source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Kendall Smith
    (13116)
    Healey, Callahan, Glass, Covello and Hull, Js.
    Argued December 9, 1987
    decision released April 19, 1988

      Wesley S. Spears, with whom, on the brief, was Timothy H. Everett, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was Frank DAddabbo, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Kendall Smith, a probationer, has appealed from the imposition by the trial court, Barall, J., of a special condition of probation one year after his sentencing originally placing him on probation. He maintains that, in doing so, the trial court violated General Statutes § 53a-30 and his probationer’s right to be free from illegal searches and seizures. We dismiss his appeal as moot.

On October 30,1985, Smith pleaded guilty under the Alford,' doctrine to one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). At that time, the court, Purtill, J., sentenced the defendant to five years in prison with execution to be suspended after eighteen months with three years probation. The presentence investigation report at that time indicated that the defendant had a problem with drugs and that he had committed the robbery to obtain money for drugs. No special conditions of probation were imposed at the time of this sentencing.

After the defendant’s probationary period began, senior probation officer Thomas McGeary, who had ten years experience, was assigned to act as his probation officer. On October 28, 1986, McGeary, based on his observations of the defendant and the original presentence investigation, filed a request to modify the Conditions of probation by imposing a special condition of urinalysis testing and cooperation with any drug treatment required by the adult probation department. On January 8,1987, a hearing on McGeary’s request was held by the court, Barall, J. The defendant was present with counsel. Both McGeary and the defendant testified and both were cross-examined. McGeary’s testimony developed that the defendant, on October 23, 1986, had reported four hours late for an appointment at McGeary’s office. At that time, McGeary, who had participated in a number of training courses concerning the use of drugs, said that the defendant had been “a little bit fidgety,” “a little bit edgy” and that “he just appeared to [McGeary] at that time to be under the influence of some type of stimulant.” McGeary asked him to provide a urine sample at that time. The defendant declined, saying that he would not because of a medical condition and he showed McGeary some prescription medication that he said he had been taking. McGeary also said that some weeks later the defendant had told him that he had been using marihuana and that he would continue to do so.

During his testimony, the defendant denied that he had ever admitted to McGeary that he had used marihuana and he maintained that McGeary had told him that it was all right if he used marihuana but that he would not allow him to use “cocaine and all that other stuff, heroin.” The defendant did state that he later had submitted to a urine test for McGeary but that he had done so against his will. The test disclosed the presence of marihuana.

At the conclusion of the hearing, the trial court, Barall, J., made it clear that the defendant’s drug use was “an issue of credibility” and that it believed the probation officer. It found “good cause” for granting the modification and ordered that the defendant “submit himself to body fluid examination from time to time as deemed appropriate by the probation department to ensure that he stays off marijuana or any other drugs . . . [and] that if the probation department orders drug counseling, both either in or out patient is deemed appropriate, [that] shall be added as a second condition.” Defense counsel noted his exception and then stated: “Just for the record, we do intend to appeal Your Honor.” On January 26, 1987, the defendant appealed to the Appellate Court and, thereafter, the appeal was transferred to this court pursuant to Practice Book § 4023.

On May 5, 1987, the defendant, with his counsel present, appeared before the trial court, Byrne, J. At that time, he was put to plea on an information charging him with the violation of the conditions of his probation in violation of General Statutes § 53a-32. He admitted the violation. Before the trial court addressed the defendant and his counsel on the plea canvass, the state read the factual basis of the charge. In part, he recited the modification of the conditions of probation by Judge Barall and also said: “[A]fter the January 8th, 1987 modification, it was found that the defendant had involved himself with narcotics and did come back with dirty specimens.” The canvass included this question to the defendant: “Now is anybody forcing you to make this admission” and he answered, “No.” Defense counsel was asked if he was satisfied that the defendant’s “admission [was] voluntarily and understandably made,” to which counsel answered, “Yes.” Defense counsel was also asked whether he knew “of any reason why [the court] shouldn’t accept the admission” and counsel answered, “No, I don’t Your Honor.” The state also indicated that it did not. The record indicates that the case had been pretried before the court, Byrne, J., and that there had been some plea bargaining wherein the defendant sought the reduction of the unexpired portion of his sentence. On June 4, 1987, the court, Byrne, J., modified the original sentence and sentenced the defendant to serve nine months incarceration, which, it said, would “in effect serve the unexpired portion of the sentence.”

On appeal, the defendant claims that the trial court erred in imposing compulsory drug tests as a special condition of his probation one year after imposition of his sentence. He contends that the trial court, in doing so, violated General Statutes § 53a-30, his federal and state constitutional rights to be free from illegal searches and seizures and his right to have notice of the terms of his probation at the time of sentencing. He argues that a supervisory court other than the sentencing court lacks authority to impose postsentence special conditions of probation and that, in any event, § 53a-30 (c) should be construed to allow only modification or enlargement of existing conditions that “already apply to a probationer.”

The defendant resists not only the state’s argument of mootness, but also the state’s collateral claim that he has not preserved any of his claims for appeal. He acknowledges that it is correct that he has completed his sentence and that the special conditions complained of on this appeal no longer exist. He goes on, however, to reason that, because the factual basis upon which he pleaded to the violation resulted from that which was disclosed by drug testing imposed in violation of his rights, the “admitted” revocation of probation, if permitted to stand, would not only have a negative effect on his ability to obtain probation in the future but also that it should be erased from his record. This appeal, therefore, he claims is not moot. He argues that he has preserved his claims for appeal because he objected and excepted to the special conditions at the time they were imposed by the trial court, Barall, J. In addition, the defendant contends that he has waived no right to his appeal by his later plea-bargained admission to the violation for which he was sentenced. He maintains that this is so not only because he had objected and excepted to the imposition of the special condition but also because the trial court, Byrne, J., in fact knew of the pendency of the appeal that he had taken earlier. The record in the trial court, however, shows nothing to indicate that the trial court knew of the pendency of this appeal.

On the other hand, the state contends that all of the defendant’s claims of error are without merit. Although developed at length in its brief, the state’s broad claim is that, even if it is assumed that the special condition of urinalysis violated the defendant's fourth amendment rights, the defendant’s express, admission of the illegaluse of drugs upon his plea canvass validated the probation revocation because compliance with the law is always a condition of probation. The state, however, is quick to add that there was no constitutional or statutory violation and that the special condition was properly imposedi'It did state in oral, argument that, in the event we conclude that the imposition of the special condition had been invalid, then the revocation of probation would have to be removed from the defendant’s record. This possible “collateral consequence” is, the state asserts, the only possible obstacle to a dismissal on grounds of mootness. In the event that there may be collateral consequences if we resolve the defendant’s claims in his favor, it clearly impacts on the matter of mootness.

Reference to the consequences of a guilty plea is helpful when we consider the direct or collateral consequences of a revocation of probation in this case. “The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” United States v. Lambros, 544 F.2d 962, 966 (8th Cir. 1976), cert. denied, 430 U.S. 930, 97 S. Ct. 1550, 51 L. Ed. 2d 774 (1977); Huffman v. State, 703 S.W.2d 566, 568 (Mo. App. 1986). Something that is “collateral” is “indirect.” N. Webster, Third New International Dictionary. A “consequence” has been defined as “a natural or necessary result, Webster’s Third New International Dictionary (1964) p. 482.” People v. White, 8 Mich. App. 220, 224, 154 N.W.2d 1 (1967). Thus, the possibility of enhanced punishment upon a subsequent drug charge has been said to be a “collateral consequence” of a guilty plea; United States v. Lambros, supra; Huffman v. State, supra; and we note that the record in this case refers to a drug charge subsequent to the imposition of the special conditions complained of by the defendant. If the revocation of the defendant’s probation stands, it may not only have an effect on his ability to obtain probation in the future but also affect his standing in the community in its connotation of wrongdoing, job opportunities and is a blemish on his record. See United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079, 1086-87 (2d Cir. 1971); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir. 1970); State v. Johnson, 11 Conn. App. 251, 256, 527 A.2d 250 (1987). It has been said that “judicial notice can be taken of the ‘collateral disability’ which accompanies the acquisition by an adult of a criminal record, and that such harm is of sufficient magnitude to overcome a charge of mootness.” State v. Wilson, 41 Ohio St. 2d 236, 238, 325 N.E.2d 236 (1975) (Herbert, J., concurring).

The “collateral consequences” threshold insofar as mootness is concerned is therefore colorably present and requires that we review his other claims to determine whether the revocation of probation was valid in order to ascertain if there is actually a possible collateral consequence. In the event that we decide that the revocation of probation was invalid, then there are cognizable collateral consequences and the appeal is not moot. If, however, we decide that the revocation of probation was valid, the appeal is moot. The circumstance, of course, that the defendant has completed his sentence and that the special condition complained of is no longer extant does not bar such an inquiry by us. See Jones v. Helms, 452 U.S. 412, 415 n.6, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981); Sibron v. New York, 392 U.S. 40, 51, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); Herbert v. Manson, 199 Conn. 143, 144 n.1, 506 A.2d 98 (1986).

At this point, it is well to discuss the matter as to whether the defendant’s admission and plea to the violation of probation and his acceptance of the plea bargain precludes his appeal. See generally Cherokee Nation v. United States, 355 F.2d 945, 949 (Ct. Cl. 1966); Connecticut Light & Power Co. v. Public Utilities Control Authority, 176 Conn. 191, 201, 405 A.2d 638 (1978); 4 Am. Jur. 2d, Appeal and Error § 251; 4 C.J.S., Appeal and Error § 215b. This plea bargain resulted in his obtaining the benefit of a nine month sentence for the unexpired portion of his sentence. This raises the question whether one may have the benefit of that bargain in such circumstances and still maintain the appeal, irrespective of any issue of mootness. We have already set out the defendant’s claim in that regard but must now determine whether he has effectively surrendered his right to appeal by accepting the benefit of his plea bargain. We decide that he has not under the unique circumstances of this case.

We may ourselves determine to exercise our inherent supervisory authority over the administration of justice to review the defendant’s claim. See State v. Chung, 202 Conn. 39, 44, 519 A.2d 1175 (1987); State v. Madera, 198 Conn. 92, 99-100, 503 A.2d 136 (1985); State v. Cohane, 193 Conn. 474, 499, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). To do so in this case would comport with the interests of justice. The state argues that the appeal has been rendered moot by the revocation of the defendant’s probation which was based on his “unconditionally” admitting the charged violation. Yet, never in the trial court did the state or the defendant put on the record at the time of that admission that there was an appeal pending from the special condition, the implementation of which disclosed the evidence that brought about the admission. Had this been done, as we believe it should have been, the continuing viability of the pending appeal and its place, if any, in the plea bargaining process could have been addressed. Moreover, the defendant has since completed serving the sentence, which was the subject of the plea bargain. His position throughout has been that the special condition had been illegally imposed and that any criminal consequences that flowed from it had continued to violate his rights. Implicit in this position is the contention that the revocation of his probation involved the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), and that raises a fundamental constitutional question which we may review although it was not explicitly articulated below or on the briefs. See State v. Gilnite, 202 Conn. 369, 373, 521 A.2d 547 (1987); Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983).

In this regard, we point out that we are not limited in our disposition of a case to those claims raised by the parties and we have frequently acted sua sponte upon grounds of which the parties were not previously apprised. See State v. Gilnite, supra; Greenwood v. Greenwood, supra. Where there is good reason, we have permitted additional argument when we ‘believe that a case should be decided upon different issues from those presented. See Greenwood v. Greenwood, supra; State v. Curcio, 191 Conn. 27, 29, 463 A.2d 566 (1983). This is not necessary here for several reasons. First, the unique circumstances of this case call for the invocation of our inherent supervisory powers in the interests of justice. Second, the record that is before us is adequate to determine whether we should reach the merits of the defendant’s claim despite certain shortcomings for which the parties appear to be responsible. Third, we perceive no reason dictated by fundamental fairness that should require the defendant, who has already served the sentence imposed for the revocation, to resort to other litigation to resolve his claim when it should and can be done now. We, therefore, will reach the merits of the defendant’s appeal.

Years ago, the United States Supreme Court said that the purpose of probation is “to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.” Burns v. United States, 287 U.S. 216, 220, 53 S. Ct. 154, 77 L. Ed. 266 (1932). Accordingly, it emphasized that in administering the probation statute, the trial judge has “an exceptional degree of flexibility” in determining whether to grant or revoke probation and on what terms. Id. Punishment of an offender may not be the primary purpose of imposition of probation by a judge although it must be recognized that probation conditions may have an incidental punitive effect in that any restriction on liberty is in a sense “punishment.” Higdon v. United States, 627 F.2d 893, 898 (9th Cir. 1980).

Last year, in Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 3167-68, 97 L. Ed. 2d 709 (1987), the United States Supreme Court, in speaking to the warrant requirement, stated: “[W]e have permitted exceptions when ‘special needs beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ . . . A State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements. Probation, like incarceration, is ‘a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.’ . . . Probation is simply one point (or, more accurately, one set of points) on a continuum of possible punishments ranging from solitary confinement in a maximum security facility to a few hours of mandatory community service. A number of different options lie between those extremes .... To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.’ Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. . . . These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. . . . Supervision, then, is a ‘special need’ of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. That permissible degree is not unlimited . . . .” See also Liistro v. Robinson, 170 Conn. 116, 126-29, 365 A.2d 109 (1976).

It is generally held that there is no right to be granted probation. See, e.g., United States v. McLeod, 608 F.2d 1076, 1078 (5th Cir. 1979); United States v. Birnbaum, 421 F.2d 993, 998 (2d Cir.), cert. denied, 397 U.S. 1044, 90 S. Ct. 1363, 25 L. Ed. 2d 655 (1970); Yadyaser v. State, 430 So. 2d 888, 891 (Ala. Crim. App. 1983); State v. Wright, 309 N.W.2d 891, 894 (Iowa 1981); State v. DeCourcy, 224 Kan. 278, 280, 580 P.2d 86 (1978); State v. Priesmeyer, 719 S.W.2d 873, 876 (Mo. App. 1986); N. Cohen & J. Gobert, The Law of Probation and Parole (1983) § 2.01; see also Affronti v. United States, 350 U.S. 79, 83, 76 S. Ct. 171, 100 L. Ed. 62 (1955). The view that probation, once granted, is only an “act of grace” or “act of clemency” was repudiated some time ago by the United States Supreme Court. In Gagnon v. Scarpelli, 411 U.S. 778, 782 n.4, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), the court said: “It is clear at least after Morrissey v. Brewer, [supra], that a probationer no longer be denied due process, in reliance on the dictum in Escoe v. Zerbst, 295 U.S. 490, 492, 55 S. Ct. 818, 819, 79 L. Ed. 1566 (1935), that probation is an ‘act of grace.’ ” See also United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975); Commonwealth v. Brown, 23 Mass. App. 612, 616, 504 N.E.2d 668 (1987). As Griffin points out, there is little question that “to a greater or lesser degree” probationers do not enjoy the absolute liberty of other citizens, but that which is properly dependent on observance of special probation restrictions. Griffin v. Wisconsin, supra, 3168. Any restriction, however, upon a probationer’s otherwise inviolable constitutional rights can be justified only to the extent actually required by legitimate demands of the probation process in any given case. Put another way, a probationer has a diminished expectation of privacy by virtue of such demands, but such expectation may be diminished only to the extent necessary for his reformation and rehabilitation. Owens v. Kelley, 681 F.2d 1362, 1367-68 (11th Cir. 1982); Macias v. State, 649 S.W.2d 150, 152 (Tex. Crim. App. 1983).

Probation is the product of statute. See General Statutes § 53a-28 et seq. Statutes authorizing probation, while setting parameters for doing so, have been very often construed to give the court broad discretion in imposing conditions. United States v. Tolla, 781 F.2d 29, 32 (2d Cir. 1986); see, e.g., United States v. Torrez-Flores, 624 F.2d 776, 784 (7th Cir. 1980); United States v. Weber, 437 F.2d 1218, 1220 (7th Cir.), cert. denied, 402 U.S. 1008, 91 S. Ct. 2189, 29 L. Ed. 2d 430 (1971); State v. Pilch, 35 Conn. Sup. 536, 639, 394 A.2d 1364 (1977); People v. Walmsley, 168 Cal. App. 3d 636, 639, 214 Cal. Rptr. 170 (1985); State v. Ripperger, 284 N.W.2d 884, 885 (S.D. 1979); State v. Blight, 89 Wash. 2d 38, 41, 569 P.2d 1129 (1977). The significant role of statutes and the broad discretion usually accorded courts in administering the probation process means not only that statutory limitations must be observed but also that the impact of constitutional norms must be carefully evaluated.

On appeal, the “standard of review of an order revoking probation is whether the trial court abused its discretion; if it appears that the trial court was reasonably satisfied that the terms of probation had been violated and, impliedly, that the beneficial purposes of probation were no longer being served, then the order must stand.” State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973). In reviewing the issue of discretion, we do so according it every reasonable presumption in favor of the trial court’s ruling. State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986). A defendant who seeks to reverse the exercise of judicial discretion, assumes a heavy burden. State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984).

We turn to the defendant’s claim that the imposition of the special condition of probation of drug testing one year after imposition of a sentence on the underlying felony violates General Statutes § 53a-30, his constitutional rights protectingjhim. from unreasonable searches and seizures:and his right to have notice of the.conditions of hfs probation at the time he was sentenced. We find no error many of the trial court’s rulings on these matters-.

General Statutes § 53a-30, which is divided into three subsections, is concerned with, inter alia, conditions of probation imposed at the time of sentencing and with the enlargement or modifications “whether originally imposed by the court [under § 53a-30] or otherwise . . . .” General Statutes § 53a-30 (c). In addition, it also authorizes, once probation has been imposed, that 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.” (Emphasis added.) General Statutes § 53a-30 (b). The plain language of this statute contemplates continuing supervision over the period of probation. See, e.g., Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981). A cardinal rule of statutory construction requires that statutes be construed “in a manner which gives effect to the apparent intention of the legislature . . . [and that] we presume that there is a purpose behind every sentence, clause or phrase used . . . and that no part of a statute is superfluous.” Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32, 477 A.2d 988 (1984); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). In addition, “[t]his court does not interpret statutes in a vacuum, nor does it refuse to consider matters of known historical fact.” State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985); see State v. Roberson, supra, 77. Since probation is, first and foremost, a penal alternative to incarceration — its objectives are to foster the offender’s reformation and to preserve the public’s safety — a sentencing court must have the discretion to fashion those conditions of probation it deems necessary to ensure that the individual successfully completes the terms of probation. United States v. Williams, 787 F.2d 1182, 1185 (7th Cir. 1986).

In keeping with the continuing supervision and authority given the court under the statute, the court could modify or enlarge the conditions whether any such condition had been imposed at the time of sentencing “or otherwise.” The sentencing court itself could have imposed the special condition. Had it been so included in the offer of probation in the first instance and had the defendant believed, as he seems to intimate, that probation with such a condition would be less acceptable to him than serving the sentence that might otherwise be imposed, he was under no duty to accept probation nor could the sentencing court require him to do so. See, e.g., State v. Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329 (1977); In re Osslo, 51 Cal. 2d 371, 377, 334 P.2d 1 (1958); Franklin v. State, 87 Idaho 291, 298, 392 P.2d 552 (1964); State v. Randolph, 316 N.W.2d 508, 510 (Minn. 1982); State v. Whalen, 367 N.W.2d 186, 187 (S.D. 1985); see 24 C.J.S., Criminal Law § 1571 (2), p. 459. It has been held that while a potential probationer may reject the offer of probation, if he accepts it, he must accept all the conditions sought and cannot accept some and reject others. See People v. Oppenheimer, 236 Cal. App. 2d 863, 866, 46 Cal. Rptr. 476 (1965); N. Cohen & J. Gobert, supra, § 5.07.

In this case, the defendant was placed on probation for a robbery in which he participated to get money for drugs. Certainly the challenged condition could have been imposed originally, given the fact that “restrictions [on a probationer] are meant to assure that the probation serves as a period of genuine rehabilitation and that the community [not be harmed] by the probationer’s being at large.” Griffin v. Wisconsin, supra, 3168. Moreover, had the trial court done so, it would not have unduly intruded on any constitutionally protected right to which the defendant would have been entitled. It is appropriate to say that in determining whether a condition of probation impinges unduly upon a constitutional right, a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: “The conditions must be ‘reasonably related’ to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.” United States v. Williams, supra, 1185; United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977), cert. denied, 435 U.S. 923, 98 S. Ct. 1486, 55 L. Ed. 2d 516 (1978); see also United States v. Consuelo-Gonzalez, supra, 264-65 n.14. The challenged conditions would have passed this test if imposed originally.

The court properly imposed the special condition one year after sentencing. It plainly had the authority to do so in the exercise of its discretion under § 53a-30 (c) which encompasses ongoing supervision. We have said: “To modify, is ordinarily to change the mode in which a subject is dealt with, rather than to change the subject itself.” Central Railway & Electric Co.’s Appeal, 67 Conn. 197, 210, 35 A. 32 (1895). The trial court’s exercise of its power to “modify” in this case did not change the subject itself, but did change the manner in which the defendant’s probation was administered. It did so after notice and an adversarial hearing and “for good cause shown” in a manner that comported with due process. See, e.g., Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). Moreover, due process is flexible and calls for those procedural protections that the particular situation demands. Morrissey v. Brewer, supra, 481. In imposing the special condition, the trial court did not violate the defendant’s constitutional or statutory rights. It recognized the reasonable relationship required, to be demonstrated by the evidence before it between the purposes sought to be served by probation, the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers and the legitimate needs of law enforcement.

In attacking this postsentence imposition of the special condition, the defendant also argues that he was entitled to notice of all of the conditions of probation at the time of sentencing. In doing so, he fails to recognize the ongoing authority of the court in overseeing the probation process. “ ‘The success of probation as a correctional tool is in large part tied to the flexibility within which it is permitted to operate.’ ABA Standards Relating to Probation § 3.3 commentary (Approved Draft 1970).’ ” Buckley v. Quincy Division of District Court Department, 395 Mass. 815, 818, 482 N.E.2d 511 (1985). “ ‘The court may revoke or modify any condition of probation . . .’ [that] will subserve the ends of justice and the best interests of both the public and the defendant.” Burns v. United States, 287 U.S. 216, 221, 53 S. Ct. 154, 77 L. Ed. 266 (1932).

Initially, we note that the general conditions under § 53a-30 (a) include that the defendant “(7) refrain from violating any criminal law of the United States, this state or any other state . . . [and] (9) [that he] satisfy any conditions reasonably related to his rehabilitation.” Moreover, General Statutes § 54-108, addressing the duties of probation officers, provides in part: “They shall furnish to each person released under their supervision a written statement of the conditions of probation and shall instruct him regarding the same. They shall keep informed of his conduct and condition and use all suitable methods to aid and encourage him and to bring about improvement in his conduct and condition.” We are entitled to presume, absent any showing to the contrary, that the defendant’s probation officer did these things. See Warren v. State, 499 So. 2d 55, 56 (Fla. App. 1987). Moreover, we may also presume that the defendant was aware of all of the original conditions, including § 53a-30 (a) (7) and (9), and that he had accepted all of the original conditions. See United States v. Markovich, 348 F.2d 238, 240 (2d Cir. 1965). Absent a showing to the contrary, a probationer is chargeable with knowledge that a breach of any condition may well result in revocation and serving the suspended sentence. Holdren v. People, 168 Colo. 474, 478, 452 P.2d 28 (1969); see State v. Roberson, supra, 77.

It is simply unreasonable for this defendant, found guilty of robbery in the first degree intended to generate money to pay for drugs for himself, to believe that if, during the ongoing contact with his probation officer, the use of drugs was reasonably suggested by his conduct or appearance, he would never expect to be subject to some type of drug testing. Despite the warning by his probation officer not to use drugs, including marihuana, he said he would use marihuana and did so. Under the circumstances, the court was entitled to impose the urinalysis testing. It clearly was reasonably related to the defendant’s rehabilitation and to the goals of probation. It was a foreseeable consequence, not only of a full due process hearing, but out of the reasonable suspicions of an experienced probation officer. This special condition was not, as in Carmo v. State, 378 So. 2d 850, 851 (Fla. App. 1979), a statutorily prohibited “additional” term or condition of probation but a modification and one uniquely appropriate to the defendant’s conduct while on probation. See General Statutes § 53a-30 (a) (7) and (9); Carradine v. United States, 420 A.2d 1385, 1390 (D.C. App. 1980) (probationer did not act or fail in a way that “foreseeably” could result in revocation).

The defendant also maintains that, in any event, this postsentence special condition was invalid because it was not imposed by the judge who sentenced him originally. We reject this claim. To legitimatize that argument would not only unduly hamper the administration of the court’s supervisory power over probation but would give sanction to a practice that has no basis in constitution, statute, decision or rule of practice in this state and for which the defendant has advanced none.

We believe that the urinalysis test was a search and seizure that implicated the defendant’s fourth and fourteenth amendment rights. See Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); Shoemaker v. Handel, 619 F. Sup. 1089, 1098 (D.N.J. 1985), aff’d, 795 F.2d 1136 (3d Cir.), cert. denied, 479 U.S. 986, 107 S. Ct. 577, 93 L. Ed, 2d 580 (1986); Tucker v. Dickey, 613 F. Sup. 1124, 1129-30 (W.D. Wis. 1985); Storms v. Coughlin, 600 F. Sup. 1214, 1218-20 (S.D.N.Y. 1984); Roman v. State, 570 P.2d 1235, 1243 (Alaska 1977); People v. Richards, 76 Mich. App. 695, 698-99, 256 N.W.2d 792 (1977); Macias v. State, supra. It implicated the interests in human dignity and privacy at risk in Schmerber. While the required urinalysis involved no forced penetration of body tissues, as does a blood test, it did involve the involuntary extraction of bodily fluids and, in that sense, if not literally, it was an “ ‘intrusion beyond the body’s surface.’ ” Tucker v. Dickey, supra; Schmerber v. California, supra, 769. The fourth amendment protects persons and not places and, in doing so, gives them the right to be free from “unreasonable government intrusions into their legitimate expectations of privacy.” United States v. Chadwick, 433 U.S. 1, 7, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). The United States Supreme Court has held that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). Although the fourth amendment generally requires a warrant based on probable cause before a search occurs, exceptions exist to this requirement when a legitimate governmental purpose makes the intrusion into one’s privacy reasonable. See Griffin v. Wisconsin, supra; Donovan v. Dewey, 452 U.S. 594, 600, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981); United States v. Consuelo-Gonzalez, supra, 264-66. This is consistent with the diminished expectation of privacy that a probationer, such as this defendant, is to expect in this governmental program to normalize his relations with society. The standard required to justify the search here by a probation officer while properly less stringent than probable cause, we determine, is that which may be found in the “emerging and now rather stabilized concept of ‘reasonable suspicion,’ ” that is used in other contexts in and about the criminal law. United States v. Scott, 678 F.2d 32, 35 (5th Cir. 1982). The reasonable suspicion standard requires no more than that “the authority acting [here the defendant’s probation officer] be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant a belief . . . that a condition of [probation] has been or is being violated.” United States v. Scott, supra; see State v. Velasquez, 672 P.2d 1254, 1258 n.2 (Utah 1983).

The search and seizure by way of urinalysis in this case was constitutionally sound under this standard. The defendant’s consent was not needed for the urine test, given his status, the reasonableness of the imposition of the testing condition and its obvious relation to his rehabilitation and other goals of probation. The broad power to impose conditions “permits insulating the individual from the conditions that led him into trouble.” United States v. Moore, 486 F.2d 1139, 1174 (D.C. Cir.), cert. denied, 414 U.S. 980, 94 S. Ct. 298, 38 L. Ed. 2d 224 (1973). As with parolees, it may be crucial to the success of a probation program for a probation officer to have access to some information that a probationer may be unwilling to divulge and so a probation officer “needs to be able to act in a manner that could not be tolerated if done by a policeman or other agent of the state with respect to an ordinary citizen” under the fourth amendment. See State v. Velasquez, supra, 1259; see also Roman v. State, supra, 1243. The defendant’s suggestion that probation, without something more, such as exigent circumstances, implies that his consent is needed lacks merit. Exigent circumstances exist when the societal costs of obtaining a warrant sufficiently outweigh the reasons for prior recourse to a neutral magistrate. Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979). Under the circumstances of this case, including the defendant’s status, the constitutional and statutory authority permitting the special condition when it was imposed and its imposition after notice and hearing, the exigent circumstances concept militates strongly in favor of the state and hardly aids the defendant.

Another claim of the defendant is that the order of the trial court, Bar all, J., imposing special conditions one year after the original sentencing violates his constitutional right against double jeopardy under the fifth amendment. We do not agree.

The guarantee against double jeopardy proscribes exposure to criminal prosecutions for the same offense after conviction or acquittal and protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Such exposure is absent from proceedings that are not “ ‘essentially criminal.’ ” Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). “The essential nature of a proceeding is not determined by its form or label .... United States v. U.S. Coin & Currency, 401 U.S. 715, 718, 91 S. Ct. 1041, 28 L. Ed. 2d 434 (1970). A proceeding is criminal for double jeopardy purposes, if it imposes a sanction intended as punishment. See Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 82 L. Ed. 917 (1938).” State ex rel. Flowers v. Department of Health, 81 Wis. 2d 376, 383, 260 N.W.2d 727 (1978). The circumstances of the defendant’s revocation do not fit within these principles. The fact that his. conduct resulting in the revocation was determined in the manner that it was does not transform the revocation proceeding into a criminal prosecution. Actually, a probation revocation hearing does not require all of the procedural components associated with an adversary criminal proceeding. Gagnon v. Scarpelli, supra, 783 n.5, 788-89; Morrissey v. Brewer, supra, 480, 489; State ex rel. Flowers v. Department of Health, supra, 384. For example, the authorities are virtually unanimous in concluding that the standard of proof used in a criminal trial, namely “beyond a reasonable doubt,” is not applicable to a probation revocation hearing. See, e.g., United States v. Warner, 830 F.2d 651, 655 (7th Cir. 1987); In re Coughlin, 16 Cal. 3d 52, 56, 545 P.2d 249, 127 Cal. Rptr. 337 (1976); State v. Case, 189 Neb. 493, 495, 203 N.W.2d 492 (1973); Dail v. State, 96 Nev. 435, 441, 610 P.2d 1193 (1980); State v. Cormier, 121 N.H. 528, 430 A.2d 1133 (1981); People v. Hemphill, 120 App. Div. 2d 767, 769, 501 N.Y.S.2d 503, appeal denied, 68 N.Y.2d 668, 496 N.E.2d 492, 505 N.Y.S.2d 1034 (1986); State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, review denied, 301 N.C. 99, 273 S.E.2d 304 (1980); Caudill v. State, 637 P.2d 1264, 1265-66 (Okla. Crim. App. 1981); Morishita v. Morris, 621 P.2d 691, 692 n.1 (Utah 1980); see also State v. White, 169 Conn. 223, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975).

Revocation hearings are not concerned with punishment or retribution. The probation process, in seeking to normalize the probationer into society as soon as reasonably possible, presents the ultimate question whether the probationer is still a “good risk” to be continued in that status. Gagnon v. Scarpelli, supra, 783; State ex rel. Flowers v. Department of Health, supra, 385. This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public. The ends of probation revocation are thus distinct from the punitive functions of the criminal law and a number of considerations relevant to revocation include factors that are irrelevant to a criminal prosecution. See State ex rel. Flowers v. Department of Health, supra. The element of “punishment” in probation revocation of this defendant is attributable to the crime for which he was originally convicted and sentenced. Thus, any sentence this defendant had to serve as the result of the violation of the special condition was “punishment” for the crime of which he had originally been convicted. Revocation is a continuing consequence of the original conviction from which probation was granted. The doctrine of double jeopardy is not applicable as the defendant claims.

In summary, the special condition complained of was properly imposed on the defendant. In doing so, none of his rights was violated as claimed. There was no abuse of discretion. The revocation of his probation was not in error. Accordingly, this appeal is moot. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974); State v. Johnson, 11 Conn. App. 251, 256-57, 527 A.2d 250 (1987). There is no practical relief that can be afforded the defendant given the circumstances of this case.

Accordingly, the defendant’s appeal is dismissed as moot.

In this opinion the other justices concurred.

       General Statutes § 53a-30 provides: “conditions of probation and conditional discharge, (a) When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant: (1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment; (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; (5) if a minor, (A) reside with his parents or in a suitable foster home, (B) attend school, and (C) contribute to his own support in any home or foster home; (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; (8) reside in a residential community center or halfway house approved by the commissioner of correction, and contribute to the cost incident to such residence; (9) satisfy any other conditions reasonably related to his rehabilitation. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.
      “(b) When a defendant has been sentenced to a period of probation, the officer 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 release, 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.”

       General Statutes § 53a-134 (a) (2) provides in part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       McGeary’s “Request” set out the following: “The undersigned requests that:
      “MODIFICATION for the Reason for Request set forth below, the above order of probation/conditional discharge be modified as follows: Special Condition of Probation that Kendall Smith submit to urinalysis and cooperate with any and all drug treatment required by Adult Probation.
      “REASON FOR REQUEST Subject has admitted to heavy Cocaine and marijuana use in the past, and claimed he committed the Offense to obtain money for cocaine and marijuana. It is felt that Adult Probation should monitor for narcotics usage.
      “Dated at Hartford On 10/28/86 Signed Isl A.T. McGeary Sr. P.O.”

       In finding “good cause,” the trial court said, assuming that there had been an application for a search warrant, “which would be based upon the issue or probable cause . . . and an affidavit submitted, I would have issued a search warrant. [Because] you have the testimony of a credible probation officer, acknowledgment of a known felon . . . acknowledging that he is using a substance that is forbidden under our law and so I am going to grant the request for modification.”

       General Statutes § 53a-32 provides: “violation of probation or conditional discharge: ARREST; PROCEDURE, (a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. After making such an arrest, such probation officer shall present to the detaining authorities a similar statement of the circumstances of violation. Provisions regarding release on bail of persons charged with a crime shall be applicable to any defendant arrested under the provisions of this section. Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional release or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       When the defendant pleaded to the information, the following took place:
      “The Clerk: State of Connecticut versus Kendall Smith, docket number 5 14 14. In an original information you’re charged with violating the conditions of your probation imposed on December 20th, 1985, by the Honorable Joseph Purtill at the town of Hartford on or about March 3rd, 1987, in violation of Connecticut General Statute [$] 53a-32, do you admit or deny this violation?
      “Mr. Smith: Admit.”

         At that time, the prosecutor indicated to the court that the defendant “now has a drug case pending.”

       At oral argument, we were informed that the defendant has served the sentence and is no longer incarcerated.

       We do not discuss the defendant’s Connecticut constitutional claims. Initially, we note that his preliminary statement of issues refers only to the United States constitution. In addition, while his brief refers to the Connecticut constitution, it undertakes no separate analysis indicating that the rights afforded him under the federal and state constitutions are distinguishable with reference to the substantive issue that he has raised. Moreover, we do not perceive, on the facts of this case, any reason independently to undertake any such analysis. See State v. Chung, 202 Conn. 39, 45 n.7, 519 A.2d 1175 (1987); State v. Toste, 198 Conn. 573, 576 n.3, 504 A.2d 1036 (1986).

       Defense counsel on appeal, who was trial counsel, indicates that the pendency of this appeal was discussed in chambers. The record does not so disclose.
      Concerning matters that may occur in chambers and which are not made of record, only recently we have said: “A case must be decided on the formal record and a court cannot resort to matters extraneous to the record in making its determination.” State v. Gilnite, 202 Conn. 369, 378, 521 A.2d 547 (1987); Hasbrouck v. Hasbrouck, 195 Conn. 558, 560, 489 A.2d 1022 (1985).
      In this context, we note that defense counsel put nothing on the record indicating that any such matter was discussed in chambers, but likewise put nothing on the record, at that time, that the defendant was admitting the violation “subject” to an appeal previously taken.

       During the pendency of the appeal, the state filed a motion to dismiss, which the defendant opposed, claiming that the validity of the trial court’s modification of the conditions of probation had been rendered moot by the defendant’s admission of the violation of the terms of his probation and its recurring revocation. We denied the state’s motion without prejudice to its renewal at the hearing in the appeal itself. Both parties addressed the mootness issue in oral argument before this court.

       It is not necessary for us, in the circumstances of this case, to determine whether the office of adult probation could have required the defendant, without a court order, to have submitted to the conditions imposed in fact by the trial court, Barall, J. This is so because the challenged conditions were imposed by the court after application and hearing and a finding of good cause.

       Although United States v. Scott, 678 F.2d 32 (5th Cir. 1982), involved a parolee, we deem its standard applicable to probationers. In doing so, we note that in determining whether the fourth amendment protection against unreasonable searches and seizures has been violated, some courts do not distinguish between probation status or parole status but treat them as the same. See, e.g., United States v. Consuelo-Gonzalez, 531 F.2d 259, 266 (9th Cir. 1975); State v. Pinson, 104 Idaho 227, 230 n.1, 657 P.2d 1095 (1983); State v. Earnest, 293 N.W.2d 365, 368 n.2 (Minn. 1980); Seim v. State, 95 Nev. 89, 94, 590 P.2d 1152 (1979); State v. Velasquez, 672 P.2d 1254, 1258 n.2 (Utah 1983).

       The fifth amendment to the United States constitution provides in part: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”


author: Glass, J.

text:
    Frank Verrastro et al. v. Middlesex Insurance Company
    (13181)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued December 8, 1987
    decision released April 19, 1988

      Leo Gold, for the appellants (plaintiffs).

      John J. Cotter, with whom was Ann Marie W. Vetrosky, for the appellee (defendant).
   Glass, J.

The plaintiffs, Frank and Leonard Verrastro, sought damages from the defendant, Middlesex Insuranee Company, claiming that the defendant wrongfully refused to pay the proceeds of a fire insurance policy on a building owned by the plaintiffs and damaged by fire. The plaintiffs’ four count complaint essentially alleged that the defendant breached its contract with the plaintiffs and breached the implied covenant of good faith and fair dealing. The defendant denied the material allegations of the complaint and asserted four special defenses: (1) that the plaintiffs failed to comply with the conditions of the policy; (2) that the plaintiffs were guilty of fraud and false swearing; (3) that the plaintiffs independently, through their partnership relationship or through their agents, committed acts either directly or indirectly that caused the destruction by fire of the property in question; and (4) that the plaintiffs failed to exhaust their administrative remedies.

The record establishes the following facts. On September 22, 1980, the plaintiffs operated their Carvel store business on premises located on Bedford Street in Stamford. The defendant had issued an insurance policy, effective May 29,1980, insuring the plaintiffs’ business for any loss by fire for a period of one year. On September 22, 1980, the plaintiffs’ Carvel store was damaged by fire. The plaintiffs and the defendant stipulated that the fire had an incendiary origin. The firemen found all doors and windows of the building secured at the time they arrived at the fire. The floor of the store was slippery, several gas cans were found on the premises and inside the store there was the odor of a petroleum-type product.

The trial court, Lewis, J., found that the defendant had established by a preponderance of evidence that the fire was intentionally caused by arson, that the plaintiffs had the opportunity and motive to start the fire, and that the plaintiffs did start the fire. From the judgment rendered for the defendant the plaintiffs appealed to the Appellate Court. The appeal was transferred to this court pursuant to Practice Book § 4023.

On appeal the plaintiffs claim that the trial court erred in: (1) concluding that the defendant could prove its arson special defense by a preponderance of evidence rather than by clear and convincing evidence, where the policy excludes coverage for “any fraudulent, dishonest or criminal act”; (2) finding that the defendant had sustained the burden of proving that the plaintiffs had the “opportunity” to cause the fire; (3) prohibiting the plaintiffs from offering rebuttal evidence pertaining to matters upon which the defendant had the burden of proof; (4) finding that the defendant had acted timely in rejecting the proof of loss approximately five months after its receipt; and (5) finding that the defendant had not breached its implied duty of good faith and fair dealing. We find no error.

I

The plaintiffs’ first claim is that the trial court erred in concluding that an insurer can prove an arson defense by a preponderance of evidence rather than by clear and convincing evidence where the policy excludes coverage for “any fraudulent, dishonest or criminal act.” It is well established that fraud must be proven by “ ‘ “clear, precise, and unequivocal evidence.” ’ ” Bound Brook Assn. v. Norwalk, 198 Conn. 660, 666, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986). Although the defendant asserted fraud in its second special defense, in the third special defense the defendant sought to bar the plaintiffs’ claim because of arson.

In a property insurance case it is not necessary that proof of arson be established by “clear, precise, and unequivocal evidence,” as is required to prove fraud. A majority of the states that have examined the burden of proof in civil arson cases have adopted the preponderance of the evidence standard. This rule has been applied in jurisdictions, like Connecticut, that have adopted the “clear and convincing evidence” standard for proof of fraud in a civil action. See Godwin v. Farmers Ins. Co. of America, 129 Ariz. 416, 631 P.2d 571(1981). Furthermore, commentators have consistently held that the preponderance of the evidence standard is appropriate to prove a special defense of arson. See 21B J. Appleman & J. Appleman, Insurance Law and Practice (1980) § 12682; 18 G. Couch, Insurance Law 2d (Rhodes Rev. 1983) § 74:667. Moreover, the preponderance of evidence rule was recently applied to a civil arson case by our Appellate Court. Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 585, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986).

The minority of jurisdictions that apply the clear and convincing evidence standard to the arson special defense appear to rely upon the fact that the defense of arson requires proof of an act of a criminal nature, which must be established by a standard more exacting than the preponderance of the evidence. See Mize v. Hartford Ins. Co., 567 F. Sup. 550 (W.D. Va. 1982); Hutt v. Lumbermens Mutual Casualty Co., 95 App. Div. 2d 255, 466 N.Y.S.2d 28 (1983). We have never held, however, that proof of a criminal activity in a civil action must be established by a quantum of proof more stringent than that necessary to prove the underlying claim. Mead v. Hustead, 52 Conn. 53 (1884); Munson v. Atwood, 30 Conn. 102 (1861); see 30 Am. Jur. 2d, Evidence § 1169. Thus, it is readily apparent in property insurance cases that there is no similarity between the quantum of proof required for fraud and the quantum of proof required for arson. The trial court did not err in applying the preponderance of evidence rule to the special defense of arson.

II

The plaintiffs’ second claim is that the trial court erred in finding that the defendant had sustained the burden of proving that the plaintiffs had the “opportunity” to cause the fire. The defendant relied on circumstantial evidence to prove this element of the arson special defense. Although any or all of the elements of arson may be proven by circumstantial evidence, “evidence creating a mere suspicion or conjecture that [the] insured fraudulently burned the insured property is not sufficient.” 18 G. Couch, supra, § 74:668; see Cora Pub, Inc. v. Continental Casualty Co., 619 F.2d 482 (5th Cir. 1980). Like all of the elements of the arson special defense, opportunity must be proven by a preponderance of the evidence. 18 G. Couch, supra, § 74:667; see 21B J. Appleman & J. Appleman, supra, § 12682.

According to the memorandum of decision, the trial court found that the following evidence supported its finding of opportunity. A police officer noticed the fire at 5:38 a.m., investigated and found the front and back doors of the store locked. The fire fighters also found both doors locked when they arrived, and had to smash their way into the store with axes. After entering the store the firemen smelled a petroleum-type product, saw several gas cans on the floor and noticed that the floor was slippery. There was a separate fire in the utility room at the rear of the Carvel store. The door to this room required a different key to open it than the front and back door key to the store. This key was kept separately in the Carvel store. Neither the fire fighters nor the police saw any indication of a forced entry to the store. The fire marshall testified that the fire commenced at approximately 5 a.m. A Stamford arson task force member testified that he investigated the fire and found that the front and rear doors of the store had deadbolt locks, and both doors were locked shut during the fire. He reached this conclusion because his inspection revealed that a portion of the deadbolts had a different color from the remainder of the bolts, i.e., the exposed portions had burn marks that were different in color from the other portions that were in the door jambs. This evidence supports the conclusion that the arsonist had a key or was with someone who had a key to the store.

Testimony regarding the number and distribution of keys to the store was given by the named plaintiff, Frank Verrastro. He testified that only five keys to the store were outstanding. They belonged to: himself; his wife, Ann Marie; his brother Leonard; Jeff Bevegno, the night manager; and Thomas O’Brien, the principal officer of O’Brien Cleaning Service. O’Brien testified that he actually had two keys to the store, one key kept by him and one key that he had given to his employee, Tony Bennizio, who did the cleaning at the Carvel store. Bennizio had worked for him for about fourteen years and had been a loyal employee.

O’Brien testified further that neither he nor Bennizio had been at the store on the Sunday night of the fire. Bennizio also testified that he was not at the store on the night of the fire. He stated that although the cleaning service normally cleaned every evening, they did not do so on Sunday evenings, but instead cleaned early on Monday mornings. Frank Verrastro confirmed this arrangement in his testimony. Bevegno, the night manager, testified that he had worked in the store from 5 to 10 p.m. the night before the fire and that he was the last person to leave the store. He testified that he had locked the front and rear doors and had checked them to make sure they were shut. The trial court acknowledged that there was some indication that a prior night manager, Keith Gower, had a key to the store, but nevertheless relied on Bevegno’s testimony that Gower had returned his key when he was terminated in 1979.

The plaintiff Leonard Verrastro testified that he was called by the Stamford police department and was informed of the fire at about 6:20 a.m. on September 22, 1980. He telephoned his brother, Frank, who also resided in Norwalk, and together they drove to the store in Stamford. Both Verrastro brothers denied having anything to do with the fire, directly or indirectly. Both Verrastros testified that they had left their store at closing time the Sunday night before the fire, and had gone to their respective homes where they had remained until receiving notification of the fire.

The plaintiffs argue that it is possible that someone without a key climbed up on the roof over the store, wiggled down an air conditioning or ventilating duct while carrying the gas cans, set the fires, and then struggled back up the duct onto the roof. Because the gas cans were eleven and one-half inches wide and eighteen inches high, the ventilating duct was a cylinder type opening twelve inches in diameter, and the door leading to the shaft on the roof had been pried open only about eight inches, the trial court determined that neither the gas cans nor a man could have moved through the shaft.

The trial court noted that in 1977 there was a fire in the barber shop that is next door to the Carvel store, and that since 1977 the music store next to the Carvel store had been broken into ten times. Nonetheless, the trial court reasoned that the extensive crime in the area did not account for the Carvel store fire, which had three separate points of origin in the store and had been started by gasoline poured out of gas cans found on the premises by the fire fighters.

The plaintiffs also claim that the trial court reached conflicting conclusions when it determined that the plaintiffs had the opportunity to commit the arson even though it also determined that the plaintiffs were neither found nor seen in the area of the Carvel store. They argue that the element of opportunity requires proof that the suspect be at or near the scene of the fire at the time that it is started. To support their argument the plaintiffs rely on a number of criminal arson cases in which the defendant had been seen near the scene of the fire. We have found no case, however, that supports the plaintiffs’ argument that a necessary element in either a criminal or civil arson case is that the suspect be found at or near the scene of the fire. This claim is without merit.

Careful review of the record indicates that the trial court did not err in finding that the plaintiffs had the opportunity to start the fire. Our conclusion is particularly influenced by the evidence that when the fire was discovered the store was locked with dead bolt locks, there was no sign of a forced entry, there were a limited number of keys to the store and a small number of people known to have had keys, and the fire concededly had an incendiary origin. Although circumstantial, the evidence is equally as probative as direct evidence of the element of opportunity. State v. Rodriquez, 200 Conn. 685, 692-93, 513 A.2d 71 (1986).

Ill

The plaintiffs’ third claim is that the trial court erred in prohibiting them from offering rebuttal evidence pertaining to matters upon which the defendant had the burden of proof. The plaintiffs argue that during the trial the defendant sought to sustain its special defense of arson by pointing to the facts that the Carvel store was locked when the firemen arrived and that there were only a limited number of keys outstanding. The plaintiffs sought to rebut the defendant’s claim by recalling Frank Verrastro for additional testimony regarding outstanding keys to the store. Verrastro was asked: “[C]an you tell us who were the people who have held keys to your store from September, 1976, until September 22, 1980?” The trial court sustained the defendant’s objection to the question, reasoning that it was part of the plaintiffs’ direct case to show there were numerous keys outstanding at the time of the fire. The defendant argues that this area of inquiry had been explored at the time of the initial examination of Verrastro. We need not consider whether the reasons set forth by the trial court for prohibiting the rebuttal evidence were correct, because in comparing the question objected to with Verrastro’s questions and answers on direct examination regarding the Carvel store keys, the record indicates that the objection could have been sustained because the question was repetitive and the testimony sought was cumulative. State v. Asherman, 193 Conn. 695, 719, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985).

IV

Next, the plaintiffs claim that the trial court erred in concluding that the defendant acted timely in rejecting the proof of loss. The plaintiffs filed an unsworn proof of loss with the defendant approximately three weeks after the fire, and again on October 13, 1980. Frank Verrastro’s testimony indicated that he was aware that the October 13, 1980 submission was not complete. A fully executed sworn proof of loss was filed on January 25,1981, and was formally rejected by the defendant on March 9, 1981. The policy provision in question required that the defendant “pay all adjusted claims within thirty (30) days after presentation and acceptance of the proof of loss.” The plaintiffs’ claim had not been adjusted nor had the proof of loss been accepted at any time by the defendant. Because the policy provision had not become applicable it does not insulate the plaintiffs from the defendant’s special defense of arson.

In the absence of an applicable policy provision, the trial court properly looked to General Statutes § 38-98, which states in pertinent part that “[t]he amount of loss . . . shall be payable sixty days after proof of loss, as herein provided, is received . . . .” The March 9, 1981 rejection of the claim came within the statutory sixty day period. The proof of loss was rejected in a timely fashion.

V

The plaintiffs’ final claim is that the trial court erred in concluding that the insurer had not breached its implied covenant of good faith and fair dealing. Specifically, the plaintiffs claim that the defendant breached its duty by: (1) failing to notify the plaintiffs promptly that it was denying their claim; (2) failing to set forth fully and fairly the reasons for denying the claim; (3) rejecting the plaintiffs’ figures with respect to losses without showing in what respect they were incorrect or without offering figures of its own; (4) insisting that the plaintiffs submit to examination under oath and produce hundreds of documents even though it had already decided it was not going to pay the claim; and (5) failing to conduct a prompt investigation into the plaintiffs’ claim, despite their desperate financial circumstances. We find that this claim is entirely without merit.

In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984), we noted that “[t]he implied covenant of good faith and fair dealing has been applied by this court in a variety of contractual relationships, including . . . insurance contracts; Hoyt v. Factory Mutual Liberty Ins. Co., 120 Conn. 156, 159, 179 A. 842 (1935); Bartlett v. Travelers Ins. Co., 117 Conn. 147, 155, 167 A. 180 (1933); cf. Grand Sheet Metal Products Co. v. Protection Mutual Ins. Co., 34 Conn. Sup. 46, 375 A.2d 428 (1977) (tortious breach of covenant of good faith) . . . .” The concept of good faith and fair dealing is “[essentially ... a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. The principle, therefore, cannot be applied to achieve a result contrary to the clearly expressed terms of a contract, unless, possibly, those terms are contrary to public policy.” Magnan v. Anaconda Industries, Inc., supra, 567.

At the outset, we note that the examination of good faith and fair dealing in the settling of an insurance claim requires a case-by-case analysis. West Haven v. United States Fidelity & Guaranty Co., 174 Conn. 392, 397, 389 A.2d 741 (1978). Here, the record indicates that the plaintiffs hindered the defendant’s ability to process their claim promptly. For example, the named plaintiffs voluntary statement to the Stamford police contained numerous untruths regarding his financial situation, the partnership’s financial situation and lawsuits pending against him in both his individual capacity and as a member of the partnership. Furthermore, the defendant did respond within the time period mandated by General Statutes § 38-98. Moreover, although the defendant did require the plaintiffs to submit to examinations under oath, a provision of the insurance policy provided for such examination. The record reveals that the defendant undertook an extensive, lengthy investigation of the fire. Considering that the origin of the fire was incendiary, however, it was not unreasonable for the defendant to do so. The defendant did not breach the implied covenant of good faith and fair dealing.

There is no error.

In this opinion the other justices concurred.

       The defendant abandoned this special defense in its trial brief.

       We have examined caselaw from twenty-five states that have considered the standard of proof in a civil arson case. Twenty-two states have applied the preponderance of the evidence rule: Mueller v. Hartford Ins. Co. of Alabama, 475 So. 2d 554 (Ala. 1985); Godwin v. Farmers Ins. Co. of America, 129 Ariz. 416, 631 P.2d 571 (1981); Haynes v. Farm Bureau Mutual Ins. Co. of Arkansas, 11 Ark. App. 289, 669 S.W.2d 511 (1984); Lawson v. State Farm, Fire & Casualty Ins. Co., 41 Colo. App. 362, 585 P.2d 318 (1978); Precision Printers, Inc. v. Central Mutual Ins. Co., 175 Ga. App. 890, 334 S.E.2d 914 (1985); Dean v. Ins. Co. of North America, 453 N.E.2d 1187 (Ind. App. 1983); Neises v. Soloman State Bank, 236 Kan. 767, 696 P.2d 372 (1985); Clifton v. Louisiana Farm Bureau Casualty Ins. Co., 510 So. 2d 759 (La. App. 1987); Trempe v. Aetna Casualty & Surety Co., 20 Mass. App. 448, 480 N.E.2d 670 (1985); United Gratiot Furniture Mart, Inc. v. Michigan Basic Property Ins. Assn., 159 Mich. App. 94, 406 N.W.2d 239 (1987); DeMarais v. North Star Mutual Ins. Co., 405 N.W.2d 507 (Minn. App. 1987); Britton v. Farmers Ins. Group (Truck Insurance Exchange), 721 P.2d 303 (Mont. 1986); Italian Fisherman, Inc. v. Commercial Union Assurance & Co., 215 N.J. Super. 278, 521 A.2d 912, cert. denied, 107 N.J. 152, 526 A.2d 211 (1987); Yassoo Enterprises, Inc. v. North Carolina Joint Underwriting Assn., 73 N.C. App. 52, 325 S.E.2d 677 (1985); Zajac v. Great American Ins. Cos., 410 N.W.2d 155 (N.D. 1987); Caserta v. Allstate Ins. Co., 14 Ohio App. 3d 167, 470 N.E.2d 430 (1983); Seals, Inc. v. Tioga County Grange Mutual Ins. Co., 359 Pa. Super. 606, 519 A.2d 951 (1986); Rutledge v. St. Paul Fire & Marine Ins. Co., 286 S.C. 360, 334 S.E.2d 131 (1985); Raphtis v. St. Paul Fire & Marine Ins. Co., 86 S.D. 491, 198 N.W.2d 505 (1972); Texas General Indemnity Co. v. Speakman, 736 S.W.2d 874 (Tex. Civ. App. 1987); Huff v. State Farm Fire & Casualty Ins. Co., 716 S.W.2d 927 (Tenn. App. 1986); Great American Ins. Co. v. K & W Log, Inc., 22 Wash. App. 468, 591 P.2d 457 (1979); Hayseeds, Inc. v. State Farm Fire & Casualty, 352 S.E.2d 73 (W. Va. App. 1986). Three jurisdictions have applied the clear and convincing evidence standard: Schultz v. Republic Ins. Co., 124 Ill. App. 3d 342, 464 N.E.2d 767 (1984); Hutt v. Lumbermens Mutual Casualty Co., 95 App. Div. 2d 255, 466 N.Y.S.2d 28 (1983); Northwestern National Ins. Co. v. Nemetz, 135 Wis. 2d 245, 400 N.W.2d 33 (1986).

       The pertinent direct examination of Frank Verrastro is as follows:
      “Q. And there were a limited number of keys; did you hear him (prior witness) say that?
      “A. Yes.
      “Q. Now, can you tell us how many keys there were, to the best of your knowledge?
      “A. Myself, my brother, my wife, the night manager, the cleaning service.
      “Q. Now during the course of the four years prior to the fire, did you have different employees who would have access to the keys?
      “A. Yes.
      “Q. As far as you know, did they turn them in when they left, though?
      “A. Yeah, they turned their keys in.
      “Q. Okay. . . .
      “The Court: are you saying you changed night managers during those four years and you changed cleaning services?
      “The Witness: Yes, we did.
      “The Court: But when you got a new night manager or new cleaner, the old one would give up his key.
      “The Witness: Yes, he did.”

       A sworn proof of loss was required by paragraph 8 (e) of form CD-4 of the policy. A sworn proof of loss is also required by General Statutes § 38-98.


author: Per Curiam.

text:
    State of Connecticut v. Earl Fletcher
    (13186)
    Healey, Shea, Callahan, Glass and Santaniello, Js.
    Argued March 3
    decision released April 26, 1988
   Per Curiam.

In this case the Appellate Court found error in the judgment of the trial court and set aside the convictions of the defendant for manslaughter in the second degree in violation of General Statutes § 53a-56a and for carrying a pistol without a permit in violation of General Statutes § 29-35. State v. Fletcher, 10 Conn. App. 697, 525 A.2d 535 (1987). This court granted the state’s petition for certification, limiting the issues to be presented on the appeal to the following question: “May the trial court, when it receives inquiries from the foreperson of the jury regarding the legal standards applicable to the facts of the case, decline to answer those questions or to clarify its instructions upon its determination that the inquiries were made for the benefit of less than the entire panel?”

The Appellate Court had held that the refusal of the trial court to respond to written questions submitted and signed by the foreperson of the jury, because the inquiry had not been made on behalf of all the jurors, was erroneous and had deprived the defendant of a fair trial in violation of his constitutional rights. Id., 701-705. The Appellate Court also concluded that the state had not demonstrated, in accordance with the standard applicable to constitutional violations, that this error was harmless beyond a reasonable doubt. Id., 708-709.

We agree entirely with the view of the Appellate Court that, upon a request by the jury during deliberations for additional instructions, the jury must be recalled and given “additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions,” as Practice Book § 864* prescribes. We also concur with its analysis that, since a jury verdict must be unanimous, “each juror, through the foreperson, must be able to apply to the trial judge for the purpose of obtaining a clarification of the applicable law.” Id., 704. Accordingly, we adopt the conclusion of the Appellate Court that “[clarification of the instructions when the jury or one of its members manifests confusion about the law is mandatory.” Id., 705. It follows that our answer to the certified question of whether the trial court may decline to respond to requests for clarification of the legal principles applicable to a case when the inquiry has been made for the benefit of less than all members of the jury is “No.” Although § 864 refers to a request by the “jury” for additional instructions, the use of the collective form cannot be deemed to override the evident purpose of the rule to implement a defendant’s right to have all members of the jury correctly and adequately instructed. State v. Hines, 187 Conn. 199, 206, 445 A.2d 314 (1982).

The judgment of the Appellate Court is affirmed.

       In considering the harmfulness of the trial court’s refusal to answer the questions submitted, the Appellate Court opinion focuses specifically upon the effect of this failure on the possibility that the jury lacked sufficient understanding of the principles relating only to justification by self-defense pursuant to General Statutes § 53a-19. Three of the jury inquiries referred specifically to that defense: (1) “Would you re-define ‘reasonable doubt’ when you clarify the charges under which the defendant could be found guilty or acquitted by reason of self-defense?” (2) “If the defendant believes in his own mind that a threat exists to his well-being (although facts might disprove it) can it be concluded that he may have had just cause to resort to deadly force to protect himself?” (3) “I would like to know, if the defendant in his state of mind truly believed that he was in danger of physical harm, [could he] justifiably use deadly force even though the danger might not exist?” A fourth question asked simply: “What is reasonable doubt?”
      The judgment of the Appellate Court set aside the defendant’s conviction not only for manslaughter in the second degree but also for carrying a pistol without a permit. The opinion, however, does not address specifically the effect of the failure to answer the questions posed upon the latter conviction. In its petition for certification, however, the state did not seek review of the determination presumably made by the Appellate Court that the failure to respond to the questions was harmful not only with respect to the manslaughter conviction but also with respect to the conviction for carrying a pistol without a permit. At no time, so far as we are aware, has the state claimed that the order for a new trial should have been limited to the manslaughter charge. Accordingly, we have no occasion to review this aspect of the Appellate Court opinion and confine our discussion to consideration of only the certified question.

       Practice Book § 864 provides: “If the jury, after retiring for deliberations, request additional instructions, the judicial authority, after notice to the parties, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions.”


author: Peters, C. J.

text:
    William A. DiBella v. Gary Widlitz et al.
    (13326)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.
    Argued March 1
    decision released April 26, 1988

      Bourke G. Spellacy, with whom, on the brief, was Peter R. Huntsman, for the appellant-appellee (plaintiff).

      Irving H. Perlmutter, with whom, on the brief, was Gary P. Sklaver, for the appellees-appellants (defendants).
   Peters, C. J.

The dispositive issue in this case is whether the trial court abused its discretion when it denied specific performance of a contract to a buyer of real estate who failed to establish that he was ready, willing and able to perform at the date set for the closing. The plaintiff, William A. DiBella, brought an action seeking specific performance and damages because of the refusal of the defendants, Gary Widlitz and Patricia M. Widlitz, to convey certain real property located in Westbrook. After a hearing, the trial court rendered a judgment for the defendants. Both parties have appealed. Because we find no error on the plaintiffs appeal, we need not consider the appeal of the defendants.

The trial court found the following facts. In a contract dated September 5,1983, the defendants agreed to sell the plaintiff certain beachfront property in West-brook for $190,000 toward which the buyer made a down payment of $7000. Because of a pending zoning appeal, the date of closing was by mutual agreement postponed to be held within thirty days after the appeal had terminated in favor of the defendants. On April 18, 1985, the defendants notified the plaintiff that the zoning matter had been favorably resolved and asked for a closing. Despite the defendants’ repeated requests for a prompt closing date, the plaintiff, a Connecticut state senator, insisted on delay until the termination of his legislative commitments on June 4,1985. When the defendants sought additional security because of this delay, the plaintiff not only refused to post an additional deposit but informed them that he had filed the contract of sale on the land records.

At a meeting at the site on June 14, 1985, the parties agreed that a closing would be held on July 22, 1985. At that meeting, problems relating to an access road and a foundation were resolved, and the plaintiff received assurances from the defendants that he would receive a written easement for water from an adjoining landowner. The plaintiff’s attorney thereupon wrote the defendants that the closing date was to be July 23, 1985. When the plaintiff did not appear for the closing as scheduled, the defendants contacted the plaintiff and personally informed him that July 26,1985, at 5 p.m. was a final closing date and time. The plaintiff did not demur orally, but sent a letter of protest, on July 25, 1985, by regular mail. As of July 23 and July 26,1985, the plaintiff was not in fact ready, willing and able to proceed with the closing. Because of the plaintiff’s failure to appear for the scheduled closing on July 26,1985, the defendants, on July 27,1985, gave him notice that the contract of sale had been terminated.

On July 29, 1985, the plaintiff went to the office of the defendants’ attorney with two checks sufficient to cover the unpaid balance of the purchase price. He announced his willingness to waive any claimed problems relating to the purchase, and was ready to close the deal. Due to their previous termination of the contract, the defendants refused to proceed further.

On the basis of these facts, the court concluded that the plaintiff could not prevail. It held that “the plaintiff was not ready, willing and able to fulfill his part of the contract until after the contract had been rescinded. Although he had funds available on the 29th, they became available subsequent to July 26th, the final day set by the defendant[s].” The court determined that the equitable remedy of specific performance was unwarranted because of the dilatory conduct of the plaintiff or his representatives, which had justified the defendants’ good faith insistence on a termination date for the contract of sale. The court also held that the plaintiff had adduced insufficient evidence to justify awarding him damages.

The plaintiff’s appeal raises four claims of error. The plaintiff alleges that the trial court erred: (1) in finding that, on July 24 or 25, 1985, the defendants had given sufficient notice of a final date for the closing of the sales contract; (2) in concluding that the plaintiff was obligated to prove his ability to perform when the defendants had not, at that time, provided him with adequate water rights; (3) in excluding the testimony of the plaintiff’s proffered expert witness; and (4) in failing to award damages to the plaintiff. We find no error.

I

The plaintiff launches two different attacks on the trial court’s finding that he was not entitled to specific performance because, on July 26, 1985, he was not ready, willing and able to perform. First, the plaintiff challenges the court’s essentially factual finding that July 26 was the final date for closing and that the plaintiff had sufficient notice of that date. Second, he challenges the court’s legal conclusion that he was obligated to prove his ability to perform when the defendants allegedly had not yet fulfilled all the conditions stated in the contract of sale.

The plaintiff’s claim with regard to the trial court’s finding of fact need not long detain us. Under familiar principles of appellate review, a trial court’s factual finding will not be reversed or modified unless it is “clearly erroneous in view of the evidence and pleadings in the whole record.” Practice Book § 4061; Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 159-60, 510 A.2d 440 (1986); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Despite the plaintiff’s argument to the contrary, we conclude that the court could reasonably have found that the plaintiff, through his attorney, had expressly, after extended delays, agreed to a closing on July 23, 1985, which he failed to attend. Thereafter, the plaintiff’s attorney was expressly informed that no further extension of time would be permitted after July 26, 1985. On this factual record, the court could reasonably find that the plaintiff was apprised in a timely manner of the date on which the contract would terminate. In light of the factual circumstances as a whole, it was not clearly erroneous for the court to determine that this final extension was a legitimate response to the plaintiffs dilatory tactics.

The plaintiffs more serious claim is his argument that his own nonperformance was excused on the ground of the defendants’ alleged failure to complete their performance with respect to the water supply for the property he was buying. That argument is unpersuasive because it confuses the consequences of contractual stipulations that operate to condition a seller’s right to demand performance with a buyer’s obligation to establish his own entitlement to the discretionary, equitable relief of specific performance.

In this case, had it been the defendants who had come to court seeking specific performance from the plaintiff, they might have encountered difficulties in persuading a court to grant them this remedy without a showing of a written modification or an express waiver of the contract provisions concerning a water source for the property at issue. As the plaintiff reminds us, we have held, in an action by a seller of services, that “[o]ne cannot recover upon a contract unless he has fully performed his own obligation under it, has tendered performance, or has some legal excuse for not performing.” Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137 (1947).

The lesson to be drawn from Automobile Ins. Co. is that a buyer who seeks specific performance must demonstrate his own compliance with the obligations the sales contract imposes upon him. The plaintiffs amended complaint contains the standard allegation that he was “at all times [material to this action]. . . ready, willing and able to pay . . . .” We have repeatedly held that a trial court may justifiably withhold equitable relief from a buyer who, put to his proof on such an allegation, fails to satisfy his burden of demonstrating his financial ability to purchase the property. Frumento v. Mezzanotte, 192 Conn. 606, 615-17, 473 A.2d 1193 (1984); Allen v. Nissley, 184 Conn. 539, 540-42, 440 A.2d 231 (1981); Eastern Consolidators, Inc. v. W. L. McAviney Properties, Inc., 159 Conn. 510, 510-11, 271 A.2d 59 (1970). A buyer must prove his financial ability to go forward even when a seller entirely refuses to participate in a closing. Frumento v. Mezzanotte, supra, 616. A fortiori, the plaintiff in this case was not relieved of his burden of proving his ability to meet his financial obligations under his contract of purchase because of any alleged failure on the defendants’ part to satisfy any condition that the contract contained.

On this crucial aspect of the plaintiff’s case, the trial court made the following express finding: “As of July 23rd and July 26th, the plaintiff was not ready, willing and able to proceed with the closing not having arranged a mortgage commitment in accordance with the terms of the agreement.” In his appeal, the plaintiff does not directly challenge this finding of fact. Indirectly, the plaintiff appears to rely on his personal appearance, checks in hand, for an unannounced and unscheduled closing at the office of the defendants’ attorney three days subsequent to the final date for closing. He also adverts to his production at trial of an unsigned mortgage commitment that had, by its own terms, expired long before the final date for closing. Neither singly nor jointly does this evidence raise any doubt about the validity of the trial court’s finding that, within the time frame for a final closing that the court found to be reasonable, the plaintiff had failed to meet his burden of proving his financial ability to perform. In light of this finding of fact, the trial court cannot be faulted for denying the plaintiff’s request for specific performance.

II

If he cannot prevail in his claim for specific performance, the plaintiff urges us to hold, in the alternative, that he was at least entitled to recover damages from the defendants. The trial court refused to make such an award on the ground that “[tjhere was insufficient evidence adduced to justify awarding any damages to the plaintiff in this case.” The plaintiff maintains that the trial court’s conclusion was in error for two reasons: (1) the court wrongly excluded the testimony of his expert witness, Peter Bonanno; and (2) even without the Bonanno testimony, the plaintiff had established a financial loss for which the defendants were liable. We are unpersuaded.

The plaintiff offered Peter Bonanno, a real estate agent, to testify to the increased value, at the time of trial, of the real property that was at issue in this case. Bonanno had been a real estate agent in Westbrook, where the property was located, and in the adjoining towns of Old Saybrook and Essex, since 1977. He was familiar with listing prices and sales prices as part of his professional access to multiple listing services. He had no demonstrated expertise, however, in property-appraisals, having taken no training in that subject and having not previously testified about real property values in any judicial proceeding. Furthermore, he had undertaken no special study to determine the value of the property at issue, or comparable property, during the relevant time period, 1985 to 1986. On this limited showing, the trial court sustained the defendants’ objection to Bonanno’s qualifications to testify as an expert. The court stated: “By no means have you established this man as an expert, even close to an expert, on the appraisal of real estate.”

Whether a witness is qualified to testify as an expert is a matter that rests in the sound discretion of the trial court. State v. Ortiz, 198 Conn. 220, 228, 502 A.2d 400 (1985); State v. Wilson, 180 Conn. 481, 489-90, 429 A.2d 931 (1980); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 118 (a). The role of an expert witness is to furnish the trier with special guidance drawn from his or her particular training, knowledge or experience. See, e.g., State v. Hanna, 150 Conn. 457, 460, 191 A.2d 124 (1963). In the circumstances of this case, we conclude that the trial court did not abuse its discretion in determining that Bonanno had not been shown to have such special competence with regard to property valuation that his expert testimony on that subject should have been admitted into evidence.

Apart from Bonanno, the only other evidence that the plaintiff introduced to justify an award of damages was the testimony of Nicola Ferzacca, an architect. This witness testified to substantial increases in building costs between 1986 and 1987. With respect to the building project for which he had prepared conceptual drawings on the plaintiff’s behalf, Ferzacca estimated that the costs of construction would have increased by $51,000 during that year, and that additional architect’s fees would have added a further $6000 to the overall cost.

The fact that this evidence was placed on the record does not, however, establish the plaintiffs right to recover damages. The trial court might have been unpersuaded of the probative value of Ferzacca’s testimony; see Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987); Ferri v. Pyramid Construction Co., 186 Conn. 682, 690, 443 A.2d 478 (1982); or it might have concluded that there was an insufficient causal connection between increased building costs and the defendants’ termination of the contract for the sale of the real property. Moreover, as an adjunct to a claim for specific performance, the plaintiff’s claim for damages invoked the trial court’s discretionary authority to grant or to withhold monetary relief in light of the equities of the case. Allen v. Nissley, supra, 546-47; Cohen v. Meola, 184 Conn. 218, 221, 439 A.2d 966 (1981); Heyman v. CBS, Inc., 178 Conn. 215, 229, 423 A.2d 887 (1979). From this perspective, the court might have concluded that whatever damages the plaintiff had suffered were as attributable to his own dilatory tactics as to the defendants’ conduct in insisting on a final date for closing.

The precise basis for the trial court’s decision on damages is unclear, the court having noted only that there was “insufficient evidence” to justify such an award. In such circumstances, a party who is dissatisfied with the ruling of the trial court must take the laboring oar of seeking an articulation of its reasoning. Practice Book § 4051; Barnes v. Barnes, 190 Conn. 491, 493, 460 A.2d 1302 (1983); Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982); Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982). Absent a record that demonstrates that the trial court’s reasoning was in error, we presume that the trial court correctly analyzed the law and the facts in rendering its judgment. See Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985). We therefore have no grounds for overturning the trial court’s decision not to award the plaintiff damages.

There is no error on the appeal; the cross appeal is dismissed as moot.

In this opinion the other justices concurred.

       The record indicates that the defendants tendered the return of the plaintiff’s down payment to him, but that he did not accept the tender. In light of our disposition of this case, we assume that the plaintiff is now entitled to the return of his down payment. See Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 489, 460 A.2d 1297 (1983).

         The defendants’ cross appeal alleges that the trial court erred in foreclosing repeated efforts by the defendants to inquire into the plaintiffs financial ability to consummate the sale. In light of our disposition of the plaintiffs appeal, these issues have become moot.

       Although the designation of a specific time for payment or conveyance under a real estate contract does not automatically make time of the essence, such a stipulation can effectively set a final date for performance when the sellers have given proper notice of their intent to have a final closing and have manifested their continued interest in fulfillment of the contract. Kakalik v. Bernardo, 184 Conn. 386, 392-94, 439 A.2d 1016 (1981).

       In contracts for the sale of land, both buyers and sellers under proper circumstances may be entitled to specific performances. See 3 Restatement (Second), Contracts § 360, comment e (1981).

       The trial court might have dispensed of this claim as encompassed by its earlier finding that the defendants had justifiably terminated the contract. Since the trial court might, however, have addressed the damages claims independently, we will review the plaintiff’s claims of error on this basis.