text:
    IN RE A.R. ET AL.

    (AC 31629)
    Gruendel, Beach and West, Js.
    Argued May 25
    officially released August 17, 2010

      Inez M. Diaz Galloza, for the appellant (intervening respondent).

      Stephen G. Vitelli, assistant attorney general, for the appellee (petitioner).

      Stephen J. Varga, for the appellee (respondent father of A.R.).

      John J. Ghidini III, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

BEACH, J.

The intervening respondent (intervenor), the maternal great-grandmother of A and M, minor children in the custody of the commissioner of children and families (commissioner), appeals from the judgment of the trial court dismissing her motion to transfer guardianship. Because we conclude that the court incorrectly treated the intervenor’s motion to transfer guardianship as a motion to revoke commitment and determined that an intervening party may not file a motion to revoke commitment, we reverse the judgment of the trial court dismissing the intervenor’s motion.

The following procedural history is relevant to the intervenor’s appeal. A and M were cared for by the intervenor while their biological mother was incarcerated. On August 14, 2008, the commissioner filed an ex parte motion for an order of temporary custody and a neglect petition to remove A and M from the intervenor’s care. The court, Baldwin, J., granted the motion for an order of temporary custody and placed the children in the custody of the commissioner. The intervenor filed a motion to intervene, which the court, Gleeson, J., granted. The intervenor also filed a motion to transfer guardianship to herself. The court, Harleston, J., consolidated the neglect trial with the respondent mother’s motion to transfer guardianship to the intervenor, filed December 3, 2008. Trial commenced on February 2, 2009, on, inter alia, the motions to transfer guardianship and the neglect petition. After an evidentiary hearing, the court, Olear, J., denied the motions to transfer guardianship to the intervenor, adjudicated A and M neglected and committed them to the care and custody of the commissioner. On June 15, 2009, the commissioner filed termination of parental rights petitions as to both children. The intervenor filed another motion to intervene with respect to the petitions to terminate parental rights, and Judge Gleeson granted that motion. On August 18, 2009, the intervenor filed a motion to transfer guardianship of the children to herself, which motion is the subject of this appeal. On October 8, 2009, Judge Gleeson, sua sponte, dismissed the intervenor’s motion to transfer guardianship, holding that a motion to transfer guardianship of a child “committed by the court to the care, custody and guardianship of the [commissioner]” should be deemed a motion to revoke commitment and that, pursuant to General Statutes § 46b-129 (m), an intervening party is not permitted to file a motion to revoke commitment. This appeal followed.

The intervenor claims on appeal that the court incorrectly treated her motion to transfer guardianship as a motion to revoke commitment. She argues that the language of § 46b-129 (j) treats motions to transfer guardianship as separate and distinct from motions to revoke commitment. In addition, she argues that Practice Book § 35a-16 indicates that only motions to modify that request that the custody of the child revert to the custody of the parent are to be construed as motions to revoke commitment. She further argues that Practice Book § 35a-20 permits any party, including an intervenor, to file a motion to transfer guardianship. We agree.

As a preliminary matter, we set forth the applicable standard of review. “[Ijssues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Cruz v. Montanez, 294 Conn. 357, 367, 984 A.2d 705 (2009). “The interpretive construction of the rules of practice is to be governed by the same principles as those regulating statutory interpretation.” Commissioner of Social Services v. Smith, 265 Conn. 723, 733-34, 830 A.2d 228 (2003).

The statutory scheme regarding proceedings following a judicial finding of neglect or abandonment is clear and unambiguous. As stated in § 46b-129 (j), the court may commit a child, previously found to be uncared for, neglected or dependent, to the commissioner. The commitment is to remain in effect until “further order . . . .” General Statutes § 46b-129 (j). Such “further order” may include a revocation of commitment, in which case custody would return to the parent, a termination of parental rights, or a transfer of “care and personal custody” to another agency or to any person “found to be suitable and worthy . . . .” General Statutes § 46b-129 (j). There are, then, at least four statutory options, not immutable, after commitment to the commissioner: (1) continuation of such commitment, (2) revocation of commitment, (3) termination of parental rights and (4) transfer of custody to another.

Section 46b-129 (j) does not expressly state who may file a motion to transfer custody. The rules of practice, however, plainly state that “[a] parent, legal guardian or other interested party seeking guardianship of the child or youth after guardianship rights to that child or youth were transferred to another person by the superior court for juvenile matters may file a motion with the court that ordered the transfer of guardianship.” (Emphasis added.) Practice Book § 35a-20 (b). A motion to modify the original order committing the child to the commissioner is dispositional, of course, following the adjudicative finding of neglect or abandonment.

There is no claim that the intervenor is not an interested party, and the statutory scheme does not prohibit the intervenor from filing a motion to modify the disposition. A motion to transfer guardianship to herself is an appropriate way for the intervenor to request consideration as a potential guardian for the children. Accordingly, the court erred in dismissing her motion.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The intervenor filed a brief and orally argued the appeal. The commissioner and the attorney for the children chose not to file briefs, and attended but did not participate in oral argument.

       General Statutes § 46b-129 (j) provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court. . . .”

       The court has the option of not committing the child to the commissioner even after a finding of neglect. The court may also place the child with the parent, while the commissioner maintains “protective supervision . . . .” General Statutes § 46b-129 (j).

       Practice Book § 35a-16, on the other hand, provides that a motion for modification to return a child to the custody of the parent without protective supervision shall be treated as a motion for revocation of commitment. We note that no argument was made in this case that because the original transfer of custody to the commissioner was a transfer from the custody of the intervenor, the intervenor’s motion should be treated as a motion to revoke commitment.

       The court concluded that the intervenor was barred from filing a motion to modify because the nonparent intervenor would have a less rigorous burden than a parent pursuing a motion to revoke commitment; see General Statutes § 46b-129 (m) (requiring parents to prove cause for commitment no longer exists prior to court’s consideration of whether such revocation is in best interest of child). In the statutory scheme, however, the child previously would have been found to have been neglected by a preponderance of the evidence in the adjudicatory phase. See Practice Book § 32a-3 (a). The court also held that, pursuant to § 46b-129 (m), only the commissioner, a parent or the child’s attorney may file a motion to revoke the commitment. The intervenor, then, was without a means to pursue a transfer of guardianship to herself.

       Although the following cases are not dispositive of the issue, it should be noted that this court has heard cases in which intervening relatives have filed motions to transfer guardianship to themselves and that those cases have been decided on their merits. See In re Anthony A., 112 Conn. App. 643, 963 A.2d 1057 (2009); In re Haley B., 81 Conn. App. 62, 838 A.3d 1006 (2004); see also In re Elysa D., 116 Conn. App. 254, 974 A.2d 834, cert. denied, 293 Conn. 936, 981 A.2d 1079 (2009); In re Shanaira C., 105 Conn. App. 713, 940 A.2d 817, cert. granted on other grounds, 286 Conn. 917, 945 A.2d 977 (2008).


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARK A. BRESCIA
    (AC 30969)
    Gruendel, Harper and Beach, Js.
    Argued June 1
    officially released August 17, 2010

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

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Seth R. Garbarsky, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Mark A. Brescia, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence in accordance with Practice Book § 43-22. The defendant claims that the court improperly concluded that it lacked subject matter jurisdiction and thus the dismissal was improper. We affirm the judgment dismissing the motion.

The following facts, as found by the court, and procedural history are relevant to our disposition of the present appeal. On March 10, 2006, while at a hearing scheduled on the pretrial calendar, the defendant delivered vulgar and disrespectful verbal attacks to the court, Rubinow, J., and exhibited other physical conduct that interfered with the orderly business of the court. The defendant was adjudged to be in contempt of court. In preparation for the contempt hearing later that day, the court asked the defendant if he was in need of medical attention. The defendant, through his attorney, declined such assistance.

After the defendant had the opportunity to meet and consult with his attorney concerning the implications of his courtroom behavior and also after dealing with the defendant’s other pending matters, the court held a summary contempt hearing in accordance with General Statutes § 51-33. The defendant voluntarily, and without inquiry, admitted that his conduct had constituted contempt. The court found the defendant guilty of summary criminal contempt and sentenced him to serve six months pursuant to § 51-33.

On March 24,2006, the court, M. Taylor, J., sentenced the defendant following his guilty pleas in pending criminal matters. See footnote 3 of this opinion. The court clearly indicated that these sentences were to be served “consecutive” to the March 10, 2006, sentence of criminal contempt, after the contempt sentence was completed. The court also notified the defendant of his opportunity to challenge timely the six month criminal contempt sentence.

On September 9,2008, the defendant completed serving his criminal contempt sentence. Thereafter, on September 17, 2008, he filed a motion to correct an illegal sentence in the Superior Court. He argued that the court imposed the criminal contempt sentence in an illegal manner, deviating from the conditions established by Practice Book § 43-22 because “the court had before it incomplete information—and did not provide a ‘cooling off period’ for [the] [defendant, through counsel to elicit, investigate, and prepare mitigating information” before imposing the penalty.

In ruling on the motion to correct, the court, Rubinow, J., held that it lacked subject matter jurisdiction over the motion to correct and dismissed the defendant’s motion. The court also held that, even if the court had jurisdiction under Practice Book § 43-22, the motion would be denied on its merits. The defendant has appealed from the dismissal of his motion to correct an illegal sentence.

At issue in this appeal is the propriety of the defendant’s motion to correct an illegal criminal contempt sentence pursuant to Practice Book § 43-22. The defendant contends that the court improperly determined that it lacked jurisdiction to consider his motion. The state argues that the judgment from which the defendant appealed in the present case is an adjudication of criminal contempt, which can only be reviewed by writ of error. We agree with the state’s argument. Our review of the arguments raised in support of the motion to correct reveals that the defendant, in substance, challenges the procedures followed at the contempt proceeding and contempt judgment.

There is no dispute that the judgment rendered in this case was one of criminal contempt. “A contempt judgment is a reviewable final action. Where the contemptuous conduct occurs outside of the presence of the court, and the court acts on the motion of one of the parties, the contempt judgment is reviewable by appeal . . . and this is true even if the contempt sanctions imposed are criminal in nature. . . . Review of adjudications of criminal contempt, however, has been on a more restricted procedural basis when the contemptuous conduct occurred in the presence of the court and a summary adjudication of contempt was made. In Whiteside v. State, 148 Conn. 77, 78-79, 167 A.2d 450 (1961), the Supreme Court stated that in such instances [t]he sole method of review is by writ of error. . . .

“The summary punishment of persons who behave contemptuously or disorderly in the presence of the court is specifically authorized by General Statutes § 51-33. This power has been recognized as essential to the administration of justice. Without the power, a court would be helpless against persons disposed to obstruct, delay or thwart it. ... A court exercises considerable discretion in dealing with contemptuous conduct occurring in its presence, and its summary adjudication is accorded a presumption of finality. An adjudication of contempt is final and may be reviewed only on questions of jurisdiction such as whether the court had authority to impose, the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . From necessity the court must be its own judge of contempts committed within its presence. In such a case it may act of its own motion without any charge, formal or otherwise, being presented, without evidence, and solely upon facts within its own knowledge. If it has jurisdiction, there can be no review of its action.” (Citations omitted; internal quotation marks omitted.) State v. Melechinsky, 36 Conn. Sup. 547, 549-50, 419 A.2d 900 (1980).

The court in the present case made a summary adjudication of contempt on the basis of disrespectful verbal attacks and other physical conduct that interfered with the orderly business of the court. Because the conduct occurred in the presence of the court and the court made a summary adjudication of contempt on that basis, the sole method to review this determination was by writ of error. Id., 550. Because the defendant has not properly challenged the court’s summary adjudication by writ or error, a presumption of finality must be given to the court’s exercise of discretion in response to contemptuous behavior in its presence. Id., 551.

We conclude, therefore, that a writ of error was the appropriate vehicle to attack the court’s summary adjudication of contempt. Vasquez v. Superior Court, 102 Conn. App. 394, 409, 925 A.2d 1112, cert. denied, 284 Conn. 915, 931 A.2d 935 (2007). Because the defendant improperly challenges the criminal contempt judgment by a motion to correct an illegal sentence, we affirm the judgment of the trial court that it lacked subject matter jurisdiction to entertain the defendant’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       The court also, in the alternative, denied the motion on its merits. Because we conclude that court properly dismissed the motion, we need not consider any argument related to the merits of the motion.

       On March 15, 2005, the defendant pleaded guilty to burglary in the third degree in violation of General Statutes § 53a-103, conspiracy to commit forgery in the first degree in violation of General Statutes §§ 53a-48 and 53a-138, and larceny in the sixth degree in violation of General Statutes § 53a-125b. The guilty pleas were accepted by the court, M. Taylor, J., and sentencing was deferred to a later date.

       The transcript reveals the following colloquy:
      “The Court: Well, the court indicated today that there was a specific sentence that the court found is fair and appropriate. If your client doesn’t want to accept that, that’s fine, and he can go on a jury list and see what a judge does with the case after trial.
      “[The Defendant]: Then fucking put me on the jury list, motherfucker.
      “The Court: Thank you.
      “[The Defendant]: Fuck you.”

       The transcript reveals that the defendant resisted the judicial marshal’s efforts to bring him gently into the lockup.

       General Statutes § 51-33 provides: “Any court, including a family support magistrate, may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment than six months or both.”

       The fact that the defendant completed his sentence on September 9, 2008, does not give rise to mootness concerns in the present appeal. As our Supreme Court has recognized, a criminal contempt conviction invariably has collateral consequences beyond the imposition of jail time. See Rowe v. Superior Court, 289 Conn. 649, 654-59, 960 A.2d 256 (2008).


author: ROBINSON, J.

text:
    ULICES CORONA v. COMMISSIONER OF CORRECTION
    (AC 30425)
    Bishop, Gruendel and Robinson, Js.

      Argued December 4, 2009
    officially released August 24, 2010

      Justine F. Miller, special public defender, for the appellant (petitioner).

      ToniM. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David M. Carlucci, assistant state’s attorney, for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Ulices Corona, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner argues the court improperly denied his claim of ineffective assistance of counsel and that the imposition of his sentence on the basis of inaccurate information contained in his presentencing report impugned his rights to due process, as enshrined in both our state and federal constitutions. We affirm the judgment of the habeas court.

The facts surrounding the petitioner’s underlying conviction were set forth in the decision of this court disposing of the petitioner’s criminal appeal. “On the evening of August 20,1998, the [petitioner] was walking on Wethersfield Avenue in Hartford accompanied by three women, including his girlfriend. As they approached the intersection of Wethersfield Avenue and Barker Street, they encountered a group consisting of the victim, Warren Huertas, and two women standing in the doorway of a market on one comer of that intersection.

“As the [petitioner’s] group passed the market, the [petitioner’s] girlfriend called out to Huertas by name. Huertas responded by telling her to shut up. When she continued to call out to him, Huertas ignored her. The [petitioner’s] group then appeared to become angry and began shouting. The [petitioner] approached Huertas quickly, asking him who he thought that he was to be talking like that. When Huertas did not respond to the [petitioner’s] comments, the [petitioner] lifted him up and threw him to the ground. The [petitioner’s] companions then began to kick and hit Huertas.

“As one of Huertas’ companions went to call the police, the second woman who had been standing with Huertas called out to the [petitioner’s] group, telling them to leave Huertas alone. At that point, a melee erupted among the women and, apparently, the victim was temporarily forgotten. As the women fought, Huertas rose unsteadily to his feet and walked into the roadway. Goaded on by his girlfriend, the [petitioner] returned to Huertas, punched him in the face, forced him to the ground and put him in a choke hold. The [petitioner] then proceeded to stand on Huertas, sit on his chest and repeatedly strike his head against the pavement.

“The [petitioner] and his companions fled the scene at the sound of approaching sirens. When emergency help arrived, Huertas was barely breathing, was bleeding from the mouth, nose and ears, and had suffered abrasions on his upper chest. Huertas was transported to a hospital, where he died of craniocerebral trauma five days later.

“The [petitioner] initially was charged only with the crime of minder in violation of General Statutes § 53a-54a. He waived his right to a jury trial and elected to be tried by a three judge court pursuant to General Statutes § 54-82 (b). Shortly before the trial commenced, the state filed a substitute information charging the [petitioner] with two additional crimes, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1). The [petitioner] waived his right to a jury trial on those counts as well and elected to be tried by a single judge pursuant to § 54-82 (a). As the presiding judge of the three judge court, Judge Hartmere chose to hear the two conspiracy charges. At the conclusion of the trial, the three judge court found the [petitioner] not guilty of murder, but guilty of the lesser included offense of manslaughter in the first degree. Judge Hartmere found the [petitioner] not guilty of the two conspiracy charges. The [petitioner] was committed to the custody of the commissioner of correction for a period of eighteen years.” State v. Corona, 69 Conn. App. 267, 268-70, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002).

Subsequent to the resolution of the petitioner’s direct appeal, his sentence was reviewed and affirmed by the sentence review division. State v. Corona, Superior Court, judicial district of Hartford, Docket No. CR-98-526496 (May 22, 2007) (Iannotti, Miano and Espinosa, Js.). On April 22, 2002, the petitioner filed a petition for a writ of habeas coipus, and on February 28, 2008, he filed his fourth amended petition. The habeas court held a trial in connection with the amended petition on April 2, 2008, and issued its memorandum of decision denying the petition on September 11,2008. On September 26,2008, the court granted the petition for certification to appeal. This appeal followed.

On appeal, the petitioner first claims that the court improperly concluded that the assistance he received from his trial counsel, John O’Brien, was not ineffective because O’Brien (1) failed to correct inaccurate information contained in the petitioner’s presentencing investigation report (report) and (2) failed to call certain character witnesses during the sentencing hearing who would have been favorable to the petitioner. More specifically, with respect to the first allegation of ineffective assistance, the petitioner asserts that the report prepared by the probation officer indicated that he was unable to verify statements made by the petitioner regarding his previous employment positions, a scholarship he was offered to attend the University of Hartford and counseling sessions he had attended with a psychotherapist in 2000. The petitioner contends that these factual assertions readily were verifiable and that the probation officer’s statements to the contrary unfairly called into question the petitioner’s credibility. With regard to the second allegation of ineffective assistance, the petitioner asserts that O’Brien’s failure to call to testify at the sentencing hearing Roberto Cortez, a retired New York City police officer, who had known the petitioner for years and was available at the sentencing hearing to comment favorably on the petitioner’s behalf, was an unprofessional and prejudicial error. We are not persuaded by either claim.

We begin by setting forth our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). Moreover, “[a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citation omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 77, 967 A.2d 41 (2009). Finally, “[a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Leatherwood v. Commissioner of Correction, 105 Conn. App. 644, 647, 938 A.2d 1285, cert. denied, 286 Conn. 908, 944 A.2d 979 (2008).

Turning first to the petitioner’s claim that O’Brien’s failure to correct the inaccuracies contained in the report constituted ineffective assistance of counsel, we conclude that, irrespective of whether the performance prong was satisfied, the petitioner has not met the prejudice prong. The record is clear that the sentencing court predicated the heft of its sentence primarily on the “extremely brutal” manner in which the petitioner killed the victim. Indeed, in the few minutes it took the court to render its sentence, it stated that “Mr. Huertas’ death [occurred] in what this panel believes to have been a very brutal manner [and] was the direct result of your actions,” and, “[a]gain, we consider [the] circumstances of his death to be extremely brutal. It was a horrible way to die, and for that you are responsible.” Moreover, the court noted that the petitioner “had much promise”; it resolved, though, that due to “the nature of this crime, a serious sentence must be imposed.” Finally, the court concluded by stating that, notwithstanding the relevant mitigating factors, “given the very serious nature of this offense and the brutal manner of death, a serious sentence is warranted.” In light of these statements by the court, the petitioner’s claim that his credibility was a decisive factor in the court’s sentence appears to us to be implausible. Accordingly, we conclude that the petitioner has failed to demonstrate that, but for O’Brien’s alleged unprofessional errors, the result of the proceeding would have been different. See, e.g., Ruffin v. Commissioner of Correction, 106 Conn. App. 396, 400, 943 A.2d 1105 (failure to correct error in presentencing investigation report not ineffective assistance because petitioner failed to demonstrate that “the discrepancy would have made a difference in the sentence imposed”), cert. denied, 286 Conn. 922, 949 A.2d 481 (2008).

In connection with the petitioner’s claim that he received ineffective assistance of counsel because O’Brien failed to call favorable witnesses to testify during the sentencing hearing, we again conclude that the petitioner has failed to satisfy the prejudice prong. In the first instance, we note that there was substantial information before the sentencing court that emphasized the petitioner’s attributes. In addition to the report, which noted the petitioner’s genuine remorse for his actions, his lack of a criminal record, the support he received from his family and various accolades from a previous employer, the court also had before it numerous written character references from a wide variety of the petitioner’s acquaintances. In view of this material and of the court’s emphasis on the brutal nature of the victim’s death, we conclude that any additional testimony at the sentencing hearing would have been cumulative and unlikely to change the sentence imposed by the court. Consequently, the petitioner has not met the prejudice prong because he has not demonstrated that his sentence would have been different had those witnesses testified. See Ramos v. Commissioner of Correction, 67 Conn. App. 654, 666, 789 A.2d 502 (petitioner failed to demonstrate prejudice because this court could not “presume, on the state of [that] evidence, that there [was] a reasonable probability that [that] testimony would have altered the terms of [the petitioner’s] sentence”), cert. denied, 260 Conn. 912, 796 A.2d 558 (2002).

Finally, we address the petitioner’s claim, made for the first time on appeal as a separate and discrete claim, that his being sentenced on the basis of inaccurate and incomplete information deprived him of those due process rights cabined in our state and federal constitutions. We decline to review this claim because it was not distinctly pleaded in the petitioner’s habeas petition as a separate count and was not decided by the habeas court. “A petition for a writ of habeas corpus must set forth specific grounds for the issuance of the writ. Practice Book § 23-22 (1) specifically provides that the petition shall state ‘the specific facts upon which each specific claim of illegal confinement is based and the relief requested . . . .’ See Fernandez v. Commissioner of Correction, 86 Conn. App. 42, 49, 859 A.2d 948 (2004) (‘The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.’ . . . ). ‘While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. . . . The purpose of the [petition] is to put the [respondent, the commissioner of correction] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.’ ” Grant v. Commissioner of Correction, 121 Conn. App. 295, 300-301, 995 A.2d 641 (2010).

As previously noted, the petitioner in this case did not plead separately a due process violation in his petition, and that claim was never decided by the habeas court. That claim, therefore, is not properly before us, and our review of it would result in an unfair surprise to the respondent to have to answer in this procedural posture. Accordingly, we decline to review that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the defendant alleged a violation of due process as a fact in support of his claim of ineffective counsel, he did not allege a due process violation in a separate count in his habeas petition. Moreover, the defendant did not argue a due process claim during his habeas trial or in his posttrial brief to the court, and the court did not address that issue in its decision. Consequently, even if the amended petition could be read as raising this claim, it was abandoned. See Brown v. Commissioner of Correction, 104 Conn. App. 144, 150 n.7, 931 A.2d 963 (“Even if the amended petition could be read as raising this claim, in fact it was neither raised nor addressed in any way at the hearing. Accordingly, it was abandoned.”), cert. denied, 284 Conn. 937, 937 A.2d 693 (2007); Knight v. Commissioner of Correction, 81 Conn. App. 163, 164 n.l, 838 A.2d 1023 (declining to review challenges to counsel’s pretrial investigation because claims specifically abandoned at habeas trial), cert. denied, 268 Conn. 905, 845 A.2d 407 (2004).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. TAVORUS L. FLUKER
    (AC 30638)
    DiPentíma, C. J., and Alvord and Foti, Js.

      Argued May 18
    officially released August 24, 2010

      Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

      Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Tavorus L. Fluker, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and criminal possession of a firearm in violation General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that (1) the state violated the constitutional prohibition against presenting evidence of his post-Miranda silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct 2240, 49 L. Ed. 2d 91 (1976), and (2) the prosecutor committed prosecutorial impropriety by deliberately disregarding a court order regarding the admissibility of certain evidence involving police efforts to locate the defendant. We disagree and, accordingly, affirm the judgment of the trial court.

The following procedural history and facts, which the jury reasonably could have found, are relevant to the appeal. On the evening of February 9, 2007, the victim, Lewis Camby III, went to Sully’s Café, a tavern in Groton. Shortly after arriving, he encountered the defendant. After exchanging greetings, the defendant asked the victim, “what’s up with that $300 that you owe Danette [Robinson].” After a brief discussion, the two men decided that neither of them wanted to make an issue over the debt owed to Robinson. Subsequent to this conversation, the victim continued socializing within the bar and observed the defendant leave through a door located in the poolroom. Upset that the defendant had interfered in his personal business, the victim called Robinson to ask why the defendant was inquiring about the money that he owed her. A short time later, the victim encountered the defendant again. This time, the defendant appeared in the poolroom near a door, which exited into the parking lot. During this encounter, after motioning to the victim to come over to where he was standing, the defendant grabbed his arm, put a pistol under his chin and said, “I kill [people] like you.” Both men then proceeded toward the door in the poolroom which led into the parking lot. As the defendant exited, the victim remained close to the doorway, and the two men began to argue about the recent altercation. At this point, the defendant raised his arm and shot the victim in the chest with a large caliber automatic weapon.

Soon after the shooting, officers from the Groton town police department were dispatched to Sully’s Café. Upon arriving, Sergeant Jeffrey Scribner entered the tavern and observed the victim being held up by two patrons leaning against the bar. Scribner noticed “a bloody hole in the upper left chest area and in the clothing” of the victim where he had been shot. Despite being very emotional, the victim was alert enough to inform Scribner that he had been shot by “Tavorus.” When Scribner investigated further concerning the identity of the shooter, the victim told him that Tavorus was “Lamar’s brother.” Being familiar with Tavorus and Lamar, Scribner concluded that the defendant was the shooter. Police began a canvass of the crime scene and found a .45 caliber shell casing in the parking lot immediately outside a side door of the bar that led to the poolroom.

Shortly afterward, medical personnel arrived, stabilized the victim and transported him to William W. Backus Hospital. Officer Christopher Hoffman of the Groton town police department accompanied the victim in the ambulance and stayed with him at the hospital until he was flown by Life Star helicopter to Hartford Hospital. While waiting to be transported, the victim, once again, identified the defendant as the person who had shot him. The victim told Hoffman that the defendant shot him over an outstanding debt that he owed to a mutual friend. Following the victim’s identification of the defendant as the person who had shot him, the police began looking for the defendant.

The next morning, the defendant left Connecticut and drove to Philadelphia, Pennsylvania. He eventually went to Arkansas. At no time following the shooting did the defendant tell anyone he was leaving town or where he was going. That same morning, a warrant was issued for the arrest of the defendant in connection with the shooting. As part of their investigation, police contacted other area police departments and the United States Marshals Service for assistance in locating the defendant. Police also informed the New London Day newspaper (Day) that a warrant had been issued. Subsequently, the Day published an article concerning the defendant and the shooting.

The defendant was arrested in Arkansas on July 11, 2008. He then was transported to Newburgh, New York, by the United States Marshals Service and taken into custody by Detectives Robert Emery and Kevin Curtis of the Groton town police department. Once the defendant was secured in the transport vehicle, Curtis advised him of his Miranda rights. Subsequently, Emery asked the defendant “if he wanted to talk about the case.” Emery testified that “[the defendant] just declined. He said he didn’t want to talk about it, and I said okay. And he said he’s got five witnesses that will say he didn’t do it or wasn’t involved.” After Emery asked the defendant to supply the names of his alibi witnesses, the defendant responded, “no, that’s all right.”

Ultimately, the defendant was charged in a three count substitute information with attempt to commit murder, assault in the first degree and criminal possession of a firearm. The jury found the defendant guilty on all charges. The court sentenced him to a total effective term of twenty-five years incarceration. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the state violated the constitutional prohibition against presenting evidence of his post-Miranda silence in violation of Doyle v. Ohio, supra, 426 U.S. 610. Specifically, the defendant claims that his right to a fair trial was violated because the state impermissibly elicited testimony during its direct examination of Emery that the defendant refused to answer the officers’ questions after receiving his Miranda warnings. In addition, the defendant claims that the state impermissibly referenced this testimony, concerning his post-Miranda silence, during its closing argument. We disagree.

The following additional facts are relevant to our review of the defendant’s claim. On direct examination, Emery described the events that transpired after the defendant was taken into custody and advised of his right to remain silent. The following exchange between Michael L. Regan, the state’s attorney, and Emery occurred at trial:

“Q. And after he was advised of his rights, was [the defendant] asked any questions?
“A. I asked if he wanted to talk about the case.
“Q. And what did he say?
“A. He just declined. He said he didn’t want to talk about it, and I said okay. And he said he’s got five witnesses that will say he didn’t do it or wasn’t involved.
“Q. And what did you do when he said he had five witnesses that said that he wasn’t involved?
“A. I asked him for the names of the witnesses so I could talk to them.
“Q. And what did he say?
“A. He said no, that’s all right.”

The defendant did not object to this exchange. During cross-examination, defense counsel furthered this line of questioning by asking Emeiy whether the defendant ever told him that he would give the names of his alleged alibi witnesses to his attorney. Emery testified, “No, I don’t recall [whether] he said that.” During closing argument to the jury, the prosecutor recounted the defendant’s testimony at trial, stating, “[a]lso, you remember [that the defendant] testified [that] when he turned himself in that he had [those alibi] witnesses, but he never gave the police the names of [those] witnesses.” The defendant claims that the prosecutor’s “reference to [the defendant’s] invocation of his right to silence only served to stress . . . Emery’s impermissible testimony” and harmed the defendant, given that the state did not have a strong case against the defendant, despite the eyewitness testimony provided by the victim.

At the outset, we set forth the standard of review. Because the defendant did not object to the testimony, the issue is unpreserved, and he now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under the well established principles of Golding, a defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id.

On the basis of our review of the record, we conclude that the defendant has met the first two prongs of Golding. See State v. Camacho, 92 Conn. App. 271, 279, 884 A.2d 1038 (2005), cert. denied, 276 Conn. 935, 891 A.2d 1 (2006). His claim, however, fails to satisfy the third prong of Golding because the defendant did not invoke his right to remain silent, therefore, no violation of his constitutional rights clearly exists under Doyle. We also note that because the claim raises a question of law, our review is plenary. See State v. Stephen O., 106 Conn. App. 717, 729, 943 A.2d 477, cert. denied, 287 Conn. 916, 951 A.2d 568 (2008).

Under the third prong of Golding, we examine whether “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 240. The defendant claims that Emery’s testimony concerning the defendant’s post-Miranda comments about having alibi witnesses “was part and parcel of his refusal to talk to police” and that his disinclination to answer Emery’s follow-up question was a reaffirmation of his initial invocation of his fifth amendment right to remain silent. Consequently, the defendant claims that any elicitation and use of this testimony would violate his fifth and fourteenth amendment rights under the United States constitution. We are not persuaded and conclude that no constitutional violation clearly exists, and, therefore, the defendant’s claim fails under the third prong of Golding.

As this court previously has stated, “[a]ny inquiry into the admissibility of a statement obtained while a defendant is in custody must, of course, begin with [Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)]. In that case, the United States Supreme Court held that the fifth and fourteenth amendments’ prohibition against compelled seh-incrimination requires that a suspect in police custody be informed specifically of his or her right to remain silent and to have an attorney present before being questioned. . . . The court further held that ‘[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease’ . . . and that ‘[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.’ . . . Furthermore, ‘[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against seh-incrimination and his right to retained or appointed counsel.’ ” (Citations omitted.) State v. Smith, 107 Conn. App. 746, 750-51, 946 A. 2d 926, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008).

la Doyle, the United States Supreme Court expanded the protections it articulated in Miranda, holding that “the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. The court based its holding [on] two considerations: First, it noted that silence in the wake of Miranda warnings is insolubly ambiguous and consequently of little probative value. Second and more importantly], it observed that while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. . . . The court . . . reaffirmed Doyle's reasoning in Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986), in which it held that the defendant’s silence following his arrest and receipt of Miranda warnings could not be used at trial to rebut his defense of insanity. The court reasoned: The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.” (Internal quotation marks omitted.) State v. Bereis, 117 Conn. App. 360, 373, 978 A.2d 1122 (2009).

We begin our analysis by noting that there is no taiismanic “behavior or words” that will amount “to an expression of a defendant’s right to remain silent.” See State v. Smith, supra, 107 Conn. App. 752; but see Berghuis v. Thompkins, 560 U.S. 370, 382, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010) (unambiguous statement by an arrested person expressly articulating that he “wanted to remain silent or that he did not want to talk with the police” would be enough to invoke right to remain silent and end questioning). “Voluntary statements made to police during post-Miranda interrogations are admissible as long as the record contains no evidence of threats, promises or coercive or deceptive measures by the police.” State v. Smith, supra, 752. The defendant argues that his statement to Emery that he had five alibi witnesses came after he declined to speak about the crime and, therefore, any use of that statement, or subsequent statements, by the state would violate his constitutional rights under Doyle. It is axiomatic, however, that Doyle is not applicable when a defendant has waived his right to remain silent. See State v. Boyd, 295 Conn. 707, 749, 992 A.2d 1071 (2010). Moreover, “[o]nce an arrestee has waived his right to remain silent, the Doyle rationale is not operative because the arrestee has not remained silent and an explanatory statement assuredly is no longer ‘insolubly ambiguous.’ By speaking, the defendant has chosen unambiguously not to assert his right to remain silent. He knows that anything he says can and will be used against him and it is manifestly illogical to theorize that he might be choosing not to assert the right to remain silent as to part of his exculpatory story, while invoking that right as to other parts of his story. While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain ‘selectively’ silent.” (Emphasis added.) State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985).

For similar reasons set forth by our Supreme Court in Taitón, Doyle is not applicable to the present case. The crucial distinction is that, here, the defendant did not remain silent after he was arrested and advised of his rights and, therefore, expressly chose to forgo his right to remain silent. See id.; see also Berghuis v. Thompkins, supra, 560 U.S. 384 (when Miranda warning given and understood, “an accused’s uncoerced statement establishes an implied waiver of the right to remain silent”). The defendant argues that his initial disinclination to answer Emery’s query about whether “he wanted to talk about the case” was an invocation of his fifth amendment right to remain silent. Furthermore, the defendant argues that his immediate, and unsolicited, reference to having five alibi witnesses, after his initial disinclination, was an affirmation that he did not want to discuss the case. Despite the defendant’s assertion, “the refusal of a defendant to answer a particular question during a custodial interrogation is not an invocation of the right to remain silent.” State v. Smith, supra, 107 Conn. App. 752; see also State v. Talton, supra, 197 Conn. 295 (affirming trial court’s finding that “the defendant’s expression of a disinclination to answer one question was not tantamount to any assertion of his fifth amendment right”); State v. Boyd, supra, 295 Conn. 750 (“defendant had not invoked his right to remain silent by stating that he was not ready to discuss [exculpatory statements made] and, therefore, [police testimony] about those statements did not violate Doyle").

In Taitón, the defendant freely offered information to the police after receiving his Miranda rights. State v. Talton, supra, 197 Conn. 293. In response to the officers’ questions, the defendant then refused to divulge the name of his alleged accomplice, saying, “I’d rather not tell you. I don’t want to tell you.” (Internal quotation marks omitted.) Id., 296. Subsequently, the court held that “[u]nder these circumstances, because the defendant failed to invoke his fifth amendment right to remain silent, the evidence was neither impermissibly elicited nor improperly admitted”; id.; and, thus, allowed police to testify at trial that the defendant declined to answer their question. Id., 294. In the present case, the defendant was read his Miranda warnings and asked if he wanted to discuss the case. After telling Emery that he did not want to discuss the case, the defendant began immediately to discuss potentially exculpatory evidence concerning alibi witnesses who would exonerate him from the charges. There is no evidence on the record to suggest that the defendant was provoked, coerced or even asked a question prior to this statement. Moreover, there is no evidence to indicate that the defendant asked to end the questioning or that he requested an attorney. He just continued to talk. Despite telling Emeiy that he was not going to discuss the case, the defendant’s statements immediately following receipt of his Miranda warnings clearly indicated that he was not invoking his fifth amendment right to remain silent. After stating that he had multiple alibi witnesses, Emery asked the defendant the names of those people, and the defendant stated, “no, that’s all right.” In an attemptto distinguish Taitón, the defendant argues that his initial remark that he did not want to talk, somehow preserved, and insulated, his fifth amendment right to remain silent, regardless of what he might say subsequently. This argument, however, fails to take into account our appellate precedent that holds that “[s] elective silence is not protected . . . .” (Citation omitted.) State v. Torres, 85 Conn. App. 303, 316, 858 A.2d 776, cert. denied, 271 Conn. 947, 861 A.2d 1179 (2004); id., 315 (Doyle analysis inapplicable when defendant “alternates between remaining silent and speaking”); see also State v. Boyd, supra, 295 Conn. 749-50; State v. Casey, 201 Conn. 174, 185-86, 513 A.2d 1183 (1986); State v. Talton, supra, 295; State v. Smith, supra, 107 Conn. App. 752; footnote 9 of this opinion.

We conclude that the defendant’s initial disinclination that he did not want to discuss the case, followed immediately by his discussing the case, was not an invocation of his right to remain silent. Therefore, his willingness to speak, and, consequently, his refusal to provide names of alibi witnesses to police, was part of a conversation in which he freely engaged. We conclude that the defendant’s claim fails under the third prong of Golding because the constitutional violation he alleges does not clearly exist. See State v. Antwon W., 118 Conn. App. 180, 191, 982 A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d 568 (2010); see also State v. Golding, supra, 213 Conn. 240.

II

Next, the defendant claims that the prosecutor committed prosecutorial impropriety by deliberately disregarding a court order regarding the admissibility of certain evidence involving police efforts to locate the defendant. Specifically, the defendant claims that the state deliberately violated the court’s ruling by asking Detective John Varone of the Groton town police department if the Day had published an article after it was informed that the police had issued an arrest warrant for the defendant. We reject the defendant’s claim of impropriety because we conclude that the state did not violate an evidentiary ruling of the court.

The following additional facts and procedural history are relevant to our resolution of the defendant’s claim. At trial, the state sought, outside the presence of the jury, permission to admit evidence of (1) a wanted poster of the defendant that was marked for identification as state’s exhibit twenty-eight and (2) a newspaper article from the Day reporting that police had issued a warrant for the defendant’s arrest. After a lengthy colloquy between the parties and the court, the prosecutor requested express clarification from the court regarding its order: “I want to know what limitations I have on . . . Varone’s and the [police] department’s efforts to find [the defendant].” The court ruled: “For the moment, I’m ruling that the state can show what efforts were made; however, [it] cannot utilize state’s exhibit twenty-eight for identification. You may ask the detective whether or not the Day was contacted to further attempt to show—to further attempt to disseminate the information, but not [what Day reporter Chuck] Powter wrote—that the Day did publish something.” (Emphasis added.) Thereafter, the court reiterated to defense counsel, “[a]nd again ... at any time, you have the right to object . . . for us to hash it out, so to speak.” During the state’s direct examination of Var-one, he was asked if police notified “any of the local papers?” Varone responded that they had. When asked which newspaper he had contacted, the defendant objected. A conference among the court and counsel ensued off the record. Once back on the record, Varone was allowed to answer that he had contacted the Day. The prosecutor then asked Varone:

“Q. And was there an article published by the Day concerning [the defendant]?
“A. Yes, there was.
“Q. And was [the defendant] ultimately placed under arrest?
“A. Yes, he was.”

The defendant did not object during that examination. He now argues that the prosecutor deliberately violated the court’s order by introducing evidence that the newspaper published the article. We disagree.

At the outset, we note that a prosecutor may not deliberately ignore a court ruling. State v. Ubaldi, 190 Conn. 559, 567, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). In reviewing claims of prosecutorial impropriety, our preliminary task is to determine whether the alleged impropriety occurred. See State v. Tok, 107 Conn. App. 241, 253, 945 A.2d 558 (“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. ... (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.” [Internal quotation marks omitted.]), cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).

In the present case, the defendant claims that the state deliberately violated the court’s evidentiary order. Our careful review of the court’s ruling, however, does not support the contention that the prosecutor violated the court’s order. We find that the court’s ruling specifically allowed the state to inquire about whether the Day was contacted and whether the newspaper had published an article. The defendant miscasts the court’s ruling, which expressly prohibited the prosecutor from inquiring into the content of the article but permitted the prosecutor to ask whether the Day did, in fact, publish an article. This conclusion is buttressed by the court’s overruling the defendant’s objection when the prosecutor asked Varone which newspaper he had contacted. After a conference among the court and counsel, the court allowed Varone to testify that he contacted the Day and that the newspaper had published an article concerning the defendant. The court is well aware of the scope of its orders. Therefore, under the circumstances present here and given that there were no further objections by the defendant or intervention from the court, we cannot conclude that the prosecutor failed to comport with the court’s ruling. See id., 263 (court in best position to determine whether its order had been violated); cf. State v. Ubaldi, supra, 190 Conn. 563 (courtin more favorable position to assess impact of challenged remarks, given its familiarity with context in which remarks delivered). We do not agree with the defendant that the prosecutor deliberately violated the court’s ruling. Accordingly, no prosecutorial impropriety occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The victim said that he knew the defendant through his longtime friend, Robinson, and would see him frequently at her apartment. The victim also said that he owed Robinson $300 for an unpaid debt.

       The victim was treated for a single gunshot wound in his upper chest that resulted in trauma to both lungs and fractures to the sternum, a left rib and the left shoulder. The bullet lodged in his right shoulder and was never removed due to potential medical complications.

       Emergency medical personnel responding to the scene assessed the victim’s mental status using the Glaseo Coma Scale, a procedure health care providers employ to determine if a person is conscious and alert. The victim’s score was fifteen, the highest rating on the scale, indicating that he was alert, conscious, oriented and able to communicate effectively.

       We note that the victim testified unequivocally at trial that the defendant was the person who shot him on February 9, 2007.

       The defendant testified that he had left town to overcome an alcohol addiction and to enter a rehabilitation center in Arkansas.

       To ensure the accuracy of the administration of the Miranda rights, Curtis read the defendant his rights from the back of his identification card, which contained the verbatim language of the Miranda warnings.

       During cross-examination, the prosecutor asked the defendant, “Well, when you talked to the police and told them that you had, you know, a number of people that were going to put you somewhere else at the time the crime occurred, you wouldn’t tell them the names at that time.” The defendant explained, for the first time, at trial, that he did not provide the names of his alleged alibi witnesses because “I wanted to talk to my lawyer first.”

       Relying on State v. Brunetti, 279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007), the state argues that the record is inadequate for review. We find Brunetti inapposite and conclude that the record is adequate for our review. See State v. Bereis, 117 Conn. App. 360, 372, 978 A.2d 1122 (2009) (finding record adequate for review of Doyle violation when police officer’s testimony sufficiently “described the sequence of events [of] his actions and the defendant’s actions after the defendant had been taken to the police barracks”).

       The defendant argues that Taitón is distinguishable from the present case because he, unlike the defendant in Taitón, initially told police that he did not want to discuss the case. This argument, however, ignores that regardless of when the defendant’s supposed refusal occurred, he nevertheless immediately volunteered the police an exculpatory statement.

       Relying on State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert, denied, 284 Conn. 912, 931 A.2d 932 (2007), the state argues that the defendant is attempting to transform an “unpreserved evidentiary claim into one of prosecutorial impropriety [in order] to obtain review of this claim” and, thus, the claim should not be reviewed by this court. Although the defendant’s claim germinates from an evidentiary ruling, the ultimate claim raised on appeal is that the prosecution deliberately violated a court order. After a review of our opinion in Cromety, we conclude the facts of that case to be inapposite. Although we will not afford review to unpreserved “evidentiary claims masquerading as constitutional violations”; State v. Cromety, supra, 431; those instances do not involve allegations of prosecutorial impropriety predicated on a deliberate violation of a court’s evidentiary ruling.
      Here, the defendant alleges that the state deliberately violated the strictures of the court’s ruling, not that the court’s ruling was incorrect. See State v. Williams, 102 Conn. App. 168, 176, 926 A.2d 7 (“appellate courts of this state have held that evidentiary violations of a court order should be reviewed as prosecutorial [impropriety], not evidentiary errors”), cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). Therefore, we disagree with the state’s contention that the defendant’s claim purely is evidentiary.

       We note, however, that a different standard is applied when the claim involves deliberate prosecutorial impropriety during trial that violates express trial rulings. “In such instances, [t]his court . . . has supervisory power to vacate a judgment of conviction and to order a new trial to deter prosecutorial [impropriety] which, while not so egregious as to deprive the defendant of a fair trial, is unduly offensive to the maintenance of a sound judicial process.” (Internal quotation marks omitted.) State v. Tok, supra, 107 Conn. App. 262. Because we conclude that no prosecutorial impropriety occurred in the present case, we need not proceed with this analysis.


text:
    WILLIAM BIASETTI v. CITY OF STAMFORD ET AL.
    (AC 30867)
    DiPentima, Harper and Peters, Js.

      Argued February 16
    officially released August 24, 2010

      Stewart M. Casper, with whom was Benjamin H. Pomerantz, for the appellant (plaintiff).

      James D. Moran, Jr., with whom was Maribeth M. McGloin, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

HARPER, J.

The plaintiff in this workers’ compensation matter, William Biasetti, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) dismissing his claim for benefits under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. On appeal, the plaintiff claims that (1) the board improperly interpreted the phrase “arises from” in General Statutes (Rev. to 2005) § 31-275 (16) (B) (ii) to require a causal connection between his physical injuries and his post-traumatic stress disorder (disorder); (2) the board improperly required a direct physical encounter as a prerequisite to compensability for a mental impairment under § 31-275 (16) (B) (ii); and (3) the commissioner improperly relied on the opinion of a physician who performed an independent medical examination of the plaintiff and made adverse and unreasonable inferences that were not predicated on the subordinate facts. We affirm the decision of the board.

The following facts, as found by the commissioner, and procedural history are relevant to the plaintiffs appeal. At the time of the events giving rise to this appeal, the plaintiff was employed as a police officer with the Stamford police department. On May 24, 2005, the plaintiff was involved in a high speed car chase on Interstate 95 during a torrential rainstorm. At the conclusion of the high speed chase, the plaintiff was involved in a gun battle with the suspects and was in fear of losing his life. During the course of the gun battle, the plaintiff injured his right elbow and left knee as he attempted to leap over a guardrail. As a result of injuries sustained while hurdling the guardrail, the plaintiff was diagnosed with a 2 percent permanent partial disability to his right upper extremity and a 5 percent permanent partial disability to his left lower extremity. The plaintiff received disability benefits for those physical injuries, the compensability of which the parties do not dispute. The plaintiff was also diagnosed with the disorder as a result of the events of May 24, 2005. The plaintiff brought a claim for compensation for the disorder under the act, which the commissioner denied.

At the hearing before the commissioner, the parties did not dispute that the plaintiff was suffering from the disorder as a result of the events of May 24, 2005, nor is that issue disputed on appeal. Rather, the parties disputed only the compensability of the plaintiffs disorder. At the hearing, the plaintiff offered testimony from Joel S. Albert, his treating psychiatrist. Albert testified that the plaintiffs injuries, the high speed chase and the gun battle were inextricable parts of one event that gave rise to the plaintiffs disorder. Albert also testified, however, that, absent the surrounding circumstances, the plaintiffs physical injuries alone would not have caused the plaintiffs disorder. The defendants offered the deposition testimony of Mark Rubinstein, a psychiatrist who performed the independent medical examination of the plaintiff. Rubinstein testified that the plaintiffs injuries were not a causative factor in the development of the plaintiffs disorder, which, in Rubinstein’s opinion, would have developed absent the injuries, based on “the psychic experience and the actual experience with the threat of death that [the plaintiff] faced on May 24, 2005.”

The commissioner determined that, in order to be compensable under the act and, specifically, § 31-275 (16) (B) (ii), “the [plaintiffs disorder] must arise from some physical injury suffered in the May 24, 2005 incident.” In dismissing the plaintiffs claim, the commissioner found that “[t]he weight of the medical evidence does not support the contention that the [plaintiffs disorder] arose from, or was caused by, any physical injury or occupational disease suffered by the [plaintiff] on the evening of May 24, 2005.” The plaintiff filed a lengthy motion to correct that, with the exception of one minor factual correction not relevant to this appeal, the commissioner denied. The plaintiff appealed from the commissioner’s decision to the board. Finding no error, the board unanimously affirmed the commissioner’s decision. This appeal followed. See General Statutes § 31-301b.

I

The plaintiff first claims that, in affirming the commissioner’s decision, the board improperly interpreted the words “arises from” in § 31-275 (16) (B) (ii) to require a causal connection between the plaintiffs physical injuries and his disorder. The plaintiff argues that § 31-275 (16) (B) (ii) should be interpreted to require only a showing that his mental impairment was “accompanied by” a physical injury. We disagree.

As an initial matter, we set forth the standard of review applicable to the board’s interpretations of the workers’ compensation statutes. “It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny.” (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 294 Conn. 564, 572, 986 A.2d 1023 (2010).

The plain language of § 31-275 (16) (B) (ii) and relevant case law from both this court and our Supreme Court support the board’s conclusion that, for the plaintiff to demonstrate his entitlement to benefits for the disorder under the act, there must be a causal relationship between the physical injuries he sustained on May 24, 2005, and his disorder. At the time of the plaintiffs injuries, § 31-275 (16) (B) provided in relevant part: “ ‘Personal injury’ or ‘injury’ shall not be construed to include . . . (ii) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease . . . .” General Statutes (Rev. to 2005) § 31-275 (16) (B). This court previously has interpreted the plain language of § 31-275 (16) (B) (ii) to require a showing of causation between a physical injury or occupational disease and a mental impairment for which compensation benefits are sought. Chesler v. Derby, 96 Conn. App. 207, 212, 899 A.2d 624, cert. denied, 280 Conn. 909, 907 A.2d 88 (2006). Specifically, in Chester, this court concluded that the “language of clause (ii) of § 31-275 (16) (B) is plain and unambiguous. It excludes mental or emotional impairments from the definition of personal injury under the [act] except when such impairments are caused by a physical injury or occupational disease.” (Emphasis added.) Id.

Additionally, in interpreting § 31-275 (16) (B) (ii) to require a causal relationship between the plaintiffs physical injury and his disorder, both the commissioner and the board relied on our Supreme Court's ruling in Biasetti v. Stamford, 250 Conn. 65, 735 A.2d 321 (1999). Likewise, we deem Biasetti to be instructive. In Biasetti, the plaintiff appealed from the denial of workers’ compensation benefits for the disorder he suffered as a result of another high speed chase and gun battle he was involved in while on duty as a Stamford police officer. Id., 67-69. In the incident at issue in that case, however, the plaintiff did not suffer any physical injury. Id. The court held that, although the plaintiffs disorder was an occupational disease, it was not compensable under the act because it did not arise from a physical injury or occupational disease. Id., 80-82. Our Supreme Court concluded: “Section 31-275 (16) (B) (ii) includes within the definition of ‘personal injury’ an emotional impairment that arises from or is caused by a physical injury or occupational disease. It does not, however, extend coverage to an emotional impairment which itself is an occupational disease. To conclude otherwise would be to ignore the causation requirement encompassed within the term ‘arises.’ ” (Emphasis in original.) Id., 79; cf. Driscoll v. General Nutrition Corp., 252 Conn. 215, 225-26, 752 A.2d 1069 (2000) (applying principles set forth in Biasetti but concluding that plaintiffs mental impairment was caused by her physical injuries and therefore covered by act).

Thus, both this court and our Supreme Court explicitly have interpreted the term “arises from” in § 31-275 (16) (B) (ii) to require a causal relationship between a physical injury or occupational disease and a claimed mental impairment in order for the mental impairment to be compensable under the act. The plaintiffs argument that under § 31-275 (16) (B) (ii) he need only show that the mental impairment was “accompanied by” a physical injury, therefore is contrary to both the plain meaning of “arises from” and prior judicial interpretations of § 31-275 (16) (B) (ii). For these reasons, we conclude that the board properly interpreted “arises from” in § 31-275 (16) (B) (ii) to require a causal relationship between the plaintiffs injury and his disorder.

II

The plaintiff next claims that the board improperly required, as a prerequisite for benefits under the act, that a claimed mental impairment be causally related to a direct physical encounter. The plaintiff asserts that the board improperly distinguished his case from other cases involving compensable claims arising from a mental impairment on the ground that his case did not involve a direct physical encounter. The plaintiff therefore interprets the board’s opinion as imposing an additional requirement of a direct physical encounter before a claim for benefits for a mental impairment could be compensable. We reject this claim on the basis of our conclusion that the board did not impose such a requirement.

Before the board, the plaintiff argued that his case is similar to previous cases in which compensation had been awarded for the disorder. In support of this position, the plaintiff relied on three of the board’s prior decisions involving physical altercations that gave rise to mental impairments. When differentiating the plaintiffs case from these prior decisions, the board stated that the “lack of a direct physical encounter . . . serves to set this matter apart from the precedent reviewed herein.” Ultimately, however, the board concluded that “in light of the evidentiary submissions regarding the genesis of the [plaintiffs] physical injuries and the role those injuries played relative to the development of the [symptoms of the plaintiffs disorder], we conclude that the circumstances of the instant matter distinguish it sufficiently from the prior cases discussed herein such that we must affirm the factual determinations made by the trial commissioner.” (Emphasis added.)

Although the board did differentiate the plaintiffs case from other workers’ compensation cases in which injuries associated with a direct physical encounter gave rise to compensable claims for the disorder, the board did not expressly conclude that a direct physical encounter is a requirement for all compensable disorder claims under § 31-275 (16) (B) (ii). Absent such an express assertion, we will not assume that the board intended to impose such a requirement, and we need not address the propriety of such a requirement absent any indication that it was imposed by the board. Moreover, on the basis of our reading of the board’s decision, it is apparent that the board ultimately affirmed the decision of the commissioner after finding that the commissioner properly determined that the plaintiffs injuries did not cause the plaintiffs disorder, as required by § 31-275 (16) (B) (ii).

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As he did before the board, the plaintiff also claims that the commissioner improperly relied on the expert opinion of Rubinstein, the physician who performed the independent medical examination of the plaintiff, and made adverse and unreasonable inferences that were not predicated on the subordinate facts. We are not persuaded.

In our review of workers’ compensation appeals, “we note that when a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.” (Internal quotation marks omitted.) Romanski v. West Hartford, 34 Conn. App. 307, 316, 641 A.2d 439 (1994). “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, supra, 294 Conn. 572. “It is . . . immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable, and [the commissioner’s choice], if otherwise sustainable, may not be disturbed by a reviewing court.” (Internal quotation marks omitted.) Six v. Thomas O’Connor & Co., 235 Conn. 790, 799, 669 A.2d 1214 (1996). “[T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .” (Internal quotation marks omitted.) Mele v. Hartford, 118 Conn. App. 104, 107, 983 A.2d 277 (2009).

In light of this standard, we conclude that the commissioner’s rebanee on Rubinstein’s opinion was in no way improper, nor were any of her inferences based on that opinion unreasonable. The commissioner made several findings in support of her conclusion that the plaintiffs disorder was not caused by his physical injuries, all of which are supported by the record. In her findings, the commissioner noted that although the plaintiffs expert, Albert, originally testified that the plaintiffs injuries and the gun battle were inextricable parts of one event, Albert later agreed that the “true precipitating factor” of the plaintiffs disorder was the life-threatening event, not the injuries. The commissioner also relied on Rubinstein’s opinion that the plaintiffs injuries did not play a causative role in the plaintiffs disorder. In addition, the commissioner rebed on the plaintiffs own testimony about the events of May 24, 2005, and his disorder. It is the role of the commissioner to make credibihty determinations on the basis of the conflicting testimony of the witnesses, and we wih not disturb those credibihty determinations on appeal. See, e.g., Greene v. Aces Access, 110 Conn. App. 648, 653, 955 A.2d 616 (2008). On the basis of the record, we conclude that the commissioner’s decision was not based on an incorrect application of the law to the subordinate facts, nor was it the result of any inferences unreasonably or illegally drawn from them. See Marandino v. Prometheus Pharmacy, supra, 294 Conn. 572.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The defendants in this matter are the city of Stamford and its workers’ compensation insurer, Webster Risk Insurance.

       It is well settled that when determining the obligations of the parties, we apply the statutory authority that existed at the time of the injury. See Civardi v. Norwich, 231 Conn. 287, 293 n.8, 649 A.2d 523 (1994) (applying revision of act in place at time of injury).
      We note that Public Acts 2005, No. 05-208, § 4, effective October 1, 2005, amended § 31-275 (16) (B) (ii) to add a special exception for police officers. Section 31-275 (16) (B) (ii) (II) now includes within the definition of a compensable injury, a mental impairment which arises “from such police officer’s use of deadly force or subjection to deadly force in the line of duty, regardless of whether such police officer is physically injured, provided such police officer is the subject of an attempt by another person to cause such police officer serious physical injury or death through the use of deadly force, and such police officer reasonably believes such police officer to be the subject of such an attempt. . . .”

         Biasetti v. Stamford, supra, 250 Conn. 65, involved the same plaintiff before us in the current matter but addressed a distinct claim for benefits under the act arising out of a separate series of events.

       The cases relied on by the plaintiff and differentiated by the board were David v. Beloff Billiards, Inc., No. 4843 CRB-4-04-8 (August 15, 2005) (disorder compensable when it arose from broken fingernail and tinnitus sustained while pushing co worker out of way of gunshot), Bilsky v. Ansonia

        Copper & Brass, No. 4703 CRB-5-03-8 (August 23, 2004) (claim remanded for findings as to causal connection between disorder and injuries plaintiff suffered when slapped in face by supervisor), and Nunes v. State, No. 4360 CRB-2-01-2 (January 16, 2002) (disorder found compensable when it arose from physical altercation with gunman, during which plaintiff sustained lacerations to hands).

       The plaintiff also claims that the board improperly deferred to the commissioner’s reliance on Rubinstein’s expert opinion. The plaintiff argues that the commissioner’s credibility determination was not entitled to the deference customarily afforded such determinations because the defendants, the city of Stamford and its workers’ compensation insurer, Webster Risk Insurance, offered Rubinstein’s testimony in the form of a deposition transcript, rather than live testimony. In support of this claim, the plaintiff relies on our Supreme Court’s holding in Pietraroia v. Northeast Utilities, 254 Conn. 60, 756 A.2d 845 (2000). In Pietraroia, our Supreme Court did not afford deference to the commissioner’s credibility determinations when such determinations were based solely on documentary evidence. Id., 75. Specifically, our Supreme Court noted: “[N]o testimony regarding any of the underlying assertions was taken. All of the facts concerning [the relevant issues] . . . were reflected in the medical reports from the physicians .... Thus, the deference we normally would give to the commissioner on issues of credibility is not warranted in the present case, because we are as able as he was to gauge the reliability of those documents.” Id.
      The plaintiffs reliance on Pietraroia is unpersuasive. In the present case, the commissioner’s findings were based on the live testimony of the plaintiff and the plaintiffs expert, Albert, as well as the deposition testimony of Rubinstein. Thus, we are not faced with a situation analogous to that addressed by our Supreme Court in Pietraroia, in which the commissioner’s determinations were based solely on documentary evidence. The commissioner’s credibility determinations therefore are entitled to deference, as the commissioner is “the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .” (Internal quotation marks omitted.) Mele v. Hartford, 118 Conn. App. 104, 107, 983 A.2d 277 (2009).

       The plaintiff also argues, as one aspect of his claim, that the commissioner improperly failed to conclude that the disorder was compensable because the events of May 24, 2005, exacerbated a preexisting diagnosis of the disorder. We note that exacerbation of the preexisting disorder may qualify as a compensable mental impairment under the act, provided the exacerbation arose from a physical injury or occupational disease. See Gartrell v. Dept. of Correction, 259 Conn. 29, 38, 787 A.2d 541 (2002). We will not address such a claim here, however, as the commissioner made no findings regarding exacerbation of the preexisting disorder, but, to the contrary, found that the plaintiffs disorder was caused by the events of May 24, 2005, not the physical injuries sustained on that date.