs’ farm decreased significantly.

These problems continued through the early 1990s. In December, 1992, an expert hired by the plaintiffs discovered that stray voltage from the defendant’s equipment was being released onto the farm. The plaintiffs informed the defendant that, in their view, the stray voltage was the cause of the difficulties that they had been experiencing with their herd. The defendant thereupon made some modifications to its equipment that temporarily corrected the stray voltage problem. The herd’s milk production increased dramatically after these modifications were made.

The increase in productivity was temporary, however, and the health and productivity of the cows again began to deteriorate. This deterioration continued until 1994, when the defendant installed additional equipment to control permanently the stray voltage. The cows’ behavior, productivity and health all improved markedly after the defendant had installed this equipment. By that time, however, the herd had been so badly damaged by the stray voltage that the plaintiffs found it necessary to replace the herd.

The plaintiffs testified that their inability, over many years, to determine the cause of their cows’ bizarre behavior and chronic ailments, along with the consequent damage to their business, caused the plaintiffs serious emotional distress and severely strained their marriage. As the problems associated with the farm mounted, so, too, did the tension between the plaintiffs. Indeed, the plaintiffs’ emotional difficulties, which they attributed to the deterioration of their livestock and resulting damage to their business, caused the plaintiffs to seek marriage counseling and also resulted in a brief period of separation. The tension between the plaintiffs was greatly eased, however, once they identified the cause of their cows’ problems.

The plaintiffs commenced this action against the defendant, claiming that the defendant’s negligence in installing and maintaining its equipment resulted in the release of stray voltage onto the plaintiffs’ farm, thereby causing serious harm to the plaintiffs’ cows and causing the plaintiffs to suffer both economic and noneconomic damages. The plaintiffs’ claim for economic damages included, inter alia, lost income resulting from diminished milk production, the loss of livestock and veterinary costs. The plaintiffs sought noneconomic damages for the “severe psychological distress and emotional trauma” that they allegedly had suffered as a result of the defendant’s negligence.

The jury returned a verdict awarding the plaintiffs $601,000 in economic damages for the business losses that they had sustained as a consequence of the defendant’s negligence. The jury also awarded the plaintiffs $300,000 in noneconomic damages on their claim of negligent infliction of emotional distress. The defendant subsequently filed motions to set aside the verdict and for remittitur only with respect to the jury’s award of noneconomic damages for the plaintiffs’ negligent infliction of emotional distress claim. The trial court denied those motions and rendered judgment in accordance with the jury’s verdict, from which the defendant appealed.

On appeal, the defendant claims, inter alia, that: (1) the trial court improperly instructed the jury regarding the tort of negligent infliction of emotional distress; and (2) that instructional impropriety was harmful, thereby entitling the defendant to a new trial on that claim and on the plaintiffs’ claim that the defendant’s negligence had caused economic harm to the plaintiffs’ dairy business. We conclude that the defendant is entitled to a new trial, limited, however, to the plaintiffs’ claim of negligent infliction of emotional distress.

I

The defendant contends that the trial court improperly instructed the jury on the plaintiffs’ claim of negligent infliction of emotional distress. We agree.*

The following additional facts are necessary to our determination of this issue. Prior to the conclusion of the trial, the defendant submitted a request for an instruction that the plaintiffs could not recover on their claim of negligent infliction of emotional distress unless “[the defendant] or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress, and, from the facts known to it or its agents, knew or should have realized that this emotional distress, if caused, might result in illness or bodily harm.” Although the trial court instructed the jury generally with respect to damages awarded in connection with emotional distress claims, the court did not include the language that the defendant requested. Moreover, the court did not otherwise apprise the jury that the plaintiffs were not entitled to damages for emotional distress unless the plaintiffs established that the defendant knew or should have known that its conduct gave rise to an unreasonable risk of causing emotional distress that might result in illness or bodily harm.

Before addressing the defendant’s claim of instructional impropriety, we set forth the standards governing our review of that claim. “A request to charge [that] is relevant to the issues of [a] case and [that] is an accurate statement of the law must be given.” Wagner v. Clark Equipment Co., 243 Conn. 168, 187, 700 A.2d 38 (1997). However, “[i]nstructions to the jury need not be in the precise language of a request.” (Internal quotation marks omitted.) State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). Moreover, “jury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. ... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).

With these principles in mind, we turn to the merits of the defendant’s claim. In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978), we held that, in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” Id., 345. We repeatedly have endorsed this requirement of foreseeability. E.g., Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997); Barrett v. Danbury Hospital, 232 Conn. 242, 260, 654 A.2d 748 (1995); Kilduff v. Adams, Inc., 219 Conn. 314, 325, 593 A.2d 478 (1991); Maloney v. Conroy, 208 Conn. 392, 398, 545 A.2d 1059 (1988); Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986). As we previously have observed, “[t]his condition differs from the standard foreseeability of the risk of harm requirement for negligence liability generally in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery even [when] a breach of duty might otherwise be found . . . ,” Maloney v. Conroy, supra, 398.

As we have indicated; see footnote 12 of this opinion and accompanying text; the defendant sought an instruction informing the jury that the defendant “is not responsible for the plaintiffs’ emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emo tional distress, and, from the facts known to it or its agents, knew or should have realized that this emotional distress, if caused, might result in illness or bodily harm.” The defendant’s articulation of the applicable law in its request to charge constituted an accurate statement of what the plaintiffs were required to prove, under Montinieri, to recover damages in connection with their claim for negligent infliction of emotional distress. The trial court, therefore, was obligated to give the requested charge, either as sought or in substance. The court’s instructions, however, contained no such explanation. See footnote 13 of this opinion.

“It is axiomatic [however] that not every error is harmful. . . . [W]e have often stated that before a party is entitled to a new trial . . . he or she has the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) Rossi v. Stanback, 230 Conn. 175, 180, 644 A.2d 352 (1994). An instructional impropriety is harmful if it is likely that it affected the verdict. E.g., Remington v. Aetna Casualty & Surety Co., 240 Conn. 309, 316, 692 A.2d 399 (1997); see Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 145, 757 A.2d 516 (2000).

We agree with the defendant that the trial court’s failure to give the requested charge was harmful error. The rule that we formulated in Montinieri “essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the [defendant]. If such a fear were reasonable in light of the [defendant’s] conduct, the [defendant] should have realized that [its] conduct created an unreasonable risk of causing distress, and [it], therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the [defendant’s] conduct, the [defendant] would not have recognized that [its] conduct could

cause this distress and, therefore, [it] would not be liable.” Barrett v. Danbury Hospital, supra, 232 Conn. 261-62, citing Montinieri v. Southern New England Telephone Co., supra, 175 Conn. 341. In the absence of an instruction explaining this foreseeability requirement, the jury was inadequately informed regarding the “nature of the harm to be anticipated [by the defendant] as a prerequisite to recovery [by the plaintiffs] . . . .” Maloney v. Conroy, supra, 208 Conn. 398. In such circumstances, we cannot say that the trial court’s instruction “fairly presented] the [plaintiffs’ negligent infliction of emotional distress claim] to the jury in such a way that injustice [was] not done to [the defendant]

. . . .” (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 27. The defendant, therefore, has satisfied its burden of establishing that the trial court’s instructional impropriety was harmful, thereby entitling it to a new trial on the plaintiffs’ claim of negligent infliction of emotional distress.

II

The defendant asserts that, in light of our conclusion that a new trial is required on the plaintiffs’ negligent infliction of emotional distress claim, we also should order a new trial on the jury’s award of economic damages for the business losses that the plaintiffs had suffered as a result of the defendant’s negligence. The plaintiffs contend that, because these two claims are separate and distinct, any new trial should be limited to the issue of noneconomic damages awarded in connection with the plaintiffs’ claim of emotional distress. We agree with the plaintiffs.

“Ordinarily the reversal of a jury verdict requires a new trial of all the issues in the case.” DeLaurentis v. New Haven, 220 Conn. 225, 268, 597 A.2d 807 (1991). In other words, “[a]n order restricting the issues [of a new trial] is the exception, not the rule.” (Internal quotation marks omitted.) Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988). We have adopted that general rule in recognition of the fact that “the jury may have rendered a compromise verdict, that is, a verdict where[by] some of the jurors . . . conceded liability against their judgment, and some . . .reduced their estimate of the damages in order to secure an agreement of liability with their fellow jurors. . . . When a compromise verdict exists, a new trial confined to the single issues of damage will be a serious injustice to the [party seeking the new trial as] [h]e has never had the issue of liability determined by the conscientious conviction of all of the jury; and that he is entitled to have.” (Citation omitted; internal quotation marks omitted.) Id., 457. When, however, “the error as to one issue ... is separable from the general issues, the new trial may be limited to the error found, provided that such qualification or limitation does not work injustice to the other issues or the case as a whole. . . . But whe[n] the retrial of the single issue may affect the other issues to the prejudice of either party, the court will not exercise its discretion in limiting the new trial but will grant it de novo.” (Citation omitted; internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 332, 736 A.2d 889 (1999); accord DeLaurentis v. New Haven, supra, 268. Thus, “[w]henever the issues of damages and liability are closely interwoven, fairness dictates that a new trial must include both the issue of damages and [the issue of] liability.” Harewood v. Carter, 63 Conn. App. 199, 206, 772 A.2d 764 (2001).

As the Appellate Court recently has observed, we generally have required a new trial on all contested issues only in cases that “concern one cause of action where the issue is whether the liability and damages issues are inextricably woven together so as to require a trial de novo of both issues and do not involve, as the present case does, two separate causes of action arising out of the same incident [or conduct]. See, e.g., George v. Ericson, [supra, 250 Conn. 332-33] (single negligence cause of action); Fazio v. Brown, [supra, 209 Conn. 457] (same); Malmberg v. Lopez, 208 Conn. 675, 683, 546 A.2d 264 (1988) (single wrongful death cause of action); Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 796-97, 462 A.2d 1043 (1983) (single negligence cause of action); Sparico v. Munzenmaier, 134 Conn. 194, 197, 56 A.2d 165 (1947) (same) . . . .” (Citation omitted.) Harewood v. Carter, supra, 63 Conn. App. 204-205.

The plaintiffs’ claim for compensation for their business losses and their claim for damages in connection with the defendant’s negligent infliction of emotional distress, although arising from the same negligent conduct of the defendant, and although pleaded in the trial court in one count, have been treated on appeal by both parties as two separate and distinct causes of action, and we treat them accordingly. See footnotes 7 and 20 of this opinion. We need not speculate, moreover, regarding the allocation of damages between the two claims because the jury returned a special verdict reporting an award of $601,000 in economic damages and $300,000 in noneconomic damages. In such circumstances, we perceive no latent ambiguity inherent in the verdict that would suggest that it might have been the result of juror compromise on any of the issues determined by the jury.

The defendant has provided us with no reason, and we are aware of none, why we should extend the general rule requiring a new trial on all issues to a case, such as the present one, involving two separate causes of action. Consequently, we reject the defendant’s contention that it is entitled to a new trial on the plaintiffs’ claim for economic damages caused by the defendant’s negligent failure to maintain and install its equipment properly.

The judgment of the trial court is reversed with respect to the jury’s award of noneconomic damages only and the case is remanded for a new trial limited to the plaintiffs’ claim of negligent infliction of emotional distress; the judgment is affirmed in all other respects.

In this opinion the other justices concurred.

       The plaintiffs initially named four individuals as defendants, in addition to Connecticut Light and Power Company. The case against those defendants later was withdrawn, leaving Connecticut Light and Power Company as the only remaining defendant. Thus, we refer to Connecticut Light and Power Company as the defendant throughout this opinion.

       The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       Stray voltage has been described generally as “a natural, low voltage byproduct of the transmission of electric power . . . [and] a counterpart of any grounded electrical system.” Kolpin v. Pioneer Power & Light Co., 154 Wis. 2d 487, 498, 453 N.W.2d 214 (App. 1990), rev’d, 162 Wis. 2d, 1, 469 N.W.2d 595 (1991). With respect to farm animals, stray voltage represents a small voltage difference between two contact points—e.g., a wet cement bam floor and a metal water bowl—with which the animal comes into contact simultaneously, thereby completing an electrical circuit. As a result, a low level electrical current will run through the animal’s body. See, e.g., Larson v. Williams Electric Co-op, Inc., 534 N.W.2d 1, 1-2 n.1 (N.D. 1995). See generally Agricultural Research Service, U.S. Dept. of Agriculture, Agriculture Handbook No. 696, Effects of Electrical Voltage/Current on Farm Animals: How to Detect and Remedy Problems (1991).

       For example, Louise Scanlon testified that “[ejverything was falling apart on [the] farm, [the] herd health was horrible, production was horrible, just everything was horrible. It was all falling apart .... [W]e just felt so helpless .... We were really, I guess, going down the tubes is a good expression, and it was bad.”

       Louise Scanlon left the family home for one month.

       The plaintiffs’ amended complaint originally contained counts alleging breach of warranty, misrepresentation and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The plaintiffs, however, withdrew those counts during the trial, and only the negligence count was submitted to the jury.

       As we have indicated; see footnote 6 of this opinion; only a single negligence count ultimately was submitted to the jury. The plaintiffs’ claim for economic damages and their claim for noneconomic damages, each of which arose out of the defendant’s alleged negligent failure to install and maintain its equipment properly, are contained in that single negligence count. For purposes of this appeal, however, the parties have treated the two claims as separate and discrete causes of action, and we do so as well.

       The jury returned a special verdict form that provided in relevant part: “In this case, the jury finds the issues for the plaintiffs ... as against the defendant ... in accordance with the following calculation:
      “Fair, just and reasonable compensation for plaintiffs’ injuries and damages:
      “Economic Damages $601,000
      “Noneconomic Damages $300,000
      “TOTAL $901,000”

       The defendant also contends that this court should reject the plaintiffs’ negligent infliction of emotional distress claim because, the defendant asserts, a jury may not award damages for emotional distress, as a matter of law, when such damages arise from the negligent infliction of injuries to animals or property. The defendant, however, failed to raise this claim in the trial court and, therefore, seeks plain error review under Practice Book § 60-5, which provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
      We repeatedly have stated that “[p]lain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Santopietro v. New Haven, 239 Conn. 207, 216, 682 A.2d 106 (1996). Although the issue of whether a jury may award damages for emotional distress arising from harm negligently caused to livestock, pets or property is a legal one, that precise issue previously has not been addressed by this court.
      Whatever merit there may be to the defendant’s contention, we cannot reasonably conclude that the trial court’s error, if any, in submitting the plaintiffs emotional distress claim to the jury, was obvious. Nor can we reasonably conclude that any such impropriety adversely affected the integrity of and public confidence in the proceedings. Finally, if, in fact, the defendant is correct that the plaintiffs’ claim of negligent infliction of emotional distress is legally insufficient, the defendant will have an opportunity to raise that argument in connection with any retrial of that claim. We, therefore, reject the defendant’s invitation to engage in plain error review of its unpreserved claim and express no view regarding' the issue of law belatedly raised by the defendant.

       In light of our conclusion that the defendant is entitled to a new trial on the plaintiffs’ negligent infliction of emotional distress claim, we do not address the defendant’s alternate claim that the trial court improperly denied the defendant’s motion for remittitur with respect to the jury’s award of 3300,000 in noneconomic damages in connection with the plaintiffs’ claim of negligent infliction of emotional distress.

       The plaintiffs assert that we are not bound to review the defendant’s claim of instructional error, and that we should not do so, because the defendant’s requests to charge did not comply with Practice Book § 16-23, which provides that no more than fifteen requests to charge may be filed without prior permission of the court, and that each such request shall contain only a single proposition of law. The defendant filed twenty-six requests, several of which covered more than one legal principle, without prior court approval. Although we do not condone the defendant’s failure to abide by the letter of § 16-23, we do not believe, under the circumstances presented, that the defendant’s transgression is sufficiently serious to warrant the sanction urged by the plaintiffs. Indeed, the plaintiffs did not object to the defendant’s failure to comply with § 16-23 in the trial court and, insofar as the record reflects, the trial court, itself, did not raise the issue. Moreover, as we explain hereinafter, the defendant’s request to charge on the tort of negligent infliction of emotional distress was clearly articulated and correct as a matter of law. Finally, the requests to charge that the defendant submitted to the trial court were neither so extensive nor so intricate as to give rise to any reasonable possibility that the defendant’s failure to comply with § 16-23 impeded the able trial court in its review of those requests. We, therefore, decline the plaintiffs’ invitation to forgo a review of the defendant’s claim of instructional impropriety.

       The defendant’s request to charge regarding the award of damages in connection with the plaintiffs’ claim of emotional distress provided: “The [plaintiffs] also claim that they suffered emotional distress. Because of the nature of the evidence in support for such a claim, however, it is difficult to prove the existence or extent of emotional distress with certainty. There is always the possibility that there is no real basis for the claim or that the emotional distress is to a greater or lesser extent exaggerated. For that reason, you should scrutinize with care the evidence offered in support of emotional distress and approach the matter with caution.

        “[The defendant] is not responsible for the plaintiff s’ emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress, and, from the facts known to it or its agents, knew or should have realized that this emotional distress, if caused, might result in illness or bodily harm.

      “Emotional distress is a proper element of damages only if it is a natural and proximate result of [the defendant’s] negligence or its unfair or deceptive acts.
      “If you are satisfied that, by a fair preponderance of the evidence, that the plaintiffs experienced emotional distress; that this distress was caused by [the defendant’s] negligence or its unfair or deceptive acts; and that [the defendant] or its agents knew or should have known that its conduct involved an unreasonable risk of causing this emotional distress and that, if caused, the emotional distress might result in illness or bodily harm; the plaintiffs are entitled to fair, just and reasonable compensation for their emotional distress.” (Emphasis added.)

       The trial court instructed the jury on damages as follows: “You will be required to make a separate finding of the amount of damage in each of the two categories, to the extent they have been proven to you, again, by apreponderance of the evidence. You must considerpast economic damages in determining the total amount of economic damages to which the plaintiffs are entitled. Similarly, you will consider past noneconomic damages in determining the award of general or noneconomic damages.
      4; $ 4:
      “Now, noneconomic damages are compensation for the nonmonetary losses suffered by the plaintiffs up to and including the present time, which, as claimed in this case, is the mental and emotional distress suffered by the plaintiffs as a result of the defendant’s negligence.

        “Therefore, your job will be to fully and fairly compensate [the] plaintiffs for any emotional distress proximately caused by the defendant’s negligence. And the jury forms that I just went over . . . will have spaces for separate findings, to the extent you find the three elements of [the] plaintiffs’ case proved by a preponderance.
      “The fundamental rule and principle as to damages is that the amount awarded should be fair, just and reasonable compensation, no more and no less, for the damage [the] plaintiffs suffered as a result of the defendant’s conduct.

        “There is .. . a claim for emotional distress. And a plaintiff that is injured by the wrongdoing of another is just as much entitled to be compensated for mental suffering caused thereby and for the results which proximately follow from it.
      “As for . . . mental suffering, it’s difficult to prove or disprove its existence or extent with certainty. There is always a possibility [that] there is no real basis for the claim, or that the suffering is to a greater or lesser extent exaggerated.
      “For that reason, scrutinize with care the evidence offered in support of the claim and approach the matter with caution. But if you are satisfied that a fair preponderance of the evidence supports the claim, then [the] plaintiffs are entitled to be compensated for mental distress and suffering.” (Emphasis added.)

       The defendant did not take an exception to the trial court’s instructions on damages awarded in connection with the plaintiffs’ emotional distress claim. That fact, however, is insignificant because the trial court was made aware of the defendant’s claim by virtue of the defendant’s submission of its written request to charge with respect to the plaintiffs’ emotional distress claim. See, e.g., State v. Angell, 237 Conn. 321, 329, 677 A.2d 912 (1996). “If a written request covers the issue, an exception on that point is not necessary. ’’ Goodmaster v. Houser, 225 Conn. 637, 648 n.9, 625 A.2d 1366 (1993).

       We have explained the reason underlying this requirement as follows: “Because the etiology of emotional disturbance is usually not as readily apparent as that of a broken bone following an automobile accident, courts have been concerned, aparl, from the problem of permitting bystander recovery, that recognition of a cause of action for such an injury when not related to any physical trauma may inundate judicial resources with a flood of relatively trivial claims, many of which may be imagined or falsified, and that liability may be imposed for highly remote consequences of a negligent act. . . . Perhaps for this reason, even those courts that permit recovery for emotional disturbance alone have erected some barriers not applicable to bodily injury claims. Thus, § 436A of the Restatement [(Second) of Torts] takes the position that the negligent actor is not liable when his [or her] conduct results in the emotional disturbance alone, without the bodily harm or other compensable damages. 2 Restatement (Second), Torts § 436A, comment a. This court, however, in Montinieri v. Southern New England Telephone Co., [supra, 175 Conn. 344], concluded that there is no logical reason for making a distinction, for purposes of determining liability, between those cases [in which] the emotional distress results in bodily injury and those cases [in which] there is emotional distress only. We did, nevertheless, because of our concern not to open up a wide vista of litigation in the field of bad manners; id., 345, quoting C. Magruder, ‘Mental and Emotional Disturbance in the Law of Torts,’ 49 Harv. L. Rev. 1033, 1035 (1936); impose a condition for emotional distress recovery that the defendant should have realized that, its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm. Montinieri v. Southern New England Telephone Co., supra [345].” (Citation omitted; internal quotation marks omitted.) Maloney v. Conroy, supra, 208 Conn. 397-98.

       Indeed, the plaintiffs do not seriously contend otherwise.

       The plaintiffs contend that certain statements made by counsel for the defendant at the hearing on the defendant’s motion to set aside the verdict suggest that the defendant did not perceive any impropriety in the trial court’s charge with respect to the plaintiffs’ negligent infliction of emotional distress claim. The plaintiffs further contend that those statements induced the trial court to overlook that issue in ruling on the defendant’s posttrial motion. Even if we assume, arguendo, that counsel’s statements to the court suggested that the defendant was not pursuing a claim of instructional impropriety, we are not persuaded that any such statement disqualifies the defendant from appellate review of its claim. First, that claim properly was preserved by virtue of the defendant’s request to charge. Second, there is nothing in the record to indicate that those statements were intended to mislead the trial court. Finally, the allegedly misleading statements were made after the jury had been discharged and, therefore, at that time, it was too late for the trial court to revise its jury charge according to the defendant’s request.

       We note that the defendant has not otherwise challenged the jury verdict awarding the plaintiffs $601,000 in economic damages.

       For example, “[w]e have applied this principle in ordering retrials on both liability and damages when there was reason to believe that a verdict, so low in relation to the injuries sustained in a negligence case that reversal [was] warranted, may have resulted from a compromise reached by the jurors on the issue of liability.” (Internal quotation marks omitted.) George v. Ericson, supra, 250 Conn. 332; accord DeLaurentis v. New Haven, supra, 220 Conn. 268.

       As we previously noted; see footnote 7 of this opinion; although the plaintiffs’ two claims are contained in a single count, on appeal, the parties have treated those claims as two separate and independent causes of action.


author: PER CURIAM.

text:
    RONALD F. PETRONELLA, COMMISSIONER OF LABOR, EX REL. GLENN MAIORANO ET AL. v. VENTURE PARTNERS, LTD., ET AL.
    (SC 16433)
    Borden, Norcott, Katz, Palmer and Vertefeuille, Js.
    Argued September 25
    officially released October 23, 2001

      Robert A. Ziegler, with whom were LesleeB. Hill and Edward B. Bradley, for the appellants (named defendant et al.).

      Glenn A. Woods, assistant attorney general, with whom were Edward F. Reynolds, Jr., and Gary G. Williams, assistant attorneys general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Opinion

PER CURIAM.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

       We granted the defendants’ petition for certification to appeal from the judgment of the Appellate Court; Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 758 A.2d 869 (2000); limited to the following issue: “Were the defendants employers for purposes of General Statutes § 31-72 and thereby liable for wages due employees that were earned prior to the defendants’ involvement with the employer corporation?” Petronella v. Venture Partners, Ltd,., 255 Conn. 909, 763 A.2d 1035 (2000).