author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. BENTON O’NEIL DAWES
    (AC 30292)
    Bishop, Gruendel and Pellegrino, Js.

      Argued March 17
    officially released July 6, 2010

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James M. Bemardi, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Benton O’Neil Dawes, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a. He claims that (1) prosecutorial impropriety deprived him of a fair trial, (2) this court should exercise its supervisory powers and set aside his conviction because the prosecutor engaged in deliberate pros-ecutorial impropriety and (3) the trial court improperly failed sua sponte to instruct the jury on a statutory exception to self-defense. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. At all relevant times, the defendant owned the Cool Runnings bar on Stillwater Avenue in Stamford. On June 16, 2006, the defendant was involved in an altercation with Vaness Ford, a bar patron, regarding the use of a billiard table. The defendant exited the bar and reported the altercation to a nearby police officer. In response, the officer entered the bar, approached Ford and requested that he vacate the premises. Ford complied. Once outside, Ford informed the officer that the defendant was carrying a handgun. When the officer later asked the defendant about that allegation, he responded that “everybody knows I have a gun.”

Twelve days later, another altercation between the defendant and Ford transpired. On the evening of June 28, 2006, the defendant walked from his bar to the nearby Two Brothers grocery store to purchase lottery tickets. Upon entering, he encountered Ford, and an argument ensued concerning the events of June 16, 2006. As the argument escalated, Ford jabbed his finger into the defendant’s forehead, and the defendant responded by throwing a bottle of juice his way. When the defendant charged Ford, Ford tackled him to the ground, repeatedly punching the defendant and striking him with a can that had fallen from a shelf. The defendant eventually asked Ford to get off of him, and Ford complied. Backing away from the defendant, Ford took off his shirt and proclaimed that “I am stronger than you are, and I can do whatever I want to you.” The defendant replied, “Okay, you beat me, but this doesn’t finish here. You are going to see who I am.” At that moment, the defendant took out his handgun and fired a gunshot at Ford, causing him to collapse to the ground.

When Officer Jerry Junes arrived at the scene, he found Ford lying on the floor with a gunshot wound to his throat. Ford died a short time later. While at the scene, the defendant stated to Junes, “Officer, I did it.” Junes and other officers of the Stamford police department collected evidence, including the weapon used in the shooting, a shell casing found on the floor, blood samples and a surveillance tape that captured the encounter, and interviewed witnesses, including Yamil Taveras, owner of the grocery store, Jose Gilberto Leonardo, a store employee, and Andre DeJesus, a patron present during the encounter.

The defendant thereafter was arrested and charged, by long form information dated July 12, 2006, with manslaughter in the first degree with a firearm in violation of §§ 53a-55 (a) (1) and 53a-55a. A trial followed, at which the defendant presented a theory of self-defense and testified. At the conclusion thereof, the jury found the defendant guilty. The court rendered judgment accordingly and sentenced the defendant to twenty-five years incarceration, execution suspended after fourteen years, with five years of probation. From that judgment, the defendant appeals.

I

The defendant first claims that prosecutorial impropriety during closing argument deprived him of a fair trial. We disagree.

It is well established that “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). ... 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. ... To determine whether the defendant was deprived of his due process right to a fair trial, we must determine whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . 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. . . .

“The . . . determination of whether the defendant was deprived of his right to a fair trial . . . involve [s] the application of the factors set out by this court in State v. Williams, [supra, 204 Conn. 540], ... In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, [this] court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Gould, 290 Conn. 70, 77-78, 961 A.2d 975 (2009).

“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . When making closing arguments to the jury, [however] [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 upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . 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. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.” (Internal quotation marks omitted.) State v. Rowe, 279 Conn. 139, 158-59, 900 A.2d 1276 (2006).

The defendant identifies nineteen statements from the prosecutor’s closing argument that allegedly constitute impropriety. The defendant sorts the statements into three categories—comments on the credibility of witnesses, references to facts that were not in evidence and comments on extraneous matters. We address each in turn.

A

Comments on Credibility

The defendant contends that the prosecutor improperly expressed his opinion on the credibility of the defendant and DeJesus during closing argument. We begin by detailing the challenged statements and the context in which they arose.

The first four challenged statements concern the defendant. The prosecutor first stated: “What we see next on the [grocery store surveillance] tape ... is the defendant getting pushed back across the front of the counter in the bodega to where he came from. They go onto the floor and they go off camera. Now, while the event is going on on the floor, you have the testimony of some of the witnesses with regard to what it is that they saw. Now, the defendant, who was there himself as a witness, says he was beaten with the can into a blind senselessness. That is nonsense and you know it. [Grocery store owner] Taveras saw the whole thing and said he got hit with the can once. And then the victim hit the defendant with his fists.” The second challenged statement was as follows: “Let’s talk about the first element, that the defendant honestly believed, when he pulled the trigger, that he had to do so, to repel an attack, an imminent attack that would inflict great bodily harm upon him. The best answer to that question, did he hold that honest belief, would have been some honest testimony from the defendant. That is the one thing that is wholly and totally lacking in this case.”

In the third challenged statement, the prosecutor noted that “[i]n his direct testimony, as I just indicated, [the defendant] gave that tearful rendition and talked about shooting at a disembodied approaching voice. He insisted that that is what he saw, a voice. On cross-examination he avoided every question that I asked him, turning what should have been twenty minutes of questions into a three hour ordeal. Common sense suggests that you have something to hide when you avoid every question and even refuse to look at the [surveillance tape], apparently both before the trial and during the trial. That is not honest testimony. And it is not honest testimony because honest testimony would have betrayed, beyond a reasonable doubt, that he knew he did not face the threat of imminent, great bodily harm. With regard to that tape, he has even stated on direct that he has avoided looking at that tape for two years. Common sense and logic suggest that his avoiding the tape and the questions of the prosecutor betrays a man who is not going to let the truth and the facts and the questions stand in the way of his story. He has got his story and he has had it basically from day one, which is, he doesn’t remember, which is the same thing as saying I am not going to talk about it. He has got that story and he is sticking with it, just like that expression, that is my story and I am sticking with it. And nothing is going to move him from that story, not the [surveillance tape], not the questions, not the truth, nothing is going to make him move from that story. If you find a faint ring of truth to his story, if some of you may have thought you heard that, common sense suggests that that is a false ring, a faint and false ring. Common sense suggests that he has lived that lie for the last two years and practiced that he. Whether he was talking to people at work or whomever, that he has been hved and practiced for so long that it sounds like he is beginning to beheve it and cry about it himself. It is not honest testimony.” In the fourth challenged statement, the prosecutor indicated that, “[a]nd finally, even if [the defendant] had that honest behef, which I submit to you, beyond a reasonable doubt the evidence clearly shows here he did not have that reasonable belief, as a matter of fact we haven’t heard anything honest from him, it was unreasonable for him to have that belief.”

In the fifth challenged statement, the prosecutor addressed the testimony of DeJesus: “A word about the credibility of that young man who sat there [at the grocery store on the evening of June 28, 2006] callously watching this thing, eating an apple, never pulling out his cell phone and making a call or trying to get assistance or trying to break it up, he said he wasn’t biased toward the defendant. Yet, he testified that he was sure that that can, that Hawaiian Punch can, was the exact can that Ford hit the defendant with. Now, how could you possibly know that? One Hawaiian Punch can looks just like any other. And then when I said, weren’t there other Hawaiian Punch cans in there, he says he remembers there were six or seven on the shelf that night. Now, was he taking inventory that night? Nobody would remember a fact like that. I could have sat here, I could have asked him, how many Pringles cans were there, but what is the point? The point is that in his bias, he was just saying what he had to say to make his point. That is not credible testimony. That type of testimony is the telltale sign of a witness who is not being truthful with you. He had to be shown the [surveillance tape] to refresh his recollection that the victim was backing up when he was shot. That is clear as a bell on the film. He didn’t even want to give that fact up. For whatever reason, he was biased.”

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

We conclude that the prosecutor’s comments were not improper. The comments were based on the evidence adduced at trial and reflect an effort on the part of the prosecutor to invite the jury to draw the reasonable inference that the testimony lacked credibility. See, e.g., State v. Luster, 279 Conn. 414, 438, 902 A.2d 636 (2006) (prosecutor may properly comment on credibility of witness where comment reflects reasonable inferences from evidence adduced at trial); State v. Richard W., 115 Conn. App. 124, 135-36, 971 A.2d 810 (“[i]t is without question” that prosecutor may fairly comment on evidence and reasonable inferences to be drawn that lead jury to conclusion as to credibility of witnesses), cert. denied, 293 Conn. 917, 979 A.2d 493 (2009). As in State v. Stevenson, 269 Conn. 563, 849 A.2d 626 (2004), the prosecutor’s remarks underscored inferences “that the jury could have drawn entirely on its own, based on the evidence presented.” Id., 585. In addition, the prosecutor’s repeated calls to the jury’s common sense undermine the defendant’s contention that he expressed a personal opinion. State v. Luster, supra, 437; see also State v. Cromety, 102 Conn. App. 425, 440, 925 A.2d 1133 (“prosecutor may ask the jury to apply common sense and experience to determine credibility”), cert. denied, 284 Conn. 912, 931 A.2d 932 (2007); State v. Lindo, 75 Conn. App. 408, 416, 816 A.2d 641 (“[r]emarks that are nothing more than a permissible appeal to the jurors’ common sense do not constitute prosecutorial [impropriety]”), cert. denied, 263 Conn. 917, 821 A.2d 771 (2003). Tellingly, the prosecutor never used the word “I” or stated that he based his argument on his personal beliefs. See State v. Moody, 77 Conn. App. 197, 217, 822 A.2d 990 (use of pronoun “I” in argument increases chances that appropriately structured arguments will deteriorate into expressions of personal opinion), cert. denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct. 831, 157 L. Ed. 2d 714 (2003). The prosecutor did not improperly express his opinion on the credibility of witnesses.

B

Facts That Were Not in Evidence

The defendant next claims that the prosecutor improperly argued facts that were not in evidence. “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury [has] no right to consider.” (Internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 811, 699 A.2d 901 (1997); see also State v. Fauci, 282 Conn. 23, 49, 917 A.2d 978 (2007) (“prosecutor may not comment on evidence that is not a part of the record”).

The defendant identifies seven comments made by the prosecutor during closing argument that he claims amount to improper commentary on facts that were not in evidence. On our review, we conclude that all but one constitute arguments inviting the jury to draw reasonable inferences from the evidence adduced at trial. Such statements patently are proper. See State v. Swain, 101 Conn. App. 253, 272, 921 A.2d 712 (“the prosecutor had the prerogative to invite the jury to draw reasonable inferences from the facts in evidence and could argue on the basis of such inferences”), cert. denied, 283 Conn. 909, 928 A.2d 539 (2007).

The one questionable comment by the prosecutor is his statement that Ford “did not inflict any bodily harm upon the defendant.” That statement confounds the trial testimony of Waiho Lum, an emergency room physician, who opined that the defendant suffered “a mild facial contusion and mild contusion to the elbow and also a scrape, an abrasion on his upper back [on which Lum] provided wound care . . . .” Lum also testified that he observed mild swelling under the defendant’s left eyelid. The prosecutor’s comment nevertheless highlights the distinction between misstatement and misconduct. Cf. State v. Orellana, 89 Conn. App. 71, 105, 872 A.2d 506 (2005) (isolated misstatement not prosecutorial impropriety), cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). The prosecutor’s comment appears to be mere hyperbole, as Lum testified at trial that the defendant had not suffered any substantial injury. In addition, the challenged comment was preceded by the prosecutor’s acknowledgement that the defendant suffered a “cut on his head,” as well as “some back bruising and the makings of a shiner under his left eye.” In light of the foregoing, we conclude that the challenged statement, considered within the context in which it was made, was not improper.

C

Extraneous Matters

The defendant also argues that the prosecutor improperly referenced extraneous matters during closing argument. “A prosecutor . . . may not . . . inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence. ... A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. ... [A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Citation omitted; internal quotation marks omitted.) State v. Moore, supra, 293 Conn. 809.

The defendant takes issue with seven comments made by the prosecutor, five of which pertain to the defendant’s alleged provocation of the grocery store confrontation and two of which pertain to the defendant’s alleged failure to take reasonable measures other than shooting Ford. His claim is premised on the fact that “[t]he prosecutor made these comments with full knowledge that the trial court judge would not give an instruction on any of the statutory disqualifications to the right of self-defense.” At the same time, it is undisputed that the court, in summarizing two earlier charging conferences, stated: “I will not give an instruction [to the jury] on any of the so-called statutory disqualifications to the right of self-defense, including provocation. Counsel can argue whatever the evidence is. I will just simply not instruct on that.” The prosecutor, thus, was free to so argue during closing argument. That the defendant provoked Ford at the grocery store and declined to take steps other than shooting Ford are inferences the jury reasonably could draw from the evidence presented. On our review of the challenged comments, we agree with the state’s contention that “the prosecutor’s comments simply asked the jury to consider the entirety of the defendant’s actions, and the fact that other alternatives existed to shooting [Ford], during [its] determination as to whether the defendant’s actions were reasonable.” The comments do not amount to prosecutorial impropriety.

II

The defendant also claims this court should exercise its supervisory powers and set aside his conviction due to deliberate prosecutorial impropriety. We decline that request.

“[I]n considering claims of prosecutorial misconduct, we apply a due process analysis and consider whether the defendant was deprived of a fair trial. ... A different standard is applied, however, when the claim involves deliberate prosecutorial misconduct during trial which violates express court rulings .... When such an allegation has been made, we must determine whether the challenged argument was unduly offensive to the maintenance of a sound judicial process. ... If we answer that question in the affirmative, we may invoke our supervisory powers to reverse the defendant’s conviction. ... In determining whether the use of our supervisory powers to reverse a conviction is appropriate, we consider whether the effect of the challenged remark was to undermine the authority of the trial court’s ruling .... We also consider the degree of prejudice suffered by the defendant as a result of the remark. . . .

“Our Supreme Court . . . has urged a cautionary approach in this regard, noting that [r]eversal of a conviction under our supervisory powers . . . should not be undertaken without balancing all of the interests involved: the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct. . . .

“In State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983), our Supreme Court first enunciated the principles relevant to claims of deliberate prosecutorial impropriety in violation of a trial court’s ruling. Our Supreme Court held that, where such impropriety has occurred, an appellate court may exercise its inherent supervisory authority over the administration of justice to defend the integrity of the judicial system. . . . The court blatantly rejected the argument that it could upset a criminal conviction on account of prosecutorial impropriety only where such conduct had deprived the defendant of his constitutional right to a fair trial. . . . Instead, the court recognized that, given the proper circumstances and regardless of whether deliberate impropriety deprived a defendant of a fair trial, the drastic step of upsetting a criminal conviction might be necessary to deter conduct undermining the integrity of the judicial system. . . . Thus, after weighing relevant considerations, the court placed a primacy upon its responsibility for the enforcement of court rules in prosecutorial [impropriety] cases and for preventing assaults on the integrity of the tribunal. . . . The court reasoned that it had an obligation to deter purposeful impropriety and concluded that reversal in cases involving such deliberate conduct may be warranted even where a new trial is not constitutionally mandated. . . . Hence, the touchstone of our analysis in a claim of this nature is not the fairness of the trial but the existence of misconduct that deliberately circumvents trial court rulings.” (Internal quotation marks omitted.) State v. Reynolds, 118 Conn. App. 278, 296-98, 983 A.2d 874 (2009) , cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010) .

The defendant maintains that the prosecutor engaged in impropriety by deliberately circumventing the court’s ruling that it would not instruct the jury on the statutory disqualifications to self-defense. We disagree. As earlier noted, the court did not forbid counsel from arguing such points; it simply indicated that it would not be so instructing the jury. The court stated: “I will not give an instruction [to the jury] on any of the so-called statutory disqualifications to the right of self-defense, including provocation. Counsel can argue whatever the evidence is. I will just simply not instruct on that.” Accordingly, it cannot be said that the prosecutor defied an order of the court. To the contrary, the prosecutor argued in accordance with the declaration of the court. We thus decline to exercise our supervisory powers in this instance.

m

The defendant’s final claim alleges instructional error. He maintains that the court’s failure sua sponte to provide an instruction on the duty to retreat was improper. The defendant failed to preserve this claim at trial and seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “[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.” (Emphasis in original.) Id., 239-40. Golding's first two prongs relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jarrett, 82 Conn. App. 489, 492 n.1, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004). We afford review because the record is adequate for review and the claim is of constitutional dimension. See State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994) (improper instruction on defense, like improper instruction on element of offense, is of constitutional dimension). We nevertheless conclude that the claim fails to satisfy Golding's third prong.

We begin our analysis by observing that “the [d]ue [p]rocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). “[A] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. . . . This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. ... A defendant who asserts a recognized legal defense, the availability of which is supported by the evidence, is entitled as a matter of law to a theory of defense instruction.” (Citations omitted; internal quotation marks omitted.) State v. Bryant, 233 Conn. 1, 8-9, 658 A.2d 89 (1995). It is undisputed that the court in the present case provided a detailed instruction on self-defense, the substance of which the defendant does not challenge in this appeal.

Rather, the defendant claims that the court improperly failed sua sponte to instruct the jury on the duty to retreat exception to that defense. See General Statutes § 53a-19 (b); see also State v. Diggs, 219 Conn. 295, 301, 592 A.2d 949 (1991) (referring to duty to retreat as one of “statutory exceptions” to defense of self-defense). Following the close of evidence, the court held two charging conferences with the parties. In summarizing those conferences on the record, the court stated: “I will not give an instruction [to the jury] on any of the so-called statutory disqualifications to the right of self-defense, including provocation. Counsel can argue whatever the evidence is. I will just simply not instruct on that.” The defendant voiced no objection to the propriety of that initial ruling at trial or on appeal. Instead, he contends that because the prosecutor during closing argument argued to the jury that “the defendant ignored a duty to retreat,” an instruction on that exception was necessary. Had the prosecutor advanced that theory, the defendant would be correct. As our Supreme Court stated in State v. Lemoine, 256 Conn. 193, 770 A.2d 491 (2001), “had the state’s attack on the defendant’s self-defense claim been based on the defendant’s failure to retreat, a complete jury instruction on the duty to retreat would have been necessary.” Id., 200. Because the state in that case “made no claim that the defendant should have retreated,” the court concluded that “the defendant did not suffer constitutional harm by the trial court’s omission of an unnecessary and potentially confusing instruction on the duty to retreat.” Id.

Similarly, the prosecutor in the present case never referenced the defendant’s duty to retreat or § 53a-19 (b) during closing argument. To be sure, the prosecutor argued that the defendant failed to take other reasonable measures short of shooting Ford, stating that the defendant could have asked the grocery store owner to “call the cops,” could have attempted to “back [Ford] off and slip out the door” or simply could have “back[ed] him off with the gun and wait for the police to arrive. ... All he had to do was back him off.” Those comments advanced the state’s central theory that the defendant’s action in shooting Ford was unreasonable. At the same time, the prosecutor never argued to the jury that the defendant had an obligation to retreat under Connecticut law, nor did he once use the term “retreat” during closing argument. On our review of the record, we cannot agree with the defendant’s contention that the prosecutor advanced such a theory during closing argument. As such, his claim is controlled by State v. Lemoine, supra, 256 Conn. 200. Having failed to establish that the alleged constitutional violation clearly exists, it fails to satisfy Golding’s third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       The five comments regarding the defendant’s alleged provocation of the confrontation are as follows. The prosecutor first stated: “Now, let’s talk about the defendant. He is the self-described proud owner of the barroom from which [Ford] was bounced, a man who left his glass of wine on the bar and his girlfriend behind in the bar to play his numbers at the local bodega, the local grocery store. And common sense tells us that, as he walked down the block, maybe there was just a little added strut to his step because he left the saloon knowingly and foolishly carrying a concealed .40 caliber Glock handgun under his waistband, pressed against his hip, a legal, but not under any circumstances, a wise decision.”
      The prosecutor next stated: “And we see on that [surveillance] tape that [Ford], the victim, starts in arguing about the defendant, call[ing] the police on him a week and a half before and how he got escorted from that bar. And as Yamil Taveras, and through the interpreter, I believe, Jose Leonardo testified, in the first few minutes there, both men foolishly and recklessly trade insults and curses. Foolish for [Ford] because he does not realize the concealed source of the smaller defendant’s courage; reckless for the defendant because he knows he has a .40 caliber handgun on his hip.”
      In the third challenged comment, the prosecutor stated: “But the defendant does not have the owner make that call. And as the rest of the facts show, his own sense of vanity and his own sense of machismo forbid it. When the victim returns, among other things, the defendant tells him to kiss his behind. You heard what the testimony was. He freely admitted that during his testimony with defense counsel. Curiously, those are not the words of a fearful man. And when the argument continues, he recklessly provokes the defendant by bringing his momma into the argument and making a comment about how he lives at home. How did he know that? A double-barreled insult to [Ford’s] manhood and an insult to his mother.”

        In the fourth challenged comment, the prosecutor stated: “You can take a survey of the whole state of Connecticut and not find many people who would have recklessly said something like that in that situation. That goes beyond standing up to intimidation or bullying. That is asking for a fight. And if anyone is sure to know that those are fighting words, it is the defendant. He has been running a bar for the last four years before this happened. You say something like that in a bar or saloon, or even at a wedding at a country club, and a fight is sure to break out. He knew that. He knew that then, when he said it. What he has forgotten when he says that is, he is not standing in his own bar where everyone knows he carries a gun, where he gets to tell people what he expects of them, like he wrote down in his statement in his own hand, where they must listen or they must get out, where if you make a complaint to the police, the ruling is he is the owner, he is right, you get out. He is confronting here, where he is confronting an angry man in a grocery store, that kind of arrogance is misplaced. That permit to cany did not put a star on his vest that made him the sheriff of Stillwater Avenue. And since he is sure to lose a fair fight with hands, with your fists, with [Ford], one wonders just what is the hidden secret of the defendant’s bravado. What gives a man that kind of hidden courage? Just what is pressing up against his back and putting that kind of steel in his spine? Within minutes [Ford] will find out that putting the steel in the defendant’s spine is the gun metal of a .40 caliber Glock pressing against the defendant’s hip. That hidden source of his false coinage and bravado is there, right there in his waistband. Now, one is always right to stand up to intimidation, whether in a bar, on a street, in a parking lot, in your own home, but not with reckless arrogance, not with false bravado, not with hollow courage bom of the knowledge that there is a secret lethal weapon concealed on your hip.”
      In the fifth challenged comment, the prosecutor stated: “Then, he kind of moves back and back and forth; at that point, the defendant recklessly grabs a bottle, hurls it at [Ford] and charges across that front counter into that far comer of the bodega, and the fight starts. Starting a fight that he can’t win, that he knew he couldn’t win from the beginning, with a gun on his hip. That is a reckless loss of temper by an armed man.”
      The two comments regarding the defendant’s alleged failure to take other reasonable measures are as follows. The prosecutor first stated: “As this event progresses, foolishly [Ford] invites the defendant outside to fight. And, I think, as you watch that [surveillance] tape, you can see [Ford] walk out and then stay out and then walk back in. Why is it that the defendant does not take up that invitation? Now, that is not out of an excess of peaceableness. Common sense should suggest that he knows it is a fight he cannot win. Foolishly, he does not do at that point what any one of us would have reasonably done, what any person would have reasonably done, which is when [Ford] was outside, when he walked out that door, he would have turned to the owner and [said], call the cops.”

        The prosecutor next stated: “The next test, the third one, was that he honestly had to believe that taking the shot was the only way to repel the attack, which threatened great bodily harm. Obviously, if you don’t believe the first two, you don’t believe that the response is credible, believable. But even if you had an honest belief that pulling that gun was necessary, he didn’t have to shoot; he didn’t have to pull the trigger. All he had to do was back him off and slip out the door. Or if he didn’t feel safe about slipping out the door, all he had to do was back him off with the gun and wait for the police to arrive. If this case shows anything, the police are all over Stillwater Avenue. There is that expression: there is never a cop around when you need one. I think that this case has answered any question, that is answerable, that is because they are all over on Stillwater Avenue. I mean, there was a policeman across the street when he went to go get him over the pool table dispute. And the police officers are in that bodega within minutes. All he had to do was back him off. The man is backing off, anyway. Remember, the critical moment is when he pulls the trigger.”

       The state has suggested that the defendant, by virtue of his failure to object in any manner to the court’s instructions, waived this claim. It is true that the defendant acquiesced to the charge as given at trial. At the same time, our Supreme Court has held that a defendant waives an unpreserved challenge to a jury instruction only when the record indicates “that the defendant actively induced the trial court to give the [improper] instruction that he now challenges on appeal . . . .” State v. Ebron, 292 Conn. 656, 682, 975 A.2d 17 (2009). The record is bereft of any evidence of active inducement on the part of the defendant.
      In its appellate brief, the state suggests that “since it could only inure to the defendant’s benefit for the court to refuse to instruct on such statutory exceptions to the right to self-defense, it strains credulity to believe that the state would have advocated against the giving of such an instruction. As such, the rational conclusion is that the defendant advocated for the court to refrain from instructing on the statutory exceptions and that he induced any claimed error as to the trial court’s failure to provide an instruction which the defendant advocated against at trial.” While that may be the case, no record of the charging conferences is before us, and we will not resort to speculation and conjecture, which “have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005).

       General Statutes § 53a-19 (b) provides: “Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he or she is in his or her dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he or she is a peace officer or a special policeman appointed under section 29-18b, a Department of Motor Vehicles inspector appointed under section 14-8 and certified pursuant to section 7-294d, or a private person assisting such peace officer, special policeman or motor vehicle inspector at his or her direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he or she abstain from performing an act which he or she is not obliged to perform.”


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. L.W.

    (AC 29924)
    Bishop, Harper and Pellegrino, Js.
    Argued January 12
    officially released July 6, 2010

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

   Opinion

HARPER, J.

The defendant, L.W., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), sexual assault in the first degree in violation of § 53a-70 (a) (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and risk of injury to a child in violation of § 53-21 (a) (l). The defendant claims that the court improperly admitted evidence of his uncharged sexual misconduct with his stepdaughter, W. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In September, 2000, when the victim was eight years of age, the department of children and families placed her in the care and custody of the defendant and his wife, who were the victim’s foster parents. The victim lived with the defendant, his wife and W for approximately three years. Another foster child lived at the residence beginning in 2001. While the victim resided with the defendant, the defendant sexually assaulted the victim on numerous occasions. These assaults ranged from the defendant’s touching of the victim’s private parts to penile-vaginal intercourse. The defendant often used physical force to compel the victim to submit to his sexual assaults. The assaults occurred in the victim’s bedroom as well as in the basement of the defendant’s residence.

Prior to the start of the trial, the state provided written notice to the defendant that it intended to offer testimony from W related to acts of misconduct by the defendant. Specifically, the state provided notice that the uncharged misconduct was that the defendant had “engaged in similar behavior as the defendant is currently charged, that is, sexually assaulting persons under the age of thirteen and/or touching the intimate parts of their bodies.” On October 30, 2007, during a hearing related to several pretrial motions, the court and the parties addressed the admissibility of this evidence. During the hearing, the court heard representations from the state concerning the factual allegations involving the defendant and the victim. The state represented that the evidence at issue, concerning the defendant’s conduct toward W, consisted of W’s statements that in three instances that occurred in late 2002 and early 2003, the defendant inappropriately had touched her vaginal area. Also, W stated that in another instance that occurred during this same span of time, the defendant had attempted to engage in penile-vaginal intercourse with her, although penile penetration had not occurred. The state represented that W was twelve or thirteen years of age at the time of these events and that they had occurred in the defendant’s residence. Additionally, the state represented that in connection with these prior acts involving W, the defendant had entered a guilty plea to the crime of risk of injury to a child but that the state was not seeking to introduce evidence of his guilty plea, only that he had engaged in the criminal acts at issue with W.

The state argued that the uncharged misconduct evidence was admissible to corroborate prosecution testimony and to prove motive and a common plan or scheme. See Conn. Code Evid. § 4-5 (b). The defendant’s attorney argued that evidence of the defendant’s conduct toward W was dissimilar to the conduct alleged in this case and argued against its admission. The court focused on the state’s assertion that the evidence was relevant to demonstrating a common plan or scheme. First, the court stated that it had to consider the remoteness of the offenses involving W in relation to the offenses at issue in the present case, whether the offenses against W were similar in nature to the offenses at issue in the present case, and whether the offenses involving W were committed against a person similar to the victim. Second, the court stated that if it found the offenses to be similar in these respects, it next had to consider whether the probative value of evidence related to the offenses involving W outweighed the prejudicial effect of such evidence.

The court found that the uncharged misconduct against W was materially similar to the offenses against the victim. The court found that the offenses against W, occurring between the end of2002 and the beginning of 2003, were not remote in time from the offenses at issue in the present case, which allegedly occurred from 2000 to 2002. Also, the court found that the offenses involving W were similar in nature to those at issue in the present case. In this regard, the court observed that the proffered evidence concerning W was that the defendant had touched her vaginal area and had attempted to engage in penile-vaginal intercourse with her. The court observed that the evidence concerning the victim was that the defendant had touched the victim’s private parts, including her vaginal area, and that the defendant had engaged in penile-vagina! intercourse with the victim. The court found that W and the victim were similar, both being young girls who resided in the defendant’s residence and had a close relationship with the defendant. The court found that the evidence was relevant and admissible to prove a common plan or scheme by the defendant. Finally, the court determined that the prejudicial effect of the evidence did not outweigh its probative value. At trial, W testified to facts consistent with the state’s offer of proof.

First, we set forth our standard of review. “To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.” State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). “We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” Id. When reviewing a court’s exercise of discretion, “[w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . The trial court has wide discretion to determine the relevancy [and admissibility] of evidence .... In order to establish reversible error on an evidentiary impropriety . . . the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Citations omitted; internal quotation marks omitted.) State v. Cecil J., 291 Conn. 813, 818-19, 970 A.2d 710 (2009).

“Evidence of other crimes, wrongs or bad acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.” Conn. Code Evid. § 4-5 (a). “Evidence of other crimes, wrongs or acts of a person is admissible for purposes . . . such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, orto corroborate crucial prosecution testimony.” Conn. Code Evid. § 4-5 (b). In State v. DeJesus, 288 Conn. 418, 470, 953 A.2d 45 (2008) (en banc), an opinion officially released after the court rendered judgment in the present case, our Supreme Court effectively carved out an additional exception to § 4-5 (b) of the Connecticut Code of Evidence when it recognized “a limited exception to the prohibition on the admission of uncharged misconduct evidence in sex crime cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior.” (Emphasis in original.)

Although the court in the present case explicitly admitted the challenged evidence under the common plan or scheme exception, we must review its ruling in light of our Supreme Court’s analysis in DeJesus. This is because, in DeJesus, the court recognized that evidence routinely admitted under the common plan or scheme exception typically is unrelated to “the existence of an overall scheme or plan in the defendant’s mind that encompasses the commission of the charged and uncharged crimes . . . [and that] evidence admitted under this standard ordinarily does not fall within the ‘true’ common scheme or plan exception.” Id., 468. Citing a variety of public policy reasons, the court concluded that evidence of uncharged misconduct in sex crime cases may be admitted to demonstrate a defendant’s propensity to engage in sexual misconduct. Id., 468-71.

The court in DeJesus determined that evidence of this nature is admissible if three conditions are satisfied. First, the evidence must be “relevant to prove that the defendant had a propensity or a tendency to engage in the type of aberrant and compulsive criminal sexual behavior with which he or she is charged. Relevancy is established by satisfying the liberal standard pursuant to which evidence previously was admitted under the common scheme or plan exception. Accordingly, evidence of uncharged misconduct is relevant to prove that the defendant had a propensity or a tendency to engage in the crime charged only if it is: (1) . . . not too remote in time; (2) . . . similar to the offense charged; and (3) . . . committed upon persons similar to the prosecuting witness.” (Internal quotation marks omitted.) Id., 473. Second, the evidence must be more probative than prejudicial. Id. “In balancing the probative value of such evidence against its prejudicial effect . . . trial courts must be mindful of the purpose for which the evidence is to be admitted, namely, to permit the jury to consider a defendant’s prior bad acts in the area of sexual abuse or child molestation for the purpose of showing propensity.” (Internal quotation marks omitted.) Id., 473-74. Third, “to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception . . . must be accompanied by an appropriate cautionary instruction to the jury.” Id., 474.

The defendant argues that the court “misconstrued the law” because “[t]here was no evidence of a genuine overarching plan or scheme in the defendant’s mind, encompassing the acts with both [the victim] and [W].” Furthermore, the defendant challenges the relevancy of the evidence, arguing that uncharged misconduct evidence did not satisfy the three part relevancy inquiry. Also, the defendant argues that the evidence was more prejudicial than probative and that the prejudicial effect of the evidence was exacerbated by the lack of an adequate cautionary instruction concerning the jury’s consideration of this evidence. We will address each aspect of the claim, in turn.

Guided by our Supreme Court’s analysis in DeJesus, we readily conclude that the court’s admission of the evidence under the common plan or scheme exception was improper. Despite the similarities between the charged and uncharged misconduct at issue, which will be discussed in greater detail, there is nothing in the evidence to suggest that there existed an overall plan or scheme in the defendant’s mind that encompassed the commission of the charged and uncharged offenses. As the court in DeJesus observed, the risk inherent in the improper admission of evidence under the common plan or scheme exception is that the fact finder may infer from the evidence that a defendant has a propensity to engage in sexual misconduct. See State v. DeJesus, supra, 288 Conn. 476. We do not conclude that the court’s ruling was harmful to the defendant, however, because, under DeJesus, the evidence properly was admissible for this exact purpose, to demonstrate the defendant’s propensity to engage in sexual misconduct. Id. (holding that improper admission of uncharged misconduct evidence under common plan or scheme exception harmless where jury properly could consider such evidence to infer defendant’s propensity to engage in sexual misconduct). Although the court did not have the benefit of DeJesus when it ruled on the admission of the uncharged misconduct evidence, the court’s analysis of the evidence nonetheless satisfied the standard of admissibility for propensity evidence; on the basis of the court’s analysis of the relevance and probative value of the evidence, we conclude that the evidence was admissible.

In determining the admissibility of the evidence, the court compared the proffered evidence of the defendant’s conduct toward W with the facts of the present case, reaching the factual conclusion that the conduct was materially similar. In disputing this aspect of the court’s ruling, the defendant relies on the fact that the alleged conduct involving W consisted of only a handful of encounters, involved touching but not penile-vaginal intercourse, occurred only once in W’s bedroom and was not characterized by the defendant’s use of force. In contrast, the defendant asserts, the conduct involving the victim encompassed many acts of sexual abuse, involved touching and penile-vaginal intercourse, occurred in the victim’s bedroom on many occasions and was characterized by the defendant’s use of force to compel the victim to submit to the defendant’s unwanted sexual activities. Our review of the relevant case law reflects that there is no bright line test for determining whether alleged acts of uncharged sexual misconduct and those involving the complaining witness in a sexual assault case are sufficiently similar. What is clear, however, is that the law requires similar acts of misconduct, not identical acts of misconduct. Here, the court noted the fact that the misconduct involved the defendant’s touching of the private parts of W and the victim. The court also noted that, in the case of W, the proffered evidence was that the defendant had attempted to engage in penile-vaginal intercourse, and that, in the case of the victim, the proffered evidence was that the defendant had engaged in penile-vaginal intercourse numerous times. In both instances, the alleged sexual misconduct occurred surreptitiously and in the defendant’s residence. On this record, we do not conclude that the court’s finding, that the acts involved were sufficiently similar, was clearly erroneous. Furthermore, we recognize that, in assessing the relevancy of the evidence, the court determined that the acts of uncharged misconduct and the charged offenses occurred in temporal proximity and that the defendant committed these acts on victims of the same gender and age who shared a close relationship with the defendant and, in fact, resided in his home. The defendant does not appear to challenge in any meaningful way these aspects of the court’s analysis, and we conclude that they are sound. Accordingly, we conclude that the court properly determined that the evidence of misconduct involving W was sufficiently relevant to warrant its admission.

Next, we consider whether the court properly determined that the probative value of the evidence outweighed “the prejudicial effect that invariably flows from its admission.” State v. Merriam, 264 Conn. 617, 671, 835 A.2d 895 (2003). In evaluating this factor, we recognize the strong similarities between W and the victim with regard to their age and the nature of their relationship to the defendant. The state proffered evidence that the defendant had touched W’s vaginal area and had attempted to engage in penile-vaginal intercourse with her. The allegations involving the victim included the defendant’s many acts of penile-vaginal intercourse, as well as his touching of the victim’s private parts. These acts occurred in close proximity, against female victims of a similar age and took place in the defendant’s home. Given the strong relevance of this evidence, we conclude that the evidence was highly probative. See, e.g., State v. John G., 100 Conn. App. 354, 364, 918 A.2d 986 (“striking similarities between the charged and uncharged misconduct, such as the nature of the crimes and the identity of the victims, make the evidence of prior misconduct highly probative”), cert. denied, 283 Conn. 902, 926 A.2d 670 (2007).

In assessing the prejudicial effect of the evidence, we observe that W’s testimony related to a few instances of sexual misconduct by the defendant, none of which involved penile-vaginal penetration, but improper touching and an attempt to engage in penile-vaginal intercourse. In contrast, the victim testified that, in addition to the defendant’s touching her private parts, the defendant repeatedly had forced her to engage in penile-vaginal intercourse on many occasions. The victim described far more numerous and graphic acts of sexual abuse than did W. For these reasons, we are not persuaded that W’s testimony was likely to raise the jury’s emotions unduly. See State v. R.K.C., 113 Conn. App. 597, 602, 967 A.2d 115 (comparing nature of uncharged misconduct evidence with nature of charged offenses), cert. denied, 292 Conn. 902, 971 A.2d 689 (2009).

Finally, in evaluating the likely prejudicial effect of the evidence, we look to the court’s cautionary instructions concerning the evidence. After the defendant’s trial attorney examined W outside the jury’s presence, he requested a cautionary instruction concerning W’s testimony. After W’s direct examination by the state, the court delivered the following instruction to the jury: “[L]et me just give you an instruction on the law that applies to this testimony. I’ll give you the same or similar instruction at the end of this case, but I want you to hear this instruction now. Evidence has just been presented of prior acts of misconduct by the defendant here .... This evidence has not been admitted to prove the bad character of the defendant or the defendant’s tendency to commit criminal acts, and it cannot be used for such purposes. It’s being admitted for a limited purpose only. And that purpose is to show, the state claims that it shows or establishes that the commission of the misconduct follows a common plan or scheme by the defendant. You may believe or disbelieve this evidence. It is for you to determine, one, whether such acts occurred and, two, if they did occur, whether they establish a common scheme or plan of criminal conduct.”

During its jury charge, the court provided the following additional instruction concerning the evidence at issue: “Evidence has been presented in this case of prior acts of misconduct by the defendant, specifically, the state offered evidence that the defendant sexually molested [W] in late 2002 and early 2003. This evidence has not been admitted to prove the bad character of the defendant or the defendant’s tendency to commit criminal acts, and it cannot be used [by] you for such purposes. Such evidence has been admitted solely to show or establish that . . . the commission of the misconduct follows a common plan or scheme. You may believe or disbelieve this evidence. It is for you to determine, one, whether such acts occurred and, two, if they occurred, whether . . . they establish a common plan or scheme of criminal conduct.”

We conclude that the court’s cautionary instructions were appropriate and decreased the likelihood of undue prejudice, including the likelihood that the jury would have considered the evidence for an improper purpose. In DeJesus, our Supreme Court did not mandate the trial court’s use of specific language in a cautionary instruction related to the use of uncharged sexual misconduct evidence. Nonetheless, our Supreme Court set forth, with implicit approval, instructional language that had been approved by the Tenth Circuit Court of Appeals. State v. DeJesus, supra, 288 Conn. 474 n.36, citing United States v. McHorse, 179 F.3d 889, 903 (10th Cir.), cert. denied, 528 U.S. 944, 120 S. Ct. 358, 145 L. Ed. 2d 280 (1999). We agree with the defendant that the cautionary instructions delivered by the trial court did not mirror in every respect the instructional language set forth in DeJesus-, the court did not have the guidance of DeJesus when it presided over the defendant’s trial. Nonetheless, we conclude that the court’s instructions unmistakably conveyed that the jury could either believe or disbelieve the uncharged misconduct evidence and, more importantly, that the jury could consider the evidence only for the limited purpose of determining whether the defendant’s conduct toward the victim was part of a common plan or scheme. To the extent that the jury inferred from the evidence that the defendant had a propensity to engage in sexual misconduct, such an inference was not improper. Furthermore, our review of the court’s entire charge reflects that the court adequately conveyed to the jury that the state bore the burden of proving each and every element of the charged offenses beyond a reasonable doubt and that the defendant stood charged only with the offenses set forth in the state’s information. In light of this record, we conclude that the cautionary instructions were adequate. See, e.g., State v. R.K. C., supra, 113 Conn. App. 602 (cautionary instruction that uncharged misconduct testimony to be considered solely for purpose of motive and intent deemed adequate). For all of the foregoing reasons, we conclude that the admission of the evidence under the common plan or scheme exception, although improper, was harmless under the facts of this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the conduct that gave rise to the charge of sexual assault in the fourth degree allegedly occurred between 2000 and 2002. Although § 53a-73a (a) (1) (A) was amended during that time, there is no dispute that the conduct in which the defendant allegedly engaged was prohibited under all of the revisions of the statute applicable during that time period. In the interest of simplicity, we refer to the current revision of § 53a-73 (a) (1) (A).

       We note that the conduct that gave rise to the risk of injury charges allegedly occurred between 2000 and 2002. Although § 53-21 was amended during that time, there is no dispute that the conduct in which the defendant allegedly engaged was prohibited under all of the revisions of the statute applicable during that time period. In the interest of simplicity, we refer to the current revision of § 53-21.

        The court imposed a total effective sentence of twenty years imprisonment, suspended after twelve years, followed by ten years of probation with special conditions, including a fine of $151.

       Although it appears that the defendant had been convicted of the crime of risk of injury to a child in connection with his conduct toward W, we describe the evidence of the defendant’s misconduct conduct toward W as “uncharged misconduct evidence” because, in the present case, the defendant was not charged with an offense related to his conduct toward W. Thus, our use of this terminology merely is intended to differentiate between those acts for which the defendant stood charged in the present case and those for which he did not stand charged and is consistent with that used in prior appellate decisions. See, e.g., State v. Randolph, 284 Conn. 328, 338-39, 348-49, 933 A.2d 1158 (2007) (describing evidence of misconduct for which defendant stood charged in separate criminal case as well as evidence of conduct for which defendant had been convicted following guilty plea in separate criminal case as “uncharged” misconduct evidence).

       The court stated that its ruling was based solely on the state’s offer of proof and that the defendant had the right to renew his objection to the admission of W’s testimony if W’s trial testimony differed materially from the state’s offer of proof. Subsequently, the court permitted the defendant’s attorney to examine W outside the jury’s presence. Following this examination, the court determined that W’s testimony was consistent with the state’s offer of proof and reaffirmed its ruling permitting the state to present W’s testimony before the jury.

       The defendant asserts that, to the extent that the state argues on appeal that the uncharged misconduct evidence was properly admissible as evidence of his propensity to engage in sexual misconduct, the state “waived” such a claim because it did not rely on this ground at trial. As we stated previously, the state argued at trial that the evidence was relevant under the common plan or scheme exception. Neither the parties nor the court had the benefit of DeJesus when the case was tried. Insofar as DeJesus recognized that evidence admitted under the common plan or scheme exception may be used to demonstrate propensity, rather than the existence of a common plan or scheme, we do not conclude that the state waived its right to argue, following DeJesus, that the jury properly could have considered the evidence for such purpose. In DeJesus, the defendant argued that the court’s admission of evidence under the common plan or scheme exception was harmful solely because of the risk that the jury might have inferred from the evidence that he had a propensity to engage in sexual crimes. State v. DeJesus, supra, 288 Conn. 476. The court in DeJesus, rejecting the claim, stated that “this is the precise purpose for which the jury properly could have considered the evidence.” Id.

       Apart from challenging the court’s admission of the uncharged misconduct evidence, the defendant claims that the court’s limiting instructions concerning the evidence were inadequate. In this regard, the defendant argues that the court’s instructions did not convey that the uncharged misconduct evidence was an insufficient factual basis on which to find him guilty of the charged offenses, the state still had the burden of proving each and every element of the charged offenses and that he was charged only with the offenses in the information. The record reflects that the defendant did not submit a written request to charge concerning the court’s limiting instructions and did not object to the limiting instructions at trial. See Practice Book § 42-16. Additionally, the defendant has not requested any level of extraordinary review of this unpreserved instructional claim. Our Supreme Court has held that the admission of uncharged sexual misconduct evidence “must be accompanied by an appropriate cautionary instruction to the jury”; State v. DeJesus, supra, 288 Conn. 474; and the court’s instructions in this regard are relevant to an assessment of the prejudicial effect of the evidence. Thus, we will review the court’s cautionary instructions insofar as we deem such review integral to our analysis of the defendant’s properly preserved claim related to the admission of the uncharged misconduct evidence.


author: PER CURIAM.

text:
    MORRIS SILVERSTEIN v. HONORABLE ELAINE N. CAMPOSEO
    (AC 30371)
    DiPentima, C. J., and Harper and Robinson, Js.
    Argued April 9
    officially released July 6, 2010

      Morris Silverstein, pro se, the appellant (plaintiff).

      Joshua A. Hawks-Ladds, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan Quinn Cobb and Philip Miller, assistant attorneys general, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Morris Silverstein, appearing pro se, appeals from the judgment of the trial court denying his petition for a writ of mandamus to compel the defendant, the Honorable Elaine N. Campo-seo, judge of the Probate Court for the district of Ando-ver, to allow him to bring an appeal. The plaintiff claims that the court improperly (1) denied his petition and (2) denied his request to present evidence during a reargument hearing. We affirm the judgment of the trial court.

The record reveals the following relevant facts, as found by the trial court, and procedural history. On September 9, 2004, the defendant presided over a probate hearing related to a petition filed by the administrator of the estate of Esther S. Silverstein. The plaintiff is the decedent’s son and an heir to her estate. On September 9, 2004, in the presence of the plaintiff and others, the defendant orally announced her decision approving the petition. On October 4, 2004, the plaintiff filed in the Probate Court a motion to amend an existing appeal from that court to the Superior Court, related to the estate, to include a challenge to the defendant’s September 9, 2004 ruling, as well as a letter requesting, inter alia, “a waiver of any fees involved because the matters are so closely related.” Along with these filings, the plaintiff filed, in the alternative, a motion to appeal to the Superior Court, without the payment of any fee, to be ruled on if the defendant denied his motion to amend.

By letter dated October 8, 2004, the clerk of the Probate Court notified the plaintiff that his motion to amend had been denied and that his motion to appeal to the Superior Court “will not be admitted until all copies and fees are paid.” On October 13, 2004, the plaintiff filed a motion to appeal to the Superior Court regarding the September 9, 2004 ruling, as well as a check in the amount of $50 and required copies. On October 21, 2004, the defendant denied the motion with the following notation: “Pursuant to [General Statutes (Eev. to 2003) §] 45a-187, an appeal from probate must be taken within [thirty] days of the date of the [P]robate [C]ourt decree. This appeal was not timely filed within the thirty day period and is therefore denied.”

Thereafter, the plaintiff filed a petition for a writ of mandamus in the Superior Court. The plaintiff alleged that the defendant improperly failed to grant his motion to appeal. The plaintiff sought a writ directing the defendant to “exercise her ministerial duty by allowing [the] plaintiffs appeal . . . .” Following an evidentiary hearing, the court issued a memorandum of decision in which it denied the plaintiffs petition. The court determined that the plaintiff had not filed a motion to appeal from the Probate Court to the Superior Court within the applicable statutory time limit and that the defendant had the discretion but not the duty to allow a late appeal. The court denied the petition, noting that the plaintiff was seeking to compel the performance of a discretionary act. This appeal followed.

I

First, the plaintiff claims that the trial court improperly denied his petition for a writ of mandamus. The plaintiff argues that the court improperly determined that his failure to include a $50 payment at the time he filed the motion to appeal on October 4, 2004, rendered the filing untimely. We disagree.

“In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . Nevertheless, this court will overturn a lower court’s judgment if it has committed a clear error or if it has misconceived the law. . . .

“Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Citation omitted; internal quotation marks omitted.) Cammarota v. Planning & Zoning Commission, 97 Conn. App. 783, 788-89, 906 A.2d 741, cert. denied, 280 Conn. 941, 912 A.2d 475 (2006).

We have carefully reviewed the court’s ruling and conclude that it is legally and factually sound. Pursuant to General Statutes (Rev. to 2003) §§ 45a-186 and 45a-187, the plaintiff had thirty days in which to appeal from the Probate Court’s September 9, 2004 ruling. It is not disputed that the plaintiff had the burden of exercising his right to appeal by filing in the Probate Court, within the time allowed by law, a motion to appeal to the Superior Court. See General Statutes (Rev. to 2003) § 45a-192 (order of notice in allowing appeal); Molleur v. Perkins, 82 Conn. App. 468, 471, 844 A.2d 916, cert. denied, 270 Conn. 912, 853 A.2d 527 (2004). The plaintiff filed a motion to appeal on October 4, 2004. Although this filing occurred within the statutory appeal period, the motion was not accompanied by the payment of $50, as is required by General Statutes § 45a-106, which provides in relevant part: “The basic costs payable to courts of probate for any proceeding other than in connection with the settlement of the estate of a deceased person or periodic accounts of trustees, guardians, conservators or other fiduciaries shall be as follows ... (6) For the purpose of sections 45a-106 to 45a-112, inclusive, there shall be a charge of fifty dollars for an appeal which shall be payable to the court by the appellant.” Although the plaintiff argued, and still maintains, that this charge need not have been paid at the time he filed his motion to appeal but that it could be paid to the Probate Court within a reasonable time, the trial court properly rejected that novel argument. The statutory right of appeal afforded the plaintiff was not perfected absent his strict compliance with all statutory requirements; see Fuller v. Marvin, 107 Conn. 354, 356, 140 A. 731 (1928); and the court had the discretion, but not the obligation, to allow the defective motion to appeal. See Molleur v. Perkins, supra, 471.

Because the plaintiff did not file a motion to appeal, with the required payment of $50, until October 13,2004, that motion was untimely. It was within the defendant’s discretion to grant or to deny the untimely motion. See VanBuskirk v. Knierim, 169 Conn. 382, 387, 362 A.2d 1334 (1975). As stated previously, the remedy of mandamus is not available to compel discretionary acts, and the trial court properly denied the plaintiffs petition for a writ of mandamus on that ground.

II

Next, the plaintiff claims that the trial court improperly denied his request to present evidence at a reargument hearing. We disagree.

After the court issued its memorandum of decision, the plaintiff filed a motion for reargument. The court granted the motion and held a hearing related to the motion. During the hearing, the plaintiff argued that the court mistakenly had found certain facts in its decision. The plaintiff stated: “[I]f I could be sworn to take the [witness] stand, and I’d like to testify under oath as to my comments on the facts that you have listed as found because I believe you have been led to believe things that are not as they are.” The defendant objected. The plaintiff addressed the court concerning the subject matter of his request, and the court, concluding that he already had presented relevant evidence and merely was attempting to relitigate the facts, denied the request. Later, the court affirmed its earlier decision denying the petition.

“Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its [discretion]. ... In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided. . . . The trial judge’s discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . Consistent with this responsibility, the trial court may not, in light of all the relevant factors, arbitrarily or unreasonably reject a motion to introduce additional evidence after the moving party has rested. . . . Such a reopening should not be permitted if it would result in substantial prejudice to a party. • • • Last, we note that “[i]n reviewing a trial court’s action for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. [R]eversa! is required [only] where the abuse is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Singh v. Hartford, 116 Conn. App. 50, 54-55, 974 A.2d 810 (2009).

In his appellate brief, the plaintiff argues that the trial court should have permitted him to testify regarding what had transpired during the Probate Court hearing on September 9,2004. The plaintiff argues that his testimony was relevant to the trial court’s finding that the defendant had issued an oral ruling on that date. Our careful review of the record reflects that during his casein-chief, the plaintiff presented evidence concerning the September 9, 2004 hearing and the defendant’s statements during that hearing. The plaintiff has not demonstrated that the testimony he wanted to present at the reargument hearing was not merely cumulative of evidence already in the record. In light of the nature of the evidence at issue, we conclude that the court’s ruling reflected a sound exercise of its discretion.

The judgment is affirmed.

       Related to this claim, the plaintiff also claims, as separate issues in the appeal, that “[t]he trial court did not appear to take into consideration the actions of the probate clerk and the probate judge in this case,” and that the trial court improperly “cited cases applying the law of appeals to the Superior Court to the law of appeals in the Probate Court as substantiation for arriving at [its] decision.” Insofar as they are distinct from the claims analyzed in this opinion, we do not address these separate claims, which consist merely of the plaintiffs assertions, unaccompanied by analysis, citation to the record or citation to any legal authority. See, e.g., LaBow v. LaBow, 85 Conn. App. 746, 751-52, 858 A.2d 882 (2004) (“[a]s we have stated on occasions too numerous to recite, mere abstract assertions, unaccompanied by reasoned analysis, will not suffice to apprise a court adequately of the precise nature of a claim”), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).