author: McLACHLAN, J. FOTI, J.,

text:
    STATE OF CONNECTICUT v. IRVIN D. ROSE
    (AC 28174)
    McLachlan, Lavine and Foti, Js.

      Argued October 17, 2008
    officially released January 27, 2009

      Joseph A. Jaumann, special public defender, with whom, on the brief, was John C. Drapp III, special public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Irvin D. Rose, appeals from the judgment of conviction, rendered after a jury trial, of assault of public safety personnel, specifically an employee of the department of correction (department), in violation of General Statutes § 53a-167c (a) (5). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal because the evidence was insufficient to support his conviction and (2) compelled him to wear prison garb during trial. We agree with the defendant’s second claim and therefore reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On January 15, 2006, the defendant was incarcerated at the Bridgeport correctional center (center). While housed in the center’s hospital unit in an isolation cell, the defendant removed his hospital gown and pushed it, along with his blanket, under his cell door. Thereafter, he tore the seam of his mattress, created a large hole and removed the mattress’ stuffing. He then crawled into the mattress and wrapped it around his body, covering himself entirely.

Correction Lieutenant Timothy Cox was alerted by a department employee that the defendant had crawled into his mattress. Cox instructed uniformed correction Officers Brian Guerrera and Scott Whiteley to remove the damaged mattress from the defendant’s cell. Whiteley was instructed to remove the remains of the mattress while Guerrera served as a “cover down” officer. Guerrera was assigned to position himself between Whiteley and the defendant, continuously to monitor the defendant and to protect Whiteley as he removed the mattress. While still outside the cell, Cox instructed the defendant to remove himself from the mattress and sit on the bunk frame. The defendant complied with the instruction, and Guerrera and Whiteley entered the cell. Whiteley picked up the damaged mattress and backed out of the cell. Guerrera maintained his position between Whiteley and the defendant and, still facing the defendant, started to exit the cell. The defendant, without leaving his position seated on the bunk, spat at Guerrera before he exited the cell. Saliva struck Guer-rera’s face and chest.

Following department protocol for such an incident, Guerrera reported to a department nurse at the center. The nurse instructed Guerrera to wipe his face with alcohol pads and complete medical and incident reports. The defendant subsequently was charged with assault of public safety personnel. The defendant represented himself at trial. After a jury trial, the defendant was found guilty and sentenced to a term of ten years incarceration, execution suspended after six years, and five years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the state failed to introduce sufficient evidence to establish his guilt beyond a reasonable doubt. Specifically, the defendant argues that the state failed to prove beyond a reasonable doubt that he had the specific intent to prevent Guerrera from performing his duty. We disagree.

“A claim of insufficient evidence implicates the constitutional right not to be convicted on inadequate proof. . . . We review this claim first as it may be dis-positive of the appeal; see State v. Padua, 273 Conn. 138, 179, 869 A.2d 192 (2005); because a defendant convicted on insufficient evidence cannot be retried without violating the double jeopardy clause. See Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).” (Citation omitted.) State v. Sitaras, 106 Conn. App. 493, 498-99, 942 A.2d 1071, cert. denied, 287 Conn. 906, 950 A.2d 1283 (2008).

“Review of any claim of insufficiency of the evidence introduced to prove a violation of a criminal statute must necessarily begin with the skeletal requirements of what necessary elements the charged statute requires to be proved.” State v. Pommer, 110 Conn. App. 608, 613, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008). “Once analysis is complete as to what the particular statute requires to be proved, we then review the evidence in light of those statutory requirements. Our review standard is well settled. In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a 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 . . . .” (Internal quotation marks omitted.) Id.

Our analysis begins with the statute. To prove an assault of an employee of the department of correction in violation of § 53a-167c (a) (5), the state must prove beyond a reasonable doubt that “with intent to prevent [an] employee of the Department of Correction . . . from performing his or her duties, and while such . . . employee . . . [was] acting in the performance of his or her duties ... (5) [the defendant threw] orhurl[ed], or cause [d] to be thrown or hurled, any bodily fluid including, but not limited to, urine, feces, blood or saliva at such . . . employee . . . .”

The defendant focuses his argument on the evidence adduced of his intent to prevent Guerrera from performing his duties. The defendant’s claim appears to be that although the evidence may have been sufficient to permit the jury to conclude that he intended to spit on Guerrera, it was not sufficient to permit the jury to conclude that he intended to prevent Guerrera from performing his duties. He argues that the mere act of spitting under the circumstances is insufficient evidence of an intent to prevent Guerrera from performing his duties. Finally, the defendant argues that the evidence fails to establish that he had the requisite intent to prevent Guerrera from performing his duties because his duties as a cover down officer were completed at the time of the assault. The defendant’s arguments are misplaced.

“It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Citation omitted; internal quotation marks omitted.) State v. Porter, 76 Conn. App. 477, 487-88, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003). This court has stated that “[j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion.” (Internal quotation marks omitted.) State v. Williams, 48 Conn. App. 361, 372, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998).

The cumulative impact of the evidence in this case was sufficient for the jury to find beyond a reasonable doubt that the defendant was guilty of assault on a department employee. There was evidence that Guerrera was in uniform at the time of the incident, that he was carrying out his lawful duty in an orderly manner, that the defendant knew Guerrera was a department employee and that the defendant spat on Guerrera. We note that “[s]pitting itself is a physical act, as it is the application of force to the victim’s body .... Spitting on another person is almost universally acknowledged as contemptuous and is calculated to incite others to act in retaliation.” (Citations omitted; internal quotation marks omitted.) State v. Hawley, 102 Conn. App. 551, 555, 925 A.2d 1197, cert. denied, 284 Conn. 914, 931 A.2d 933 (2007). Also, it is irrelevant that Guerrera’s duties as cover down officer were essentially complete at the time of the assault because under § 53a-167c, “[t]he [defendant’s] act. . . does not have to be wholly or partially successful . . . [nor must it] be such as to defeat or delay the performance of a duty in which the officer is then engaged.” (Emphasis added; internal quotation marks omitted.) State v. Williams, 110 Conn. App. 778, 794, 956 A.2d 1176 (2008). The defendant must have only intended to prevent Guerrera from performing his duties when the defendant spat on him.

Here, the jury reasonably could have found that when the defendant spat on Guerrera’s face and chest, he intended not only that act, but also to prevent Guerrera from performing his duties. “The fact that the defendant may have been actuated by two separate intents does not dimmish either one individually. Given the complexity of human behavior, the existence of the intent required for commission of a crime may be blurred by the presence of multiple intents. An intent is forward looking; it is the end in view, the object to be accomplished by the action taken, which is its criterion. . . . An action may be taken with many ends in view. Where one of them is an element of the offense, it satisfies the scienter required for the offense, notwithstanding the presence of additional and extraneous intents.” (Citation omitted; internal quotation marks omitted.) State v. Gore, 96 Conn. App. 758, 765, 901 A.2d 1251 (2006), aff'd, 288 Conn. 770, 955 A.2d 1 (2008). We conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant had the specific intent to prevent Guerrera from performing his duty and, therefore, that the evidence was sufficient to support the conviction of assault of a department employee.

II

The defendant next claims that the court improperly compelled him to wear prison clothing during trial in violation of his federal constitutional right to a fair and impartial trial and Practice Book § 44-7. We agree that the court violated the defendant’s constitutional rights under the due process clause of the fourteenth amendment to the United States constitution.

The following facts and procedural history are relevant to our inquiry. The defendant was arrested on January 15, 2006, for assault of public safety personnel. At that time, he was a pretrial detainee in the center because he was unable to post a $1000 bond for an October 24, 2005 arrest for larceny in the sixth degree in violation of General Statutes § 53a-125b. On January 17, 2006, the defendant was arraigned on the charge of assault of public safety personnel in violation of § 53a-167c and bond was set at $100,000. He remained incarcerated as a pretrial detainee through trial in July, 2006.

On the morning of July 21, 2006, prior to jury selection, the court stated to the defendant that “I don’t know anything about you . . . besides that information which you have, but based on the charges that I see, I’m concerned and inclined probably to keep the shackles on . . . .” The defendant responded that he was not an escape risk and objected to being tried in shackles. The defendant added that “[a]lso, my attire, Your Honor, this Bozo the Clown suit is not sufficient.” The court replied that “based on the nature of the charges, the jury is going to know that you are incarcerated anyway .... I do feel that the ankle shackles are required, and the attire, sir, based on the nature of the charges, they are going to know you are incarcerated anyway. . . . [Tjhat’s how that stands.” After the court denied the defendant’s request to be tried in civilian clothing, and before the first venire panel was brought in, the defendant again raised concerns that the prospective jurors would not understand that he was a pretrial detainee, rather than an incarcerated convict. The court directed the defendant to confer with his standby counsel about his “procedural kind of question.” The record discloses that the court made no further inquiry concerning this issue during trial.

During jury selection, the court instructed the members of each venire panel not to consider the defendant’s attire in assessing the evidence or in the determination of the outcome of the case. The court’s entire instruction to the first venire panel was: “The defendant’s attire is not to be considered in assessing the evidence or in a determination of the case.” The court instructed the second panel: “I would also note that the defendant’s attire is not to be considered by you in assessing the evidence or in determining the outcome of the case.” The jury was selected from those two venires. The instructions given by the court prior to the jury’s deliberation were completely void of any curative measure concerning the defendant’s attire.

During voir dire, the defendant attempted to determine the juror’s assumptions based on his attire. The court repeatedly prevented the defendant from asking jurors about their assumptions about incarcerated persons.

Following the luncheon recess on July 21, 2006, the defendant brought to the court’s attention that he had been seen by one of the potential jurors outside of the courtroom in full restraints. The court responded that “[f]or heaven’s sake, sir, you are clearly in restraints. Everyone knows you are in restraints. You are in a prison outfit. This is not a secret. You are walking around with the shackles on approaching the jurors, so, please.” The court began to call in the next prospective juror but stopped and noted on the record that during voir dire, each juror could see the defendant’s ankle shackles when he walked to the lectern and that he was sitting in court in a jumpsuit. The court also noted that it had instructed the jurors not to consider his attire.

The first witness, Guerrera, a correction officer, testified in uniform. Guerrera stated that he was in his uniform at the time of the alleged assault. The prosecution asked him to identify the defendant, and Guerrera stated that the defendant was wearing “[a] yellow jumper.”

“A defendant may not be compelled to stand trial in prison clothes. . . . This right derives from and reinforces the presumption of innocence.” (Citation omitted.) State v. Prutting, 40 Conn. App. 151, 166, 669 A.2d 1228, cert. denied, 236 Conn. 922, 674 A.2d 1328 (1996). “In order to implement that presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” (Internal quotation marks omitted.) Id., 165-66.

“The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But [the United States Supreme Court] has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. . . . Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.” (Citations omitted.) Estelle v. Williams, 425 U.S. 501, 504, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).

“[T]he possibility of a criminal defendant appearing before a jury dressed in prison clothes raises serious concerns about a fair trial . . . .” State v. Williamson, 206 Conn. 685, 705, 539 A.2d 561 (1988). “[T]he constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.” Estelle v. Williams, supra, 425 U.S. 504-505. The United States Supreme Court has stated that “the courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. Instead, they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire.” (Emphasis added.) Id., 507. In Estelle, however, neither the defendant nor his counsel objected to his being tried in prison clothing. Id., 502. The court concluded, therefore, that “although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court . . . for whatever reason, is sufficient to negate the presence of compulsion . . . .” Id., 512-13.

Thus, we must determine first whether the court compelled the defendant to wear prison garb during his trial. Here, the state concedes and we agree, that the defendant timely objected to wearing prison garb during his trial. See Knott v. State, 349 Md. 277, 288, 708 A.2d 288 (1998) (“defendant . . . who objects to being tried in prison attire before the jury has been impaneled is deemed to have objected in a timely manner and not to have waived his right to be tried in civilian clothing”).

“Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” (Emphasis added; internal quotation marks omitted.) Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986). The United States Supreme Court “ha[s] recognized that certain practices pose such a threat to the fairness of the factfinding process that they must be subjected to close judicial scrutiny. Estelle v. Williams, [supra, 425 U.S. 503-504]. Thus, in [Estelle, the court] noted that where a defendant is forced to wear prison clothes when appearing before the jury, the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. . . . Since no essential state policy is served by compelling a defendant to dress in this manner . . . [the] court went no further and concluded that the practice is unconstitutional.” (Citations omitted; internal quotation marks omitted.) Holbrook v. Flynn, supra, 568.

“Whenever a courtroom arrangement is challenged as inherently prejudicial . . . the question must be . . . whether an unacceptable risk is presented of impermissible factors coming into play . . . .” (Citation omitted; internal quotation marks omitted.) Id., 570. “Some constitutional violations ... by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless.” Satterwhite v. Texas, 486 U.S. 249, 256, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988).

Here, the court, in response to the defendant’s objection, ruled that “based on the nature of the charges, [the jury is] going to know you are incarcerated anyway,” essentially finding that the defendant would not be prejudiced by appearing in front of the jury in prison garb. Moreover, the record reveals that the court made no inquiry of the pro se defendant whether he had available to him, at the time, the ability to acquire civilian clothes to wear at trial. Furthermore, although the charge pending against the defendant by its very nature indicates that he was incarcerated at the time it was allegedly committed, the record discloses that at the time of his trial, he was incarcerated as a pretrial detainee unable to post bond. The United States Supreme Court has stated that “troubling is the fact that compelling the accused to stand trial in jail grab operates usually against only those who cannot post bail prior to trial. Persons who can secure release are not subjected to this condition. To impose the condition on one category of defendants, over objection, would be repugnant to the concept of equal justice embodied in the Fourteenth Amendment.” Estelle v. Williams, supra, 425 U.S. 505-506. The court, on the basis of the theory that the jurors would know he was incarcerated because of the nature of the charges lodged against him, impermissibly compelled the defendant to wear prison garb during his trial.

The state argues and the dissent agrees that harmless error analysis should apply when a court has improperly compelled a defendant to appear in prison garb before a jury. Although United States v. Hurtado, 47 F.3d 577 (2d Cir.), cert. denied, 516 U.S. 903, 116 S. Ct. 266, 133 L. Ed. 2d 188 (1995), indicates that there may be circumstances that permit harmless error analysis, when there is a timely objection and a defendant is compelled to wear prison garb for an entire trial, such analysis is unavailing.

In United States v. Hurtado, supra, 47 F.3d 582, the defendant was compelled to wear prison clothing during the first day of a weeklong trial. The United States Court of Appeals for the Second Circuit relied on an interpretation of Estelle found in Davidson v. Riley, 44 F.3d 1118, 1124 (2d Cir. 1995), applying harmless error analysis to the appearance of a defendant at trial in physical restraints: “If the reviewing court finds that the court has impermissibly delegated the decision to others or has otherwise abused its discretion, the error will not automatically lead to reversal, for harmless-error analysis applies. See, e.g. . . . Tyars v. Finner, 709 F.2d [1274] 1286 [9th Cir. 1983] (remanding to district court to ‘determine whether prejudice resulted’ to habeas petitioner by being forced to appear with restraints at civil-commitment trial); cf. Estelle v. Williams, [supra, 425 U.S. 506-507] (citing with apparent approval the rule, followed in the courts of appeals, that requiring a defendant to appear at a criminal trial in prison clothing is subject to harmless-error analysis).” (Citation omitted.) We disagree with this interpretation. The reference to Estelle merely leads to cases involving nonobjecting defendants and two cases involving defendants who were tried for crimes committed while they were incarcerated. In one case, the United States Court of Appeals for the Fifth Circuit found that the defendant did not meet his burden of objecting and, in the other, the New York Court of Appeals reversed the judgment of the Appellate Term of the state Supreme Court, which had affirmed the trial court’s judgment of conviction, on the ground that the defendant had been denied the right to be presumed innocent. Accordingly, it is inappropriate to apply harmless error analysis in cases such as this, when the defendant clearly has objected at trial and the court makes no findings with respect to an essential state policy. See Estelle v. Williams, supra, 505.

We do not announce a per se rule that trial in prison clothing after an objection requires automatic reversal of a trial court’s judgment of conviction. A court must make a record establishing the “essential state policy” for such precautions. Furthermore, if such an interest can be shown, the jurors must be instructed adequately that they must not consider the appearance of the defendant in prison attire in any way when determining guilt or innocence. These requirements are necessary to safeguard a defendant’s rights to a fair trial and the presumption of innocence.

Even if we assume that harmless error analysis were appropriate, the state has not proven harmlessness beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In Hurtado, the Second Circuit noted that the defendant was permitted to wear civilian clothing for the remainder of the weeklong trial after the day on which he objected and the trial court offered to cure any potential prejudice with a curative instruction. United States v. Hurtado, supra, 47 F.3d 582. In the present case, however, the defendant was compelled to wear-prison garb during jury selection and the entire three days of evidence, and the court instructed the jurors only once, prior to their individual voir dire and selection, that they should not consider the defendant’s attire. There was no further instruction at the end of evidence and before deliberation, nor was there any instruction that would discourage the jurors from assuming that the defendant had been convicted of some prior crime. Furthermore, no curative instruction was given by the court after a potential juror saw the defendant in the hallway in prison garb, belly chains and ankle shackles; this further indicates the court’s failure to consider the prejudice to the defendant should he be tried in his “Bozo the Clown suit . . . .” Finally, the potential prejudice to the defendant in this case was especially great because the jury had to find that he had the mens rea or “guilty mind” required by the statute. Courts must ensure that the jury is not influenced in its determination of guilt by “grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” (Emphasis added; internal quotation marks omitted.) Holbrook v. Flynn, supra, 475 U.S. 567. Although we agree with the dissent that what occurred physically in the defendant’s cell in the center’s hospital wing is not in dispute, we disagree with the proposition that the inquiry ends there. An essential element of the crime—and the only real issue in dispute—was the defendant’s intent. Although the evidence was sufficient for the jury to infer that the defendant intended to prevent Guerrera from performing his duties, the evidence of his intent was not so “overwhelming” that there is no reasonable possibility that the defendant’s appearance in prison garb might have contributed to his conviction. See Chapman v. California, supra, 24. On the basis of that determination and the whole record, it is evident that the defendant did not receive a fair trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion LAVINE, J., concurred.

FOTI, J.,

concurring in part and dissenting in part. I agree completely with part I of the majority opinion, both in its thoughtful analysis and result, that the evidence adduced at trial was sufficient to support the conviction of the defendant, Irvin D. Rose. I respectfully disagree, however, with the majority’s conclusion in part II that the trial court violated the defendant’s constitutional rights under the due process clause of the fourteenth amendment to the federal constitution by compelling the defendant to wear prison attire during trial. Although I agree with the majority’s conclusion that the defendant was compelled impermissibly by the court to wear prison attire during his trial, I disagree with the majority’s conclusion that it is inappropriate to apply harmless error analysis to the present case and that, in any event, the error was not harmless beyond a reasonable doubt. In my opinion, the precedents from the United States Supreme Court do not support the majority’s position that harmless error analysis is unavailing under these circumstances. Moreover, my review of the record indicates that the evidence of the defendant’s guilt is overwhelming, and, therefore, the error visited upon him by the court impermissibly compelling him to wear prison attire throughout trial was harmless beyond a reasonable doubt.

I first address the majority’s contention that it is inappropriate to apply harmless error analysis to the present case. The majority declares that Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), does not stand for the proposition that harmless error analysis applies to circumstances in which a defendant is impermissibly compelled to stand trial in prison attire. I agree that Estelle does not stand for this proposition because the question of whether compelling a defendant to attend trial in prison attire could result in harmless error was not before the court. The question before the court in Estelle was “whether an accused who is compelled to wear identifiable prison clothing at his trial by a jury is denied due process or equal protection of the laws”; id., 502; in other words, had a constitutional error occurred at all. The court concluded that “[although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court ... is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” (Emphasis added.) Id., 512-13. The court also found that there was no compulsion in Estelle because the defendant did not timely object, and, therefore, there was no error. The court simply did not address the applicability of harmless error analysis because the error was not established. This, however, does not end the inquiry.

Although the applicability of harmless error analysis to circumstances in which a defendant is impermissibly compelled to attend trial in prison attire has not been addressed directly by this court or our Supreme Court, state and federal appellate courts confronting this issue have approved of applying such analysis. As the majority correctly points out, the United States Court of Appeals for the Second Circuit in United States v. Hurtado, 47 F.3d 577, 581 (2d Cir.), cert. denied, 516 U.S. 903, 116 S. Ct. 266, 133 L. Ed. 2d 188 (1995), declared that “[e]ven where a defendant is compelled to wear prison clothes at trial, however, that constitutional error is subject to harmless error analysis.” The United States Court of Appeals for the Seventh Circuit has applied harmless error analysis in this context as well. See Whitman v. Bartow, 434 F.3d 968, 971 (7th Cir.), cert. denied, 547 U.S. 1199, 126 S. Ct. 2883, 165 L. Ed. 2d 908 (2006); see also Fernandez v. United States, 375 A.2d 484, 485-86 (D.C. 1977) (applying harmless error when defendant compelled to attend trial in prison attire). The Court of Appeals of Maryland in Knott v. State, 349 Md. 277, 292, 708 A.2d 288 (1998), applied harmless error analysis to this issue in factually comparable circumstances, as did the Supreme Court of Pennsylvania in Commonwealth v. Moore, 534 Pa. 527, 544-45, 633 A.2d 1119 (1993), cert. denied, 513 U.S. 1114, 115 S. Ct. 908, 130 L. Ed. 2d 790 (1995), and the Supreme Court of Louisiana in State v. Brown, 585 So. 2d 1211, 1213 (La. 1991). See also People v. Steinmetz, 287 Ill. App. 3d 1, 6-7, 678 N.E.2d 89 (applying harmless error when defendant compelled to attend trial in prison attire), leave to appeal denied, 173 Ill. 2d 542, 684 N.E.2d 1341 (1997). I agree with those courts that the application of harmless error analysis is appropriate in circumstances in which a defendant is impermissibly compelled to attend trial in prison attire.

Moreover, the United States Court of Appeals for the Sixth Circuit declared that “there is [United States] Supreme Court precedent holding that harmless error analysis should apply in cases where the courtroom atmosphere hints at a defendant’s dangerousness or guilt.” (Emphasis in original.) Ruimveld v. Birkett, 404 F.3d 1006, 1013 (6th Cir. 2005). Citing Holbrook v. Flynn, 475 U.S. 560, 572, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986), the Sixth Circuit concluded that “[t]he [United States Supreme] Court [has] made clear that a particular trial practice ought to be examined as to whether it prejudiced the defendant’s case. [Furthermore, this] is in line with the majority of other constitutional errors considered by the Supreme Court.” Ruimveld v. Birkett, supra, 1013. I agree and, therefore, would apply harmless error analysis in this case.

Additionally, the United States Supreme Court has “recognized that most constitutional errors can be harmless [and has] found an error to be structural, and thus subject to automatic reversal, only in a very limited class of cases.” (Citations omitted; internal quotation marks omitted.) Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).1 also take issue with the majority’s apparent case-by-case approach to the applicability of harmless error analysis to this, or any, constitutional error. The United States Supreme Court expressly has rejected such an approach to errors of a constitutional magnitude. In Neder, the court was faced with a “[petitioner's submission [that] imported] into the initial structural-error determination (i.e., whether an error is structural) a case-by-case approach that [was] more consistent with [the court’s] traditional harmless error inquiry (i.e., whether an error is harmless).” Id., 14. Although the majority admittedly does “not announce a per se rule that trial in prison clothing after an objection requires automatic reversal,” it also concluded that “it is inappropriate to apply harmless error analysis in cases such as [the present case].” The majority, therefore, apparently endorses a case-by-case approach to the application of harmless error analysis to situations in which a defendant was compelled impermissibly to attend trial in prison attire. “Under [United States Supreme Court] cases, a constitutional error is either structural or it is not.” Neder v. United States, supra, 14. Therefore, I find that the majority is misguided in its apparent endorsement of a case-by-case approach to the application of harmless error analysis.

Last, my review of the record reveals that the court’s compelling the defendant to wear prison attire throughout trial, even though erroneous, was harmless beyond a reasonable doubt. “The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . . . Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case.” (Citation omitted.) State v. Daugaard, 231 Conn. 195, 212, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). “As the United States Supreme Court said in Chapman v. California [386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)], before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. [Our Supreme Court] has held in a number of cases that when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Davis, 109 Conn. App. 187, 197, 951 A.2d 31, cert. denied, 289 Conn. 929, 958 A.2d 160 (2008).

As the majority correctly notes, intent is the only real issue in dispute. Evidence of intent, therefore, that was not only sufficient to support the defendant’s conviction had to be present, but for our purposes here, that evidence must be overwhelming to find the error at trial harmless. See id. Before I summarize the relevant evidence properly before the jury, however, I underscore what was already pointed out by the majority that “[i]t is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as .. . the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Porter, 76 Conn. App. 477, 487-88, 819 A.2d 909, cert. denied, 264 Conn. 910, 826 A.2d 181 (2003). With this in mind, I now turn to the evidence properly before the jury.

An incident report that was entered into evidence as a full exhibit details effectively the surrounding circumstances and events leading to and immediately following the incident. Just prior to the incident, the defendant “was naked in his cell due to [his] shoving his . . . gown and blanket underneath the cell door [sometime earlier and] was ripping the seam of the mattress.” This behavior led to the intervention by department of correction officers and the spitting incident that the majority relates. After this incident, “[a]round ten minutes later, [the defendant] was pacing [in] his cell when suddenly he went to his cell door and started to urinate everywhere. A short time later . . . [the defendant] wet some toilet paper and tried to cover the camera monitor. . . . [H]e then climbed up the wall and shook the camera trying to break it. . . . [H]e [then] grabbed the wet toilet paper, climbed the up the wall again and placed it on the camera monitor.” The report goes on to indicate that another department of correction intervention ensued resulting in the physical restraint of the defendant.

These factors lead me to conclude that in light of our prevailing standards, evidence that the defendant, when he spit on correction Officer Brian Guerrera, acted “with intent to prevent [an] employee of the Department of Correction . . . from performing his or her duties”; General Statutes § 53a-167c (a); was not only sufficient to support the conviction but overwhelming as well. As a result, I conclude that the defendant’s being compelled to wear prison attire during trial amounted to error that was harmless beyond a reasonable doubt and did not violate the defendant’s constitutional rights.

For all of the foregoing reasons, I respectfully dissent in part. I would affirm the judgment of conviction.

       The defendant also claims that the court improperly denied him the opportunity to present a defense and makes three arguments in support of this contention. Because we reverse the judgment on the basis of the second claim, and the claimed errors are unlikely to arise on remand, we need not address the contention that the defendant was denied the opportunity to present a defense and address only his first and second claims.

       The defendant relies on the fourteenth amendment to the United States constitution, § 1, which provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Practice Book § 44-7 provides in relevant part: “An incarcerated defendant . . . shall not be required during the course of a trial to appear in court in the distinctive attire of a prisoner or convict.” Although normally we will dispose of a claim on other than constitutional grounds when possible, we address the constitutional claim here because the defendant has raised it and because the dissent relies on Estelle v. Williams, 425 U.S. 501, 504, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). Accordingly, we will notseparately review his claim under Practice Book § 44-7, which addresses the same protected interest.

       The defendant was also arraigned for failure to comply with a fingerprint request in violation of General Statutes §§ 29-12 and 29-17 and breach of the peace in the second degree in violation of General Statutes § 53a-181; those charges were not pursued when the state filed a substitute information charging the defendant only with assault of public safety personnel.

       The defendant’s handcuffs were removed before the jury entered the courtroom. Because the defendant on appeal has not challenged the court’s requirement that he be tried in ankle shackles, we will not address this issue other than to note that courts must exercise their discretion to shackle defendants with care after a finding on the record that they are “reasonably necessary under the circumstances.” (Internal quotation marks omitted.) State v. Tweedy, 219 Conn. 489, 505, 594 A.2d 906 (1991).

       Some of the court’s refusals were based on the improper form of the questions posed by the pro se defendant. “[Ajlthough we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Sakon v. Glastonbury, 111 Conn. App. 242, 258 n.5, 958 A.2d 801 (2008).

       Although we agree that the full impact of the defendant’s appearance in prison garb on the jury’s decision cannot be measured, we find the following colloquy, which occurred during voir dire, informative:
      “[The Defendant]: Okay. Seeing that I am incarcerated, which means I’m just incarcerated, doesn’t mean that I’m in jail because I committed a crime; it just means that I am there. Can I explain to him or can the court explain to him that I am—
      “[The Juror]: I understand.
      “[The Defendant]: So, you understand why I am in jail or is it kind of a guess?
      “[The Juror]: I understand that you are incarcerated, and this is for a separate offense.”

         Estelle noted that the District Court had applied harmless error analysis to the nonobjecting defendant’s claim and cited several additional cases that concern nonobjecting defendants. See Thomas v. Beto, 474 F.2d 981, 983 (5th Cir.) (no objection noted, but harmless error when “no possible inference which clouds or conflicts any essential or material fact [and] all such facts lead unerringly to guilt”), cert. denied sub nom. Thomas v. Estelle, 414 U.S. 871, 94 S. Ct. 95, 38 L. Ed. 2d 89 (1973); Hernandez v. Beto, 443 F.2d 634, 636-37 (5th Cir.) (not harmless error when nonobjecting defendant tried in identifiable prison clothes; pivotal issue was defendant's sobriety and three policemen, three children and adult testified they could smell alcohol on defendant, that he staggered and that his eyes were blurred and misty), cert. denied, 404 U.S. 897, 92 S. Ct. 201, 30 L. Ed. 2d 174 (1971); Watt v. Page, 452 F.2d 1174, 1176 (10th Cir.) (remand for determination of whether defendant, charged as habitual criminal, did not object because of trial strategy and, if not trial strategy, determination of whether, beyond reasonable doubt, his right to fair trial not prejudiced by jail clothing), cert. denied, 405 U.S. 1070, 92 S. Ct. 1520, 31 L. Ed. 2d 803 (1972); see also Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972) (adopting majority view that compelling accused to wear prison clothing may deny to him presumption of innocence and remanding to determine whether defendant compelled to wear prison clothing and whether resulting error harmless beyond reasonable doubt).

       It is also evident from the wording of the defendant’s objection, “Your Honor, this Bozo the Clown suit is not sufficient,” that he did not choose to appear in prison garb for tactical reasons. See Estelle v. Williams, supra, 425 U.S. 508 (“The reason for . . . judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments. . . . [I]t is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury.”).

       We emphasize that, as the court noted, the defendant, who was appearing pro se, would be required to walk repeatedly in shackles to the lectern “in the yellow jumpsuit.”

       We note that “[t]here may well have been no error if the [court] had inquired where [the defendant] had other clothes available and how much time would be required to get those clothes to the courthouse. A fully developed inquiry along [these] lines may have supported a finding that [the defendant] waived his right to appear in non-prison garb . . . .” Knott v. State, supra, 349 Md. 286. In the interest of justice, however, we urge trial courts to utilize reasonable efforts to ensure that defendants who object to wearing prison garb are able to obtain civilian clothing.

       See footnote 8.

        United States v. Henderson, 472 F.2d 556, 557 (5th Cir.), cert. denied sub nom. Stahl v. Henderson, 411 U.S. 971, 93 S. Ct. 2166, 36 L. Ed. 2d 694 (1973), affirmed the holding in Hernandez v. Beto, 443 F.2d 634 (5th Cir.), cert. denied, 404 U.S. 897, 92 S. Ct. 201, 30 L. Ed. 2d 174 (1971), that a defendant has the burden of objecting to prison attire at trial. The Fifth Circuit held that (1) the defendant had not met that burden, (2) the trial court appropriately found that the security measures taken with regard to the defendant, who had been charged with murdering a man while incarcerated, were necessary because of his dangerousness and (3) because of the nature of the charges, the jury knew that the defendant was incarcerated at the time of the incident and at the time of the trial. United States v. Henderson, supra, 557.

        People v. Roman, 35 N.Y.2d 978, 324 N.E.2d 885, 365 N.Y.S.2d 527 (1975), however, held that when there is no reason to try a defendant in prison garb, the fact that he was charged with a crime committed while he was incarcerated is irrelevant.
      The jury in this case had no reason to know that the defendant was incarcerated at the time of trial. Indeed, the defendant was only & pretrial detainee at the time of the incident and at the time of trial and was, therefore, presumed innocent of whatever charges caused him to be detained. As the record indicates, there were no concerns raised about the defendant’s dangerousness other than the court’s brief remarks about “the charges

       Although the defendant did not raise, and we do not review, an objection to his appearance in shackles in front of the jury, we note that the court’s overall balancing of the defendant’s appearance in front of the jury against the essential state policy calling for such precautions relies on the same concerns that the defendant not be unduly prejudiced by his appearance in front of the jury. State v. Tweedy, 219 Conn. 489, 505, 594 A.2d 906 (1991).

       “[Our Supreme Court] has held in a number of cases that when there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Davis, 109 Conn. App. 187, 197, 951 A.2d 31, cert. denied, 289 Conn. 929, 958 A.2d 160 (2008).

       In Estelle, the United States Supreme Court stated: “Nothing in this record . . . warrants a conclusion that [the] respondent was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial. ” Estelle v. Williams, supra, 425 U.S. 512.

       The court did counterpoise this result, a finding of no error when a defendant was not compelled to be tried in jail attire, with the cases in footnote 8 of the majority of this opinion, cases that applied harmless error analysis for nonobjecting, therefore, noncompelled defendants. The court did this, in my opinion, to clarify that when there is no compulsion, there is no error and not, as those cited cases had concluded, that any error was harmless. The court was supplying the standard for establishing the error and rejecting the need for the application of harmless error analysis in cases in which compulsion is not found.

       The Court of Appeals is the highest tribunal in Maryland.

       In Neder, the court cited the following examples it had determined to be structural errors: “Johnson v. United States, 520 U.S. 461, 468 [117 S. Ct. 1544, 137 L. Ed. 2d 718] (1997) (citing Gideon v. Wainwright, 372 U.S. 335 [83 S. Ct. 792, 9 L. Ed. 2d 799] (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510 [47 S. Ct. 437, 71 L. Ed. 749] (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254 [106 S. Ct. 617, 88 L. Ed. 2d 598] (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168 [104 S. Ct. 944, 79 L. Ed. 2d 122] (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39 [104 S. Ct. 2210, 81 L. Ed. 2d 31] (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275 [113 S. Ct. 2078, 124 L. Ed. 2d 182] (1993) (defective reasonable-doubt instruction)).” Neder v. United States, supra, 527 U.S. 8.

       The state also presented other independent, overwhelming evidence of the defendant’s guilt. There was uncontested documentary and testimonial evidence that Officer Brian Guerrera was an identifiable employee of the department of correction in the lawful performance of his duty when the assault took place. The state presented the testimony of two eyewitnesses to the assault on Guerrera. Each testified that the defendant spat on Guerrera during the removal of the damaged mattress from the defendant’s cell. Also, there was the extensive documentary evidence before the jury, amounting to some sixty plus pages of department of correction reports, detailing the assault on Guerrera and subsequent events involving the defendant’s incarceration. See State v. Yates, 174 Conn. 16, 18-19, 381 A.2d 536 (1977) (potential prejudice of witnesses testifying in prison attire ameliorated by testimony of present incarceration).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LEO FELIX CHARLES v. COMMISSIONER OF CORRECTION
    (AC 29165)
    Flynn, C. J., and DiPentima and Lavine, Js.
    Argued December 1, 2008
    officially released January 27, 2009

      Michael Oh, special public defender, for the appellant (petitioner).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

After the granting of certification to appeal, the petitioner, Leo Felix Charles, appeals from the judgment of the habeas court dismissing his third amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he was not denied the effective assistance of trial counsel and appellate counsel when both attorneys failed to raise an important jurisdictional issue. We affirm the judgment of the habeas court.

In State v. Charles, 56 Conn. App. 722, 745 A.2d 842, cert. denied, 252 Conn. 954, 749 A.2d 1203 (2000), we affirmed the petitioner’s conviction of conspiracy to sell narcotics within 1500 feet of a school in violation of General Statutes §§ 53a-48 (a) and 21a-278a (b), sale of narcotics within 1500 feet of a school in violation of § 21a-278a (b), possession of narcotics with intent to sell within 1500 feet of a school in violation of § 21a-278a (b) and failure to appear in the first degree in violation of General Statutes § 53a-172. Now before us is the habeas court’s dismissal of the petitioner’s third amended petition for a writ of habeas corpus.

“A criminal defendant’s right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution.” Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). “The standard of review of a habeas court’s denial of a petition for a writ of habeas corpus that is based on a claim of ineffective assistance of counsel is well settled. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show [1] that counsel’s performance was deficient and [2] that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” Ortiz v. Commissioner of Correction, 92 Conn. App. 242, 243-44, 884 A.2d 441, cert. denied, 276 Conn. 931, 889 A.2d 817 (2005). When a petitioner is claiming ineffective assistance of appellate counsel, his burden is to prove that there is a reasonable probability that but for appellate counsel’s error, the petitioner would have prevailed in his direct appeal. Small v. Commissioner of Correction, supra, 721-24.

The crux of the petitioner’s argument is that trial and appellate counsel were ineffective because they did not argue that the trial court lacked jurisdiction to convict him of violations of § 21a-278a (b) because the state had not charged him with violations of General Statutes § 21a-277 or § 21a-278. He argues that § 21a-278a (b) is meant to be an enhancement, which requires that a defendant be charged with and convicted of violating § 21a-277 or § 21a-278 before his penalty can be enhanced by a violation of § 21a-278a (b). We disagree.

The habeas court’s conclusion that the petitioner properly could be charged, convicted and sentenced under § 21a-278a without a conviction under either § 21a-277 or § 21a-278 involves a question of law. Our review therefore is plenary.

“Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997). To distinguish an enhancement provision from a separate substantive offense we look to the intent of the legislature. “In seeking to discern that intent, we look [first] to the words of the statute itself . . . .” (Internal quotation marks omitted.) Id., 147.

Our Supreme Court has had the opportunity to construe the language of § 21a-278a (b), and it found the meaning of the statute to be clear on its face. State v. Denby, 235 Conn. 477, 481, 668 A.2d 682 (1995). Disagreeing with our conclusion in State v. Denby, 35 Conn. App. 609, 646 A.2d 909 (1994), aff'd on other grounds, 235 Conn. 477, 668 A.2d 682 (1995), that the statute was merely a sentence enhancement, our Supreme Court explained: “The first sentence [of § 21a-278a (b)] provides that if any person who is not drug-dependent violates § 21a-277 or § 21a-278 in one of the ways set forth therein, and does so within [1500] feet of a school, that person will receive an additional three year term of imprisonment. The second sentence of § 21a-278a (b) places an additional limitation on the location requirement: ‘To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within [1500] feet of, the real property comprising a public or private elementary or secondary school.’ This sentence further defines two of the ways previously described—that is, ‘transporting or possessing a controlled substance’—by adding that they ‘shall be with intent to sell or dispense in or on, or within’ the [1500] foot zone. Therefore, the plain language of § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within [1500] feet of a school.” State v. Denby, supra, 481-82.

Because our Supreme Court has directed that General Statutes § l-2z was enacted to restore the plain meaning rule, not to overrule our prior case law interpreting our statutes; Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007); we also look to the cases in which we have examined the legislative history relating to the passage of § 21a-278a. In State v. Player, 58 Conn. App. 592, 597, 753 A.2d 947 (2000), relying on State v. Denby, supra, 235 Conn. 477, along with the plain language of § 21a-278a and the legislative history associated therewith, we concluded that § 2 la-278a creates a separate substantive offense and that it is not merely a penalty enhancement provision. See also State v. Barber, 64 Conn. App. 659, 675-76, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001). We explained that the legislative histoiy of § 21a-278a (b) reveals that in enacting this statute, the legislature expressed its intent to create a separate substantive offense. State v. Player, supra, 597; see also State v. Barber, supra, 675-76. “During debate on this provision, its [legislative] sponsor, Representative William Kiner, observed, ‘Three new categories of crime are also in this file copy, basically what it does is to say that anyone . . . who sells within [1500] feet of a school . . . would now be guilty of a crime and as such we would be adding on two years to an already five year minimum sentence.’ 30 H.R. Proc., Pt. 24, 1987 Sess., p. 8656. Additionally, Representative Richard Tulisano remarked, ‘The body of this bill deals with a new crime dealing with sale near a schoolhouse’ . . . id., p. 8658; and Representative Robert Jaekle commented that ‘we’re talking about a new criminal law.' . . . Id., p. 8712.” (Emphasis in original.) State v. Player, supra, 597.

We take this time to distinguish this legislative history from the history found concerning the enactment of General Statutes § 53-202k, the firearm enhancement statute, the contents of which strongly suggest that the legislature intended to make § 53-202k an enhancement statute and not a separate crime. “Section 53-202k was enacted as part of a comprehensive legislative plan for dealing with assault weapons. See Public Acts 1993, No. 93-306 (P.A. 93-306), now codified at General Statutes §§ 53-202a through 53-202k. During the debate on P.A. 93-306, Representative Michael P. Lawlor described [General Statutes] §§ 53-202j and 53-202k as establishing, ‘new enhanced mandatory minimum penalties for the commission of a felony.’ ... 36 H.R. Proc., Pt. 32, 1993 Sess., p. 11,540. Representative Lawlor also explained that § 53-202k was intended, ‘[to add] five years to the end of whatever other sentence [a defendant is] receiving as a consequence of these acts. . . . This legislation requires five years to be tacked on to the end of [the] sentence [for the underlying felony] which must run consecutively and which cannot be suspended or reduced in any manner. So that would be in addition to the minimum mandatories that are already in existence for whatever the underlying crime was. So, it is five additional years on top of the other sentence.’ ... 36 H.R. Proc., Pt. 33, 1993 Sess., pp. 11,727-28. Similarly, Representative Reginald L. Jones, Jr., stated that this legislation ‘deal[s] with mandatory sentences that ran consecutively and cannot be plea bargained. The purpose, of course, is to make the penalties greater and greater if you use these weapons.’ . . . Id., p. 11,725. Finally, Senator Alvin W. Penn explained that the legislation ‘requires a mandatory five year sentence ... in addition and consecutive to any imprisonment for the [underlying] felony.’ 36 S. Proc., Pt. 14, 1993 Sess., p. 4956. These comments strongly suggest that the legislature, in enacting § 53-202k, merely sought to establish an additional penalty for a person who commits a class A, B or C felony with a firearm.” State v. Dash, supra, 242 Conn. 148-49.

On the basis of this precedent, we are constrained to reject the petitioner’s claim and affirm the judgment of the habeas court, concluding that the petitioner’s trial counsel and appellate counsel were not ineffective for failing to argue that § 21a-278a (b) was a sentence enhancement and not a substantive offense. Such arguments would not have been successful.

The judgment is affirmed.

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by . . . selling . . . possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . .


author: DiPENTIMA, J.

text:
    HOUSING AUTHORITY OF THE CITY OF NEW HAVEN v. PATRICIA DEROCHE
    (AC 27983)
    DiPentima, McLachlan and Dupont, Js.

      Argued October 14, 2008
    officially released January 27, 2009

      Max F. Brunswick, for the appellant (defendant).

      Ka,thryn Sylvester, with whom, on the brief, were G. Adam Schweickert and Robert W. Chesson, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant, Patricia DeRoche, appeals from the judgment of the trial court rendered in favor of the plaintiff, the housing authority of the city of New Haven. On appeal, the defendant claims that the court improperly (1) denied her motion to dismiss the summary process complaint, (2) denied her motion for an order to render judgment in accordance with a stipulation and (3) refused to issue a capias. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are necessary for our discussion. In November, 2004, the defendant entered into a written lease with the plaintiff to rent an apartment located at 11 Wayfarer Street. This property was one of six connected row houses. Approximately thirty people resided in these six houses. On May 15,2005, the New Haven fire department responded to a fire in the defendant’s apartment. The kitchen and adjoining areas sustained significant damage before the fire was extinguished.

A few days after the fire, Edward Moore, the acting manager of the plaintiff, conducted an interview with the defendant. The defendant informed Moore that on the night of the fire, she had been celebrating her birthday and had drunk two bottles of Dom Perignon champagne. She had turned on the kitchen stove, had gone upstairs to the bedroom and had fallen asleep. The entry of firefighters into the apartment had awakened the plaintiff from her slumber. Moore testified that the apartment was not habitable after the fire and that the repairs totaled approximately $ 11,50o.

On June 24, 2005, the plaintiff sent a four page preter-mination notice to the defendant stating that she had violated the lease agreement and certain statutes. Specifically, the letter stated that the defendant had violated six sections of the lease agreement, as well as General Statutes §§ 47a-ll, 47a-32 and 47a-15. The basis for the claims of lease and statutory violations was the fact that the defendant had been intoxicated and started a fire. The pretermination notice also raised a statutory claim of serious nuisance, alleging that the defendant’s conduct presented “an immediate and serious danger to the safety of other tenants or the landlord.” See General Statutes § 47a-15 (2) (C). On July 22,2005, the plaintiff served the defendant with a notice to quit possession of the apartment on or before August 4, 2005.

The plaintiff served the defendant with a three count complaint on August 9,2005. The complaint alleged that the defendant had caused the fire, thereby conducting herself in a manner that violated the terms of her lease (count one), conducted herself in a manner that constituted a nuisance in violation of §§ 47a-ll and 47a-32 (count two) and conducted herself in a manner that constituted a serious nuisance in violation of §§ 47a-ll and 47a-15.

At the conclusion of the plaintiffs case, the defendant orally moved to dismiss the case. Specifically, she argued that the pretermination notice was insufficient and that the court therefore lacked subject matter jurisdiction. The court reserved its decision on the defendant’s motion, and the defendant proceeded with her case.

On August 11, 2006, the court issued two memoranda of decision. The first addressed the defendant’s motion to dismiss. The court concluded that the pretermination notice was legally sufficient and denied the motion to dismiss. The second memorandum of decision focused on the merits of the plaintiffs actions. It stated: “The court finds that the plaintiff offered sufficient evidence and testimony to permit the court to find that the defendant violated the proscribed tenant behavior as alleged in counts one and two of the complaint.” The court additionally made a finding that the defendant “was intoxicated at the time of the fire and that she ignited her stove, intending to cook food, went upstairs to her bedroom and fell asleep.” It further found that “it is more probable than not that the ensuing fire was proximately caused by the negligent acts of the defendant” and that such conduct “presented an immediate and serious danger to the safety of other tenants or the landlord” in violation of § 47a-15. As a result, the court concluded that such conduct constituted a serious nuisance. The court rendered judgment of immediate possession of the apartment in favor of the plaintiff. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied her motion to dismiss the complaint. Specifically, she argues that the pretermination notice was inadequate and that the court therefore was without jurisdiction to consider the plaintiffs summary process action. We disagree.

Before addressing the specifics of the defendant’s claims, it is helpful to identify the legal principles regarding summary process actions. “Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enablejs] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Citations omitted; internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 487-88, 733 A.2d 835 (1999); Marrinan v. Hamer, 5 Conn. App. 101, 103, 497 A.2d 67 (1985).

Our Supreme Court has stated that “[a]s a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity.” Lampasona v. Jacobs, 209 Conn. 724, 729, 553 A.2d 175, cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L. Ed. 2d 590 (1989); see generally Kapa Associates v. Flores, 35 Conn. Sup. 274, 408 A.2d 22 (1979). Simply put, “before a landlord may pursue its statutory remedy of summary process, the landlord must prove compliance with all of the applicable preconditions set by state and federal law for the termination of the lease.” Housing Authority v. Harris, 28 Conn. App. 684, 689, 611 A.2d 934 (1992), aff'd, 225 Conn. 600, 625 A.2d 816 (1993). “In the case of a residential eviction, § 47a-15 provides that under certain circumstances, in which a tenant fails to comply with his or her rental obligations under § 47a-ll, the landlord is required to deliver to the tenant a written notice specifying the acts or omissions constituting the breach and to give the tenant [fifteen] days to abate the violation or risk the termination of the tenancy.” (Internal quotation marks omitted.) Housing Authority v. Harris, 225 Conn. 600, 605, 625 A.2d 816 (1993). This notice requirement, which is strictly construed, must be sufficient to inform the tenant and protect against premature, discriminatory or arbitrary eviction. Id.

We now identify the applicable standard of review. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [decision to deny] . . . the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); see also South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn. App. 742, 744, 899 A.2d 642 (2006). Mindful of these principles and guided by our standard of review, we now turn to the specific arguments raised by the defendant.

A

The defendant first argues that the court improperly denied her motion to dismiss counts one and two of the complaint. Specifically, she contends that the pre-termination notice failed to “provide for a cure period for the defendant to correct or remedy the lease violations alleged in the first count and the simple nuisance alleged in the second count, as required by ... § 47a-15 . . . .” The plaintiff counters that the notice provided the information required by § 47a-15. We agree with the plaintiff.

The following additional facts are necessary for our discussion. On June 24, 2005, the plaintiff served the defendant with a pretermination notice that set forth various violations of the lease and statutes by the defendant. Specifically, it provided that as a result of being intoxicated and starting the fire, the defendant (1) violated state and federal laws, (2) damaged, removed or defaced the property of the plaintiff, (3) failed to take precautions to prevent fires (4) engaged in activity on the plaintiffs property that threatened the health, safety or peaceful enjoyment of the plaintiffs property by other tenants or the plaintiffs employees, (5) altered, defaced or damaged the plaintiffs property, (6) committed criminal activity that threatened the health, safety, and right to peaceful enjoyment of the plaintiffs property by other residents and (7) disturbed the peaceful enjoyment of the plaintiffs property by others or engaged in conduct that constituted a nuisance, which includes conduct that interferes substantially with the comfort and safety of other tenants or occupants of the same or adjacent buildings or structures.

The notice further provided that the defendant’s conduct constituted a nuisance in violation of §§ 47a-ll and 47a-32. It then stated: “If you wish to contest this claim regarding your lease and statutory violations, you have the right to discuss this matter at a private conference with the Landlord or request a grievance hearing before an impartial person or panel. If you wish to request a conference or grievance hearing, you must notify the Landlord within fourteen (14) days from the above date, and personally deliver your request and obtain a receipt or mail your request by Certified Mail, Return Receipt Requested, to the Landlord.

“If the above-noted violations can be and are remedied by repair or payment of damages on your part within fifteen (15) days of this notice, no action will be taken against you based on these violations. If however, the above-noted violations cannot be remedied or are not remedied within that fifteen day period, your rental agreement shall terminate on a date not less [than] 30 days after you receive this notice, which date will be set forth with particularity in a Notice to Quit.”

Section 47a-15 provides in relevant part: “Prior to the commencement of a summary process action . . . the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within such fifteen-day period, the rental agreement shall terminate except that (1) if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such fifteen-day period, the rental agreement shall not terminate . . . .”

In comparing the language of the pretermination notice with the statutory requirements, it is apparent that the plaintiff complied with its obligation pursuant § 47a-15. The defendant, however, claims that because the pretermination notice also contained a claim of serious nuisance indicating that no cure was possible, the overall effect was that the notice failed to provide a cure period.

We are not persuaded by the defendant’s argument that the notice, taken as a whole, did not include the statutorily required information regarding a cure period. We are mindful that summary process statutes are narrowly construed and strictly followed. Young v. Young, supra, 249 Conn. 488. Our Supreme Court, however, also has stated that “[w]hen good cause for termination of a lease has clearly been shown, and when notices of termination have been sent in strict compliance with statutory timetables, a landlord should not be precluded from pursuing summary eviction proceedings because of hypertechnicai dissection of the wording of the notices that he has sent.” Jefferson Garden Associates v. Greene, 202 Conn. 128, 145, 520 A.2d 173 (1987). In this case, the pretermination notice complied with the statutory mandate and advised the defendant of her right to cure the lease violations and nuisance within the applicable time period. Although the pretermination notice also stated that it was the plaintiffs position that no cure was possible with respect to the claim of serious nuisance, this statement in no way contradicted or nullified the compliance with § 47a-15. We therefore conclude that the court properly denied the defendant’s motion to dismiss counts one and two of the plaintiffs summary process complaint.

B

The defendant next argues that the court improperly denied her motion to dismiss count three of the complaint. Specifically, she contends that the notice failed to comply with federal regulations that required the plaintiff to afford her an administrative grievance hearing as a precondition to terminating her lease. See 24 C.F.R. § 966.4 (e) (8) (ii) (A). We disagree.

The pretermination notice set forth a claim that the defendant caused a serious nuisance in violation of §§ 47a-ll and 47a-15 as a result of her being intoxicated and starting the fire. It then stated: “Because the violation involves criminal activity, the Landlord may decline to afford you a grievance hearing. If you do not timely request a grievance conference or hearing, of if the requested grievance conference or hearing is resolved against you, or if the Landlord chooses not to afford you a grievance hearing, an immediate action against you to recover possession of the premises may be commenced by the Landlord based on serious nuisance as set forth above. A notice to quit terminating your tenancy will precede any action. ... It is your landlord’s position that this lease violation constitutes ‘serious nuisance’ under ...[§] 47a-15, and that no cure is possible.”

“When a defendant is a tenant of federally subsidized housing, federal law must be followed in addition to state law.” Housing Authority v. Martin, 95 Conn. App. 802, 808, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006); see also Farley v. Philadelphia Housing Authority, 102 F.3d 697, 698 (3d Cir. 1996) (in exchange for receiving federal subsidies, local public housing authorities required to operate in compliance with the United States Housing Act, 42 U.S.C. § 1437 et seq. [1994]). Under federal law, a tenant generally must be provided with an administrative hearing before a public housing authority may terminate a lease. “The Secretary shall by regulation require each public housing agency receiving assistance under this chapter to establish and implement an administrative grievance procedure under which tenants will ... (1) be advised of the specific grounds of any proposed adverse public housing agency action; (2) have an opportunity for a hearing before an impartial party upon timely request within any period applicable under subsection (l) of this section . . . .” 42 U.S.C. § 1437d (k); see also 24 C.F.R. § 966.4 (e) (8) (ii) and © (3) (ii).

This right to a hearing, however, is not absolute. See, e.g., Gilmore v. Housing Authority, 170 F.3d 428, 429-30 (4th Cir. 1999); Colvin v. Housing Authority, 71 F.3d 864, 867 (11th Cir. 1996). Relevant to the facts presented in this case, a public housing authority may exclude the hearing requirement for an eviction that involves “[a]ny criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents . . . .” 24 C.F.R. § 966.51 (a) (2) (i) (A); see also 42 U.S.C. § 1437d (k). The preter-mination notice stated that the defendant’s actions in starting a fire while intoxicated involved criminal activity and was conduct that presented an immediate and serious danger to the safety of other tenants and the landlord.

The defendant argues that the notice was insufficient because the plaintiff did not cite a criminal statute that she had violated. She further maintains that the evidence established that she had not been arrested or charged with any crimes. As a result, she contends that the general rule requiring a hearing applied. This argument, however, fails to consider 24 C.F.R. § 966.4 (0 (5) (iii) (A), which provides: “The [public housing authority] may evict the tenant by judicial action for criminal activity in accordance with this section if the [public housing authority] determines that the covered person has engaged in the criminal activity, regardless of whether the covered person has been arrested or convicted for such activity and without satisfying the standard of proof used for a criminal conviction.” (Emphasis added.) Simply put, the plaintiff was not required to claim that the defendant had been arrested or charged with a crime. Furthermore, the regulation does not require the plaintiff to cite the criminal statute that the defendant had violated. As a result of the plaintiffs determination that the defendant had engaged in criminal activity, this matter fell within the exception to the general rule requiring a hearing. The plaintiff complied with the requirements of federal law, and, therefore, the court properly denied the defendant’s motion to dismiss count three of the summary process complaint.

II

The defendant next claims that the court improperly denied her motion for an order to render judgment in accordance with a stipulation. Specifically, she argues that the court should have enforced the settlement agreement between the parties. The plaintiff counters that the parties never reached a settlement agreement and that the court therefore properly denied the motion for an order to render judgment. We agree with the plaintiff.

The following additional facts are necessary for our discussion. The trial to the court commenced on October 25, 2005. Almost immediately after the start of the evidentiary phase, the court learned that the parties had reached a stipulated agreement. The court proceeded to canvass the defendant. During the canvass, counsel for the defendant stated to the court that the plaintiffs counsel would provide information concerning insurance coverage. The plaintiffs counsel immediately noted his disagreement with that statement. The plaintiffs counsel informed the court that any payments received from the defendant would be made known to the insurance company so that there would be no double recovery. Counsel for the defendant responded: “We agreed to the stipulation, Your Honor, because my client remains in possession of the premises, but I thought we had an understanding that we would get this information.” (Emphasis added.) Counsel for the plaintiff again stated that the information regarding any insurance payments was “not apart of the agreement . . . .” Finally, counsel for the defendant stated: “Your Honor, [the defendant] is telling me she believes that knowing what she knows, she didn’t sign the agreement voluntarily.” (Emphasis added.) After hearing further argument on the matter, the court refused to accept the stipulated agreement of the parties and proceeded to hear evidence and testimony.

Moore testified that afternoon regarding the damage to the apartment caused by the fire. He stated that the total cost of the repairs to the apartment was $14,500. During the next day of testimony, Moore acknowledged that he had made an error in his prior testimony. Specifically, Moore corrected his earlier testimony and stated that the total cost to repair the fire damage in the apartment totaled $11,508 and not $14,500. Moore noted that he had made a mathematical mistake when adding the cost of repairs.

In a motion for an order to render judgment in accordance with the stipulation, dated October 28, 2005, the defendant alleged that “the agreement broke down over the $14,516.50 arrearage, the defendant expressed a belief that she is paying more than the actual damages of the plaintiff.” The motion further stated: “Had the correct amount of the arrearage been on the original stipulation, the defendant never would have questioned the amount and the court would have approved the stipulation and entered judgment.” The motion concluded that because the plaintiffs mistake caused the rejection of the stipulation, the court should enforce it and render judgment accordingly.

On November 3, 2005, the next day of the trial, the court considered the defendant’s motion. Counsel for the defendant argued that had the stipulation contained the correct amount, the defendant would have agreed to it and not raised the issue of potential insurance payment. Counsel for the plaintiff indicated that settlement was no longer an option. The court concluded that the parties had not reached an agreement and that there was no meeting of the minds. Accordingly, it denied the defendant’s motion.

“A settlement agreement is a contract among the parties.” (Internal quotation marks omitted.) Guarnieri v. Guarnieri, 104 Conn. App. 810, 822, 936 A.2d 254 (2007). The existence of a contract presents a question for the trier of fact. Ravenswood Construction, LLC v. F. L. Merritt, Inc., 105 Conn. App. 7, 23, 936 A.2d 679 (2007); see also Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 453, 938 A.2d 1249 (2008). “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn. App. 234, 238, 907 A.2d 1274 (2006).

This court has stated that “ [i]n order to form a binding and enforceable contract, there must exist an offer and an acceptance based on a mutual understanding by the parties. . . . The mutual understanding must manifest itself by a mutual assent between the parties.” (Internal quotation marks omitted.) Krondes v. O'Boy, 37 Conn. App. 430, 434, 656 A.2d 692 (1995); see also United Social & Mental Health Services, Inc. v. Rodowicz, 96 Conn. App. 34, 40, 899 A.2d 85, cert. denied, 280 Conn. 920, 908 A.2d 546 (2006); Fortier v. Newington Group, Inc., 30 Conn. App. 505, 510, 620 A.2d 1321 (“[i]n order for an enforceable contract to exist, the court must find that the parties’ minds had truly met”), cert. denied, 225 Conn. 922, 625 A.2d 823 (1993).

Contrary to the argument of the defendant, the record supports the court’s finding that the parties never reached a mutual understanding with respect to the settlement agreement. During the canvass of the defendant, the court quickly discovered a disagreement between the parties with respect to the terms of the settlement. Counsel for the defendant indicated that although his client agreed to the stipulation, they “had an understanding that [they] would get this information [regarding potential payments from the plaintiffs insurance company].” The plaintiffs attorney responded that this information was not part of the agreement and made his disagreement known to the court. Furthermore, the defendant stated that she did not sign the settlement agreement voluntarily. On this basis, we conclude that the court properly found that the parties had not reached a meeting of the minds and therefore properly denied the defendant’s motion.

Ill

The defendant next claims that the court improperly refused to issue a capias. Specifically, she claims that the court abused its discretion when it denied the capias after her witness from the New Haven fire department did not appear during the last day of the trial. We are not persuaded.

The following additional facts are necessary for our discussion. On November 1, 2005, the defendant had a subpoena served on Ray Carbone, the assistant fire chief of the city of New Haven. This subpoena instructed the keeper of records for the city’s fire department to appear on November 3, 2005, and to bring “[a]ll records, reports, notes, memoranda and investigation” concerning the fire in the defendant’s apartment on May 15,2005. No one from the fire department appeared at the trial on November 3, 2005. At the conclusion of evidence on that date, the court noted that it would continue the matter until November 17, 2005, and instructed that “all evidence and testimony that’s going to be required to be available at that point in time.” Notably, the defendant failed to move for a capias on November 3, 2005.

No one from the fire department appeared on November 17, 2005. On that date, counsel for the defendant informed the court that he had made a telephone call to the fire department and left a voice mail message that morning. He then requested that the court issue a capias. The court denied the request, stating: “I’m aware of the sanctions that are available for the failure to comply [with a subpoena]. But the compliance was required on November 3, not on November 17; that was two weeks ago this party failed to appear, and there has been no request to take any action in regard to the subpoena.”

“[General Statutes §] 52-143 authorizes the trial court to issue a capias to compel the appearance of a witness who fails to appear without justification. The statute does not, however, make it mandatory for the court to issue a capias when a witness under subpoena fails to appear; issuance of a capias is in the discretion of the court . . . [which] has the authority to decline to issue a capias when the circumstances do not justify or require it. . . . Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity. . . . [T]he action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Emphasis in original; internal quotation marks omitted.) State v. Payne, 40 Conn. App. 1, 18, 669 A.2d 582 (1995), aff'd, 240 Conn. 766, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004); see also DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972).

In the present case, the court denied the capias because the defendant failed to move for it at the appropriate time. The witness from the fire department was instructed to appear on November 3, 2005, and failed to do so. The court instructed the defendant to have its witnesses and evidence present on November 17, 2005. The appropriate time to request the capias, therefore, was November 3, 2005. Under these facts and circumstances, we conclude that it was well within the court’s discretion to deny the capias. See State v. Payne, supra, 40 Conn. App. 18-19.

The judgment is affirmed.

In this opinion the other judges concurred.

       Moore initially testified that the costs for the repairs to the apartment were $14,500. He later acknowledged that this incorrect total was the result of his miscalculation and that the correct cost was approximately $11,500.

       General Statutes § 47a-ll provides in relevant part: “A tenant shall . . . (f) not wilfully or negligently destroy, deface, damage, impair or remove any part of the premises or permit any other person to do so; (g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful enjoyment of the premises or constitute a nuisance, as defined in section 47a-32, or a serious nuisance, as defined in section 47a-15 . . . .”

       General Statutes § 47a-32 provides: “In any action of summary process based upon nuisance, that term shall be taken to include, but shall not be limited to, any conduct which interferes substantially with the comfort or safety of other tenants or occupants of the same or adjacent buildings or structures.”

       General Statutes § 47a-15 provides in relevant part: “For the purposes of this section, ‘serious nuisance’ means . . . (C) conduct which presents an immediate and serious danger to the safety of other tenants or the landlord . . . .”

       In its brief, the plaintiff argued that this court lacked subject matter jurisdiction as a result of the defendant’s failure to provide a bond with surety to guarantee payment of her portion of the rent within five days of filing her appeal. See General Statutes §§ 47a-35 and 47a-35a. The plaintiff further claimed that as a result of the defendant’s failure to comply with this statutory requirement, her appeal should be dismissed.
      We are mindful that “[t]he requirement that appeals in summary process actions comply with § 47a-35 is jurisdictional. . . . Therefore, compliance with its mandate is a necessary prerequisite to an appellate court’s subject matter jurisdiction.” (Citation omitted; internal quotation marks omitted.) Young v. Young, 249 Conn. 482, 488-89, 733 A.2d 835 (1999).
      At oral argument, counsel for the defendant informed us that the trial court had waived fees, costs and security for the appeal. Our review of the records confirms the accuracy of this statement. Specifically, on August 21, 2006, the court waived the fees, costs and security for the defendant’s appeal. Additionally, we note that counsel for the plaintiff conceded at oral argument that if the fee waiver included security, then no bond would be required. We conclude, therefore, that the defendant was not required to post a bond to prosecute her appeal and that we have jurisdiction to consider its merits.

       The defendant also appears to claim that the complaint should have been dismissed for failure to make out a prima facie case pursuant to Practice Book § 15-8. We decline to consider this claim, however, because it was briefed inadequately. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Rozbicki v.
        Statewide Grievance Committee, 111 Conn. App. 239, 240 n.2, 958 A.2d 812 (2008), cert. denied, 290 Conn. 908, 964 A.2d 544 (2009). We note, however, that if we were to consider this claim, we would conclude that the plaintiff did in fact set forth a prima facie case.

       Section 966.4 (e) (8) (ii) of title 24 of the Code of Federal Regulations provides in relevant part: “When the [public housing authority] is required to afford the tenant the opportunity for a hearing under the [public housing authority] grievance procedure for a grievance concerning a proposed adverse action: (A) The notice of proposed adverse action shall inform the tenant of the right to request such hearing. . . .”

       On October 25, 2005, the parties signed an agreement in which the judgment for possession would enter in favor of the plaintiff, with a stay of execution through October 31, 2008. The defendant agreed to a $10 per month use and occupancy fee and an arrearage of $14,516.50. The defendant further agreed to repay the arrearage with monthly payments of $75. Finally, the defendant stated that she would, no later than thirty days prior to the expiration of the stipulation, negotiate a repayment agreement for the outstanding balance.

       “Upon proof that a witness has been served with notice to appear, the trial court has authority to issue a capias to compel his or her attendance. See General Statutes § 52-143 . . . .” State v. Maldonado, 193 Conn. 350, 360 n.6, 478 A.2d 581 (1984).

       Counsel for the defendant informed the court that he had “subpoenaed the fire department but nobody showed up. I have those records, but [opposing counsel] objected on hearsay grounds . . . .”