author: HARPER, J.

text:
    ISAAC COUNCIL v. COMMISSIONER OF CORRECTION
    (AC 29155)
    Harper, Beach and Lavery, Js.

      Argued December 8, 2008
    officially released April 28, 2009

      Martha Hansen, special public defender, for the appellant (petitioner).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Isaac Council, 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 determined that the state did not argue inconsistent theories to obtain a conviction at his criminal trial and, therefore, did not violate his right to due process. We affirm the judgment of the habeas court.

In 1997, the petitioner was convicted, following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), criminal possession of a firearm in violation of General Statutes § 53a-217c and possession of weapons in a motor vehicle in violation of General Statutes § 29-38. The jury found the petitioner not guilty of attempt to commit murder. He was sentenced to a total effective term of twenty-five years incarceration. Following his direct appeal, this court affirmed the judgment of conviction. See State v. Council, 48 Conn. App. 919, 714 A.2d 733, cert. denied, 245 Conn. 920, 717 A.2d 236 (1998). At the petitioner’s trial the jury reasonably could have found the following facts. On November 20, 1994, the petitioner was operating a motor vehicle on County Street in New Haven. The petitioner slowed to a stop as he passed a group of people standing in front of a house. Thomas Rogers was in the front passenger seat, and Larry McCown was in the rear passenger seat of the motor vehicle. Gunshots were fired from the passenger side of the vehicle, killing one man and wounding another. The state was unable to prove who actually fired the guns, but forensic evidence established that at least two .45 caliber guns were fired from the vehicle. Each of the three occupants in the vehicle, the petitioner, Rogers and McCown, were charged under both principal and accessory theories of liability. Rogers and McCown were tried and convicted in separate trials, of, inter alia, murder and attempt to commit murder, and their convictions also were affirmed on direct appeal. See State v. Rogers, 50 Conn. App. 467, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); see also State v. McCown, 68 Conn. App. 815, 793 A.2d 281, cert. denied, 260 Conn. 927, 798 A.2d 972 (2002).

After the petitioner’s direct appeal was affirmed, he subsequently filed a petition for a writ of habeas coipus, in which he claimed (1) ineffective assistance of trial counsel and (2) a violation of his right to due process. With regard to the latter claim, the petitioner argued that the state had relied, in his trial, on a theory of criminal liability that was inconsistent with that relied on during the trials of Rogers and McCown. On May 10, 2007, a hearing was held on the petition, at which time the petitioner withdrew his claim of ineffective assistance of counsel. As to the second count, the court rejected the petitioner’s claim that his right to due process was violated and denied his petition for a writ of habeas corpus. After evaluating the prosecutorial theories relied on in the trials of the petitioner, Rogers and McCown, the court concluded that the state had not relied on either legally or factually inconsistent theories. The court further observed that each defendant was charged with the substantive crime and under a theory of accessorial liability. The court also observed that closing arguments in each trial were related to the involvement of each defendant in each prosecution, that the state could not prove the actual shooter and that the theories were not inconsistent. The court subsequently granted the petition for certification to appeal, and this appeal followed.

On appeal, the petitioner argues that his right to due process was violated because the state argued inconsistent theories at the separate trials of the petitioner, Rogers and McCown. He relies on Smith v. Groose, 205 F.3d 1045 (8th Cir.), cert. denied sub nom. Gammon v. Smith, 531 U.S. 985, 121 S. Ct. 441, 148 L. Ed. 2d 446 (2000), which held that “the use of inherently factually contradictory theories violates the principles of due process.” Id., 1052. Specifically, the petitioner argues that the state’s theories of who the shooter was at each of the three trials were inconsistent and, therefore, violated his right to due process. He claims that in each of the three trials, the state argued, in closing arguments, different theories as to who were the actual shooters. At his trial, the state argued that the shooters were the petitioner and Rogers, whereas at the separate trials of McCown and Rogers, the state argued that Rogers and McCown were the shooters. Because the forensic evidence showed that only two guns were involved in the shooting, the petitioner argues that it was factually inconsistent for the state to have argued that there were three shooters when the evidence demonstrated that only two guns were involved in the incident. We disagree.

We first begin by setting forth our standard of review. “[A] habeas court’s findings of fact are reviewed under the clearly erroneous standard of review .... Whether the petitioner’s right to due process of law was violated . . . however, is a mixed question of law and fact that warrants plenary review.” (Citations omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 735, 779 A.2d 156 (2001). When our review is plenary, “we must determine whether [the court’s legal conclusions] are legally and logically correct and whether they find support in the facts set out in the court’s [ruling] . . . .” (Internal quotation marks omitted.) State v. Kimble, 106 Conn. App. 572, 579, 942 A.2d 527, cert. denied, 287 Conn. 912, 950 A.2d 1289 (2008).

There is little Connecticut case law applicable to the issue in the petitioner’s appeal. In State v. Colon, 272 Conn. 106, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005), the defendant relied on Smith v. Groose, supra, 205 F.3d 1045, and alleged a violation of his right to due process that was based on the state’s use of inconsistent theories. In Colon, the defendant argued that the state engaged in prosecutorial misconduct by arguing contradictory theories regarding Virginia Quintero’s role in the death of the victim, for which the state charged the defendant with murder. State v. Colon, supra, 240. Specifically, the defendant argued that his right to due process was violated because the state claimed, on one hand, that Quintero was held captive by the defendant during the time prior to the death of the victim and, on the other hand, charged Quintero with manslaughter in connection with the victim’s death. Id., 240-41. The defendant relied on Smith v. Groose, supra, 1045, in support of his argument that the state’s use of contradictory theories violated his right to due process. State v. Colon, supra, 241.

Our Supreme Court concluded that the defendant’s reliance on Smith was misplaced because the defendant and Quintero were charged with two separate crimes. Specifically, the defendant had been charged with murder and Quintero had been charged with manslaughter. The court found that the state clearly had demonstrated that the defendant had killed the victim through the infliction of blunt force trauma to the victim’s head, and further, that although the state claimed Quintero was not allowed to leave her apartment to seek help for the victim, it contended that Quintero could have done more to save the victim’s life. Id., 244. Accordingly, the court held that the theories the prosecutor asserted against the defendant and Quintero were not factually inconsistent but, rather, the state was “attempting to hold accountable all those who contributed to the victim’s death.” Id. As our Supreme Court analyzed Smith in its decision, this court will turn to Smith as well.

In Smith v. Groose, supra, 205 F.3d 1049, the United States Court of Appeals for the Eighth Circuit addressed the issue of “whether the Due Process Clause forbids a state from using inconsistent, irreconcilable theories to secure convictions against two or more defendants in prosecutions for the same offenses arising out of the same event.” The Eighth Circuit held that it does. Id., 1048. The facts of Smith involve the deaths of two homeowners during the commission of a burglary of their home. Id., 1047. The prosecution first tried the defendant, Jon Keith Smith, for first degree felony murder, armed criminal action, robbery and burglary. Id., 1048. At Smith’s trial, the prosecution introduced evidence of a statement made by one of Smith’s friends, Anthony Lytle, who was with Smith and two other friends at the crime scene. Id. Lytle stated to the police in December, 1983, that he heard a scuffle and then observed one of his friends bent over one of the homeowners, stabbing the homeowner with a pocketknife. Id., 1047-48. Lytle later recanted this statement; however, it was used at Smith’s trial not only to impeach Lytle’s in-court testimony but also as substantive evidence of Smith’s guilt. Id., 1048. Smith was convicted of, inter alia, felony murder and sentenced to five terms of life imprisonment. Id.

Following Smith’s trial, the state tried Michael Cunningham for the murder of the same homeowner victim as in Smith’s prosecution. Id. Again, the state used a statement given by Lytle at Cunningham’s trial. Id. This statement by Lytle, however, was not the December, 1983 statement used in Smith’s trial but, rather, was a different statement that Lytle had given to the police in November, 1983. The November, 1983 statement indicated that the homeowner had been killed prior to the entry into the house by Lytle, Smith and their two friends. Id., 1047. Cunningham was convicted of two counts of first degree murder, two counts of armed criminal action, one court of first degree robbery and one count of second degree burglary. Id., 1048.

After the trial and conviction of Cunningham, Smith appealed from his conviction, arguing that there was insufficient evidence to support his conviction on the basis of Lytle’s recanted statement. Id. His appeal was denied. Id. Smith subsequently filed two federal habeas petitions, each with a claim of insufficient evidence, both of which were denied. After the denial of his second federal habeas petition, the Eighth Circuit granted Smith a certificate of appealability for the sole question: “Does the fact that the State secured Appellant’s murder conviction on the basis of testimony from Anthony Lytle that was inconsistent with, if not diametrically opposed to, the testimony that Lytle subsequently gave at Michael Cunningham’s trial . . . render Appellant’s murder conviction void for want of due process?” (Internal quotation marks omitted.) Id. The court answered in the affirmative. Id.

The Eighth Circuit, in reaching its decision, discussed two cases that considered a similar issue. In Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc), rev’d on other grounds, 523 U.S. 538, 118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998), the United States Court of Appeals for the Ninth Circuit found a violation of due process when, during two separate trials of two defendants, the prosecutor argued that each defendant committed the same murder for drastically different reasons. Id., 1055. In the first trial in Thompson, the prosecutor pursued charges against the defendant, Thomas Martin Thompson, claiming that Thompson raped the victim and then killed her to cover up the rape. Id., 1057. In the second trial, the prosecutor pursued charges against the defendant, David Leitch, claiming that he was the only one with the motive to kill the same victim because she was preventing him from reconciling with his former wife. Id., 1056-57. The court in Thompson noted that in the second murder trial, the prosecutor “returned to his original theory and discredited the very evidence he had previously offered in Thompson’s trial.” Id., 1059. The court stated that “it is well established that when no new significant evidence comes to light a prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime.” Id., 1058. Accordingly, the court found that the defendant in the first trial, Thompson, “suffered from the due process deprivation that infected the conflicting prosecutions.” Id., 1059.

The second case discussed in Smith was Drake v. Francis, 727 F.2d 990 (11th Cir. 1984). In the first trial in Drake, the prosecution argued that the defendant, William Campbell, was responsible for killing the victim. Id., 993. Whereas in the second trial, that of the defendant, Henry Arthur Drake, the prosecution argued that Campbell had such severe asthma and emphysema that he was physically unable to have delivered the fatal blows; therefore, Drake had participated in the murder of victim. Id. The United States Court of Appeals for the Eleventh Circuit found that the two theories argued at the separate defendants’ trials were “fairly consistent” and that there was no violation of due process. Id., 994. The Eleventh Circuit based this conclusion on the fact that the “prosecutors had argued that both defendants played a role in the murder [and] their arguments varied only with regard to the extent of involvement . . . .” Smith v. Groose, supra, 205 F.3d 1050, citing Drake v. Francis, supra, 994.

Accordingly, the Eighth Circuit found that Smith’s case was more analogous to Thompson than to Drake because “what the State claimed to be true in Smith’s case it rejected in Cunningham’s case, and vice versa.” Smith v. Groose, supra, 205 F.3d 1050. At Smith’s trial, the state argued that the murder occurred after Smith, Lytle and their friends entered the house, whereas at Cunningham’s trial the state argued that the murder occurred before Smith, Lytle and their friends entered the house. Id. As the court found that the state was arguing two inconsistent theories about when the murder had occurred and who had committed the murder, the court held that the state’s reliance on inconsistent theories violated the defendant’s right to due process, resulting in a fundamentally unfair trial. Id., 1051. The court specifically held that “the use of inherently factually contradictorytheori.es violates the principles of due process.” Id., 1052. The court stated further that “[t]o violate due process, an inconsistency must exist at the core of the prosecutor’s cases against defendants for the same crime.” Id.

In the present matter, the petitioner’s reliance on Smith is misplaced. Unlike the prosecution in Smith, the state did not present completely contradictory evidence to obtain a conviction for any of the three defendants allegedly involved in the shooting. Rather, as in Colon, the state was attempting to hold accountable all who had participated in any way in the shooting on County Street. See State v. Colon, supra, 272 Conn. 244. The state did not reject in one case what it asserted to be true in another. See Smith v. Groose, supra, 205 F.3d 1050. Instead, the state presented the same evidence in each trial and then, in its closing arguments, varied its arguments to the extent of each defendant’s involvement. See id.; Drake v. Francis, supra, 727 F.2d 994.

Our careful review of the evidence reveals the following uncontested facts. In its closing argument at the trial of Rogers, the state argued: “You can, I would suggest to you, reasonably conclude from the evidence that you’ve heard in this case, that the defendant was, in fact, one of the people who fired a gun on County Street. He had a motive, he had an instrumentality right after the crime, he had a gun and he talked about his involvement in the crime. But having said that, the Judge is going to tell you that the state, under the accessory statute, does not even have to prove that he was the shooter; he could have been the driver, and you are still able to find him guilty because as long as you find, and I suggest that [this] is a reasonable conclusion for you to find, he was a criminal participant who aided and abetted the commission of this crime, the law says that if two or more people participate in a crime, they are all equally responsible as long as you find that Mr. Rogers did anything to aid or assist, whether he indirectly or directly procured this to happen, he was the shooter or did any act forming a part of this crime, he is guilty on the first count. . . . [The accessory] statute is designed precisely for this very situation when you’ve got people wearing masks and you’ve got more than one weapon and there’s no way to determine if you don’t recover the weapon which gun fired the [gun] shot so that the guilty people who participated in a crime like this do not go unpunished despite this reprehensible criminal conduct.” Accordingly, in the state’s closing argument at Rogers’ trial, the state argued that it was reasonable to find that Rogers could have been a shooter on the basis of his motive, his having a gun and his discussing the crime afterward. The state also argued, however, that it was unable to determine who had fired the fatal gunshot, and, therefore, the jury only had to find that Rogers was a criminal participant to be liable as an accessory and found guilty of murder.

Seven months later, at the trial of the petitioner, the state again argued in its closing arguments: “I think you can reasonably conclude from the evidence here, from the fact that [the petitioner] had a gun, both before and after this crime occurred, that he was in fact a shooter in this case, and that we’ve proven a motive for him as well because of his close connection to Thomas Rogers, and, I think, by inference, to his brother, Anthony; but having said that, the state does not have to prove in this case that [the petitioner] was a shooter in this case; he could be the driver. You could find he’s the driver in this case, and under the accessory statute, as the Judge is going to define for you, he’s still guilty as a criminal participant in this crime, who aided and abetted, and as the Judge reads you that instruction, I would ask you to listen carefully because he’s going to tell you if two or more people participate in a crime, they are equally responsible. Anything to aid or assist the commission of this murder, whether to directly or indirectly counsel someone to do this or persuade a person to do it or do any act such as drive a car, that’s enough. So, I would say to you that the state does not have to prove which person in the car fired the fatal shot as long as you find [that the petitioner] was a criminal participant in the aiding of this particular crime.” Accordingly, in the state’s closing argument at the petitioner’s trial, the state argued that it was reasonable that the petitioner could have been a shooter on the basis of his connection to Rogers and his having a gun both before and after the shooting. The state also argued, however, that it was unable to determine who fired the fatal gunshot, and, therefore, the jury only had to find that the petitioner was a criminal participant to be liable as an accessory and found guilty of murder. The state argued that the petitioner could be found guilty under the accessory statute if he was merely the driver of the car and not the actual shooter.

Last, one and one-half years later, at the trial of McCown, the state delivered a similar argument to the jury: “His own statement, ladies and gentlemen, conclusively proves, along with the other evidence that you heard in this case, that he was one of the shooters, along with Mr. Rogers. Because, as you heard, all the shots came from the passenger’s side of the car .... I think you can reasonably conclude from the evidence that this defendant was one of the two shooters. Having said that, the state does not need to prove that this defendant was the shooter who actually fired the fatal shot. In other words, whether it was Mr. Rogers who fired the fatal shot or this defendant who fired the fatal shot, the law on accessory says that as long as two or more people participate in a crime, they are equally responsible if they’ve done anything to aid or assist, whether directly or indirectly, people to do it or any act forming a part thereof.” The state, again, was arguing the same facts as it had at the petitioner’s trial but had tailored its discussion of those facts specifically to McCown. The state argued that McCown was in the rear passenger seat and that the gunshots were fired from the passenger side of the motor vehicle.

“Discrepancies based on rational inferences from ambiguous evidence will not support a due process violation provided the . . . theories are supported by consistent underlying facts.” Sifrit v. State, 383 Md. 77, 106, 857 A.2d 65 (2004), cert. denied, 543 U.S. 1056, 125 S. Ct. 929, 160 L. Ed. 2d 780 (2005). “The few courts that have found due process violations did so in cases where the inconsistencies were inherent to the State’s whole theory of the case or where the varying material facts were irreconcilable.” Id.

The state did not rely on inconsistent theories of liability for the killing of one man and the wounding of another. The state argued that each defendant reasonably could have been the shooter and applied specific facts to specific defendants. See Smith v. Groose, supra, 205 F.3d 1050, citing Drake v. Francis, supra, 727 F.2d 994. Moreover, the state argued that each defendant was charged as an accessory and that the jury did not have to find, nor did the state have to prove, who was the actual shooter. The state only had to prove that each defendant was a criminal participant, and the jury could assess the criminal liability of each defendant for the crimes of murder and attempt to commit murder under the theory of accessoiy liability. Last, it is important to note that the jury found the petitioner guilty of manslaughter, not murder, and found him not guilty of attempt to commit murder, whereas Rogers and McCown were both convicted of murder and attempt to commit murder.

We conclude, therefore, that the state did not argue what the state claimed to be true in one case and rejected in another case, but, rather, the state argued that all defendants played a role in the murder, and arguments varied only with regard to the extent of the defendants’ involvement. See Smith v. Groose, supra, 205 F.3d 1050, citing Drake v. Francis, supra, 727 F.2d 994. The state did not argue inherently factually contradictory theories but, rather, introduced the same evidence at each trial and argued that all three defendants were liable under an accessory liability theoiy. Accordingly, we conclude that the petitioner’s right to due process was not violated because the state did not argue inconsistent theories at each of the three separate trials.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner claims that the appropriate standard of review is abuse of discretion because he is appealing from the judgment of the habeas court denying his petition for a writ of habeas corpus. An allegation of a violation of due process, however, is a question of law, and, accordingly, we will address it under a plenary standard of review. See State v. T.R.D., 286 Conn. 191, 210, 942 A.2d 1000 (2008); State v. Easton, 111 Conn. App. 538, 541, 959 A.2d 1085 (2008), cert. denied, 290 Conn. 916, 965 A.2d 555 (2009).

       The day before the shooting occurred on County Street, Rogers’ brother, Anthony, was shot.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JULIO T. BURGOS-TORRES
    (AC 29896)
    Flynn, C. J., and Bishop and Pellegrino, Js.

      Argued February 4
    officially released April 28, 2009

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, atad Patrick J. Griffin, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Julio T. Burgos-Torres, appeals from the judgment of conviction, rendered after a jury trial, on the charges of murder in violation of General Statutes § 53a-54a (a) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that the trial court abused its discretion (1) in admitting the testimony of Michael A. Munoz, one of the state’s witnesses, because the state called him to the witness stand for the primary purposes of impeaching his earlier testimony and bolstering his credibility and in allowing Munoz to testify regarding his inconsistent September 12, 2005 testimony at the defendant’s probable cause hearing and (2) by denying the jury’s request to review inconsistent statements after instructing the jury on the law regarding inconsistent statements. The defendant also challenges his conviction on the ground that the prosecutor engaged in impropriety throughout the trial. We reject all of the defendant’s claims and affirm the trial court’s judgment of conviction.

The following facts, as reasonably could have been found by the jury, provide the necessary background for the disposition of the defendant’s appeal. The defendant was upset that the victim, Jesus Gonzalez, had been selling drugs in the defendant’s territory. A person whom the defendant used as a runner for his drugs spoke with the victim, and the victim asked the runner to relay a vulgar insult to the defendant. Angry over the insulting message from the victim, the defendant demanded an apology, and he enlisted the assistance of Luis Gonzalez to contact the victim. After the victim apologized to the defendant via the telephone, the defendant demanded a face-to-face apology. Luis Gonzalez, while in the company of Munoz, picked up the victim, who was waiting outside the rear of Dorado’s Cafe in Waterbury, and drove him to Munoz’ home, which was nearby on Granite Street. After arriving at Munoz’ home, the victim telephoned the defendant to tell him that he was at Munoz’ home if he wanted a face-to-face apology. The victim, Munoz and Luis Gonzalez waited outside for the defendant to arrive. Munoz’ wife and children were in the backyard. The victim and the defendant exchanged words, and the victim, again, apologized to the defendant. The defendant told the victim that the victim had been selling drugs in the defendant’s territory, and the victim offered another apology. The exchange between the defendant and the victim became more heated and some obscenities were exchanged. The victim told the defendant that he had apologized and that there was nothing else he could do. The defendant then pulled a gun from his waistband, pointed it at the victim’s chest and repeatedly shot him, before turning and running away. Munoz’ wife telephoned 911, and Munoz stayed with the victim until the police arrived. Both Luis Gonzalez and Munoz positively identified the defendant as the murderer.

The defendant was arrested and charged with criminal possession of a firearm and murder. After a trial, the jury found that on July 18, 2005, the defendant criminally possessed a firearm and, with the intent to cause the death of another person, murdered the victim. After accepting the jury’s verdict, the court sentenced the defendant to sixty years imprisonment on the murder conviction and five years, consecutive, for the criminal possession of a firearm conviction for a total effective sentence of sixty-five years incarceration. This appeal followed.

I

The defendant first claims that the court improperly admitted the testimony of Munoz after the state called him for the primary purposes of impeaching his earlier testimony and bolstering his credibility. He also claims that the court improperly allowed Munoz to testify regarding his inconsistent September 12, 2005 testimony at the defendant’s probable cause hearing. The defendant argues that the court, sua sponte, should have prohibited this testimony, and he requests review of this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. The defendant cannot prevail under either doctrine.

“Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. King, 289 Conn. 496, 502-503, 958 A.2d 731 (2008). We conclude that the defendant has failed to demonstrate that this claim is of constitutional magnitude.

In the defendant’s brief, he argues that this claim is reviewable because it “affects the defendant’s right to due process and a fair trial pursuant to the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.” Although the brief contains this one passing sentence on the alleged relevant sections of the constitutions, the defendant’s brief is devoid of any analysis related thereto. He fails to explain how this claim is of constitutional magnitude or how the facts of this case relate to the constitutional text or the Supreme Court’s interpretation of such text. Such a presentation on the admissibility of evidence does not permit the conclusion that the defendant’s constitutional rights, under the sixth amendment to the United States constitution or article first, § 8, of the Connecticut constitution are implicated. The defendant bears the responsibility of demonstrating that his claim alleges the violation of a fundamental constitutional right. State v. Golding, supra, 213 Conn. 240. “The defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right.” State v. Stepney, 94 Conn. App. 72, 79, 891 A.2d 67, cert. denied, 278 Conn. 911, 899 A.2d 40 (2006). Beyond one passing assertion that this claim is of constitutional magnitude, the defendant fails to explain or to analyze how this testimonial evidence implicates his constitutional rights, and, therefore, it fails under the second prong of Golding and is not reviewable.

We also decline to afford this claim plain error review. “The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 183, 920 A.2d 236 (2007).

Reviewing the record, we perceive no impropriety that would result in manifest injustice. The defendant cites no authority for the proposition that the court, sua sponte, must prohibit testimony of this kind when the opposing party has not objected or when he states on the record that he has no objection to the introduction of the testimony now challenged on appeal. Furthermore, although the defendant argues that the trial court should have assumed the role of gatekeeper and that it sua sponte should have prohibited this testimony, the court’s adoption of such a role is not looked on favorably. “[W]hen opposing counsel does not object to evidence, it is inappropriate for the trial court to assume the role of advocate and decide that the evidence should be stricken. . . . The court cannot determine if counsel has elected not to object to the evidence for strategy reasons.” (Citation omitted; internal quotation marks omitted.) State v. Wragg, 61 Conn. App. 394, 399, 764 A.2d 216 (2001).

II

The defendant next claims: “The trial court abused its discretion when it instructed the jury on inconsistent statements but denied the jury’s request to review the inconsistent statements, thereby precluding the jury from reviewing tangible evidence that supported an inference of reasonable doubt.” Despite the time honored rule that only full exhibits go to the jury, the defendant argues that “[u]nder the rule of completeness, pursuant to Connecticut Code of Evidence § 1-5, whether or not the statements were otherwise admissible, the court had the discretion to admit them once the jury requested them so that in fairness the jury could consider them in the context of the testimony at trial.” The defendant claims that the court abused its discretion when it declined the jury’s request to review these statements that were not in evidence. We decline to review this unpreserved claim.

To better understand the defendant’s claim, the following background is necessaiy. During its deliberations, the jury sent a note to the court asking for copies of the statements that Munoz and Luis Gonzalez had given to the police on July 18, 2005. The court declined the jury’s request because the statements had not been introduced in evidence at trial but merely had been marked for identification, and the court explained this to the jury. The defendant claims that because the content of these statements repeatedly was brought up during the trial, they were a necessary part of the jury’s decision and may have provided a basis for reasonable doubt. Therefore, he argues, the court abused its discretion in denying the jury’s request.

The defendant’s claim was not preserved at trial for our review, as he offered no objection before the court, and he never asked that the statements be made full exhibits. “Any party intending to raise any question of law which may be subject to an appeal must either state the question distinctly ... in a written trial brief . . . or state the question distinctly ... on the record .... Practice Book § 5-2. We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . Our Supreme Court has held that this rule [also] applies to constitutional issues.” (Citation omitted; internal quotation marks omitted.) State v. Misenti, 112 Conn. App. 562, 566, 963 A.2d 696, cert. denied, 291 Conn. 904, 967 A.2d 1220 (2009). In this case, the defendant also has failed to request review of this claim under State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine. See Practice Book § 60-5. Accordingly, we decline to review this claim.

Ill

The defendant also challenges his conviction on the ground that the prosecutor engaged in impropriety during trial and during closing argument. After setting forth the relevant law, we will consider these claims separately.

“[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). See State v. Stevenson, 269 Conn. 563, 573-75, 849 A.2d 626 (2004).” State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009). “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. Salamon, 287 Conn. 509, 551, 949 A.2d 1092 (2008).

A

The defendant specifically argues: “The prosecutor’s improprieties in introducing inadmissible evidence, in improperly impeaching his own witness with inadmissible evidence, improperly bolstering the witness’ testimony, inducing a witness to make a second statement for the purposes of impeachment and bolstering, and offering hearsay character evidence of the defendant for the truth of the matter to show the defendant’s propensity for violence, deprived the defendant of his due process right to a fair trial.”

We conclude that the defendant is attempting to reassert his unpreserved evidentiary claims through the guise of a claim of prosecutorial impropriety with constitutional implications. See State v. Blango, 103 Conn. App. 100, 113, 927 A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007); State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133 (“[a]lthough our Supreme Court has held that unpreserved claims of prosecutorial impropriety are to be reviewed under the Williams factors, that rule does not pertain to mere evidentiary claims masquerading as constitutional violations”), cert. denied, 284 Conn. 912, 931 A.2d 932 (2007); see also State v. Rowe, 279 Conn. 139, 149, 900 A.2d 1276 (2006) (unpreserved and unreviewable evidentiary claim cannot be transformed into one of prosecutorial misconduct). Accordingly, we again decline to review these unpreserved evidentiary claims.

B

The defendant also argues that the prosecutor acted improperly in “emphasizing the defendant’s bad character propensity for violence in closing arguments, thereby improperly appealing to the emotions of the jury.” The state argues that the prosecutor’s comments during closing argument regarding the defendant’s reputation for violence were fair comment on the evidence elicited during trial. We agree with the state.

“It is well settled that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state’s case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. ” (Internal quotation marks omitted.) State v. Tok, 107 Conn. App. 241, 256, 945 A.2d 558, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).

The defendant refers to portions of the prosecutor’s closing argument in which he sought to highlight the stated reasons for Munoz’ inconsistent statements. On the basis of our review of the record, we agree with the state that the prosecutor’s argument was firmly rooted in the evidence presented at trial.

During trial, Munoz explained that he had given inconsistent accounts of the murder because he was afraid for his safety and the safety of his family because the defendant had threatened him. This evidence came in by agreement, and the court gave a thorough limiting instruction to the jury regarding the use of such evidence. During closing argument, the prosecutor discussed these inconsistencies and highlighted the evidence surrounding the reasons for the inconsistencies. Our own review of the record leads us to the conclusion that this was fair comment on the evidence, in an attempt to explain the inconsistencies in the witness’ testimony and not in an attempt to get the jury to use this information substantively against the defendant. Additionally, we note that the court gave a very thorough limiting instruction explaining the purpose of this evidence and, during its final instructions, reminded the jury of the limited purpose of this evidence. Furthermore, in its final instructions, the court also explained that the arguments of counsel are not evidence, and it directed the jury not to be influenced by sympathy, sentiment, prejudice or bias. Absent some clear indication to the contrary, the jury is presumed to have followed the court’s instructions. State v. Cromety, supra, 102 Conn. App. 436 n.14.

The judgment is affirmed.

In this opinion the other judges concurred.

       We also note that insofar as the defendant raises an issue concerning the admissibility of Munoz’ trial testimony explaining his inconsistent September 12, 2005 testimony at the defendant’s probable cause hearing, the defendant informed the court that he wanted the court to give a limiting instruction to the jury. To clarify an uncertainty, the court specifically asked defense counsel whether he was indicating that he had no objection to the testimony. Defense counsel responded: “That’s correct, Your Honor. As long as there is a cautionary instruction.” The court gave a cautionary instruction as requested by the defendant.

       It is axiomatic that a defendant has a “sixth amendment right to have his guilt determined by an impartial jury on the basis of the evidence presented" at trial. (Emphasis added; internal quotation marks omitted.) State v. Johnson, 288 Conn. 236, 257, 951 A.2d 1257 (2008), citing Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986), and Estelle v. Williams, 425 U.S. 501, 505, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).

       Section 1-5 of the Connecticut Code of Evidence provides: “(a) Contemporaneous introduction by proponent. When a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered contemporaneously with it.
      “(b) Introduction by another party. When a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of 1 he first part of tlie statement, ought in fairness to be considered with i1.”

       “The general rule is that threats against witnesses are not relevant and are thus inadmissible as evidence unless the defendant is linked in some way to the making of the threats. . . . The reason for the rule is that evidence of threat against witnesses is generally admissible either on the theory that such conduct is inconsistent with the defendant’s claim of innocence or on the theory that the making of such threats evinces a consciousness of guilt. . . . Obviously, if the threats cannot be linked to the defendant, evidence of such threats, directed toward a witness would be of no probative value for those purposes. ... An exception to the general rule concerning the admissibility of evidence of threats exists, however, where the evidence of threats is offered not to prove the guilt of the accused but rather to explain a witness’ prior inconsistent statement.” (Citations omitted; internal quotation marks omitted.) State v. Walker, 214 Conn. 122, 129, 571 A.2d 686 (1990); see also State v. Alvarez, 216 Conn. 301, 318-19, 579 A.2d 515 (1990).

       See footnote 1.


author: GRUENDEL, J.

text:
    TUCCIO DEVELOPMENT, INC. v. HARRY NEUMANN, JR.
    (AC 29598)
    Graendel, Robinson and Lavery, Js.

      Argued February 19
    officially released April 28, 2009

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

      CharlesE. Vermette, Jr., with whom, on the brief, was Christopher J. Sochacki, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Tuccio Development, Inc., appeals from the summary judgment rendered by the trial court in favor of the defendant, Harry Neumann, Jr. The plaintiff claims that the court improperly concluded that there was no genuine issue of material fact, thus entitling the defendant to judgment as a matter of law. We affirm the judgment of the trial court.

This appeal concerns certain real estate records. The plaintiff, a residential real estate development corporation, contracted with the defendant, a licensed Realtor, to market and sell residential properties for the plaintiff from 2000 through 2002. In its complaint, the plaintiff alleged that the defendant created files and records concerning Lot 2, Teahouse Lane in Ridgefield, and Lot 5, North Street in Ridgefield, pursuant to that contract. Those records allegedly “were and remain the property of the plaintiff.” The complaint further alleged that, in 2005, the plaintiff requested that the defendant surrender those files and records to the plaintiff, but the defendant refused. The plaintiff thereafter commenced the present action in February, 2006. Its complaint consisted of two counts alleging statutory theft pursuant to General Statutes § 52-564 and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

On October 26, 2007, the defendant filed a motion for summary judgment, alleging that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Specifically, the defendant averred that there was no evidence before the court that he intended to deprive the plaintiff of its property, a necessary prerequisite to recovery. In support of the motion, the defendant submitted (1) his affidavit, (2) the affidavit of the attorney who represented him at the time the plaintiff requested the aforementioned records, (3) copies of correspondence submitted by the plaintiff and its counsel to the defendant and his attorney, and the responses thereto, and (4) a copy of the plaintiffs responses to interrogatories and requests for production. The plaintiff did not submit any documentation in support of its memorandum of law in opposition to the motion for summary judgment. In its January 18, 2008 memorandum of decision, the court found that “[t]he evidence submitted to the court on the summary judgment motion is devoid of any record or reference of the defendant’s having intended to take, obtain or withhold any property of the plaintiff.” As such, it concluded that no genuine issue of material fact existed as to the statutory theft count. Because the CUTPA count was predicated entirely on the alleged statutory theft, the court reached the same determination as to that count. Accordingly, the court concluded that the defendant was entitled to judgment as a matter of law. This appeal followed.

Summary judgment is appropriate where “the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49; Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). “A material fact is a fact that will make a difference in the result of the case. . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment. ... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute.” (Citation omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798, 803, 842 A.2d 1134 (2004).

Once met, the burden shifts to “the party opposing such a motion [to] provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008). When deciding a motion for summary judgment, “the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007). Finally, we note that because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Id., 199.

The plaintiff contends that the court improperly granted the defendant’s motion for summary judgment because there exist genuine issues of material fact regarding its allegation of statutory theft. We disagree.

“Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119.” (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). A person commits larceny pursuant to § 53a-119 “when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” General Statutes § 53a-119; Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 418 n.14, 934 A.2d 227 (2007).

In moving for summary judgment, the defendant alleged that no genuine issue of material fact existed as to whether he intended to deprive the plaintiff of its property. The defendant provided evidence outside the pleadings to substantiate that allegation. Appended to his motion for summary judgment was the defendant’s sworn affidavit, in which he stated, inter alia, that he “had no intent to deprive the [pjlaintiff of any materials . . . .” Also accompanying the motion was a series of correspondences between the parties, which the court aptly detailed in its memorandum of decision: “Although several of the letters [sent to the defendant] by the plaintiff in 2005 clearly constitute a request for the return of files and records, none of the responses from either the defendant or his attorney constitute a refusal of the request. The plaintiffs initial request of September 14, 2005, addressed to the defendant reads: This is a request for any and all documents related to the above captioned property to which you had listed between the years 2000 and 2001. We expect copies of everything, contemporaneous notes on conversations, offers, etc. Please send it to my attention at the address below in the next fifteen (15) days. . . . The defendant’s response of September 16, 2005, simply instructed the plaintiff to direct his request through the company’s attorney, Zeisler and Zeisler. . . . Thereafter, on September 20, 2005, counsel for the plaintiff wrote to the defendant’s counsel about Lot #2, Tea-house Lane, in accordance with the plaintiffs instructions. ... On September 22, 2005, the plaintiffs counsel wrote to the defendant’s counsel to request documents relative to Lot #5, North Street. ... As to the September 20, 2005 letter, the defendant’s counsel responded by letter of September 23, 2005, which said: Thank you for your letter of September 20, 2005. We will see if in fact there is any file from this transaction which apparently is four or five years old. Can you please advise as to the reason for your request at this late date. ... As to the September 22, 2005 letter, the defendant’s counsel responded by letter of September 27, 2005, which said: We are looking for the documents requested in your September 22nd letter, but can you please tell me why at this late date you are asking for same. . . . Following that letter, neither the defendant’s counsel nor the defendant ever received a response from the plaintiff to the inquiry made in either [the September 20 or 27, 2005] letters. The next act of the plaintiff was the filing of its complaint initiating this action.”

In addition, the defendant submitted the sworn affidavit of Richard D. Zeisler, counsel for the defendant. In that affidavit, Zeisler stated that “[o]n March 13, 2006, I wrote [to counsel for the plaintiff] regarding receiving no response to my September 27, 2005 letter asking what the basis for the claim to the documents was. In this March 13,2006 letter, I stated that if [the defendant] retained any records from the closed transactions, to please identify the documents and the basis for the claim to the documents. On behalf of [the defendant], I offered to have any documents that had been forwarded to [the defendant] by the [p]laintiff returned provided the requested documents were identified.” The affidavit further stated that “neither [the defendant] nor . . . Zeisler was ever advised by the plaintiff which specific documents were being sought.”

Despite its burden to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact; Bednarz v. Eye Physicians of Central Connecticut, P.C., supra, 287 Conn. 169; the plaintiff provided no evidence in support of its opposition to the motion for summary judgment. In its appellate brief, the plaintiff suggested that “[i]t is a reasonable inference from the fact that repeated demands for the surrender of one’s property have been unsuccessful that the defendant has the requisite intent to deprive the plaintiff of its property.” That assertion relies not on an evidentiary foundation but, rather, on conjecture. “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” (Internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn. App. 781, 792, 919 A.2d 525, cert. denied, 283 Conn. 904, 927 A.2d 917 (2007). The assertion also is undermined by the defendant’s apparent willingness to comply with the plaintiffs request pending further specificity, as indicated in the letters furnished to the court. Furthermore, although the plaintiff argues on appeal that “the complaint is adequate to state a claim for theft,” we note that “unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

The plaintiff also maintains that the trial court never may render summary judgment on an issue involving intent. That contention is neither novel nor an accurate statement of Connecticut law. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992); Chadha v. Charlotte Hungerford Hospital, 97 Conn. App. 527, 539, 906 A.2d 14 (2006); 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn. App. 140, 156-58, 888 A.2d 141 (2006). It is true that as a general matter, summary judgment is considered inappropriate when an individual’s intent and state of mind are implicated. See Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978). At the same time, “even with respect to questions of . . . intent . . . the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.” Wadia Enterprises, Inc. v. Hirschfeld, supra, 250. When a party opposing a motion for summary judgment has failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact concerning intent, summary judgment is appropriate. DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 690 n.14, 846 A.2d 849 (2004); Wadia Enterprises, Inc. v. Hirschfeld, supra, 250; Martinez v. Southington Metal Fabricating Co., 101 Conn. App. 796, 807, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007); Jaser v. Fischer, 65 Conn. App. 349, 356-57, 783 A.2d 28 (2001).

On the pleadings, affidavits and other proof submitted, the court determined that “[t]he evidence submitted to the court on the summary judgment motion is devoid of any record or reference of the defendant’s having intended to take, obtain or withhold any property of the plaintiff.” Considered in the light most favorable to the plaintiff, we agree. The plaintiff failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. We therefore conclude that summary judgment was appropriate in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s motion for summary judgment also alleged that the action was time barred under General Statutes § 52-577. The court did not reach that issue.


author: LAVINE, J.

text:
    DOUGLAS SNOWDON ET AL. v. VINCENT GRILLO
    (AC 29213)
    Lavine, Robinson and Lavery, Js.

      Argued January 22
    officially released May 5, 2009

      J. Xavier Pryor, for the appellant (defendant).

      Bruce D. Tyler, for the appellees (plaintiffs).
   Opinion

LAVINE, J.

The defendant, Vincent Grillo, appeals from the judgment of the trial court, Sferrazza, J., denying his motion to open the judgment rendered against him pursuant to a hearing in damages. On appeal, the defendant claims that the trial court, Hon. Lawrence C. Klaczak, judge trial referee, abused its discretion by failing to grant his motion to set aside the default entered for failure to plead. We affirm the judgment of the trial court.

Our review of the record discloses the following facts. The plaintiffs, Douglas Snowdon and Donna Snowdon, commenced a breach of contract action with a return date of June 13, 2006. The plaintiffs alleged that in June, 2005, they made a down payment of $11,600 to the defendant for the installation of a fence. The defendant allegedly failed to perform as agreed. On July 7, 2006, the plaintiffs filed a motion for default for failure to file a responsive pleading, which was denied by the court clerk. On July 13, 2006, the defendant filed a request to revise the complaint that Judge Klaczak denied on August 21, 2006. On October 18, 2006, the defendant filed a motion to strike the complaint, which Judge Sferrazza denied. On February 8, 2007, the plaintiffs filed a motion for default for failure to plead pursuant to Practice Book § 17-31, which was granted by the clerk on February 9, 2007. The plaintiffs claimed the case to the hearing in damages list on March 26, 2007, and the hearing in damages was scheduled for June 6, 2007. On the day of the hearing in damages, the defendant filed in court a motion to set aside the default along with a proposed answer, special defense and counterclaim. Judge Klaczak denied the motion to set aside, heard evidence and rendered judgment in favor of the plaintiffs in the amount of $11,600 plus costs.

On June 21,2007, the defendant filed a motion to open the judgment in which he claimed that Judge Klaczak improperly relied on Practice Book § 17-42 and found that the defendant had not shown good cause to open the default. The defendant claimed that Practice Book § 17-32 was the rule of practice that applied to his motion to set aside. Judge Sferrazza denied the motion to open the judgment, writing on the order page that “even if Practice Book § 17-32 (b) is applicable, Judge Klaczak had discretion not to set aside the default. See Tolland Bank v. Larson, 28 Conn. App. 332, 610 A.2d 720 (1992)." On August 30, 2007, the defendant filed a motion for reconsideration. In addressing the motion for reconsideration, Judge Sferrazza articulated his decision to deny the motion to open the judgment in a memorandum filed August 31, 2007.

In his articulation, Judge Sferrazza stated that in opposing the motion to open the judgment, the plaintiffs pointed out that “the defendant had failed to attach a copy of the transcript of the June 6, 2007 hearing before Judge Klaczak so that this court has no indication as to which Practice Book provision Judge Klaczak employed. Also, even under Practice Book § 17-32, the court had discretion to deny the motion to set aside the default.” Judge Sferrazza agreed with the plaintiffs that under Practice Book § 17-32 (b), Judge Klaczak had discretion to deny the motion to set aside the default. Judge Sferrazza reasoned, on the basis of the text of Practice Book § 17-32 (b), that if “a defaulted defendant files an answer before judgment has entered, ‘the clerk shall set aside the default. . . .’ However, that subsection also indicates that ‘[i]f a claim for a hearing in damages’ is filed before the answer, as in the present case, only the court may set aside the default. This proviso implies that the setting aside of the default is more than perfunctory and requires the exercise of judicial discretion. Under Practice Book § 17-32 (b), the court has discretion to deny a motion to set aside a default and proceed to judgment.”

Judge Sferrazza continued, stating that “the defendant moved to set aside the default nearly four months after the default entered and on the day the hearing in damages was to begin. The plaintiffs were prepared to present their evidence. The defendant’s motion to set aside explained that the failure to plead in a more timely fashion was the result of the defendant counsel’s busy schedule. This court does not find that Judge Klaczak acted outside his authority in denying the motion to set aside the default and regards his decision as the law of the case as to this issue.” The defendant appealed.

On appeal, the defendant claims that Judge Klaczak improperly denied his motion to set aside the default by applying the good cause standard of Practice Book § 17-42, denying him due process of law, and by relying on Tolland Bank v. Larson, supra, 28 Conn. App. 332. He also claims that the court abused its discretion in denying his motion to set aside the default because it reasonably could not have concluded that he was required to show good cause or that the facts of this case fell within the standard articulated in Tolland Bank. We reject each of the defendant’s claims and arguments.

To determine whether the court abused its discretion by denying the defendant’s motion to set aside the default, we must identify the applicable rule of practice and determine whether the court properly applied the appropriate standard. We conclude, given the procedural history of this case, about which there is no dispute, that both Practice Book §§ 17-32 and 17-42 are relevant but that Practice Book § 17-42 controls the motion to set aside the default because the clerk had entered a default for failure to plead and the case had been claimed for a hearing in damages prior to the defendant’s filing a motion to set aside the default.

The construction of our rules of practice is a question of law to which the plenary standard of review applies. Dartmoor Condominium Assn., Inc. v. Guarco, 111 Conn. App. 566, 569, 960 A.2d 1076 (2008). “In interpreting our rules of practice, we axe guided by the principles governing statutory interpretation. . . . Our fundamental objective in interpreting a rule of practice is to ascertain and give effect to the intent of the drafters. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes." (Citations omitted; emphasis added; internal quotation marks omitted.) Dartmoor Condominium Assn., Inc. v. Guarco, supra, 569-70. “[Statutes should be construed, where possible, so as to create a rational, coherent and consistent body of law. See, e.g., Doe v. Doe, 244 Conn. 403, 428, 710 A.2d 1297 (1998) (we read related statutes to form a consistent, rational whole, rather than to create irrational distinctions); In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992) ([statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law).” (Internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 557, 800 A.2d 1102 (2002).

Although the title of a statute provides some evidence of its meaning, the title is not determinative of its meaning. Burke v. Fleet National Bank, 252 Conn. 1, 13, 742 A.2d 293 (1999); Connecticut Light & Power Co. v. Overlook Park Health Care, Inc., 25 Conn. App. 177, 179, 593 A.2d 505 (1991). Our Supreme Court has stated that boldface catchlines in the titles of statutes, “are intended to be informal brief descriptions of the contents of the [statutory] sections. . . . These boldface descriptions should not be read or considered as statements of legislative intent since their sole purpose is to provide users with a brief description of the contents of the sections.” Clark v. Commissioner of Correction, 281 Conn. 380, 389 n.14, 917 A.2d 1 (2007), quoting Preface to the General Statutes, p. vii.

Moreover, “[t]he design of the rules of practice is both to facilitate business and to advance justice; they will be inteipreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . . Rules of practice must be construed reasonably and with consideration of this purpose. . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding.” (Citations omitted; internal quotation marks omitted.) Tolland Bank v. Larson, supra, 28 Conn. App. 334-35. We now turn to the rules of practice in question.

Practice Book § 17-32, entitled “Where Defendant is in Default for Failure to Plead,” provides, in relevant part: “(b) If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the judicial authority. A claim for a hearing in damages or motion for judgment shall not be filed before the expiration of fifteen days from the date of notice of issuance of the default under this subsection.” (Emphasis added.) Practice Book § 17-42, entitled “Opening Defaults where Judgment Has Not Been Rendered,” provides: “A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown upon such terms as it may impose. As part of its order the judicial authority may extend the time for filing pleadings or disclosure in favor of a party who has not been negligent. Certain defaults may be set aside by the clerk pursuant to Sections 17-20 and 17-32.”

The language of these two rules of practice is clear and interrelated. They provide different remedies to a defaulting defendant. When a default for failure to plead has been entered, there are two paths. Under Practice Book § 17-32, a defaulting party may file a motion to set aside the default within fifteen days, or anytime prior to the filing of a claim for a hearing in damages, and the clerk may set aside the default. If the defaulting party fails to file a motion to set aside before a claim to a hearing in damages is filed and thereafter files a motion to set aside, only the judicial authority may set aside the default. The opening of a default when a claim for a hearing in damages has been filed is controlled by Practice Book § 17-42 because that is the rule of practice that addresses the setting aside of a default by the judicial authority. Significantly, Practice Book § 17-42 refers to Practice Book § 17-32, noting that certain defaults may be set aside by the clerk. The distinction between whether Practice Book § 17-32 applies or Practice Book § 17-42 applies is whether a claim for a hearing in damages is filed before, or after, a motion to set aside the default is filed. Here, the defendant waited more than four months after the default had been entered and appeared in court on the morning of the hearing in damages, when witnesses were present to testify, to seek to have the default set aside. Clearly, only the judicial authority could have set aside the default as provided by Practice Book § 17-42.

The defendant also argues that the court abused its discretion in denying his motion to set aside the default and should not have required him to satisfy a good cause standard or the standard articulated in Tolland Bank v. Larson, supra, 28 Conn. App. 332. The following facts are relevant to this aspect of the defendant’s claim. On the morning of the hearing in damages, counsel for the defendant argued as follows in support of the motion to set aside the default: “Pursuant to Practice Book § 17-42, the court may set aside a default at any time for good cause. In this matter, default was entered for failure to file an answer. The answer has been filed, now, which I think provides good cause for this to proceed in its normal course.” Judge Klaczak responded, “[n]o, it’s more than that. You can’t just . . . after a default has been entered, you can’t simply file a responsive pleading and then say, oh, it’s filed now .... But what I haven’t heard is why the default was entered in the first place. What happened? . . . Why weren’t the pleadings filed that were necessary after the motion to strike, or whatever motions were filed were denied? . . . Simple negligence is not going to be sufficient.”

This court routinely has held that it will not afford review of claims of error when they have been induced. “[T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. ... It is well established that a party who induces an error cannot be heard to later complain about that error. . . . This principle bars appellate review of induced nonconstitutional and induced constitutional error. . . . The invited error doctrine rests on the principles of fairness, both to the trial court and to the opposing party.” (Citation omitted; internal quotation marks omitted.) State v. Rios, 110 Conn. App. 442, 448 n.6, 954 A.2d 901 (2008). Because the defendant argued to the court that Practice Book § 17-42 and the good cause standard applied to his motion to set aside the default, we decline to review his claim that the court improperly used the good cause standard to rule on the motion to set aside. We, however, will address the defendant’s claim that the court misapplied the good cause standard to the facts of this case.

At the time the defendant’s counsel argued in support of the motion to set aside, he represented that the defendant diligently had been defending the action by filing a request to revise and a motion to strike. He claimed that there was a bona fide defense to the plaintiffs’ claims and that the case should revert to the pleading stage so that discovery could be conducted. On the day prior to the hearing in damages, defense counsel informed counsel for the plaintiffs that a motion to set aside and a responsive pleading would be filed. Counsel for the plaintiffs argued that the defendant had failed to show good cause for the failure to file an answer. The plaintiffs’ counsel also argued that the plaintiffs had been prejudiced because they had been without their money for a couple of years and made arrangements to appear in court for the hearing in damages. The plaintiffs’ counsel contended that the delay occasioned by the defendant was a dilatory tactic and strenuously objected to the setting aside of the default and returning the proceedings to the pleading stage.

In response to Judge KLaczak’s noting that negligence is not a ground for opening a default, the defendant’s counsel stated that the attorney in his law firm responsible for the case had had a “rather substantial trial schedule since the beginning of this year. And I believe there are cases which excuse a party from performing in one case when it has a trial scheduled in another matter in another Superior Court.” The court found that this was not a case in which trial counsel had conflicting trial schedules. The defendant’s counsel pressed that the default should be set aside because no judgment had been entered. The court denied the motion to set aside the default, stating: “I understand there’s no judgment. We’re here on a hearing in damages because there was no judgment entered. . . . [Y]ou simply don’t open it because no judgment has been entered. There’s got to be some sufficient reason, some reason for opening it. And mere negligence is not a sufficient reason. The fact that you have a busy office is not sufficient reason.”

“[T]he determination of whether to set aside [a] default is within the discretion of the trial court . . . and will not be disturbed unless that discretion has been abused or where injustice will result. In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause . . . factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved . . . but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party.” (Citations omitted; internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998). “[F]ederal courts have established criteria to assess whether a party should be relieved from a default. A widely accepted factor in this determination is whether setting aside the default would prejudice the adversary.” (Citations omitted; internal quotation marks omitted.) Id., 509; see also Fed. R. Civ. P. 55 (c).

On the basis of our review of the record, we conclude that the court did not abuse its discretion by denying the defendant’s motion to set aside the default. The hearing in damages was held almost one year after the return date and four months after the motion for default for failure to plead was granted by the clerk. The only reason for failing to plead offered by the defendant’s counsel was that the press of other clients’ business took precedence over the defendant’s case due to a heavy trial schedule. We agree with the court that the defendant’s explanation for failing to plead did not rise to the level of good cause. See Rowe v. Goulet, 89 Conn. App. 836, 844, 875 A.2d 564 (2005).

We also conclude that setting aside the default would have disadvantaged the plaintiffs, who had made time to appear in court for the hearing in damages for which their counsel had prepared. In reaching this conclusion, we do not hold that a motion to set aside a default should never be granted when counsel has failed timely to file a pleading. The defendant’s problem in this case, however, is that by failing to file the motion to set aside as soon after he received notice of the default, the problem was compounded. This court and the trial courts are sympathetic to the demands a heavy trial schedule places on counsel and are aware that conflicts are common, and certainly, the trial court must be reasonably flexible in responding to arguments put forth by counsel in cases such as this. Our rules of practice provide relatively quick and unburdensome means to deal with such schedule conflicts, most notably motions for extension of time or a continuance. Those motions, however, must be filed timely so that nondefaulting parties are not inconvenienced needlessly or exposed to the unnecessary expenses occasioned by appearing in court only to have a proceeding continued. In this case, the defendant failed to inform the plaintiffs or the court of his desire to have the default set aside until the time of the hearing in damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 17-32 was previously codified as section 363A of the rules of practice. Since the mid-1980s, that section has been revised anumber of times. At the time Tolland Bank v. Larson, supra, 28 Conn. App. 332, was decided, Practice Book § 363A provided: “Where a defendant is in default for failure to plead pursuant to Sec. 114, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar.
      “If a party who has been defaulted under this section files an answer before judgment after default has been rendered by the court, the clerk shall set aside the default.” (Internal quotation marks omitted.) Tolland Bank v. Larson, supra, 28 Conn. App. 334 n.2.
      At the time, this court noted in Tolland Bank that “the proposed amendment to Practice Book § 363A provides: ‘If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the court.’ ” Tolland Bank v. Larson, supra, 28 Conn. App. 334 n.3; compare Practice Book § 17-32.

       The transcript of the argument on the defendant’s motion to set aside the default malees no mention of Tolland Bank v. Larson, supra, 28 Conn. App. 332. Judge Sferrazza referred to that case in denying the defendant’s motion to open the judgment.

       As previously noted, the language of the relevant sections of the rules of practice at issue in Tolland Bank v. Larson, supra, 28 Conn. App. 332, has changed, and we conclude that the analysis contained therein is inapplicable to this appeal. See footnote 1.

       In response to the defendant’s argument, counsel for the plaintiffs also made reference to Practice Book § 17-42, stating, “[i]n that section, it mentions that it’s for good cause.”

       The defendant does not claim that he failed to receive notice of the default.