author: ESPINOSA, J.

text:
    STATE OF CONNECTICUT v. JAMES R.

    (AC 32802)
    Lavine, Espinosa and West, Js.

      Argued March 14
    officially released September 18, 2012

      Brian J. Woolf, with whom were Kathleen E. Rallo and, on the brief, Michael A. Roussos, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and David A. Gulick, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

   Opinion

ESPINOSA, J.

The defendant, James R., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), kidnapping in the second degree in violation of General Statutes § 53a-94 (a), burglary in the second degree in violation of General Statutes § 53a-102 (a) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The defendant claims that (1) prosecutorial impropriety deprived him of a fair trial and (2) the trial court demonstrated judicial bias in the state’s favor, thereby depriving him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Prior to the events at issue in this appeal, the female victim had resided with her mother and the defendant, her stepfather, in Waterbury. In 2007, the victim moved out of the residence and began living in another residence in Waterbury. The victim did not speak with her mother after moving out of her mother’s residence, but the defendant routinely visited the victim at her new residence. The victim gave birth to a daughter in 2008.

On October 1, 2008, the victim was in her bedroom with a male friend when the defendant entered her apartment and stood in the bedroom doorway. The defendant stated, “I was fit to scare your ass,” and, “I would have got you.” After the victim walked the defendant to his automobile, the defendant asked the victim questions about people who might be staying at her house and when they would be at her house.

On October 2,2008, the victim was home, lying on her bed with her seven month old daughter, and watching television. At approximately 9 a.m., the defendant, wearing a black mask, a black shirt, dark pants and gloves, appeared in the victim’s bedroom. The defendant was holding a sofa cushion. He lunged on top of the victim and her daughter and held the sofa cushion over the victim’s head. When the victim started to scream, the defendant threatened to kill her daughter.

The defendant bound the victim’s hands with black electrical tape, put a blanket over her head and undressed her from the waist down. The defendant fondled the victim’s breasts and inserted his penis into her vagina for a brief period of time before he was startled by a noise from a neighboring residence. The defendant placed a heavier blanket over the victim’s head and carried her to the kitchen, where he restrained her to a chair. The defendant exited the residence, after which time the victim broke free from the chair and obtained assistance from a neighbor. Members of the Waterbury police department arrived on the scene by 9:22 a.m.

By approximately 10:20 a.m., David Sheehan, a police sergeant, was at the defendant’s residence after having interviewed the victim. The defendant told Sheehan that he had been home all morning. The defendant voluntarily accompanied a police officer to police headquarters, where he was interviewed by Jorge Tirado, a detective. Initially, the defendant told Tirado that he had been home all morning because his wife asked him to perform work on their house. Later, the defendant’s wife told Tirado that she expected that the defendant would be at work that day. When Tirado confronted the defendant with evidence that police officers, upon arriving at the defendant’s residence, had observed that the hood of his automobile was very warm to the touch, strongly suggesting that the vehicle had been driven shortly prior to their arrival, the defendant stated that he had moved his automobile from his driveway at approximately 5 a.m., so that his wife could drive her automobile to work. The defendant’s wife told Tirado that this was not accurate because her automobile was not parked in the driveway that morning.

Upon further questioning, the defendant told Tirado that he had, in fact, left his residence earlier that morning to purchase cigarettes at a convenience store, a statement that was not supported by a review of the store’s surveillance video. Initially, the defendant stated that he had not had any contact with the victim for months, but he then admitted that he had visited the victim at her residence just days earlier.

After the defendant refused to consent to a search of his automobile, the police obtained and executed a warrant to search the automobile. The search yielded a black ski mask, a pair of gloves and a bag containing a receipt from a hardware store that was located less than one half of a mile from the victim’s residence. These items were stashed under the driver’s seat of the automobile. The gloves and ski mask bore stains that, within a reasonable degree of scientific certainty, matched the composition of a skin tanning product that the victim had on her body at the time of the sexual assault. DNA testing of one of the gloves seized from the defendant’s automobile revealed that the victim was a likely contributor to DNA taken from the glove. The receipt found in the automobile was for a pair of gloves that had been purchased less than one-half hour prior to the invasion of the victim’s residence. Police later discovered a roll of black electrical tape in the defendant’s residence. Subsequent analysis of the tape revealed that, within a reasonable degree of scientific certainty, the tape used to bind the victim was taken from the roll of tape discovered at the defendant’s residence.

Following the search, Tirado asked the defendant if he went to the hardware store that morning. The defendant replied that he had not gone to the store that morning. After Tirado confronted the defendant with the evidence of the store receipt, the defendant stated that he had overlooked the fact that he went to the store that morning to purchase paint. When Tirado specifically asked the defendant if he had purchased gloves at the store, the defendant stated that, earlier, he forgot to mention the purchase of the gloves because he purchased the gloves after he purchased the paint.

The defendant’s conviction followed a trial before a jury. This appeal followed. Additional facts will be set forth as necessary.

I

PROSECUTORIAL IMPROPRIETY

First, the defendant claims that, on more than seventy occasions throughout the trial, prosecutorial impropriety occurred that deprived him of a fair trial. Several portions of the defendant’s claim border on being unre-viewable, for they consist of little more than references to trial transcripts followed by isolated words and phrases quoted from the trial transcripts. Although the defendant’s brief is replete with such transcript citations as well as boilerplate concerning various types of prosecutorial impropriety, in many instances it lacks a thorough analysis. Conclusory labels are not a substitute for sound legal analysis. See State v. T.R.D., 286 Conn. 191, 213 n.18, 942 A.2d 1000 (2008) (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]). Notwithstanding the cursoiy analysis that accompanies many of the alleged instances of impropriety, we have reviewed the entire claim. We will discuss in detail only those aspects of the claim that, in our assessment, warrant a more thorough discussion.

Before analyzing the alleged impropriety, we observe that the defendant did not object to most of the alleged impropriety at issue in this claim. The claim is reviewable on appeal, however, without resort to an extraordinary level of review. See State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007); State v. Warholic, 278 Conn. 354, 360, 897 A.2d 569 (2006). “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry. . . .

“[0]ur determination of whether any improper conduct by the state’s attorney violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that misconduct was objected to at trial. . . . These factors include: the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 560-61, 34 A.3d 370 (2012).

A

First, the defendant claims that, at several points during the presentation of evidence, the prosecutor improperly expressed his opinion concerning the credibility of witnesses. “[A]s a general rule, prosecutors should not express their personal opinions about the guilt of the defendant, credibility of witnesses or evidence. . . . Our jurisprudence instructs [however] that a prosecutor may comment on a witness’ motivation to be truthful orto lie.” (Citation omitted; internal quotation marks omitted.) State v. Skidd, 104 Conn. App. 46, 66, 932 A.2d 416 (2007).

The defendant draws our attention to the state’s cross-examination of the victim’s sister, J, who is the defendant’s stepdaughter. During the questioning, the prosecutor questioned the witness about her motivation in testifying for the defendant. After the witness stated that she was testifying truthfully, the prosecutor remarked: “We’ve seen that, obviously, when I presented the evidence to you,” and then followed with a question. The state acknowledges, and we agree, that the prosecutor’s comment was improper. Cross-examination did not afford the prosecutor an opportunity to comment on the witness’ testimony, and the prosecutor’s comment, sarcastic in nature, reasonably could have been interpreted as a derisive comment about the witness’ testimony.

Additionally, the defendant refers to the defendant’s examination of Kevin McCall, who testified that he believed that he resided with the victim prior to October 2, 2008, and that he resided with the victim for four to six months. During an objection, the prosecutor stated that the witness’ memory was not clear. We disagree that the challenged statement constituted an improper comment on the credibility of the witness. The ground of the objection was that an inquiry by the defendant should not be permitted because the witness had not testified clearly with regard to relevant dates. Our review of the testimony that preceded the colloquy reveals that the witness had not testified clearly with respect to when the relevant observations at issue had occurred. Considered in its context, the objection was not an improper comment on the credibility of the witness.

Next, the defendant focuses on the testimony of Christopher Caviness, a boyfriend of one of the victim’s sisters, who testified about his observations of the victim being intoxicated and dancing at the defendant’s home on Christmas, 2009. During his cross-examination by the state, Caviness testified that he was testifying because of his belief in the defendant’s innocence. Thereafter, the prosecutor confronted Caviness with some of the state’s tangible physical evidence, specifically, the gloves found under the front seat of the defendant’s automobile. When he was asked to comment on this evidence, Caviness shifted blame to the police. The prosecutor responded, “Oh, it’s the police’s fault. . . . Police’s fault. What if [the victim’s] makeup was on [the gloves], police’s fault again?” (Emphasis added.)

We disagree that the challenged portion of the prosecutor’s inquiry constituted an improper comment on the witness’ credibility. The statement was a means of restating the witness’ view of the facts. A prosecutor may not comment on a witness’ credibility but may challenge vigorously by means of cross-examination the testimony of any witness. Our case law counsels that not every use of rhetorical devices by the prosecutor is improper. State v. Ancona, 270 Conn. 568, 594, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005).

The defendant argues that, five times during the state’s cross-examination of defense witnesses, the prosecutor definitively asserted that the victim’s DNA was identified on the gloves that the police found in the defendant’s automobile. The defendant claims that these assertions by the prosecutor were an impermissible means of indirectly bolstering the testimony of state’s witnesses who testified about the DNA evidence found on the gloves, a disputed question of fact. Having reviewed these instances, we disagree that they were an impermissible means of suggesting that the state’s witnesses had testified truthfully. Rather, the prosecutor’s questions were based on evidence in the state’s case. The prosecutor properly questioned defense witnesses about such evidence.

B

Next, the defendant claims that, during the presentation of evidence, the prosecutor expressed an opinion as to his guilt, disparaged his character on multiple occasions and commented negatively on his credibility. It is well established that a prosecutor may not “express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position.” (Internal quotation marks omitted.) State v. Gibson, 302 Conn. 653, 660, 31 A.3d 346 (2011). Furthermore, “a prosecutor should avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury’s attention from their duty to decide the case on the evidence. ... It is no part of a [prosecutor’s] duty, and it is not his right, to stigmatize a defendant.” (Internal quotation marks omitted.) State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

The defendant relies on a question the prosecutor asked of S, who is the victim’s sister and the defendant’s stepdaughter. S testified that she appeared in court because she believed in the defendant’s innocence. The prosecutor responded by asking S about some of the state’s evidence, specifically, the gloves found in the defendant’s automobile. After S testified that she was not satisfied with the proof presented, the prosecutor asked: “So, once again, we’re here today for a man who pays your bills and lets you live [at his residence] free, and you're just going to sit there with all that ... I just told you and say that you still think he didn’t do it?” (Emphasis added.)

This question was a means of challenging the witness’ testimony. This is not a circumstance in which a prosecutor expressed a personal opinion, apart from the evidence, of a defendant’s guilt. The prosecutor, referring to specific evidence, merely challenged the witness’ belief in the defendant’s innocence. The inquiry was not improper.

The defendant also relies on a question that the prosecutor asked of him during cross-examination. The defendant testified that he purchased the gloves found in his automobile from a hardware store. He testified that, after making an initial purchase of paint in the store, he went back inside and bought the gloves. The prosecutor asked: “[T]sn’t it true that [when] you walked out [the store] after buying paint that day, you knew you were going over [to the victim’s residence] to do this and you went back in and bought the gloves for that reason?” (Emphasis added.)

We axe not persuaded that the inquiry was improper. This was not, as is suggested by the defendant, an instance of the prosecutor injecting a personal opinion that the defendant was guilty. The prosecutor merely asked a leading question of the defendant that was consistent with the evidence and the state’s theory of the case. Such inquiry was not improper.

The defendant also refers to questions that the prosecutor asked the defendant’s wife concerning his relationship with the victim. The defendant’s wife testified during her direct examination that she was aware of the fact that occasionally the defendant visited the victim at the victim’s residence. The prosecutor asked the defendant’s wife what her reaction would be if she learned that the defendant visited the victim more than she expected. The prosecutor asked the defendant’s wife what her reaction would be if she learned that the defendant had “lied” to her about his whereabouts when he was with the victim, or whether it would cause her to ask, “[w]hy would [the defendant] be there or if he was there and not doing anything wrong, why wouldn’t he just tell you?”

The inquiry was not a means of disparaging the defendant’s character. The inquiry was a means of confronting the witness with circumstances that were not hypothetical, but based on the evidence presented in the state’s case. The prosecutor did not argue, apart from the evidence, that the defendant was a liar. Rather, he asked the witness what her reaction would be if she learned that the defendant had lied about his whereabouts on the day prior to the sexual assault of the victim. In light of the fact that the inquiry was supported by the evidence, the inquiry was not improper.

During the defendant’s cross-examination, the prosecutor asked the defendant to explain his testimony that, at the time that the police arrived at his house, the automobiles at his house were wet with precipitation, but his house was not wet with precipitation. During the colloquy, the defendant stated that he knew that the house was not wet and that he knew a police officer observed him painting the house. Twice, the prosecutor stated, “Of course you do.” Following an objection by defense counsel, the court struck the prosecutor’s comments as being “editorial” in nature. We review these comments in their context, a vigorous cross-examination. Nonetheless, as the state acknowledges, it was improper for the prosecutor to inject such commentary during cross-examination of a witness.

The defendant also refers to two other inquiries that, he argues, demonstrate that the prosecutor commented negatively on his credibility and character. Having carefully reviewed the questions at issue, we are persuaded that they were properly based on the evidence and the state’s theory of the case. As stated previously, the state was not precluded from questioning witnesses about the evidence in the state’s case or from vigorously confronting witnesses, including the defendant, in an attempt to discredit their testimony.

C

The defendant claims that, twelve times during closing arguments, the prosecutor expressed his personal opinion about the credibility of several witnesses. As stated in part IA of this opinion, such type of commentary is improper.

We carefully have reviewed the words and phrases upon which the defendant has based this aspect of his claim. Given the weakness in the defendant’s claim, it would not serve a useful purpose to analyze in detail each aspect of it. Each instance of claimed impropriety did not reflect a personal opinion but was based on the evidence presented and the state’s theory of the case. The inquiries were not improper.

D

Next, the defendant claims that, on ten occasions during closing arguments, the prosecutor expressed his personal opinion that the defendant was guilty. As stated in part IB of this opinion, such type of commentary is improper.

We carefully have reviewed the alleged instances of impropriety. The statements made by the prosecutor did not suggest a belief in the defendant’s guilt that was personal in nature, meaning apart from a rational view of the evidence. Rather, the statements were based on a belief in guilt that was wholly connected to the evidence presented at trial. As this court has observed, “[t]he prosecutor was not precluded from interpreting the evidence elicited consistent with a finding of guilt.” State v. David O., 104 Conn. App. 722, 734 n.5, 937 A.2d 56 (2007), cert. denied, 285 Conn. 915, 943 A.2d 473 (2008).

E

The defendant claims that, on three occasions during closing arguments, the prosecutor referred to prejudicial information that was outside of the evidence presented at trial. “Our Supreme Court frequently has stressed the importance of restricting comments made during closing arguments to matters related to the evidence before the jury. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury [has] no right to consider.” (Emphasis in original; internal quotation marks omitted.) State v. Gamble, 119 Conn. App. 287, 302, 987 A.2d 1049, cert. denied, 295 Conn. 915, 990 A.2d 867 (2010).

The defendant relies on an argument made by the prosecutor in which he referred to the fact that the defendant was at the victim’s residence on the day prior to the alleged sexual assault and that he did not reveal this fact to the police when he was questioned. The victim testified that, on October 1, 2008, the day before the alleged assault, the defendant snuck into her apartment and came upon her and a male friend who were playfully “wrestling” on her bed. The victim testified that the defendant entered her residence unannounced and appeared in the doorway of her bedroom, after which time he said, “I was fit to scare your ass.” After the victim escorted the defendant out of her residence and to his automobile, the defendant asked the victim several questions about visitors to her residence. During argument, the prosecutor stated: “Remember the circumstances, they’re in [the bedroom], wrestling around, look up, and there he is, standing in the room again, in the doorway. Did he plan on possibly doing something the day before? Was he doing a little recon mission, trying to figure out the layout of the land? Was he going in there to see who’s hanging around her house? No one knows what’s in his mind.” (Emphasis added.) Later, the prosecutor reiterated this line of argument, questioning the purpose of the defendant’s presence at the victim’s residence: “Again, was that a recon mission, was that maybe the day he was going to do it?” (Emphasis added.)

We readily conclude that the challenged argument was not improper. There was ample evidence concerning the defendant’s unannounced appearance at the victim’s residence on the day prior to the alleged assault. It was not unreasonable for the prosecutor to invite the jury to infer that the defendant’s conduct in this regard not only was suspicious but that it was evidence of his gathering information to facilitate the assault that occurred the very next day. Accordingly, we conclude that the rhetorical questions at issue were based on the evidence and the inferences reasonably drawn therefrom.

During closing argument, the defendant’s attorney argued that it was improbable that the defendant purchased paint and gloves at the hardware store, which was located one-quarter to one-half mile from the victim’s residence, and then did not arrive at the victim’s residence until nearly one-half hour later. The defendant’s attorney opined that it was more reasonable to conclude that the defendant merely went home, as he testified, after he purchased the gloves. The state’s theory of the case, supported by the evidence, was that the defendant purchased the gloves at 8:34 a.m. and that the alleged sexual assault did not occur until approximately 9 a.m. Also, there was evidence that Donald Simpson, a friend of the victim, briefly visited with the victim at her residence sometime between 8:30 and 9 a.m. Simpson testified that he stopped by the residence unexpectedly on his way to work to talk to the victim and that, if he was not at work by 9:15 a.m., he would be considered late for work. He spoke with the victim for less than five minutes while she was on an enclosed porch in front of her residence. He testified that he did not observe an automobile matching the description of the defendant’s automobile, let alone any suspicious activity in the area.

Responding to the defense argument, the prosecutor argued: “Mr. Simpson said he was in a rush. He didn’t look around to see who was there. [The defendant] could have been sitting there while Simpson’s car was in the front of the house, watch him walk up the stairs and walk down the stairs. He could have been sitting there planning what he was doing. Who knows what goes through someone’s head before they commit an act like this. Improbable, no. My opinion, you can scratch that right off.” (Emphasis added.)

The defendant argues on appeal that the argument was improper because “[n]o evidence suggested the defendant’s presence at the scene, prior to the commission of the crime, on the date in question.” We disagree that the argument was not based on the evidence and the reasonable inferences to be drawn from the evidence. In light of the evidence presented by the state that the defendant was at a hardware store at approximately 8:30 a.m. and at the victim’s residence at 9 a.m., it was not unreasonable for the prosecutor to suggest that the defendant could have been parked in the vicinity of the victim’s residence at some time prior to 9 a.m., planning his criminal conduct. A careful review of the argument reveals that the prosecutor did not suggest that there was evidence of the defendant’s presence in front of the residence but only that such an occurrence was possible. Nothing about this argument was improper.

F

The defendant argues that, on five separate occasions, the prosecutor improperly questioned defense witnesses about his guilt or innocence and improperly injected his personal opinion by asserting, during questioning of defense witnesses, that the victim’s DNA was found on the gloves stashed under the driver’s seat of the defendant’s automobile. We disagree that the inquiries were improper.

It is well settled that “[n]o witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.” (Internal quotation marks omitted.) State v. Fuller, 56 Conn. App. 592, 619, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). As stated previously, a prosecutor must refrain from injecting personal opinion into his or her appraisal of the evidence but may, nonetheless, suggest reasonable inferences from the facts in evidence. See State v. Gamble, supra, 119 Conn. App. 302.

Our review of the record reveals that the inquiries of which the defendant complains were not an attempt to elicit an opinion from the witnesses as to the defendant’s guilt or innocence. Rather, they were an attempt to confront defense witnesses with the physical evidence presented by the state. Additionally, although it remained the exclusive province of the jury to determine whether the defendant’s DNA was found on the gloves, it did not invade the jury’s fact-finding function for the prosecutor to state, in the form of hypothetical questions asked of defense witnesses, that the defendant’s DNA was found on the gloves. In so doing, the prosecutor merely asked questions consistent with the state’s theory of the case and a reasonable interpretation of the evidence presented at trial, albeit one consistent with a finding of guilt.

G

Next, the defendant claims that the prosecutor improperly encouraged the members of the jury to identify with the victim. “A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Similarly, a prosecutor should not inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Warholic, supra, 278 Conn. 376. We disagree that the challenged conduct was improper.

Absent objection during the state’s case-in-chief, the prosecutor presented the recorded 911 call that a bystander who encountered the victim immediately after the sexual assault made to the police. The prosecutor played the recording for the jury both during the presentation of evidence and during closing arguments. Also, in argument, the prosecutor characterized the victim’s emotional state in the recorded conversation as “hysterical” and noted that during the conversation the victim was “screaming.”

The defendant claims that the prosecutor engaged in improper conduct by playing the recording before the jury and by so characterizing the victim’s emotional state. The defendant asserts that, in light of the fact that he did not contest that a sexual assault of the victim had occurred, the very introduction of this evidence did not serve any proper purpose at trial.

As a preliminary matter, we observe that the defendant has not raised an evidentiary claim in this appeal. The defendant did not object to the admission of the 911 recording, and this prosecutorial impropriety claim does not afford him an opportunity to obtain review of an unpreserved evidentiary claim. Insofar as the claim is rooted in prosecutorial impropriety, it has no merit. As we have stated previously, the prosecutor had a right to comment fairly on the evidence presented at trial. Thus, the prosecutor acted properly in characterizing the 911 recording and by relying on this evidence during his presentation of the evidence and his argument before the jury. Contrary to the defendant’s assertions, the defendant has not demonstrated that the prosecutor, in playing the 911 recording or discussing the evidence, appealed to the jury’s emotions or invited the jury to identify with the victim.

H

Finally, the defendant claims that, throughout the state’s examination of Tirado, the prosecutor improperly encouraged the witness to opine that the defendant was guilty, bolstered the witness’ testimony, commented on the defendant’s veracity, alluded to the defendant’s guilt and elicited testimony that tended to portray the defendant in an incriminating light.

After reviewing the numerous allegations of impropriety, we conclude that no impropriety occurred. The defendant’s claim amounts to a careful dissection of words and phrases used by the prosecutor and the witness in an attempt to transmute proper questions of the witness into instances of impropriety. It suffices to observe that the prosecutor was not precluded from asking questions that tended to portray the defendant in a negative light, tended to reveal his implication in the criminal activity with which he was charged and were consistent with the state’s theory of the case as demonstrated by the evidence. The inquiries did not take the form of personal opinion because they were inquiries that were based on the evidence and the rational inferences drawn therefrom, nor did they invite the witness to comment directly on the defendant’s guilt.

I

As discussed in parts I A and B of this opinion, the prosecutor engaged in two instances of impropriety during trial: one occurring during the cross-examination of the victim’s sister, J, and another occurring during the cross-examination of the defendant. Having identified impropriety, we undertake an analysis under State v. Williams, supra, 204 Conn. 540, to determine whether it deprived the defendant of a fair trial.

First, the impropriety was not invited by defense conduct or argument; it consisted of the prosecutor’s comments during his cross-examination of defense witnesses. Second, although the comments during cross-examination were improper, the instances of impropriety were not severe. Both instances of impropriety were similar in that they consist of editorial comments of a sarcastic nature that reasonably could be viewed as having called into doubt the witness’ testimony. The comments did not directly disparage the witnesses or their testimony. Third, the impropriety was infrequent, occurring once during the cross-examination of J and once during the cross-examination of the defendant. Certainly, the impropriety was by no means a pervasive element of the trial. Fourth, the impropriety was not central to the critical issues in the case. Fifth, following a defense objection, the court struck the prosecutor’s comments during the cross-examination of the defendant and reminded counsel to “play by the rules.” In light of the fact that the impropriety at issue was isolated and not severe in nature, this curative measure was sufficiently strong and appropriate. Because the defendant did not object to the impropriety that occurred during the cross-examination of J, the court did not take any curative measures with regard to that conduct. Finally, the state presented a very strong case against the defendant, one that included the victim’s testimony, physical evidence and strong circumstantial evidence.

Having considered the two instances of impropriety in light of the Williams factors, we are not persuaded that the impropriety deprived the defendant of a fair trial. The impropriety was infrequent and was not severe in nature, and the state presented a very strong case against the defendant. The defendant urges us to view cumulatively the claimed instances of impropriety in determining whether he was deprived of a fair trial. Whether viewed individually or cumulatively, the claimed instances of impropriety did not give rise to a constitutional violation.

II

JUDICIAL BIAS

Second, the defendant raises an unpreserved claim of judicial bias. This claim focuses on numerous actions of the trial court throughout the trial. The defendant alleges that the court appeared to collaborate with the state, appeared to adopt a position of advocacy in favor of the state and failed to maintain an impartial atmosphere during the trial. Specifically, the defendant asserts that the court appeared to demonstrate bias in that it, inter alia, (1) used words and phrases in responding to multiple objections raised by the state that “suggest[ed]” its deference to the state’s position; (2) “engaged in actions potentially suggesting an adoption of a position of advocacy”; (3) showed “seeming periodic deference” to the state in ruling on various evidentiary matters; and (4) failed to prevent sua sponte the prosecutor from engaging in the improper conduct addressed in part I of this opinion.

“It is well settled that courts [generally] will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court through a motion for disqualification or a motion for a mistrial. . . . We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal. . . . However, because a claim of the appearance of judicial bias strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary ... we nonetheless have reviewed unpreserved claims of judicial bias under the plain error doctrine.” (Citations omitted; internal quotation marks omitted.) State v. Herbert, 99 Conn. App. 63, 68, 913 A.2d 443, cert. denied, 281 Conn. 917, 917 A.2d 999 (2007).

The defendant does not argue that plain error exists and, thus, we do not engage in plain error review. See State v. McKenzie-Adams, 281 Conn. 486, 533 n.23, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007), overruled in part on other grounds byState v. Payne, 303 Conn. 538, 548, 34 A.3d 370 (2012). Instead, the defendant seeks review of his unpreserved claim under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). This request is flawed on several grounds.

As a preliminary matter, insofar as the claim is based on “the trial court’s actions pertaining to extensive pros-ecutorial misconduct,” the claim is not supported by the record and is, thus, without merit. We already have concluded in part I of this opinion that prosecutorial impropriety sufficient to deprive the defendant of a fair trial did not occur. The impropriety in this case was not extensive, as the defendant argues, but was infrequent and not severe. Furthermore, the record reflects that the court immediately took appropriate corrective measures following the defendant’s objection to one of the two improper comments made by the prosecutor. Insofar as the claim is based largely on the propriety of several of the court’s evidentiary rulings, the claim is not reviewable under Golding because such aspects of the claim are purely evidentiary in nature, brought before this court in the guise of a due process claim. Golding review does not afford an opportunity to reliti-gate each and every adverse ruling that was made at trial; it is an extraordinary remedy reserved for unpre-served constitutional violations. Last, insofar as the claim is based on various statements made by the court during the course of the trial, the claim essentially is that the court appeared to be partial. We conclude that these aspects of the claim are not reviewable under Golding because they are not constitutional in nature. See State v. D’Antonio, 274 Conn. 658, 669, 877 A.2d 696 (2005) (claim of judicial bias based on appearance of partiality in plea bargaining negotiations not reviewable under Golding because it is not constitutional in nature); State v. Herbert, supra, 99 Conn. App. 68 n.7 (“[t]he defendant’s claim of judicial bias based solely upon the appearance of partiality, does not rise to the level of a constitutional violation” [emphasis in original; internal quotation marks omitted]).

The judgment is affirmed.

In this opinion the other judges concurred.

       The court imposed a total effective sentence of forty-four years imprisonment, suspended after thirty-four years, followed by fifteen years of probation.

       By way of example, the defendant points out that, in response to an objection made by the state on relevancy grounds, the court replied, “I would join in that.” After hearing from the defendant’s attorney, however, the court overruled the state’s objection. The defendant also relies on the fact that, on several occasions during the defendant’s testimony, the court asked the defendant to respond only to the questions posed to him by counsel.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    SCHAGHTICOKE INDIAN TRIBE ET AL. v. MICHAEL J. ROST
    (AC 33374)
    Lavine, Robinson and Flynn, Js.

      Argued April 12
    officially released September 18, 2012

      Michael J. Rost, pro se, the appellant (defendant).

      Hugh J. Lavery, for the appellee (plaintiff Schaghti-coke Indian Tribe).

      Dennis L. Kern, for the appellee (plaintiff Schaghti-coke Tribal Nation).
   Opinion

ROBINSON, J.

The self-represented defendant in this summary process eviction action, Michael J. Rost, appeals from the trial court’s judgment of possession rendered in favor of the plaintiffs, the Schaghticoke Indian Tribe (SIT) and the Schaghticoke Tribal Nation (STN). The defendant claims that the court improperly (1) exercised jurisdiction by adjudicating a summary process action involving sovereign reservation land, (2) decided a dispute over tribal leadership, (3) rendered judgment without one of the plaintiffs being represented at the summary process trial and (4) ignored prior judicial decisions impacting STN’s authority to represent the interests of the Schaghticoke Indians. We affirm the judgment of the trial court.

The following facts, which either are undisputed on the basis of the record or were found by the court, and procedural history are relevant to our review of the claims on appeal. The Schaghticoke tribe is recognized by the state as a self-governing entity that possesses the power to, inter alia, “[djetermine tribal membership and residency on reservation land . . . .” General Statutes § 47-59a (b) (1). The Schaghticoke Indian reservation (reservation) is comprised of approximately four hundred acres of property located in Kent. For at least two years prior to the commencement of this summary process action, the defendant lived on the reservation with the permission of Gayle Donovan, a recognized Schaghticoke Indian, at her personal residence located at 262 Schaghticoke Road. Donovan had been given permission to build her residence on the reservation more than twenty years earlier. Donovan owns and is responsible for the residence, but she does not own the land.

On June 30, 2010, the plaintiffs jointly served the defendant with a notice to quit possession of “the [ejntire Schaghticoke [reservation (including but not limited to) Schaghticoke Road, Kent, CT” by July 27, 2010, on the ground that he had “[n]o right or privilege to occupy same.” On August 4, 2010, the plaintiffs commenced this summary process action. Initially, both plaintiffs were represented by Attorney Paul Garlasco. The plaintiffs alleged in their complaint that they “own and possess” the reservation and that the defendant entered the reservation with no right or privilege to occupy or remain on the reservation. The plaintiffs further alleged that the defendant had failed to quit possession, and, therefore, they sought a judgment of “[exclusive [possession of the reservation with an order of no re-entry” and “[a]n immediate execution of eviction of the [defendant].” The defendant filed an appearance and an answer to the complaint, in which he challenged the plaintiffs’ authority to evict him from the reservation. Specifically, he stated that the plaintiffs do not represent the historic tribe as evidenced by copies of documents that he attached to his answer and which allegedly were on file with the secretary of the state of Connecticut and with the Interior Board of Indian Appeals.

The matter initially was assigned for a pretrial hearing on October 22, 2010. On October 6, 2010, Garlasco filed a motion to withdraw as counsel for the plaintiffs, alleging a breakdown in the attorney-client relationship. Following a hearing, the court granted the motion to withdraw. The court also granted several continuances to allow the plaintiffs an opportunity to obtain new counsel. On January 27, 2011, the court issued notice to all parties that a summary process trial would be held on March 15, 2011. On March 14, 2011, Attorney Dennis L. Kern filed an appearance on behalf of STN only. The summary process trial went forward as scheduled on March 15, 2011. Kern and the defendant were present and each presented evidence; however, no one representing SIT appeared at the summary process trial. The court indicated at the close of the proceedings that it would continue the matter to April 15, 2011, at which time it would render a final decision.

On April 15, 2011, Attorney Hugh J. Lavery filed an appearance on behalf of SIT and also filed a motion asking the court to open the evidentiary portion of the trial to allow SIT an opportunity to present additional testimony or to declare a mistrial. The court denied the motion to present evidence on the ground that the motion was procedurally irregular and that the proffered evidence concerned only the ongoing dispute between SIT and STN over tribal leadership, which the court found was immaterial to the summary process matter before it. The court next issued a written decision in which it found that the plaintiffs had met their burden as to all elements of the summary process complaint and rendered a judgment of possession in favor of the plaintiffs subject to any statutory stays. In reaching its decision, the court made the following specific finding: “Based on the evidence submitted by both parties, the court finds that [STN], through its [t]ribal [c]ouncil, is the governing authority for the Schaghti-coke tribe.” The defendant filed the present appeal on April 20, 2011.

After the appeal was filed, SIT filed a motion to open the judgment. SIT argued that it wrongly had been deprived of an opportunity to present evidence that would have shown that SIT, and not STN, is the true governing authority for the Schaghticoke Indians. SIT was concerned about the res judicata effect of the court’s finding that STN was the governing authority for the Schaghticoke Indians. SIT, nonetheless, also made clear that, despite the ongoing dispute between SIT and STN over which entity governs the Schaghti-coke Indians, the entities continued to be united in their goal to remove the defendant from the reservation and had alleged in their complaint that they collectively own and possess the reservation. According to SIT, under a theory of judicial restraint, the court could reach a decision in which it finds the allegation of the summary process complaint proven without selecting a winner of the governing dispute.

The court heard argument on the motion to open on May 9, 2011, following which it denied the motion. The court reasoned, as it previously had, that the issue of which entity was “in charge” was not properly before it, and, therefore, it did not need to hear additional evidence on that topic from SIT. The court nevertheless opened its decision for the purpose of vacating its earner finding that STN, through its tribal council, was the recognized tribal leader. It clarified that the plaintiffs collectively represented the individual members of the Schaghticoke Indians, and that it was those “individuals that have brought this summary process action, and have moved to evict [defendant].” The defendant did not amend his existing appeal to challenge the court’s modification of its earlier decision.

I

The defendant first claims that the court improperly exercised jurisdiction in adjudicating the present summary process action. We note at the outset that the defendant’s brief contains little in the way of legal analysis and is, at times, disjointed and difficult to comprehend. Nevertheless, given the stated policy of Connecticut’s courts to be solicitous of self-represented litigants; see State v. Adams, 117 Conn. App. 747, 755, 982 A.2d 187 (2009); and because the defendant challenges the court’s exercise of both personal and subject matter jurisdiction in this matter, over which our review is plenary; see Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007); Pritchard v. Pritchard, 281 Conn. 262, 270, 914 A.2d 1025 (2007); we will endeavor to review the defendant’s claims despite the state of the briefing provided. We construe the defendant’s jurisdictional argument to be twofold. First, he argues that, because the reservation constitutes sovereign land and the Schaghticoke Indians never entered into any agreement or contract with the state, it is not subject to the civil jurisdiction of Connecticut’s courts. The defendant also argues that the court lacked personal jurisdiction over him because he is a “sovereign human being” and “common law free man.” We conclude that the court properly exercised jurisdiction in this matter.

A

We first dispose of the defendant’s claim that the court lacked personal jurisdiction over him as a “sovereign human being” and “common law free man.” The defendant fails to explain in his brief the legal import of his numerous assertions that he is a “sovereign human being” and “common law free man.” We can discern no legal reason why the mere donning of such a mantle would act to defeat the court’s exercise of personal jurisdiction over him in this matter. Nevertheless, it is unnecessary for us to delve further into the defendant’s personal jurisdiction claim because we conclude that the defendant has waived his right to challenge personal jurisdiction.

“As a general matter, a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance. . . . Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion. . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court’s personal jurisdiction over the defendant is lost. ... As noted by our Supreme Court, under our rules of practice, the filing of a responsive pleading operates as a waiver of a future challenge of the court’s personal jurisdiction over a party.” (Citation omitted; internal quotation marks omitted.) Investment Associates v. Summit Associates, 132 Conn. App. 192, 206-207, 31 A.3d 820 (2011), cert. granted on other grounds, 303 Conn. 921, 34 A.3d 396 (2012). Although, under our rules of practice, pleadings in summary process actions advance at a different pace from those in other civil matters; see General Statutes § 47a-26c; the aforementioned principles nevertheless remain applicable. See, e.g., St. Paul’s Flax Hill Co-operative v. Johnson, 124 Conn. App. 728, 739-40, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011) (holding issue of personal jurisdiction waived in summary process action by defendant’s failure to file timely motion to dismiss).

The defendant filed his appearance in this matter as a self-represented party on August 17, 2010, along with an answer to the complaint. He never filed a motion to dismiss. Accordingly, having filed an appearance and a responsive pleading without timely moving to dismiss the action for lack of personal jurisdiction, the defendant waived his right later to attack the court’s judgment on personal jurisdiction grounds.

B

We next turn to the defendant’s other jurisdictional argument. According to the defendant, because the reservation is sovereign land and the Schaghticoke Indians never entered into any agreement or contract with the state, the court lacked subject matter jurisdiction to adjudicate the present summary process action. We construe the defendant’s claim to be that the court’s exercise of jurisdiction in this matter constituted an undue infringement on the tribal sovereignty of the Schaghticoke Indians as recognized under state law. We disagree.

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52, 794 A.2d 498 (2002). “There is no doubt that the Superior Court is authorized to hear summary process cases; the Superior Court is authorized to hear all cases except those over which the probate courts have original jurisdiction.” Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d. 590 (1989). The question before us is whether that jurisdiction is somehow lost when the summary process case involves an eviction from state recognized reservation land.

“Like all instrumentalities of the state of Connecticut, our courts are powerless to intervene in the exercise of tribal self-government. Federal statute, federal common law and state statute all require us to treat bona fide Indian tribes as sovereign nations and to protect tribal rights to self-determination. . . . Because of the continuing inherent sovereignty of Indian tribes, for example, federal common law forbids states from unlawfully infring[ing] on the right of reservation Indians to make their own laws and be ruled by them. . . . Similarly, state statutes explicitly provide that the indigenous tribes . . . are self-governing entities possessing powers and duties over tribal members and reservations. . . . Any action by a state court that infringed on tribal sovereignty or interfered in tribal self-government would therefore be improper.” (Citations omitted; internal quotation marks omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 574-75, 651 A.2d 1246 (1995). Our United States Supreme Court has explained that inherent tribal sovereignty will impede state court jurisdiction only if “the exercise of state-court jurisdiction in [the] case would interfere with the right of tribal Indians to govern themselves under their own laws. ... If the exercise of state court jurisdiction is compatible with tribal autonomy . . . judicial action not only is permitted, but may be required.” (Citations omitted; internal quotation marks omitted) Id., 575-76 citing Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 148-49, 151-52, 104 S. Ct. 2267, 81 L. Ed. 2d 113 (1984) (suggesting state’s failure to exercise jurisdiction when present could violate Indians’ rights under due process clause, equal protection clause and 42 U.S.C. § 1981).

Pursuant to the court’s May 9,2011 oral postjudgment ruling, the plaintiffs who initiated this action before the Superior Court collectively represent the Schaghticoke Indians. The defendant did not amend his appeal to challenge that determination, and, thus, the determination is not properly before us for review. See Practice Book § 61-9. Section 47-59a (a) provides in relevant part that members of state recognized tribes, which includes the Schaghticoke Indians, “are considered to be full citizens of the state and they are hereby granted all the rights and privileges afforded by law, that all of Connecticut’s citizens enjoy. . . .” Such rights and privileges must include access to our state’s courts. By initiating the summary process action in state court, the plaintiffs effectively consented to the court’s jurisdiction. Further, there is nothing in the record before us indicating that the court’s adjudication of the present summary process matter in any way interfered with the Schaghticoke Indians’ right to self-governance or infringed on any existing tribal laws or adjudicative authority of the Schaghticoke Indians.

Additionally, although the defendant seeks to assert tribal sovereignty as a bar to the present action, he has failed to set forth the necessary factual predicate to establish his authority to assert the Schaghticoke Indians’ sovereignty on his own behalf or to overcome the Schaghticoke Indians’ consent to the jurisdiction of the court. Our Supreme Court has indicated that tribal sovereignty may only be invoked by a member of the tribe. See State v. Velky, 263 Conn. 602, 605 n.5, 821 A.2d 752 (2003). The defendant never asserted before the trial court or this court that he is a recognized Schaghticoke tribal member. In fact, he appears to have disavowed any such claim before the trial court. The defendant only asserts that he was granted permission by tribal members to live and work on the reservation. Such an assertion alone is insufficient to allow the defendant to invoke tribal sovereignty as a bar to the court’s jurisdiction in the present case. In sum, we conclude that the court properly exercised both personal and subject matter jurisdiction in adjudicating this summary process action.

n

The defendant next claims that the trial court improperly decided a dispute over tribal leadership. Given the court’s modification of its original rationale for rendering its judgment of possession in favor of the plaintiffs, we disagree.

General Statutes § 47-66Í (b) sets forth the procedures for resolution of a dispute over tribal leadership, providing: “A leadership dispute shall be resolved in accordance with tribal usage and practice. Upon request of a party to a dispute, the dispute may be settled by a council. Each party to the dispute shall appoint a member to the council and the parties shall jointly appoint one or two additional members provided the number of members of the council shall be an odd number. If the parties cannot agree on any joint appointment, the Governor shall appoint any such member who shall be a person knowledgeable in Indian affairs. The decision of the council shall be final on substantive issues. An appeal may be taken to the Superior Court to determine if provisions of the written description filed with the Secretary of the State pursuant to this section have been followed. If the court finds that the dispute was not resolved in accordance with the provisions of the written description, it shall remand the matter with instructions to reinstitute proceedings, in accordance with such provisions.” Accordingly, as the parties and the court recognized, disputes over tribal leadership are to be resolved by the Schaghticoke Indians in the first instance or, if necessary, by a council appointed in accordance with the statute. There is no provision whereby tribal leadership disputes are to be decided first by the Superior Court. For reasons not reflected in the record, the various factions of the Schaghticoke Indians thus far have failed to avail themselves of the dispute resolution proceedings set forth in § 47-66Í.

In its initial April 15, 2011 decision ruling against the defendant in this summary process matter, the trial court correctly set forth that the plaintiffs had the burden of establishing, among other elements, that they were the “owners” of the property from which they sought to evict the defendant. In considering whether the plaintiffs had met that burden, the court made a finding, based on the evidence presented, that “the Schaghticoke Tribal Nation, through its [tjribal [c]oun-cil, is the governing authority for the Schaghticoke tribe.” That finding arguably could be interpreted as the court deciding the ongoing and hotly contested dispute between SIT and STN over which is the legitimate governing body of the Schaghticoke Indians.

It was that particular finding that prompted SIT, which had not appeared at the summary process trial, to file its postjudgment motion to open the proceedings expressly for the purpose of presenting evidence that it, and not STN, was the legitimate governing body of the Schaghticoke Indians. The court denied the motion to open precisely because it recognized that it lacked the authority to decide the tribal leadership dispute and because it did not consider resolution of that dispute a necessary component of its summary process analysis. The court reasoned, as it had previously, that the issue of which entity was “in charge” was not properly before it, and, therefore, it did not need to hear additional evidence on that topic from SIT.

The court nevertheless agreed to open its earlier decision for the limited purpose of vacating its finding that STN, through its tribal council, was the governing authority for the Schaghticoke Indians. The court clarified as follows: “It’s the Schaghticoke Indians that have the right to say who fives on the reservation. And they clearly have spoken here. Because both plaintiffs are in agreement that they do not want [the defendant] on the location.” The court later stated: “I am reopening my decision and clarifying my decision, that even if [Richard] Velky, in my analysis of the law, even if Velky is not the accepted and recognized tribal leader, nevertheless the plaintiffs — the plaintiffs being the Schaghti-coke Indian — that—Indians, not the Schaghticoke Indian Tribe, not the Schaghticoke Tribal Nation, but the Indians that were originally recognized by this state, are the individuals that have brought this summary process action and have moved to evict [the defendant]. So, that’s the clarification of the court’s decision.” Accordingly, the court modified that portion of its earlier decision finding that STN was the governing authority for the Schaghticoke Indians.

As previously indicated, the defendant did not amend the current appeal to challenge the court’s modification of its earlier ruling, nor did he file a new appeal. See footnote 4 of this opinion. Because the court has vacated any finding that could be construed as resolving an internal dispute over tribal leadership, the defendant’s claim of improper interference in that area no longer has merit.

Ill

We next turn to the defendant’s claim that it was improper for the court to have rendered judgment without one of the plaintiffs being represented at the summary process trial. The defendant maintains that the fact that SIT was not present for the summary process trial is grounds for a mistrial. We cannot review the defendant’s claim because he has failed to establish that he is the proper party to raise it.

“The general rule is that one party has no standing to raise another’s rights. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue .... [Standing is] ordinarily held to have been met when a complainant makes a colorable claim of direct injury he ... is likely to suffer . . . .” (Citation omitted, internal quotation marks omitted.) Delio v. Earth Garden Florist, Inc., 28 Conn. App. 73, 78, 609 A.2d 1057 (1992).

In his brief, the defendant’s discussion of his claim that SIT’s absence from the summary process trial required a mistrial is limited to noting that SIT had sought to open the proceedings and that SIT had indicated in its motion to open “many aspects of the trial that had been adversely affected by the [cjourt’s impression that Attorney Kern had appeared as representation for both plaintiffs.” The defendant then indicates his wish to “assert the same information as fact to the [c]ourt.” SIT’s motion to open the summary process judgment, however, focused solely on the issue of the tribal leadership dispute and whether, by proceeding in its absence, the court had deprived SIT of the right to present evidence that it is the true governing authority of the Schaghticoke Indians. Any need for such evidence became moot following the court’s clarification that it was not deciding the tribal governance dispute. Because SIT also sought the eviction of the defendant from the reservation, it is unclear how its presence or presentation of the proffered evidence would have benefited the defendant. The defendant has failed to explain how he was aggrieved personally by SIT’s failure to appear and to present evidence at the summary process trial. Accordingly, we conclude that the defendant lacks standing to raise the claim, and we will not consider it.

IV

Finally, the defendant claims that the court ignored prior judicial decisions that impacted on STN’s claim of authority to represent the interests of the Schaghticoke Indians. Because, as explained previously, the court vacated its finding that STN, through its tribal council, represented the proper governing authority of the Schaghticoke Indians, the defendant’s claim, which attempts to show error in that finding, is moot and warrants no further review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-59a, titled “Connecticut Indians; citizenship, civil rights, land rights,” provides: “(a) It is hereby declared the policy of the state of Connecticut to recognize that all resident Indians of qualified Connecticut tribes are considered to be full citizens of the state and they are hereby granted all the rights and privileges afforded by law, that all of Connecticut’s citizens enjoy. It is further recognized that said Indians have certain special rights to tribal lands as may have been set forth by treaty or other agreements.
      “(b) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to: (1) Determine tribal membership and residency on reservation land; (2) determine the tribal form of government; (3) regulate trade and commerce on the reservation; (4) make contracts, and (5) determine tribal leadership in accordance with tribal practice and usage.”

       According to the motion, Alan Russell, the tribal chairman of SIT, filed an appearance in November, 2010, purporting to be on behalf of SIT, which appearance allegedly was rejected by the clerk’s office because, as a nonat-tomey, Russell could not appear on behalf of SIT. SIT further alleged in its motion that Russell never received notice that his appearance had been rejected or of the date of the summary process trial. The record does not contain evidence of Russeh’s rejected appearance, although the court indicated on the record that the appearance was never properly filed. The record indicates that notice of the summary process trial was sent to SIT at the address on file with the court.

       SIT filed an appeal from the court’s denial of its motion to open, but that appeal was dismissed on a nisi order on July 5, 2011, after SIT failed to comply fully with Practice Book § 64-1.

       Practice Book § 61-9 provides in relevant part: “Should the trial court, subsequent to the filing of the appeal, make a decision which the appellant desires to have reviewed, the appellant shall file an amended appeal form in the trial court within twenty days from the issuance of notice of the decision as provided for in Section 63-1. . . .”

       At the May 9, 2011 hearing, the following colloquy took place:
      “[Attorney] Lavery: When he delineates his lineage, he says he became a specialist in Indian law, took a tribal member as a wife, had two children with tribal member Deborah Buckson, but that still does not make him a— an Indian—

        “[The Defendant]: Nobody can condemn my rights.
      “[Attorney] Lavery: —a Schaghticoke Indian.
      “The Court: Don’t—
      “[The Defendant]: No man can be judged on his race, color, and creed.
      “The Court: You can’t interrupt—
      “[The Defendant]: I’m sorry.
      The Court: • — each other.
      “[The Defendant]: I’m sorry.
      “The Court: Go ahead.
      “[Attorney] Lavery: I just want to point out that he claimed now in court to have his lineary descendants come from the Schaghticoke Tribe.
      “[The Defendant]: No, I—
      “[Attorney] Lavery: He’s never made that claim before. And well, we deny that.
      “[The Defendant]: I—
      “The Court: Okay. All right. That’s not — it’s not an issue.
      “[The Defendant]: Yeah, it’s not a big deal. I know. I just — I didn’t — I didn’t claim that.”

       Although reservation lands are held in trust by the state, “[a] tribe shall exercise on reservation land all rights incident to ownership except the power of alienation.” General Statutes § 47-60. One right incident to property ownership is the right to bring a summary process eviction action against any person who never had a right or privilege to occupy the subject property or who had a right or privilege but such right or privilege has since terminated. General Statutes § 47a-23 (a).

       Velky testified on behalf STN in his position as STN’s tribal chairman.


author: PER CURIAM.

text:
    FIRST MERCHANTS GROUP LIMITED PARTNERSHIP v. HARRIET FORDHAM
    (AC 33096)
    DiPentima, C. X, and Robinson and Lavery, Js.
    Argued May 21
    officially released September 25, 2012

      Jenna N. Sternberg, for the appellant (plaintiff).

      Laurence S. Fordham, pro hac vice, with whom was Paul H. D. Stoughton, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, First Merchants Group Limited Partnership, appeals from the decision of the trial court remanding the case to an arbitrator for further findings after denying summary judgment in a declaratory judgment action in which the primary issue was whether the arbitration had ended. The plaintiff claims that once the court denied summary judgment on whether the arbitration had ended, it lacked authority to send any issues back to the arbitrator without first hearing evidence and deciding the merits of the declaratory judgment action. We agree and reverse the judgment of the trial court.

This is the second time this case is before us on appeal. We first adjudicated similar issues in First Merchants Group Ltd. Partnership v. Fordham, 121 Conn. App. 135, 994 A.2d 289 (2010). Our decision in that appeal laid out the relevant facts and procedural history. In that case, we reversed the trial court’s dismissal, on the basis of the lack of subject matter jurisdiction, of the plaintiffs declaratory judgment action. The complaint alleged that the plaintiff, First Merchants Group Limited Partnership, and the defendant, Harriet Ford-ham, were the sole members of a limited liability company. The parties’ amended operating agreement, dated January 25, 2002, provided that any disputes between them were to be settled by arbitration. In October, 2006, the defendant filed a demand for arbitration in connection with certain disputed issues arising out of the operating agreement. The plaintiff filed an answering statement the following month. Subsequently, the plaintiff and the defendant signed a “ ‘[memorandum of [understanding as to [arbitration’ ” dated December 12, 2006. Id., 137. Less than two weeks later, the arbitrator prepared a letter dated December 21, 2006, setting forth the terms under which the arbitration was to proceed. Thereafter, both parties submitted substantial materials to the arbitrator, who issued a decision on February 23, 2007, “disposing of all of the issues submitted to her pursuant to the . . . December 21, 2006 [letter].” (Internal quotation marks omitted.) Id. No party filed an application with the Superior Court to confirm, vacate or modify the award pursuant to General Statutes §§ 52-417 through 52-420. The plaintiff alleged that it made certain payments to the defendant and took other actions that purported to satisfy the arbitrator’s February 23, 2007 decision.

After the arbitrator’s February 23, 2007 decision, the defendant continued to serve the arbitrator with additional pleadings, seeking relief related to that decision and for issues that arose after the decision was issued. Almost one year after she had issued her decision, by correspondence dated February 19, 2008, the arbitrator suggested that her February 23, 2007 decision was not a final award.

The plaintiff then commenced this declaratory judgment action under General Statutes § 52-29 in accordance with the provisions of Practice Book § 17-54 et seq. In its prayer for relief, the plaintiff requested a judgment determining whether the February 23, 2007 decision was a final award that had resolved fully the rights of the parties as set forth in the December 21, 2006 memorandum of agreement with the arbitrator. Specifically, the plaintiff contends that if the February 23, 2007 decision was a final award, the arbitrator had no further authority over the matter and all subsequent rulings by her had no legal effect. See Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474, 484, 857 A.2d 893 (2004), cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed. 2d 723 (2005). The defendant filed a motion to dismiss the action for lack of subject matter jurisdiction. Without holding an evidentiary hearing, the court granted the motion to dismiss. The court concluded that it lacked subject matter jurisdiction because the arbitrator, in her February 19, 2008 correspondence to the parties, had concluded that the arbitration proceeding had not yet closed.

We reversed the judgment of the court after concluding that it improperly granted the defendant’s motion to dismiss without an evidentiary hearing when material issues of fact were in dispute. First Merchants Group Ltd. Partnership v. Fordham, supra, 121 Conn. App. 139-40. We expressly held that the court had jurisdiction over a declaratory action to determine whether the arbitrator’s February 23, 2007 decision was an interim decision or a final award. Id., 142. We remanded the case back to the court for further proceedings according to law. Id., 144.

On remand, the defendant filed an answer to the original complaint and a counterclaim, in which she sought a declaratory ruling that the arbitrator’s decision was not final. On September 17, 2010, the defendant filed a motion for summary judgment, asserting that there was no genuine issue regarding any material fact. The court denied summary judgment, finding that at least three issues of material fact remained in dispute, including whether the arbitration was to continue, whether the defendant’s attorney had the authority to enter into the December 21, 2006 agreement and whether that agreement superseded the December 12, 2006 agreement. Despite its denial of summary judgment, the court remanded the case to the arbitrator “to make any findings she deemjed] appropriate to conclude this matter of arbitration.” The plaintiff filed a motion to reargue and/or reconsider, which the court denied. The defendant also filed a motion to reargue, which the court denied. The plaintiff subsequently filed this appeal.

“The denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, not a final judgment for purposes of appeal. . . . We previously have determined [however] that certain interlocutory orders have the attributes of a final judgment and consequently are appealable under [General Statutes] § 52-263. . . . In State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983)], we explicated two situations in which a party can appeal an otherwise interlocutory order: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Citation omitted; internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 785, 865 A.2d 1163 (2005). “The second test for finality, where the order on appeal so concludes the rights of the parties that further proceedings cannot affect them, focuses not on the proceeding involved, but on the potential harm to the' appellant’s rights.” State v. Curcio, supra, 33.

Here, the effect of the remand to the arbitrator is to deny to the plaintiff the right that it seeks to have adjudicated in the declaratory judgment action: the right to foreclose any further proceedings before the arbitrator. It also denies the plaintiffs right to an evi-dentiary hearing when there is a genuine issue of fact over the finality of the arbitration. In that sense, the court’s remand, despite its denying summary judgment, has the same effect as granting summary judgment. Therefore, under the second prong of Curcio, the trial court’s remand to the arbitrator is appealable as a final judgment.

“The court’s consideration of a motion for summary judgment is limited to the evaluation as a matter of law of the documentary proof submitted . . . .” Paine Webber Jackson & Curtis, Inc. v. Winters, 13 Conn. App. 712, 721-22, 539 A.2d 595, cert. denied, 208 Conn. 803, 545 A.2d 1101 (1988). “The function of the trial court in ruling on a motion for summary judgment is to determine whether there is a genuine issue as to any material fact, but not to decide that issue if it does exist until the parties are afforded a full hearing.” Town Bank & Trust Co. v. Benson, 176 Conn. 304, 306, 407 A.2d 971 (1978).

Section 52-29 (a) provides: “The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”

The defendant asserts that under Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, supra, 271 Conn. 474, the trial court may remand the case to the arbitrator to determine what issues remain to be resolved. That case, however, concerned whether a trial court could remand a case to the arbitrator when there had been a request by one side to confirm and by the other side to vacate what both parties agreed was a final award. Similarly, the other cases that the defendant cites for the same proposition addressed whether a court had improperly vacated an arbitration award; see Marulli v. Wood Frame Construction Co., LLC, 124 Conn. App. 505, 5 A.3d 957 (2010) (trial court improperly vacated arbitrator’s award without conducting evidentiary hearing), cert. denied, 300 Conn. 912, 13 A.3d 1102 (2011); and whether the trial court had improperly confirmed an award without considering the arbitrator’s clarification. See All Seasons Services, Inc. v. Guildner, 94 Conn. App. 1, 6, 891 A.2d 97 (2006) (court properly remanded matter to arbitrator for clarification after one party filed timely request to confirm award). All three cases concerned whether remand was appropriate after an application by a party to confirm, vacate or modify an award under §§ 52-417 through 52-420. This case does not.

Having determined in the previous appeal that the court had jurisdiction over whether the arbitrator’s decision was final, we need only decide whether the court had the authority, once it had denied summary judgment, to remand the case to the arbitrator before holding an evidentiary hearing. We conclude that it did not.

As we stated in our prior opinion, “[t]he court, in concluding that the arbitration decision was not final, addressed the very issue that the plaintiff sought to have adjudicated by way of a declaratory ruling.” First Merchants Group Ltd. Partnership v. Fordham, supra, 121 Conn. App. 139-40. We also concluded that because of unresolved questions over whether the arbitrator had failed to meet certain deadlines and whether that failure deprived her of authority over the case, the arbitrator’s opinion about whether the arbitration was still ongoing was not dispositive and not binding on the court. Id., 143-44. Nothing in the subsequent procedural history has changed that conclusion, except that the trial court found issues of material fact, including whether the arbitration should continue. The court’s finding that genuine issues of material fact existed precluded summary judgment on the action for a declaratory ruling, and therefore foreclosed the possibility of remanding any issues to the arbitrator until the court had considered evidence on the merits of the declaratory judgment action. We concluded in the first appeal that “whether the February 23, 2007 decision was a final award could not have been determined on the record before the court.” Id., 142. “When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003). Such a hearing was never held.

No authority cited by the defendant supports its proposition that a court may remand a case to an arbitrator or any other entity after finding material issues of fact that preclude summary judgment. The dispute before the court remains whether the award is final and, therefore, whether the arbitrator still has jurisdiction. It is on that question that the court determined that disputed issues of material fact remain, and on that question that the court must hear evidence before deciding whether to remand the case to the arbitrator.

The judgment is reversed only as to the order remanding the case to the arbitrator and the case is remanded to the trial court for further proceedings according to law. The judgment is affirmed in all other respects.

       The “ ‘[memorandum of [understanding as to [arbitration’ ” was signed by the plaintiff and the defendant, but not the arbitrator. First Merchants Group Ltd. Partnership v. Fordham, supra, 121 Conn. App. 137 n.1.

       The arbitrator’s letter was signed by the arbitrator and by counsel for the plaintiff and the defendant.

       General Statutes §§ 52-417 through 52-420 allow any party to an arbitration to apply to the Superior Court to confirm, vacate or modify a final award of an arbitrator.

         The court also found that the amount of attorney’s fees due to the prevailing party also remained a disputed issue of fact.

       We note that neither party seeks to overturn the denial of summary judgment; the plaintiff on appeal challenges only the remand to the arbitrator.

        We do not decide that issue; that is precisely the purpose of a hearing before the trial court.