author: LAVERY, C. J.

text:
    BRIDGET RAGIN v. DOUGLAS LEE
    (AC 21809)
    Lavery, C. J., and Schaller and Peters, Js.

      Argued March 18
    officially released August 19, 2003

      Sean K. Crowshaw, for the appellant (minor child).

      Ronald Blanchette, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellee (state).

      Leonard I. Shankman, guardian ad litem for the minor child.
   Opinion

LAVERY, C. J.

This appeal concerns the finality of an appeal from a decision of a family support magistrate and the standing of a child to file a motion to open a paternity judgment. On June 24,1999, the commissioner of social services (commissioner) filed the underlying paternity action on behalf of the state, pursuant to General Statutes § 46b-162, seeking support for T, a minor child of Bridget Ragin. The child was bom out of wedlock. The commissioner brought this action because the mother and child receive state assistance. Service of the paternity action on the putative father, the defendant, Douglas Lee, was made by leaving the paternity petition, summons and order for hearing at the residence of the defendant’s mother on June 19, 1999. The defendant did not appear at a hearing on August 17, 1999, but Family Support Magistrate Harris T. Lifshitz appointed an attorney as guardian ad litem and counsel for the minor child at that hearing and continued the matter to October 12, 1999. On October 12, 1999, the defendant did not appear. Magistrate Lifshitz found that there was valid abode service on the defendant and rendered a default judgment of paternity.

At a hearing on November 30, 1999, the defendant appeared. He denied that he is the child’s father and orally requested genetic testing to determine paternity. He also indicated that he did not live at his mother’s residence. On November 30, 1999, counsel was appointed to represent the defendant, but counsel did not become aware of the appointment until June, 2000. Although counsel was appointed, the defendant has been essentially unrepresented during the underlying proceedings.

On December 10, 1999, within two months of the entry of the default judgment, counsel for the minor child as attorney and guardian ad litem, filed a motion to open the default judgment of paternity. The motion alleged that the defendant had not received actual notice of the paternity proceedings, that he was incarcerated on October 12, 1999, and that the judgment should be opened, in the best interest of the child, to eliminate any doubt as to the child’s paternity. Counsel also filed a motion for genetic testing, pursuant to General Statutes § 46b-168, arguing that it is in the best interest of the minor child to eliminate any doubt as to the child’s paternity while the child is still very young and to minimize the possibility of any future dispute regarding the parentage of the child.

The state objected to the motions, arguing that there was no final judgment from which to file a motion to open and that the child’s counsel had no standing to raise the claim that there was insufficient service of process on the defendant. The state also contended that the child’s counsel was present at the October 12, 1999 hearing and waived the claim by failing to object to the entry of the default. The state further argued that a claim regarding lack of notice must be raised by way of a timely motion to dismiss, which had not been filed.

On February 17, 2000, a hearing was held on the child’s motion to open before Family Support Magistrate Christine Bint. Testimony by an identification records specialist from the state indicated that the defendant had been incarcerated since October 13, 1999, but there was no indication that he was incarcerated on October 12, 1999. At the hearing, there also was some discussion regarding the appointment of counsel for the defendant. Magistrate Burt found that the defendant had had a right to counsel in the paternity matter, but that at the time the request for counsel was made, the paternity determination already had been made. The magistrate assumed that the defendant was proceeding pro se at the hearing. Although the state requested that the appointment of counsel be vacated, Magistrate Burt did not specifically do so.

The child’s counsel filed a request to revise the motion to open on April 19, 2000. The revised motion alleged that the defendant had not had actual notice of the hearing, and that it was in the child’s best interest that the judgment be opened and genetic tests performed.

On June 13, 2000, a hearing was held before Magistrate Lifshitz on the revised motion to open. Magistrate Lifshitz took the position that the appointment of counsel for the defendant had not been vacated in the prior proceeding and that the appointment was still pending. The magistrate also indicated that he would consider the merits of the state’s argument that the child’s counsel lacked standing to file a motion to open before considering the merits of the motion to open. Counsel were ordered to file briefs on or before June 30, 2000. A review of the transcript of the hearing indicates that Magistrate Lifshitz did not make any decision on the child’s standing or on the merits of the motion to open on the date of the hearing.

On June 21, 2000, pursuant to General Statutes § 46b-231 (n), the state appealed to the Superior Court, challenging Magistrate Lifshitz’ authority to continue the appointment of counsel for the father and to consider the merits of the child’s motion to open. Counsel for the minor child filed in the Superior Court a motion to dismiss the appeal, arguing that there was no appealable final judgment because Magistrate Lifshitz had not yet decided any issue, including whether the child had standing to file the motion to open.

The court did not specifically rule on the motion to dismiss filed by the child. The court ordered: “The decision[s] of the family support magistrate on June 13, 2000, as set forth in the appeal petition [filed by the state], are reversed.” Counsel for the child, with the consent of the, child’s appointed guardian ad litem, appealed to this court from the Superior Court’s decision. The child contends that Magistrate Lifshitz did not render an appealable decision under the provisions of § 46b-231 (n) and that the state’s appeal to the Superior Court was premature. We agree.

As a threshold matter, we set forth our standard of review. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998); ABB Automation, Inc. v. Zaharna, 77 Conn. App. 260, 263, 823 A.2d 340 (2003).

Turning to the merits of the child’s appeal, we find that Magistrate Lifshitz did not render any decision on the merits of the child’s motion to open, left the matter open for the filing of briefs by the parties and indicated that he would consider the state’s claim that the child lacked standing to file the motion prior to considering the merits of the motion to open. Magistrate Lifshitz made a determination that Magistrate Burt had not vacated the appointment of counsel for the defendant, but had indicated that it was unclear whether counsel would be paid for his services.

General Statutes § 46b-231 (n) (1) permits an appeal to the Superior Court by “ [a] person who is aggrieved by a final decision of a family support magistrate . . . .’’In Harvey v. Wilcox, 67 Conn. App. 1, 5, 786 A.2d 533 (2001), we noted that to determine whether a seemingly interlocutory order of a family support magistrate is nonetheless final for purposes of appeal to the Superior Court, this court applies the finality test of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see also Cardona v. Negron, 53 Conn. App. 152, 155-56 n.10, 728 A.2d 1150 (1999). Under Curcio, an otherwise interlocutory order is immediately appealable when it (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, supra, 31.

In its petition to appeal to the Superior Court, the state alleged that Magistrate Lifshitz improperly had refused to find that the defendant was not entitled to court-appointed counsel and also improperly decided to hear the child’s motion to open the paternity judgment based on insufficient service on the defendant.

The state argues that it need not await Magistrate Lifshitz’ final decision on the child’s motion to open before appealing to the Superior Court. It claims that the magistrate’s decision to consider the merits of the child’s motion to open is immediately appealable under the second prong of the Curcio test because it would not have a further opportunity to raise its position that the claim of insufficient service of process had been waived.

“The second test for finality . . . focuses not on the proceedings involved, but on the potential harm to the appellant’s rights. [An interlocutory order] will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial .... The second prong of Curcio requires, therefore, the [appellants] to prove that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [appellants] irreparably harmed unless they may immediately appeal.” (Internal quotation marks omitted.) Rustici v. Malloy, 60 Conn. App. 47, 54-55, 758 A.2d 424, cert. denied, 254 Conn. 952, 762 A.2d 903 (2000).

The state’s argument is factually inaccurate because subsequent review of the waiver issue has not been foreclosed. The family support magistrate made no findings on June 13,2000, regarding the merits of the motion to open and made no ruling regarding the viability of the state’s argument that the notice issue had been waived. Furthermore, the state cannot show any presently existing right that would be destroyed if it was not vindicated prior to the magistrate’s consideration of the standing issue raised by the state and the merits of the child’s motion to open.

We conclude that the state’s appeal to the court was premature because the family support magistrate’s actions on June 13, 2000, did not terminate a separate and distinct proceeding, nor did they so conclude the rights of the parties that further proceedings cannot affect them. There is no appealable final judgment in this case under the second prong of the Curcio test.

The state also argues that its appeal to the court is permitted under the exception to the final judgment rule that permits appeals when the appellant raises a colorable claim that the trial court, or as here the family support magistrate, lacks subject matter jurisdiction. See Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980).

In Cardona v. Negron, supra, 53 Conn. App. 157, we concluded that a magistrate lacked authority to order genetic testing prior to taking any action on a motion to open a paternity judgment filed nearly five years after the judgment was rendered. The state contends that the family support magistrate in this case similarly had no authority to consider the child’s claim regarding the insufficient service of process on the defendant because the claim had been waived and the child lacks standing.

The court in its articulation indicated that Magistrate Lifshitz did not have any authority to continue the appointment of counsel for the defaulted father because he was no longer a putative father and that the magistrate had no authority to open the default judgment based on the question of whether the defendant had notice of the proceedings because the child lacked standing to raise the issue. The court also stated that because sufficiency of service of process is tested by way of filing a motion to dismiss and no motion to dismiss was ever filed in this case, the magistrate had no subject matter jurisdiction to hear a motion to open based on insufficiency of service of process. The state relies on the articulation to rebut the child’s claim that the state’s appeal to the Superior Court was premature. We disagree.

As to the appointment of counsel for the defendant, our Supreme Court held in Lavertue v. Niman, 196 Conn. 403, 412, 493 A.2d 213 (1985), that an indigent defendant in a state supported paternity action has a constitutional right to court-appointed counsel at state expense. In the present case, the defendant was found to be indigent and the underlying action was a state supported paternity action. There is no indication in the trial court file that the defendant waived the right to counsel under the provisions of Practice Book § 25-64. The factual issue pending before the family support magistrate was whether the father had waived his right to counsel when he was defaulted for failure to appear and there is a pending motion to open the default judgment of paternity based on lack of actual notice to the defendant. The magistrate has not yet determined the factual basis for the lack of notice claim, and the issue is still pending before the magistrate. Under those circumstances, paternity is still at issue in a state supported paternity proceeding, and we conclude that the magistrate had the authority to find that the appointment of counsel for the defendant was still viable.

The court also held that Magistrate Lifshitz had no authority to consider the merits of the child’s motion to open the paternity judgment based on insufficient service of process. The court held that the guardian ad litem and counsel for the minor child did not have standing to raise that claim.

“The issue of standing implicates the court’s subject matter jurisdiction. . . . Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard.” (Citation omitted; internal quotation marks omitted.) Taff v. Bettcher, 35 Conn. App. 421, 424-25, 646 A.2d 875 (1994). In Water Pollution Control Authority v. OTP Realty, LLC, 76 Conn. App. 711, 822 A.2d 257, cert. denied, 264 Conn. 920, 828 A.2d 619 (2003), this court stated: “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the . . . subject matter of the controversy.” (Internal quotation marks omitted.) Id., 713; see also Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002).

The question of standing, therefore, implicates the ability of the court to hear a matter. Standing “is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy . . . .” (Internal quotation marks omitted.) Id. If the child lacked standing, which is a jurisdictional issue, the magistrate lacked authority to decide the merits of the child’s motion to open.

The court held that the child lacked standing to raise the claim of insufficiency of service of process on the defendant because no motion to dismiss raising the notice claim had been filed. In Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002), our Supreme Court held: “It is fundamental that jurisdiction over a person can be obtained by waiver. United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985) (‘[ujnlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver’). Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party’s personal jurisdiction claims, ‘[a]ny defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.’ Practice Book § 10-30; see Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) (‘rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6’).” In the present case, the magistrate had yet to make any factual determination regarding whether the defendant waived the claim of insufficiency of service of process and whether the child could raise that claim by way of filing a motion to open.

We note that the state and the Superior Court have focused exclusively on the lack of notice to the defendant as the basis for the child’s motion to open the default judgment of paternity. The motion to open filed by counsel for the minor child also includes, however, a claim that it is in the best interest of the minor child that the judgment be opened so that genetic testing may be performed to eliminate any doubt as to the child’s paternity and to eliminate the possibility of any future dispute regarding the parentage of the child. The question of the child’s interest in an accurate determination of paternity and the child’s standing to request that a default judgment of paternity be opened based on that interest also remains pending before the family support magistrate.

The United States Supreme Court has recognized that “both the child and the defendant in a paternity action have a compelling interest in the accuracy of such a determination.” Little v. Streater, 452 U.S. 1, 13, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981). Connecticut has long recognized that children have a separate and independent interest in family relations matters. See In re Bruce R., 234 Conn. 194, 209-10, 662 A.2d 107 (1995); Guille v. Guille, 196 Conn. 260, 263-64, 492 A.2d 175 (1985); Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982); Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 (1981). Our Supreme Court has recognized that both the father and the child in a paternity proceeding have an interest in seeing that their rights to companionship, care and custody are accurately adjudicated. See Lavertue v. Niman, supra, 196 Conn. 408-409. The court in Lavertue v. Niman, supra, 408-409, noted that the child’s interests also extend to its health, which may depend on an accurate family medical history. The court stated: “The child’s interests in this regard are particularly strong. ‘Any determination that a particular individual is a child’s biological father may have profound sociological and psychological ramifications. ... It is in the child’s interest not only to have it adjudicated that some man is his or her father and thus liable for support, but to have some assurance that the correct person has been so identified.’ . . . Salas v. Cortez, 24 Cal. 3d 22, 33-34, 593 P.2d 226, 154 Cal. Rptr. 529, cert. denied, 444 U.S. 900, 100 S. Ct. 209, 62 L. Ed. 2d 136 (1979).” Lavertue v. Niman, supra, 409. In his concurrence in Palumbo v. Gray, 208 Conn. 21, 543 A.2d 1331 (1988), Associate Justice David M. Shea stated that the issue of paternity is of paramount importance to the child and that the court should exercise its authority to require genetic marker tests where the parties neglect to provide them. Id., 37 (Shea, J., concurring). In its report on the Social Services Amendments of 1974, Pub. L. No. 93-647, 88 Stat. 2337, which amended the Social Security Act, 42 U.S.C. § 654 et seq., the finance committee of the United States Senate stated: “In taking the position that a child bom out of wedlock has a right to have its paternity ascertained in a fair and efficient manner, the committee acknowledges that legislation must recognize the interest primarily at stake in the paternity action to be that of the child. . . . The Committee is convinced that . . . paternity can be ascertained with reasonable assurance, particularly through the use of scientifically conducted blood typing.” S. Rep. No. 93-1356, 93rd Cong., 2d Sess., 1974 U.S. Code Cong. & Admin. News 8155.

Courts in other jurisdictions have found that a child has a right to pursue paternity and support issues, and to accuracy in a paternity determination. See Spada v. Pauley, 149 Mich. App. 196, 385 N.W.2d 746 (1986), cert. denied, 425 Mich. 1203, 389 N.W.2d 85 (1986); Johnson v. Norman, 66 Ohio St. 2d 186, 421 N.E.2d 124 (1981); State ex rel. McMichael v. Fox, 132 Wash. 2d 346, 352-53, 937 P.2d 1075 (1997) (en banc).

We hold that a child who is the subject of a paternity action has a fundamental interest in an accurate determination of paternity that is independent of the state’s interest in establishing paternity for the benefit of obtaining payment for the child’s care and any interest that the parents may have in the child. We note that in the present case, the motion to open filed by counsel for the minor child and the guardian ad litem for the minor child alleged that it was in the best interest of the child that there be a definitive determination of the child’s paternity by genetic testing, and we remand the matter for consideration of that claim.

In Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn. App. 481, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001), we stated: “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11 [(1982)]. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987).” (Internal quotation marks omitted.) Hartford v. Pan Pacific Development (Connecticut), Inc., supra, 485. “Althoughrelated, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952). . . . Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).” (Internal quotation marks omitted.) Beizer v. Dept. of Labor, 56 Conn. App. 347, 362, 742 A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000).

In Yaremich v. Lam, 71 Conn. App. 650, 803 A.2d 369 (2002), this court stated: “The authority to open and vacate a judgment is within the inherent power of the trial courts. ... A motion to open and vacate should be granted when the court, acting reasonably, finds good cause to do so.” (Citation omitted.) Id., 653; Paddock v. Paddock, 22 Conn. App. 367, 372, 577 A.2d 1087 (1990). A family support magistrate has the inherent authority to open a default judgment of paternity when presented with a motion to open filed by a party with standing to do so. The magistrate had subject matter jurisdiction over the paternity action and the authority to open and to vacate the default judgment in this case based on the child’s independent and fundamental interest in an accurate determination of his paternity. The magistrate in this case has not yet acted on the motion to open. Magistrate Lifshitz permitted the parties to file briefs on the issues presented by the child’s motion to open, and the state appealed to the Superior Court prior to the expiration of the time for filing the briefs. As Magistrate Lifshitz had not yet made any decision, the state’s appeal to the Superior Court was premature.

The decision of the Superior Court is vacated and the matter is remanded to the family support magistrate for further proceedings with direction also to consider the child’s motion to open the default judgment of paternity on the basis of the child’s independent right to an accurate determination of paternity in that proceeding.

In this opinion the other judges concurred.

       General Statutes § 46b-162 provides: “The state or any town interested in the support of a child bom out of wedlock may, if the mother neglects to bring such petition, institute such proceedings against the person accused of begetting the child, and may take up and pursue any petition commenced by the mother for the maintenance of the child, if she fails to prosecute to final judgment. Such petition may be made by the Commissioner of Social Services or the town welfare administrator on information or belief. The mother of the child may be subpoenaed for testimony on the hearing of the petition.”

       The parties, the family support magistrate and the Superior Court improperly used the designation “motion to reopen.” We note that because the decision had not been previously opened, the appropriate term is “motion to open,” and we use that designation throughout this opinion. See Rodriguez v. State, 76 Conn. App. 614, 617 n.5, 820 A.2d 1097 (2003); Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 537 n.1, 612 A.2d 1222 (1992).

       General Statutes § 46b-168 (a) provides: “In any proceeding in which the question of paternity is at issue the court or a family support magistrate, on motion of any party, may order genetic tests which shall mean deoxyribonucleic acid tests, to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by the court, to determine whether or not the putative father or husband is the father of the child. The results of such tests, whether ordered under this section or required by the IV-D agency under section 46b-168a, shall be admissible in evidence to either establish definite exclusion of the putative father or husband or as evidence that he is the father of the child without the need for foundation testimony or other proof of authenticity or accuracy, unless objection is made in writing not later than twenty days prior to the hearing at which such results may be introduced in evidence.”
      General Statutes § 46b-168a (a) provides: “In any IV-D support case, as defined in subdivision (13) of subsection (b) of section 46b-231, in which the paternity of a child is at issue, the IV-D agency shall require the child and all other parties other than individuals who have good cause for refusing to cooperate or who are subject to other exceptions to submit to genetic tests which shall mean deoxyribonucleic acid tests, to be performed by a hospital, accredited laboratory, qualified physician or other qualified person designated by such agency, to determine whether or not the putative father or husband is the father of the child, upon the request of any such party, provided such request is supported by a sworn statement by the party which either (1) alleges paternity and sets forth facts establishing a reasonable possibility of the requisite sexual contact between the parties, or (2) denies paternity and sets forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties.”

       Magistrate Lifshitz subsequently articulated that he did not make any decision on June 13, 2000, and cited to the transcript for support. The state requests that this court disregard and strike the magistrate’s articulation because it contends that it was improper.
      Although the state objected to the motion for articulation directed to the family support magistrate, it failed to file a motion for review of the magistrate’s decision on the motion for articulation. Pursuant to Practice Book § 66-5, the sole remedy of any party desiring the court having appellate jurisdiction to review a decision on a motion for rectification or articulation shall be by motion for review under Practice Book § 66-7. The state failed to file a motion for review, and we decline to consider the state’s request to strike the magistrate’s articulation under those circumstances. Furthermore, we note that even without Magistrate Lifshitz’ articulation there is a sufficient record to consider the appeal on the basis of the transcript of June 13, 2000.

       General Statutes § 46b-231 (n) (1) provides: “A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.”

       In an articulation, the court indicated that it found that the state had filed its appeal from a final judgment in that Magistrate Lifshitz allowed counsel for the defendant when the court found that there was no authority to appoint counsel and no subject matter jurisdiction to consider a motion to open based on insufficient service of process. The court further stated that it found that those were final decisions as set forth in General Statutes § 46b-231 (n).

       A child may bring an appeal through its court-appointed counsel and guardian ad litem. See Newman v. Newman, 235 Conn. 82, 95, 663 A.2d 980 (1995). A child shall be made a party to apatemity action under the provisions of General Statutes § 46b-172a (c) when the putative father requests an adjudication of paternity. The legislative history for § 46b-172a shows that there is legislative intent for the child to be a party to paternity proceedings.
      Representative Richard D. Tulisano stated in the House of Representatives that the bill that became § 46b-172a was in response to changes in the law. “Last year we passed legislation which gave children bom out of wedlock rights of inheritance. There is a movement in the law generally in the United States and in the Supreme Court, recognizing more and more the interests of a child that was bom out of wedlock. This would give additional interest to that child and protection to him as well as protection to the rights of the father who may want to exert that concern which is beginning to be shown in our modern-day society. There have been a number of cases in Connecticut raised by habeas corpus in which those rights are being exerted. That should not be necessary. There should be a procedure available to everybody with the best interests of the child always in view.” 22 H.R. Proc., Pt. 23, 1979 Sess., pp. 8117-18, remarks of Representative Richard D. Tulisano.
      We see no reason why the child who is the subject of a paternity action brought by the state under the provisions of General Statutes § 46b-162 or by the mother under General Statutes § 46b-160 should not also be afforded party status. As this court stated in Demarest v. Fire Dept. of Norwalk, 76 Conn. App. 24, 817 A.2d 1285 (2003): “Parties are considered indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience. . . . Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action].” (Internal quotation marks omitted.) Id., 28. We conclude that a minor child, who is the subject of a paternity action, is an indispensable party to that action.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    GAIL DECORSO v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., ET AL.
    (AC 22682)
    Bishop, Mihalakos and Dupont, Js.
    Argued April 30
    officially released August 19, 2003

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

      Mario F. Moreno and Charles A. Deluca, with whom, on the brief, was Dierdre A. Murray, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiff, Gail DeCorso, appeals from the judgment rendered by the trial court following the granting of the motion for summary judgment in favor of the defendants as to both counts of the plaintiffs complaint, which alleged intentional infliction of emotional distress and negligent infliction of emotional distress. We affirm the judgment of the trial court.

The questions for resolution are whether (1) the conduct of the individual defendants, elders of Jehovah’s Witnesses, was extreme and outrageous during the relevant periods of time, as alleged in the plaintiffs complaint, for purposes of sustaining a cause of action for intentional infliction of emotional distress and (2) the first amendment to the United States constitution bars the plaintiffs cause of action for negligent infliction of emotional distress.

I

PROCEDURAL HISTORY AND STANDARD OF REVIEW

The operative complaint is dated November 13, 2000, and alleges that certain incidents took place beginning in 1975 and continuing through the plaintiffs disfellowship from the Jehovah’s Witnesses in April, 1996. It was filed “pro se” and “in lieu of John R. Williams,” who is appellate counsel for her.

The plaintiff was baptized into the Jehovah’s Witnesses religion in 1972. She alleges that, as such, and according to teachings of the Jehovah’s Witnesses, she was under the control and supervision of the defendants. In October, 1975, the plaintiff married Michael DeCorso, who also was a member of the Jehovah’s Witnesses. From the beginning of their marriage through their divorce in November, 1994, the plaintiff allegedly suffered continual emotional, physical and sexual abuse by her husband.

The plaintiff further alleged that throughout the duration of the problems within her marriage, she sought the guidance and instruction of the defendants, as was required by teachings of the Jehovah’s Witnesses. At all times, the counseling she received from the defendant elders was spiritual in nature, and based on the writings and teachings of the scriptures as interpreted by the religion of the Jehovah’s Witnesses.

The plaintiff alleged that she had conversations with each of the individual defendants regarding the alleged abuse she suffered and nothing was done by them to alleviate it. She alleged that the defendants counseled her to continue to endure the alleged abuse. Throughout her complaint, the plaintiff cites various -writings and scripture, of the Jehovah’s Witnesses, alleging that the defendant elders did not act in conformity with their own religious teachings. The plaintiff additionally alleged that the defendants voiced derogatory remarks about her throughout that time and continuing until her disfellowship in April, 1996.

After deposing the plaintiff, the defendants filed a motion for summary judgment. The defendants claimed that the alleged acts of misconduct were insufficient as elements of an action for negligent or intentional infliction of emotional distress. The motion also claimed that the first amendment barred the plaintiffs action because inquiry into her allegations would constitute excessive entanglement of the state into religious affairs. The court granted the defendants’ motion as to both counts of her complaint.

The court granted the motion as to the intentional infliction of emotional distress count because one of the elements of that cause of action, extreme and outrageous conduct, was not established by the plaintiffs allegations in her complaint. The court granted the motion as to negligent infliction of emotional distress because the first amendment precludes the court from involvement or excessive entanglement in the religious tenets of Jehovah’s Witnesses.

The plaintiff filed her original complaint in three counts on March 25, 1998, including a third count of breach of contract. That complaint alleged acts and omissions occurring from early 1976 to 1995. A subsequent revised compliant contained the same three counts, but made additional factual allegations including allegations of events occurring through her disfellowship in March, 1996, and even more specific references to teachings and scriptures of the Jehovah’s Witnesses. The plaintiff next filed an amended complaint on August 2,1999. It contained essentially the same factual allegations as the prior complaints, but added an additional fourth count of breach of fiduciary duty.

On October 12, 1999, in accordance with Practice Book § 10-39 et seq., the defendants filed a motion to strike the plaintiffs complaint because the applicable statute of limitations had expired as to each count and because the causes of action were barred by the first amendment. The court, in a memorandum of decision dated March 21, 2000, granted the defendants’ motion on statute of limitations grounds as to counts one, two and four, and on first amendment grounds as to count three.

Subsequently, on April 5, 2000, the plaintiff, pro se, filed another amended complaint. The defendant filed an objection to that complaint on the ground that the plaintiff had failed to file a substitute complaint within the prescribed time and also filed a motion for judgment because the amended complaint did not overcome the deficiencies of the previous revised complaint. The court sustained the defendants’ objection to the amended complaint and gave the plaintiff fifteen days to file a substitute pleading. The court denied the defendants’ motion for judgment.

On June 2, 2000, the plaintiff filed a substitute complaint. The complaint alleged the same four counts and contained similar allegations as were stated in the August, 1999 complaint, as well as more detailed allegations regarding the events leading to her disfellowship in April, 1996.

On July 7, 2000, the defendants filed a motion to strike, arguing that counts one, two and four were barred by the statute of limitations, counts one, three and four failed to state a claim on which relief could be granted and that the entire complaint was barred by the first amendment.

The court, in its October 16, 2000 decision, did not address the statute of limitations issue on the motion to strike because the plaintiff had alleged additional dates in her substitute complaint and the parties no longer agreed that the relevant dates were accurate. See Forbes v. Ballaro, 31 Conn. App. 235, 239, 624 A.2d 389 (1993) (motion to strike raising statute of limitations defense improper when parties do not agree complaint sets forth all pertinent facts). The court, therefore, addressed the merits of the motion to strike and granted it as to the third and fourth counts. The third count was stricken on first amendment grounds, and the fourth count was stricken because the court concluded that the complaint did not establish facts sufficient, to show that a fiduciary relationship existed. The court did not strike the first and second counts of intentional and negligent infliction of emotional distress.

Thereafter, on November 13, 2000, the plaintiff filed a second substitute complaint. The complaint contained essentially the same allegations as appeared in the previous complaint of June, 2000, but alleged only intentional and negligent infliction of emotional distress, as the other two counts had been stricken. It is the complaint that is the subject of this appeal.

The defendants filed their answers and special defenses to that complaint. As special defenses, the defendants claimed, inter alia, that the applicable statute of limitations barred the plaintiffs claims, the complaint failed to state a claim on which relief could be granted, the first amendment barred the claims, and the alleged conduct was not extreme and outrageous. The defendants, in their answer and in their special defense of the statute of limitations, stated that the time frame of the plaintiffs allegations encompassed October, 1975, to November, 1994, the length of her marriage.

The court, in granting the defendants’ motion for summary judgment, which is the subject of this appeal, concluded that as a matter of law, the individual defendants’ alleged conduct was not extreme and outrageous and, therefore, did not support a cause of action for intentional infliction of emotional distress. The court also concluded that the first amendment barred the litigation of the plaintiffs negligent infliction of emotional distress count.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if 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. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . .

“The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof. . . . When a party files a motion for summary judgment and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof. . . . Finally, the scope of our review of the trial court’s decision to grant the [defendants’ motions] for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Barile v. LensCrafters, Inc., 74 Conn. App. 283, 285-86, 811 A.2d 743 (2002).

II

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The plaintiff claims that the court improperly granted the defendants’ motion for summary judgment on her intentional infliction of emotional distress claim because the facts alleged in her second substitute complaint establish that the defendants’ conduct was extreme and outrageous. The court concluded to the contrary.

A claim of intentional infliction of emotional distress requires a plaintiff to prove the following elements: “(1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Campbell v. Plymouth, 74 Conn. App. 67, 77, 811 A.2d 243 (2002).

The court determined that as a matter of law, none of the alleged conduct or acts of the defendants were “extreme and outrageous” as required for a claim for intentional infliction of emotional distress. Although we affirm the judgment of the court as to that count, we do not reach the question of whether the alleged conduct, as a matter of law, was “extreme and outrageous,” as to the allegations of events occurring prior to March, 1995. See Torringford Farms Assn., Inc. v. Torrington, 75 Conn. App. 570, 571 n.2, 816 A.2d 736 (judgment may be affirmed for reason different from that relied on by trial court), cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003).

The plaintiff filed her original complaint on March 25, 1998. The applicable statute of limitations period for a claim of intentional infliction of emotional distress is three years. General Statutes § 52-577. Thus, in the usual case, any claims concerning behavior prior to March 25, 1995, would be time barred.

In this case, the defendants previously had filed motions to strike, claiming that the allegations were time barred. After the defendants’ last motion to strike the count of intentional infliction of emotional distress was denied on that basis, the defendants filed an answer and again asserted the defense of the statute of limitations by way of their first special defense. The special defense of a time bar is appropriately the basis of a motion for summary judgment if the statute of limitations has, in fact, run. Id., 573. In such cases, our review is plenary. Id.

On the basis of the allegations of the plaintiffs complaint, and the allegations in the defendants’ answer and special defenses, the parties do not dispute some of the dates during which the plaintiff sought the advice of the individual defendants. They agree that some of the operative events occurred between October, 1975, and November, 1994.

The plaintiff claims that because the corporate defendant had a rule that its members could not litigate in civil court, she did not bring her action until her membership in the congregation was terminated, and, therefore, the statute of limitations should have been tolled until her disfellowship in 1996. She makes no claim of fraud by the defendants that induced her to refrain from bringing her action and does not cite any case that would allow us to toll the statute because of the alleged rule of the corporate defendant.

In the absence of fraud, any claims of the plaintiff as to events occurring before March 25, 1995, would usually be time barred. “Only in actions that fairly can be characterized as invoking equitable considerations may a court consider the applicability of concepts of fairness and equity” in determining the tolling of statutes of limitations. Id., 576. This case is not an appropriate one for such a conclusion because of the reasons as discussed in part III. We therefore review only those allegations in the complaint concerning events occurring after March 25, 1995, to determine whether the plaintiff has shown the defendants’ conduct to be extreme and outrageous.

We conclude that, as a matter of law, the alleged acts and omissions, which mainly consisted of derogatory remarks about and verbal mistreatment of the plaintiff in the course of the disfellowship proceedings that took place in the spring of 1996, were not “extreme and outrageous.” “Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000). Therefore, because the relevant allegations do not describe extreme and outrageous conduct, as defined by our case law, we conclude that the defendants’ motion for summary judgment was granted properly as to the claim of intentional infliction of emotional distress.

Ill

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

The plaintiff also claims that the court improperly granted the defendants’ motion for summary judgment on her claim of negligent infliction of emotional distress. She argues that adjudication of the merits of her cause of action would not involve excessive entanglement in religion in contravention of the first amendment. She argues that her claim is based on negligence arising within the context of marital counseling, which would not require adjudication of religious issues. The defendants argue that their alleged acts and omissions in their counseling of and relationship with the plaintiff are protected by the free exercise and establishment clauses of the first amendment.

To establish a claim of negligent infliction of emotional distress, the plaintiff must prove the following elements: “(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiffs distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). We consider the impact of those elements, as alleged in the plaintiffs complaint, on the exercise by the defendants of their first amendment rights.

The first amendment, applicable to the states through the fourteenth amendment to the United States constitution; see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” “The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests . . . .” Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972). Thus, the first amendment has been inteipreted broadly to “severely [circumscribe] the role that civil courts may play in resolving . . . disputes” concerning issues of religious doctrine and practice. (Internal quotation marks omitted.) Rector, Wardens & Vestrymen of Trinity-St. Michael’s Parish, Inc. v. Episcopal Church in Diocese of Connecticut, 224 Conn. 797, 801, 620 A.2d 1280 (1993); see also Kreshik v. St. Nicholas Cathedral, 363 U.S. 190,190-91, 80 S. Ct. 1037, 4 L. Ed. 2d 1140 (1960); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 120-21, 73 S. Ct. 143, 97 L. Ed. 120 (1952).

Because no Connecticut appellate court has determined the extent to which the first amendment provides protection to religious entities and officials from tort liability on facts similar to those involved in this case, we examine the opinions of the United States Supreme Court and courts of other jurisdictions that have considered similar issues for our resolution of this case.

In addressing the first amendment as it relates to actions involving religious officials and entities, courts have focused on either the free exercise clause or establishment of religion clause of the first amendment. The establishment clause prohibits the sponsorship, financial support or active involvement in religious matters by the government. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). It is the establishment clause and its “excessive entanglement” prohibition with which we are here involved, as well as the free exercise clause. See generally Waldman v. Village of Kiryas Joel, 207 F.3d 105 (2d Cir. 2000); Sands v. Living Word Fellowship, 34 P.3d 955 (Alaska 2001); Nally v. Grace Community Church of the Valley, 47 Cal. 3d 278, 253 Cal. Rptr. 97, 763 P.2d 948 (1988) (en banc), cert. denied, 490 U.S. 1007, 109 S. Ct. 1644, 104 L. Ed. 2d 159 (1989); O’Connor v. Diocese of Honolulu, 77 Haw. 383, 885 P.2d 361 (1994); Murphy v. I.S.K Con. of New England, Inc., 409 Mass. 842, 571 N.E.2d 340 (en banc), cert. denied, 502 U.S. 865, 112 S. Ct. 191, 116 L. Ed. 2d 152 (1991); Odenthal v. Minnesota Conference of Seventh-Day Adventists, 649 N.W.2d 426 (Minn. 2002) (en banc).

Under “excessive entanglement” analysis, civil tort claims requiring courts to review and to interpret religious doctrine and practices are barred by the first amendment. Franco v. Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 203 (Utah 2001), citing Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709-10, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976).

“The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all governmental regulation of religious beliefs as such. . . . The government may not compel affirmation of religious belief . . . punish the expression of religious doctrines it believes to be false . . . impose special disabilities on the basis of religious views or religious status ... or lend its power to one or the other side in controversies over religious authority or dogma . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990).

Upon review of the record, we conclude that the court correctly determined that it could not consider the plaintiffs negligent infliction of emotional distress count without excessively entangling itself in matters of the Jehovah’s Witnesses religion and burdening the free exercise rights of the defendants.

The essential facts of the plaintiffs allegations, viewed in the light most favorable to her, are as follows. Throughout her abusive marriage, the plaintiff sought the spiritual counsel of the individual defendant elders and other elders within the defendant church. In her allegations about her marital situation, she alleges that at all times the elders counseled her in accordance with teachings of the Jehovah’s Witnesses. Allegedly, at the direction of the elders, the plaintiff stayed in her abusive marriage and suffered emotional distress separate from the distress she suffered as a result of her marriage.

As those alleged facts demonstrate, the plaintiffs claims cannot be addressed without violating the first amendment. The plaintiffs allegations are essentially that she sought counsel from the defendants and that they negligently caused her emotional distress in giving her bad advice contrary to teachings of the Jehovah’s Witnesses. In fact, throughout her complaint, the plaintiff cites to scripture and publications of the Jehovah’s Witnesses, which, according to the plaintiff, show what the defendants should have done. As other courts have recognized, that is a claim of clergy malpractice, which usually is barred by first amendment principles.

For example, in Franco v. Church of Jesus Christ of Latter-day Saints, supra, 21 P.3d 206, a case with very similar facts to those alleged in this case, the trial court dismissed the plaintiffs’ claim of negligent infliction of emotional distress because it was barred by the first amendment. In Franco, a seven-year-old girl had been so severely sexually abused as a young child that she repressed the memory of the abuse until she was fourteen years old. Id., 200. Upon the child’s recalling the sexual abuse, she and her parents, members of the Church of Jesus Christ of Latter-day Saints, sought counseling from their local bishop and stake president. Id., 200. Both advised the plaintiffs to “forgive, forget, and seek [a]tonement.” Id., 201. They also referred the family to an unlicensed family counselor, who also told the plaintiffs to forgive and forget and not go to the police. Id. After finally seeing another counselor and reporting the abuse to the police, the plaintiff daughter was “ ‘ostracized and denigrated’ ” by the members of her local church ward, with the acquiescence of the bishop and stake president. Id.

The defendants argued that the plaintiffs’ claims were barred by the establishment clause and, thus, the Supreme Court of Utah analyzed the claims under that clause. Id. The court stated that although the entanglement doctrine does not bar all tort claims against clergy for misconduct, “it is well settled that civil tort claims against clerics that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred by the First Amendment under the entanglement doctrine.” Id., 203. The court further commented that “courts throughout the United States have uniformly rejected claims for clergy malpractice under the First Amendment” because such claims would “necessarily entangle the court in the examination of religious doctrine, practice, or church polity — an inquiry that ... is prohibited by the Establishment Clause.” Id., 204. Analogizing the Franco plaintiffs’ claim to one for clergy malpractice, the Supreme Court of Utah upheld the dismissal of the plaintiffs negligent infliction of emotional distress claim on first amendment grounds. Id., 206.

Similarly, in the present case, any analysis of the plaintiffs claims would require a court to delve into religious issues, which is prohibited by the first amendment. Determining whether the defendants’ counseling created an unreasonable risk of emotional harm or that the plaintiffs distress was foreseeable would require a court to evaluate the proprieties of religious teachings. Furthermore, the plaintiff cites certain Jehovah’s scriptures, which would require the court to evaluate whether the defendants counseled in accordance therewith.

Under both the free exercise clause and the establishment clause, the first amendment prohibits civil courts from resolving disputed issues of religious doctrine and practice. We conclude that the court properly granted the defendants’ motion for summary judgment as to the count of negligent infliction of emotional distress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Watchtower Bible and Tract Society of New York, Inc. (Watchtower), the corporate organization of Jehovah’s Witnesses, and the individual defendants, Charles E. Bradshaw, Charles Thomas, James R. Waddington and George Griffin, elders of the Jehovah’s Witness congregation. Watchtower and the individual defendants filed separate answers and separate defenses to the plaintifFs complaint that are nearly identical. The defendants filed a joint brief. At oral argument, counsel for Watchtower addressed count two of the plaintiffs complaint, which alleged negligent infliction of emotional distress, and counsel for the individual defendants addressed count one of her complaint, which alleged intentional infliction of emotional distress claim. Unless otherwise noted, the word “defendants” as used in this opinion includes all the defendants.

       “Disfellowhip” is a process by which a member of the congregation of the Jehovah’s Witnesses is excommunicated or expelled from the congregation for “wrongdoing.”

       Attorney Williams filed a brief for the plaintiff and argued the matter in this court.

       We note that throughout her complaint and deposition, the plaintiff stated that the counseling she received was based on the scriptures and was spiritual in nature.

       The trial court also dismissed a claim of intentional infliction of emotional distress, but not on first amendment grounds. Franco v. Church of Jesus Christ of Latter-day Saints, supra, 21 P.3d 206-207.

       A stake is an ecclesiastical division of the Church of Jesus Christ of Latter-day Saints. Franco v. Church of Jesus Christ of Latter-day Saints, supra, 21 P.3d 200 n.3.


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. JUSTIN C. PEPPER
    (AC 23376)
    Dranginis, McLachlan and Hennessy, Js.

      Argued June 2
    officially released August 26, 2003

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Justin C. Pepper, 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). On appeal, the defendant claims that (1) the trial court denied him his constitutional right of confrontation by precluding him from questioning the victim about her motive to accuse him falsely of sexual assault, (2) pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the state violated his constitutional rights by using his postarrest and post-Miranda silence for impeachment purposes and substantive evidence of guilt, and (3) the state committed prosecutorial misconduct by asking him to comment on the credibility of the victim and the veracity of her testimony. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On April 23, 2001, at 11:30 p.m., the victim was in her residence with her husband and her one year old daughter, who were asleep, when the defendant knocked on her door uninvited. The defendant appeared upset and wanted to speak with the victim’s husband. The victim woke her husband so that he could get ready for work, which began at midnight. Her husband left for work at 11:45 p.m., but the defendant remained. The defendant and the victim conversed about what was upsetting the defendant. During their conversation, both drank alcoholic beverages. The victim then began to drink soda.

At 12:30 a.m., the victim’s husband called her and asked if the defendant was still there. The victim answered in the affirmative. The victim and the defendant then began to “play fight” with each other, which involved the victim spitting soda and water on the defendant, the defendant attempting to retaliate, and both running around the residence as they did so. The victim’s husband called a second time and asked if the defendant was still there. The victim lied and stated that he had left. She then noticed that the floor near the bathroom was sticky from spilled soda and proceeded to mop up the spill. She then went into the bathroom and changed into her pajamas, which consisted of baggy cargo pants, a blue tank top, and no underwear.

The defendant said that he and the victim should have sex and that he would not tell her husband. The victim told the defendant no, that she was married and would not have sex with him. She then asked the defendant to leave her residence. The defendant told her that he would not leave until he “got some” and came toward the victim. She ran toward her bedroom where she planned to lock herself in to prevent the defendant’s advances, but on her way she slipped on the floor that she had just cleaned. The defendant grabbed her as she fell and pushed her into the bedroom. He then threw her onto the bed and jumped on top of her between her legs. The victim tried to push the defendant away with her feet and kicked the defendant. The defendant continued in his attempt to spread her legs apart as the victim struggled and screamed for the defendant not to continue. The defendant told her to shut up or he would punch her in the face.

The defendant then pulled her pants down, removed his shirt and pushed his pants down to his ankles, leaving his sneakers on. He then placed the victim’s legs over his shoulders and had sexual intercourse with her for five minutes, during which he told her to be quiet or he would punch her in the face. The victim said it was impossible to fight the defendant in the position she was in. After the intercourse, the defendant threatened that if she told anyone, he would inform her husband that the sex was consensual and that she had slept with an old roommate. The victim was distraught and upset after the sexual assault.

Once the defendant left, the victim contacted her father, the police and her husband informing them of the sexual assault. She was taken to a hospital where routine tests after a sexual assault were given and evidence taken. Her injuries included abdominal pain, back pain, bruising on her inner thighs and vaginal bleeding. Laboratory tests from specimens taken from the victim and compared with a blood sample from the defendant indicated that his sperm was present.

I

The defendant’s first claim is that the court improperly denied him his sixth amendment right to confront the victim when it precluded him from questioning the victim about her motive to accuse him falsely of sexual assault. Specifically, the defendant argues that he should have been permitted to cross-examine the victim concerning the reasons for a previous suicide attempt that occurred after she engaged in an earlier extramarital affair. Additionally, the defendant argues that this evidence was admissible under common-law evidentiary rules. We disagree that the court acted improperly.

On May 3, 2002, the defendant filed notice that he intended to offer evidence of the sexual conduct of the victim. On May 6, 2002, the defendant filed a written offer of proof concerning the admissibility of evidence of the victim’s sexual conduct, arguing, inter alia, that such evidence was relevant to his defense of consent. On May 9, 2002, the court held a hearing on those matters pursuant to General Statutes § 54-861'. The defendant had subpoenaed medical records from Lawrence and Memorial Hospital in New London concerning the victim. Pursuant to the procedure set forth in State v. D'Ambrosio, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990), the court conducted an in camera inspection of all the subpoenaed records and disclosed to the defendant certain medical records from the victim’s hospitalization in October, 2000, after a suicide attempt that had been made soon after a previous extramarital affair.

Upon review of those records, the defendant amended his offer of proof concerning the admissibility of evidence of the victim’s sexual conduct. The defendant argued that the recently disclosed evidence was relevant to demonstrate that the victim had fabricated the sexual assault claim because she was afraid of her husband’s reaction and potential negative effects stemming from her actions. The court deferred ruling on the defendant’s motion until the victim testified. After the victim’s direct examination, the defendant renewed his motion to admit the evidence, stating: “I wish to ask her directly concerning whether or not she lied to her husband [during the second telephone call] because she had been previously caught in an affair, and she was worried about the further effect and erosion of her marriage in addition to or rather following on from the October-September hospital records.” The state objected to that area of inquiry. The court then asked the defendant’s counsel: “Now, this is lying to her husband with respect to saying that your client had left the apartment when, in fact, he was still there? Is that what we’re talking about, that phone call.” The defendant answered, “Yes, Your Honor.” The court overruled the state’s objection and permitted that inquiry by the defendant.

The defendant also sought to inquire about the suicide attempt, which had followed the victim’s extramarital affair. The defendant argued that this evidence was relevant “[i]f . . . she told the doctor [that] she was found in an illicit affair. She had problems with her husband. That was sufficient in her mind to produce a suicide attempt. We are now six months later. She’s in a similar situation. Her husband calls, and now she chooses to he as opposed to commit suicide, again.” The court ruled that such evidence was overly prejudicial and that the probative value of such evidence was outweighed by the potential for unfair prejudice. The defendant then stated: “So, my question, then, is limited to motivation for lying to her husband. That’s fine, Your Honor.”

On cross-examination, the defendant asked the victim if she had had an extramarital affair in October, 2000, and whether her husband became aware of it. The victim answered in the affirmative to both questions. The defendant also asked the victim if that affair and her husband’s knowledge of the infidelity was the reason she lied about the defendant’s presence during the second telephone call on the night of the assault. The defendant did not attempt to introduce the evidence of the victim’s suicide attempt, nor did he attempt to introduce or make an offer of proof that portions of the medical records, which related to some of the underlying causes leading to the victim’s suicide attempt and which related to her previous infidelity, should be admitted into evidence separately from any reference to the suicide attempt.

At the outset, we note that the defendant’s constitutional claim was not preserved at trial. The defendant, therefore, seeks review of his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for review and the defendant’s claim is one of constitutional magnitude, we will review the claim. See State v. Crosby, 34 Conn. App. 261, 274, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994).

“The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the juiy facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Cruz, 71 Conn. App. 190, 197-98, 800 A.2d 1243, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

“This right, however, is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. . . . The trial court, in its discretion, may impose limitations on the scope of cross-examination, as long as the defendant has been permitted sufficient cross-examination to satisfy constitutional requirements. . . . The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited and the right to cross-examine is subject to the duty of the court to exclude irrelevant evidence.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 665, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002). “[T]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. ... If the constitutional standard has been met, then we must nonetheless examine whether the court abused its discretion in restricting the defendant’s cross examination of the victim.” (Internal quotation marks omitted.) State v. Gainey, 76 Conn. App. 155, 163, 818 A.2d 859 (2003).

Here, the defendant argues that the court improperly restricted the cross-examination of the victim by not allowing inquiry concerning the victim’s suicide attempt and its underlying causes. According to the defendant, the disclosed medical records reveal that the victim attempted to take her life solely because she was distraught when her husband discovered her affair and was afraid that her husband might divorce her and engage in a custody battle for their child. This evidence, the defendant contends, demonstrates a motive by the victim to fabricate the sexual assault claim. Our review of the disclosed medical records, however, reveals that there were numerous reasons underlying the victim’s suicide attempt apart from the affair and her fears of her husband’s negative reaction.

Although some portions of the disclosed medical records may have been relevant to a motive to fabricate the sexual assault claim, the defendant never made an offer of proof or attempted to introduce those potentially relevant portions separately from the evidence of the victim’s suicide attempt. There is no indication that the court would have precluded that area of inquiry. The court simply precluded reference to the suicide attempt and made no ruling that would preclude the defendant from inquiring about the victim’s fears stemming from her husband’s discovering her previous infidelity. “[A] defendant’s right [of cross-examination] is not infringed if the defendant fails to pursue a line of inquiry open to him. . . . The test is whether the opportunity to cross-examine existed, not whether full use of such opportunity was made.” (Internal quotation marks omitted.) State v. Webb, 75 Conn. App. 447, 465, 817 A.2d 122, cert. denied, 263 Conn. 919, 822 A.2d 244 (2003).

The defendant was allowed to question the victim concerning her October, 2000 infidelity, her husband’s awareness of the affair and her husband’s jealousy. The defendant never attempted to ask the victim about her fear of divorce or a custody battle. In addition, the defendant extensively cross-examined the victim about the sexual assault, including the inconsistencies between their respective versions of the events and how the victim’s version of events actually demonstrated that the sex was consensual. The defendant did not attempt to ask the victim if she fabricated the claim that the sex was forced because she was afraid of her husband’s reaction. There is no indication that the court would have precluded this area of inquiry. The court did not impose any limitations on the defendant’s cross-examination of the victim concerning a possible motive to fabricate the sexual assault other than precluding any reference to the suicide attempt. Accordingly, we find that the defendant’s constitutional rights to confrontation and cross-examination were not violated.

Because we conclude that the constitutional standard has been met, we next must determine, pursuant to State v. Gainey, supra, 76 Conn. App. 163, whether the court abused its discretion in restricting cross-examination of the victim concerning her suicide attempt. “Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Francis D., 75 Conn. App. 1, 20, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003).

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . [Accordingly] [t]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the [party against whom the evidence is offered] but whether it will improperly arouse the emotions of the jur[ors].” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 544, 821 A.2d 247 (2003).

Here, the court excluded reference to the suicide attempt because its prejudicial impact outweighed any probative value. Clearly, evidence of a suicide attempt would unduly evoke the jury’s emotions and sympathy. The victim’s suicide attempt implicated her deepest personal and private thoughts and emotions, many of which were irrelevant to the issues at trial. We conclude, therefore, that the court did not abuse its discretion in precluding reference to the suicide attempt. Accordingly, the defendant’s claim fails under the third prong of Golding.

The defendant also claims that exclusion of any reference to the suicide attempt violated our rules of evidence. This determination is tied inextricably into our prior analysis in our resolution of the defendant’s Golding claim. The defendant’s claim fails because, as we concluded previously, the court did not abuse its discretion in excluding this evidence as being overly prejudicial.

II

The defendant’s second claim is that pursuant to Doyle v. Ohio, supra, 426 U.S. 610, the state violated his constitutional rights by using his postarrest and post-Miranda silence for impeachment purposes and as substantive evidence of guilt. We disagree.

Additional facts are necessary for the analysis of the defendant’s claim. On April 24, 2001, David Anthony Gigliotti, a detective with the New London police department, interviewed the defendant about the victim’s allegation of sexual assault. At that meeting, the defendant was not in custody or under arrest and, therefore, was not provided with Miranda warnings. The defendant informed Gigliotti that he was not at the victim’s residence on April 23, 2001, and he denied having had any type of sexual relationship with her. The defendant also provided a written statement to Gigliotti stating the same. On June 8,2001, the defendant was arraigned following his arrest, at which time he was informed of his Miranda rights. On September 24, 2001, a blood sample was taken from the defendant with Gigliotti present. No interrogation or statements were taken from the defendant at that time.

The defendant alleges that the state committed three Doyle violations. First, the defendant references the following question and answer during the state’s examination of Gigliotti:

“Q. Detective, at any point after April 24, 2001, when you took the statement . . . from [the defendant] did he have any further conversations with you concerning his activities on the evening of April 23, morning of April 24, 2001?
“A. No, he did not.”

The second alleged Doyle violation also arose in the state’s direct examination of Gigliotti:

“Q. Did [the defendant] tell you about any physical ailments or conditions that he might have been suffering from [on April 24, 2001]?
“A. No, he did not.”

The final alleged Doyle violation occurred during the state’s cross-examination of the defendant:

“Q. When did you claim that this sexual intercourse with [the victim] was voluntary? You never told that to the police, did you?
“A. I believed that ever since the beginning. Police never asked me. No, sir.
“Q. And if they didn’t ask you, you weren’t going to tell them.
“A. If they would ask, I would’ve told them.”

We note at the outset that the defendant did not properly preserve this claim. He therefore seeks Golding review. We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Cabral, 75 Conn. App. 304, 311-12, 815 A.2d 1234, cert. granted on other grounds, 264 Conn. 914, 826 A.2d 1158 (2003).

Pursuant to Doyle, “evidence of a defendant’s postarrest and post-Miranda silence is constitutionally impermissible under the due process clause of the fourteenth amendment. . . . The factual predicate of a claimed Doyle violation is the use by the state of a defendant’s postarrest and post-Miranda silence either for impeachment or as affirmative proof of his guilt. . . . The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.” (Citations omitted; internal quotation marks omitted.) State v. Kuranko, 71 Conn. App. 703, 709, 803 A.2d 383 (2002). “Silence following Miranda warnings is insolubly ambiguous because it may be nothing more than a defendant’s exercise of his or her Miranda rights. . . . Once the government assures a defendant through the issuance of Miranda warnings that his silence will not be used against him, it is fundamentally unfair for the state to break that promise by using his silence against him at trial. . . . Comments by the state on a defendant’s silence following Miranda warnings are not only constitutionally impermissible, but also inadmissible under the principles of evidence.” (Internal quotation marks omitted.) State v. Rose, 41 Conn. App. 701, 711, 679 A.2d 19, cert. denied, 239 Conn. 906, 682 A.2d 1011 (1996).

We conclude that the state did not violate Doyle in its questions to Gigliotti. The first question merely referenced the investigative efforts of the police, which does not constitute a Doyle violation. See State v. Smith, 42 Conn. App. 41, 48, 680 A.2d 1340 (1996) (“state may present evidence to show the investigative effort made by the police and the sequence of events as they unfolded”). The second question posed to Gigliotti did not violate Doyle because it referenced the defendant’s pre-Miranda silence. See State v. Esposito, 223 Conn. 299, 319, 613 A.2d 242 (1992) (“prosecution’s use of silence prior to the receipt of Miranda warnings does not violate due process”).

Assuming without deciding that the state violated Doyle in its question posed to the defendant, we conclude that any impropriety was harmless beyond a reasonable doubt. Doyle violations are . . . subject to harmless error analysis. . . . The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . . . Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case. . . . [Bjefore a . . . constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. . . . The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. . . . That determination must be made in light of the entire record [including the strength of the state’s case without the evidence admitted in error]. ... A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s postarrest silence does not constitute reversible error. . . . The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s comments do not strike at the jugular of the defendant’s story. . . . The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant’s silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt.” (Internal quotation marks omitted.) State v. Kuranko, supra, 71 Conn. App. 711-12.

Here, there was substantial evidence supporting the defendant’s guilt, including (1) the presence of his semen in the victim, (2) his lying to the police in his April 24, 2001 statement, (3) the victim’s immediate reporting of the incident to the police, her father and her husband even though the defendant threatened to tell them all that the sex was consensual if she reported the assault, (4) the fact that the defendant could not fully undress during sex, (5) the defendant’s threats of physical harm to the victim during the assault, (6) the victim’s physical injuries including bruising and vaginal bleeding, (7) the victim’s hysterical reaction immediately after the assault, (8) the fact that the victim testified that if the sex were consensual, she would have used contraceptives to prevent pregnancy, which did not occur here, and (9) the victim’s resistance to the defendant’s sexual assault.

Furthermore, any potential Doyle violation was isolated. There were no repetitive references to the defendant’s silence, constant reemphasis on the defendant’s silence in closing argument or extensive, strongly worded argument suggesting a connection between the defendant’s silence and his guilt. Accordingly, we conclude that any potential Doyle violation was harmless.

Ill

The defendant’s final claim is that the state engaged in prosecutorial misconduct when it improperly asked the defendant to comment on the credibility of the victim’s testimony. We agree that in a certain context these questions may be viewed as improper, but, in the context of which they were asked here and considering the trial as a whole, we conclude that the defendant was not denied due process of law.

The defendant cites the following excerpts from the state’s cross-examination of him:

“Q. You heard [the victim] tell the ladies and gentlemen of this jury that as far as she knew, you didn’t even know her last name on April 23rd. Is that correct?
“A. I believe that’s what I heard.
“Q. Is that correct?
“A. I knew her last name. She’d been over there several times at the house at 262.
* * *
“Q. You heard [the victim] say that you appeared upset when she answered the door. Do you recall that testimony?
“A. I recall her saying that. Yes, sir.
“Q. Was that accurate?
“A. No, sir.
“Q. You weren’t upset?
“A. No, sir.
* * *
“Q. You heard [the victim] testify that the music she put was, I think, Eminem.
“A. That would be rap. I know the difference between rap and light rock, sir.
“Q. Was that accurate? Is that the music she put on?
“A. No, sir. That is not true.
* * *
“Q. You heard [the victim] testify that you never took your shoes off. Is that true?
“A. I did take my shoes off, sir.
* * *
“Q. You heard [the victim] say that that you told her that you had tom your shirt wrestling.
“A. Yes, sir.
“Q. Okay. And was that accurate or not? Is that how, in fact you tore your shirt?
“A. I didn’t tear it wrestling. No, sir.”

Because the defendant failed to object to the claimed prosecutorial misconduct at trial, he seeks review under Golding. Because the record is adequate for review and a claim of prosecutorial misconduct is of constitutional magnitude, we will review the defendant’s claim. See State v. Singh, 259 Conn. 693, 699, 793 A.2d 226 (2002).

“Prosecutorial misconduct may occur in the course of cross-examination of witnesses . . . and may be so clearly inflammatoiy as to be incapable of correction by action of the court. ... In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury’s verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal. . . . Moreover, prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself . . . .” (Internal quotation marks omitted.) State v. Moody, 77 Conn. App. 197, 209, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707 (2003).

“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . [M]oreover ... [a defendant is not entitled to prevail under Golding] whe[n] the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial. ... In determining whether the defendant was denied a fair trial [by virtue of prosecutorial misconduct] we must view the prosecutor’s comments in the context of the entire trial.” (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 161-62, 836 A.2d 224 (2003).

In making that determination, we focus on several factors, including “(1) the extent to which the misconduct was invited by defense conduct or argument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state’s case.” State v. Cruz, supra, 71 Conn. App. 205-206. “Furthermore, whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor’s improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.” State v. Reynolds, supra, 264 Conn. 165.

It is well established that it is improper to ask a witness to comment on another witness’ credibility or the veracity of his or her testimony. See State v. Singh, supra, 259 Conn. 706. “That is because such questions not only invade the province of the jury, in that determinations of credibility are for the jury to decide, but those questions also have no probative value because they are not helpful to the jury in assessing witnesses’ credibility.” State v. Dubose, 75 Conn. App. 163, 179, 815 A.2d 213, cert. denied, 263 Conn. 909, 819 A.2d 841 (2003).

As a general proposition, the challenged questions appear to be improper because the defendant was asked to comment on the veracity of another witness’ testimony. Our determination, however, focuses on whether any impropriety denied the defendant a fair trial. We therefore must analyze whether this cross-examination rendered the trial so unfair as to make the resulting conviction a denial of due process utilizing the previously mentioned factors.

Here, any misconduct was neither severe nor frequent. The challenged exchanges amounted to only five instances in an extensive cross-examination of the defendant. They related to minor inconsistencies between the defendant’s and the victim’s recollections of the events of the night in question. They did not attack the major theme of the consent defense, but merely highlighted the differences in the defendant’s and the victim’s stories. In addition, the state did not ask the defendant to characterize the victim as a liar or to use other strong terms in reference to her testimony. Our conclusion that any misconduct was not severe is highlighted by the fact that no objection or curative instructions were sought by the defendant at trial.

Furthermore, as discussed in part II, the state had substantial evidence supporting the defendant’s guilt. Finally, we note that any prosecutorial misconduct was not blatantly egregious and did not reveal a pattern of conduct repeated throughout the trial. Accordingly, we conclude that any misconduct was harmless and, therefore, the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

       Laboral ory tests also indicated the presence of semen from an unidentified person who was not the victim’s husband.

       The defendant also claims a violation of his rights under article first, § 8, of the constitution of Connecticut. “Because the defendant has not briefed his claim separately under the Connecticut constitution, we limit our review to the United States constitution. We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim ....’’ (Internal quotation marks omitted.) State v. Gonzalez, 69 Conn. App. 649, 656 n.6, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002).

       The defendant requests that we conduct an in camera review of all the subpoenaed records to determine if other documents should be disclosed. The defendant, however, provides no case law or analysis of this claim in his brief. Nor does the defendant inform this court of what material is being sought from an in camera review. Additionally, there was no showing that “there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness.” (Internal quotation marks omitted.) State v. D'Ambrosio, supra, 212 Conn. 58. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) State v. Pulaski, 71 Conn. App. 497, 499 n.4, 802 A.2d 233 (2002). Because the defendant’s brief is inadequate, we deem his request for an in camera review waived.

       The specific argument made by defense counsel was the following: “[W]ith respect to the information that I just got, there was an incident of infidelity, which led to a suicide attempt and a physician’s emergency commitment. And from the defendant’s point of view . . . what . . . we must do is to illustrate for the jury’s perspective the fact that from his perspective this is a parallel situation. In other words, at a point in time not too terribly far removed from this incident here, there was an act of infidelity. It was revealed. It led to difficulties. The victim attempted to take her own life, went to the hospital, went to another hospital and then subsequently returned to her family. Our position ... is that that forms the basis for her reporting nonconsensual activity, and unless we are allowed to put that information to the jury, we cannot present that defense.”

       The defendant argues that his claim was preserved because he informed the court that the exclusion of the prior sexual conduct of the victim violated his constitutional rights to cross-examination and confrontation. That argument, however, concerned the admissibility of evidence of the victim’s prior sexual conduct with three other individuals and was not in reference to the victim’s suicide attempt or the October, 2000 infidelity.

       An unpreserved claim is renewable under Golding “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.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant also claims on appeal that the following additional questions were improper. We conclude, however, that these questions and answers do not ask the defendant to comment on the veracity or credibility of the victim or her testimony.
      “Q. And isn’t it a fact that only after . . . your sperm were found in . . . in the sample that was taken from [the victim’s] vagina, then and only then did you change your story and claim that this was consensual act of sexual intercourse?
      “A. No, sir.
      “Q. That’s not true?
      “Q. No, sir. I spoke with my lawyer about it before then.
      “Q. And you want this juiy to believe that what you’re testifying to, today, despite those prior lies that you’ve made in connection with this allegation, that what you’re testifying to, today, is the truth, right?
      “A. This is the honest truth. Correct.
      “Q. And . . . you wanted the jury to believe from your earlier testimony, that at the time you were arrested, you only weighed 150 pounds, and you’ve gained thirty pounds, and you now weigh thirty pounds more than you did back in 2001?
      “A. When they arrested me, they logged me in at 151 at Corrigan Correctional Institute. I had told the police officers that I thought I weighed 180 to 185 at the New London police department.”