author: HARPER, J.

text:
    EDDIE P. LEWIS v. COMMISSIONER OF CORRECTION
    (AC 29276)
    Bishop, Harper and Beach, Js.
    Argued May 21
    officially released September 15, 2009

      Robert T. Rimmer, special public defender, for the appellant (petitioner).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Richard J. Rubino, assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Eddie P. Lewis, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly failed (1) to conclude that his trial counsel rendered ineffective assistance in relation to the petitioner’s waiver of a jury trial, (2) to conclude that his trial counsel rendered ineffective assistance by allegedly taking away from the petitioner the right to decide whether to testify at trial, (3) to conclude that the trial court violated the petitioner’s sixth amendment right to counsel by failing to appoint an attorney to represent him during the criminal trial with respect to other charges in a separate proceeding and (4) to consider the testimony of the petitioner’s expert witness. We affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. Following a trial to the court, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and threatening in the second degree in violation of General Statutes § 53a-62. He was sentenced to fourteen years of incarceration followed by six years of special parole. Following his direct appeal, this court affirmed the judgment of conviction. See State v. Lewis, 83 Conn. App. 489, 850 A.2d 1059, cert. denied, 271 Conn. 903, 859 A.2d 565 (2004).

At the petitioner’s criminal trial, the court, Mullarkey, J., reasonably could have found the following facts. In January, 2001, the petitioner entered a Carvel ice cream shop in West Hartford. The supervisor on duty, Allison Cabrera, immediately recognized the petitioner and elicited a response from the petitioner when she addressed him by name. The petitioner then approached Cabrera, threatened to use a firearm and demanded that she lead him to the store’s safe. The petitioner took money from the store’s safe and cash register and exited the store. The petitioner’s defense at trial was that he never intended to rob or to threaten anyone because Cabrera’s husband, with whom the petitioner was acquainted, owed him money and suggested that the petitioner go to Carvel at a time when Cabrera was working and take money from the store in settlement of the debt owed to him.

After the petitioner’s judgment of conviction was affirmed on direct appeal, he filed an amended petition for a writ of habeas corpus. In his amended petition, the petitioner alleged numerous instances in which his trial counsel, Donald Freeman, rendered ineffective assistance, including, inter alia, a claim that Freeman rendered ineffective assistance in relation to the petitioner’s waiver of a jury trial. The petitioner also alleged three instances of trial court impropriety, including, inter alia, a claim that the court violated his sixth amendment right to counsel by failing to appoint an attorney to represent him during the criminal trial with respect to other charges in a separate proceeding. The court, Fuger, J., denied his petition on all counts. The petitioner filed a petition for certification to appeal from the denial of his petition for a writ of habeas corpus, which the court granted. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner first claims that the court improperly failed to conclude that Freeman rendered ineffective assistance in relation to the petitioner’s waiver of a jury trial. Specifically, he claims that the court improperly failed to credit his version of events, namely, that Freeman pressured him to waive his right to a juiy trial and coerced Sandra Polite, the petitioner’s mother, to convince the petitioner to waive this right. We disagree.

The following additional facts are relevant to our resolution of the petitioner’s claim. At his arraignment on the robbery and threatening charges, the petitioner pleaded not guilty and requested a trial by jury. Prior to the start of evidence, Freeman stated to Judge Mullar-key that the petitioner had decided to change his election to a court trial. The court then canvassed the petitioner. A recess was taken to allow the petitioner and Freeman to further discuss the implications of electing a court trial. After the recess, the court asked the petitioner, inter alia, if any pressure had been placed on him to make the decision to elect a court trial, to which the petitioner responded in the negative. At the completion of the canvass, the court found that the petitioner intelligently, knowingly and voluntarily waived his right to a jury trial. Subsequently, the petitioner was put to plea on a substitute information and pleaded not guilty to the robbery and threatening charges and elected to be tried to the court.

At the habeas trial, the petitioner testified that Freeman had pressured him into electing a court trial by telling him that he would not receive more than a seven year sentence if convicted following a court trial because Freeman was good friends with the presiding judge. The petitioner testified that Freeman spoke with Polite, who, while crying, told the petitioner to elect a court trial because he only would be facing the possibility of seven years imprisonment. The petitioner maintained that he elected a court trial because Polite was upset and because he thought that he would receive only a seven year sentence if he was found guilty. Polite testified in support of the petitioner’s version of events.

Freeman testified that he had advised the petitioner that a court trial would be preferable because it might be more likely that a judge, rather than a jury, would understand and credit the petitioner’s defenses. Freeman testified that “there’s no question that [the petitioner] made the final decision.” He further testified that he never advised the petitioner that he would receive only seven years imprisonment if he elected a court trial and was convicted.

The court found that the petitioner failed to prove his claim of ineffective assistance of counsel. The court did not credit the petitioner’s version of events that Freeman pressured him into electing a court trial by informing him that he would receive only a seven year sentence if he was found guilty following a court trial. The court instead credited Freeman’s testimony and found that Freeman adequately advised the petitioner of the implications of waiving the right to a jury trial and that the petitioner did so intelligently, voluntarily and knowingly.

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” (Internal quotation marks omitted.) Earl G. v. Commissioner of Correction, 106 Conn. App. 758, 761, 943 A.2d 1118, cert. denied, 288 Conn. 901, 952 A.2d 809 (2008).

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. “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.) Necaise v. Commissioner of Correction, 112 Conn. App. 817, 820, 964 A.2d 562, cert. denied, 292 Conn. 911, 973 A.2d 660 (2009).

The petitioner’s claim on appeal is based on his assertion that the court improperly credited Freeman’s testimony and rejected his version of events. The court’s finding that the petitioner had not proven his claim of ineffective assistance is based on a credibility determination. “It is well established that a reviewing court is not in the position to make credibility determinations. . . . This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Hutton v. Commissioner of Correction, 102 Conn. App. 845, 853, 928 A.2d 549 (2007). Because the petitioner’s claim is premised entirely on issues of credibility, he cannot prevail.

II

The petitioner also claims that the court improperly failed to conclude that Freeman rendered ineffective assistance by forcing him to testify at trial, rather than giving to the petitioner the right to choose whether to testify. We decline to review this claim.

The petitioner failed to raise in his amended habeas petition the claim that he now raises on appeal, and the habeas court did not decide the claim. “This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim. ... To review [the claim] now would amount to an ambuscade of the [habeas] judge.” (Citation omitted; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, 80 Conn. App. 613, 618, 836 A.2d 471 (2003), cert. denied, 268 Conn. 907, 845 A.2d 412 (2004). “This court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding . . . .” Smith v. Commissioner of Correction, 98 Conn. App. 690, 693, 910 A.2d 999 (2006), cert. denied, 281 Conn. 910, 916 A.2d 52 (2007). Because the petitioner did not raise this claim before the habeas court, we decline to afford it review.

III

The petitioner next claims that the court improperly failed to conclude that the trial court violated his sixth amendment right to counsel when, during his underlying criminal trial, it failed to appoint an attorney to represent him on separate pending charges in a different proceeding. The petitioner was questioned about facts relating to that separate proceeding during the underlying trial. We decline to review this claim.

At the time of the petitioner’s underlying criminal trial on the robbery and threatening charges, the petitioner was awaiting trial on a separate matter concerning witness tampering charges. The witness tampering charges allegedly arose from a telephone call that was made by the petitioner to Cabrera and which was recorded on audiotapes. The caller recorded on these audiotapes stated, inter alia, that Cabrera’s husband was involved in planning the Carvel theft. During the underlying criminal trial, the audiotapes were admitted as consciousness of guilt evidence. The petitioner answered affirmatively when asked during cross-examination whether he was the caller on the audiotapes. Although the court expressed concern that the petitioner was being questioned with regard to facts related to a pending case, for which he had no legal representation, the court allowed the questioning on the issue of the alleged relationship between the petitioner and the Cabreras.

The petitioner has not provided us with any legal authority supporting his claim, and we are not aware of any such authority. The case law cited by the petitioner in his brief applies to a defendant’s right to counsel in the proceeding in which the constitutional violation is alleged to have occurred. The petitioner was represented by Freeman during the underlying criminal trial. As the petitioner’s counsel, Freeman was available at trial to advise the petitioner regarding his testimony in the underlying trial, which included questions regarding the tampering charges. The petitioner has failed to cite any case law or offer any meaningful analysis with respect to his claim that during the underlying criminal trial, he was entitled to representation with respect to separate pending charges in a different proceeding. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Hanson, 75 Conn. App. 140, 141 n.3, 815 A.2d 139 (2003). Accordingly, we decline to review this claim.

IV

The petitioner last claims that the court failed to consider the testimony of his expert witness. We disagree.

There is nothing in the record that suggests that the court failed to review thoroughly the testimony and evidence submitted to it. In fact, the court indicated in its memorandum of decision that its findings of fact were “[bjased upon a full review of the testimony and evidence . . . .” “[A] judge is presumed to have performed his duty properly unless the contrary appears [in the record].” (Internal quotation marks omitted.) Riddick v. Commissioner of Correction, 113 Conn. App. 456, 465, 966 A.2d 762, cert. granted on other grounds, 292 Conn. 913, 973 A.2d 663 (2009). Nothing in the record leads us to conclude that the court did not review all of the evidence before it. See id., 464-66.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the petitioner failed to raise his claim on direct appeal, the respondent, the commissioner of correction, failed to raise the affirmative defense of procedural default in the return to the petition for a writ of habeas corpus. See Practice Book § 23-30 (b); see also Newsome v. Commissioner of Correction, 109 Conn. App. 159, 161 n.1, 951 A.2d 582, cert. denied, 289 Conn. 918, 957 A.2d 878 (2008).
      “In habeas proceedings, the appropriate standard for reviewability of a constitutional claim not raised before sentencing or on direct appeal is the cause and prejudice standard pursuant to Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). ... The petitioner’s burden of establishing cause and prejudice, however, does not arise until after the respondent [the commissioner of correction] raises the claim of procedural default in its return.” (Citation omitted; internal quotation marks omitted.) Almedina v. Commissioner of Correction, 109 Conn. App. 1, 5 n.3, 950 A.2d 553, cert. denied, 289 Conn. 925, 958 A.2d 150 (2008). Because the respondent failed to raise the affirmative defense of procedural default in her return, the petitioner was not required to prove cause and prejudice.

       See footnote 1.

       The petitioner also claims that Freeman rendered ineffective assistance by failing to represent him during the course of the underlying trial with respect to the witness tampering charges and by allowing the underlying trial to progress without first ensuring that the petitioner was represented by counsel on the tampering charges. The petitioner, however, did not raise this claim in his amended habeas petition, and the court did not rule on it.
      “This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim. ... To review [the claim] now would amount to an ambuscade of the [habeas] judge.” (Citation omitted; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, supra, 80 Conn. App. 618. “This court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding . . . .” Smith v. Commissioner of Correction, supra, 98 Conn. App. 693. Because the petitioner did not raise his present claim before the habeas court, we decline to afford it review.


source: Caselaw Access Project

author: GRUENDEL, J. A

license: Public Domain

text:
    CONSTANCE J. JARVIS v. CONSTANCE M. LIEDER ET AL.
    (AC 30457)
    Bishop, DiPentima and Gruendel, Js.

      Argued May 28
    officially released September 15, 2009

      Noah J. Schafler, for the appellants (defendants).

      Christine L. Curtiss, for the appellee (plaintiff).
   Opinion

GRUENDEL, J. A

constructive trust arises “when the legal title to property is obtained by a person in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property thus obtained is held in hostility to his beneficial rights of ownership. . . . The specific instances in which equity impresses a constructive trust are numberless,—as numberless as the modes by which property may be obtained through bad faith and unconscientious acts.” (Internal quotation marks omitted.) Millard v. Green, 94 Conn. 597, 601-602, 110 A. 177 (1920). This appeal calls on us to determine whether the trial court properly classified the defendants’ actions as among those numberless instances of bad faith or unconscientious acts that warrant the imposition of a constructive trust.

The defendants, Constance M. Lieder, Carol A. Heffer-nan and Colleen M. Lieder, appeal from the judgment of the trial court, which imposed a constructive trust on assets titled in their name, naming the plaintiff, Constance J. Jarvis, as beneficiary. On appeal, the defendants contend that the court improperly (1) considered extrinsic evidence that contradicted the express terms of a deed, (2) rewarded the plaintiff despite the allegedly wrongful purpose of her activities, (3) found in favor of the plaintiff on a cause of action that was not pleaded in the amended complaint, (4) imposed a constructive trust on the basis of the existence of a confidential relationship and (5) applied the applicable statute of limitations and the doctrine of laches. We disagree and affirm the well reasoned judgment of the trial court.

To understand the complex family relationships involved in the present case, we begin with the dramatis personae. The plaintiff was one of six siblings. Heffer-nan and Constance Lieder are daughters of the plaintiffs sister, Stell. Colleen Lieder is Constance Lieder’s daughter and, thus, the plaintiffs grandniece. Also involved in the case, but only tangentially, are Ronald Ritchie, Kenneth Ritchie and Deborah Hyder, the children of the plaintiffs sister, Mary Ritchie. In addition, another grandniece, Jessica Hyder, is involved to the extent that the plaintiff assisted her in paying college tuition.

The following facts relevant to our disposition of the defendants’ appeal are culled from the court’s detailed and comprehensive memorandum of decision. On October 10, 1999, the plaintiffs husband of fifty-eight years, Charles Jarvis, died. “The plaintiff, who was then eighty-four years of age, was emotionally shaken. At the time of her husband’s death, the plaintiff was in reasonably good health for her age but was legally blind. She could read only by using a magnifying glass and also was hard of hearing. Before Charles Jarvis’ death, Colleen [Lieder] began discussing the plaintiffs finances with her and the eligibility requirements for long-term medical care under [title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (medicaid)], should the plaintiff require such care in the future. The plaintiff desired to convey her home to Constance [Lieder], [Heffeman] and Ronald Ritchie. She discussed the proposal with the defendants and asked them which attorney she should employ to effectuate the conveyance. [Heffeman] recommended attorney Thomas Condon, who had prepared the will of the plaintiffs mother and sister. On December 13,1999, Constance [Lieder], [Heffeman] and the plaintiff met with . . . Condon in his office. The subject of a life estate was discussed in the meeting, although there was no evidence as to what was said. . . . Condon did not speak with the plaintiff outside the presence of her nieces, nor did he advise her that her home would be subject to the creditors of her nieces and nephew upon transfer. lie prepared a quitclaim deed and, on December 13,1999, the plaintiff conveyed her home ... to Ronald Ritchie, [Constance Lieder and Heffeman] ‘for the consideration of love and affection’ ....

“At the time of the conveyance, the plaintiff understood that she would be able to live in the house until her death, at which time it would belong to her nieces and nephew. . . . Heffeman, too, testified that there was an understanding and an assumption that the plaintiff would continue to live in the house.

“After Charles Jarvis’ death, Colleen [Lieder] became more than a grandniece who shared a warm familial relationship with the plaintiff. She became the plaintiffs trusted financial adviser. Colleen [Lieder] was an educated young woman and a corporate accountant. The plaintiff was elderly and unable to read without the aid of a magnifying glass.

“[On October 10, 1999] [w]hen [Charles] Jarvis died, he and the plaintiff had approximately $154,577 in three bank accounts . . . .” There were two savings accounts, one with a balance of $84,056 and one with $49,349, and a checking account with a balance of $21,172. “On November 15, 1999, the two savings accounts were closed. The proceeds of the smaller . . . account . . . were deposited into a joint checking account opened ... in the names of the plaintiff and Colleen [Lieder], This account was referred to at trial as the ‘small’ checking account [small checking account]. Colleen [Lieder] has acknowledged that her name was placed on this account for purposes of convenience, to enable her to sign checks for the plaintiffs bills. The defendants make no claim of ownership as to this account. The proceeds of the larger savings account owned by the plaintiff and her late husband were placed in an annuity opened by the plaintiff. Constance [Lieder] and [Heffeman] were named as beneficiaries of the annuity.

“On March 3, 2000, the joint checking account owned by the plaintiff and her late husband was closed . . . the balance having increased after [Charles] Jarvis’ death as a result of various deposits, including life insurance proceeds. On March 15,2000, the closing proceeds from this account were deposited into the joint checking account in the names of the plaintiff and Colleen [Lieder]. On September 30, 2000, a certificate of deposit . . . was opened in the names of all three defendants [and the plaintiff was not listed on the account]. The certificate of deposit was funded with a $55,000 check signed by Colleen [Lieder] and drawn on the small checking account.

“In December, 2000, a . . . checking account was opened ... in the names of all three defendants [and again, the plaintiff was not listed on the account]. This account, referred to as the ‘large’ account [large account], was initially funded with a $5000 check signed by Colleen [Lieder] and drawn on the small checking account. On January 22, 2001, Colleen [Lieder] wrote an additional check in the amount of $15,000 drawn on the small [checking] account and deposited the check into the large account.” (Emphasis in original.)

To summarize, as of December, 2000, the plaintiff had transferred title in her house to Heffeman, Constance Lieder and Ronald Ritchie. An annuity, with Constance Lieder and Heffeman as beneficiaries, had been opened using the plaintiffs funds. Of the approximately $80,800 in funds remaining, $55,000 had been used to open a certificate of deposit in the names of all three defendants and $20,000 had been used to fund the large account in the names of all three defendants. This left the plaintiff with less than $6000 remaining from the proceeds of the original three accounts she held with her late husband.

“Thereafter, the small checking account functioned as a repository [for] the plaintiffs social security checks and the survivorship benefits she received from her late husband’s pension. The balance in the small checking account was kept at or about . . . $5000. Whenever the balance of the small [checking] account increased significantly above that amount, Colleen [Lieder] withdrew sums of money from [that] account and deposited the sums into the large account. Between March, 2001, and June, 2006, there were approximately three dozen withdrawals from the small [checking] account and corresponding deposits into the large account, generally ranging from $1800 to $5000. The total amount transferred . . . exceeded $130,000. The monthly statement for the small account (held by the plaintiff and Colleen [Lieder] jointly) was sent to the plaintiffs home. The statement for the large account . . . was sent to Colleen [Lieder].

“Twice a month, Colleen [Lieder] visited the plaintiff at her home and reviewed her bills .... The plaintiff had to use her magnifying glass to examine the bills. Colleen [Lieder] wrote out and signed checks paying the bills. All bills were paid out of the large checking account held jointly by the defendants. Occasionally, Colleen [Lieder] would bring over the monthly statement for [that] account. As early as 2000 or 2001, the plaintiff saw, but did not question, that this account was in the names of the defendants. Colleen [Lieder] also provided the plaintiff with a monthly stipend of $850 out of this account.

“In May, 2001, Constance [Lieder] called Ronald Rit-chie and told him that the plaintiff wanted him to convey his one-third interest in [the plaintiffs home] back to her. On May 15, 2001, Ronald Ritchie dutifully went to attorney Condon’s office, where a quitclaim deed already had been prepared. He executed the deed and later informed the plaintiff that he had done so. On June 7, 2001, the plaintiff quitclaimed half of her one-third interest in the home [back] to Ronald Ritchie and half to Colleen Lieder ‘for the consideration of love and affection . . . .’

“In 2005, the plaintiff asked Colleen [Lieder] for an increase in her $850 [monthly] allowance to pay various incidental expenses. Colleen [Lieder] refused to increase the allowance. [Also] [i]n 2005, Jessica Hyder entered college. When a tuition payment was due, [her] mother would inform the plaintiff, and the plaintiff would tell Colleen [Lieder]. [The latter] then had a check drawn ... in the amount of $2500 on the large account held jointly by the defendants and made payable to Eastern Connecticut State University. Three such checks were drawn [between July, 2005, and June, 2006]. Colleen [Lieder] prepared and had Jessica [Hyder] sign a memo, witnessed by the plaintiff, stating that the check was an advance [of], and would be deducted from, her [expected] inheritance [from the plaintiff]. The memo accompanying the [July, 2005] tuition check was also witnessed by each of the defendants and Ronald Ritchie. The memo accompanying the [June, 2006] tuition check was witnessed by the defendants.

“In December, 2005, Ronald Ritchie took the plaintiff to a bank, where she removed . . . [Heffeman] and Constance [Lieder] as beneficiaries of her annuity and named ten other relatives ... in their stead for varying amounts. Kenneth Ritchie and Ronald Ritchie were each beneficiaries of 31.5 percent of the annuity, and Deborah Hyder was named beneficiary for 10 percent of the annuity. The plaintiffs [other] nephews . . . were beneficiaries for amounts ranging from 1 percent to 10 percent of the annuity. The plaintiff reserved 0.5 percent for St. Anthony’s Church.

“In March, 2006, Constance [Lieder’s] mother-in-law had triple bypass heart surgery. Constance [Lieder] had to provide postoperative home care for her. During that same time period, Constance Lieder’s sister-in-law became terminally ill and died on May 4, 2006. Also in March, 2006, [Heffeman’s] daughter lost her baby-sitter in a motor vehicle accident, requiring [Heffeman] to provide child care for her granddaughter .... As a result of these events, both Constance [Lieder] and [Hef-feman] suspended their visits to the plaintiff.

“On May 4, 2006, the plaintiff was hospitalized for a rapid heartbeat. The defendants did not visit the plain-tiffin the hospital, nor when she returned home. Indeed, they were unaware of her cardiac incident for some time. On June 28, 2006, the plaintiff, the defendants, Ronald Ritchie, Kenneth Ritchie, Jessica Hyder and [her father] David Hyder met at the plaintiffs home. The purpose of the meeting was to give Jessica [Hyder] another $2500 tuition check.” At that meeting, Jessica Hyder executed a writing indicating that she received $2500 from the plaintiff, which would be deducted from any inheritance she eventually received from the plaintiff. “The document was signed by Jessica [Hyder], as well as by the plaintiff, [Heffeman] and Colleen [Lieder]. Jessica [Hyder] received her check. Kenneth Ritchie stated that the plaintiff wanted the defendants to return the education funds to her. The defendants refused. The plaintiff sat silent during this heated discussion. When an altercation ensued, Jessica [Hyder] left with her father.

“Soon thereafter, the plaintiff, with the assistance of Ronald Ritchie . . . had her telephone number changed. In August, 2006, a meeting was held between the plaintiff and the defendants. The plaintiff was represented by attorney Dominick Thomas; the defendants were represented by attorney Kevin Condon, the son of attorney Thomas Condon. At this meeting . . . Thomas demanded that the defendants return to the plaintiff all funds and property conveyed to them that had belonged to the plaintiff. The defendants refused.

“The plaintiff commenced this action ... on September 21, 2006. Subsequently, the defendants authorized their attorney to serve the plaintiff with a notice to quit the premises [at her home]. [Although the plaintiff was informed that there was a possibility of being evicted], the defendants never pursued an action to evict the plaintiff.

“In October, 2006, the defendants withdrew $10,000 from the large checking account and used the moneys to pay their attorney. In May, 2007, they transferred $20,000 from the certificate of deposit to the large account and withdrew another $10,000 from the large account in August, 2007, to pay additional moneys to their attorney.”

The plaintiffs amended complaint contains three counts. The first alleges that the defendants violated the trust and confidence placed in them by the plaintiff and that they were unjustly enriched to the plaintiffs detriment. The second count alleges unlawful conversion. The third count alleges that the defendants committed statutory theft pursuant to General Statutes § 52-564. The court ruled in favor of the plaintiff on the first two counts, finding that the defendants were unjustly enriched and that they unlawfully converted the property of the plaintiff. By way of remedy, it imposed a constructive trust, ordering the defendants to convey to the plaintiff a life estate in her home and the proceeds of the certificate of deposit and bank accounts. The court also awarded the plaintiff damages in the amount of $20,000 plus interest. With regard to the third count, the court determined that the plaintiff had not sustained her burden and that the defendants did not commit statutory theft.

The defendants present several claims on appeal. First, they assert that the court improperly construed the first count of the amended complaint as a contract claim. They then advance the theory that the court should not have found in favor of the plaintiff in light of the allegedly illegal purpose of the transfers to the defendants. They next contend that the court improperly considered evidence of the plaintiffs intent regarding the conveyance of her home that contradicts the express terms of the deed. With regard to the imposition of a constructive trust, the defendants claim that the court improperly found that they had a confidential and fiduciary relationship with the plaintiff. Finally, the defendants claim that the court improperly ruled on their special defenses—that the plaintiffs action was barred by the statute of limitations and the doctrine of laches. We address each of these in turn.

I

CONSTRUCTION OF THE COMPLAINT

We begin by addressing the claims that may be disposed of in short order. The defendants first assert that the court improperly interpreted the first count of the plaintiffs complaint as stating a cause of action for breach of contract. The premise of this claim is faulty in that the court did not determine that the plaintiff pleaded a cause of action for breach of contract, and, thus, it cannot have done so improperly. Count one of the complaint states in relevant part: “[T]he defendants have violated the trust and confidence placed in them by the plaintiff and have been unjustly enriched to the detriment of the plaintiff.” Although the court’s memorandum of decision does suggest that the defendants breached an agreement with the plaintiff, the court’s ultimate finding with regard to count one is that the defendants were unjustly enriched at the expense of the plaintiff—just as pleaded in the complaint. Thus, the defendants’ first claim is without merit.

II

ILLEGALITY OF PURPOSE

The defendants also claim that the court improperly ruled in favor of the plaintiff despite the fact that the transfer of assets to the defendants was done for an illegal purpose. The defendants assert, and the court found, that the plaintiff transferred her house and money to the defendants, at least in part, for the purpose of qualifying for medicaid benefits. The defendants argue that this is an illegal purpose from which the plaintiff should not be entitled to benefit.

Having reviewed the record, it does not appear that the defendants advanced any argument in the trial court regarding illegality of purpose. Although witnesses were questioned about the plaintiffs intentions with regard to medicaid during the trial, the defendants never set forth any argument in the trial court that they should prevail because of those intentions. Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...” Indeed, “it is the appellant’s responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily [the appellant] must raise in the trial court the issues that he intends to raise on appeal. . . . For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in an trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Sturgeon v. Sturgeon, 114 Conn. App. 682, 693, 971 A.2d 691, cert. denied, 293 Conn. 903, 975 A.2d 1278 (2009). Thus, we will not address the defendants’ claim regarding illegality of purpose absent an affirmative request to notice plain error or for review pursuant to the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See South Windsor Cemetery Assn., Inc. v. Lindquist, 114 Conn. App. 540, 553-54, 970 A.2d 760 (2009).

Ill

PAROL EVIDENCE

We next address whether the court improperly considered and credited evidence contradicting the express terms of the deed transferring title in the plaintiffs home to the defendants. The court considered evidence that the parties intended for the plaintiff to retain some interest in her home despite the express terms of the deed, which is absolute on its face. As a general rule, parol evidence may not be used to contradict the unambiguous terms of a deed purporting to convey title to real property. See Schmaling v. Schmaling, 48 Conn. App. 1, 18, 707 A.2d 339, cert. denied, 244 Conn. 929, 711 A.2d 727 (1998); see also Apostles of the Sacred Heart v. Curott, 187 Conn. 591, 595, 448 A.2d 157 (1982).

“There are situations, however, where equity, in order to work out justice between the parties, will itself raise a trust . . . and such trusts do not fall within the rule stated above. . . . Within this category fall constructive trusts .... [W]e have said that the basis of such trusts may be found in fraud, misrepresentation, imposition, circumvention, artifice or concealment, or abuse of confidential relations.” (Citations omitted; internal quotation marks omitted.) Worobey v. Sibieth, 136 Conn. 352, 355-56, 71 A.2d 80 (1949); accord 1 Restatement (Third), Trusts § 24, comment (f), pp. 353-54 (2003). Exceptions to the general rule prohibiting the consideration of parol evidence to contradict the terms of a deed “have been recognized where an injustice, sufficient to raise an equitable trust, would otherwise result. ... In such cases, a trust does not arise so much by reason of the parol agreement of the parties but by operation of law.” (Citation omitted.) Cohen v. Cohen, 182 Conn. 193, 202, 438 A.2d 55 (1980). Thus, in light of the foregoing precedent, the court did not improperly consider parol evidence in determining whether to impose a constructive trust on the premises that is the subject of the deed at issue.

IV

CONFIDENTIAL RELATIONSHIP

We next turn to the defendants’ claim that the court improperly found that a confidential relationship existed between the parties and that the defendants thus owed a fiduciary duty to the plaintiff. They further claim that absent such a confidential and fiduciary relationship, or fraud or misrepresentation, the court was not justified in imposing a constructive trust. We begin our analysis of this claim by setting forth our standard of review. “A court’s determination of whether to impose a constructive trust must stand unless it is clearly erroneous or involves an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Menard v. Gaskell, 92 Conn. App. 551, 555, 885 A.2d 1254 (2005). Furthermore, “[w]hether ... a confidential relationship exists is a factual question for the trial court [and] our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Albuquerque v. Albuquerque, 42 Conn. App. 284, 287, 679 A.2d 962 (1996).

“In Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378 (1919), Judge Cardozo wrote: A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a [trustee . . . .] The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment. . . . Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” (Citations omitted; internal quotation marks omitted.) Cohen v. Cohen, supra, 182 Conn. 202-203.

As discussed previously, to impose a constructive trust, the court must find the existence of “fraud, misrepresentation, imposition, circumvention, artifice or concealment, or abuse of confidential relations.” (Internal quotation marks omitted.) Worobey v. Sibieth, supra, 136 Conn. 356; accord Garrigus v. Viarengo, 112 Conn. App. 655, 672, 963 A.2d 1065 (2009). In the present case, the court based its imposition of a constructive trust on the finding that a confidential relationship existed between the defendants and the plaintiff. “A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interest of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.” (Internal quotation marks omitted.) Albuquerque v. Albuquerque, supra, 42 Conn. App. 287.

We note that the defendants do not contest any conclusions of law with regard to the confidential relationship. They do not argue that even if such a relationship existed, they did not abuse the relationship or breach their duties to the plaintiff, nor do they claim that the court improperly concluded that they were unjustly enriched to the detriment of the plaintiff. Rather, the defendants contest only the finding that such a relationship existed between Constance Lieder and Heffeman on the one hand and the plaintiff on the other.

The court had ample evidence from which it could determine that a confidential relationship existed. It heard and credited testimony from the plaintiff and Heffeman that “the plaintiff, who was childless, considered her nieces and nephews, especially [Heffeman] and Constance [Lieder], as her children.” Cf. Cohen v. Cohen, supra, 182 Conn. 203 (“[w]hile the relationship between parent and child is not per se a fiduciary one, it does generate a natural inclination to repose great confidence and trust” [internal quotation marks omitted]). The court also found, on the basis of significant evidence in the record, that “[Heffeman] and Constance [Lieder] provided companionship to the plaintiff, assisted her with errands, brought her to medical appointments and funerals, purchased household items for her, attended to her when she was infirm, helped her maintain her home and threw her birthday parties.” These are all further indications of a confidential relationship. Additionally, the court heard evidence from which it reasonably concluded that the Constance Lieder and Heffeman “steered the plaintiff to the attorney of their choice” for the puipose of transferring the plaintiffs home to them. Furthermore, the court heard and credited evidence that the plaintiff was elderly and legally blind; see General Statutes § 10-294a; and relied on the defendants to help her meet the demands of daily life. This further indicates the existence of a confidential relationship. See Berty v. Gorelick, 59 Conn. App. 62, 69, 756 A.2d 856 (court considered “advanced age, physical and mental condition” as factors in determining existence of confidential, fiduciary relationship), cert. denied, 254 Conn. 933, 761 A.2d 751 (2000).

The evidence demonstrates that the plaintiff was elderly and disabled, and that the defendants had significant control and influence over her financial and personal affairs. See id. Thus, the court’s conclusion that a confidential, fiduciary relationship existed was not clearly erroneous, nor was the imposition of a constructive trust an abuse of discretion.

V

STATUTE OF LIMITATIONS AND LACHES

Finally, we turn to the defendants’ claim that the court improperly ruled on their special defenses, asserting that the plaintiffs action is barred by the statute of limitations, General Statutes § 52-577, and the equitable doctrine of laches.

A

“The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” (Internal quotation marks omitted.) Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 407-408, 957 A.2d 836 (2008). The factual findings that underpin that question of law, however, will not be disturbed unless shown to be clearly erroneous. Cf. Emigrant Mortgage Co. v. D’Agostino, 94 Conn. App. 793, 803-804, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006).

Section 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” The parties do not dispute that the second count of the plaintiffs complaint sounding in conversion is limited by that statute. See Certain Underwriters at Lloyd’s, London v. Cooperman, supra, 289 Conn. 408. Rather, the defendants simply assert that the court improperly applied the statute and the continuing course of conduct tolling doctrine.

In construing § 52-577, our Supreme Court has concluded that the three year period begins on the date that the “act or omission complained of’ occurs, not the date that the cause of action accrues or the date that the injury occurs. Id. Thus, we must determine when the wrongful acts occurred. “There are two general classes into which conversions are grouped: (1) those where the possession is originally wrongful, and (2) those where it is rightful. . . . The second class comprises those where the possession, originally rightful, becomes wrongful by a wrongful detention.” (Internal quotation marks omitted.) Horelik v. Roth, 15 Conn. App. 649, 654, 545 A.2d 1167, cert. denied, 209 Conn. 819, 551 A.2d 756 (1988).

The court found conversion of the certificate of deposit and the large account, and we address § 52-577 as it applies to each. First, the court found, as a factual matter, that “the plaintiff either authorized the creation of [the large account] or acquiesced in its creation in the defendants’ names soon after it was established.” In light of that fact, the court properly concluded that the initial possession of the funds was not originally wrongful but became wrongful by a wrongful detention. That detention occurred in August, 2006, “when [the defendants] refused to turn it over to the plaintiff in the meeting that included the parties’ attorneys.” The present action was filed approximately one month later, well within the three year limitations period.

Conversely, the court found that the certificate of deposit was within the first class of conversion in that the possession of the funds was wrongful from the outset. The court reasoned that the funds used to open the certificate of deposit were appropriated without the plaintiffs knowledge and that the conversion occurred at the time of that appropriation. We agree, and because the certificate of deposit was opened on September 30, 2000, six years before this action was filed, the conversion of the certificate of deposit was outside of the three year limitations period.

That does not end the analysis, however, because the court found that the statute of limitations was tolled under the continuing course of conduct doctrine. “The issue ... of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact. . . . We defer to the trial court’s findings of fact unless they are clearly erroneous. . . . [I]n order [t]o support a finding of a continuous course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to the commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . . The continuing course of conduct doctrine is conspicuously fact-bound.” (Citations omitted; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 833-34, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

In the present case, the court found both a special relationship giving rise to a continuing duty and later wrongful conduct by the defendants. The topic of the special relationship is exhausted in part IV and, thus, requires no analysis here. The court found that in light of their confidential relationship with and fiduciary duty to the plaintiff, the defendants had an obligation to inform her of their actions with regard to her assets and that they did not do so throughout the time that they were in control of those assets. This, the court concluded, was later wrongful conduct sufficient to toll the applicability of § 52-577. That finding is not clearly erroneous and must therefore stand.

B

We next address the defendants’ claim that the plaintiffs causes of action seeking equitable relief were barred by the doctrine of laches. “The standard of review that governs appellate claims with respect to the law of laches is well established. A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law. ... We must defer to the court’s findings of fact unless they are clearly erroneous. . . .

“The defense of laches, if proven, bars a plaintiff from seeking equitable relief .... First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. . . . The burden is on the party alleging laches to establish that defense. . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question.” (Citations omitted; internal quotation marks omitted.) Caminis v. Troy, 112 Conn. App. 546, 552, 963 A.2d 701, cert. granted on other grounds, 291 Conn. 909, 969 A. 2d 171 (2009).

In the present case, the court found that the defendants did not present facts sufficient to establish either element of laches. It noted that “[t]his action was brought the same year [that] the plaintiff learned that the defendants denied she had any interest in . . . [the] assetfs].” Just as with its findings regarding the statute of limitations, this finding is not clearly erroneous and must, therefore, stand.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396s, commonly known as the Medicaid Act, is a federal-state cooperative program designed to provide medical assistance to persons whose income and resources are insufficient to meet the costs of medical care.” (Internal quotation marks omitted.) Sikand v. Wilson-Coker, 276 Conn. 618, 620, 888 A.2d 74 (2006).

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       The court found that the plaintiff had several purposes in transferring her assets to the defendants other than to qualify for medicaid. For example, it found that she also “sought to reward the grantees for their love, affection and care . . . .”

       Our refusal to address the merits of the defendants’ claim should not be taken to imply that the plaintiff’s action could be defeated if an illegality of purpose were found. We note that the doctrine whereby a claim may be defeated by demonstrating illegality relating to the purpose of the underlying transaction applies only to breach of contract actions. See 2 Restatement (Second), Contracts § 179 (1981). As discussed previously, the court did not find breach of contract but, rather, unjust enrichment Cf. id., § 199 (restitution may be available despite contract for improper purpose).

       The defendants also claim that a constructive trust could not be imposed because the court lacked an evidentiary basis to conclude that they agreed to hold the property at issue for the benefit of the plaintiff while she was alive. This claim challenges the court’s findings of fact, which we may reverse only if they are shown to be clearly erroneous. See Practice Book § 60-5. Having reviewed the record, we cannot say that it was clearly erroneous for the court to have found a promise and an intention to use the property conveyed to the defendants for the benefit, support and maintenance of the plaintiff during her life.

       The defendants do not argue that Colleen Lieder did not have a confidential relationship with or fiduciary duty to the plaintiff. There was extensive evidence from which the court could conclude that she had a confidential relationship with the plaintiff. Colleen Lieder was the plaintiffs trusted financial adviser and had control of the plaintiffs accounts and finances. Cf. Berkowitz v. Berkowitz, 147 Conn. 474, 477, 162 A.2d 709 (1960) (donee in position of “religious, professional or business adviser, or a position closely analogous thereto” must demonstrate no abuse of fiduciary relationship).


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. MIGUEL A. COLON
    (AC 29684)
    DiPentima, Alvord and Dupont, Js.

      Argued June 1
    officially released September 15, 2009

      John R. Williams, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, CarlR. Ajello III, assistant state’s attorney, and Robert F. Mullins, deputy assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

In this appeal, the defendant, Miguel A. Colon, claims that the evidence was insufficient to support his conviction of interfering with an officer in violation of General Statutes § 53a-167a (a), threatening in the second degree in violation of General Statutes § 53a-62 (a) (1) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). We disagree and, accordingly, affirm the judgment of the trial court.

On January 29, 2008, the state, by way of a three count, long form information, charged the defendant with the aforementioned counts. The defendant entered a plea of not guilty on all three counts. Following a trial to the court on January 30, 2008, the court rendered judgment of guilty on each count on February 8, 2008. On February 28, 2008, the court sentenced the defendant to a total effective term of one year incarceration, execution suspended, and two years of probation. This appeal followed.

The court found the following facts. On September 24, 2006, Maria Colon, the defendant’s former wife, drove to the defendant’s home to drop off his current wife, Julia Colon. Maria Colon exited her vehicle and walked across the street to the defendant’s home. The defendant, who was standing outside with members of his family, shouted at her to get off of his property. She immediately retreated to the other side of the street. A disturbance ensued. Maria Colon called her husband, Robert Swartout, who arrived at the scene shortly thereafter. Maria Colon and Swartout remained on the side of the street opposite the defendant’s home, occasionally yelling at the defendant.

The police were called. Officers John Zweibelson and Gina Liappes, both of whom were acting in their capacities as Hartford police officers, arrived in response to the call. The officers attempted to control the situation. The defendant refused to comply with their instructions to “calm down.” Instead, the defendant moved approximately halfway across the street toward Maria Colon and Swartout before Zweibelson was able to get the defendant back on the other side of the street. During this time, the defendant was yelling: “I’m going to kill you. I’m going to kill you and you.” The defendant continued to ignore police instructions and ran into the house, thereby escalating the situation. Maria Colon yelled that there was a gun in the house. Zweibelson and Liappes ran after the defendant into the house. They found the defendant reaching into a closet in which a gun was later discovered. The officers eventually were able to calm the defendant and regain control over the situation.

Our standard of review for a claim of insufficiency of the evidence introduced to prove a violation of a criminal statute is well settled. We first construe the evidence in the light most favorable to sustaining the verdict. We then determine whether based on the facts so construed and the inferences reasonably drawn therefrom the finder of fact reasonably could have concluded that the cumulative impact of the evidence established the defendant’s guilt beyond a reasonable doubt. See State v. Williams, 110 Conn. App. 778, 783, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008).

“[Although] the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Michael H., 291 Conn. 754, 759, 970 A.2d 113 (2009). Thus, “we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s judgment] of guilty.” (Internal quotation marks omitted.) Id.

Moreover, as an appellate court, we do not act as a finder of fact capable of rendering judgment on the basis of some feeling of doubt of guilt perceived from the printed record. Instead, we must defer to the finder of fact’s evaluation of the credibility of the witnesses that is based on its invaluable firsthand observation of their conduct, demeanor and attitude. State v. Jason B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009). “[The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what— all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Santos, 108 Conn. App. 250, 253, 947 A.2d 414 (2008).

I

The defendant first claims that the evidence was insufficient to support his conviction of interfering with an officer. Specifically, the defendant argues that because Zweibelson testified that he was speaking with the defendant “as a friend” rather than as a law enforcement officer, the state failed to prove that the defendant hindered an officer in the performance of the officer’s official duties.

Citing State v. Aloi, 280 Conn. 824, 911 A. 2d 1086 (2007), the court found the defendant guilty of the crime of interfering with a police officer. Specifically, the court made the following findings: “I do find that the defendant did obstruct and hinder a peace officer. I find that he did it while they were in the performance of their duties. And I find that he intended to obstruct and hinder the officers, particularly . . . Zweibelson, in the performance of their duties. [The officers] were there to restore the peace. The defendant clearly intended to continue on his own course, clearly intended to frustrate their efforts to restore the peace.”

Section 53a-167a (a) provides in relevant part: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer ... in the performance of such peace officer’s . . . duties.” The statute also requires that the state prove that the defendant had the specific intent to interfere with an officer. State v. Williams, supra, 110 Conn. App. 793. On appeal, the defendant challenges only the element that he hindered an officer who was acting in the performance of the officer’s official duties.

“The phrase in the performance of his official duties means that the police officer is simply acting within the scope of what [he] is employed to do. The test is whether the [police officer] is acting within that compass or is engaging in a personal frolic of his own. . . . These are factual questions for the [trier of fact] to determine on the basis of all the circumstances of the case . . . .” (Internal quotation marks omitted.) State v. Casanova, 255 Conn. 581, 593, 767 A.2d 1189 (2001).

The court’s finding that Zweibelson was acting within the scope of what he is employed to do and was at the defendant’s house “for the purpose of restoring the peace” is supported amply by the evidence. Zweibelson testified that he arrived at the defendant’s house in response to a call received in his capacity as a police officer. He also testified that he was there to control the situation and to prevent it from escalating. The court also heard evidence that Zweibelson arrived in uniform. Moreover, the fact that Zweibelson knew the defendant personally and adjusted his response to the defendant accordingly does not preclude the officer from acting within the scope of his duties as a police officer.

Accordingly, we conclude that the evidence was sufficient to support the court’s finding that the defendant interfered with a police officer in the performance of his official duties.

II

The defendant next claims that because his actions constituted merely a “verbal threat,” rather than a “physical threat,” the evidence at trial was insufficient to support his conviction of threatening in the second degree. We disagree.

As to the charge of threatening in the second degree, the court made the following findings: “I find . . . that [the defendant] did state to [Maria Colon] that he intended to kill her. . . . And I find that under the circumstances that existed at the time, that he did intend to put Maria [Colon] in fear of imminent serious physical injury.” The court also found that the defendant was “approaching [Maria Colon and Swartout] in a menacing and threatening way” while he was making these threats.

Section 53a-62 (a) provides in relevant part: “A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .” Under this statute, “threatening . . . requires the state to show that the defendant, by physical threat, intentionally placed or attempted to place another person in fear of imminent serious physical injury. It is not the danger or risk of injury, but the victim’s perception, which is essential to the . . . crime.” (Internal quotation marks omitted.) State v. Gibson, 75 Conn. App. 103, 122-23, 815 A.2d 172 (2003), rev’d in part on other grounds, 270 Conn. 55, 850 A.2d 1040 (2004).

The court heard evidence that the defendant threatened to kill Maria Colon as he was moving across the street toward her. Maria Colon testified that the defendant’s threats that he was going to kill her placed her in fear of physical harm, and the court credited her testimony. See State v. Blango, 102 Conn. App. 532, 542, 925 A.2d 1186 (evidence sufficient to establish guilt of threatening in second degree when defendant, while holding gun, asked victims if they had “ ‘ever been shot before’ ”), cert. denied, 284 Conn. 913, 931 A.2d 932 (2007); State v. Gibson, supra, 75 Conn. App. 123-24 (sufficient evidence to support defendant’s conviction under § 53a-62 [a] [1] when defendant, while grabbing victim’s arm, stated to victim, “ ‘when [I get] out of jail, it’s going to be just [you and me]’ ”); State v. Snead, 41 Conn. App. 584, 586, 592-94, 677 A.2d 446 (1996) (evidence sufficient to prove defendant placed victim in fear of imminent physical injury under § 53a-62 [a] [1] when defendant told victim she would be “ ‘as good as dead’ ” if she called police).

As this court frequently has observed, “[ijntent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by circumstantial evidence. . . . Furthermore, any inference drawn must be [rational] and founded upon the evidence.” (Internal quotation marks omitted.) State v. Ward, 76 Conn. App. 779, 798, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003). We conclude that there was sufficient evidence from which the court reasonably could have inferred that the defendant had intended to place or attempt to place Maria Colon in fear of imminent serious physical injury.

Viewing the evidence in a light toward sustaining the verdict, we conclude that the cumulative impact of the evidence was sufficient for the court to find beyond a reasonable doubt that the defendant’s actions constituted a physical threat and, therefore, that the defendant was guilty of threatening in the second degree.

Ill

The defendant’s final claim challenges the sufficiency of the evidence in support of his conviction of breach of the peace in the second degree. We are not persuaded.

In support of its judgment of guilty as to breach of the peace in the second degree, the court found that “the defendant’s actions and conduct . . . and words, amount to violent, tumultuous and threatening behavior that did portend physical violence.” On appeal, the defendant argues that the court’s finding “is inconsistent with the undisputed evidence that the defendant was but one of many people involved in the identical conduct at the same time.”

To prove the defendant guilty of breach of the peace in the second degree in violation of § 53a-181 (a) (1), the state was required to prove beyond a reasonable doubt that “(1) the defendant engaged in fighting or in violent, tumultuous or threatening behavior, (2) that this conduct occurred in a public place and (3) that the defendant acted with the intent to cause inconvenience, annoyance or alarm, or that he recklessly created a risk thereof.” State v. Simmons, 86 Conn. App. 381, 386-87, 861 A.2d 537 (2004), cert. denied, 273 Conn. 923, 871 A.2d 1033, cert. denied, 546 U.S. 822, 126 S. Ct. 356, 163 L. Ed. 2d 64 (2005); see General Statutes § 53a-181 (a) (1).

Drawing our attention to testimony that he was one of many individuals involved in the chaotic scene at his home, the defendant argues that his “conduct could not have created a risk of causing inconvenience, annoyance or alarm because all of those things were already taking place . . . .” The defendant cites no authority and has provided no legal analysis to support his contention that because his conduct occurred in the midst of the conduct of others at the scene, he cannot be liable criminally for his actions.

In reviewing the court’s factual findings, we are mindful that “the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the [finder of fact], and, therefore, we must afford those determinations great deference.” (Internal quotation marks omitted.) State v. Ragin, 106 Conn. App. 445, 451, 942 A.2d 489, cert. denied, 287 Conn. 905, 950 A.2d 1282 (2008).

Our review of the record reveals that the evidence was sufficient to support the court’s finding. The court heard testimony that the defendant was yelling and making threats and that he appeared extremely agitated. The court also heard evidence that the defendant, while on the street, had to be restrained by police to stop him from attacking Maria Colon and Swartout. Further, the court heard testimony that the defendant ignored police commands, fled into his house and was found reaching into a closet that contained a firearm. In addition, Zweibelson testified that the defendant’s action caused him to be concerned for the defendant’s safety as well as the safety of others.

Therefore, we conclude that the evidence was sufficient to support the defendant’s conviction of breach of the peace in the second degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the defendant has not submitted a signed transcript by the trial court. See Practice Book § 64-1. He did, however, submit an unsigned transcript. “On occasion, we will entertain appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions.” (Internal quotation marks omitted.) State v. Oliphant, 115 Conn. App. 542, 544, 973 A.2d 147, cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009). We have reviewed the unsigned transcript and conclude that it provides an adequate record for review.

       The defendant is also a Hartford police officer.


author: HENNESSY, J. LAVINE, J.,

text:
    STATE OF CONNECTICUT v. BRYAN JORDAN
    (AC 29139)
    Flynn, C. J., and Lavine and Hennessy, Js.
    Argued May 27
    officially released September 15, 2009

      Daniel J. Krisch, special public defender, with whom was Brendon P. Levesque, special public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Bryan Jordan, appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that (1) the state’s improper comments during closing argument to the juiy deprived him of a fair trial and (2) the trial court improperly precluded him from presenting evidence regarding the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The charges in this case stem from the shooting death of Curtis Hannons on September 19, 2005. On the day of the shooting, the defendant, the victim and the victim’s brother got into an argument. After the argument was broken up, the defendant got into his car and left. A few minutes later, the defendant returned, and another “heated” discussion took place with the victim. Several people congregated near the two and tried to calm down the defendant and the victim. Three eyewitnesses gave slightly varying accounts of what happened next. All agreed that they heard a gunshot and that the defendant then pulled out a gun and shot the victim once in the head. The defendant ran away, and the witnesses heard about six or seven more gunshots. The victim was transported to a hospital, where he died. The defendant was arrested in Georgia some time later.

The jury found the defendant not guilty of murder pursuant to General Statutes § 53a-54a (a), but guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of § 53a-55a (a) and carrying a pistol or revolver without a permit in violation of § 29-35. The court sentenced the defendant to a total effective term of forty-five years imprisonment. Additional facts will be set forth as necessary.

I

The defendant first claims that the state committed prosecutorial impropriety in its closing arguments to the jury. Specifically, he claims that the prosecutor improperly referred to facts that were not in evidence when arguing that the jury could infer intent to kill because it takes more effort to fire a revolver as compared to a semiautomatic weapon. The defendant also claims that the state’s repetitive use of the rhetorical device, “doesn’t it offend your common sense?” with regard to the evaluation of his credibility was improper. The state argues that the comment regarding the revolver was a fair inference from the evidence or, at most, a mistaken overstatement of the testimony. The state also argues that it is not improper for the state to ask the jury to use its common sense in evaluating credibility. Further, the state claims that even if there was prosecutorial impropriety, it did not deprive the defendant of a fair trial.

The governing legal principles on prosecutorial impropriety are well established. “[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).” State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009). “Once prosecutorial impropriety has been alleged ... it is unnecessary for a defendant to seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant’s claim under Golding. . . . The reason for this is that the 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.” (Citation omitted; internal quotation marks omitted.) State v. Pascal, 109 Conn. App. 55, 66, 950 A.2d 566, cert. denied, 289 Conn. 917, 957 A.2d 880 (2008). “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.” (Internal quotation marks omitted.) State v. Gould, supra, 77.

“[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.” (Internal quotation marks omitted.) Id., 78-79.

“It is not improper for a prosecutor to ask the jury to draw inferences and to exercise common sense. . . . A prosecutor may urge the jury to find for stated reasons that a witness was truthful or untruthful. ... A prosecutor may also remark on the motives that a witness may have to lie, or not to lie, as the case may be.” (Citations omitted; internal quotation marks omitted.) State v. Felix, 111 Conn. App. 801, 811-12, 961 A.2d 458 (2008).

“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. . . . These factors include the extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case.” State v. Pascal, supra, 109 Conn. App. 67. We address the alleged improprieties in turn.

A

The first impropriety claimed by the defendant was the prosecutor’s imploring the jury to draw an inference of intent from facts that were not in evidence. The state claims that the prosecutor drew a fair inference from the evidence but that at most it is a mistaken overstatement of the testimony and not an impropriety. We agree with the defendant that this statement rises to the level of an impropriety.

The challenged part of the state’s rebuttal during closing argument was as follows: “Well, when you fire a revolver ... it takes extra effort. It takes a little bit more conscious action on the part of the shooter. You have to cock the gun, pull the trigger; the semiautomatic, you just pull the trigger and it fires. I would suggest to you that that’s important in terms of the issue of intent.”

A review of the record reveals that the only testimony regarding the differences between a revolver and a semiautomatic weapon was from the state’s firearms expert and was as follows: “[A] revolver is a handgun which uses [a] cylindrical, if you want to call it, magazine to hold the cartridges forward of the hammer but behind the barrel. The cartridges are loaded by hand into the cylinder, the cylinder is closed into the frame and then an independent pull of the trigger rotates the cartridge, aligns the cartridge to the barrel as the hammer goes forward [and] it fires the cartridge and it remains at rest. Until such time, you continue to fire. If there are no more cartridges to be fired, one removes the fired cartridges by opening the cylinder and then removing them manually from the frame of the firearm. A semiautomatic pistol uses a magazine which holds the cartridges, one on top of each other, which is usually placed in the handgrip portion of the firearm. The slide or the top of the frame of the firearm is pulled rearward exposing the cartridge on the top of the magazine; as the magazine is let go forward, it loads that cartridge into the barrel, which now starts that firing process. By pulling the trigger in a semiautomatic pistol, the gasses which push the bullet through the barrel of the firearm also are used to push the slide rearward; in doing so, it ejects the cartridge from the end of the barrel and then it is thrown from the firearm during that firing process. As the slide goes forward, it picks up another cartridge and makes it ready to be fired by pulling another independent pull of the trigger.”

It is a fair interpretation of the testimony of the state’s firearms expert for the prosecutor to maintain during closing argument that loading and firing a revolver is different from a semiautomatic weapon. To take that evidence, however, and to assert that it takes “extra effort” and “more conscious action” to fire a revolver, which the state’s firearms expert did not expressly testify to, and then to argue intent was improper. This language was more than just forceful argument or the prosecutor’s zeal in the heat of argument. The comment amounts to unsworn testimony, which is not proper in closing argument. See State v. Singh, 259 Conn. 693, 717, 793 A.2d 226 (2002). This statement amounts to an impropriety.

B

The defendant’s next claimed impropriety is the prosecutor’s repetitive use of the phrase, “doesn’t it offend your common sense,” when referring to the defendant’s credibility. The state argues that it is not improper to ask the jury to use its common sense in evaluating the defendant’s credibility. We conclude that the use of this rhetorical device went beyond asking the jury to use its common sense and, therefore, was improper.

Our review of the transcript of the prosecutor’s rebuttal closing argument reveals that he used the phrase, “doesn’t it offend your common sense,” ten times within the span of eighteen pages of transcript. Additionally, he “suggested” three times that the jurors’ “common sense can draw the reasonable inferences that need to be drawn.” This phraseology was used when the prosecutor was recounting the testimony of the defendant at trial. This occurred after the prosecutor had submitted to the jury that the case was “really about the credibility as to who[m] do you believe . . . .”

This language was more than the use of “proper rhetorical devices,” as the state tries to characterize it. By using the device of the rhetorical question, “doesn’t it offend your common sense,” the prosecutor was, in effect, telling the jury that the defendant’s testimony offends the prosecutor’s common sense and that it should offend the jury’s as well. By asking the question over and over in his summation, the prosecutor could lead the jury to believe that he was expressing his personal opinion about the defendant’s testimony. We conclude that the challenged remarks fall close enough to the line to warrant our further review. See State v. Dews, 87 Conn. App. 63, 77, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).

C

After concluding that the challenged portions of the state’s rebuttal closing argument were improper, we now determine whether the prosecutorial impropriety deprived the defendant of his due process right to a fair trial. We conclude that it did not.

Under the well established analysis of State v. Williams, supra, 204 Conn. 540, we consider: (1) “the extent to which the [impropriety] was invited by defense conduct or argument”; (2) “the severity of the [impropriety]”; (3) “the frequency of the [impropriety]”; (4) “the centrality of the [impropriety] to the critical issues in the case”; (5) “the strength of the curative measures adopted”; and (6) “the strength of the state’s case.” “In determining whether the defendant was denied a 1'air trial [by virtue of prosecutorial impropriety] we must view the prosecutor’s comments in the context of the entire trial. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Citation omitted; internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 442, 902 A.2d 636 (2006); see also, e.g., State v. Thompson, 266 Conn. 440, 460, 832 A.2d 626 (2003) (seminal case articulating standard). Finally, the state bears the burden of demonstrating beyond a reasonable doubt that there is no reasonable likelihood that the jury’s verdict would have been different absent the improprieties at issue. See State v. Stevenson, 269 Conn. 563, 572-74, 849 A.2d 626 (2004).

Taking the Williams factors in order, there is nothing in the record to indicate that the defendant did anything to invite the impropriety. The second factor looks at the severity of the impropriety. In State v. Thompson, supra, 266 Conn. 479-80, our Supreme Court held that the impropriety was not severe when the prosecutor repeatedly attacked the veracity of the defendant’s two principal witnesses, appealed to the emotions of the jurors by urging them to give the victim’s family justice and urged the jury to use impeachment evidence substantively. See State v. Dews, supra, 87 Conn. App. 77-78. Using the standard set by the court in Thompson, we conclude that the prosecutor’s conduct in this case was far less egregious and that the defendant has not met the severity prong. In addition, defense counsel failed to object during trial, and “[a] failure to object demonstrates that defense counsel presumably [did] not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Gordon, 104 Conn. App. 69, 82, 931 A.2d 939, cert. denied, 284 Conn. 937, 937 A.2d 695 (2007).

The third prong measures the frequency of the instances of the impropriety. Here, the improprieties were scattered throughout the prosecution’s rebuttal. This was not an instance of a few but, rather, thirteen instances of the improper rhetorical device referring the jury to see if its common sense was offended by the defendant’s testimony in assessing credibility and one instance of referring the jury to facts that were not in evidence. These fourteen instances over a course of eighteen pages of transcripts were frequent.

The fourth prong relates to the centrality of the impropriety to the issues of the case. The reference to facts that were not in evidence concerned the defendant’s intent to shoot the victim. “It is a well established principle that the elements of a crime are critical issues in a state’s case.” Id., 83. The rhetorical device related to the defendant’s credibility, and the prosecutor asserted that the defendant’s credibility would ultimately determine the case. The prosecutor’s comments were directed squarely at the central issues of the charged offenses.

Fifth, we assess the strength of the curative measures adopted by the court. The defendant did not object to the prosecutor’s statements or request any curative instructions, and the court did not give any. Although the court did not provide the jury with any curative instructions, in the general jury charge, the court instructed the jury on the basic guiding principle that “[ejertain things are not evidence, and you may not consider them in deciding what the facts are. These include . . . arguments and statements by the lawyers. The lawyers are not witnesses. What they have said during the course of trial or in the closing arguments is intended to help you interpret the evidence, but it is not evidence.” “In the absence of a showing that the jury failed or declined to follow the court’s [general] instructions, we presume that it heeded them. ” (Internal quotation marks omitted.) State v. Gordon, supra, 104 Conn. App. 83-84. There is no suggestion in the present case that the jury did not follow the court’s general instructions.

The last factor we review is the strength of the state’s case. There is no disagreement that the defendant fired his gun at the victim. There were also three eyewitnesses who testified that they heard a gunshot and that the defendant then shot at the victim. There also was testimony that before the shooting, the victim and the defendant had been in a heated discussion and that the defendant had driven away and then returned. Our Supreme Court has “never stated that the state’s evidence must have been overwhelming in order to support a conclusion that prosecutorial [impropriety] did not deprive the defendant of a fair trial. ” State v. Thompson, supra, 266 Conn. 483. There was sufficient testimony for the jury to conclude that the defendant was not acting in self-defense and to find him guilty of manslaughter in the first degree with a firearm. Despite the improprieties, the state’s case was strong.

After our review of all of the Williams factors, we conclude that the defendant was not deprived of his right to a fair trial by the prosecutor’s statements.

II

The defendant’s final claim is that the court improperly precluded him from presenting evidence that drugs were found in the victim’s underwear. The state argues that the court appropriately precluded the testimony because it would have been cumulative of other evidence and more prejudicial than probative. We agree •with the state.

As a preliminary matter, we set forth the applicable standard of review. “Section 4-1 of the Connecticut Code of Evidence provides that evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. Relevant evidence is excluded, however, if its probative value is outweighed by the danger of unfair prejudice .... Unfair prejudice exists when the evidence tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence. . . .

“[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear- abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling. ” (Citations omitted; internal quotation marks omitted.) State v. Harris, 277 Conn. 378, 387-88, 890 A.2d 559 (2006). “A determination regarding undue prejudice is a highly fact and context-specific inquiry.” State v. Bur-ney, 288 Conn. 548, 565, 954 A.2d 793 (2008). “[T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court . . . and is subject to reversal only [when] an abuse of discretion is manifest or injustice appears to have been done.” (Internal quotation marks omitted.) State v. Rinaldi, 220 Conn. 345, 355, 599 A.2d 1 (1991).

Over the state’s objection, the court permitted the defendant to testily about his knowledge of the victim’s involvement in drug dealing, ruling that it was relevant to the defendant’s state of mind. The defendant then attempted to offer the testimony of a New Haven police officer who would have testified about four packages of cocaine found in the victim’s underwear while he was under the care of paramedics after the shooting. The defendant claims that this evidence was relevant to the reasonableness of his belief that the victim was a drug dealer, and therefore armed, to corroborate the defendant’s testimony regarding the victim’s involvement in illegal drugs and his assertion that drugs found at the crime scene were not the defendant’s. The court ruled that the potential prejudicial impact of this testimony outweighed any probative value.

The defendant was permitted to testify that the victim was armed with handguns a majority of the time and that the victim had admitted to him that he had participated in a fatal shooting. He also testified that he had seen the victim beat up the mother of his children on several occasions. The court did not abuse its discretion in precluding the testimony because it was cumulative and highly prejudicial.

The judgment is affirmed.

In this opinion FLYNN, C. J., concurred.

LAVINE, J.,

concurring. I agree that the trial court’s judgment should be affirmed. I write separately because I do not agree that any prosecutorial improprieties occurred in closing argument.

The majority concludes that the prosecutor improperly referred to facts that were not in evidence when he argued to the jury that it could infer intent to kill because it takes more effort to fire a revolver as opposed to a semiautomatic weapon. In light of the expert testimony concerning the differences between a revolver and a semiautomatic weapon, referenced in the majority’s opinion, I see nothing at all wrong with this argument. The prosecutor simply was asking the jury to draw a reasonable, common sense inference from the evidence. The jury was free to draw the requested inference, or not, as it saw fit. See State v. Palangio, 115 Conn. App. 355, 366, 973 A.2d 110 (2009) (“[t]he jury members may draw from the evidence only such inferences as are reasonable, but they are not required to put aside their common sense”).

I also disagree with the majority’s conclusion that the state’s repetitive use of the phrase, “doesn’t it offend your common sense,” was improper. This garden variety argument employs a common rhetorical device. It is the repeated use of the phrase that leads the majority to conclude that the prosecutor improperly expressed a personal opinion. If, however, using the phrase once is not improper—and the majority cites no case standing for that proposition—how can the repeated use of the phrase be considered improper? To reach the conclusion it reaches, the majority must condemn even the single use of the phrase, “doesn’t it offend your common sense.” This the majority opinion does not do.

Because I conclude that the prosecutor’s closing argument was not improper, I respectfully concur.

       I agree with the facts as stated by the majority.