author: SCHALLER, J.

text:
    YELLOW BOOK SALES AND DISTRIBUTION COMPANY, INC. v. DAVID VALLE
    (AC 32588)
    DiPentima, C. X, and Bear and Schaller, Js.

      Argued October 12, 2011
    officially released January 17, 2012

      Thomas L. Kanasky, Jr., for the appellant (plaintiff).

      Anthony J. Natale, with whom were Shannon Philipp Butler and, on the brief, Brian L. Wolinetz, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Yellow Book Sales & Distribution Company, Inc. (Yellow Book), appeals from the summary judgment rendered by the trial court in favor of the defendant, David Valle. On appeal, Yellow Book claims that the court incorrectly concluded that the agreement between the parties was rendered unenforceable by the statute of frauds, General Statutes § 52-550. For the reasons explained below, we affirm the judgment of the trial court.

The record contains the following undisputed facts and procedural history which are relevant to this appeal. Yellow Book is a Delaware coiporation engaged in the business of advertising. The defendant was the president of Moving America of CT, Inc. (Moving America), and, before that company ceased operating in 2006, entered into multiple contracts with Yellow Book on its behalf.

Each of these contracts was executed through the use of a standard form containing the following provisions. Paragraph 1 provides in relevant part: “Customer and [publisher . . . agree that [publisher will publish advertising in the [d]irectories and/or provide the [i]ntemet [s]ervices, in accordance with the terms and conditions of this agreement. ...” Subsection A of paragraph 6 reads: “Customer agrees to pay the amounts listed on the reverse side of this agreement for print advertising in the [directories and/or [i]ntemet [s]ervices.” The final provision of the contract, subsection F of paragraph 15, reads: “The signer of this agreement does, by his execution personally and individually undertake and assume the full performance hereof including payments of the amounts due hereunder.”

The parties completed the signature provision of this form contract in a substantially similar manner on each occasion. The words “Moving America” appeared on the first line. A signature reading “David Valle, President” was placed on the second line. Finally, on the third line, the words “David Valle, President” were handwritten along with the date.

On May 27, 2009, Yellow Book commenced the present action against the defendant in his individual capacity, pursuant to the individual guarantees contained within these contracts. In its complaint, Yellow Book alleged that Moving America had since dissolved and that the defendant was individually liable to it for $28,808, the balance remaining unpaid on the account, plus interest and attorney’s fees. On September 29,2009, the defendant filed an answer denying the substantive allegations of the complaint and alleging the statute of frauds as a special defense. On October 23,2009, Yellow Book filed a reply denying this special defense. On February 1, 2010, the defendant filed a motion for summary judgment, claiming that the imposition of liability was foreclosed by the statute of frauds as a matter of law. On April 19, 2010, Yellow Book filed an objection to the defendant’s motion along with its own cross motion for summary judgment. On May 7, 2010, the defendant filed an objection to Yellow Book’s cross motion for summary judgment.

On July 23, 2010, the court issued a memorandum of decision granting the defendant’s motion for summary judgment. Specifically, the court concluded that Yellow Book had alleged “[a] promise by the defendant to answer for the debt of Moving America” that “falls squarely within” the statute of frauds. The trial court further concluded that the written contracts presented to it were ambiguous as to whether the defendant was a party to the contract in his individual capacity and that the agreements therefore were unenforceable, as a matter of law, pursuant to the statute of frauds. This appeal followed.

On appeal, Yellow Book claims that the court incorrectly concluded that (1) the promises alleged by Yellow Book constitute agreements to answer for the debt of Moving America and (2) the language contained within the various written memoranda failed to satisfy the statute of frauds. We disagree.

We begin our analysis by setting forth the applicable standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. • • • The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

I

Yellow Book’s first claim is that the court erred in granting the defendant’s motion for summary judgment because the obligation undertaken by the defendant was not a promise to answer for the debt of Moving America but, rather, an original undertaking not governed by the statute of frauds. We disagree.

The statute of frauds requires that a promise made to answer for the debt of another be expressed in a writing and be signed by the party against whom enforcement is sought. General Statutes § 52-550 (a) (2). “Fundamentally the distinction between a contract which falls within the condemnation of [§ 52-550 (a) (2)] and one which does not is that the former is a collateral undertaking to answer in case of a default on the part of the obligor in the contract, upon whom still rests the primary liability to perform,, whereas in the latter the obligation assumed is a primary one that the contract shall be performed.” (Internal quotation marks omitted.) Kerin Agency, Inc. v. West Haven Painting & Decorating, Inc., 38 Conn. App. 329, 331-32, 660 A.2d 882 (1995). “The question as to whom credit was given, which is determinative of whether the agreement was an original undertaking not within the statute, is one of fact.” (Internal quotation marks omitted.) Id., 332; Bartolotta v. Calvo, 112 Conn. 385, 388-89, 152 A. 306 (1930); Equipment Distributors, Inc. v. Adams, 33 Conn. Sup. 528, 530, 358 A.2d 367 (1976).

In Kerin Agency, Inc. v. West Haven Painting & Decorating, Inc., supra, 38 Conn. App. 330, this court addressed a case in which an insurance company sought to recover unpaid premiums pursuant to a personal guarantee made by the president of the insured corporation. In that case, the defendant argued that enforcement of the agreement was barred by the statute of frauds because it constituted a contract to answer for the debt of the corporation. Id. In considering whether the statute of frauds applied, we stated: “The testimony at trial established that the plaintiff extended credit to [the corporation] on the basis of [the individual defendant’s] personal guarantee and a review of [his] personal financial statement” and, accordingly, affirmed the trial court’s conclusion that the defendant’s undertaking was original rather than collateral in nature and, therefore, not governed by the statute of frauds. Id., 332-33.

In the present case, the defendant submitted evidence to the trial court in support of his motion for summary judgment indicating that Yellow Book extended credit solely to Moving America and that, unlike Kerin Agency, Inc., Yellow Book was not induced to act by the strength of the defendant’s individual credit. Specifically, the deposition transcript of William Dest, the sales agent responsible for Moving America’s account, contains the following colloquy:

“Q. And Moving America was the company that the credit was extended to, correct?

“A. Yes.

“Q. Credit wasn’t extended to [the defendant], correct?

“A. No, it was extended probably to, at least the business. If the current credit report was done, it was the business that the credit was for, as far as the business, but that’s the paperwork that was filled out.”

There is no evidence in the record indicating that this fact is in dispute. Absent such a dispute, the court correctly concluded that Yellow Book sought recovery pursuant to a collateral promise by the defendant to answer for the debt of Moving America. Such an agreement, as the court noted in its memorandum of decision, falls “squarely within” the statute of frauds.

II

Yellow Book’s second claim is that the various written agreements contained within the record are not ambiguous as to whether the defendant is a party to the contract in his individual capacity, and, therefore, the court erred in concluding that enforcement was barred by the statute of frauds. We disagree.

“The statute of frauds requires that the essential terms and not every term of a contract be set forth therein. . . . The essential provisions of a contract are the purchase price, the parties, and the subject matter for sale. ... In order to be in compliance with the statute of frauds, therefore, an agreement must state the contract with such certainty that its essentials can be known from the memorandum itself, without the aid of parol proof . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn. 287, 294, 977 A.2d 189 (2009). When the statute of frauds applies, summary judgment in favor of the defendant is proper when an essential provision of the contract is ambiguous. See Carta v. Marino, 13 Conn. App. 677, 681, 538 A.2d 1091 (1988).

In order for the statute of frauds to be satisfied in the present case, the record must contain a writing that states, without ambiguity, that the defendant is a party to an agreement in his individual capacity. Although Yellow Book argues that the addition of the phrase “[ajuthorized [signature [individually and for the [c]ompany ([r]ead clause 15F on reverse side)” beneath the defendant’s signature removes any ambiguity from the contract, such language cannot be read in isolation. The parties do not dispute that the defendant signed his name only once on each agreement and that the signature was always appended with the corporate designation “President.” Moreover, many of the other provisions contained within these contracts indicate that the agreement was formed between Yellow Book and Moving America. Specifically, paragraph 1 of the form contract states: “Customer and \p]ublisher agree that [publisher will publish advertising in the [d]irectories . . . .” (Emphasis added.) Likewise, subsection A of paragraph 6 states: “Customer agrees to pay the amounts listed on the reverse side . . . .” (Emphasis added.) These additional facts demonstrate that the question of whether the defendant was a party to these agreements in his individual capacity is, at least, unclear. Because these writings are subject to more than one interpretation, we agree with the court that they are ambiguous as to the identity of the parties to the contract and, therefore, do not satisfy the statute of frauds. Accordingly, we conclude that the court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-550 provides in relevant part: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (2) against any person upon any special promise to answer for the debt, default or miscarriage of another

       Throughout these contracts the term “publisher” is used to refer to Yellow Book, the term “customer” is used to refer to Moving America and the term “signer” is used to refer to the defendant.

       The signature provision of the form contract appears as follows:

       We note that on the agreements dated July 20, 2005, the signature of the defendant appears on the third line while the second line was left blank. This variation, however, does not affect our analysis.

       Despite the instructions printed beneath the third line, the defendant always included the designation “President” and never printed his social security number on this line.

       Yellow Book also claims in its statement of issues that the court erred in denying its cross motion for summary judgment. Because this issue is not discussed in Yellow Book’s brief, however, we consider it to be abandoned. See Naier v. Beckenstein, 131 Conn. App. 638, 641 n.1, 27 A.3d 104 (2011).

       The defendant argues that Yellow Book’s failure to address this distinction in its trial court brief prevents us from considering the applicability of the statute of frauds on appeal. The court granted the motion for summary judgment after concluding explicitly that the statute of frauds applied to the present case as a matter of law. Under such circumstances, we cannot conclude that addressing this issue on appeal would constitute an ambuscade of the trial court judge. See Rowe v. Superior Court, 289 Conn. 649, 662-63, 960 A.2d 256 (2008) (“The trial court appears to have understood and rejected [the argument presented on appeal] .... Under such circumstances, we cannot conclude that the plaintiff has ambushed the trial court by seeking reversal of an issue that he had failed to raise at trial.”); see also Morgan v. Hartford Hospital, 301 Conn. 388, 394 n.7, 21 A.3d 451 (2011).

       The following colloquy also appears in the transcript of this deposition:
      “Q. Okay, to reiterate a few points, when Yellow Book extended credit, your understanding is they were extending it to Moving America, correct?
      “A. Yes.”

       Although Yellow Book is correct to note that the form agreement contains a provision affording it the right to check the defendant’s personal credit history, and extend a line of credit to him individually at its discretion, the record contains no evidence indicating that these rights were exercised in the present case. On the contrary, the undisputed evidence contained within the record demonstrates that the defendant never provided his personal social security number to Yellow Book on the front of the contract and that, despite this omission, Yellow Book provided advertising services to Moving America.

       In addressing this issue, we note that “[n]o part of a document is necessarily more important than any other part for the purpose of determining the parties thereto and, therefore, the entire document, including the heading, body, and signature, is considered . . . .” (Internal quotation marks omitted.) Tolk v. Williams, 75 Conn. App. 546, 555 n.6, 817 A.2d 142 (2003).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    EUGENE P. MERCER v. EDWARD A. BLANCHETTE
    (AC 33034)
    Gruendel, Beach and Bishop, Js.

      Submitted on briefs October 28, 2011
    officially released January 17, 2012

      Eugene P. Mercer, pro se, the appellant (plaintiff), filed a brief.

      George Jepsen, attorney general, and Ann E. Lynch, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, Eugene P. Mercer, appeals from the judgment of the trial court dismissing his claims against the defendant, Edward A. Blanchette, on the ground that they are barred by the doctrine of absolute immunity. The plaintiff also claims that the court improperly denied his motion to seal his file or, in the alternative, for permission to use a pseudonym. We disagree with the plaintiff on both claims, and, accordingly, affirm the judgment of the trial court.

The following undisputed factual and procedural history is relevant to the plaintiff’s claims on appeal. On June 2, 2010, the plaintiff, an inmate at the Osborn Correctional Institution, commenced this action against the defendant, who is the clinical director for the department of correction. In addition to his role as clinical director, the defendant, among others, was appointed by the federal District Court as a member of a three person panel, the Agreement Monitoring Panel (panel), to monitor compliance with the consent judgment rendered in Doe v. Meachum, United States District Court, Docket No. H88-562 (PCD) (JGM) (D. Conn. November 2, 1990). The consent judgment directs certain education and treatment guidelines regarding inmates infected with the acquired immune deficiency syndrome (AIDS) and the human immunodeficiency virus (HIV), and vests the panel with certain responsibilities and authority regarding the enforcement of its provisions. Specifically, the panel is tasked with devising procedures for monitoring the judgment and providing periodic reports to the parties and the court. In fulfilling its mandate, the judgment anticipates that the panel will conduct on-site inspections of correctional facilities and review records “as [it] deem[s] necessary” in order to perform its monitoring function. The judgment states, as well, that “[d]uring [its] inspection, the panel shall be permitted to conduct interviews with HIV-infected inmates” and shall be provided with any new policies or procedures that the department of correction may issue. The panel has access to “all policies, records, procedures and files at each [correctional] institution relevant to medical and mental health treatment of HIV-infected inmates, as well as access to all staff and consulting physicians with respect to such medical and mental health treatment.” The panel’s reports set forth the panel’s findings of compliance and noncompliance with the consent judgment. If the panel determines noncompliance, it must issue a report to the parties concerning the claim and make recommendations to remedy it. If remedial action cannot be resolved between the panel and the parties, a party may request a status hearing with a settlement judge or magistrate. If the issue cannot be resolved by a settlement judge or magistrate, the matter will be referred to the trial judge for adjudication. At that proceeding, panel members may be called as witnesses by a party or the judge.

On January 27, 2010, there was a panel meeting regarding complaints of alleged noncompliance with the consent judgment. At that meeting, the defendant allegedly stated that he found it difficult to credit the plaintiffs claims because the plaintiff repeatedly filed actions demanding treatment; the plaintiff had deliberately infected another inmate with HIV; and the plaintiff had demanded experimental treatment with human growth hormone. On the basis of those statements, the plaintiff filed, on June 2,2010, the present action against the defendant claiming libel per se, defamation by innuendo, slander, false light invasion of privacy, negligent infliction of emotional distress and retaliation.

On July 12, 2010, the defendant filed a motion to dismiss the plaintiffs complaint on the ground, inter alia, that the claims focused on statements allegedly made by the defendant at a federal court monitoring panel meeting, and, consequently, the defendant was entitled to absolute immunity from the plaintiffs claims. On July 26, 2010, the plaintiff filed a motion to seal his file or for permission to use a pseudonym. On December 8, 2010, the court issued memoranda of decision granting the defendant’s motion to dismiss and denying the plaintiffs motion to seal his file or for permission to use a pseudonym. This appeal followed.

I

The plaintiff first claims that the court improperly afforded the defendant absolute immunity because the meeting at which the defendant allegedly made the subject comments was not a judicial or a quasi-judicial proceeding and, even if it was, the alleged statements were not made in the course of the proceeding, nor were they related to the subject matter of that proceeding. We are not persuaded.

“Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts. . . . Thus, our review of the trial court’s ultimate legal conclusion and resulting [granting] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Woodtke, 130 Conn. App. 734, 738, 25 A.3d 699 (2011).

“In addition, the determination of whether a [proceeding] constitutes a [judicial or] quasi-judicial proceeding is a question of law over which our review is plenary. Within this limitation, however, whether a particular proceeding is [judicial or] quasi-judicial in nature, for the purposes of triggering absolute immunity, will depend on the particular facts and circumstances of each case.” Craig v. Stafford Construction, Inc., 271 Conn. 78, 83-84, 856 A.2d 372 (2004).

“It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy. . . . The effect of an absolute privilege is that damages cannot be recovered for the publication of the privileged statement even if the statement is false and malicious.” (Citation omitted; internal quotation marks omitted.) Gallo v. Barile, 284 Conn. 459, 465-66, 935 A.2d 103 (2007).

“[L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature. . . . Once it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition. . . .

“We must first determine whether the proceedings in this case were [judicial or] quasi-judicial in nature. The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character.” (Citations omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 565-66, 606 A.2d 693 (1992).

In Kelley, our Supreme Court held that statements made by persons requesting the state board of education to investigate a local teacher were absolutely privileged. Id., 571. There, the source of the allegedly defamatory statements was a letter written by members of a local school board requesting an investigation into acts of alleged wrongdoing by a teacher in the local board’s district. Id., 554-55. The court concluded that the decertification proceedings before the state board of education were quasi-judicial in nature and that any statements made as a requisite step in those proceedings were absolutely privileged. Id., 571. In arriving at its determination, the Kelley court delineated several factors “that assist in determining whether aproceeding is quasi-judicial in nature. Among them are whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties. . . . Further, it is important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides.” (Citation omitted.) Id., 567; see also Craig v. Stafford Construction, Inc., supra, 271 Conn. 88 (investigation by police department’s internal affairs division constituted quasi-judicial proceeding, thereby affording absolute immunity to citizen complainant whose claim had given rise to investigation); Petyan v. Ellis, 200 Conn. 243, 252, 510 A.2d 1337 (1986) (absolute privilege afforded to letter sent to employment security division of state labor department regarding reasons employee was terminated); Preston v. O’Rourke, 74 Conn. App. 301, 312, 811 A.2d 753 (2002) (arbitration entered into pursuant to collective bargaining agreement constituted quasi-judicial proceeding).

Here, the operation of the panel appears to fall within some, but not all, of the parameters suggested by Kelley. In regard to the panel’s functions, it can reasonably be inferred that the panel hears and ascertains facts and that, in doing so, it exercises discretion and judgment. It does not appear from the terms of the consent judgment, however, that the panel has the authority to make binding orders affecting the personal or property rights of individuals or to enforce decisions or to impose penalties.

If our analysis was limited to only those six specifically enumerated factors set forth in Kelley, we might be constrained to find that the panel does not act in a quasi-judicial manner. By the court’s language in Kelley, however, those factors are not exclusive; nor did the court in Kelley purport to cover every circumstance in which quasi-judicial immunity is appropriate. In assessing claims of quasi-judicial immunity, we also must consider, in accordance with Kelley, “whether there is a sound public policy reason for permitting complete freedom of expression that a grant of absolute immunity provides.” Kelley v. Bonney, supra, 221 Conn. 567. Kelley also must be read in light of the Supreme Court’s more recent opinion in Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005), in which the court appears to have asserted a somewhat different basis for upholding the immunity of a quasi-judicial officer than expressed in Kelley. In Carrubba, the court concluded that attorneys appointed by the court to represent minor children are entitled to quasi-judicial immunity for their actions in performing their duties in that role because the performance of those functions is integral to the judicial process. Id., 547-48. In so concluding, the court cited to several cases in which individuals have been afforded quasi-judicial immunity based on the fact that their role is integral to the judicial process. See, e.g., Babcock v. Tyler, 884 F.2d 497 (9th Cir. 1989) (court-appointed social worker), cert. denied, 493 U.S. 1072, 110 S. Ct. 1118, 107 L. Ed. 2d 1025 (1990); Moses v. Parwatikar, 813 F.2d 891 (8th Cir.) (court-appointed psychologist), cert. denied, 484 U.S. 832, 108 S. Ct. 108, 98 L. Ed. 2d 67 (1987); Demoran v. Witt, 781 F.2d 155 (9th Cir. 1986) (probation officer); Boullion v. McClanahan, 639 F.2d 213 (5th Cir. 1981) (bankruptcy trustee); T &W Investment Co. v. Kurtz, 588 F.2d 801 (10th Cir. 1978) (court-appointed receiver); Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970) (court-appointed medical examiner), cert. denied, 403 U.S. 908, 91 S. Ct. 2217, 29 L. Ed. 2d 685 (1971).

Here, similar to Carrubba and the cases on which the trial court relied in reaching its conclusion, the defendant acted as a member of the panel which, in turn, was performing a monitoring and reporting function integral to the judicial process of enforcing the provisions of the consent judgment. The defendant was appointed to the panel by the federal court and his performance in that role is specifically prescribed by the terms of the consent judgment. The judgment sets forth the manner in which the panel investigates issues of compliance, affording it access to various otherwise confidential documents and the opportunity to conduct inspections at the correctional facilities. The court does not get involved in the enforcement of the judgment until and unless the panel makes a finding of noncompliance, makes recommendations to the parties on how to remedy the issues and the resolution of that issue fails. In short, enforcement of the judgment is entirely reliant on the panel’s monitoring and reporting function, a role that is undoubtedly integral to the judicial process. Thus, following the rationales of Kelley and Carrubba, and the public policy they espouse, we conclude that because the work of the panel is integral to the judicial process of enforcing the consent judgment and there is a strong public policy reason for encouraging freedom of expression in that process, the workings of the panel should be extended quasi-judicial inununity.

Having concluded that the statements of the defendant were made in the context of a judicial or quasi-judicial process, we must next determine whether the alleged defamatory statements were made in the course of that proceeding and whether they related to its subject matter. See Kelley v. Bonney, supra, 221 Conn. 571. “In making [the] determination [of whether a particular statement is made in the course of a judicial proceeding], the court must decide as a matter of law whether the . . . statements [at issue] are sufficiently relevant to the issues involved in a proposed or ongoing judicial [or quasi-judicial] proceeding, so as to qualify for the privilege. The test for relevancy is generous . . . .” (Internal quotation marks omitted.) Gallo v. Barile, supra, 284 Conn. 467. Because the defendant’s statements in this case, whether true or not, related to the subject matter of the proceeding in that the defendant was expressing his basis for questioning the plaintiffs credibility, we cannot conclude that the court improperly determined that the statements were made in the course of the proceeding. Accordingly, we conclude that the court properly dismissed the plaintiffs claims on the basis of absolute immunity.

II

The plaintiff also claims that the court improperly denied his motion to seal his file or for permission to use a pseudonym. We disagree.

“We review a trial court’s decision granting or denying a motion to seal to determine whether, in making the decision, the court abused its discretion. . . . Inherent . . . in the concept of judicial discretion is the idea of choice and a determination between competing considerations. . . . When reviewing a trial court’s exercise of the legal discretion vested in it, our review is limited to whether the trial court correctly applied the law and reasonably could have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Vargas v. Doe, 96 Conn. App. 399, 408-409, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006).

“The question the court first must address when considering [a motion to proceed anonymously] is whether, given the presumption of openness in all judicial proceedings, the [party] has a substantial privacy right which outweighs the customary . . . presumption of openness in judicial proceedings. ... A [party’s] desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity. . . . The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party’s] identity. . . . There must be a strong social interest in concealing the identity of the [party].” (Citation omitted; internal quotation marks omitted.) Id., 410-11.

Here, the plaintiff contended that his file should be sealed or, in the alternative, that he should be allowed to proceed anonymously because of the sensitive nature of the fact that he is infected with HIV and because he is in danger of physical harm as a result of the defendant’s allegation that the plaintiff deliberately infected another inmate with HIV. The plaintiff did not, however, file his motion until approximately six weeks after he filed the complaint in this matter. Additionally, as the trial court noted, the plaintiffs HIV status was already in the public domain, having been made public by the plaintiffs filing numerous actions regarding his condition in which he has not sought to seal the files or to proceed anonymously. On that basis, it would strain the bounds of credulity to conclude that this particular plaintiff maintains a privacy interest in his HIV status. Accordingly, we cannot conclude that the court improperly denied the plaintiffs motion to seal his file or for permission to use a pseudonym.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court noted, in its decision, that the issue of immunity typically is raised by way of a special defense and determined either at trial or on summary judgment. The court indicated that, in this instance, it was addressing the issue of immunity on a motion to dismiss due to its desire to avoid interfering with the concurrent federal proceedings. Although the plaintiff challenges on appeal the court’s determination on the issue of comity, he does not indicate how the court’s ruling in that regard affects his substantive claims on appeal. For instance, the plaintiff does not claim that the court followed an improper procedure or improperly deprived him of an evidentiary hearing; nor does the plaintiff contend that the court’s examination of the defendant’s claim of absolute immunity was premature. Accordingly, because the issue of comity relates only to the timing of the trial court’s decision and its choice of procedure, but not to its conclusion regarding immunity, we focus only on whether the court correctly determined that the defendant enjoys absolute immunity in this case.


author: BEACH, J.

text:
    CHRISTOPHER WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 32965)
    Gruendel, Beach and Robinson, Js.
    Argued October 24, 2011
    officially released January 17, 2012

      Laljeebhai R. Patel, for the appellant (petitioner).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Sean P. McGuinness, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Christopher Williams, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that the court erred in rejecting the count of his petition in which he alleged ineffective assistance of prior habeas counsel. The judgment is affirmed.

In 1991, the petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a, attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1) and criminal possession of a pistol in violation of General Statutes (Rev. to 1991) § 53a-217 (a). The trial court sentenced the defendant to a total term of fifty years imprisonment.

On direct appeal, the petitioner claimed, inter alia, that the trial court had improperly permitted an alternate juror to repláce an excused juror after deliberations had begun, in violation of General Statutes (Rev. to 1993) § 54-82h (c). State v. Williams, 231 Conn. 235, 242-45, 645 A.2d 999 (1994), overruled in part by State v. Murray, 254 Conn. 472, 487, 757 A.2d 578 (2000) (en banc). The petitioner argued that “§ 54-82h (c) implements the Connecticut constitution’s guarantee that ‘[t]he right of trial by jury shall remain inviolate’; Conn. Const., art. I, § 19 ... . The state concede[d] that the trial court did not comply with § 54-82h (c) . . . [but] argue [d], however, that the noncompliance was harmless.” State v. Williams, supra, 242. In its decision, which was released in August, 1994, our Supreme Court concluded that in light of the state’s concession, it assumed, but did not decide, that the substitution of an alternate juror after jury deliberations had begun violated § 54-82h (c). Id., 242 n.10. The court further concluded that the violation did not implicate the defendant’s constitutional rights. Id., 242-44. The court affirmed the judgment of the trial court after determining that, under the circumstances of the case, the violation constituted harmless error. Id., 244-45.

Almost eight years after the court released its decision in the petitioner’s direct appeal, the petitioner, in 2002, filed with our Supreme Court a motion for permission to file a late motion for reconsideration, a motion for reconsideration and a motion to recall and amend. The petitioner sought, in his motions, to have the court reconsider and/or recall and amend its decision in his direct appeal, State v. Williams, supra, 231 Conn. 235, in light of the decision in State v. Murray, 254 Conn. 472, 757 A.2d 578 (2000) (en banc), which, at the time of the filing of the motions, had been released approximately two years prior. The court granted the petitioner’s motion to file a late motion for reconsideration, but, without further elaboration, denied the relief requested therein. The court denied the petitioner’s motion to recall and amend.

An issue in Murray was whether the trial court violated § 54-82h (c) by substituting an alternate juror for a regular juror after deliberations had begun and whether such violation was subject to harmless error analysis. Id., 474. The court expressly decided that the statute “requires the dismissal of alternates upon submission of the case to the jury, and prohibits the mid-deliberation substitution of alternates.” Id., 493. In support of the conclusion that § 54-82h (c), as previously enacted, had not permitted mid-deliberation substitution of jurors, the court referred to Public Acts 2000, No. 00-116, § 6, which became effective shortly after the decision in Murray was released. Id. That act amended § 54-82h (c) to permit the substitution of an alternate juror for a regular juror after deliberations had begun. Id., 494.

The court in Murray also determined that the trial court’s violation of § 54-82h (c) was not subject to harmless error analysis. Id., 497. Contrasting its decision to that in Williams, the Murray court stated: “[W]e held in Williams, that a violation of § 54-82h (c) was subject to harmless error analysis, and that, because the improper substitution of an alternate juror did not implicate the defendant’s constitutional right to a trial by jury, the defendant bore the burden of demonstrating the harmfulness of that substitution. ... In Williams, we did not examine the contours of § 54-82h (c), but, rather, assumed, without deciding, that the mid-deliberation substitution of an alternate violated the statute. In the present case, we have resolved the question left open by Williams, concluding that ... § 54-82h (c) did not permit the mid-deliberation substitution of an alternate. ... In light of the narrow question before us in Williams, we did not have occasion to address the legal status of a former alternate, and therefore, the conclusion that we drew therein did not take account of that factor. We are constrained to conclude that the inclusion of a nonjuror among the ultimate arbiters of innocence or guilt necessarily amounts to a [defect] in the structure of the trial mechanism that defies harmless error review.” (Citation omitted; internal quotation marks omitted.) Id., 497-98. The court concluded that reversal was automatic and overruled State v. Williams, supra, 231 Conn. 242, to the extent that the case held otherwise. State v. Murray, supra, 254 Conn. 499.

In November, 2009, the petitioner filed the operative amended petition for a writ of habeas corpus. The petitioner alleged that his prior habeas counsel rendered ineffective assistance by failing to claim that his counsel on direct appeal was ineffective for failing to raise in that appeal arguments that various statutes and state and federal constitutional rights were violated because the petitioner “was convicted by a ‘jury’ composed of eleven jurors and one nonjuror.”

The habeas court stated that although the petitioner may have been entitled to relief had his direct appeal been pending when Murray was announced, the petitioner was not entitled to habeas corpus relief. The court noted that the error that occurred during the petitioner’s criminal trial was not of constitutional magnitude, and because the Supreme Court declined to reconsider its decision in the petitioner’s direct appeal, in light of Murray, when given the opportunity, the habeas court did not need to “go into an analysis and discussion of’ whether Murray applied retroactively. The habeas court noted that it was bound by the Supreme Court’s decisions and concluded that any relief it could grant would improperly override the Supreme Court’s decision not to reconsider Williams in fight of Murray.

The petitioner claims that the habeas court erred in rejecting his claim of ineffective assistance of prior habeas counsel in counsel’s failure to raise in his previous petition a claim of ineffective assistance of appellate counsel on his direct appeal on the reasoning that it was bound by the Supreme Court’s decision not to reconsider the petitioner’s direct appeal in light of Murray. He states that appellate counsel provided ineffective assistance in that he “paid scant attention” to the structural construction of § 54-82h (c), as it then existed, and as a result, the court did not examine the “contours” of that statute, as it later did in Murray. He also argues that “in presenting the petitioner’s motions for reconsideration, [appellate counsel] failed to articulate adequately that the holding of Murray applied retroactively to the Williams proceeding.” We affirm the court’s decision on alternative grounds.

We first set forth our standard of review. “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Tuck v. Commissioner of Correction, 123 Conn. App. 189, 194, 1 A.3d 1111 (2010). “As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. Thus . . . the petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . .” Harris v. Commissioner of Correction, 108 Conn. App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008).

The petitioner cannot prevail on his claim that the court improperly rejected his claim that his habeas counsel was ineffective for failing to raise a claim regarding the ineffectiveness of appellate counsel. With respect to the direct appeal, the petitioner’s argument essentially is that his appellate counsel failed to raise the substance of the issue concerning whether mid-deliberation substitution of a juror violated § 54-82h (c), which issue underlies the operative habeas petition and which issue later proved successful in Murray. The petitioner cannot prevail because the premise behind his argument is faulty — the petitioner’s appellate counsel did, in fact, raise the issue on direct appeal. As stated in the Supreme Court opinion, his appellate counsel raised the issue of whether “the trial court improperly permitted substitution of a discharged alternate juror after deliberations had begun in violation of § 54-82h (c). ... He argue[d] that § 54-82h (c) implements the Connecticut constitution’s guarantee that ‘[t]he right of trial by jury shall remain inviolate’; Conn. Const., art. I, § 19; and that its violation constitutes per se reversible error.” State v. Williams, supra, 231 Conn. 242. In Williams, the state conceded a violation of § 54-82h (c), and thus the court assumed, without deciding, that substitution of an alternate juror after jury deliberations had begun violated § 54-82h (c). Id., 242 n.10. In Murray, the state did not concede a statutory violation. The court in Murray noted that it was resolving a question left open in Williams, and, pursuant to a detailed analysis, concluded that § 54-82h (c) did not permit the mid-deliberation substitution of an alternate and that substitution was not subject to a harmless error analysis. State v. Murray, supra, 254 Conn. 497-98.

Although the appellant’s arguments may have been cast slightly differently in Murray than they were in Williams, we do not conclude that the performance of appellate counsel in Williams fell below the required level of competency. The issue was novel and there may have been a variety of ways to address the issue. Further, although the majority in Murray seems to suggest that it considered a factor not accounted for in Williams, it concluded that Williams was overruled to the extent that it held in Williams that reversal was not automatic. Id., 498-99. The dissent in Murray stressed that the majority simply did overrule Williams. (McDonald, C. J., dissenting in part). Id., 499-500. In any event, the petitioner’s arguments in his direct appeal cannot be faulted to the extent that the Supreme Court simply modified its position. The petitioner’s appellate counsel properly identified the issue and presented plausible arguments. “The right to counsel is not the right to perfect representation. . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue.” (Citation omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 87 Conn. App. 560, 563, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005).

The petitioner cannot prevail on his argument that appellate counsel’s performance was deficient because in presenting the motion for reconsideration and the motion to recall and amend, appellate counsel failed to articulate that the holding of Murray applied retroactively to the petitioner’s direct appeal. In both his motion to reconsider and motion to recall and amend, it is clear that appellate counsel did seek to have the holding in Murray apply to the petitioner. The petitioner did not prevail because Murray did not apply retroactively to the petitioner’s direct appeal. “Although . . . judgments that are not by their terms limited to prospective application are presumed to apply retroactively . . . this general rule applies to cases that are pending and not to cases that have resulted in final judgments.” (Citation omitted.) Marone v. Waterbury, 244 Conn. 1, 10—11, 707 A.2d 725 (1998); see also Amodio v. Amodio, 56 Conn. App. 459, 472, 743 A.2d 1135, (“[d]ecisional law can apply retroactively only to cases that are pending”), cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000). By the time Murray was released on September 5, 2000, the petitioner’s direct appeal, which was released on August 23, 1994, was final.

The petitioner has not proven that appellate counsel was ineffective, and thus he cannot prevail on his claim that prior habeas counsel was ineffective for failing to raise a claim of ineffective assistance of appellate counsel. Accordingly, he cannot prevail on his claim that the habeas court erred in rejecting this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court dismissed the action pursuant to Practice Book § 23-29. Neither party has claimed that the form of judgment is erroneous.

       At the time of trial, General Statutes (Rev. to 1993) § 54-82h (c) provided: “Alternate jurors shall attend at all times upon trial of the cause. They shall be seated when the case is on trial with or near the jurors constituting the regular panel, with equal opportunity to see and hear all matters adduced in the trial of the case. If, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him and, if any juror is so excused or dies, the court may order that an alternate juror who is designated by lot to be drawn by the clerk shall become a part of the regular panel and the trial shall then proceed as though such juror had been a member of the regular panel from the time when it was begun. A juror who has been selected to serve as an alternate shall not be segregated from the regular panel except when the case is given to the regular panel for deliberation at which time he shall be dismissed from further service on said case.”

       The revision of § 54-82h (c) that was in effect at the time of Murray was the same as that in effect at the time of Williams. Following the release of the decision in Murray, Public Acts 2000, No. 00-116, took effect, thereby amending the statute to its current revision.

       Because the habeas court found no facts, but rather decided the case as a matter of law, our review is plenary. See Washington v. Commissioner of Correction, 287 Conn. 792, 799-800, 950 A.2d 1220 (2008) (question of law subject to plenary review).

       There are, however, exceptions to this general rule. See, e.g., State v. Brown, 160 Conn. 346, 351, 279 A.2d 554 (1971) (discussing retroactivity of newly enunciated constitutional principles). We need not examine such exceptions in this case because no constitutional rights are implicated. State v. Murray, supra, 254 Conn. 487 n.9 (issue of mechanisms providing for substitution of alternative jurors for regular jurors does not implicate constitutional rights).


text:
    STATE OF CONNECTICUT v. DAVID DESHAWN EUBANKS
    (AC 32603)
    Beach, Bishop and Mihalakos, Js.
    Argued October 14, 2011
    officially released January 17, 2012

      Brian Young, certified legal intern, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John P. Doyle, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, David DeShawn Eubanks, appeals from the judgment of conviction, rendered after a jury trial, of unlawful possession of a weapon in a motor vehicle in violation of General Statutes § 29-38 and of criminal violation of a protective order in violation of General Statutes § 53a-223 (a). The defendant claims that (1) there was insufficient evidence to sustain his conviction of unlawful possession of a weapon in a motor vehicle and (2) prosecutorial impropriety deprived him of a fair trial. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. At approximately 6 a.m. on November 22, 2008, Bennett Hines, an officer with the New Haven police department, was sitting in his patrol car. At that hour in the morning there was no vehicle traffic and no cars were parked by the side of the street. Hines heard several gunshots come from the New Haven green in the vicinity of Elm and College Streets, which location was approximately two blocks from where he was parked. When Hines looked in the general direction from which he heard the gunshots fired, he saw a dark colored sport utility vehicle (SUV) turn left from Elm Street onto Church Street. As the SUV turned onto Wall Street, Hines noticed that the tires of the SUV were “screeching . . . .” Based on the speed at which the SUV was traveling and the way it turned onto Wall Street, Hines believed that it was likely that the occupants of the vehicle had discharged the gunshots; as a result he began to follow the SUV. Hines reported the incident to dispatch and activated his cruiser’s lights and sirens.

The SUV traveled through the city and onto the entrance ramp to Interstate 91; it “would not stop.” Hines observed a “dark colored item come out of the passenger side window” and “a silver colored item come out of the driver side window.” Based on his training and experience, Hines believed the items thrown out of the windows to be guns. Officer Edward Dunford, who was following behind Hines’ cruiser, also saw “something dark colored come flying out of the passenger side of the vehicle . . . .”

Before entering the highway, the SUV stopped. Hines drew his gun and went to the driver’s side of the car. Dunford drew his gun and went, with other officers, to the passenger side of the vehicle. Tanika McCotter was operating the SUV, the defendant, her boyfriend, was in the front passenger seat and her brother, Jayeron McCotter, was in the rear passenger seat. The defendant initially disobeyed commands from the officers, stepped over the guardrail and “lookfed] around him.” The defendant eventually complied with orders to lie on the ground and was arrested. Tanika McCotter and Jayeron McCotter also were arrested. The officers then searched the area where they believed the items were tossed from the windows of the SUV. Using a thermal imager, Sergeant Peter Moller found a semiautomatic .45 caliber black Ruger handgun, with the safety off and its magazine empty, lying on top of a pile of leaves. No other weapon was found.

Detective Joshua Armistead investigated the area of College and Elm Streets where the gunshots reportedly had been fired. Armistead found eight .40 caliber shell casings spread out over several car lengths. He stated that the casings “looked like they were fired from somebody moving on Elm Street.” Lieutenant Joseph Rainone, a firearms examiner with the Waterbury police department, determined that the Ruger handgun was operable. He also determined that although the eight shell casings had similar class characteristics, he was unable to conclude whether they had been fired from the same firearm. He was able to determine, however, that the shell casings did not come from the Ruger handgun.

The defendant was charged with one count of carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a), one count of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), one count of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), one count of unlawful possession of a weapon in a motor vehicle in violation of § 29-38 and one count of criminal violation of a protective order in violation of § 53a-223 (a).

At trial, the state sought to introduce the testimony of Tanika McCotter from a prior court hearing on the ground that she was unavailable to testify at trial. The defendant objected to the admission of the prior testimony on the ground that the state did not exercise due diligence in attempting to locate her and that he did not have the opportunity at the prior hearing effectively and adequately to cross-examine the witness. The corut determined that the state had proved that Tanika McCotter was unavailable to testify and overruled the defendant’s objections to the admission of her prior testimony. Tanika McCotter’s prior testimony was redacted, as agreed upon by the parties, and was submitted to the jury in transcript form as a full exhibit. Its admissibility is not an issue on appeal.

In her Stevens testimony, Tanika McCotter testified to the following. She was driving the SUV at the time in question while the defendant was seated in the passenger seat and Jayeron McCotter, her brother, was seated in the back passenger seat. She heard gunshots, “kind of freaked out” and continued to drive until she noticed, as she was about to drive onto the highway, police cruisers following the SUV. She was arrested and taken to a police station. She stated that although she heard gunshots, she never saw a gun on the day in question. While at the police station, she told the detectives, in a recorded statement, that both of the passengers — Jayeron McCotter and the defendant — were shooting guns from the SUV. She initially told the police that she did not see a gun, but that after “they pressured for like ever” and told her she could lose her children if she did not cooperate, she told them that both passengers had fired guns. In response to a question of whether her statement to the police was truthful, she testified: “No, I don’t know where the shots came from.” She later stated, however, that she was being truthful to the police officers during the interview.

At the conclusion of the jury trial, the defendant was found guilty of unlawful possession of a weapon in a motor vehicle and of criminal violation of a protective order. He was found not guilty on all other counts. The court imposed a total effective sentence of seven years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant argues that there was insufficient evidence at trial to sustain his conviction of unlawful possession of a weapon in a motor vehicle. We are not persuaded.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Arthurs, 121 Conn. App. 520, 523-24, 997 A.2d 568 (2010).

“[I]n a prosecution for a violation of § 29-38, the state must prove the following elements: (1) that the defendant owned, operated or occupied the vehicle; (2) that he had a weapon in the vehicle; (3) that he knew the weapon was in the vehicle; and (4) that he had no permit or registration for the weapon.” State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989).

The defendant contests the element of knowing possession. He argues that Tanika McCotter’s recorded statement to the police, which asserted that both of the passengers were shooting guns from the SUV, was not admitted as substantive evidence, and, without that statement, the evidence was insufficient to support his conviction.

Our review of the record indicates that the defendant never specifically objected to the admission of Tanika McCotter’s Stevens testimony — including her statements to the police — as substantive evidence, and that it was, in fact, admitted as substantive evidence. He objected, as noted previously, to the introduction of the transcript on other grounds. When the redacted transcript of Tanika McCotter’s Stevens testimony was admitted into evidence as a full exhibit, the defendant did not object on the ground that any hearsay statements contained within the Stevens testimony should not be admitted for substantive purposes.

Following the admission of the prior testimony into evidence, the state rested. The defendant made amotion for a judgment of acquittal on the ground that the state had not met its burden of proof with respect to any of the counts against him. The defendant specifically argued that there was no proof that he was carrying a firearm on the day in question. The state argued, inter alia, that according to Tanika McCotter’s Stevens testimony, the two individuals in the SUV discharged firearms. The defendant did not question or object to the state’s use of this evidence for substantive purposes. The court denied the defendant’s motion, and, at the close of evidence, the defendant renewed his motion for a judgment of acquittal, arguing that the evidence did not show beyond a reasonable doubt that the defendant possessed a firearm. The state indicated that it had the “[s]ame argument” as before, and the court denied the motion. The defendant again did not object to the substantive use of or otherwise seek to limit the use of Tanika McCotter’s Stevens testimony, including that part in which she testified as to her statement to the police.

During closing argument, the defendant referred to Tanika McCotter’s out-of-court statements to the police as substantive evidence. He urged the jury to read through the transcript of her testimony and argued: “Obviously, it’s the state’s contention . . . she said that they both had guns and fired. You’re going to read that. But guess what, you’re going to read a whole lot more than that.” (Emphasis added.) During its closing arguments, the state used Tanika McCotter’s out-of-court statements to the police substantively, and the defendant did not object.

The court instructed the jury that the transcript of Tanika McCotter’s Stevens testimony “is admitted as substantive evidence of the materials contained within the transcript. You can use the statements contained within a transcript for any purpose that you see fit. . . . [Y]ou are permitted to use this transcript as proof of the defendant’s guilt if you so chose.” No objections were taken to the court’s charge.

Based on our review of the record, we conclude that the entire redacted version of Tanika McCotter’s Stevens testimony — including the out-of-court statements she made to the police — was admitted as substantive evidence at trial. Therefore, when reviewing the defendant’s sufficiency claim, we must take into consideration as substantive evidence Tanika McCotter’s out-of-court statements to the police. “In cases in which hearsay evidence has been admitted without objection, we have held that the trier of fact could have relied on documents that were hearsay in proof of the matters stated therein, for whatever they were worth on their face. ... If [inadmissible] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. . . . [Therefore . . . appellate review of the sufficiency of the evidence . . . properly includes hearsay evidence even if such evidence was admitted despite a purportedly valid objection. Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error.” (Citations omitted; internal quotation marks omitted.) State v. Carey, 228 Conn. 487, 495-96, 636 A.2d 840 (1994); see also State v. Smith, 73 Conn. App. 173, 180, 807 A.2d 500 (“a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial”), cert. denied, 262 Conn. 923, 812 A.2d 865 (2002); State v. Rodriguez, 39 Conn. App. 579, 592-93, 665 A.2d 1357 (1995) (reviewing all evidence in addressing sufficiency of evidence claim, including improperly admitted evidence, after ordering remand because trial court failed to suppress evidence), rev’d on other grounds, 239 Conn. 235, 684 A.2d 1165 (1996).

The jury was free to believe the portion of Tanika McCotter’s Stevens testimony in which she acknowledged telling the police that both of the passengers in the SUV were firing guns. See State v. Goriss, 108 Conn. App. 264, 270, 947 A.2d 1041 (“the jury, as the sole finder of fact, is free to believe all, none or some of a witness’ testimony”), cert. denied, 289 Conn. 904, 957 A.2d 873 (2008); State v. Arthurs, supra, 121 Conn. App. 523-24 (when reviewing sufficiency claims, evidence viewed in light most favorable to sustaining verdict). Her testimony would permit a reasonable jury to conclude that, combined with the corroborating testimony of police officers regarding gunshots fired, the location and direction of the SUV and the spent .40 caliber shell casings, the defendant was in actual possession of a weapon in a motor vehicle on the day in question. In sum, when all the corroborating evidence is viewed in light of Tanika McCotter’s Stevens testimony, there was sufficient evidence from which the jury reasonably could have concluded that the defendant was in actual possession of a gun in a motor vehicle on the day in question.

II

The defendant next claims that prosecutorial impropriety during the state’s closing argument deprived him of a fair trial. We are not persuaded.

“We begin our analysis by setting forth the applicable law regarding claims of prosecutorial impropriety. In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry.” (Citations omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978 (2007).

“A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. . . . Moreover, when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury.” (Citations omitted.) State v. Singh, 259 Conn. 693, 718, 793 A.2d 226 (2002).

The defendant argues that “the prosecutor’s frequent and repetitive use of facts not admitted into evidence (reciting information from Tanika McCotter’s recorded statement to [the] police, which was never entered as substantive evidence) constituted prosecutorial impropriety.”

During closing arguments, the prosecutor frequently referred to Tanika McCotter’s out-of-court statement to police that she saw the defendant use a gun on the day in question as her “testimony.” While we agree with the defendant that a prosecutor must confine himself or herself to evidence in the record; see State v. Singh, supra, 259 Conn. 717; we do not agree that the prosecutor in this case referred to evidence that was not in the record. As explained in more detail in part I of this opinion, Tanika McCotter’s out-of-court statements to the police during her Stevens testimony were admitted for substantive purposes without objection. “Proffered evidence will be admitted unless opposing counsel objects and obtains a court ruling.” C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 1.24.1, p. 62. The prosecutor was free, during closing arguments, to comment on the evidence admitted at trial for substantive purposes. “Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them.” (Internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 58, 612 A.2d 755 (1992).

The defendant also argues that the prosecutor improperly referred to facts that were not in evidence when he attributed the following phrase to Tanika McCotter, which she did not utter in her testimony: “Yes, that is what happened that day.” To provide context for that statement, the prosecutor, when discussing the statements made by Tanika McCotter to the police, commented: “But, she did indicate, and she did, answer the questions by the state there, [y]es, that’s what I told the police that day. Yes, that is what happened that day. ” (Emphasis added.) The state then proceeded to describe its theory of the events of the day in question.

It is unclear from the cold transcript whether the prosecutor was attributing the words: “Yes, that is what happened that day,” literally to Tanika McCotter or whether the prosecutor used that phrase for some other purpose. The prosecutor could have been paraphrasing Tanika McCotter’s testimony in which she answered affirmatively when asked by the prosecutor whether she was “being truthful to the police officers” when making her statements to them. Even if the prosecutor’s statement was not an entirely accurate recitation of her Stevens testimony, it was a rhetorical deviation hardly rising to the level of prosecutorial impropriety, and if it were improper, the defendant was not deprived of a fair trial under State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), because it was not severe, occurred only once and the jurors had, as a full exhibit, Tanika McCotter’s Stevens testimony with them in the jury room.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rainone testified that although there are methods through which .40 caliber bullets can be fired in a .45 caliber gun, in this particular case that did not occur.

       The prior hearing was held pursuant to State v. Stevens, 278 Conn. 1, 895 A.2d 771 (2006), for purposes of determining whether the defendant had violated the conditions of his plea agreement on prior charges, and occurred on multiple days. For clarity, we refer to McCotter’s prior testimony as her “Stevens testimony.”

       The state’s theory of the case regarding the knowledge element was knowledge by actual possession. At oral argument before this court, the state expressly disavowed any reliance on constructive possession. Therefore, we will not consider, for purposes of this claim, a theory of knowledge by constructive possession, and will consider only actual possession.

       The defendant argues that in this portion of the court’s charge, the court apprised the jury that it could use Tanika McCotter’s prior in-court testimony as substantive evidence. He argues that the court never instructed that her out-of-court statements to the police were likewise admissible as substantive evidence. He instead states that, in the following instruction, the court told the jury to use the out-of-court statements for impeachment purposes: “Any conduct or statement of a witness which you find inconsistent with any other conduct or statement of that witness you may consider in weighing the credibility of that witness.” This general instruction regarding credibility did not apprise the jury that it was restricted to Tanika McCotter’s prior inconsistent statements for impeachment purposes only. The court did give limiting instructions on other matters directly prior to stating that Tanika McCotter’s testimony could be used for substantive purposes. It did not give a limiting instruction regarding the use of her prior testimony.

       A charging conference occurred off the record, and both parties agreed that neither sought to have any portion of it put on the record.

       The defendant argues on appeal that Tanika McCotter’s hearsay statements to police were not admitted for substantive purposes. This claim is contradicted by the record from which it is clear that all of her Stevens testimony was admitted for substantive purposes. The defendant does not now make any claim of evidentiary error regarding the admission of the statements for substantive purposes. treated substantively by the finder of fact, if not successfully objected to or at least limited.

       A meticulous parsing of her prior testimony could lead to the conclusion that she actually testified only that she told the police that both fired guns, not that both actually fired guns. Thus, her testimony would not necessarily justify the finding that she testified that both fired guns.
      We reject this line of reasoning. First, such a grammatical parsing would render most hearsay problems meaningless — most such objections would logically relate to relevance. Second, all participants at trial, as noted previously, clearly treated her recollection of her statement to police substantively, and no remonstrance was raised. Third, and perhaps most compelling, people in common parlance are likely to equate the statement, “I said ‘X’,” with the statement, “ ‘X’ is true.” Thus, the jury was free to determine whether she was telling the truth when she told the police that both passengers fired guns or whether she was telling the truth during her Stevens testimony when she claimed that she never saw a gun on the day in question and did not see either passenger shoot a gun.
      The context of this case is, of course, different from the context of most hearsay problems. Frequently, when one side attempts to introduce a hearsay statement, the other party objects because he or she assumes it will be

       Although the prosecutor’s use of the term “testimony” technically was inaccurate, in the circumstances of this case, and, in light of the discussion in part I of this opinion, it was harmless.