author: DiPENTIMA, J.

text:
    MICHAEL WALKER v. COMMISSIONER OF CORRECTION
    (AC 27072)
    Schaller, DiPentima and West, Js.

      Argued March 15
    officially released September 4, 2007

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

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Michael E. O’Hare, supervisory assistant state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, J.

The petitioner, Michael Walker, appeals from the judgment of the habeas court denying his petition for a wiit of habeas corpus. On appeal, the petitioner claims that the court improperly (1) concluded that he failed to prove that the state, at his criminal trial, had suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), (2) excluded evidence at the habeas hearing that might have revealed a Brady violation, (3) found that one of the state’s primary witnesses testified truthfully in all material respects at the criminal trial and (4) excluded certain police reports from evidence in the habeas hearing. We affirm the judgment of the habeas court.

The facts underlying the petitioner’s conviction were recounted in the decision of our Supreme Court disposing of his direct appeal: “The record discloses that the [petitioner] and Tracey Fisher were arrested in connection with the death of Thomas Dixon and the wounding of Barrington Solomon. The shooting occurred on the evening of May 12, 1987. Dixon and Solomon were seated, conversing on the first floor rear porch of a multiple family dwelling located at 104 Enfield Street in Hartford. The [petitioner] and Fisher approached the dwelling and fired bursts from a .30 caliber automatic or semi-automatic weapon at the men on the porch. The shots killed Dixon instantly and severely wounded Solomon. The shooting was apparently motivated by the [petitioner’s] desire to avenge his brother, Robert Walker, who, on a previous occasion, had been shot by Solomon and, as a result, was paralyzed.

“At the [petitioner’s] trial the state offered Lehman Brown as a witness. Brown testified that he knew the [petitioner] and Fisher, and that he had been with them early in the day on May 12,1987. Thereafter, he said, he had gone to visit a friend, Dion Smith, at her apartment. Brown testified that Smith resided at 98-100 Enfield Street, the premises adjoining 104 Enfield Street, where Dixon and Solomon were shot. Brown stated that he had fallen asleep at 98-100 Enfield Street and that upon awakening in the evening he had gone out on a rear porch. While there, he observed the [petitioner] and Fisher come through the back lot behind 98-100 Enfield Street. Fisher was in possession of an automatic weapon. Brown stated that he then saw Fisher scale a fence between the properties and fire a series of shots at the men on the porch. Fisher then returned to where the [petitioner] was standing and handed him the gun. The [petitioner] then fired a burst from the weapon at the porch. Fisher and the [petitioner] then ran from the scene.” State v. Walker, 214 Conn. 122, 124-25, 571 A.2d 686 (1990). Following Brown’s direct testimony, the petitioner extensively cross-examined him regarding his motivation for testifying against the petitioner.

“Smith, Brown’s friend, did not testify in the state’s case-in-chief nor did she testify for the defense. After the [petitioner] had rested his case, however, the state called her as a witness on rebuttal. Smith testified that she had known Brown for approximately two and one-half years. She stated that, although she had been with Brown on May 12, 1987, she had never been with him in or near an apartment at 98-100 Enfield Street in Hartford. Smith was not cross-examined by the [petitioner].

“During the state’s closing argument to the jury the prosecuting attorney noted that he had called Smith as a witness because he had a duty to see that the [petitioner] received a fair trial and that he was obligated to produce all the relevant evidence whether it helped or hurt the state’s case. He then stated that Smith’s testimony indicated that the state’s witness, Brown ‘was probably not on the porch at 100 Enfield Street on the night in question.’ ” Id.

The petitioner received a total effective sentence of eighty years incarceration. Id., 123. His conviction was affirmed on direct appeal. Id., 124.

On January 16, 1996, Brown signed an affidavit recanting his trial testimony. The petitioner then instituted a habeas corpus proceeding on December 4,1996, claiming that Brown had committed perjury during the petitioner’s trial, which the state either knew or should have known. The habeas court held hearings from September 27 through 29, 2004, and then again on October 15 and 26, 2004. During the hearings, on October 15, the habeas court allowed the petitioner to amend his petition to add an allegation that the state had failed to disclose material, exculpatory evidence in violation of Brady v. Maryland, supra, 373 U.S. 87.

The habeas court issued a memorandum of decision, filed November 24, 2004, concluding that the state did not knowingly present perjured testimony and that there was no Brady violation. The court based those conclusions on its factual findings that Brown had testified truthfully in all material respects at the petitioner’s criminal trial and that there never was any agreement between Brown and the state that should have been disclosed pursuant to Brady. Thus, the court declined to issue the petitioner a writ of habeas coipus. On October 17,2005, the court granted the petitioner certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the petitioner first claims that he was denied due process of law and his right to a fair trial because the habeas court improperly concluded that he failed to prove that the state had suppressed exculpatory evidence in violation of Brady v. Maryland, supra, 373 U.S. 87. Specifically, the petitioner contends that the prosecutor failed to disclose to the defense that Brown, who was in police custody on charges related to a robbery, had his bond reduced to a written promise to appear in exchange for a written statement against the petitioner. The respondent, the commissioner of correction, responds that the court correctly concluded that the petitioner failed to prove the existence of such an agreement with Brown. We agree with the commissioner.

At the outset, we state the standards by which we review the petitioner’s claims. The question of whether there existed an agreement between Brown and the state is a question of fact, which we review under the clearly erroneous standard. See State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000). “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . This 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.) Reid v. Commissioner of Correction, 100 Conn. App. 59, 62-63, 917 A.2d 1001, cert. denied, 282 Conn. 907, 920 A.2d 309 (2007).

Whether the petitioner was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review. See Quintana v. Commissioner of Correction, 55 Conn. App. 426, 435-36, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999). “The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here 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 that appear in the record.” (Internal quotation marks omitted.) Wilson v. Office of Adult Probation, 67 Conn. App. 142, 145, 786 A.2d 1120 (2001).

The following relevant testimony was elicited at the hearing on the petitioner’s habeas petition. Brown recanted the testimony he had given in the petitioner’s criminal trial. He also testified that once he had provided the police with a statement incriminating the petitioner, the charges against Brown “miraculously disappeared.” Brown, however, did not refer to anything specific that was offered or said, instead claiming that “nothing was said in direct fashion, everything was indirect.” Attorney Thomas R. Gerarde, who had represented Brown, testified that his goal would have been to ensure that once Brown gave a statement, he did not return to jail and that he must have received consent to that, but he was just not sure how it happened. He further testified that he had a specific memory of not getting a promise from then state’s attorney, James E. Thomas, for favorable treatment on the criminal charges against Brown. Gerarde also stated that his notes indicated, “no promises from JET,” which he said referred to Thomas. Detective Clyde Mitchell, the police officer who had interviewed Brown, also testified that the police had made no specific promises to Brown. Thomas testified that he could not recall whether he had entered into an agreement with Brown to recommend a written promise to appear in return for his cooperation.

“In [Brady v. Maryland, supra, 373 U.S. 83] . . . the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment].” (Internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn. App. 526, 533-34, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007).

Our Supreme Court has recognized that “[i]mpeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused.” (Internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988); see also Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006). The purpose of requiring the state to disclose impeachment evidence to a criminal defendant is “to ensure that the jury knows the facts that might motivate a witness in giving testimony . . . .” (Internal quotation marks omitted.) State v. Paradise, 213 Conn. 388, 400, 567 A.2d 1221 (1990), overruled in part on other grounds by State v. Skakel, 276 Conn. 633, 693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

A petitioner bears the burden of proving the existence of an agreement between the state or police and a state’s witness. See State v. Floyd, supra, 253 Conn. 737. Any such understanding or agreement between any state’s witness and the state police or state’s attorney clearly falls within the ambit of the Brady principles. See State v. Rocker, 177 Conn. 370, 373, 418 A.2d 55 (1979). An unexpressed intention by the state not to prosecute a witness does not. Id., 376. In State v. Floyd, supra, 738-39, our Supreme Court held that a connection between a witness’ willingness to testify and the state’s willingness not to oppose a reduction of the witness’ bond to a promise to appear did not necessarily constitute an implied agreement for Brady purposes, especially when there was other evidence militating against the existence of such an implied agreement.

In this case, we conclude that the habeas court found, on the basis of the evidence presented, that there was no agreement between the state and Brown within the penumbra of Brady. In his testimony, Brown did not mention anything that was directly said or offered to him. Neither Gerarde nor Thomas could recall whether an agreement had been made with respect to Brown’s release on a promise to appear. Mitchell stated that no promises had been made to Brown. Although Gerarde and Brown may have hoped or expected to receive something in exchange for Brown’s cooperation, such an expectation does not trigger a Brady obligation on the part of the state. See id., 740; State v. Rucker, supra, 177 Conn. 374-75.

The petitioner additionally refers to the fact that the charges against Brown were ultimately dropped, arguing that the only reasonable inference is that there was a connection between the dismissal of the case and Brown’s testimony against the petitioner. Our Supreme Court has made clear, however, that not every possible connection between a witness’ willingness to testify and the state’s recommendation with respect to that witness constitutes an agreement within the penumbra of Brady. State v. Floyd, supra, 253 Conn. 739. Furthermore, such an inference, in this case, is belied by Ger-arde’s testimony, credited by the habeas court, that Thomas did not make any promises with respect to the charges against Brown and by the notation to that effect in Gerarde’s case notes.

Because we conclude, after a careful review of the record, that the habeas court reasonably found that there was no agreement between Brown and the state, the petitioner’s Brady claim fails.

II

The petitioner next claims that the habeas court’s evidentiary rulings deprived him of a fair habeas hearing. Specifically, the petitioner argues that because he was denied access to the file of the state’s attorney on Brown’s robbery case, he was deprived of the necessary evidence by which he could have proven the Brady violation. We disagree.

We review, the habeas court’s evidentiary rulings under the abuse of discretion standard. See Player v. Commissioner of Correction, 73 Conn. App. 556, 560, 808 A.2d 1140, cert. denied, 262 Conn. 926, 814 A.2d 378 (2002).

At the habeas trial, the petitioner’s counsel attempted to question Thomas regarding the disposition of the charges against Brown. Thomas stated that he was not at liberty to discuss that information. The petitioner’s counsel then requested that the court issue an order to allow Thomas to discuss the erased records for Brown. The court denied that motion. The petitioner’s counsel subsequently asked the court to reconsider its ruling, which the court refused to do because it found that the evidence was not material. After the petitioner had amended his petition to include a Brady count, his counsel sought to review Thomas’ case file on Brown in order to determine whether it contained any document that would indicate an agreement between the state and Brown. The court ordered the state to remove any matter that would not have been available to defense counsel at the time of the original trial and to turn the remainder of the file over to the petitioner. The state removed several documents it claimed to be privileged either as work product or as postconviction matters and gave the petitioner the remainder of the file. Thomas testified that after examining the entire file, he did not find anything indicating an agreement. The petitioner’s counsel asked the court to conduct an in camera review of the privileged documents, but the court denied the request on the ground that the petitioner had not made a sufficient showing of entitlement.

A

The petitioner is essentially challenging two different evidentiary rulings made by the court. The petitioner’s first challenge relates to the court’s ruling preventing the petitioner from asking Thomas about the disposition of the charges against Brown. We decline to review this ruling because, as the commissioner correctly argues, it has not been preserved for appeal.

“We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” Keating v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d 763 (1985). “Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Gonzalez, 272 Conn. 515, 540, 864 A.2d 847 (2005).

The court ruled that such evidence was not material to the issue before it because at that time, the petitioner had not yet alleged a Brady claim. The petitioner never renewed his attempt to ask Thomas about the disposition of Brown’s case after he had amended his petition to include a Brady claim. Because the court never had the opportunity to rule on the potential evidence in light of the Brady claim, we decline to review it on those new grounds.

B

With respect to the court’s second evidentiary ruling, the petitioner contends that the court improperly denied him access to the file of the state’s attorney on Brown. We disagree.

A criminal defendant does not have the right to conduct a general fishing expedition into privileged or sensitive records. State v. Brown, 273 Conn. 330, 346, 869 A.2d 1224 (2005). It is well settled that “[a] defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the [state’s] files. . . . Settled practice is to the contrary. In the typical case [in which] a defendant makes only a general request for exculpatory material under Brady ... it is the [s]tate that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final.” (Citations omitted.) Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).

In State v. Colon, 272 Conn. 106, 261-66, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005), the defendant served the office of the chief state’s attorney with a subpoena duces tecum, seeking documents related to an investigation into alleged corruption of certain Waterbury police officers who were listed as potential state’s witnesses for the defendant’s trial. The state moved to quash the subpoena with respect to the files on the ground that they were subject to a qualified law enforcement privilege, and the trial court granted the motion. Id., 261-63. On appeal, the defendant claimed that the trial court improperly refused to conduct an in camera inspection of the privileged material. Our Supreme Court affirmed the trial court’s order, explaining that because the materials that defense counsel sought were privileged and were sought for purposes of impeachment, defense counsel was required to establish a threshold showing of entitlement to an in camera review of purportedly privileged records. Id., 263-64. In that case, the defendant’s only basis for seeking the privileged materials was certain allegations of corruption made in a published anonymous letter to the editor of a Waterbury newspaper. Our Supreme Court held that this was insufficient to overcome the privilege claimed. Id., 265-66.

In this case, the state turned over most of the file for the petitioner to review, and he failed to find evidence of an agreement. Additionally, Thomas testified that there was nothing in the privileged documents that would lead anyone to believe that such an agreement existed. The petitioner has not provided us with a basis for concluding that there would be evidence of an agreement in the privileged documents, and, in fact, all of the evidence suggests the contrary. Accordingly, we conclude, as did the court in Colon, that the court did not abuse its discretion in ruling that the petitioner had not made a sufficient showing of entitlement to warrant in camera review of the privileged documents in Brown’s file.

Ill

The petitioner’s third claim is that the habeas court improperly concluded that his due process rights were not violated by the state’s presentation of Brown’s perjured testimony. Specifically, the petitioner argues that the court’s determination that Brown’s testimony at the habeas trial was unworthy of belief and that his testimony at the petitioner’s criminal trial was true in all material respects is clearly erroneous. The petitioner’s claim is unavailing.

The question of whether a witness perjured himself is a factual finding, which we review under the clearly erroneous standard. See Ortega v. Duncan, 333 F.3d 102, 107-108 (2d Cir. 2003). When the factual basis of the court’s decision is attacked, “[w]e are called upon to 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. . . . Our function is not to examine the record to see if the trier of fact could have reached a contrary conclusion.” (Internal quotation marks omitted.) Morales v. Commissioner of Correction, 99 Conn. App. 506, 509, 914 A.2d 602, cert. denied, 282 Conn. 906, 920 A.2d 308 (2007). The United States Court of Appeals for the Second Circuit has made clear that in order to determine whether perjury occurred, “the court must weigh all the evidence of perjury before it, including but not limited to the recantation . . . .” Ortega v. Duncan, supra, 107. Thus, the court must go beyond the recantation to review other independent evidence bearing on whether there was perjury at trial.

We conclude that the court’s findings with respect to the credibility of Brown’s trial testimony and his recantation find ample support in the record and are therefore not clearly erroneous. The court based those findings on the detailed nature of the statement that Brown had given the police, the consistency between that statement and his trial testimony, and the fact that Brown’s testimony was corroborated by other witnesses at the trial. The court also noted Brown’s potential motives to lie at this stage, including the fact that his testimony at the trial of his cousin, Fisher, had caused a rift in the family and that Brown was incarcerated at the department of correction and subject to direct pressure that could be brought to bear on him by the petitioner. Finally, the court found it significant that Brown did not come forward with his recantation until approximately eight years after his original trial testimony, which was long after the statute of limitations for a perjury prosecution had passed.

The petitioner directs us to evidence favorable to his claim and urges us to conclude, on the basis of this evidence, that the habeas court’s finding was clearly erroneous. That we cannot do. First, the habeas court acted well within its discretion in finding that Brown’s trial testimony was generally truthful despite some discrepancies. See State v. Hoyeson, 154 Conn. 302, 305, 224 A.2d 735 (1966) (“a trier [of facts] is entitled to credit some portions of a witness’ testimony and discredit other portions”). Furthermore, the fact that there is support in the record for a different conclusion is irrelevant at this stage in the judicial process. As we have noted, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. We review the totality of the evidence, including reasonable inferences therefrom, to determine whether it could support the trier’s decision. See Morales v. Commissioner of Correction, supra, 99 Conn. App. 509. We conclude that it does.

IV

The petitioner’s final claim is that the habeas court improperly declined to admit into evidence police reports related to the crime and its investigation, which, according to the petitioner, would have discredited the trial testimony of Brown and those who corroborated his testimony. We disagree.

The petitioner offered the police reports to undercut various aspects of the corroboration of Brown’s testimony, including that (1) someone other than the petitioner may have had a motive and weapon with which to commit the crime, (2) shell casings had been recovered from an additional location, which Brown had not referenced as a point from which the petitioner or Fisher fired a weapon, and (3) some witnesses told the police that the shooting had been perpetrated by one gunman and not two. The habeas court excluded the reports primarily on the grounds of hearsay and relevance, ruling that the proffered evidence was too collateral to the issue of whether Brown had committed perjury.

“Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 219, 881 A.2d 160 (2005). In general, evidence is relevant if it has a tendency to establish the existence of a material fact. State v. Hurdle, 85 Conn. App. 128, 137, 856 A.2d 493, cert. denied, 271 Conn. 942, 861 A.2d 516 (2004). “The determination of whether a matter is relevant or collateral . . . generally rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Reyes, 81 Conn. App. 612, 619, 841 A.2d 237 (2004).

The habeas court was charged with determining whether Brown had perjured himself at the petitioner’s trial, not with retrying the entire case against the petitioner. None of the evidence proffered by the petitioner was directly relevant to the discrete issue before the habeas court. That someone else had a motive and means to commit the crime, even if true, does not negate that the petitioner also had a motive. Similarly, that shell casings were found in an additional location does not detract from the fact that shell casings were found in the two locations that Brown had pinpointed as the places from which the petitioner and Fisher had fired their weapon. Finally, that certain witnesses believed that there was only one shooter cannot, at this stage in the proceedings, trump the testimony of other witnesses who claimed there were two. Thus, none of the proffered evidence had a tendency to establish that Brown had perjured himself at the petitioner’s trial, and we conclude that the habeas court did not abuse its discretion in ruling that it should be excluded on the ground of relevance.

For all the foregoing reasons, we conclude that the habeas court properly refused to issue a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       This was the petitioner’s second petition for a writ of habeas corpus. He filed his first petition, on the basis of a claim of ineffective assistance of counsel, on March 17, 1994. The habeas court dismissed the petition, which was affirmed by this court, and the Supreme Court denied certification to appeal. See Walker v. Commissioner of Correction, 38 Conn. App. 99, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995).

       We note that the petitioner did not object to the admission of this hearsay. “Hearsay evidence admitted without objection, if believed by the [trier or fact], is a sufficient basis for a finding of fact.” (Internal quotation marks omitted.) State v. Outlaw, 70 Conn. App. 160, 168, 797 A.2d 579 (2002).

       The petitioner subpoenaed Brown’s court records as well, but a judicial branch employee in charge of the scheduling of court reporters, testified that they had been physically destroyed in 1992, in accordance with statute. See General Statutes § 51-36.

       At this stage in the habeas proceeding, the petitioner had not yet amended his petition to include the Brady count.

       We need not consider the petitioner’s assertion that Brown lied about having an agreement with the state because we have affirmed the court’s factual finding that no such agreement existed.

       Because we conclude that the court acted within its discretion when it excluded the evidence on the ground of relevance, we need not consider whether it properly concluded that the same evidence was excludable on the additional ground of hearsay.


source: Caselaw Access Project

license: Public Domain

text:
    BRENDA J. GIBBS v. DAVID M. SPINNER, ADMINISTRATOR (ESTATE OF JOSEPH C. SILLS, SR.), ET AL.
    (AC 27429)
    Schaller, DiPentima and McLachlan, Js.

      Argued June 4
    officially released September 4, 2007

      Brenda J. Gibbs, pro se, the appellant (plaintiff).

      David M. Spinner, pro se, the appellee (named defendant).
   Opinion

DiPENTIMA, J.

This case arises from the Probate Court’s denial of a petition for approval of a real estate purchase agreement between the plaintiff, Brenda J. Gibbs, and the executor of the estate of Joseph C. Sills, Sr. (decedent), Jerome C. Sills. The plaintiff now appeals from the trial court’s (1) denial of her motion to open the judgment dismissing her appeal from the Probate Court’s order and (2) denial of her motion to reargue its denial of her motion to open the judgment. The plaintiff claims that the trial court abused its discretion by denying her request for an evidentiary hearing on her motion to open the judgment on the basis of fraud. We affirm the judgment of the trial court.

The following facts and procedural history inform our disposition of the plaintiffs appeal. The decedent died testate on June 5, 2001. On November 5, 2001, the Probate Court of Woodbridge admitted the decedent’s last will and testament to probate, and in accordance with the provisions of the will, appointed the decedent’s son, Jerome Sills, executor of the estate. On September 27, 2002, the plaintiff signed an agreement to purchase real estate from the decedent’s estate, subject to the approval of the Probate Court. Pursuant to his authority under the will, the executor signed the purchase agreement. Subsequently, the executor died in March, 2003. In his place, the Probate Court appointed the defendant David M. Spinner, Esq., as Administrator c.t.a., d.b.n. of the estate on July 9, 2003. On October 24, 2003, the defendant petitioned the Probate Court for approval of the purchase agreement between the executor and the plaintiff. Following a hearing on November 19, 2003, the Probate Court, Horowitz, J., issued a written order on December 1, 2003, denying the defendant’s petition because the contract price for the real estate was well below its fair market value.

On December 31, 2003, the Probate Court granted the plaintiffs motion to appeal from its order. The plaintiff then filed her appeal in the trial court on or about January 27, 2004, followed by her reasons for appeal on October 13, 2004. The trial court, Lopez, J., held a hearing on May 13, 2005, and issued a memorandum of decision dismissing the plaintiffs appeal on July 20, 2005. The plaintiff filed a motion to set aside the court’s memorandum of decision on August 1, 2005. The court treated this motion as a motion to reargue and denied the relief requested on August 2, 2005.

On January 11, 2006, the plaintiff filed a motion to open the judgment dismissing her appeal, alleging fraud and jurisdictional defect. The trial court held a hearing on that motion on January 30, 2006, which the plaintiff did not attend. The court denied the motion to open the judgment. On February 6, 2006, the plaintiff filed, and the court, Lager, J., denied, a motion to reargue the motion to open the judgment. The plaintiff filed this appeal on February 27, 2006.

I

The plaintiff claims on appeal that the trial court abused its discretion by denying (1) her motion to open the judgment, filed January 11, 2006, and (2) her motion to reargue the denial of her motion to open the judgment, filed February 6, 2006. As a threshold matter, we note that the plaintiff has not provided this court with an adequate record to review the denial of the motion to open the judgment. We do not have before us a written memorandum or articulation of the basis for the court’s denial of the motion to open the judgment. See Practice Book § 61-10. Thus, we cannot assess whether the court exercised proper discretion in denying this motion. See Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn. App. 481, 488, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001). Accordingly, we decline to review the plaintiffs claim that the trial court improperly denied the motion to open the judgment.

II

The plaintiff next claims that the trial court improperly denied her motion to reargue the denial of her motion to open the judgment. We review the court’s ruling for abuse of discretion. See Stein v. Horton, 99 Conn. App. 477, 488, 914 A.2d 606 (2007). “[A]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did. ... In addition, where a motion is addressed to the discretion of the court, the burden of proving an abuse of that discretion rests with the appellant.” (Internal quotation marks omitted.) Id.

“[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court. ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . . .” (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001).

In support of her motion to reargue, the plaintiff claimed that the court improperly denied her an evidentiary hearing on the issue of fraud, which formed the basis for her motion to open the judgment. Our review of the record reveals that the court gave the plaintiff an opportunity on January 30, 2006, to present evidence in support of her fraud claim, but she failed to attend the scheduled hearing. The court denied her motion to open the judgment in her absence. Further, at the hearing on the motion to reargue, the plaintiff failed to demonstrate that the court either misconstrued the facts or misapplied the law in denying her motion to open the judgment. We therefore conclude that the court exercised proper discretion in denying the plaintiffs motion to reargue.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff characterized the second motion as a motion to set aside the judgment. Despite her characterization of the motion, on appeal we examine the substance of the relief sought and the practical effect of the responsive ruling to determine the nature of the motion. See In re Haley B., 262 Conn. 406, 412-13, 815 A.2d 113 (2003). In her second motion, the plaintiff claimed that the trial court misconstrued the law in denying her motion to open the judgment. Accordingly, we review the February 6, 2006 motion as a motion to reargue. See Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001).

       Because Spinner is the only defendant involved in this appeal, we refer to him as the defendant in this opinion. In response to a question from the court at oral argument, the defendant stated that he is an attorney representing himself in his fiduciary capacity as administrator of the estate. In other words, he claimed to appear pro se as administrator of the estate. It is not clear whether the fiduciary of an estate properly may file apro se appearance. Compare Weiner v. D’Acunto, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-98-0163643-S (August 12, 1998) (22 Conn. L. Rptr. 561) (striking pro se appearance by fiduciary of estate because he represented beneficiaries of estate, not his own cause) with O’Brien v. Wilson-Coker, Superior Court, judicial district of New Britain, Docket No. CV-03-0522346-S (January 12, 2004) (36 Conn. L. Rptr. 614) (articulating that fiduciary of estate may appear pro se because he transacts business of estate, not in representative capacity, but on his own credit, as estate is not legal entity). Fiduciaries have appeared pro se before this court without objection by the court or opposing parties. See, e.g., Cantor v. Dept. of Income Maintenance, 12 Conn. App. 435, 436 n.l, 531 A.2d 606 (1987). Because the defendant is an attorney and properly may file an appearance in a representative capacity, we need not decide whether he may appear pro se as the fiduciary of the estate. Further, the resolution of the claims before this court does not turn on this issue.

       The parties appeared in court on February 6, 2006, for a scheduled hearing on the defendant’s motion to dissolve a lis pendens. On that date, in addition to a motion to reargue, the plaintiff filed a motion to disqualify Judge Lopez. Accordingly, Judge Lopez transferred the file to Judge Lager. Judge Lager then addressed and denied the plaintiffs motion for judicial disqualification before ruling on the motion to reargue and the motion to dissolve the lis pendens.

       The defendant argues that the plaintiffs claim is untimely. We disagree. The denial of a motion to open is an appealable final judgment. Mailly v. Mailly, 13 Conn. App. 185, 188, 535 A.2d 385 (1988).
      Practice Book § 63-1 (c) (1) provides in relevant part: “If a motion is filed within the appeal period that, if granted, would render the judgment . . . ineffective ... a new twenty-day period ... for filing the appeal shall begin on the day that notice of the ruling is given on the last such outstanding motion ....
      “Motions that, if granted, would render a judgment . . . ineffective include, but are not limited to, motions that seek . . . reargument of the judgment or decision ....
      “Motions that do not give rise to a new appeal period include those that seek . . . reargument of [motions to open a judgment], . . .”
      Thus, although a motion to reargue a motion to open does not extend the appeal period to challenge the merits of the underlying judgment, the timely filing of a motion to reargue the denial of a motion to open the judgment does give rise to a new twenty day appeal period to challenge the denial of the motion to open. See Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 652 A.2d 1063 (1995). The court issued notice of its denial of the motion to open the judgment on January 30, 2006. The plaintiffs motion to reargue, filed February 6, 2006, created a new appeal period for purposes of reviewing the court’s ruling on her motion to open the judgment. The plaintiff filed this appeal on February 27, 2006, within the new appeal period created by her motion to reargue. Thus, this appeal was filed timely for purposes of reviewing the denial of the motion to open the judgment.

       The plaintiff relies on Davis v. Fracasso, 59 Conn. App. 291, 299-300, 756 A.2d 325 (2000), in which this court held that “[w]hen a court’s exercise of discretion depends on disputed factual issues, such as the existence of fraud, due process requires an evidentiary hearing.”
      The plaintiff further argues that the court improperly denied her motion to open the judgment without providing an evidentiary hearing because it improperly denied her request to continue the motion to open the judgment. We note that the hearing on the motion to open the judgment was held on January 30,2006, at 9:30 a.m. The plaintiff did not file her motion to continue with the court clerk until 10:03 a.m. that morning. Further, the plaintiff concedes that she did not appear before the court until 10:15 a.m. Because no motion to continue was pending before the court at 9:30 am., we conclude that the trial court properly addressed the plaintiff’s motion to open the judgment at that time. See Practice Book § 11-16.


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. WILLIAM C.

    (AC 26877)
    Schaller, DiPentima and McLachlan, Js.

      Argued June 4
    officially released September 4, 2007

      Sheila A. Huddleston, special public defender, with whom was Moira L. Buckley, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cynthia S. Serafini, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

   Opinion

McLACHLAN, J.

The defendant, William C., appeals from the judgments of conviction, rendered after a jury trial, of sexual assault in a spousal relationship in violation of General Statutes § 53a-70b (b), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), breach of the peace in the second degree in violation of General Statutes § 53a-181, threatening in the second degree in violation of General Statutes § 53a-62 (a) (1) and larceny in the sixth degree in violation of General Statutes § 53a-125b (a). On appeal, the defendant claims that (1) the trial court improperly admitted evidence of prior uncharged misconduct, (2) the court improperly admitted constancy of accusation testimony by the attorney who represented J, the victim, in her civil custody dispute with the defendant, (3) the court improperly precluded his cross-examination of Jacqueline Ortiz, the police detective who investigated J’s complaint, as to bias and (4) the state’s failure to conduct an adequate investigation constituted prosecu-torial impropriety that deprived him of his due process right to a fair trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. J was bom in England and came to the United States in 1988. The defendant and J were married in October, 1994, and they have two sons. Problems developed in the marital relationship. In 1999, J took their two sons for extended visits in England without the defendant’s consent. After the second trip, the defendant sought an injunction in 1999 to prevent J from taking the children out of the country without his permission. The defendant and J stipulated to a court order awarding them joint custody of the children with primary residence with the defendant.

In the summer of 2000, the defendant moved from their residence in New Britain to Newport, Rhode Island, without the children, to live with another woman. In December, 2001, while the defendant was still living in Newport, J moved to Waterbury with the children and rented a house. In August, 2002, she purchased the house and held title in her name alone. After J and the two boys moved to Waterbury, the defendant occasionally visited them on the weekends. Sometime during the summer of 2002, the defendant was asked to leave the residence in Newport. He told J that he wanted to move into her Waterbury residence, but she told him that she did not want him living with them. He indicated that he was returning anyway and began to move boxes of his belongings into her house over a period of a few weeks. J told the defendant that she wanted a divorce. He indicated that he would not allow a divorce and that she had to “work” on the marriage.

Sometime in August, 2002, J told the defendant that she had a boyfriend, M. The defendant became very upset and told her that she could no longer communicate with M. On Saturday, September 28, 2002, J told the defendant that she had to attend a work function that evening. She actually intended to attend a wedding in Massachusetts with M. On the way home, J’s car broke down, and she telephoned the defendant to apprise him of the situation. She had the car towed to a dealership in Cheshire, close to her place of employment, and asked the defendant to meet her there. He was very angry that she was with M and said that he would not come. J called her friend, Heather, who agreed to meet her in Cheshire and drive her back to her house in Waterbury. While J and Heather were at the dealership, the defendant arrived with the children. J and the defendant argued in the dealership’s parking lot for almost one hour before J left with the defendant. En route to Waterbury, the defendant informed J that he had telephoned their friend, Holly, who would meet them at the house and take the boys out for a few hours so that he and J could discuss the situation. During the week that followed, the defendant engaged in a pattern of sexual, physical and verbal abuse of J.

Consistent with this pattern, at approximately 1 a.m. on October 3, 2002, the defendant came into J’s bedroom and turned on the light. He told her to perform oral sex, but she refused. He called her several degrading names and continued his demands, but she continued to refuse. He then told her that they would have anal intercourse. J refused, but the defendant turned her onto her stomach, held her down and sexually assaulted her. Later that morning when he drove her to work, he informed her that he would kill her or punish her and take the boys if she told anyone about what had happened the night before. Nevertheless, J went to the police department, and the defendant was subsequently arrested. The charged offenses arose from this October 3, 2002 incident.

At one point during J’s testimony at trial, the prosecutor requested that the jury be excused so that the prosecutor could make an offer of proof. Outside the presence of the jury, J related the series of events that occurred between Sunday, September 29, 2002, and Thursday, October 3, 2002, the date of the charged offenses. The defendant objected to any testimony regarding allegations of prior uncharged misconduct. The court ruled that it would permit the testimony and gave a limiting instruction to the jurors when they returned to the courtroom.

J’s testimony was as follows. As soon as Holly took the boys away from the house on September 29, 2002, the defendant pulled down all of the shades. He forced J to strip and made her crawl on her hands and knees to a shower to wash away all traces of M. He called her vulgar names, struck her, spit at her and made her eat his saliva off the floor. The defendant destroyed some of her clothing by ripping and cutting various items with a pair of scissors. He told her that he was going to take the boys to England and that he would “make it hell” for her unless she did everything he told her to do until they left the country.

After the boys returned home and were put to bed, the abuse continued. The defendant would not let J sleep and made her dress in high heels and various lingerie outfits. He continued to spit on her face and hit her. On Monday morning, he took J with him to the courthouse and filed for sole custody of the children. Later that evening, when the boys were in bed, he continued abusing J and ordered her to perform oral sex. If she refused, he struck her and threatened to kill her. He also insisted that she report to him in detail her sexual activities with M.

On Tuesday morning, October 1, 2002, the defendant drove J to her place of employment. He had taken her house and car keys, her driver’s license and her credit card on Sunday evening and said that he would not return them until he left for England. He told her that she had to telephone him every hour on the hour so that he knew where she was at all times. He picked her up at the end of the day, and they fed the boys and put them to bed. At that point, the abuse continued. On Wednesday, October 2, 2002, the defendant again drove J to work and picked her up at the end of the day. After the children went to bed, the abuse continued. The alleged misconduct culminated in the sexual assault incident in the early morning horns of October 3, 2002, for which the defendant was charged.

After J’s testimony, several witnesses testified that J had told them that the defendant had sexually assaulted her on October 3, 2002. The defendant had objected to all of J’s testimony relating to allegations of his prior uncharged misconduct on the ground that it was highly prejudicial. He also objected to the testimony of attorney Kimberly Peterson, one of the constancy of accusation witnesses, again on the ground that it was highly prejudicial. The defendant did not object to the constancy of accusation testimony given by the other witnesses.

The jury found the defendant guilty of all of the crimes charged except criminal trespass in the first degree. As to that charge, the court had granted the defendant’s oral motion for a judgment of acquittal at the close of the state’s case-in-chief. The court accepted the verdict and sentenced the defendant to a total effective term of fifteen years incarceration, execution suspended after eight years, with fifteen years probation. This appeal followed.

I

The defendant first claims that the court improperly admitted evidence of his prior uncharged misconduct. Specifically, the defendant claims that the court improperly allowed the victim to testify about the instances of abuse that occurred in the days leading to the charged offenses. The defendant claims that this evidence substantially affected the verdict, warranting a reversal of the conviction. We disagree.

Just prior to the commencement of trial, the state filed a notice of intent to adduce uncharged misconduct evidence, and the defendant filed a motion in limine to preclude evidence of prior uncharged misconduct. The court indicated that it would address the issue as it arose at trial. When the issue arose during the testimony of the state’s first witness, J, the court excused the jury and conducted a hearing on the motions, which included the voir dire examination of J.

J testified that during the week leading to the charged offenses, the defendant forced her to engage in a series of degrading acts. J testified that from the time the defendant discovered that she had gone to the wedding with M on September 28, 2002, until his arrest nearly a week later, the defendant engaged in a pattern of verbal, physical and sexual abuse toward her, including threats of death, physical beatings, humiliation and forced sexual acts. On appeal, the defendant takes issue specifically with J’s testimony that he forced J (1) to perform oral sex on him and would not allow her to go to work or sleep unless she did so, (2) to dress in lingerie, (3) to crawl around the house and (4) to eat his saliva off the floor.

Upon conclusion of the hearing on the admissibility of this testimony, the court found that the evidence of the prior uncharged misconduct related to events that were close in time to the alleged incidents, that they involved only J, the complainant in the charged offenses, and that the acts were similar enough to show a common plan. The court further concluded that the probative value of the evidence outweighed its prejudicial effect. On the basis of these findings, the court overruled the defendant’s objection and permitted the state to introduce J’s testimony regarding the defendant’s prior instances of abuse.

The jury was summoned back into the courtroom, and the court gave the jury a hmiting instruction pertaining to J’s testimony. J then testified regarding the instances of abuse that transpired in the week leading to the charged offenses. During its charge to the jury at the conclusion of trial, the court also gave the jury a standard limiting instruction outlining the purposes for which it could consider evidence of prior uncharged misconduct.

Connecticut Code of Evidence § 4-5 (b) provides: “Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.” In addition to the recognized exceptions to the general rule precluding admissibility, i.e., if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime, prior misconduct evidence may also be used to corroborate crucial prosecution testimony. Moreover, our Supreme Court has held that “such evidence may be used to complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings. . . .

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, [the court has] adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence. . . .

“[An appellate court’s] standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 397-98, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).

With respect to the relevance prong of the analysis, “[i]t is well established that [t]here is a greater liberality . . . in admitting evidence of other criminal acts to show a common scheme, pattern or design in sex-related crimes. . . . Evidence of another sex offense is admissible to show a common scheme or plan if the offense is proximate in time, similar to the offense charged, and committed with persons similar to the prosecuting witness.” (Emphasis added; internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 349, 904 A.2d 101 (2006). Like a system of criminal activity, evidence of prior uncharged misconduct may be admitted under the common plan or scheme exception to the general rule when it is part of a course of conduct so interconnected that proof of the uncharged conduct is part and parcel of the proof of the crime charged. See State v. Vega, supra, 259 Conn. 397-98 (evidence of course of conduct—beginning with minor assault, building to carving of name on victim’s chest and escalating to charged acts—properly offered to prove system of activity on part of defendant); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.19.9, p. 238 (“[t]o properly fit within [the common plan or scheme] exception, there must be a ‘common’ scheme or ‘system,’ i.e., all of the conduct must be part of an overall plan so interconnected that proof of the uncharged crimes is part and parcel of the proof of the crime charged”).

Here, the court permitted the evidence of a pattern of the defendant’s verbal, physical and sexual abuse of J, which transpired in the week leading to the charged offenses, to show a common plan or scheme on the part of the defendant. Thus, the record supports adequately the court’s conclusions with respect to proximity in time and similarity to the offenses charged, and it is undisputed that the sole witness involved was J. Moreover, the charged offenses, which occurred on October 3, 2002, simply marked the culmination of the week’s events that were triggered by the defendant’s discovery that J was with M on September 28, 2002. Dining this weeklong period, the defendant established a clear course of conduct of degradation and humiliation of J, which escalated throughout the week and culminated in the charged offenses. Thus, evidence of the uncharged misconduct was relevant to establish a nexus between what occurred on September 28, 2002, and the charged crimes that occurr ed several days later on October 3, 2002. As such, the evidence properly was admissible as an exception to the general prohibition against prior uncharged misconduct, as it was relevant to prove a common plan or scheme on the part of the defendant.

With respect to the court’s balancing test, the defendant argues that the prior uncharged misconduct evidence dominated the trial, improperly aroused the jurors’ emotions by depicting him as a monster and unfairly buttressed J’s credibility, which was the pivotal issue in the case. As such, the defendant argues that the court improperly determined that the probative value of the evidence outweighed its prejudicial effect. We disagree.

“[Prior misconduct] [e]vidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a] 11 adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The court bears the primary responsibility for conducting the balancing test to determine whether the probative value outweighs the prejudicial impact, and its conclusion will be disturbed only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Zubrowski, 101 Conn. App. 379, 394-95, 921 A.2d 667, cert. denied, 283 Conn. 912, 928 A.2d 539 (2007).

“Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct.” (Internal quotation marks omitted.) State v. Orellana, 89 Conn. App. 71, 89, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). “Furthermore, a jury is presumed to have followed a court’s limiting instructions, which serves to lessen any prejudice resulting from the admission of such evidence.” State v. Myers, 101 Conn. App. 167, 194, 921 A.2d 640, cert. granted other grounds, 283 Conn. 906, 927 A.2d 919 (2007).

Here, the court conducted a voir dire examination of J and carefully considered arguments of counsel prior to rendering its decision allowing the evidence. Moreover, the court minimized the potential prejudice to the defendant of the admitted prior misconduct evidence by giving the jury, prior to J’s testimony, a detailed limiting instruction as to the role the evidence was to play in its deliberations, and it repeated its admonition to the jury in its final instructions. Accordingly, we conclude that the court did not abuse its discretion by admitting evidence of the defendant’s prior uncharged misconduct.

II

The defendant next claims that the court improperly admitted constancy of accusation testimony from J’s civil attorney, Peterson, who represented J in her custody dispute with the defendant. The defendant argues that Peterson’s constancy testimony was cumulative and unnecessarily prejudicial and that it substantially affected the verdict, requiring reversal of the judgment. We disagree.

“The constancy of accusation doctrine traces its roots to the fresh complaint rule . . . [t]he narrow purpose of [which] was to negate any inference that because the victim had failed to tell anyone that she had been [sexually assaulted], her later assertion of [sexual assault] could not be believed. . . . Because juries were allowed—sometimes even instructed—to draw negative inferences from the woman’s failure to complain after an assault . . . the doctrine of fresh complaint evolved as a means of counterbalancing these negative inferences. Used in this way, the fresh complaint doctrine allowed the prosecutor to introduce, during the case-in-chief, evidence that the victim had complained soon after the [sexual assault]. Its use thereby forestalled the inference that the victim’s silence was inconsistent with her present formal complaint of [assault]. . . . In other words, evidence admitted under this doctrine effectively served as anticipatory rebuttal, in that the doctrine often permitted the prosecutor to bolster the credibility of the victim before her credibility had first been attacked. . . . The fresh complaint doctrine thus constituted a rare exception to the common-law rule that prohibited rehabilitative evidence in the absence of an attack on the witness’s credibility.” (Citations omitted; internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 539, 915 A.2d 822 (2007).

Claims concerning the admission of the details of a sexual assault victim’s complaint for corroborative purposes do not carry constitutional implications and are purely evidentiary in nature. State v. Samuels, 273 Conn. 541, 558, 871 A.2d 1005 (2005). “It is a fundamental rule of appellate review of evidentiary rulings that if [the] error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) State v. Gonzalez, 272 Conn. 515, 527, 864 A.2d 847 (2004). Moreover, the “trial court has broad discretion in ruling on the admissibility ... of [constancy of accusation] evidence. . . . [E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. McKenzie-Adams, supra, 281 Conn. 538-39.

At trial, over defense counsel’s objection that the evidence was cumulative and prejudicial, the court allowed Peterson to testify that on October 3, 2002, J told Peterson that the defendant had sexually assaulted her that morning. Peterson then testified that after J made the statement to her, Peterson brought J to the police station. In allowing this testimony, the court determined that the evidence was admissible as constancy of accusation testimony and that the prejudicial effect of the evidence did not outweigh its probative value.

On appeal, the defendant attacks the court’s application of the balancing test with respect to this evidence. On the probity side of the scale, the defendant argues that the value of Peterson’s testimony was minimal because there was little delay between the claimed sexual assault and J’s complaint to the police, and that the delay was explained adequately by J and the other witnesses. The defendant further argues that the evidence offered little probative value because three constancy witnesses testified prior to Peterson.

On the prejudicial side of the scale, the defendant argues that the evidence was highly prejudicial because of its cumulative effect. The defendant further claims that the jury reasonably could have inferred that Peterson, as an officer of the court, would not have facilitated J’s report of rape if she doubted J’s credibility. Finally, the defendant argues that the prejudicial effect was compounded because the court did not provide the juiy with a specific limiting instruction on the use of constancy evidence after Peterson testified, thereby maximizing the risk that the jury would use the testimony as substantive evidence of the defendant’s guilt. We are not persuaded.

Our review of the record reveals that the court did not abuse its discretion in concluding that the probative value of Peterson’s testimony outweighed its prejudicial effect. Peterson testified only as to the fact and timing of J’s complaint and the details necessary to associate J’s complaint with the charges against the defendant. Further, her testimony related to a complaint made by J that was separate from the other constancy witnesses, the testimony of whom the defendant neither objected to at trial nor has taken issue with on appeal. See id., 542-44 (testimony of three constancy witnesses that victim provided three separate accounts of sexual assault not prejudicially cumulative); State v. Parris, 219 Conn. 283, 294, 592 A.2d 943 (1991) (constancy of accusation testimony of four witnesses not prejudicially cumulative because each witness testified with respect to “a different statement that the victim had made to a different person at a different point in time [and] therefore, the evidence covered new matter by demonstrating, as was its relevant purpose, that the victim previously had reported the incident she described on direct examination in a constant and consistent fashion”); State v. Zoravati, 34 Conn. App. 428, 441, 641 A.2d 796 (constancy of accusation testimony of seven witnesses not prejudicially cumulative because “all of the testimony pertained to different statements made by the victim to different people at different times”), cert. denied, 230 Conn. 906, 644 A.2d 921 (1994).

With respect to how much the lack of a delay in reporting affected the probity of the evidence, we disagree with the defendant’s contention that such a delay was explained adequately by J, thereby obviating the need for Peterson’s testimony. Indeed, on cross-examination of J, the defense sought to capitalize on J’s lack of an accurate and prompt reporting of the incident to the police. Moreover the defense used J’s disclosure to Peterson during the interim period between the sexual assault and her report to the police to help establish a motive to prevaricate on the part of J.

Similarly, the defendant’s claim that Peterson’s credibility was enhanced because she is an officer of the court is without merit. There is, in the least, an equal inference that unlike an ostensibly neutral police officer, Peterson was an interested party acting as J’s advocate, which would serve to lessen her credibility in the eyes of the jury. As the defense pointed out on cross-examination of Peterson, the defendant’s incarceration would bolster J’s custody case, and Peterson appeared in court at the defendant’s arraignment and advocated for the court to set a higher bond.

Finally, the defendant’s argument that the lack of a limiting instruction expressly identifying Peterson as a constancy witness multiplied the harm caused by the evidentiary impropriety relating to her because the jury was likely to have considered her testimony for the truth of the matter asserted is without merit. First, the court did give a general instruction on the use of constancy testimony in its charge to the jury. Second, the defendant did not object to the jury instructions at trial or request the limiting instruction that he now claims the court should have given. Therefore, the unpreserved claim of instructional error with respect to Peterson is not reviewable. See State v. Samuels, supra, 273 Conn. 566-67; see also Practice Book § 60-5.

Accordingly, we conclude that the court did not abuse its discretion in concluding that the probative value of the constancy of accusation testimony of Peterson outweighed its prejudicial effect.

Ill

The defendant next claims that the court violated his constitutional right of confrontation under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution by “precluding [defense] counsel from cross-examining” Detective Ortiz. Specifically, he argues that by preventing him from eliciting evidence of possible bias in connection with her investigation into J’s complaint, the court impermissibly restricted his right of confrontation. We disagree.

During cross-examination by the defendant, Ortiz was asked whether the results of her investigation included any reports or documents other than J’s statement and the arrest warrant. Ortiz responded in the negative. She was also asked whether she had observed bruises, marks or any swelling on J’s face or body when J came to give her statement. Again, she responded in the negative. Ortiz admitted that she did not take any photographs of J and did not ask J to bring in the articles of clothing that she claimed the defendant had cut into pieces. Ortiz testified that she did not speak with the defendant at any time before preparing the arrest warrant. She also admitted that, even though J had mentioned a custody dispute, she did not suspect that J was fabricating the criminal incident in order to prevail in the civil proceedings.

Additionally, Ortiz indicated during cross-examination that she relied solely on J’s statement in issuing the arrest warrant because J was nervous and crying. She did not request that a forensics unit be dispatched to J’s house because J told her that she already had bathed and had cleaned the area. Ortiz admitted that she did not discuss with her supervisor the possibility of requesting a forensic examination because of J’s statement that there was no evidence at the house.

At that point, defense counsel inquired whether the defendant had come to see Ortiz after J had given her statement. Ortiz responded in the affirmative. When she was asked whether the defendant was carrying documents at the time he approached her, the state objected on the ground that the question was outside the scope of the direct examination. Outside of the presence of the jury, the defendant argued that he wanted to pursue the topic of how Ortiz had conducted the investigation because her conduct indicated bias in favor of J and against him. After an offer of proof was made, the court sustained the state’s objection. Subsequent to the ruling, defense counsel elicited a response from Ortiz that she did not speak to the defendant when he approached her that day because he was incarcerated. She admitted that her department did not have a policy forbidding discussion with an accused after he has been arrested.

“Although the trial court has broad discretion in determining the admissibility of evidence and the extent of cross-examination, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment to the United States constitution. . . . The sixth amendment to the United States constitution guarantees the right of an accused in a criminal prosecution to confront and cross-examine the witnesses against him. . . . [Our Supreme Court has] held that [t]he primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Therefore, an accused’s right to cross-examination to elicit facts tending to show motive, interest, bias and prejudice may not be unduly restricted by the wide discretion of the trial court. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 70-71, 762 A.2d 1278 (2000).

The confrontation clause does not give the defendant the right to engage in unrestricted cross-examination. Id., 71. The defendant had already posed several questions to Ortiz relative to the scope of her investigation into J’s complaint. She had already admitted that the arrest warrant was issued solely on the basis of J’s statement, that she did not question the defendant or any other witnesses, that she did not request to see the clothing that J claimed the defendant had destroyed, that she did not dispatch a forensics unit to J’s home solely because of J’s statement that the house had already been cleaned and that she refused to speak to the defendant when he approached her because he was incarcerated, even though the police department had no policy prohibiting her from doing so.

In light of the foregoing, we conclude that the defendant was allowed sufficient cross-examination into the areas of prejudice, bias, motive and interest so as to satisfy the requirements of the federal constitution.

IV

The defendant’s final claim is that the state’s failure to conduct an adequate investigation constituted prose-cutorial impropriety that deprived him of his due process right to a fair trial. Specifically, the defendant argues that Ortiz improperly refused to accept the evidence that he offered her on the day he appeared at the police department, that the prosecutor improperly refused to consider the results of a polygraph test that the defendant had taken or the results of apsychosexual examination that he had undergone and that the prosecutor improperly declined to interview the family relations officer who had conducted the custody study for the family court during the divorce proceedings. We disagree.

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [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 .... As we have indicated, our determination of whether any improper conduct by the state’s attorney violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that [impropriety] was objected to at trial.” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 361-62, 897 A.2d 569 (2006).

We first note that, except for stating the principle that a prosecutor violates a defendant’s due process rights if that prosecutor presents evidence that he or she knows to be false or should know to be false, the defendant’s brief is bereft of any detailed analysis or any citation to authority in support of this claim. He simply argues that the conduct he has described is evidence of prosecutorial impropriety.

The defendant’s claim merits little discussion. We conclude that no impropriety occurred. Nothing in the record indicates that the prosecutor proceeded in other than good faith. An arrest order was issued, and it was signed by a judge, who found probable cause. The defendant was arrested and was brought to trial. The state presented its case, and the defendant had a meaningful opportunity to cross-examine witnesses. The defendant claimed that J’s testimony was not credible. He had the opportunity to attack that credibility through cross-examination, through documents indicating inconsistencies in testimony or by presenting other reliable evidence favorable to him. If the defendant wanted the jury to hear testimony of the family relations officer, he could have subpoenaed her to court. The prosecutor was neither obligated to review the results of tests taken by the defendant nor required to investigate the case in the manner desired by the defendant.

The judgments are affirmed.

In this opinion the other judges concurred.

       After the close of the prosecution’s case-in-chief, the court granted the defendant’s oral motion for a judgment of acquittal as to the charge of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1).

       After the parties filed their appellate briefs, our Supreme Court rendered its decision in State v. Fauci, 282 Conn. 23, 917 A.2d 978 (2007), in which it concluded that the term “prosecutorial impropriety” is more appropriate than the traditional term “prosecutorial misconduct.” Id., 26 n.2. Although the parties have briefed the defendant’s claim utilizing the nomenclature of prosecutorial misconduct, we use the term “prosecutorial impropriety” in our analysis of the defendant’s claim.

       The court instructed the jury as follows: “Ladies and gentlemen, I want to give you ... an instruction with respect to the testimony that you are about to hear. The defendant here is on trial only for the allegations that are contained in the information as I read it to you. There are provisions in our rules of evidence that allow other testimony to come in that may relate to motive or a common plan. Again, they are not to be taken by you as any indication that the defendant in this case is inclined to have done any of the acts. Again, the defendant here is on trial as any defendant is on trial only for the matters contained in the information. With that . . . instruction, counsel, continue.”

       Indeed, the defendant raised the specter at trial that J fabricated the charged offenses after he sought sole custody of their children on Monday, September 30, 2002. Without evidence of the consistent course of conduct over that week, the jury would have been deprived of crucial evidence establishing a logical connection between the September 28 events and the October 3 event.

       The defendant argues that the court’s limiting instruction and its general instruction on prior uncharged misconduct in the charge to the jury improperly permitted the jury to consider the evidence for other purposes such as motive, intent or to prove an element of a charged offense. The defendant did not object at trial, however, to the court’s instructions, and, therefore, the unpreserved claim of instructional error is not renewable. See Practice Book § 60-5.

       Prior to Peterson’s testimony, three other witnesses had testified at trial, without objection, that J had informed them that the defendant had sexually assaulted her.

       On cross-examination, J testified as follows:
      “[Defense Counsel]: Did you talk to [Peterson] on October 3?
      “[The Witness]: On October 3,1 did.
      “[Defense Counsel]: Did you tell her you were sexually assaulted?
      “[The Witness]: I believe so. I’m not sure if I told her on the phone, though, or if I told her on—I believe I did on the Thursday.
      “[Defense Counsel]: Did she immediately tell you to go to the police or bring you to the police?
      “[The Witness]: She told me—at that point when I called her on the Thursday is when she told me she needed a retainer. I didn’t have any money. Especially, I didn’t have anything on me. I wasn’t able to get access to my account or anything.
      “[Defense Counsel]: But you told her you were sexually assaulted?
      “[The Witness]: I think I did. I’m not 100 percent sure at that point when I first called her.
      “[Defense Counsel]: You don’t know if you did. But she asked you for money?
      “[The Witness]: I wanted her help getting a restraining order, and I told her I wanted to get a divorce, what was going on at the house. So, she couldn’t come that day. There was something going on. It was arranged that she would come and help me on the Friday.” (Emphasis added.)

       Even if we assume arguendo that the evidence was admitted improperly, we would fail to see how the defendant could meet his burden to show substantial prejudice or injustice as a result of Peterson’s testimony, especially in light of the fact that J was asked on cross-examination whether she told Peterson on October 3, 2002, that she had been sexually assaulted. See footnote 8.

       The defendant states that his claim encompasses both federal and state constitutional violations. Because he has not briefed a state constitutional claim separately, we consider only a claim of a federal constitutional violation. See State v. Mulero, 91 Conn. App. 509, 514 n.3, 881 A.2d 1039 (2005), cert. denied, 277 Conn. 912, 895 A.2d 792, cert. denied, 549 U.S. 862, 127 S. Ct. 149, 166 L. Ed. 2d 108 (2006).

       Because we conclude that there was no impropriety, we need not reach the second prong of the inquiry, which is whether the defendant was denied a fair trial by the alleged impropriety. See State v. Necaise, 97 Conn. App. 214, 232 n.14, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).

       With respect to the polygraph test, “polygraph evidence [is] per se inadmissible in all trial court proceedings in which the rules of evidence apply, and for all trial purposes, in Connecticut courts.” State v. Porter, 241 Conn. 57, 94, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).