author: ROBINSON, J.

text:
    GERALD MOLAVER ET AL. v. EDMUND THOMAS
    (AC 30898)
    Gruendel, Robinson and Alvord, Js.

      Submitted on briefs September 10
    officially released November 16, 2010

      Robert E. Ghent filed a brief for the appellant (defendant).
   Opinion

ROBINSON, J.

The defendant, Edmund Thomas, appeals from the judgment of the trial court awarding the plaintiffs, Gerald Molaver and Edie Molaver, damages in an action seeking payments due under a commercial lease. On appeal, the defendant claims that the trial court improperly concluded that he (1) was liable to the plaintiffs for his pro rata share of the increase in property taxes assessed for the years 2002 and 2003 and (2) impliedly assented to pay a higher rental rate pursuant to an unexecuted lease. We affirm the judgment of the trial court.

The court found the following facts. The plaintiffs were the owners of real estate located at 1325 East Main Street in Waterbury. The plaintiffs and the defendant entered into a lease on March 25,1998, for office space of 800 square feet on the second floor of the building. The lease had a one year term from March 1, 1998, to February 28, 1999, at an annual base rent of $4200 payable in equal monthly installments of $350. The lease also provided that the defendant was responsible for a pro rata share of increases in the real estate taxes as well as a pro rata share of increases in the fire insurance premium and fuel costs for the building, and 10 percent of the cost of snow removal for the building. Additionally, the lease provided that if the defendant did not surrender the premises at the end of the lease term, he could be treated as a month-to-month tenant subject to all of the terms and covenants of the lease.

The defendant did not surrender the premises at the end of the lease term. Thereafter, the plaintiffs and the defendant, by exchanged letters, agreed to continue the lease under the same terms in the expired lease, except for rent, which the plaintiffs increased to $375 per month. At some point before the year 2004, the defendant asked to rent an additional 800 square feet adjacent to the original 800 square foot space in the building. The plaintiffs agreed to lease the additional space under the same terms and conditions in the expired lease with an increase in the monthly base rent to $750. The defendant agreed and paid the plaintiffs rent in accordance with those terms.

On October 22, 2004, the plaintiffs sent the defendant a new lease for a term to commence on November 1, 2004. The new lease provided for an increase in the rental amount from $750 per month to $950 per month. By a letter dated December 6, 2004, the plaintiffs notified the defendant of his responsibility for increases in real estate taxes for the building for the years 2002 and 2003 and therefore requested payments of $1720.80 for the year 2002 and $1559.80 for the year 2003. On January 9, 2005, the plaintiffs sent the defendant a letter acknowledging that he did not intend to enter into the new lease. That letter stated that the plaintiffs would treat the defendant as a month-to-month tenant subject to all the terms and conditions of the new lease with an effective date of November 1,2004. The parties never executed the 2004 lease.

The defendant continued to remain in possession of the premises and paid the plaintiffs $750 per month. By a letter to the defendant dated February 27, 2005, the plaintiffs stated that the defendant had not been paying the new monthly rent of $950 but had only been paying $750 per month. That letter also stated that the defendant had failed to pay his share of the increase in real estate taxes for 2002 and 2003 as set forth in the letter dated December 6, 2004. The defendant vacated the premises in November, 2005.

The plaintiffs commenced the present action in the Housing Session seeking damages for past due rent and unpaid real estate taxes. The defendant subsequently filed an answer raising numerous special defenses. Thereafter, the matter was tried to the court. After reviewing the evidence and testimony presented, the court concluded that (1) the defendant was liable for his pro rata share of the increase in real estate taxes because under a provision in the original lease he was subject to the conditions and covenants therein, and (2) the monthly rental from November, 2004, through November, 2005, was $950, as stated in the new lease, because the defendant had notice of the new rental term and remained in possession of the premises. The court also awarded the plaintiffs interest and attorney’s fees. The defendant appeals from the judgment.

Initially, we set forth our standard of review. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A factual finding may be rejected by this court only if it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153-54, 527 A.2d 679 (1987). “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Doyle v. Kulesza, 197 Conn. 101,105,495 A.2d 1074 (1985).

I

The defendant first claims that the court improperly awarded the plaintiffs damages for his pro rata share of the increase in property taxes assessed for the years 2002 and 2003. Specifically, he argues that although the original lease contained a provision giving the plaintiffs the option to treat him as a month-to-month tenant subject to the conditions and covenants of that lease, the plaintiffs failed to effectuate that provision. We conclude that the record is inadequate to review the defendant’s claim.

The following additional facts are relevant to the defendant’s claim. Paragraph 25 of the original lease contained a provision giving the plaintiffs the option to elect to treat the defendant as a month-to-month tenant subject to the conditions and covenants of that lease if the defendant were to hold over past the expiration of the term. Paragraph 3.C provided that the defendant would be responsible for his pro rata share of the annual increase in property taxes. The defendant contends that the plaintiffs never elected to treat him as a month-to-month tenant pursuant to paragraph 25. He argues, therefore, that he is not bound by paragraph 3.C. The court did not make a finding as to whether the plaintiffs elected to effectuate paragraph 25. It is unclear from the memorandum of decision whether the trial court found that the plaintiffs elected to treat the defendant as a month-to-month tenant pursuant to paragraph 25. In the face of that ambiguity, the defendant should have sought an articulation as to whether the court found that the plaintiffs elected to effectuate paragraph 25. Without such an articulation, we are left to speculate as to the propriety of the court’s conclusion.

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant’s claim] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998). It is well established that “[a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 685-86, 911 A.2d 300 (2006). “[W]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). Accordingly, we decline to review the defendant’s claim.

II

The defendant also challenges the court’s conclusion that he was required to pay the plaintiffs the rental amount of $950 per month from November, 2004, through November, 2005, as opposed to the $750 he had been paying. In support of its conclusion, the court found that the defendant impliedly assented to the terms of the 2004 lease because he had notice of the terms and nevertheless continued to remain in possession of the premises. The defendant argues that the court’s conclusion is not supported by the record. We disagree.

The court relied on our Supreme Court’s decision in Welk v. Bidwell, 136 Conn. 603, 73 A.2d 295 (1950), to support its conclusion that the defendant impliedly assented to the $950 monthly rental term. In Welk, the landlord and the tenant had agreed to a month-to-month lease of a tobacco bam for $10 per month. Id., 605. Prior to the expiration of one month’s term, the landlord informed the tenant that he was increasing the rent to $125. Id. The tenant held over, refused to pay $125 per month and continued to pay $10 per month. Id. The landlord brought an action to collect the difference between $10 and $125 per month. Id., 604-605. The court concluded that the landlord could not impose the increased rent on the tenant because “[t]he [tenant’s] flat refusal to agree to pay that rent left the parties without any contract with reference to the occupancy of the property.” Id., 608. The court declared that “[i]ndeed, if the landlord had specified terms for the future occupancy of the property, the continuance in possession by the tenant without objection by him to those terms might have been construed as an acceptance of those terms and thus a contract would have been implied from the conduct of the parties. . . . But if there had actually been no meeting of the minds either because of ambiguity or uncertainty in negotiations or because the negotiations had not been completed, then, of course, there could have been no contract. ... If a tenant remains in possession without the consent of the landlord, there is no contract for an extended term to be implied from the holding over. ... A fortiori, where the parties are in definite dispute as to any of the essential terms of a new tenancy, certainly no lease can be implied from the fact that the tenant holds over.” (Citations omitted; emphasis added.) Id., 607-608.

Upon our review of the record, we find ample support for the court’s conclusion that the defendant impliedly assented to the $950 monthly rental term. Based on Gerald Molaver’s testimony and supporting exhibits, the court found that the plaintiffs sent the defendant the terms of the new month-to-month tenancy on October 22, 2004. The defendant testified that he had received those terms sometime in October, 2004. Gerald Molaver also testified that he had sent the defendant a letter dated February 27, 2005, requesting that the defendant sign the letter to confirm the terms of the new month-to-month tenancy and to confirm that he would pay the increased rent. Gerald Molaver further testified that the defendant did not sign the letter, failed to pay rent in accordance with the new terms and remained in possession of the property until the middle of November, 2005. On the basis of that evidence, the court determined that the defendant had received notice of the new terms and nevertheless remained in possession of the property until the middle of November, 2005. We conclude, therefore, that there is ample support in the record for the court’s conclusion that the defendant impliedly assented to the $950 rental term.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paragraph 25 of the lease provides in relevant part: “[I]n the event Lessee shall not immediately surrender said premises on the day alter the end of the term hereby created, then Lessor may at its option elect to treat the Lessee as a tenant by the month at twice the rental per month of the monthly installment of rent agreed by the said Lessee to be paid for the prior month as aforesaid, commencing said monthly tenancy with the first day next after the end of the term above demised, and said Lessee as a monthly tenant shall be subject to all conditions and covenants of this Lease as though the same had originally been a monthly tenancy. . . .”

       Paragraph 3.C of the lease provides in relevant part: “The Lessee shall pay annually to the Lessor the Lessee’s pro rata share, as hereinafter defined, of any increase in the real estate taxes assessed against and attributable to the building and land constituting the premises annexed hereto over and above the amount of such taxes assessed and attributed to such building and land for the 1997 assessment. . . .”

       The defendant also claims that the court improperly awarded the plaintiffs attorney’s fees. Paragraph 15a of the original lease provides in relevant part: “[I]n the event that legal proceedings are instituted against the Lessee by Lessor, due to the non-payment of rent, noncompliance with any of the terms, conditions or covenants of this Lease or for possession, then the Lessee agrees to pay all costs incident to such proceedings, including reasonable attorney’s fees for the Lessor’s attorney, provided the Lessor prevails in set proceedings.” The defendant argues that, because the plaintiffs did not elect to treat him as a month-to-month tenant pursuant to paragraph 25 of the lease, he therefore is not bound by paragraph 15a. Because we hold that the record is inadequate as to whether the plaintiffs effectuated paragraph 25 of the lease, we also decline to review this claim.

       We note that although the court’s conclusion that the defendant impliedly assented to the terms of the new lease is supported by the record, there also is evidence in the record to support a finding that the defendant expressly assented to the $950 rental term. The trial court noted in its memorandum of decision that the defendant acknowledged and agreed to pay the $950 monthly rent while he remained in possession of the property. Furthermore, the plaintiffs’ letters to the defendant dated January 9 and February 27, 2005, indicate that the defendant agreed to the $950 monthly rental term.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    NORMAN GAINES v. COMMISSIONER OF CORRECTION
    (AC 30699)
    Bishop, Lavine and Dupont, Js.

      Argued September 14
    officially released November 16, 2010

      C. RobertSatti, Jr., supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellant (respondent).

      James B. Streeto, assistant public defender, for the appellee (petitioner).
   Opinion

BISHOP, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting in part the revised second amended petition for a writ of habeas corpus filed by the petitioner, Norman Gaines. The respondent claims that the court incorrectly determined that the petitioner had established ineffective assistance of trial counsel and that he was prejudiced by counsel’s purported ineffectiveness. We disagree and, accordingly, affirm the judgment of the habeas court.

In the underlying criminal matter, the petitioner was charged with two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b (8), and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. After a trial by jury, he was found guilty of all four counts and sentenced to a total effective term of life imprisonment without the possibility of release. In the petitioner’s direct appeal, the Supreme Court affirmed the judgment. State v. Gaines, 257 Conn. 695, 778 A.2d 919 (2001).

In its opinion, the Supreme Court set forth the factual background as follows: “On October 29,1996, at approximately 7 p.m., Carl Wright was driving down Maple-wood Avenue in Bridgeport between Poplar Street and Howard Street, when two persons crossed the street in front of his car. One of the persons walked to the driver’s side of a car parked on the side of the street, and the other person walked to the passenger’s side of the car. Both persons then fired multiple gunshots into the parked car. Wright could not identify the race or gender of the shooters because they were wearing hooded sweatshirts, with the hoods pulled over their heads.

“Shortly before the shooting, Tyrell Allen had been walking down Maplewood Avenue toward Howard Street and had spoken to Marsha Larose, who also was walking down the street. Larose stopped to speak to someone in a parked car. Allen continued down Maple-wood Avenue and turned right onto Howard Street, at which time he no longer could see Larose or the parked car. Allen then heard approximately twenty gunshots and threw himself to the ground. A short time later, two men ran from the direction of Maplewood Avenue down Howard Street and past Allen. Allen described one of the men as approximately five feet, ten inches tall, light-skinned with a flat nose and medium build and stated that he was wearing an orange or mustard colored hooded sweatshirt. Allen claimed that the other man was wearing a black hooded sweatshirt and was in his twenties.

“At some point after the shooting, Officer Wilfred Torres of the Bridgeport police department received a radio call to proceed to Maplewood Avenue in Bridgeport. Upon arrival, he saw a large crowd surrounding the parked car. The body of a woman, later identified as Larose, lay on the ground near the right passenger side of the car. The body of a man, later identified as Gary Louis-Jeune, was slumped over in the driver’s seat of the car. . . .

“The Bridgeport police recovered several spent .22 and .45 caliber casings from the scene of the shooting. The medical examiner also recovered several bullets and bullet fragments from the bodies of the victims. Edward Jachimowicz, a firearms and tool mark examiner with the forensic science laboratory of the Connecticut department of public safety, testified that all of the .22 caliber casings recovered at the scene had been fired from the same gun and that all of the .45 caliber casings had been fired from another gun. He was able to identify several of the bullets recovered from the bodies of the victims as .22 caliber and one of the bullets as .45 caliber. He testified that the .22 caliber bullets most likely were fired from a semi-automatic pistol manufactured by Ruger or Browning.

“Leo Charles testified that, at some time before October 31,1996, he had an encounter with the [petitioner], [Ronald] Marcellus [a coconspirator] and ‘Nunu’ Ship-man. He did not indicate where the encounter had taken place. During the encounter, Charles gave his car keys to Marcellus, who told him to give the keys to Shipman. Shipman, however, was unable to drive the car because it had a standard shift. Charles then drove the car to his house in order to show Shipman how to operate the shift. During the drive, Charles saw that Shipman had a .45 caliber gun and that the [petitioner] had a .22 caliber Ruger. When they arrived at Charles’ house, Charles went inside. Shipman and the [petitioner] then took Charles’ car. Forty-five minutes later, Shipman and the [petitioner] returned to Charles’ house. Shipman came to the door, threw a black sweatshirt at Charles and told him to keep it.

“Torrance McClain testified that, in October, 1996, the [petitioner] lived with him at 31 Laurel Court in Bridgeport. Shortly before October 31 that year, Ship-man came to 31 Laurel Court, and McClain gave him a key to the basement of a building there, where a .45 caliber gun and a .22 caliber gun were kept. McClain saw Shipman go into the basement and leave with the guns. McClain then went shopping with Eleanor Figueroa and her children. While McClain was shopping, he received a message on his beeper and returned to 31 Laurel Court. When he arrived, the [petitioner], Ship-man and others were there. Shipman asked McClain for a ride to a pay telephone on State Street, which McClain provided. After Shipman made a telephone call, McClain and Shipman drove to the scene of the shooting, where they stayed for approximately five minutes. They then returned to 31 Laurel Court. The [petitioner] was there at that time and told McClain that he ‘felt good’ because ‘they killed somebody.’ The [petitioner] told McClain that Shipman had used the .45 caliber gun in the killing and that the [petitioner] had used the .22 caliber gun. At some point, Shipman asked McClain for the key to the basement again and Shipman subsequently returned the guns there.

“Figueroa also testified about the day of the shooting. She stated that, in late October, 1996, she was living with her mother-in-law in an apartment at 25 Albion Street in Bridgeport. At some time after 5 p.m., she left the apartment to go shopping with McClain and her three children. After about one and one-half hours, they left the store and headed back to 25 Albion Street. While they were driving, McClain’s beeper went off. He dropped her and the children off at 25 Albion Street and left in the car. He returned to 25 Albion Street sometime after midnight.

“Figueroa also testified that, at some point in November or December, 1996, she visited the [petitioner] in jail, where he was incarcerated on charges unrelated to this case. The [petitioner] told her at that time that Larose had been killed because she ‘was in the wrong place at the wrong time,’ indicating that he could not risk the potential of Larose being a witness to the shooting of Louis-Jeune. The [petitioner] also told her that a .22 caliber gun had been used in the killings. In addition, the [petitioner] told her that he was supposed to be paid $1500 for the killings, but that he never was paid because he had been incarcerated.

“Figueroa further testified that, at some point, the [petitioner] called her from jail and told her to tell Shipman’s uncle to dispose of the .22 caliber gun because it had been used in the shooting. She testified that the [petitioner] had made that request on the same day that Marcellus was arrested in connection with the killings, and that the [petitioner’s] attitude concerning his involvement in the killings had become more serious after Marcellus’ arrest. The [petitioner] also told her that he had disposed of the clothes that he had worn during the shooting.

“Figueroa testified during cross-examination that drugs and guns were kept in the basement of the building at 31 Laurel Court, and that she and the [petitioner] sold drugs together at that location. She also testified that she had encouraged the [petitioner] to confess about his involvement in the killings and had told him that she could provide him with the name of a police officer to whom he could ‘tell . . . what he did for [Marcellus].’ During redirect examination, Figueroa testified, without objection, that the [petitioner] and McClain were dealing drugs for Marcellus. During recross-examination, Figueroa testified that McClain was Marcellus’ ‘lieutenant on the block . . . .’

“Sergeant James Tyler of the Bridgeport police department testified that he had been in charge of the investigation of the shooting and that, as of February, 1997, his investigation had led him to believe that the [petitioner] and Shipman were active participants in the killings and that Marcellus was an accomplice.

“The [petitioner] testified that, at some point after moving in with McClain and Figueroa in July, 1996, he had begun selling drugs to earn money to pay rent to Figueroa. He testified that Figueroa had given him the drugs and that, after he had sold them, he would give her the money. He also testified that Figueroa was the lieutenant until she moved to 25 Albion Street in late August, 1996, at which time McClain became the lieutenant.

“The [petitioner] testified that, in early October, 1996, problems had arisen between him and McClain. The [petitioner] testified that he had been present during a conversation between McClain and Marcellus when McClain told Marcellus that the [petitioner] had given McClain $900 in drug proceeds, when, according to the [petitioner], he had given McClain $1,000. The [petitioner] told Marcellus that McClain was lying.

“The [petitioner] testified that Figueroa had visited him while he was in prison on unrelated charges and repeatedly tried to get him to admit that he was involved in the shooting. The [petitioner] thought that she was joking about his involvement until he learned that Marcellus had been arrested and had signed a statement impheating him, at which time he believed that he would be the next person to be arrested in connection with the killings.

“The [petitioner] testified during cross-examination that he had been arrested and jailed twice during the fall of 1996 on charges unrelated to the shooting, and that Marcellus posted a $7500 bail bond each time. During redirect examination, the [petitioner] testified that it was his understanding that Marcellus posted bond for him because, when a drug dealer is arrested, the person whose drugs are being sold posts bond. The [petitioner] testified that he did not kill the victims, that no one ever asked him to kill the victims and that he had no reason to kill the victims.” Id., 697-703.

After his unsuccessful appeal, the petitioner brought this petition for a writ of habeas corpus, claiming, inter alia, that his trial counsel was ineffective in failing to investigate and to present at trial two witnesses whose testimony would have supported an alibi defense. By memorandum of decision filed December 9, 2008, the habeas court agreed with the petitioner and granted the petition in part, finding that the petitioner’s trial counsel had been ineffective and that the petitioner was entitled to a new trial because he had been prejudiced by counsel’s ineffectiveness. This appeal followed the habeas court’s granting of the respondent’s petition for certification to appeal from its judgment.

At the outset, we set forth the applicable standard of review and the law governing ineffective assistance of counsel claims. “The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington, supra, 687, this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citation omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 509-10, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L. Ed. 2d 242 (2009).

At the habeas trial, the petitioner testified that, at the time of the criminal trial, he could not recall where he was or what he was doing when the murders occurred. He contends that his trial counsel, attorney Alexander Schwartz, should have interviewed, and presented as witnesses at trial, Madeline Rivera and Rivera’s mother, Luz Davila. The petitioner testified that he mentioned Rivera to Schwartz as a potential witness, that Schwartz should have interviewed her and that, if he had, he likely would have been led to Davila, and those women would have testified as to his whereabouts on the night in question, thus providing him a credible alibi defense.

Rivera also testified at the habeas trial. She testified that, on the day and night in question, she was moving and that while she and her mother picked up a moving track, the petitioner was taking care of her children. She stated that she left her children with the petitioner at approximately 4:30 p.m. and returned home at about 7 p.m., at which time, Shipman and the petitioner helped her load the track with her belongings. After the track was loaded, Shipman and the petitioner moved Rivera’s belongings to her new residence. Rivera testified that, throughout that night, they probably made three trips with the moving track to move her belongings, that they didn’t finish until shortly after midnight and that the petitioner was present dining the entire time. Rivera stated that the petitioner watched her children while she and Shipman returned the moving truck. Rivera testified that she never spoke to a police officer and was never contacted by an investigator regarding the charges against the petitioner. Rivera indicated, however, that when she went to the petitioner’s trial, she spoke to an individual regarding a letter that she received from the petitioner, but she could not recall who that individual was. On cross-examination, Rivera testified that she told the petitioner’s attorney, when she saw him at the trial of Shipman and the petitioner, that Shipman and the petitioner were helping her move on the night in question. Rivera stated that she had not earlier offered this information regarding the petitioner’s whereabouts on the night in question because nobody ever asked her. She also indicated that she did not volunteer the information because she did not think that anyone would “listen to a parolee.”

Davila testified that, on the night in question, she went with Rivera and Shipman to rent a truck to move Rivera’s belongings to her new residence. She indicated that she, Rivera and Shipman returned to Rivera’s residence between 6:30 and 7 p.m. and that the petitioner was there when they arrived. She stated that at approximately 7:30 p.m., she went home while the others loaded the truck. Davila stated that she returned to Rivera’s residence at about 9 p.m. She then went to Rivera’s new residence to open the door so that Shipman and the petitioner could unload the truck there, and she reminded them that she needed to return the truck by 12 a.m. Davila indicated that she went home at approximately 10 p.m. She testified that she was never contacted by anyone regarding the killings on the night of October 29, 1996, until a couple of weeks before the habeas trial.

Schwartz testified that his theory of defense at the petitioner’s criminal trial was that Figueroa and McClain committed the murders, and that the petitioner was not involved in any way. After the petitioner had been arrested several months after the murders took place, he told Schwartz that he could not recall where he was on the night in question. Schwartz indicated that the petitioner was not able to give him the names of anyone who could confirm where he was at the time the killings took place and that the petitioner did not tell him that either Rivera or Davila had any information that might be helpful to his case. Schwartz testified that the petitioner did give him Rivera’s name but that the petitioner did not state that Rivera knew where he had been on the night of the murders. Schwartz also testified that he did not know that she might have had information that would assist in the petitioner’s defense. He testified that if he had known that there was testimony regarding a possible alibi for the petitioner, he would have investigated it. He said that he would have presented Rivera and Davila as witnesses if he had known what information they could have provided and that the jury should have heard their testimony. Schwartz further indicated that he thought that their testimony might have made a difference in the jury’s verdict. In sum, Schwartz testified that although the petitioner gave Rivera’s name to him, he did not recall ever speaking to Rivera about the petitioner’s case, and he had not heard of Davila until he saw the habeas petition, but that if he had known these individuals could have proffered an alibi for the petitioner, he would have called them to testify and he believed that their testimony would have made a difference in the trial’s outcome.

The habeas court found the testimony of Rivera and Davila to be credible and compelling. Additionally, the court found credible the petitioner’s testimony that he did not recall where he was on the night of the killings in light of the fact that he was not arrested until approximately five months later. The court also found that, under the circumstances of this case, in which the petitioner was not able to provide any information as to his whereabouts on the night in question, Schwartz should have investigated Rivera to determine if she had any useful information because the petitioner had given her name to him. The court further found that if Schwartz had conducted an adequate investigation, he would have contacted Rivera, and, through her, he would have reached Davila, both of whom provided an alibi defense for the petitioner. In reaching this conclusion, the habeas court emphasized that even though the petitioner did not tell Schwartz that Rivera could provide him with an alibi, Schwartz should have interviewed her to ascertain what information she did have, especially in light of her status as McClain’s sister and the fact that Schwartz was attempting to implicate McClain in the crime. The court determined that Schwartz’ failure to investigate and to call Rivera and Davila as witnesses prejudiced the petitioner, as their testimony likely would have affected the verdict, especially in light of the weakness of the state’s case.

On appeal, the respondent argues that the court improperly found Schwartz ineffective for failing to investigate or to interview a witness about whom he had no specific information. “While it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant

to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility. ... In a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation, but by demonstrable realities. . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel’s trial choices and strategies that otherwise constitutionally comport with the standards of competence.” (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn. App. 378, 402, 966 A.2d 780 (2009). Nevertheless, a criminal defendant’s right to have the assistance of counsel is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). This includes effective assistance not only at the trial itself but in preparation for the trial. “Adequate preparation for trial often may be a more important element in the effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom. The careful investigation of a case and the thoughtful analysis of the information it yields may disclose evidence of which even the defendant is unaware and may suggest issues and tactics at trial which would otherwise not emerge.” Moore v. United States, 432 F.2d 730, 735 (3d Cir. 1970). Defense counsel should “conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case . . . .” See 1 A.B.A. Standards for Criminal Justice (2d Ed. 1980) c. 4, standard 4-4.1, p. 4-53. These exhortations from our decisional law are particularly apt to the circumstances at hand in which the petitioner had no knowledge of his whereabouts on the evening in question but was persistent in his reporting to counsel that he was not present at the crime scene.

Although we acknowledge that counsel need not investigate every possible lead while investigating a case, under the very specific circumstances presented in this case, we agree with the habeas court that Schwartz’ representation of the petitioner was ineffective because he failed to investigate adequately. The habeas court concluded that “[s]imply contacting one of the two people the petitioner had mentioned by name would have led to the discovery of the alibi evidence.” Because the petitioner, who was sixteen years old at the time of the incident, could not recall where he was or what he was doing on the night of the murders, Schwartz logically should have explored whether an alibi defense might have been available to the petitioner. A logical place to begin that investigation would have been with any individuals whose names had been given to him by the petitioner or any individuals who might have been associated with the petitioner. Furthermore, because the petitioner told Schwartz that he did not commit those crimes and was not present at the crime scene, and the petitioner’s complete lack of involvement was the theory of defense ultimately adopted by Schwartz, Schwartz should have sought to interview potential witnesses to determine if he could ascertain where the petitioner was on the night in question or who else may have been involved in the killings. In sum, given the petitioner’s stated lack of recall, which the habeas court found to be credible, it is not imposing an unreasonable burden on Schwartz to have expected him to contact Rivera, who was identified by the petitioner as a potential witness, to see if she had any information related to the petitioner’s whereabouts on the night in question and possible involvement in the murders. On the basis of the foregoing, we cannot conclude that the court improperly determined that the petitioner was denied the effective assistance of counsel.

Further, we agree with the court that if the jury had heard the testimony of Rivera and Davila purporting to account for the petitioner’s whereabouts on the night the murders took place, particularly when considered with the theory that the murders were committed by Figueroa and McClain, there is a reasonable probability that the outcome of the petitioner’s criminal trial would have been different. See Strickland v. Washington, supra, 466 U.S. 694 (“reasonable probability is a probability sufficient to undermine confidence in the outcome”). What differentiates this case from most others is the habeas court’s conclusion that the petitioner suffered prejudice as a result of Schwartz’ failure to investigate. In many cases, the habeas court is left to speculate about how hypothetical or unidentified witnesses would have affected the outcome of a criminal trial and is unable to make a finding that a petitioner has been prejudiced by counsel’s inadequate performance. In other cases, the habeas court is faced with the contention that counsel’s decision was tactical and not the result of deficient representation. In this case, however, the habeas court had the opportunity to hear and to evaluate the two claimed alibi witnesses, whose testimony was found to be credible and compelling. Moreover, Schwartz testified that he would have called Rivera and Davila as witnesses if he had known the information they could provide and that he believed that their testimony might have made a difference in the verdict. Finally, and as noted by the habeas court, the state’s case at trial was not particularly strong, as there were no indifferent eyewitnesses and no forensic evidence tying the petitioner to the crimes. Thus, there was a solid basis for the habeas court’s conclusion that the petitioner had proved prejudice. Accordingly, we conclude that the habeas court properly granted the petitioner’s petition for a writ of habeas corpus and remanded the case to the trial court for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court merged the conviction on the two murder counts with the capital felony conviction, which mandates a sentence of life imprisonment without the possibility of release if the death penalty is not imposed. The court also sentenced the petitioner to twenty years incarceration on the conspiracy conviction, to run concurrently with the life sentence.

       The petitioner raised other claims in his habeas complaint, but the court did not find in his favor on those allegations. Those determinations are not challenged in this appeal.

       The petitioner’s co-counsel at trial was attorney Megan McLoughlin-Mikos. Because McLoughlin-Mikos was not involved in the pretrial stage of the petitioner’s case, the habeas court determined that she played no role in deciding which witnesses to investigate or to present at trial and, accordingly, could not have rendered ineffective assistance in that regard. That holding is not challenged in this appeal.

       The respondent also claims that the court improperly credited the testimony of Rivera and Davila. We note, however, that “[t]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Douros v. Commissioner of Correction, 111 Conn. App. 525, 528-29, 959 A.2d 1041 (2008). Thus, the respondent’s claim in this regard must fail unless we are to override the habeas court’s credibility determinations.

       Although, as noted, the petitioner’s conviction was affirmed on direct appeal, it is worth noting, as counsel for the petitioner points out, that the principal evidence against the petitioner was the testimony of McClain and Figueroa, who were husband and wife, and admitted drug dealers.


text:
    STATE OF CONNECTICUT v. PAUL MONAHAN
    (AC 30487)
    DiPentima, C. J., and Robinson and Alvord, Js.

      Argued September 23
    officially released November 16, 2010

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Paul Monahan, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction, (2) prosecutorial impropriety deprived him of a fair trial and (3) the court improperly admitted evidence regarding a field sobriety test that had been administered prior to his arrest. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 19, 2007, at approximately 7 p.m., James Kilkenny was driving southbound on River Road, a two lane street in Wilton, when he approached an intersection at Wilton center that was controlled by four stop signs. As Kilkenny’s vehicle came to a stop, he observed a vehicle waiting at the stop sign to his right. After waiting almost one full minute for the vehicle to proceed, Kilkenny sounded his vehicle’s horn. This startled the other driver, later identified as the defendant, who had been staring forward blankly. The defendant then attempted to turn his vehicle right into the southbound lane of River Road but drove out too far, crossed the double yellow line and almost hit a car driven by Jennifer Falconer that was traveling in the northbound lane. The defendant thereafter made a three point turn to maneuver his vehicle into the southbound lane and continued driving.

Kilkenny proceeded through the stop sign and continued southbound behind the defendant for approximately one-half mile. Kilkenny observed as the defendant, who was traveling at approximately ten miles per hour, drove his vehicle onto the right curb three or four times and into the northbound lane, almost colliding with two vehicles. After the defendant crossed into the northbound lane, Kilkenny called 911. The defendant again maneuvered his vehicle into the southbound lane and continued driving. Kilkenny continued to follow and observed as the defendant drove his vehicle onto the right curb two or three more times and once again into the northbound lane, almost hitting another vehicle. After the third near accident, Kilkenny drove his vehicle alongside the passenger side of the defendant’s vehicle, which then was stopped in the northbound lane facing in the wrong direction, to prevent the defendant from moving. The defendant attempted to back his vehicle into the southbound lane but had to stop when a second vehicle drove in behind him.

Shortly thereafter, Sergeant Thomas Tunney and Officer Eva Zimnoch of the Wilton police department, arrived at the scene. They approached the driver’s side of the defendant’s vehicle and requested the defendant’s license, registration and proof of insurance. The officers smelled a strong odor of alcohol emanating from the vehicle, noticed that the defendant’s speech was slurred and observed a red stain on the defendant’s shirt that looked like wine. Because of these observations, the officers asked the defendant to turn off the vehicle’s motor and to exit the vehicle so that they could perform field sobriety tests. The defendant initially had trouble turning off the motor, making several unsuccessful attempts to grasp the ignition key before finally turning the motor off. Thereafter, as the defendant stepped out of his vehicle, he moved slowly and held onto the vehicle’s door to maintain his balance because he was unsteady on his feet.

Once the defendant had exited his vehicle, Zimnoch attempted to perform field sobriety tests, which consisted of the horizontal gaze nystagmus test, the walk and turn test and the one leg stand test, to determine whether the defendant was intoxicated. The defendant failed the horizontal gaze nystagmus test and refused to perform the other two tests. Following his refusal, the defendant was placed under arrest and taken to the Wilton police department. The police conducted a search of the defendant’s vehicle and discovered an. unopened four pack of merlot wine.

After the defendant was transported to the Wilton police department, Zimnoch read the defendant his Miranda rights and the implied consent advisory form concerning a Breathalyzer test. The defendant signed a notice of rights form but refused to submit to a Breathalyzer test. During questioning, the defendant admitted that he had consumed two or three drinks in his vehicle starting at about 6 p.m. and that he had stopped drinking when his vehicle became blocked in on River Road. When questioned regarding the accidents he nearly caused, the defendant denied the allegations.

The state charged the defendant in a part A information with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (1) and in a part B information with previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (g). On June 25, 2008, following a jury trial, the defendant was convicted on the part, A information for violating § 14-227a (a) (1). Thereafter, on the same day, the defendant entered a plea of nolo contendere on the part B information and the court rendered a finding of guilty. On October 15, 2008, the defendant was sentenced to two years of incarceration, execution suspended after six months, 120 days of which was mandatory, followed by three years of probation and a $1000 fine. This appeal followed.

I

The defendant first claims that the evidence adduced at trial was insufficient to support his conviction. More specifically, the defendant claims that the state did not produce sufficient evidence to prove beyond a reasonable doubt every element of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (1). We disagree.

We begin by setting forth the applicable standard of review. “Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). “[P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal.” (Citations omitted; internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 490, 698 A.2d 898 (1997). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985).

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilt.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Sinclair, supra, 197 Conn. 576-77.

Section 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both . . . .” This means that “[a] conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (1) requires proof [beyond a reasonable doubt] of (1) operation of a motor vehicle (2) on a public highway or one of the other designated areas (3) while under the influence of intoxicating liquor.” State v. Gordon, 84 Conn. App. 519, 527, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004); see also State v. Bereis, 117 Conn. App. 360, 365, 978 A.2d 1122 (2009).

The jury heard evidence that the defendant drove his vehicle onto River Road near the Wilton center intersection and then drove it onto the right curb five to seven times and into the wrong lane three times, almost hitting four cars. The jury also heard evidence that, when the officers arrived at the scene, a strong odor of alcohol was emanating from the defendant’s vehicle and that the defendant’s speech was slurred. Furthermore, the state presented evidence that the defendant had trouble finding and tinning the key in the ignition of his vehicle, he was unsteady on his feet upon exiting his vehicle and he failed the horizontal gaze nystagmus test. Finally, the defendant admitted to having consumed two or three drinks in his vehicle no more than one and one-half hours before he was arrested. On the basis of this evidence, along with the inference that the jury was permitted to draw because of the defendant’s refusal to consent to a Breathalyzer test, we conclude that there was sufficient evidence for the jury to have found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a) (l)-_

II

The defendant next claims that prosecutorial impropriety deprived him of a fair trial. The defendant specifically argues that the manner in which the prosecutor referenced the defendant’s refusal to take a Breathalyzer test in the prosecutor’s closing argument violated the defendant’s privilege against compulsory self-incrimination guaranteed by the fifth amendment to the United States constitution and, thus, constituted an impropriety. We decline to review this claim due to an inadequate brief.

The following additional facts are relevant to the defendant’s claim. During his closing argument, the prosecutor discussed the difference between direct and circumstantial evidence. He called the jury’s attention to examples of each type of evidence presented by the state and explained how each could be interpreted to find that the defendant was under the influence of intoxicating liquor as required by § 14-227a (a) (1). In discussing the defendant’s refusal to submit to a Breathalyzer test, the prosecutor stated: “What bigger piece of circumstantial evidence would there be if the defendant was under the influence other than his refusal to take the test?”

As this court previously has recognized: “We 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. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999).

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question . . . .” (Internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 81, 3 A.3d 1 (2010).

We decline to review the defendant’s second claim because we conclude that his brief is inadequate and devoid of any relevant analysis regarding the alleged impropriety. In his brief, the defendant cites only one case, State v. Green, 68 Or. App. 518, 684 P.2d 575, cert. denied, 297 Or. 601, 687 P.2d 795 (1984), for the general proposition that refusal to submit to a Breathalyzer test implicates the privilege against compulsory self-incrimination. Green, however, is irrelevant to the present claim because it was decided on Oregon state constitutional grounds and neither discussed nor mentioned the fifth amendment privilege.

Aside from Green, the defendant does not provide any analysis, or cite to any legal authority, to explain how his fifth amendment privilege against compulsory self-incrimination is implicated by the prosecutor’s statement in the present case. Additionally we note that the United States Supreme Court has recognized that “the Fifth Amendment . . . applies only when the accused is compelled to make a testimonial communication that is incriminating.” (Emphasis added.) Fisher v. United States, 425 U.S. 391, 408, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). The defendant, however, has not set forth any legal analysis that explains how his refusal was either compelled or testimonial within the meaning of the fifth amendment. Accordingly, we decline to consider this claim.

Ill

The defendant finally claims that the court improperly admitted evidence regarding a field sobriety test that had been administered prior to his arrest. More specifically, the defendant argues that the court improperly admitted evidence of the horizontal gaze nystagmus test that was administered by Zimnoch without first requiring the state to satisfy the criteria for the admission of scientific evidence. We decline to review this unpreserved evidentiary claim.

In his brief, the defendant acknowledged that he did not object to the admissibility of the horizontal gaze nystagmus testimony before the trial court and, thus, did not preserve his claim for review. Therefore, the defendant requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, alternatively, the plain error doctrine. See Practice Book § 60-5.

At oral argument before this court, the defendant conceded that his claim was an unpreserved evidentiary claim. This court previously has recognized that “[e]videntiary claims do not merit review pursuant to . . . Golding . . . because they are not of constitutional magnitude.” State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). “[O]nce identified, unpreserved evidentiary claims . . . will be summarily dismissed.” State v. Golding, supra, 213 Conn. 241. Therefore, we decline to afford this claim Golding review.

With regard to the defendant’s request for plain error review, the defendant made only one passing reference to the plain error doctrine in his brief and requested that this court undertake plain error review if it determined that his third claim was an unpreserved evidentiary claim. The defendant, however, did not analyze the claim of plain error and, aside from a reference to Practice Book § 60-5, did not cite any legal authority to support his request for plain error review. Therefore, we decline to consider his claim under the plain error doctrine. State v. Bourguignon, 82 Conn. App. 798, 801, 847 A.2d 1031 (2004) (“[w]e will not engage in . . . plain error review on the basis of ... an inadequate brief’ [internal quotation marks omitted]).

The judgment is affirmed.

In this opinion the other judges concurred.

       Kilkenny testified that aside from this vehicle, he did not recall seeing any other vehicles at the intersection during this time.

       According to Kilkenny’s testimony, the speed limit on this portion of River Road was twenty or twenty-five miles per hour.

       The record suggests that other members of the Wilton police department may have participated in the events leading to the defendant’s arrest on December 19,2007. Tunney and Zimnoch, however, were the only members of the department who testified.

       Zimnoch explained that the horizontal gaze nystagmus test is administered by placing a stimulus, such as a pen, approximately twenty inches in front of an individual’s eyes, moving it from side to side and observing the individual’s eye reactions. “The horizontal gaze nystagmus test measures the extent to which a person’s eyes jerk as they follow an object moving from one side of the person’s field of vision to the other. The test is premised on the understanding that, whereas everyone’s eyes exhibit some jerking while turning to the side, when the subject is intoxicated the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct.” (Internal quotation marks omitted.) State v. Weed, 118 Conn. App. 654, 658 n.1, 984 A.2d 1116 (2009).

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       General Statutes § 14-227b (a) provides in relevant part: “Any person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine . . . .”

       We address the defendant’s sufficiency of the evidence claim first “[b]ecause the defendant would be entitled to a judgment of acquittal were [he] to succeed on [his] claim that the evidence was insufficient to support [his] conviction . . . .” State v. Bereis, 117 Conn. App. 360, 364, 978 A.2d 1122 (2009).

       General Statutes § 14-227a (e) provides in relevant part: “In any criminal prosecution for a violation of subsection (a) of this section, evidence that the defendant refused to submit to a blood, breath or urine test requested . . . shall be admissible .... If a case involving a violation of subsection (a) of this section is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.”

       We reject the defendant’s claim to the extent that he suggests that the evidence was insufficient because Kilkenny and Falconer were not credible witnesses. As this court previously has stated: “[T]he jury is the sole arbiter of witness credibility and may accept or reject, in whole or in part, the truth of any witness’ testimony. . . . This court may not revisit credibility determinations.” (Citation omitted.) State v. Russell, 101 Conn. App. 298, 316,922 A.2d 191, cert. denied, 284 Conn. 910,931 A.2d 934 (2007). Therefore, we will not review or second-guess the jury’s determination of the credibility of these witnesses.

       “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Const., amend. V.

       In his brief, the defendant also cites article first, § 8, of the Connecticut constitution. We decline to review his claim under the Connecticut constitution because he has failed to provide as part of his brief a separate and independent analysis of its applicability under the circumstances of this case. State v. Sinvil, 270 Conn. 516, 518 n.1, 853 A.2d 105 (2004) (“We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” [Internal quotation marks omitted.]).

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       We note that even if the defendant had briefed his claim of plain error adequately, this case is not one of those “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). In the present case, the jury heard an abundance of other evidence, including the testimony of Kilkenny, Tunney and Zimnoch along with the defendant’s own admissions, from which it reasonably could have concluded that the defendant was intoxicated within the meaning of § 14-227a (a) (1).


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. JENNIFER HELMEDACH
    (AC 31420)
    Gruendel, Flynn and Dupont, Js.

      Argued May 27
    officially released November 23, 2010

      Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).

      Hope C. Seeley and JillM. Spector, pro hac vice, filed a brief for the National Clearinghouse for the Defense of Battered Women as amicus curiae.
   Opinion

GRUENDEL, J.

The defendant, Jennifer Helmedach, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-48 and 53a-136, and robbery in the first degree in violation of General Statutes § 53a-134 (a) (1). On appeal, the defendant claims that the court improperly (1) declined to alleviate the juiy’s confusion regarding the statutory exception to the defense of duress by failing to define the term “situation,” as that term appears in General Statutes § 53a-14, to refer to the circumstances existing at the time of the crime and (2) charged the jury on the statutory exception to the defense of duress when there was no evidence adduced at trial that would have allowed the jury reasonably to conclude that the defendant intentionally or recklessly placed herself in a situation in which it was probable that she would be subject to duress. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. David Bell was a drug dealer who had two girlfriends, the defendant and Xaimayra Sevilla-Cruz. Both girlfriends knew of Bell’s relationship with the other, both lived with Bell at his mother’s apartment in Middle-town, and both were verbally and physically abused by Bell. Bell called the defendant, inter alia, “[s]tupid white bitch,” “cracker” and “whore . . . .” Bell physically abused the defendant by shoving, smacking, punching and choking her.

In May, 2003, the defendant witnessed Bell repeatedly punch the then pregnant Sevilla-Cruz, throw her to the ground and stomp on her head. As a result of that incident, after which Sevilla-Cruz was hospitalized, Bell was sentenced to one year in prison. While Bell was in prison, the defendant moved out of his mother’s apartment and into the home of a relative in Middlefield. The defendant and Bell communicated by mail and telephone during his incarceration.

Following Bell’s release from prison in June, 2004, the defendant left her relative’s home to be with Bell. The defendant stayed with various friends, Bell’s sister and Bell’s brother. The defendant and Bell spent several nights together but not every night. For approximately the first one and one-half months following his release from prison, Bell did not verbally or physically abuse the defendant. Thereafter, Bell again began to abuse the defendant verbally and physically.

Sometime in August, 2004, Bell and the defendant planned to rob the victim, Faye Bennett, a friend of the defendant. On September 2, 2004, the defendant lured the victim to an apartment in Meriden, where she and Bell had been staying. There, Bell stabbed the victim in the neck with a knife and strangled her. Bell and the defendant then stole the victim’s pocketbook and Chevrolet Blazer. They left the state, traveled to New Jersey and then to New York, where they later were apprehended. A jury trial followed, at the conclusion of which the defendant was convicted of felony murder, conspiracy to commit robbery in the third degree and robbery in the first degree. From that judgment, the defendant appeals.

I

The defendant claims that the court improperly declined to alleviate the jury’s purported confusion regarding the statutory exception to the defense of duress by failing to define the term “situation,” as that term appears in § 53a-14. Specifically, she contends that the court should have defined the term “situation” to refer to the circumstances existing at the time of the crime on September 2, 2004. We disagree.

The record reveals the following additional facts that are relevant to our resolution of the defendant’s claim. At the close of trial, the court charged the jury on the defense of duress and its statutoiy exception as follows: “In this case, the defense maintains that [the defendant] is not guilty of robbery in the first degree or felony murder because she acted as she did only under duress. This defense does not apply to the second count alleging conspiracy.

“Duress is defined in § 53a-14 of the Penal Code, which provides in relevant part: In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because she was coerced by the use or threatened imminent use of physical force upon her or a third person — which force or threatened force a person of reasonable firmness in her situation would have been unable to resist.

“It is the state’s burden to prove beyond a reasonable doubt that [the defendant] did not act under duress. The defense of duress is not available to a person who intentionally or recklessly places herself in a situation in which it is probable that she will be subjected to duress.” The defendant took exception to the court’s instruction concerning the statutory exception to the defense of duress.

After the jury began deliberations, it submitted to the court a note that provided in relevant part: “Question on ‘Duress’? A further explanation in [layman’s] terms. Concerning the willingness to re-enter the ‘negative situation.’ ” In response, the court stated: “Unfortunately, ladies and gentleman, I could only provide you with the instruction on duress that you already had. It’s in the blue book. The rules do not permit me to go on in that instruction.”

The next day, the defendant submitted a supplemental request to charge in an effort to respond to the jury’s question regarding the defense of duress. Specifically, the defendant requested that the court further address the jury’s request for fear that “tell[ing] [the] jury, you know, if you find that [the defendant], in going back to the abuser, back to David Bell, intentionally or recklessly put herself in a situation where duress is likely, then it’s not available, that is to say to a jury, battered women don’t have a duress defense. That was my concern about that sentence.” The court rejected the defendant’s supplemental request to charge, explaining: “The question requests a further explanation in layman’s terms concerning the willingness to reenter the negative situation. Upon reviewing this question and upon reconsideration of the whole issue, I don’t see where— frankly, I don’t think that I have the authority to do this . . . unless the question specifically asks for this information, which it does not. I think that this is a dangerous precedent to start recharging a jury after they have begun their deliberations because I think they are going to sit there and they are going to wonder, why am I telling them this? Am I recharging them on something that they didn’t ask about? I think that that might lead to further confusion. So, it clearly does not respond to the question.”

Subsequently, the defendant submitted another supplemental request to charge on the defense of duress. Specifically, the defendant requested that the court charge the jury that “[t]he ‘situation’ referred to in this instruction refers to the particular circumstances surrounding the alleged criminal activity of September 2, 2004.” The court rejected that supplemental request to charge, explaining: “[Y]ou want me to tell the jury that the situation referred to in the instruction refers to the particular circumstances surrounding the September 2, 2004 incident, and not her choice to return to her relationship with Mr. Bell. I am not at all convinced that’s an accurate statement. It seems to me that whether, based upon all the evidence in this case . . . whether or not her returning to that relationship, given the background of that relationship, given its abusive nature, I think that that is a question of fact for the jury, and for me to give this instruction would be removing that question of fact from their domain, and I decline to do that.”

Thereafter, the court summoned the jury to readdress its request for further explanation concerning the defense of duress. The court stated: “Yesterday, in one of your notes, you expressed a desire to have some clarification of the defense of duress, specifically, the exception to the defense of duress when someone— that the defense is not available when someone intentionally or recklessly puts [herself] in a position where duress is likely to occur. In thinking about that, it occurs to me that there — I just want to instruct you a little further on that, in that particular area with respect to the issue of burden of proof. And I want to tell you that I will just remind you that the state has the burden of disproving the defense of duress beyond a reasonable doubt. You have been instructed that the defense of duress is not available to one who intentionally or recklessly places herself in a situation in which it is probable that she could be subject to duress. The state has the burden to prove beyond a reasonable doubt that the defendant intentionally or recklessly placed herself in a situation in which it was probable that she would be subject to duress.”

On appeal, the defendant claims that the court improperly declined to define the term “situation,” as that term appears in § 53a-14, after the jury had manifested some confusion on such. Specifically, the defendant contends that the court had a duty to define the term “situation” as referring to the circumstances existing at the time of the crime on September 2, 2004. More specifically, the defendant contends that the court should have instructed that the jury “could not consider the defendant’s so-called willingness to ‘re-enter’ the negative relationship or ‘situation’ [with Bell] as evidence of recklessness or intentionality . . . .” We disagree.

“The standard of review for claims of instructional impropriety is well established, [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Castillo, 121 Conn. App. 699, 707, 998 A.2d 177, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).

“The duty of the trial court [in a criminal case] is to instruct the jury on the law applicable to the case. . . . It is the duty of the court, in charging the jury in a criminal case, to give them such instructions as may be required to enable them to understand the nature of the offense charged and the questions which they are to decide, to weigh the evidence applicable to such questions, and to intelligently decide them. . . . The defendant is entitled to a jury which is correctly and adequately instructed.” (Citations omitted; internal quotation marks omitted.) State v. St. Pierre, 58 Conn. App. 284, 291-92, 752 A.2d 86, cert. denied, 254 Conn. 916, 759 A.2d 508 (2000). “It is of the utmost importance that the instructions be clear and comprehensible and provide guidance to the jury in applying the law to the facts it finds established.” State v. Fletcher, 10 Conn. App. 697, 704, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988).

General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” Because § 53a-14 does not define the term situation, it is given its common and ordinary meaning. The defendant contends that because the common and ordinary meaning of the term situation can mean either a “combination of circumstances at a certain point in time” or a “trying state of affairs;” see Merriam-Webster Dictionary available online at http://www.merriamwebster.com/dictionary/situation (accessed 11/8/10); the court had a duty to define that term. We are not persuaded. “[T]he definition of words in our standard dictionaries is taken as a matter of common knowledge which the jury is supposed to possess.” (Internal quotation marks omitted.) State v. Dickman, 119 Conn. App. 581, 595, 989 A.2d 613, cert. denied, 295 Conn. 923, 991 A.2d 569 (2010); cf. State v. Ramos, 261 Conn. 156, 168 n.13, 801 A.2d 788 (2002) (“even where a statutory definition exists, the trial court is not required necessarily to provide that definition in its instructions to the jury”). Because the term situation does not have a statutory definition under § 53a-14, it is taken that the jury, as a matter of common knowledge, comprehends that term. The court, therefore, was not obligated to define the term situation.

Moreover, if the court was obligated to define the term situation in the manner advanced by the defendant, as a combination of circumstances at a certain point in time, the court implicitly would have factually found that by returning to Bell after he was released from prison, the defendant did not recklessly or intentionally place herself in a situation in which it was likely that she would be subject to duress. The court declined to define the term situation for this reason. We agree with the court that defining the term situation in the manner advanced by the defendant would have impinged on the exclusive province of the jury to find facts. See State v. Ovechka, 292 Conn. 533, 541, 975 A.2d 1 (2009); see also State v. Mungroo, 104 Conn. App. 668, 673, 935 A.2d 229 (2007) (choosing among competing inferences within exclusive province of jury), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).

In addition, there was no evidence that the defendant was under duress of any sort from Bell on the day of the murder. Although the defendant testified that she and Bell had had an argument on the morning of September 2, 2004, she did not indicate that the argument was accompanied by any threats or abuse, either verbal or physical, and could not recall what the argument was about. Following the argument, Bell and the defendant were not together again until Bell entered the room in Meriden where she and the victim were located, minutes before Bell stabbed the victim. The defendant left her Meriden apartment twice during the day on September 2, accompanied only by her daughter, once to buy cigarettes and once to call the victim. Otherwise, she remained in the apartment with her daughter and, later, with her daughter and the victim. Although the defendant testified that Bell had displayed a knife just before he repeatedly stabbed the victim, she did not testify that Bell threatened to use the knife on her in any way.

Finally, we consider whether the court properly responded to the jury after the jury had expressed some confusion with regard to the defense of duress and its statutory exception. Practice Book § 42-27 provides: “If the jury, after retiring for deliberations, requests additional instructions, the judicial authority, after providing notice to the parties and an opportunity for suggestions by counsel, 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.” See State v. Fletcher, supra, 10 Conn. App. 705 (“[clarification of the instructions when the jury or one of its members manifests confusion about the law is mandated”). The court responded to the jury’s confusion by repeating its instruction regarding the statutory exception to the defense of duress and emphasized that the burden of proof was on the state to prove beyond a reasonable doubt that the defendant intentionally or recklessly placed herself in a situation in which it was probable that she would be subject to duress. Thereafter, the jury made no further inquiries of the court, nor did it express any further confusion on the matter. Because the jury expressed no further confusion, we presume that the corut’s additional instructions provided a necessary response and alleviated any confusion the jury may have had. We also note that the court’s original and additional instructions were correct in law, as it appears as though they were modeled on the instructions set forth in the Connecticut Criminal Jury Instructions. See Connecticut Criminal Jury Instructions (2008 Ed.) § 2.7-3 available on the Connecticut Judicial Branch website, http://www.jud.ct.gov/JI/ criminal/part2/2.7-3.htm (accessed 11/8/10). “The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions.” (Internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 544, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). Accordingly, we conclude that the court’s instruction, viewed as a whole, did not mislead the jury.

II

The defendant also claims that the court improperly charged the jury on the statutory exception to the defense of duress because there was no evidence adduced at trial that would have allowed the jury reasonably to conclude that she intentionally or recklessly placed herself in a situation in which it was probable that she would be subject to duress. We disagree.

“[I]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Castillo, supra, 121 Conn. App. 707. Furthermore, “[t]he court . . . has a duty not to submit to the juiy, in its charge, any issue upon which the evidence would not reasonably support a finding.” State v. Diggs, 219 Conn. 295, 299, 592 A.2d 949 (1991).

“It is well established that General Statutes § 53a-14 provides that duress is a defense to a crime. . . . The right of a defendant charged with a crime to establish a defense is a fundamental element of due process. . . . This fundamental constitutional right includes proper jury instructions on the burden of proof on the defense of duress so that the jury may ascertain whether, under all the circumstances, the state has met its burden of proving beyond a reasonable doubt that the crimes charged were not committed under duress. Duress ... [is a] recognized [defense] to [a] criminal [charge] because [it] . . . implicate^] the volitional aspect of criminality. . . . The state’s burden of proof beyond a reasonable doubt encompasses, in an appropriate case, a burden of disproving duress beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Heinemann, 282 Conn. 281, 298-99, 920 A.2d 278 (2007).

“[E]ven where the evidence is sufficient to establish the elements of duress, the defendant still may not be entitled to avail himself of the defense. Duress is not a refuge. The duress defense is not available if the evidence establishes that the defendant recklessly placed himself in a situation where it was probable that he would be subject to duress. Recklessly in this context has been defined to mean: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. . . . Therefore, like the test for determining whether the defendant was subject to duress, the test for determining whether a defendant acted recklessly ... is a hybrid objective-subjective one. . . . The trier of fact must decide whether the defendant disregarded a risk that involves a gross deviation from what an objectively] reasonable person would observe if he was placed in the [defendant’s] situation. . . . Thus, in making its determination, the trier of fact must again take into account the stark tangible factors that differentiate the defendant from another person and the salient situational factors surrounding the defendant.” (Internal quotation marks omitted.) Id., 306-307.

On our review of the record, we conclude that there was sufficient evidence for the court to have charged the jury on the statutory exception to the defense of duress. Prior to Bell’s being sent to prison for severely beating Sevilla-Cruz, there was evidence that Bell verbally and physically abused the defendant and used physical force and threats of physical force to control the defendant. Christina Linebarger, a friend of the defendant, testified that on one occasion, she observed Bell push the defendant against the wall and tell the defendant, “you are not fucking going anywhere.” Linebarger added that “[t]here were times that [the defendant] wanted to go out, and [Bell] said, you are not going anywhere, fucking bitch, you are staying here with me . . . .”

There also was evidence that the defendant knew that Bell was involved in criminal activity. The defendant testified that Bell was involved in criminal activity— namely, selling illegal drugs. Although the defendant was not directly involved in that criminal activity, Sevilla-Cruz was directly involved. There also was evidence that Bell was more abusive to Sevilla-Cruz than to the defendant.

While Bell was in prison, the defendant moved out of the apartment of Bell’s mother and into the home of a relative. When Bell was released from prison after one year, the defendant moved out of her relative’s house, and she started to see Bell again. The defendant testified that Bell treated her well for about one and one-half months following his release from prison, at which point he again began to abuse her verbally and physically.

There also was evidence that the defendant became more involved in criminal activity with Bell following his release from prison. Sevilla-Cruz testified that in August, 2004, the defendant and Bell asked her if she would like to participate in robbing Bennett but that she declined. Sevilla-Cruz also testified that the defendant told her that she and Bell had robbed a woman of her jewelry in late August, 2004. Finally, there was evidence that the defendant knew that Bell had assaulted an individual with a knife, prior to the murder of Bennett. Specifically, the defendant testified that in late August, she learned that Bell had stabbed Gregory Richard, the boyfriend of Bell’s sister, with a knife after Richard tried unsuccessfully to have sex with the defendant.* The defendant further stated that Bell usually carried a knife with him when he left the house. Bell stabbed the victim in the neck with a knife. Accordingly, the aforementioned evidence, if credited by the jury, reasonably could have led the jury to conclude that the defendant intentionally or recklessly placed herself in a situation in which it was probable that she would be subject to duress. In light of the foregoing, the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-14 provides: “In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”

       The victim was pregnant at the time of her murder. Her unborn child died in útero.

       The defendant does not appeal from her conviction of conspiracy to commit robbery in the third degree.

       See footnote 3 of this opinion.

       The blue book refers to the standard Connecticut criminal jury instructions.

       The National Clearinghouse for the Defense of Battered Women was granted permission to file an amicus brief. In its brief, it claims that the statutory exception to the defense of duress was not meant to apply to a battered woman’s decisions regarding staying in or leaving abusive relationships. It also claims that a battered woman’s act of remaining in or returning to an abusive relationship does not make her responsible for subsequent victimization and violence by the batterer.

       The defendant also argues that “[i]f the legislature did not intend to focus on the situation at the time of the acts, it would not have specified that the requisite coercive force must have been ‘imminent.’ ” We disagree.

       Even if we assume arguendo that the defendant’s requested instruction that “situation” under § 53a-14 be defined in such a way as to limit its application to the day of the murder, the defendant’s claim would fail nonetheless. Adopting the defendant’s argument, because the record discloses no evidence of duress on the day of the murder, there would be no need for a duress instruction by the court. Thus, the defendant’s argument is wholly meritless. See State v. Scribner, 72 Conn. App. 736, 740, 805 A.2d 812 (2002) (“[A] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . . Conversely, it also is true that a court is under no duty to give a requested jury instruction that is an improper statement of law. Accordingly, if this court concludes that the requested jury instruction was an improper state-merit of law, the defendant is not entitled to the requested jury instruction and the court’s refusal [to give such an instruction is] proper.” [Citation omitted; internal quotation marks omitted.]).

       “Stark, tangible factors that differentiate the actor from another, like his size, strength, age, or health” may be considered. State v. Heinemann, supra, 282 Conn. 304.

       “[SJalient situational factors surrounding the defendant at the time of the alleged duress, including the severity of the offense the defendant was asked to commit, the nature of the force used or threatened to be used, and the alternative ways in which the defendant may have averted the force or threatened force” may be considered. State v. Heinemann, supra, 282 Conn. 306.

       Aiding Bell in the assault were two other men, at least one of whom was one of Bell’s brothers, Lucas Bell, Stephen Bell or a third brother from Chicago, Illinois.

       The defendant also claims that the court improperly instructed the jury on the statutory exception to the defense of duress because there was no evidence that the defendant would have been subject to duress to commit the specific crimes of felony murder and robbery in the first degree. As stated earlier, our Supreme Court has noted: “The duress defense is not available if the evidence establishes that the defendant recklessly placed himself in a situation where it was probable that he would be subject to duress. ‘Recklessly’ in this context has been defined to mean: ‘A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.’ ” (Emphasis added.) State v. Heinemann, supra, 282 Conn. 306.
      General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . .” On our review, we conclude that the jury reasonably could have concluded that the defendant reentered the relationship with Bell, and, in so doing, recklessly placed herself in a situation in which it was probable that she would be subject to duress to commit a crime in which Bell would cause serious physical injury to another person.