author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. HENRY G. ROBINSON
    (AC 31023)
    Gruendel, Beach and Sullivan, Js.

      Argued November 19, 2010
    officially released March 1, 2011

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

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Donna Mambrino, senior assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Henry G. Robinson, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), threatening in the second degree in violation of General Statutes § 53a-62 (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that (1) the state presented insufficient evidence that he completed a substantial step toward assaulting the contemplated victim and (2) certain comments made by the prosecutor during closing arguments were improper and deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of October 21,2006, the defendant and his wife, the victim in this case, Brenda Allen, began arguing at their home. Allen disapproved of the defendant drinking alcohol, and she believed he had been drinking that day. The argument escalated over the course of the evening, culminating with the defendant saying that he would “shut [Allen’s] mouth up forever . . . .” Believing that he would kill her, Allen left the bedroom where they were arguing. The defendant followed her out of the bedroom and he went into the kitchen and unsuccessfully attempted to get a knife out of a butcher block in which knives were stored. Allen then saw him begin to open the drawer where loose knives were kept before she ran out of the house.

Once out of the house, Allen went to her neighbors’ house and contacted her daughter, Turhanda Major. Major and her boyfriend, Kevin Coleman, picked up Allen and drove to a gasoline station. Allen then remembered that she needed to retrieve her medication, so Major and Coleman accompanied her back to her home. They entered the home, a split-level raised ranch, and Allen went down a set of stairs into the family room to get her purse from a closet, while Major and Coleman waited on the landing by the door. Major heard the defendant say: “I’m going to . . . kill her,” and then saw him appear at the top of the steps with a knife in one hand. Coleman yelled that the defendant had a knife, and Allen ran up the stairs to get to the door. When she got to the landing, she saw the defendant start down the stairs toward her, knife raised, before she again ran from the home. As Coleman pulled Allen and Major from the home, he turned around to see the defendant swing the knife.

After leaving the home, Allen, Major and Coleman went outside and called 911. The defendant entered his garage, turned a light on and raised the garage door. When the police arrived a short time later, the defendant was still in the garage. The defendant refused to comply with the responding officers’ requests that he show his hands and he down on the ground, and instead shouted profanities and became increasingly agitated. The police sent their dog in, and, although the defendant was striking it, the dog held the defendant until the police could handcuff him. Upon searching the defendant, the police did not find a knife on him or in the garage. When they searched the house, they found a three inch knife on the kitchen table.

The defendant was charged with one count of attempt to commit assault in the first degree, threatening in the second degree and interfering with an officer, as well as two counts of reckless endangerment in the first degree. The jury found him not guilty on the reckless endangerment charges but found him guilty on all of the other charges. The court accepted the verdict and sentenced him to a total effective term of twelve years imprisonment. This appeal followed.

I

The defendant first claims that the state failed to present sufficient evidence that he committed a substantial step toward assaulting Allen. Specifically, the defendant claims that the state failed to prove physical proximity between him and Allen or that he actually used the knife presented by the state. The defendant also argues that because the witnesses had differing accounts as to his actions with the knife, the state’s evidence was insufficient to prove a substantial step. We disagree.

The defendant’s claim is governed by a well established two part test. “In reviewing the sufficiency of the evidence to support a criminal conviction we 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. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540-41, 975 A.2d 1 (2009).

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . 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 [trier’s] verdict of guilty. . . . [Finally] in responding to a claim of evidentiary insufficiency ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier’s] verdict.” (Citations omitted; internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 152-53, 976 A.2d 678 (2009).

“A conviction of attempt to commit assault in the first degree, in violation of §§ 53a-49 (a) (2) and 53a-59 (a) (1), requires proof of intentional conduct constituting a substantial step toward intentionally causing the victim serious physical injury by means of a dangerous instrument.” State v. Brooks, 88 Conn. App. 204, 211-12, 868 A.2d 778, cert, denied, 273 Conn. 933, 873 A. 2d 1001 (2005).

“Under ... § 53a-49 (a), [a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he ... (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. . . . Essentially, an attempt under § 53a-49 (a) is an act or omission done with the intent to commit some other crime. The rationale is that while a defendant may have failed in his purpose, his conduct is, however, criminally culpable, and if carried far enough along causes a sufficient risk of harm to be treated as a crime in and of itself.” (Internal quotation marks omitted.) State v. Cox, 293 Conn. 234, 240-41, 977 A.2d 614 (2009).

“To constitute a substantial step, the conduct must be strongly corroborative of the actor’s criminal purpose. . . . This standard focuses on what the actor has already done and not what remains to be done. . . . The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime. . . . What constitutes a substantial step in any given case is a question of fact.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 114 Conn. App. 738, 747, 971 A.2d 63, cert, denied, 293 Conn. 901, 975 A.2d 1277 (2009).

A

The defendant, citing State v. Andrews, supra, 114 Conn. App. 738, argues first that the state could not show that he came into close physical proximity with Allen. By contrast, in Andrews, the defendant drove an automobile toward a police officer and, although the automobile did not hit the officer, it made contact with the officer’s service weapon. Id., 746. In that case, this court held that the evidence was sufficient to prove a substantial step. Id., 747-48.

The defendant, however, misconstrues the import of physical proximity in order to show a substantial step toward the commission of a crime. Nothing in our case law suggests that an assailant must obtain a particular physical proximity to an intended victim to have taken a substantial step toward committing an assault. Indeed, § 53a-49 (b) specifies several types of conduct that may constitute a substantial step under § 53a-49 (a) (2), most of which do not require any physical proximity between the defendant and the victim, such as lying in wait and following the contemplated victim.

In the present case, Allen, Major and Coleman all testified that the defendant held a knife and that he was advancing toward Allen. Though the defendant is correct that the verbal threats alone may not have been sufficient to show a substantial step, the threats, in connection with holding the knife and advancing toward Allen, are sufficient evidence from which the jury reasonably could have concluded beyond a reasonable doubt that the defendant took a substantial step toward the commission of assault in the first degree.

B

The defendant next argues that the state failed to prove that the knife that it offered as the weapon used in the attempted assault was the actual knife wielded by the defendant. Thus, the defendant claims that the state failed to prove the deadly weapon element of assault in the first degree. We disagree.

The defendant argues that the only evidence authenticating the state’s claim that the knife in evidence was the same knife used in the assault came from Allen’s testimony that the knife that the police found was the only one missing from the kitchen drawer. Even if we agree, however, that the state failed to prove that the knife it offered was the same knife wielded during the commission of the attempted assault, we cannot conclude that the state failed thereby to prove that the defendant used a deadly weapon.

The witnesses described the knife that the defendant used. Coleman testified that the blade of the knife was two and one-half to three inches long. The defendant has offered no argument in law or logic that a three inch knife cannot be a deadly weapon. Even if the state failed to introduce any knife at all, the jury reasonably could have concluded from Coleman’s testimony that the knife the defendant used was a deadly weapon. See, e.g., State v. Fleming, 111 Conn. App. 337, 347-48, 958 A.2d 1271 (2008) (evidence sufficient to prove firearm had less than twelve inch barrel despite weapon not having been introduced into evidence), cert, denied, 290 Conn. 903, 962 A.2d 794 (2009).

c

The defendant’s final argument concerning the sufficiency of the evidence pertains to several inconsistencies in the testimony of the three eyewitnesses. The defendant asserts that because the state did not offer any evidence to resolve these inconsistencies, it failed to prove that he committed an attempted assault. We disagree.

The inconsistencies highlighted by the defendant concern where he was standing in relation to Allen as he was holding the knife. Allen testified that the defendant was leaning over the railing as he came down the stairs, descending about two to three stairs before she exited the house. Major testified that he came down three stairs, and Coleman testified that he “charged” all the way down the stairs just as they fled through the front door. The state agrees that there is some inconsistency in the testimony of the three witnesses but argues that it was the province of the jury to determine the credibility of the witnesses. The jury could choose which evidence to credit in making its findings as to the sequence of events leading to the witnesses’ exit from the house. Furthermore, nothing in the testimony of the witnesses contradicted the basic facts, as highlighted in part I A of this opinion, that the defendant was holding a knife and advancing toward Allen after having threatened her life. It was reasonable for the jury to conclude that not only did the defendant make threats but that he put his words into action by picking up a knife and moving toward Allen, thereby taking a substantial step toward the commission of the assault.

II

The second claim raised by the defendant concerns statements made by the state during closing arguments that the defendant claims were improper and deprived him of his right to a fair trial. The defendant cites two comments as improper: (1) the state’s argument as to what could have happened had the defendant succeeded in attacking Allen with the knife and (2) the state’s argument as to the significance of the disparity in what the witnesses reported to the police and their testimony at trial. The defendant argues that in making these comments, the state improperly appealed to the emotions of the jury, discussed facts that were not in evidence and improperly bolstered the credibility of the witnesses. We disagree.

“Before addressing the merits of the defendant’s argument, we begin with the applicable legal principles and standard of review. [A] claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987). . . . [T]he touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in . . . Williams .... In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. . . .

“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based [on] the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. . . .

“If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the six factors enumerated in State v. Williams, supra, 204 Conn. 540, whether the entire trial was so infected with unfairness so as to deprive the defendant of his due process right to a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Weaving, 125 Conn. App. 41, 46-47, 6 A.3d 203 (2010), cert, denied, 299 Conn. 929, 12 A.3d 569 (2011). Thus, if the statements were not improper, we do not need to consider the Williams factors.

A

The defendant first claims that the prosecutor made improper comments to appeal to the emotions of the jury and commented on facts that were not in evidence when she argued that “[h]ad that knife sunk into Brenda’s torso, front or back, her neck, her arm, her leg, it could have hit any of her vital organs, and it could have hit a major artery. And absolutely it could have caused serious physical injury. . . . [I]f you take that blade and you ram it into somebody’s torso, front or back, their neck, their arms, their legs, hit a vital organ, hit a major artery, it’s going to cause some serious damage. If that knife is used to slash somebody’s face, serious disfigurement is going to result.”

It is undisputed that a prosecutor may not improperly appeal to the emotions of the jury; State v. Long, 293 Conn. 31, 54, 975 A.2d 660 (2009); but it is also well established that “as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Betancourt, 106 Conn. App. 627, 638-39, 942 A.2d 557, cert, denied, 287 Conn. 910, 950 A.2d 1285 (2008).

The prosecutor’s comments concerning the knife and its possible impact, had the defendant used it, were not improper. The argument asked the jury to draw a reasonable inference from the evidence as to what might have happened had the defendant struck the victim. The state had the burden of proving that the defendant intended to commit serious physical injury, so asking the jury to reasonably infer, based on the evidence, that he would have been successful in doing so with the knife that he was alleged to have used is a reasonable inference based on the evidence.

The defendant also claims that the state relied on extraneous facts that were not in evidence when it referred to Allen leaving the house “for good.” The defendant argues that the statement implies that the marriage had ended. We, however, agree with the state’s argument that in the context in which the statement was made, wherein the prosecutor described the multiple times that evening that Allen had left the home to walk her dog and then returned, the prosecutor contrasted the last time Allen left the home that night, when she did not intend to return as she previously had. These comments accurately reflected the testimony Allen gave at trial and were, therefore, not improper.

B

The defendant finally claims that the prosecutor improperly bolstered the credibility of the state’s witnesses when she claimed that it was “no big deal” that the testimony by the eyewitnesses did not match the statements they made to the police on the night of the incident. The state argues that the prosecutor’s comments were proper rebuttal. We agree with the state.

In closing arguments, counsel for the defendant noted that the testimony at trial of the three eyewitnesses varied in some respects from the statements that they made to the police immediately following the incident. On rebuttal, the prosecutor stated that defense “counsel wants you to think that there’s something sinister in the actions and the words of the witnesses . . . when they talk to the officer and when they get here on the [witness] stand and testify. . . . These are regular people who have just been traumatized. . . . They’re just telling you what they know [about] what happened. It’s no big deal. There’s nothing sinister about this. It’s absolutely, perfectly logical that when the state talks to their witnesses in preparation of a case, that the state asks them more details, and more details come out.” Furthermore, the defendant noted that the police reports contained certain omissions, and the state responded by arguing that “[tjhere’s nothing unusual about the omissions ... of the police officers in their police reports. It’s perfectly logical for a police officer not to write every single detail.”

It is well established that a prosecutor “is not permitted to vouch personally for the truth or veracity of the state’s witnesses. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Put another way, the prosecutor’s opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state’s] judgment rather than its own view of the evidence. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Citation omitted; internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 815, 981 A.2d 1030 (2009), cert, denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010). Yet, a prosecutor may properly comment on credibility issues, particularly in response to issues raised by the defendant. State v. Long, supra, 293 Conn. 41-42.

The defendant argues that the present case is similar to State v. Alexander, 254 Conn. 290, 755 A.2d 868 (2000), in which the prosecutor improperly commented on the credibility of the child witness alleged to have been a victim of sexual abuse. In Alexander, “the prosecutor expressed her own opinion, both directly and indirectly, as to the credibility of the victim’s testimony. The prosecutor implied that the victim testified truthfully because she is young and therefore honest. The summation further contended that no child would possibly make up a story regarding sexual abuse.” Id., 305.

By contrast to Alexander, in State v. Long, supra, 293 Conn. 37-42, the court analyzed the defendant’s claim that the state improperly commented on the credibility of the teenaged victim when the prosecutor discussed apparent discrepancies between the victim’s statements to the police and her testimony at trial. The court held that the challenged statements “clearly were intended to rebut defense counsel’s suggestion, made during cross-examination of [the victim], that [the victim’s] testimony was not credible because she did not recall various details that she had provided in previous statements to the police.” Id., 39-40. The prosecutor called on the common sense of the jurors by pointing out that a teenager, and particularly one who had undergone trauma, might not remember details from one and one-half years prior. The prosecutor asked the jury: “What would you expect, to hear every specific detail, or some things that have lapsed out of your memoiy?” (Internal quotation marks omitted.) Id., 40-41. The court concluded that “[t]he prosecutor merely was appealing to the jurors’ common sense in offering an alternative explanation for the variations between [the victim’s] recollection of the alleged assault . . . ten days after it allegedly occurred, and her recollection at trial . . . nearly one and one-half years later. The prosecutor’s remarks suggested that the jurors should rely on their common sense and infer from these inconsistencies not that [the victim] had contrived the allegations but, rather, that it is normal for anyone experiencing a traumatic event . . . to be unsure about certain, less important details.” Id., 42.

Long is dispositive of the present case because, unlike in Alexander, the prosecutor in this case did not express her personal opinion as to the credibility of the witnesses. Rather, she simply asked the jury to draw on its common sense regarding the likelihood that over time, one’s memories of events might change and that slight discrepancies in a story would naturally occur. That was one reasonable inference that the jury could have made about that discrepancy; indeed, it could have chosen to believe the defendant’s reasoning for the discrepancy and discredited the testimony of the eyewitnesses. Further, as in Long, the prosecutor discussed the issue of credibility directly in response to the various challenges raised by the defendant concerning discrepancies in the witnesses’ testimony and earlier statements to the police.

The defendant has failed to show that the state offered insufficient evidence to support a conviction of attempt to commit assault in the first degree, nor has the defendant shown that the prosecutor made any improper statements at trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       In part I of this opinion, the defendant argued that the state failed to prove that the knife offered into evidence had been the one he actually used. As we concluded, even if the state had not introduced the actual knife, the description of the knife given by Coleman constituted sufficient evidence from which the jury could have concluded that the defendant used a deadly weapon.

       The challenged statements included the following: “[A] delay in reporting or inconsistencies has nothing to do with whether or not the victim is lying or telling the truth. . . . Just because we have a twelve year old victim, who was eight at the time the incident occurred, recalling what happened to her when she was eight and nine . . . doesn’t mean we can’t depend on her word. Because we should depend on her word. . . . [The victim] knew when she came to court she had to tell the truth. And that’s what she did.” (Emphasis in original; internal quotation marks omitted.) State v. Alexander, supra, 254 Conn. 300-301.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    KJC REAL ESTATE DEVELOPMENT, LLC v. ZONING BOARD OF APPEALS OF THE TOWN OF WILTON
    (AC 31883)
    Beach, Robinson and West, Js.

      Argued December 8, 2010
    officially released March 1, 2011

      Robert A. Fuller, for the appellant (plaintiff).

      Patricia C. Sullivan, with whom was Barbara M. Schellenberg, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, KJC Real Estate Development, LLC, appeals from the judgment of the Superior Court dismissing its appeal from the decision of the defendant zoning board of appeals of the town of Wilton (board). The board had affirmed a decision by the zoning enforcement officer (officer), who had denied the plaintiffs request for zoning permits to build and to divide the plaintiffs parcel of property into two lots. The plaintiff claims that the court erred in affirming the decision of the board. We affirm the judgment of the trial court.

The following facts and procedural history are relevant. The plaintiff is the owner of a parcel of land the deed to which is recorded in the Wilton land records (parcel). The parcel, which consists of 4.283 acres, is bounded on the east side by Old Huckleberry Hill Road. The plaintiff had a map prepared, dated November 17, 2005, which divided the parcel into two smaller lots, both of which abut Old Huckleberry Hill Road. It is undisputed that Old Huckleberry Hill Road was a public highway in the town of Wilton until 1968, when it was statutorily discontinued pursuant to General Statutes § 13a-49.

In October, 2007, the plaintiff filed a request with the officer for recognition that the division of the parcel into two lots did not require subdivision approval because the division was a “first cut,” which was not a subdivision as defined by General Statutes § 8-18. The plaintiff also requested that the officer recognize that the lots complied with the Wilton zoning regulations (regulations). The officer denied the plaintiffs request for zoning permits and the division of the property into two lots because, inter alia, the parcel did not have frontage on a public street.

The plaintiff filed an appeal from the officer’s decision to the board. Following a public hearing, the board denied the appeal and upheld the decision of the officer on the ground that the parcel did not have frontage on a public street, and, therefore, failed to comply with the regulations. The plaintiff thereafter appealed to the Superior Court from the decision of the board. The court dismissed the plaintiffs appeal, concluding that the board’s determination that the parcel did not have frontage on a public street, as defined in the regulations, was not unreasonable, arbitrary or illegal. The plaintiff filed the present appeal after this court granted its petition for certification to appeal.

I

The plaintiff claims that the court erred in determining that under the regulations, a lot must have frontage on a public street before zoning permits could be issued under the regulations. We disagree.

We first set forth our standard of review. “Because the interpretation of . . . regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes.” (Citation omitted; internal quotation marks omitted.) Jewett City Savings Bank v. Franklin, 280 Conn. 274, 278, 907 A.2d 67 (2006).

The relevant town regulations are as follows. Section 29-4.B (5) of the regulations provides: “No permit shall be issued for any building unless the lot upon which such building is to be built shall have the frontage required by these [regulations on a street as defined herein.” “Frontage” is defined in § 29-2.B (60) of the regulations as: “The length measured along that side or sides of a lot abutting on a public street.” The term “public” is defined in § 29-2.B (119) of the regulations as: “Belonging, or available, to all the people.” Section 29-2.B (152) of the regulations defines “street” as: “An existing state or town highway, or a way shown upon a subdivision plat approved by the Planning and Zoning Commission, as provided by law, or a way shown on a plat duly filed and recorded in the office of the Town Clerk prior to July 6, 1951, but not including private driveways or rights-of-way.”

The court first determined that Old Huckleberry Hill Road meets the definition of the term “street” as set forth in § 29-2.B (152). After concluding that Old Huckleberry Hill Road was a street, the court then examined whether Old Huckleberry Hill Road constituted a public street. The court concluded that Old Huckleberry Hill Road was not a public street, and, as a result, the parcel did not satisfy the requirement of § 29-4.B (5) that it have “frontage,” because “frontage” is defined in terms of the length of the lot abutting a “public street.”

The plaintiff contends that the court was correct in its determination that Old Huckleberry Hill Road meets the definition of the term “street” as set forth in § 29-2.B (152), and the defendant does not challenge this determination on appeal. The plaintiff claims, however, that the court’s determination that Old Huckleberry Hill Road was a street should have ended the inquiry. The plaintiff argues that the court erred in determining that under the regulations, a lot must have frontage on a public street before a permit could be issued under § 29-4.B (5). The plaintiff argues that the term “frontage,” as defined in § 29-2.B (60), concerns merely where frontage is measured and does not impose a requirement that a lot abut a public street. The plaintiff argues that to read the regulations to require that a parcel abut a public street before a permit can be issued under § 29-4.B (5) negates the definition of “street,” as the term is defined in § 29-2.B (152), which includes certain private ways.

It is clear from the plain language of the regulations, that in order for a permit to be issued under § 29-4.B (5), a parcel must abut a public street. Section 29-4.B (5) provides that no permit for any building will be issued unless the lot on which the building is to be placed has “the frontage required by these [regulations on a street as defined herein.” (Emphasis added.) Thus, according to this regulation, for a permit to be issued, the subject lot must, inter alia, have frontage. Under § 29-2.B (60), “frontage” consists of the sides of a lot “abutting on a public street.” (Emphasis added.) The term “public” is defined in § 29-2.B (119) as “[belonging, or available, to all the people.” Thus, when we interpret § 29-2.B (60) so that no clause is superfluous; see A. Aiudi & Sons, LLC v. Planning & Zoning Commission, 72 Conn. App. 502, 512, 806 A.2d 77 (2002), aff d, 267 Conn. 192, 837 A.2d 748 (2004); it is clear that in order for a lot to have “frontage,” it must abut a street that is public.

Contrary to the plaintiff’s argument, reading the regulations to require that a parcel abut a public street before a permit can be issued under § 29-4.B (5), does not contradict the definition of “street.” Section 29-2.B (152) defines “street” as: “An existing state or town highway, or a way shown upon a subdivision plat approved by the Planning and Zoning Commission, as provided by law, or a way shown on a plat duly filed and recorded in the office of the Town Clerk prior to July 6, 1951, but not including private driveways or rights-of-way.” Thus, under this regulatory definition, a street can be public or, in certain circumstances, private. It is not inconsistent with this definition of “street” as being public or private to define “frontage” as abutting a street that is public. The town of Wilton was free to impose the requirement that a lot have frontage on a public street before a permit can be issued under § 29-4.B (5), and it is not inconsistent with the definition of “street” to do so.

II

The plaintiff also makes an argument based on General Statutes § 13a-55. The plaintiff notes that when Old Huckleberry Hill Road was statutorily discontinued pursuant to § 13a-49, owners of property that abutted the discontinued road were given, pursuant to § 13a-55, a private right-of-way over the road to access their respective properties. The plaintiff argues that the court erred in affirming the decision denying it zoning permits to build on the parcel as a result of Old Huckleberry Hill Road having been discontinued as a public highway. We are not persuaded.

The interpretation of statutes presents a question of law and, thus, our review is plenary. Jewett City Savings Bank v. Franklin, supra, 280 Conn. 278.

The court found unavailing the plaintiffs argument that the right-of-way conferred by § 13a-55 to abutting landowners over Old Huckleberry Hill Road satisfies the frontage requirements of the regulations. The court determined that under § 13a-55, the plaintiff is not entitled to anything more than a private easement of access over the road and accordingly concluded that the plaintiff had not made a sufficient showing that Old Huckleberry Hill Road was public.

Section 13a-55 provides: “Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.”

Our Supreme Court has stated that “[t]he effect of § 13a-55 is to alter the common law consequences of the discontinuance of a public highway. While, before the statute, discontinuance extinguished both the public easement of travel and the private easement of access . . . after the statute, the public easement ceases but the private easement remains. The abutting owners now continue to have an easement of access over the discontinued highway.” (Internal quotation marks omitted.) Tighe v. Berlin, 259 Conn. 83, 88, 788 A.2d 40 (2002). Thus, when Old Huckleberry Hill Road was statutorily discontinued, property owners, such as the plaintiff, who owned land abutting the road, continued to have a private right of access over Old Huckleberry Hill Road. See id. The public right of travel over Old Huckleberry Hill Road terminated when the road was discontinued. See id., 89. “Section 13a-55 does not purport to reinstate that right of public access.” Id.

As previously stated, the regulations require that in order for a permit to be issued, the parcel must abut a public street. Section 13a-55 grants the plaintiff a private right of access over Old Huckleberry Hill Road and does not purport to reinstate a right of public access. Accordingly, we conclude that the court correctly determined that the plaintiff did not meet its burden of showing that the board erred in determining that the plaintiffs property does not have frontage on a public street.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also argues that because the parcel “existed prior to the discontinuance of the road as a public street, the definition of frontage in the regulations cannot preclude a zoning permit, and the regulation is unenforceable as an inverse condemnation of the property.” The defendant argues in its brief that this claim is unreviewable because the plaintiff abandoned it before the trial court. In its reply brief, the plaintiff admits that it did not pursue an inverse condemnation claim at trial. At the beginning of trial, the plaintiff stated: “Well, in the complaint there was a confiscation claim. I think that’s premature and so I’m not pursuing that.” Additionally, in its memorandum of decision, the court did not address an inverse condemnation claim. We decline to review this claim, which the plaintiff abandoned in the trial court and which the trial court declined to address. See ATC Partnership v. Windham, 268 Conn. 463, 466 n.4, 845 A.2d 389 (2004).

       Old Huckleberry Hill Road is also referred to as Old Ridgefield-Norwalk Turnpike and Old Huckleberry Hill Road South. For clarity, we will refer to the road as Old Huckleberry Hill Road only.

       General Statutes § 13a-49 provides in relevant part: “The selectmen of any town may, subject to approval by a majority vote at any regular or special town meeting, by a writing signed by them, discontinue any highway or private way, or land dedicated as such, in its entirety, or may discontinue any portion thereof or any property right of the town or public therein, except when laid out by a court or the General Assembly, and except where such highway is within a city, or within a borough having control of highways within its limits. . . .”

       General Statutes § 8-18 provides in relevant part: “ ‘[Subdivision’ means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision . . .

       The court determined that Old Huckleberry Hill Road was not public, and the plaintiff does not contest this.

       “Frontage” requires abutment on a public street. For these purposes, in some circumstances, a privately owned road may be “public” if it is “available, to all the people.” Wilton Zoning Regs., § 29-2.B (119).


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. KETRIC BARNES
    (AC 31348)
    DiPentima, C. J., and Bear and Stoughton, Js.

      Argued December 1, 2010
    officially released March 1, 2011

      Daniel J. Foster, special public defender, for the appellant (defendant).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Maria E. Sous, assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Ketric Barnes, appeals from the judgments of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217, possession of narcotics in violation of General Statutes § 21a-279 (a), two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and two counts of sale of narcotics in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss the charges after the state failed to provide him with certain evidence, which had been lost or misplaced by the West Haven police department, and (2) denied his motion to sever the possession of narcotics charge from the sale of narcotics charges. We affirm the judgments of the trial court.

The following facts, as reasonably could have been found by the jury, are relevant to our discussion of the claims on appeal. The West Haven police department conducted two controlled drug buys using an informant, Grace Licausi, to purchase crack cocaine from the defendant. On March 14,2008, after meeting with police and getting a prerecorded $20 bill from them for use in the drug purchase, Licausi went to the defendant’s apartment, located at 22 West Spring Street, and made the first controlled buy from the defendant. In exchange for the $20, the defendant gave Licausi two bags of crack cocaine, which she later turned over to the police.

On March 26, 2008, Licausi again went to the defendant’s apartment with a prerecorded $20 bill to make another controlled buy of crack cocaine from the defendant. Again, in exchange for the prerecorded $20 bill, the defendant gave Licausi two bags of crack cocaine. On the basis of these controlled buys, the police secured and, on April 4, 2008, executed a search warrant for the defendant’s apartment.

Upon searching the defendant’s apartment, the police discovered a loaded nine millimeter handgun in the defendant’s bedroom, as well as cocaine and marijuana. Because the defendant had two broken legs and was only mobile with the assistance of crutches, the police carried him down the stairs to an awaiting police vehicle. The defendant was charged in three separate infor-mations. The amended long form informations charged as follows: in docket number CR-08-65953-S, the defendant was charged with criminal possession of a firearm and possession of narcotics; in docket number CR-08-65954-S, he was charged with sale of narcotics by a person who is not drug-dependent and sale of narcotics; and, in docket number CR-08-65955-S, he was charged with sale of narcotics by a person who is not drug-dependent and sale of narcotics. After a jury trial, he was convicted on all counts and sentenced to a total effective term of twenty years imprisonment, execution suspended after ten years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to dismiss the charges after the state failed to provide him with certain evidence, which had been lost or misplaced by the West Haven police department. The defendant explains that the police had audio recordings of Licausi’s controlled buys from the defendant but that they lost the recordings. He argues that under the test enunciated in State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert, denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), the loss of this evidence violated his state constitutional right to due process. The state argues that the defendant is speculating on what might have been on the lost recordings and that the tapes were immaterial in light of the evidence that was presented to the jury. We conclude that the court properly concluded that the defendant’s right to due process of law under article first, § 8, of the state constitution was not violated by the loss of evidence and, therefore, that the court did not abuse its discretion in denying the defendant’s motion to dismiss.

The record reveals the following additional facts. During each of Licausi’s controlled buys from the defendant, she was fitted with a transmitter so that Officer Mark D’Amico could monitor her conversations. Although recordings were made of these conversations, the tapes were lost by the police before trial. Neither the defendant nor the state ever had an opportunity to listen to the recordings, and they were not aware that the recordings were missing until less than one week before the start of evidence. On March 10, 2008, the first day of trial, the defendant moved to dismiss the charges against him on the ground that his state due process rights had been violated by the loss of this evidence. After hearing argument, the court stated that it would permit the defendant wide latitude in his cross-examination of Licausi and D’Amico regarding the recordings and that it would permit counsel to file a memorandum of law if he wanted a further remedy. The next day, the defendant submitted a memorandum of law in support of his motion to dismiss, and the state filed an opposition. After hearing oral argument, the court conducted a balancing test in accordance with State v. Asherman, supra, 193 Conn. 724, and concluded that it was unknown exactly what was on the missing recordings or whether there was anything favorable to the defendant and that the defendant had failed to demonstrate that he would have conducted cross-examination in a different manner or that his presentation of evidence would have been different if the recordings were available. Additionally, the court found that the defendant had not demonstrated any bad faith on the part of the police. Accordingly, the court denied the defendant’s motion to dismiss, concluding that the defendant had not demonstrated any prejudice that could not be cured by the wide leeway given in cross-examination.

On appeal from the court’s denial of a motion to dismiss on the ground of failure to preserve potentially exculpatory evidence, we employ a plenary standard of review to the court’s determination of whether the defendant’s state due process rights were violated. See State v. Nunez, 93 Conn. App. 818, 823, 890 A.2d 636 (2006); see also State v. Morales, 39 Conn. App. 617, 623, 667 A.2d 68, cert, denied, 235 Conn. 938, 668 A.2d 376 (1995). We then employ an abuse of discretion standard when considering the propriety of the court’s action on the defendant’s motion to dismiss. See generally State v. Morales, 232 Conn. 707, 729, 657 A.2d 585 (1995).

The United States Supreme Court, employing a federal due process clause analysis, explained that when confronted with a claim that the state failed to preserve evidence that “could have been subjected to tests, the results of which might have exonerated the defendant”; Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988); “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id., 58.

In State v. Morales, supra, 232 Conn. 720, however, our Supreme Court determined that article first, § 8, of the Connecticut constitution requires a balancing test rather than a showing of bad faith: “We refer to this test as the Asherman test. Although the United States Supreme Court in Youngblood held that due process under the federal constitution does not require a trial court to apply such a balancing test, we are persuaded that due process under our state constitution does.” Id. “[T]he trial court must employ the [Asherman] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused.” (Internal quotation marks omitted.) State v. Joyce, 243 Conn. 282, 301, 705 A.2d 181 (1997), cert, denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

In State v. Asherman, supra, 193 Conn. 724, our Supreme Court outlined the test factors to be employed in conducting a due process analysis under our state constitution when a defendant claims that the state failed to preserve evidence: The factors include “the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the juiy, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.”

When the trial court agrees that the defendant’s state due process rights have been violated by the failure of the police to preserve potentially exculpatory evidence, however, “the court is not required to dismiss the charges, even if the state’s failure to preserve evidence has adversely affected the defendant’s right to a fair trial. . . . The trial court is not faced with the Hobson’s choice of either dismissing all criminal charges or denying any relief whatsoever to a criminal defendant who possibly has been prejudiced as a result of the negligence of the state. . . . Rather, the trial court may fashion another remedy that appropriately ameliorates or offsets the prejudice that the defendant has suffered as a result of the unavailability of the evidence. . . . Put simply, atrial court must decide each case depending on its own facts, assess the materiality of the unpreserved evidence and the degree of prejudice to the accused, and formulate a remedy that vindicates his or her rights. . . . The ultimate question for the trial court in such a case is: What remedy best serves the interests of justice?” (Citations omitted.) State v. Morales, supra, 232 Conn. 729.

In the present case, the defendant contends that a proper application of the balancing factors from Asher-man requires that the defendant’s convictions on the sales related charges be reversed and judgment rendered in his favor. Additionally, he asks that the remaining convictions be reversed and that he be granted a new trial on those charges. Applying the Ash-erman balancing factors, we conclude that the defendant’s right to due process of law under article first, § 8, of the Connecticut constitution was not violated by the loss of the recordings.

The first factor of the balancing test involves the materiality of the missing evidence. State v. Asherman, supra, 193 Conn. 724. The defendant argues: “With respect to the materiality of the evidence at issue, the tapes were critical evidence of the linchpin of the state’s entire case, namely, its claims that [the defendant] sold drugs to the informant on the dates in question. Indeed, it seems beyond dispute that, had the tapes not been lost, they would have been by far the most important evidence in the entire case.” He further argues: “The tapes were the only piece of evidence that could have demonstrated to the jury whether the informant’s version of events or [the defendant’s] version of events was true.” We conclude that the tapes were not of significant materiality to the case.

“The measure of materiality is whether there is a reasonable probability that, had the evidence been disclosed [or available] to the defense, the result of the proceeding would have been different.” (Internal quotation marks omitted.) State v. Joyce, supra, 243 Conn. 301. In this case, the defendant argues repeatedly about what the tapes “could have” demonstrated. He argues that the tapes were critical to the state’s case and that they were the only piece of evidence that “could have” proven the defendant’s guilt or innocence. However, this argument ignores the eyewitness informant, Licausi, who testified that it was the defendant who had sold her crack cocaine. On the basis of Licausi’s testimony, which the juiy must have credited, the jury found the defendant guilty. The defendant points us to nothing in the record that would demonstrate that the results of the proceedings would have been different had the tapes been available. The informant testified that the quality of the recording was questionable because she had placed the device in the pocket of her goose down jacket. Our decision, however, would be the same even if the quality of the recordings of the controlled buys were pristine. The defendant’s mere speculation that the tapes could have been beneficial or not simply does not meet the standard necessary to prove materiality.

The next factor in the balancing test requires us to examine the likelihood of mistaken interpretation of the missing recordings by witnesses or the jury. See State v. Asherman, supra, 193 Conn. 724. The defendant argues that the jury was left to conclude that the tapes conclusively supported the state’s charges that he sold crack cocaine to Licausi. We disagree.

In this case, the court specifically told defense counsel that he would be provided wide leeway in his cross-examination of D’Amico and Licausi concerning the recordings and that he could submit a memorandum of law if he thought further relief was warranted. Although he continued to argue that the case should be dismissed, he never asked the court for a missing evidence instruction; see, e.g., State v. McRae, 118 Conn. App. 315, 322-23, 983 A.2d 286 (2009); or an instruction regarding adverse inference. Cf., e.g., State v. Marra, 295 Conn. 74, 83 n.5, 988 A.2d 865 (2010). The court gave the defendant a full and fair opportunity to question D’Amico and Licausi to ascertain fully what happened during the controlled buys and what happened to the recordings thereafter. D’Amico testified that he listened to Licausi’s conversations during the controlled buys, but the defendant never asked him to state what he had heard or whether he could hear the defendant through the transmitter. Additionally, our review of the record reveals that the defendant used the missing tapes as a means of attempting to raise reasonable doubt in the mind of the jury during closing argument by arguing that the missing tape would have revealed the “whole story” and by calling into question the reason for its nonproduction. We conclude that it was not reasonably likely that the jury had a mistaken interpretation of the missing recordings.

The third balancing factor involves the reason for the nonavailability of the recordings, which includes whether there was bad faith on the part of the police or the state. State v. Asherman, supra, 193 Conn. 724. The defendant concedes that there was no evidence of bad faith in this case.

The fourth and final balancing factor is whether, and how much, the defendant was prejudiced by the unavailability of the evidence. Id. The defendant argues that the loss of the tapes was critical: “Not only were the tapes the most important evidence in the case in and of themselves, they would also have enabled [the defendant] to effectively cross-examine D’Amico and, more importantly, the informant.” The state argues that the defendant was not prejudiced by the missing recordings because the state did not use anything from those recordings to support its prosecution of the defendant, pointing out that it had a firsthand account, via Licausi, of what had happened. Furthermore, it argues, the defendant never asked for an adverse inference instruction, and he argued to the jury that the missing recordings would have provided “the truth” about what had happened. Accordingly, the state argues, the defendant cannot demonstrate prejudice. We conclude that the court remedied any potential prejudice that may have been present.

“It is axiomatic that [a criminal] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him.” (Internal quotation marks omitted.) State v. Kelsey, 93 Conn. App. 408, 421, 889 A.2d 855, cert, denied, 277 Conn. 928, 895 A.2d 800 (2006). In Kelsey, the defendant claimed that his constitutional rights had been violated because two knives and a piece of bloodstained cardboard, which the defendant alleged were exculpatoiy, but which were not proven to have been relevant to the charged homicide, had been lost by the police. Id., 418-19. The defendant claimed, in part, that because of the lost evidence, he was precluded from conducting meaningful cross-examination of the state’s witnesses. Id., 421. We concluded that because the court had given the defendant unfettered cross-examination of the witnesses regarding the lost evidence, that any potential prejudice had been cured: “A trial court is not required to take ... a drastic action, even if the state’s failure to preserve evidence has adversely affected the defendant’s right to a fair trial. Rather, the trial court may fashion another remedy that appropriately ameliorates or offsets the prejudice that the defendant has suffered as a result of the unavailability of the evidence. . . . [T]he court ameliorated any potential prejudice to the defendant by allowing unfettered cross-examination of the state’s witnesses regarding the loss of the evidence and in allowing his closing argument to focus on the state’s failure to produce the requested items that were seized .... We conclude that the court’s denial of the defendant’s motion for a mistrial reflected a sound exercise of its discretion.” (Citation omitted; internal quotation marks omitted.) Id., 422.

Similarly, in the present case, any potential prejudice from the loss of the recordings was ameliorated by the court’s allowing the defendant unfettered cross-examination of Licausi and D’Amico in addition to allowing the defendant to use, during closing argument, the fact that the tapes were missing in an attempt to raise reasonable doubt in the mind of the jury. Additionally, the court informed counsel that he could argue for further remedies if he thought that unfettered cross-examination was insufficient, and, although the defendant argued that dismissal of all charges was warranted, he never asked for further corrective measures such as an adverse inference instruction or a missing evidence instruction.

For the foregoing reasons, having applied the Asher-man factors, we conclude that the defendant has failed to demonstrate that his right to due process of law under article first, § 8, of the Connecticut constitution was violated by the failure of the police to preserve evidence, and we further conclude that the court did not abuse its discretion in denying the defendant’s motion to dismiss.

II

The defendant next claims that the court abused its discretion in denying his motion to sever the possession of narcotics charge from the sale of narcotics charges. The defendant argues that although he initially agreed to the joinder of the charges, once he decided to use the defense of drug dependency for the sales related charges, he was “required to incriminate himself as to one charge in order to assert a statutory defense to other charges” and that this resulted in substantial injustice. He also argues that severance was required under the Boscarino factors. See State v. Boscarino, 204 Conn. 714, 720-24, 529 A.2d 1260 (1987). The state argues that the court “properly exercised its discretion in denying the defendant’s motion to sever because the Boscarino factors were satisfied.” We agree with the state.

The following additional facts and procedural history are relevant to our analysis. On February 11, 2009, the court granted the state’s motion for joinder by agreement. Additionally, the court found that “the infor-mations [were] substantially similar. Most of the charges [were] very close in time . . . [having occurred] at the same location, and [that] most would be admissible ... as similar acts in separate prosecutions, the exception being [the] one criminal possession of a firearm charge . . . .”

On March 4, 2009, defense counsel filed a motion to sever the possession of narcotics charge from the sale of narcotics charges. The court heard argument the same day. Defense counsel argued that the defendant had a defense to the charges of sale of narcotics by a person who is not drug-dependent, namely, that he was drug-dependent. He contended that if the defendant asserted that defense, the defendant necessarily would have to admit to the possession charge. Therefore, he argued, the charges needed to be severed so that the defendant would not have to incriminate himself by asserting his defense. After hearing argument, the court explained that the defendant had not met his burden of demonstrating that the continued joinder of these charges would result in substantial injustice and that “the Boscarino factors simply militate against severing these offenses.” The court then went through each of the Boscarino factors and applied them to the case at hand, after which it denied the motion for severance. Following the court’s denial, the defendant, speaking for himself, stated: “[T]he motion [for] severance, it was the gun case, along with the possession of narcotics case that was [joined] with the sale of narcotics case, those two cases were [joined]. Now, the motion [for] severance was not . . . supposed to be for the possession of narcotics. It was supposed to be for the possession of the firearm. That’s what the motion for severance is supposed to be. I get here today, and the motion for severance is something completely different than what we discussed. . . . What we just talked about — this whole motion was irrelevant to what we discussed yesterday. Yesterday, it was about the firearm. It was not about — I never said anything about filing a severance of the possession [charge], Your Honor .... It was all the firearm.” The court directed the defendant to discuss this further with his attorney, and it denied the motion to sever “only as to the drug charges.” The court stated that it would “pass” the matter and leave it open as to whether there would be a motion seeking severance of the firearms charge. However, it does not appear that this issue was raised again.

“The principles that govern our review of a trial court’s ruling on a motion for joinder or a motion for severance are well established. Practice Book § 41-19 provides that, ‘[t]he judicial authority may, uponits own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.’ See also General Statutes § 54-57 (‘[w]henever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise’). ‘In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.’ . . . State v. Randolph, 284 Conn. 328, 337, 933 A.2d 1158 (2007).

“ ‘Substantial prejudice does not necessarily result from a denial of severance even [if the] evidence of one offense would not have been admissible at a separate trial involving the second offense. . . . Consolidation under such circumstances, however, may expose the defendant to potential prejudice for three reasons: First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. . . .

“ ‘Despite the existence of these risks, this court consistently has recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges. . . .

“ ‘The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors [known as the Boscarino factors] include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.’ ... Id., 337-38; see also State v. Boscarino, supra, 204 Conn. 722-24.” State v. Davis, 286 Conn. 17, 27-29, 942 A.2d 373 (2008).

The transcript reveals that the court carefully considered each of the Boscarino factors before ruling on the defendant’s motion. As to the first factor, whether the charges involve discrete, easily distinguishable factual scenarios, the defendant argues that this factor weighed in favor of severing the cases because “the charges are easily distinguishable only in theory.” He continues: “It is . . . unrealistic to suppose that the jury’s decision as to whether [the defendant] was in possession of crack cocaine during the search of his home would not have been influenced by the fact that, in defense of the charges of sales of crack cocaine by a [person who is not drug-dependent, the defendant] flatly admitted to having been addicted to that very same drug.” We do not agree that the charges are not readily distinguishable.

On this factor, we agree with the court’s conclusion that the crimes “involve[d] discrete, easily distinguishable factual scenarios, so that the evidence [could] be presented in an orderly manner.” The charges involving the sales of narcotics each stemmed from the controlled buys, in which the defendant sold crack cocaine to Licausi. The possession charge stemmed from the execution of the search warrant, when the police found cocaine and marijuana in the defendant’s bedroom. The sales charges stemmed from conduct that occurred on March 14 and 26, 2008; the possession charge stemmed from conduct that occurred on April 4, 2008. Accordingly, we agree with the court that the crimes readily were distinguishable and involved discrete factual scenarios.

As to the second factor, whether the dimes were of a violent or shocking nature, the defendant argues that “the prosecutor portrayed [the defendant’s] alleged possession of a loaded weapon — as well as his alleged possession of cocaine — as shocking conduct .... In short, the prosecutor tied the charge of criminal possession of a firearm to the charge of possession of narcotics as part of an effort to demonize [the defendant] in the minds of the jurors.” (Citations omitted.) Although the defendant’s argument on this factor focuses on the prosecutor’s characterization of the weapons charge, the defendant’s claim on appeal involves the court’s denial of his motion to sever the sales of narcotics charges from the possession charge; there was no motion made to sever the weapons charge. Furthermore, on the merits of the court’s findings on the second factor, namely, that the drug charges were not violent or shocking, we agree that neither the sales of narcotics charges nor the possession charge were of a violent or shocking nature.

As to the third and final factor, the duration and complexity of the trial, the defendant does not address this factor in his brief. Accordingly, we conclude that he is not challenging the court’s finding that the trial was not expected to be long or complex.

Aside from the identified factors set forth in Boscarino, which the defendant contends are not exclusive factors, the defendant argues that the court was required to consider the undue prejudice to which he was exposed by not severing these charges. He argues that he was prejudiced because his affirmative defense in the sales of narcotics cases, namely, that he was drug-dependent, necessarily would cause a conviction in the possession case. He argues that he “was required to put on evidence that he was dependent on crack cocaine at the time of the alleged sales in the same trial in which he was accused of possession of crack cocaine at, or at least very near, the same time when the crack cocaine that he was accused of possessing was found. . . . Indeed, if the charges were not consolidated, [the defendant] would not have taken the [witness] stand at all in any case in which he was not tried with sales of narcotics by a [person who was not] drug-dependent . . . .” The state argues that this case is controlled by State v. Jenkins, 41 Conn. App. 604, 619-21, 679 A.2d 3 (1996). We conclude that the reasoning of Jenkins is persuasive.

In Jenkins, the defendant was charged with sale of narcotics by a person who was not drug-dependent, sale of narcotics and possession of narcotics. He requested that the court bifurcate the proceedings, arguing that “requiring a defendant to offer evidence on the issue of drug dependency (1) is equivalent to requiring him to testily against himself, and (2) pollutes the objectivity of the jury. The defendant elaimjed] that it [was] unfair to require a defendant to place illegal drugs within his ambit while attempting to defend himself on a sale of narcotics charge. This situation, the defendant arguefd], force[d] him to choose between offering evidence regarding drug dependency, which may prejudice the jury, and remaining silent on the issue of drag dependency.” Id., 619.

In considering the merits of the defendant’s claim in Jenkins, we explained: “In defending a charge of sale of narcotics pursuant to § 2 la-278 (b), the defendant may defend on either or both of two grounds: (1) that the state has failed to meet its burden on one of the elements of the offense; or (2) that he was drag-dependent. If the state tails to prove the elements of the offense, the defendant will escape liability under § 21a-278 (b). If the state proves the elements of § 21a-278 (b), the defendant may still escape liability under § 21a-278 (b) by proving that he was drug-dependent [at the time he sold the narcotics]. The mere fact that the defendant is faced with a difficult choice regarding whether to present a seemingly inconsistent defense does not mandate a bifurcated hearing.” Id. We further explained that this is true especially where “evidence of the defense ... is not direct evidence of an element of another crime with which the defendant was charged.” Id., 620.

Although Jenkins can be distinguished on the ground that the crimes involved in that case occurred simultaneously, we are not persuaded that the analysis should be any different in a case, like the present one, in which the crimes occurred on separate dates. The defendant’s decision to assert the defense of drug dependency to the charges of sale of narcotics by a person who is not drug-dependent did not provide direct evidence that the defendant possessed drugs on the specific date of April 4, 2008, when the police executed their search warrant. As a matter of fact, the defendant specifically testified that the drugs found on that date were not his.

Our conclusion is further supported by State v. Vasquez, 53 Conn. App. 661, 733 A.2d 856, cert, denied, 250 Conn. 922, 738 A.2d 662 (1999). In Vasquez, the defendant argued that “he had to testify to persuade the jury of his drug dependency . . . [and he] claimfed] that by so doing he had to admit impliedly to the illegal possession of narcotics, thereby effectively diluting the state’s burden of proof on the possession charge.” Id., 666. Finding the defendant’s argument to be without merit, we stated: “We ... do not accept the defendant’s argument that by putting forth evidence of his drag dependency, he is in effect admitting possession of a narcotic substance; evidence of drag dependency is not the same as admitting possession at the time of the incident in question.” Id., 667.

Similarly, in the present case, the defendant’s decision to put on evidence that he was drug-dependent did not equate to an admission that he was in possession of narcotics on April 4, 2008. Furthermore, even if the defendant’s defenses to the sales related charges and the possession charge could be considered inconsistent, “[t]he decision of which defenses to present to a jury in a criminal trial is properly left to the judgment and wisdom of the criminal defendant and his attorney. The due process clause of the Fourteenth Amendment does not guarantee one charged with a crime a separate audience for each and every defense he or his counsel may devise. As with many other decisions made prior to and during trial, a wrong choice of defenses may have severe adverse consequences. However, due process is not implicated simply by the fact that such a choice is foisted upon the criminal defendant.” (Internal quotation marks omitted.) State v. Jenkins, supra, 41 Conn. App. 621.

On the basis of the foregoing, we conclude that the court did not abuse its discretion in denying the defendant’s motion for severance.

The judgments are affirmed.

In this opinion the other judges concurred.

       For sentencing purposes, the court merged the defendant’s convictions of sale of narcotics and sale of narcotics by a person who is not drug-dependent, sale of narcotics being a lesser offense included within sale of narcotics by a person who is not drug-dependent. See State v. Ray, 290 Conn. 602, 634, 966 A.2d 148 (2009) (§ 21a-277 [a] is lesser offense included within § 21a-278 [b]).

         See footnote 1 of this opinion.

       At oral argument before this court, the defendant clarified that on this claim of the appeal, he is seeking to have dismissed only the charges involving the sale of narcotics and that he is seeking a new trial on the remaining charges.

       The defendant recites in his brief that Iicausi admitted that she had interfered with the audio surveillance by the placement of the device in her “big goose down jacket . . . .”

       Although the defendant does not cite to a specific provision of the state constitution, we assume that he is referring to his right to due process of law under article first, § 8, of the Connecticut constitution.

       Specifically, the court stated: “This is what I’ll do, given the timing of the motion and the timing of the disclosure [that the evidence was lost], I’ll allow latitude . . . for cross-examination of any of the state’s witnesses . . . including . . . D’Amico as to where the tape is, what efforts — and what was done with it. You can cross-examine until your heart’s content, until you [find] out when the tape was last seen, if anybody listened to it, etc., and then I’ll entertain — you can file some authorities with this [motion to dismiss] if you want any further remedy, and the same with the state. Those should be filed as soon as possible. But in terms of the missing evidence now, given the status of the case, we’ve already started the trial, but we’re still on the first witness and you’re still on cross-examination. So, as I say, you can cross-examine this witness and establish . . . what happened to the tape recording.”

       The defendant also testified at the trial.

       “[A] person charged with sale of narcotics pursuant to § 21a-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 21a-278 (b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense.” State v. Jenkins, 41 Conn. App. 604, 609, 679 A.2d 3 (1996).

       The defendant specifically concedes that “[t]rial counsel did not assert [that the defendant’s] fifth amendment rights were violated, and, according, [the defendant] does not address 1he issue in this appeal.”

       Because the state does not argue that this amounted to a waiver of this issue for appeal purposes, and the parties have not addressed waiver in their briefs, we will not engage in analysis as to whether the defendant’s statements were tantamount to a waiver but, instead, will consider the issue on its merits.

       We note that in this case, Dorothy Eagan, a registered nurse who worked at the APT Foundation, a treatment center for substance abusers, testified on behalf of the defendant. She testified that to take part in the APT Foundation program, a person must be addicted to cocaine. She further testified that the defendant was a participant in the APT Foundation program from August through September, 2007.
      The defendant, against the advice of counsel, also testified regarding his alleged drug dependency. The defendant testified, in part, that he met Licausi in October or November, 2007, and that he was addicted to crack cocaine at that time. He stated that Licausi would telephone him to see if the defendant’s supplier was at the defendant’s house, and then she would come to the house and pinchase crack cocaine from the defendant’s supplier. The defendant stated that he, himself, never sold crack cocaine to Licausi; it was always the supplier who directly sold it to her. He further testified that after Licausi purchased crack cocaine from the defendant’s supplier, at the defendant’s house, she would break off a piece of the crack cocaine and share it with him. When asked how he supported his addiction, the defendant testified that it was through Licausi’s generosity of sharing small pieces of crack cocaine when she purchased it. He stated that he did not have to pay Licausi for the crack cocaine or do anything in return, that she simply gave it him for “the generosity of it . . . .” He also testified that he did not get high when Licausi was not there to give him some of her crack cocaine and that her giving him crack cocaine “was not an everyday thing.” When the prosecutor asked him if he needed the crack cocaine everyday because of his alleged addiction, he responded: “No, not regularly. I didn’t need it regularly, but if it’s there, I’m going to get high.”


author: ROBINSON, J.

text:
    MARVIN NELSON v. THE CONTRACTING GROUP, LLC
    (AC 31448)
    Lavine, Robinson and Flynn, Js.

      Argued November 29, 2010
    officially released March 1, 2011

      Dominic J. Caciopoli, for the appellant (defendant).

      Tara L. Shaw, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, The Contracting Group, LLC, appeals to this court following the denial of its motion to open the judgment rendered by the trial court in favor of the plaintiff, Marvin Nelson. On appeal, the defendant claims that the court abused its discretion in denying its motion to open. We affirm the judgment of the trial court.

The record reveals the following factual and procedural history. The defendant was engaged in the business of rehabilitating commercial buildings. The plaintiff was employed by the defendant as a laborer. In June, 2007, the defendant assigned the plaintiff to work at a site on Willow Street in Waterbury (Willow Street site), where there was a significant infestation of mold. While there, the defendant instructed the plaintiff to scrub the walls with bleach. As a result of the working conditions, the plaintiff began having problems with his vision. The plaintiff sought medical attention for his eye injuries, and, when his eye injuries did not improve over time, the plaintiff spoke to the defendant’s superintendent about seeking additional medical attention covered by workers’ compensation. In January, 2008, the plaintiff filed a workers’ compensation claim against the defendant. Not long after the filing of the workers’ compensation claim, the defendant terminated the plaintiffs employment.

The plaintiff commenced the present action against the defendant on March 14, 2008, by service of process and thereafter by filing a complaint with a return date of April 15, 2008. In his complaint, the plaintiff alleged that he had been wrongfully discharged by the defendant. Specifically, the plaintiff alleged that he had been discharged by the defendant in retaliation for asserting his rights to workers’ compensation benefits. The plaintiff alleged that, after he filed his claim, his supervisors and coworkers began to harass him, making comments to him that included, “heard you’re trying to sue us,” and, “we’ve got good lawyers for that.” The defendant did not file an appearance or respond in any manner to the plaintiffs complaint. Accordingly, on August 5, 2008, the plaintiff, pursuant to Practice Book § 17-20 (a), filed a motion to default the defendant for failure to appear, which was granted on August 7, 2008. A certificate of closed pleadings was filed on September 9, 2008, at which time the plaintiff claimed the matter for a hearing in damages. The plaintiffs counsel certified that copies of the motion and the certificate of closed pleadings were mailed to the defendant and its agent for service. Thereafter, the matter proceeded to a hearing in damages, and, on April 15, 2009, after a completed trial to the court, the court rendered judgment in favor of the plaintiff. The defendant failed to attend the hearing in damages. Subsequently, the plaintiff applied to the court for a bank execution, which was issued on May 22, 2009.

On July 14, 2009, the defendant filed an appearance together with a motion to open the judgment pursuant to Practice Book § 17-43 (a). In its motion, the defendant asserted that it had a good defense that existed at the time judgment was rendered on April 15, 2009, and that it was prevented from making that defense because it believed that it had an agreement with the plaintiff under which the plaintiffs counsel would contact the defendant before moving forward with the litigation. The court heard argument on the matter, and, in its memorandum of decision filed August 19, 2009, denied the defendant’s motion to open the judgment. This appeal followed.

The defendant claims that the court improperly denied its motion to open the judgment. We disagree.

We first set forth our standard of review. “The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the 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. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Bove v. Bove, 103 Conn. App. 347, 351, 930 A.2d 712 (2007).

To open a judgment pursuant to Practice Book § 17-43 (a) and General Statutes § 52-212 (a), the movant must make a two part showing that “(1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause.” (Internal quotation marks omitted.) State v. Ritz Really Corp., 63 Conn. App. 544, 548, 776 A.2d 1195 (2001). The party moving to open a default judgment “must not only allege, but also make a showing sufficient to satisfy the two-pronged test [governing the opening of default judgments].” (Citations omitted; internal quotation marks omitted.) Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 133-34, 474 A.2d 456 (1984). The negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment. Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 362-63, 519 A.2d 76 (1986). Finally, because the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion.

After careful review of the record, we conclude that the court did not abuse its discretion in denying the defendant’s motion to open the judgment because the court reasonably could have concluded that the defendant did not satisfy the second prong of Practice Book § 17-43 (a). In its motion to open the judgment, the defendant asserted a “complete defense” to the plaintiffs allegation that termination of the plaintiffs employment was retaliatory. The defendant contended that the plaintiffs employment was terminated because the job at the Willow Street site had been substantially completed and not because he asserted his rights to workers’ compensation benefits. In an affidavit attached to the motion, the defendant’s counsel stated that he did not raise this defense or file an appearance before judgment had entered because he was under the mistaken belief that he had an agreement with the plaintiffs counsel under which the plaintiffs counsel would contact him before moving forward with the litigation.

In its memorandum of decision, the court concluded that the mistaken belief by the defendant’s counsel was an insufficient reason to open the judgment in light of the circumstances of the case. The court’s conclusion is supported by the record. The record demonstrates that the defendant was served with the complaint on March 14, 2008, and, therefore, it had notice of the pendency of the action. Additionally, the defendant had been notified on at least two occasions that the plaintiff had moved forward with the litigation. A motion for default for failure to appear and a certificate of closed pleadings claiming the matter for a hearing in damages to the court were filed on August 5,2008, and September 9, 2008, respectively; the plaintiffs counsel certified that notice of both pleadings was mailed to the defendant and its agent for service on the same dates. The motion for default for failure to appear was granted on August 7, 2008, and the record indicates that notice of the granting of the default was mailed to the defendant on August 11, 2008. The defendant did not deny that it had received these notifications. Nevertheless, it took the defendant approximately one year from the date that the court granted the plaintiffs motion for default to file an appearance. On the basis of the record and the circumstances of this default, we conclude that the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 17-20 (a) provides in relevant part that “if no appearance has been entered for any party to any action on or before the second day following the return day, any other party to the action may make a motion that a . . . default be entered for failure to appear.”