author: WEST, J.

text:
    STATE OF CONNECTICUT v. CARLOS A. GUZMAN
    (AC 27609)
    DiPentima, Harper and West, Js.

      Argued May 21
    officially released September 16, 2008

      Thomas Plotkin, certified legal intern, with whom were Timothy H. Everett, special public defender, and, on the brief, Andrew Phillips, Kelly Glasheen, David Curtin, Michael Falcone and Charleen E. Merced Agosto, certified legal interns, for the appellant (defendant).

      Robin S. Schwarts, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Patrick J. Griffin, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Carlos A. Guzman, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). On appeal, the defendant claims that the court improperly (1) submitted the BB guns at issue to the jury with suppression hearing evidence tags on them, (2) limited the scope of his closing argument by precluding him from arguing whether a BB gun was a weapon or a deadly weapon under General Statutes § 53a-3 (6), and (3) reconstituted the jury by (a) dismissing juror K and (b) failing to remove juror M. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 30, 2004, between 2 and 2:30 a.m., Joseph Vega was wandering around Cherry Street in Waterbury, at which time Pablo Texidor, an acquaintance of Vega’s, drove up in his light blue-gray Nissan. While Vega was telling Texidor that he was attempting to find some drugs, the defendant walked out of the building where he lived on Cherry Street. The defendant was Vega’s former neighbor and friend, and he was also acquainted with Texidor. At this point, the three men decided that, because none of them had money and all of them wanted drugs, they would rob a drug dealer. Texidor agreed to drive the men in his car, and the defendant agreed to use his BB gun, which he retrieved from his apartment after the men had formulated a plan, to intimidate the victims and to prevent a struggle.

The three men then got into the car and headed out to accomplish their plan. First, they stopped at the home of the defendant’s cousin so the defendant could retrieve a second BB gun. After retrieving the second BB gun, the three men headed to the “drug spot” on Glenridge Street in Waterbury. When they arrived at Glenridge Street, Texidor remained with the parked car while the defendant and Vega walked to the “drug spot. ” The defendant and Vega approached a group of people who directed them to a man standing nearby, whom they referred to as “New York,” who later was identified as Jesse Brown. Brown told the defendant and Vega that he had no drugs and that they should return in five or ten minutes. After walking back to the car and reporting what had happened, Texidor suggested that they rob Brown of his money and not wait for more drugs to arrive. As a result, the three men returned to the “drug spot” to implement the new plan. This time, all three men got out of the car, but only the defendant and Vega were brandishing guns. They approached a group of people, which included Brown and the other people they had approached initially. Both the defendant and Vega, armed with their BB guns, demanded that the individuals give them their money. Vega decided to rip the gold chains from the neck of a female in the group. The robbery was accomplished quickly, and then the three men got back into Texidor’s car and drove to Cherry Street, where they dropped off the defendant. Texidor and Vega continued to drive around.

Subsequently, two Waterbury police officers on patrol saw Texidor’s vehicle traveling at a high rate of speed and stopped it. Both Vega and Texidor were arrested on charges of possession of drugs and drug paraphernalia. Meanwhile, Kimberly Larson, the woman whose gold chains were stolen by Vega, had called the police to report the robbery and had provided the police officers with a description of the vehicle used in the robbery. Subsequently, Larson was taken to the place where the officers were holding Texidor and Vega. She identified them as participants in the robbery. Vega subsequently cooperated with the police investigation and confessed to having planned and carried out the robbery with Texidor and the defendant. As a result, the defendant was arrested.

The defendant was charged with two counts of robbery in the first degree in violation of § 53a-134 (a) (2). After a jury trial, the defendant was convicted of count one but found not guilty on count two. On March 22, 2006, the court imposed a total effective sentence of thirteen years incarceration, with a mandatory minimum of five years, followed by four years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court improperly submitted the BB guns to the jury with suppression hearing tags on them. We do not agree.

The following additional procedural and factual history is necessary for our review of the defendant’s claim. On December 16, 2005, the defendant filed a motion to suppress the BB guns, which the court denied on January 5, 2006, after a hearing. At the hearing, the BB guns, along with several photographs taken of them, were introduced as full exhibits. As a result, each gun was marked with an exhibit sticker, which was placed on the evidence bag containing each gun. Subsequently, the BB guns were introduced as full exhibits at the defendant’s trial. Again, each gun was marked with an exhibit sticker. Because the motion to suppress stickers had not been removed from the bags containing the guns, there were two stickers on the bags after the BB guns were introduced at trial.

Prior to jury deliberations, the court gave counsel the opportunity to review the exhibits that were going to be submitted to the jury in the deliberation room. At that point, the defendant objected to the jury’s being able to view the BB guns with the motion to suppress stickers still attached to the evidence bags. The defendant asked if the court could “obscure the sticker that says suppression . ...” In support of his objection, the defendant stated that the jury would receive “evidence that indicates that . . . there was a motion to suppress [the BB guns] and that the court obviously denied that motion and allowed it into evidence, which . . . suggests that the court in some way is . . . sanctioning the validity of the evidence .... Remember, we have two different versions; they might try to figure that out.” In response, the court denied the request, stating that “to the extent that there are appellate issues raised with respect to the suppression hearing and suppression motion, those exhibits need to be identified as they were at the suppression hearing. So, we certainly can’t permanently obscure them.” Furthermore, the court stated that “[c]ertainly, the jury is aware that there were prior days of testimony that they were not privy to. I’ve given them plenty of instructions that they are to admit only evidence properly admitted in the case. I have expressed my opinion to them that I have no opinion as to the outcome of the case. So, I think they need to stay as they’ve been marked.”

On appeal, the defendant argues that his right to a fair trial by an impartial jury was violated when the court improperly submitted the BB guns to the jury with motion to suppress stickers affixed to the evidence bags containing the guns. He claims that the jury was free to consider the suppression hearing stickers, which signified that the defendant had attempted to exclude the BB guns from evidence. Therefore, he argues, “the jury was free to infer consciousness of guilt based on the defense efforts to suppress the weapons.” The defendant asserts that “[t]he issue is whether the jury received and relied upon the improper signals that the evidence stickers and the court’s instruction on consciousness of guilt conveyed: that the defendant evinced a consciousness of guilt when he moved to suppress the BB guns, that the trial court did not agree with the defendant’s motion to suppress and that the jury could consider the court’s denial of the defendant’s motion to suppress as evidence.”

The defendant did not preserve the consciousness of guilt claim at trial. His objection included only the argument that admitting the BB guns with the motion to suppress stickers affixed to them would suggest that the court was sanctioning the validity of the evidence. Our Supreme Court has stated: “The standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 645, 945 A.2d 449 (2008).

Because the defendant did not preserve this issue at trial, he requests review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40.

The state contends that the defendant’s claim is evidentiary rather than constitutional in nature. We agree. In essence, the defendant is arguing that the jury was permitted improperly to consider certain evidence during its deliberations as evidence of his consciousness of guilt. “It has . . . been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under [Golding].” (Internal quotation marks omitted.) State v. Camera, 81 Conn. App. 175, 188, 839 A.2d 613, cert. denied, 268 Conn. 910, 845 A.2d 412 (2004). The defendant’s claim regarding the court’s admission of the BB guns with the motion to suppress stickers affixed to them pertained to consciousness of guilt. Accordingly, the defendant’s claim, here, is premised on the improper inferences the jury may have made regarding the defendant’s potential consciousness of guilt due to the presence of the evidence stickers, not on the partiality of the jury.

Because the defendant’s claim is evidentiary in nature, we decline to afford it review. “Evidentiary claims do not merit review pursuant to State v. Golding, [supra, 213 Conn. 239-40], because they are not of constitutional magnitude. [R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” (Internal quotation marks omitted.) State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).

II

Next, the defendant claims that the court improperly limited the scope of his closing argument by precluding him from arguing whether a BB gun was a weapon and thereby establishing that it was not a deadly weapon under § 53a-3 (6). We disagree.

The following additional facts and procedural history are necessary for our discussion of the defendant’s claim. The defendant was convicted of violating § 53a-134 (a) (2), which requires that he be armed with a “deadly weapon” while committing the robbery or in the immediate flight therefrom. See footnote 2. A “deadly weapon” is defined by statute as “any weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles. ...” General Statutes § 53a-3 (6).

After the state presented its case, the defendant made a motion for a judgment of acquittal. One of the grounds for his motion was that the BB guns are not “deadly weapons” under § 53a-134 (a) (2) because they are not “weapons” in that a BB gun is “not an instrument of offensive or defensive combat, something to fight with.” In denying the defendant’s motion, the court held: “State’s exhibit number ten is an operable weapon in that when you insert it—a [carbon dioxide] cartridge and a BB—it is capable of being fired, and that is the key language under the statute in accordance with State v. Hardy, 278 Conn. 113, 896 A.2d 755 (2006). As to [defense counsel’s] argument that it is not a weapon at all, although that argument was not explicitly addressed by Hardy, the court finds that it meets the definition of a weapon under the statutes .... As a matter of plain meaning and common sense, I think that this is an item which . . . meets the ordinary definition of a weapon.”

Prior to closing arguments, the defendant discussed with the court what, exactly, he would be able to argue with respect to the BB guns. The following colloquy occurred:

“[Defense Counsel]: Well, just to clarify. May I argue whether it is a weapon or not?
“The Court: No. Again, my ruling was that it qualified as a weapon as a matter of law, and that is—that’s my ruling. So, as a factual matter, you cannot argue that it’s not a weapon.
“[Defense Counsel]: I cannot argue that the BB gun is not a weapon, and I cannot argue that it was incapable of firing a shot because it had no [carbon dioxide] cartridge or BBs?
“The Court: I’m not saying you can’t argue that it was inoperable.
“[Defense Counsel]: I know.
“The Court: You can . . . argue that they should disregard Officer [Joseph] Rainone’s testimony. What you can’t argue is that any inoperability that did exist, if it did exist, was by virtue of the fact of a lack of a [carbon dioxide] cartridge.
“[Defense Counsel]: And, just to clarify, a BB gun automatically is a weapon?
“The Court: A BB gun as a matter of law is a weapon.”

Prior to examining the defendant’s claim, we set forth the applicable standard of review. “[T]he scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations. ... It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations.” (Internal quotation marks omitted.) State v. Mungroo, 104 Conn. App. 668, 676-77, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).

The defendant argues that when the court held that the BB gun in evidence was a weapon as a matter of law, “the court invaded the fact-finding province of the jury, effectively relieving the state of its burden to prove to the jury beyond a reasonable doubt that the BB gun in evidence was itself ‘designed for violence’ and therefore a ‘deadly weapon.’ ” Moreover, the defendant claims, the decisions by this court and our Supreme Court in State v. Hardy, 85 Conn. App. 708, 858 A.2d 845 (2004), aff'd, 278 Conn. 113, 896 A.2d 755 (2006), do not hold that all BB guns are, per se, weapons. The defendant claims that in barring him from arguing whether the BB gun was a weapon was effectively barring him from arguing fully that it was not a “deadly weapon” under the statute, and, therefore, the court deprived him of his right to counsel and of a determination by the jury of whether the elements of the offense had been proven beyond a reasonable doubt.

The defendant claims that the court improperly held that he was precluded from arguing in his closing argument that the BB gun at issue in the case was not a weapon and therefore not a deadly weapon, under the definition provided in § 53a-3 (6). We disagree. In State v. Hardy, supra, 278 Conn. 128, our Supreme Court concluded that “the trial court . . . reasonably could have concluded that the air pistol used by the defendant was designed for violence and was capable of causing death or serious bodily injury. Accordingly, we conclude that the air pistol was a deadly weapon.” The Supreme Court concluded that the air pistol used by the defendant in that ease was a deadly weapon, but it did not conclude that all air pistols are deadly weapons, and, therefore, it appears that whether a given air pistol is a deadly weapon under the statute is to be decided on a case-by-case basis by applying the facts of the case to the language of the statute.

In the present case, the court concluded that the BB gun in question “is an operable weapon in that when you insert it—a [carbon dioxide] cartridge and a BB— it is capable of being fired . . . .” Therefore, the court precluded the defendant from arguing whether the BB gun at issue in the case was a “weapon” pursuant to the statute. We conclude that the court properly concluded that the BB gun was a “weapon” under the statute.

In State v. Hardy, supra, 278 Conn. 113, as in the present case, the defendant was convicted of robbery in the first degree in violation of § 53a-134 (a) (2). The object, which was proven to be a “deadly weapon” by the state, in Hardy was an air pistol very similar to the BB gun at issue here. In Hardy, the air pistol used carbon dioxide as a propellant, was designed to shoot .177 caliber pellets and contained a warning label that stated, “misuse or careless use may cause serious injury or death.” (Internal quotation marks omitted.) Id., 118. In the present case, evidence was presented at trial that the gun at issue was an air gun, which used a carbon dioxide cartridge as a propellant, was designed to shoot .177 caliber BBs and contained a warning label that stated, “misuse or careless use may cause serious injury or death.” The gun therefore was virtually identical to the gun in Hardy Therefore, the court properly concluded that the BB gun at issue was a “weapon” tinder the statute. Furthermore, because whether the BB gun was a “weapon” under the statute is a question of law, which is not within the province of the jury, the court properly limited the scope of the defendant’s closing argument by precluding him from arguing that the gun was not a weapon and, therefore, was not a deadly weapon under § 53a-3 (6).

Ill

Finally, the defendant claims that the court improperly reconstituted the jury by (1) dismissing juror K and (2) failing to remove juror M. Specifically, the defendant claims that by improperly dismissing K and failing to remove M, the court violated his “constitutional right to a fair trial before a jury drawn from a fair cross section of the community . . . .” We disagree.

The following factual and procedural history is relevant to the disposition of the defendant’s claim. After several days of jury selection, a jury of six and two alternates was selected for the defendant’s trial. Prior to the commencement of evidence, however, an alternate juror requested to be released from service due to a change in circumstances with respect to his employment. Neither the state nor the defendant objected to this juror’s being excused for cause, and the court subsequently excused the juror for cause. The court decided not to pick another alternate, and the proceedings then continued with the jury of six and only one alternate. At the close of evidence, on January 13, 2006, the case was submitted to the jury for deliberation. On that same day, two regular jurors, M and K, requested to be released from deliberations. M was the first to request to be released. The court brought M before it, and she explained that she wanted to be released because the deliberative process was being dominated by one person, she could not “get a word in edgewise” and, therefore, she no longer wanted to be a part of the process. Finally, M acknowledged that her feelings regarding her frustrations with the deliberative process were impacting her ability to be a fair and impartial juror. At this point, the court excused M from the courtroom and solicited comments from both the state and the defendant regarding the disclosures made by M. The state suggested that the court inquire further of M whether she thought she would be able to participate fully in deliberations. The defendant, on the other hand, suggested that the court speak to the jury as a whole and advise it to allow every juror to speak and to respect the opinions of others. The court then brought M back into the courtroom and asked her if she could be a fair and impartial juror if the dynamics of the jury changed, to which M responded, “I don’t believe so.”

At that point, the court asked M to return to the jury deliberation room and then took a brief recess. Upon returning from a short recess, the court relayed to counsel that it had received a note from another juror, K, requesting to speak with the court. The court brought K into court and questioned him. K reminded the court that during jury selection he had revealed that he had a nonrefundable airline ticket for January 17, 2006, to fly to a nonrefundable business conference, which included seminars regarding his profession. K stated that being prevented from taking this business trip would present a financial hardship in that he would lose the money he had paid for the airline ticket, the first night of his hotel stay, the seminars and the registration fee for the conference. K also noted that the financial losses from missing this business trip would compound the financial losses he had suffered already due to having served on the jury to that point. K stated that the time constraints and financial pressures would not affect his deliberations, but he admitted that he had told other jurors that he had an upcoming trip and had hoped to be finished in time for his trip. Nevertheless, when asked by the court how much of a hardship this situation would be for him, K answered, “[t]his would be huge. It would be very big.”

The court asked K to go out to the hallway and proceeded to speak to counsel. Both the state and the defendant asked the court not to release K. The defendant noted that K did not indicate that it truly would be a financial hardship for him to miss his business trip. Additionally, both the state and the defendant agreed that K did not state that it would affect his ability to be fair and impartial if he were to remain. After a brief recess, the court stated that it was going to release K from jury service, stating, “I am going to excuse [K] from this case. I believe that it is unfair to him under these circumstances, particularly where he apprised the court during . . . voir dire. I heard from him that it would be a hardship to him, both financially and for his business in the long term, and I think it’s unfair to force him to miss this trip. The trip is too long to put off jury deliberations. He’s not going to be back for over a week, so I am going to excuse him from service.” K then was excused, and M was brought into the courtroom. The court informed M that it had excused K and then asked if she would be able to participate fairly and impartially in jury deliberations with the new jury, which would include the alternate, and if the court were to direct the jury to begin deliberations anew and to deliberate respectfully. M responded in the affirmative, stating, “Your Honor, to be truthful, I believe I could, okay? . . . And I understand exactly what you’re saying, I understand wholeheartedly. If I come back Tuesday and, you know, you go over everything and we start fresh, okay. I don’t have a problem with that.” At that point, court was adjourned for the day with no further comment from the state or the defendant.

Prior to examining these claims, we set forth the applicable standard of review. “A court may excuse a regular juror if that juror, for any reason, becomes unable to perform his or her duty. General Statutes § 54-82h (c). The power to excuse a juror under this section is expressly premised on a finding of cause. . . . Whether in the circumstances just cause exists to excuse a juror is a matter within the discretion of the . . . court.” (Citation omitted; internal quotation marks omitted.) State v. Walton, 41 Conn. App. 831, 840, 678 A.2d 986 (1996).

A

The defendant claims that the court improperly dismissed K for cause. He claims that a juror must show more than a minor financial hardship to be excused from finishing jury service once a jury has commenced deliberation. The defendant cites § 54-82h (c) for the proposition that a court may excuse a deliberating juror only if he is “unable to further perform . . . .” General Statutes § 54-82h (c). He further argues that there was no evidence on the record to suggest that K’s missing his business trip would have presented an unusual hardship, and, therefore, the court abused its discretion in dismissing K.

It has long been established that a court properly may excuse a juror from further service on a jury where that service would constitute “an undue financial hardship.” Thiel v. Southern Pacific Co., 328 U.S. 217, 224, 66 S. Ct. 984, 90 L. Ed. 1181 (1946). The United States Supreme Court has held that “[jury service] is a duty that cannot be shirked on a plea of inconvenience or decreased earning power. Only when the financial embarrassment is such as to impose a real burden and hardship does a valid excuse of this nature appear.” Id. In the present case, the court thoroughly questioned K regarding the financial implications that missing his previously scheduled, nonrefundable business trip would have on him and his business. K stated that he would stand to lose a significant amount of money if he were not to attend his business trip in that he would lose the money he had paid for the airline ticket, the first night of his hotel stay, the conference registration fee and the seminars. Additionally, K stated that the financial loss from missing his trip would compound the financial losses he had suffered already as a result of having served on the jury. As a result, the court found that it would be a hardship to K “both financially and for his business in the long term” to have to miss his business trip. We conclude that the court did not abuse its discretion in dismissing K, as it made a sufficient inquiry into the situation and made a decision that was based on the ample evidence that was before the court.

B

The defendant also claims that the court improperly retained M after she had disclosed that she did not believe she could be a fair and impartial juror as a result of difficulties in participating in the deliberative process. We disagree.

The defendant failed to preserve his claim at trial and, therefore, seeks review under both State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. See Practice Book § 60-5. The record is adequate to review the claim, and the defendant’s claim is of constitutional magnitude, as it alleges the violation of the constitutional right to a trial by jury. Nevertheless, we conclude that the court did not abuse its discretion in failing to dismiss M, and, therefore, no constitutional violation existed, and the defendant was not deprived of a fair trial.

M sent a note to the court, asking to be excused from her jury service. In response, the court questioned her as to why. After explaining her reasoning, M concluded that she thought her difficulties with the deliberative process were having an impact on her ability to be a fair and impartial juror. In questioning M for the second time, the court asked M if she thought that she could be a fair and impartial juror if the dynamics of the jury were changed and she had an opportunity to be heard. In response, M answered that she did not think that she could be fair and impartial even if the dynamics were to change. The third time the court questioned M, it asked her if she thought that she could participate in deliberations fairly and impartially if the court instructed the jury that it was to begin deliberating anew with the alternate juror replacing K and that it was to respect each others’ opinions. In response, M stated that she believed that she could be fair and impartial, that she understood what the court was stating and that she did not have a problem with commencing the deliberations anew.

The defendant argues that “[i]t is improper for a judge to rehabilitate a sitting juror who has strongly indicated that she has lost her ability to fulfill her juror’s oath.” In support of this contention, the defendant cites United States v. Thompson, 744 F.2d 1065, 1068 (4th Cir. 1984), a decision of the United States Court of Appeals for the Fourth Circuit in which the court held that the trial court abused its discretion “in proceeding with the trial after [a juror] gave an equivocal response to repeated questions about his ability to proceed with an open mind.” In Thompson, the court held that the trial court should have asked for an affirmative response from the juror prior to proceeding. Id. Not only is Thompson nonbinding authority, but it is also not helpful to the defendant. In the present case, the court did seek an affirmative response from M as to whether she could be fair and impartial prior to continuing the proceedings. Only after obtaining an affirmative answer from M did the court decide to retain M and to continue the proceedings. The court properly and successfully rehabilitated M, and we therefore conclude that the court did not abuse its discretion in retaining her.

The defendant also seeks review under the plain error doctrine, which has been codified in Practice Book § 60-5. Specifically, the defendant claims that the court committed plain error because the retaining of M deprived him of his' sixth amendment right to a fair and impartial jury trial. We conclude that the retaining of M did not constitute plain error.

“The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. LaBrec, 270 Conn. 548, 559, 854 A.2d 1 (2004). In the present case, we perceive no impropriety that would rise to the level of “manifest injustice.” The court properly retained M after successfully rehabilitating her. This action by the court did not create an “extraordinary [situation] . . . that . . . affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id., 560.

The judgment is affirmed.

In this opinion the other judges concurred.

       To protect the privacy of the jurors, we refer to them by initial. See State v. Newsome, 238 Conn. 588, 624 n.12, 682 A.2d 972 (1996).

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .” Count one pertained to the robbery of Larson, and count two pertained to the robbery of Brown.

       At trial, Rainone, a Waterbury police officer and supervisor of the Waterbury crime laboratory, testified that he had test fired state’s exhibit ten, which was one of the BB guns, into a metal garbage can. After he inserted a [carbon dioxide] cartridge and BBs into the gun, it successfully fired. Both the prosecutor and the defense attorney were present for the test firing of the BB gun. Rainone testified that this BB gun was operable. Rainone also testified that state’s exhibit nine, which was the other BB gun, was inoperable because it was missing several parts.

       The court specifically stated that the defendant could argue to the jury that the gun was inoperable. The state was required to prove the operability of the gun, and, therefore, the inoperability of the gun would have foreclosed the state from achieving a conviction under § 53a-134 (a) (2). See State v. Osman, 21 Conn. App. 299, 307 n.3, 573 A.2d 743 (1990), rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991).

       In Hardy, the court held that “if a weapon from which a shot may be discharged is designed for violence and is capable of inflicting death or serious bodily harm, it is a deadly weapon within the meaning of § 53a-3 (6) . . . State v. Hardy, supra, 278 Conn. 127-28. In the present case, as in Hardy, evidence was presented that the BB gun, if misused or used carelessly, could cause serious injury or death. Additionally, our Supreme Court held in Hardy that the air pistol was designed for violence. In the present case, the BB gun used by the defendant was virtually identical to the air pistol used by the defendant in Hardy. Therefore, as in Hardy, the court, here, properly concluded that the BB gun used by the defendant was designed for violence and was capable of causing death or serious bodily ii\juiy. See id., 121-22 n.8.

       In Hardy, the majority noted that several other jurisdictions had concluded that pellet guns were deadly weapons under their respective statutes. Two of the cases it cited included jurisdictions that had concluded that BB guns were deadly weapons under the statutes of their states. State v. Hardy, supra, 278 Conn. 122-26. Additionally, in his concurrence, Justice Borden stated, “[i]n my view a BB gun would be a deadly weapon.” (Emphasis in original.) Id., 136 (Borden, J., concurring).

       The defendant expressed a desire to select another alternate juror because he was not comfortable with the remaining alternate juror. The court, however, did not see a need for an alternate juror, given the length of the trial and, therefore, denied the defendant’s request.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    EUGENE P. MERCER v. KATISHIA COSLEY ET AL.
    (AC 28960)
    Flynn, C. X, and Beach and Dupont, Js.

      Argued June 2
    officially released September 16, 2008

      Eugene P. Mercer, pro se, the appellant (plaintiff).

      William S. Fish, Jr., with whom was Paul Guggina, for the appellees (defendants).
   Opinion

FLYNN, C. J.

The pro se plaintiff, Eugene P. Mercer, appeals from the summary judgment rendered by the trial court in favor of the defendants, Katishia Cosley, Burchell Henry, Paul Lewis and Jerry Martin and their employer, Tribune Television Company, also known as WTIC FOX-61 (collectively FOX-61), and Thomas M. O’Brien and his employer, Outlet Broadcasting, Inc., doing business as WVIT NBC-30 (collectively NBC-30). On appeal, the plaintiff claims that the court improperly (1) failed to recuse itself, sua sponte, on the basis of judicial bias and (2) rendered summary judgment in favor of the defendants on the plaintiffs libel claim. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and relevant procedural history. The plaintiff is an inmate serving a forty-five year sentence for felony murder. See State v. Mercer, 208 Conn. 52, 53-54, 544 A.2d 611 (1988). In July, 2004, the plaintiff filed an action against the state in the Superior Court, seeking treatment for physical symptoms related to acquired immune deficiency syndrome (AIDS) and claiming discrimination. In that action, the plaintiff claimed, in part, that he “has [AIDS] resultant from his [human immunodeficiency virus (HIV)] infection” and that the state had discriminated against him in denying his “request for the reasonable accommodation of testosterone gel in January, 2004, [when] the . . . request for testosterone gel was for the treatment of HIV-hypogonadism and erectile dysfunction . . . .’’He also alleged that the state “knew or should have reasonably known that the plaintiffs medical record reflects multiple instances over the course of several years concerning his decreased spontaneous erections, erectile dysfunction, decreased muscle mass and strength” and that the testosterone gel “restores sexual function, and muscle mass and strength and prevents bone loss.” The plaintiff also filed two cases with the commission on human rights and opportunities in 2004, claiming, in part, that he suffers from “Vacuolar Myelopathy, Peripheral Neuropathy and HIV-[h]ypogonadism or erectile dysfunction,” and that he “has been denied diagnosis and treatment of impotence and/or HIV-[h]ypogonadism.”

On May 25, 2005, defendants NBC-30 and FOX-61 each aired a report regarding Governor M. Jodi Rell’s order that the department of social services stop providing Viagra and other similar drugs to sexual offenders through the Medicaid program. They also discussed the plaintiffs complaints against the state during these reports.

In response, the plaintiff filed the present action against the defendants claiming, in relevant part, libel per se, pursuant to General Statutes § 52-237. The complaint alleged, inter alia: “1. The plaintiff ... is currently an inmate incarcerated at the Connecticut correctional institution—Osborne. [The] [p]laintiff files this action against the [defendants] with claims of libel per se and [other additional claims] ....

“6. . . . [The defendants] acted with actual malice and reckless disregard of the truth and negligence in their broadcast of false allegations [and] defamatory statements ....

“12. During the ten o’clock news . . . broadcast on Wednesday, May 25, 2005, [t]he defendants] . . . made individual and separate defamatory and slanderous statements [t]hat [the] plaintiff is suing . . . the [s]tate or the [department of [correction for Viagra, for treatment of [the] plaintiffs erectile dysfunction.

“13. [The] [defendants Cosley and Henry [p]ublicly disclosed during their broadcasting the plaintiffs confidential HIV-related information .... A photograph of the plaintiff was also publicly displayed during the defendant[s’] broadcast[s]. In addition to their television broadcastfs], the defendant[s] have published the defamatory and slanderous statements] through the Internet ....

“14. . . . [T]he defendant[s’] broadcast[s] [were] about or in response to Governor Jodi Rell’s order to the state [department of [s]ociai [sjervices to make sure state medical assistance programs do not cover the cost of erectile dysfunction drugs for registered sex offenders.

“15. In addition to their actual malice, defamatory and slanderous statements, the defendants placed the plaintiff in a false light as a registered sex offender and exposed the plaintiff to hatred, contempt or aversion and induced . . . unsavory opinions of the plaintiff in the minds of a substantial number of the general public and the prison community.

“16. . . . With malice in [public] broadcasting and publishing false accusations with defamatory and slanderous statements [the plaintiff] has [been] prejudiced ... in his reputation within the general public and prison community, and [the defendants have] placed the plaintiffs life ... in danger by intimidation and threat of physical harm by inmates of the prison population who perceive the plaintiff as a sex offender and/ or homosexual willing to infect other prisoners with HIV by engaging in sexual activities with the aid of [V]iagra, as well as harassment and intimidation of correctional officers.

“17. The plaintiff does not have, nor did the plaintiff ever have, any lawsuits against the state . . . for [V]iagra as a treatment for erectile dysfunction.

“18. The plaintiff is not a sex offender or a registered sex offender, and is not a recipient of any state medical assistance programs. The plaintiff is a ward of the state [department of [c]orrection and receives all medical care from the [University of Connecticut] [c]orrectional [m]anaged [c]are contract. . . .

“19. The plaintiff does have a pending lawsuit in [the] New Britain Superior Court, [Docket] No. CV-04-4000197-S against officials of the [department of correction] for discrimination based on disability . . . for their failure to diagnose and treat HIV-[h]ypogonadism and/or erectile dysfunction .... There is no allegation or request in the above mentioned complaint for [V]iagra. Rather, the treatment requested was testosterone gel and/or a urology consultation and appropriate therapy as would be prescribed by the urology consult.

“20. The plaintiff also has two pending complaints with the commission of [h]uman [r]ights and [opportunities, CHRO No. 0540397 and 0540398 against [the department of correction and the University of Connecticut Health Center/Correctional managed health care], respectively for discrimination based on disability . . . for their failure to diagnose and treat HIV-[h]ypogonadism and/or erectile dysfunction .... There is no allegation or request in the above mentioned . . . complaints] for Viagra. Rather, the treatment requested was testosterone gel and/or a urology consult.

“21. The defendants’] reckless disregard of the truth, acts and omissions in their deliberate and negligent television broadcast and [I]ntemet publication of false accusations, defamatory and slanderous statements] and their disclosure of the plaintiffs confidential HIV-related information has violated the plaintiffs right[s] . . . .” (Internal quotation marks omitted.)

The complaint went on to allege: “Third claim of relief—Title 52-237 of the Connecticut [G]eneral [Statutes—libel per se—[General Statutes §] 19a-581 . . .

“27. [The] defendants] acted with actual malice, reckless disregard [f]or the truth and negligence in their broadcast of false allegations, defamatory statements] and disclosure of the plaintiffs confidential HIV-related information, in violation of [General Statutes §§] 52-237 and 19a-581.”

The defendants filed an answer and two special defenses to the plaintiffs libel claim, namely, substantial truth and the fair reporting privilege. On September 1, 2006, the defendants filed a motion for summary judgment, which was granted by the court on June 5, 2007, after it concluded that there were no material issues of fact in dispute and that both special defenses were applicable. This appeal followed. We affirm the summary judgment of the trial court.

I

On appeal, the plaintiff claims that the trial judge improperly failed to recuse himself, sua sponte, after demonstrating judicial bias in violation of canon 3 (c) (1) of the Code of Judicial Conduct. The plaintiff argues that the judge demonstrated bias when he became the defendants’ “adviser” in drafting an order denying in part the defendants’ motion to strike, which stated, in relevant part, that if the “defendants had filed a motion for summary judgment, the decision might well have been different.” The plaintiff acknowledges that this issue was not presented to the trial court and, therefore, is unpreserved. He requests that we employ plain error review. Having reviewed the record, we are unable to find anything, “in the interests of justice”; Practice Book § 60-5; that rises to the level of plain error. Nothing in the record undermines our confidence in the court’s fact-finding process or demonstrates judicial bias.

“Ordinarily, we will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court through a motion for disqualification or a motion for mistrial. . . . Because an accusation of judicial bias or prejudice strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary ... we nonetheless have reviewed unpreserved claims of judicial bias under the plain error doctrine.” (Citations omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 523, 914 A.2d 1058 (2007). “The plain error doctrine [however] is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 239-40, 881 A.2d 160 (2005).

The standard to be employed when determining whether a judge should recuse herself or himself pursuant to canon 3 (c) is well established. “The standard ... is an objective one [meant to assess] whether [the judge] can be fair and impartial in hearing the case. . . . Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard. . . . The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question [the judge’s] . . . impartiality, on the basis of all of the circumstances.” (Internal quotation marks omitted.) Sabatasso v. Hogan, 91 Conn. App. 808, 825, 882 A.2d 719, cert. denied, 276 Conn. 923, 888 A.2d 91 (2005).

The following additional facts axe necessary to our analysis. The defendants had filed a motion to strike the plaintiffs complaint and had attached transcripts of the television reports to their motion. The plaintiff also attached exhibits to his opposition to the defendants’ motion. On May 30, 2006, the court heard argument on the defendants’ motion to strike. During the hearing, the defendants also asked the court to evaluate the difference between Viagra and testosterone gel in rendering its decision. The court explained that it thought the defendants were getting into a “speaking” motion to strike in asking the court to look beyond the pleadings. The defendants responded that, although arguable, they believed it was appropriate for the court to review the transcripts in this case and . to make a judgment concerning the use of the two medications. The defendants also argued that if the court took these things into consideration, it would find that their broadcast substantially was true but that if it did not make such a finding, they “certainly [would] be raising this again on a motion for summary judgment . . . .”

In an August 2, 2006 order, the court granted the motion to strike in part and denied it in part. Specifically, the memorandum of decision stated: “The court cannot look to facts—even uncontested facts—outside the allegations of the complaint as a basis for granting a motion to strike. [The] plaintiff has set forth sufficient factual allegations in these counts to state viable causes of action against the defendants. If [the] defendants had filed a motion for summary judgment, the decision might well have been different.”

In the claim of judicial bias, the plaintiff argues in effect that the court’s remark affected the defendants’ handling of the case and, perhaps, instigated their filing of their motion for summary judgment. Having reviewed the record, we conclude that the statements contained in the court’s order merely served to explain the basis for the court’s ruling and that they were not demonstrative of any bias. The court merely was pointing out the difference between a motion for summary judgment and a motion to strike in terms of the ability to look at exhibits and information outside allegations of the complaint. Unlike a motion for summary judgment, “a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . .” (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). Furthermore, the transcript from the May 30,2006 hearing, three months before the court issued its ruling, revealed the defendants’ statement that they would file a motion for summary judgment if the court denied in part the motion to strike.

Our thorough review of the record does not reveal anything that leads us to question the judge’s impartiality in this case. Further, the plaintiff has not demonstrated that he suffered manifest injustice such that would warrant a finding of plain error.

II

The plaintiff next claims that the court’s rendering of summary judgment on his claim of libel was improper because there existed disputed material facts related to the defendants’ special defenses asserting substantial truth and the protection of the fair reporting privilege. We affirm the court’s granting of summary judgment on the ground that the news broadcasts were true either substantially or literally. After setting forth the applicable standard of review and the law on defamation and libel, in particular, we will address the court’s granting of the motion for summary judgment on the plaintiffs claim. First, however, we briefly digress in order to note that the plaintiff repeatedly throughout his complaint states that his claim sounds in libel per se. To recover on a claim that the libel was actionable per se, a plaintiff must show that the libel, on its face, either charged some impropriety in the plaintiffs business or profession or that it charged a crime of moral turpitude. See Miles v. Perry, 11 Conn. App. 584, 601-602, 529 A.2d 199 (1987). Neither the parties nor the trial court discussed this aspect of the plaintiffs complaint. Likewise, the parties have not raised this as an issue on appeal. Accordingly, we do not consider whether the news broadcasts were actionable as per se libel.

“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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Reardon v. Windswept Farm, LLC, 280 Conn. 153, 158, 905 A.2d 1156 (2006).

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of amotion for summary judgment].” (Internal quotation marks omitted.) Gould v. Mellick & Sexton, 263 Conn. 140, 151, 819 A.2d 216 (2003). “A defendant’s motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Brunswick v. Safeco Ins. Co., 48 Conn. App. 699, 704, 711 A.2d 1202, cert. denied, 247 Conn. 923, 719 A.2d 1168 (1998). Our review of the trial court’s decision to grant the defendants’ motion for summary judgment is plenary. See Reardon v. Windswept Farm, LLC, supra, 280 Conn. 158.

The plaintiff claims that the court improperly granted the defendants’ motion for summary judgment on his libel count. “A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. ... To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement.” (Internal quotation marks omitted.) Hopkins v. O’Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007).

“Defamation is comprised of the torts of libel and slander. . . . Slander is oral defamation. . . . Libel ... is written defamation.” (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 850, 863 A.2d 735 (2005). It has been held by our Supreme Court that “reading from a prepared manuscript in a radio address constitutes libel, even though the result is the spoken word, as the words have been reduced to permanent form in the manuscript.” D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 146, p. 407, citing Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A.2d 440 (1955). In this case, involving televised news broadcasts, which certainly are reduced to permanent form in this day and age, we conclude that a claim of defamation properly could sound in libel as the plaintiff had alleged in his complaint. We continue our analysis by examining separately the content of both broadcasts.

A

Broadcast of FOX-61

A transcript of a May 25,2005 FOX-61 news broadcast was submitted to the trial court along with an affidavit attesting that it was a true, accurate and complete transcript of the relevant broadcast that forms the basis of the plaintiffs claim against Fox-61. The transcript is as follows:

“Unidentified woman: It’s a complete outrage. It’s like giving a loaded gun to a murderer.
“Caption: ‘Drug Dispute’
“Brent Hardin (Anchor): A drug dispute here in Connecticut and across the country. Should taxpayers foot the bill for impotence drugs to sex offenders? Governor [M.] Jodi Rell says no, and she’s trying to make sure Connecticut taxpayers don’t have to pick up the tab for inmates in our prisons.
“Susan Christensen (Anchor): The federal government reports more than 400 convicted sex offenders in New York and Florida got impotence drugs through federally or state-funded healthcare programs. Today Governor Rell ordered the department of social services to come up with a plan to prevent that happening here. Fox-6 l’s Katishia Cosley joins us live with more on how at least one convicted felon is trying to fight this. Katishia?
“Katishia Cosley (Reporter): This ban isn’t only for registered sex offenders, but also for all inmates. The attorney general’s office received a lawsuit from a convicted murderer who wants access to these drugs.
[Begin prerecorded segment]
“Katishia Cosley: Forty-two year old Eugene Mercer, an inmate at the Osborne Correctional Facility for the last twenty years, is suing the medical services director for denying him erectile dysfunction drugs. He claims he has AIDS, which, he says, is a disability. He argues that is why he should get the drugs. Attorney General Richard Blumenthal disagrees and says his office is moving to immediately dismiss the case.
“Richard Blumenthal: The claim here is a constitutional right to this medication. We believe there is no right for someone in prison to receive these kinds of prescription drugs.
“Katishia Cosley: Earlier this week, the centers for Medicare and Medicaid Services started notifying all fifty states that they don’t have to offer Medicaid-funded Viagra or similar drugs to sex offenders.
“[Governor M.] Jodi Rell: This is like, hello, it’s common sense, you know. We don’t give Viagra to sex offenders, and, when the federal rules allowed that we can simply eliminate them from the Medicaid, I think it makes good sense to do so.
“Katishia Cosley: Here in Connecticut, seven different erectile dysfunction medications are covered with a doctor’s prescription for clients of Connecticut’s Medicaid, ConnPace and state administered general assistance programs. Governor Rell doesn’t know how many inmates or sex offenders are using the impotence drugs. The state doesn’t have the capability to cross-check clients with the sex offender registry, but they are working on it.
“Richard Blumenthal: We’re making progress in shutting down the system so far as it’s been providing these drugs or reimbursement for them to people receiving Medicare and Medicaid, and, certainly, we will stop for any inmates that may be receiving them.
[End prerecorded segment]
“Katishia Cosley: Governor Rell has already ordered the department of social services to stop giving prescriptions to inmates or registered sex offenders. Those agencies that do not comply will face penalties. I’m Katishia Cosley, Fox-61 News at 10.”

The plaintiff claims that the court improperly rendered summaiy judgment on the ground that this report was substantially true. He argues that FOX-61’s report was not substantially true because “it erroneously reported that the plaintiff is seeking erectile dysfunction drugs in his suit against the department of correction” and that, accordingly, summary judgment on behalf of the defendants was inappropriate. We disagree.

The relevant portion of FOX-61’s broadcast stated that “[f]orty-two year old Eugene Mercer, an inmate at the Osborne Correctional Facility for the last twenty years, is suing the medical services director for denying him erectile dysfunction drugs.” Along with the plaintiffs opposition to FOX-61’s motion for summary judgment, the plaintiff submitted an affidavit and supporting documents. One of those documents was a copy of his July 13, 2004 complaint against, inter alia, Edward A. Blanchette, whom the complaint listed as the department of correction director of clinical services. In that 2004 complaint, which the plaintiff averred was docket number CV-04-4000197-S, the plaintiff alleged, among other things, that the state had discriminated against him in denying his “request for . . . testosterone gel in January, 2004, [when] the . . . request for testosterone gel was for the treatment of HIV-hypogonadism and erectile dysfunction . . . .” (Emphasis added.) The 2004 complaint also alleged that the state “knew or should have reasonably known that the plaintiffs medical record reflects multiple instances over the course of several years concerning his decreased spontaneous erections, erectile dysfunction, decreased muscle mass and strength . . . .” (Emphasis added.)

Looking to the plain language on the face of the plaintiffs 2004 complaint, it is clear that he alleged that the department of correction’s director of clinical services, as well as others, was discriminating against him by denying his request for testosterone gel for the treatment of erectile dysfunction and other symptoms related to HIV and AIDS. Additionally, in the complaint in the present action, the plaintiff admitted in paragraph nineteen: “The plaintiff does have a pending lawsuit in [the] New Britain Superior Court, [Docket] No. CV-04-4000197-S against officials of the [department of correction] for discrimination based on disability ... for their failure to diagnose and treat HIV-[h]ypogonadism and/or erectile dysfunction . . . .”

“[T]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader. ... A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. . . . Solomon v. Connecticut Medical Examining Board, 85 Conn. App. 854, 866, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005); see also 71 C.J.S. 246, [Pleading] § 196 [2000] (admission in a plea or answer is binding on the party making it, and may be viewed as a conclusive or judicial admission). It is axiomatic that the parties are bound by their pleadings.” (Internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 769, 890 A.2d 645 (2006). “The most persuasive evidence that a [purportedly libelous] statement is accurate is the existence of a public record confirming the information reported.” B. Sanford, Libel and Privacy (2d Ed. Sup. 1998) § 6.4.3.1, p. 6-46. On the basis of the record before us, we conclude that not only were FOX-6 l’s statements substantially true, they literally were true when viewed in combination with the plaintiffs pleadings, which he had put in the public domain. Truth is an absolute defense to an allegation of libel. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112, 448 A.2d 1317 (1982).

B

Broadcast of NBC-30

A transcript of a May 25,2005 NBC-30 news broadcast was submitted to the trial court along with an affidavit attesting that it was a true, accurate and complete transcript of the relevant broadcast that forms the basis of the plaintiffs claim against NBC-30. That transcript is as follows:

“Logan [Byrnes]: Governor Rell says enough is enough! She doesn’t want one more sex offender getting prescription drugs like Viagra, especially when the state is footing the bill. NBC-30’s Doug Greene is here with more. Doug?
“Doug [Greene]: Governor Rell yesterday ordered the department of social services to stop providing Viagra and company to sex offenders on Medicaid. . . .
“[Governor] Rell: I believe that it is off the table, and this is like, hello? It’s common sense. We don’t give Viagra to sex offenders. Somehow, someone in the Medicaid program back in 1998 thought these little blue pills should be just like any other medication—available without a prescription.
“Amanda Pepin: I think that’s disgusting, pretty much. I don’t know why the government should be giving people Viagra.
“Tim Adkins: I just thought it was absurd, I mean why would they give sexual offenders Viagra? What would be the point for them to get more . . . more . . . healthy?
“Stephen Schiopucie: I thought it was ridiculous, completely ridiculous. No medicinal value.
“Lauren Wiser: I think it’s inappropriate. I don’t think they should be given Viagra. Actually, there’s another side. This convicted sex offender wrote this book about inner battle against sexual terrorism. But he says, once an offender has served his time . . . [quote from Jake Goldenflame:] ‘I think anybody who’s completed their parole or probation successfully should have the right to the medications like anybody else upon their doctor’s recommendation.’ But in Connecticut from now on, the only way convicted sex offenders can get Viagra is to pay for it themselves. When the federal rules allowed that we can simply eliminate that from Medicaid, I think it makes good sense to do so. You’ve told [the department of social services] not to do it anymore? Not to do it anymore.
“Doug [Greene]: On another front, there is a prison inmate, Eugene Mercer, who is suing the state. He’s not a sex offender. He’s a convicted killer. But he wants his Viagra, and the state doesn’t buy it for inmates.”

The plaintiff claims that the court improperly rendered summary judgment on the ground that this report was substantially true. He argues that there existed material issues of fact in dispute and that the court improperly weighed those facts when it found that the distinction between Viagra and testosterone gel “is a distinction without substantial difference.” He further argues that “Viagra versus testosterone gel presents a triable issue of fact .... The pleaded truth of [the] plaintiffs [complaint against the state] is that [the] plaintiff sought testosterone gel (an anabolic steroid) to treat HIV-hypogonadism, the symptoms of which include erectile dysfunction. The plaintiff did not seek Viagra or other impotence drugs as reported by the defendants.”

Although “the determination of whether an allegedly libelous statement is substantially true [can be] one for the jury . . . both the common law and the First Amendment [to the United States constitution] submit the issue to ‘close scrutiny’ when appropriate. Summary judgment, therefore is often granted to defendants on the issue of substantial truth.” B. Sanford, Libel and Privacy § 6.4.1 (2d Ed. Sup. 2007), pp. 6-26 through 6-27. “[W]here minor inaccuracies [are] immaterial to the ‘sting’ or harm suffered by the plaintiff . . . [or] where the inaccuracies [are] of a technical nature that conveyed the same meaning as the true facts would have in the eyes of the average reader,” summary judgment may be appropriate. Id., § 6.4.2, p. 6-39.

“In a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense. . . . Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modem rule is that only substantial tmth need be shown to constitute the justification. ... It is not necessary for the defendant to prove the tmth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is tme, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable. . . . The issue is whether the libel, as published, would have a different effect on the reader than the pleaded tmth would have produced.” (Citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 112-13.

Clearly, the portion of the NBC-30 report that is relevant to the plaintiffs claim of libel would be the very last portion, which stated: “On another front, there is a prison inmate, Eugene Mercer, who is suing the state. He’s not a sex offender. He’s a convicted killer. But he wants his Viagra, and the state doesn’t buy it for inmates.” The plaintiff argues that he never requested Viagra and that this part of the broadcast “would have a different effect on the reader than the pleaded tmth would have produced.” See Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 113. His argument is that he requested testosterone gel, not Viagra, and, had NBC-30 correctly reported that fact, the effect on the listener would have been different. Additionally, he argues that the court improperly rendered summary judgment when it determined that there was no substantive difference between Viagra and testosterone gel.

Although we agree, and NBC-30 concedes, that there is no evidence that the plaintiff ever sought Viagra, we conclude that the plaintiff clearly pleaded that one of the purposes for seeking testosterone gel was for the treatment of erectile dysfunction. Accordingly, had the report said: “But he wants his testosterone gel,” or, “But he wants his erectile dysfunction medication,” instead of, “But he wants his Viagra,” it would not have had a different effect on the reader or listener. See Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 319-22, 477 A.2d 1005 (1984).

In conclusion, we affirm the court’s rendering of summary judgment. On the basis of the record, including the plaintiffs pleadings and the documentary evidence submitted with his affidavit in opposition to the defendants’ motion for summary judgment, we conclude that the statements were true, either substantially or literally. Having so concluded, we need not address whether the defendants’ broadcasts were protected by the fair reporting privilege.

The judgment is affirmed.

In this opinion the other judges concurred.

       A copy of this complaint and the cases filed with the commission on human rights and opportunities is contained in the court’s file. The plaintiff filed these copies along with an affidavit attesting to their truth, accuracy and completeness in the trial court.

       Additional counts in the complaint are not relevant to this appeal.

       In rendering a decision on the defendants’ motion for summary judgment, the court apparently considered the plaintiffs libel count as sounding in libel per quod, rather than libel per se, as did the defendants.

       General Statutes § 52-237 provides: “In any action for a libel, the defendant may give proof of intention; and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, the plaintiff shall recover nothing but such actual damage as the plaintiff may have specially alleged and proved.”

       Canon 3 (c) (1) of the Code of Judicial Conduct “requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. . . . Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 83 Conn. App. 142, 150, 848 A.2d 1246, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004).

       “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Practice Book § 60-5.

       A speaking motion to strike is one improperly importing facts from outside the pleadings. See Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 347-48, 576 A.2d 149 (1990); Bulkley v. Norwich & W. Ry. Co., 81 Conn. 284, 286, 70 A. 1021 (1908); Zirinsky v. Zirinsky, 87 Conn. App. 257, 269 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). Speaking motions have long been forbidden by our practice and were formerly known as speaking demurrers. See, e.g., Tilo Co. v. Fishman, 164 Conn. 212, 213, 319 A.2d 409 (1972).

       This order subsequently was vacated and a new corrected order was issued on September 22, 2006. This fact, however, is not relevant to the issues on appeal.

       “Libel per se ... is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages. . . . Whether a publication is libelous per se is a question for the court.” (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 852, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003). “[LJibel is actionable per se if it charges improper conduct or lack of skill or integrity in one’s profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business. . . . Libel ... is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached.” (Citations omitted; internal quotation marks omitted.) Miles v. Perry, 11 Conn. App. 584, 601-602, 529 A.2d 199 (1987). “Whether a published article is libelous per se must be determined upon the face of the article itself. The statements contained therein, taking them in the sense in which common and reasonable minds would understand them, are determinative, and they may not for this purpose be varied or enlarged by innuendo.” (Internal quotation marks omitted.) Battista v. United Illuminating Co., 10 Conn. App. 486, 492, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987).
      Additionally, we note that the plaintiff did not claim libel by innuendo or implication in his pleading, nor is there any mention of such a theory by the trial court or in the plaintiffs brief on appeal. Reviewing the transcript from the hearing on the motion for summary judgment, however, it is clear that the plaintiff argued: “Although I did not plead any of the claims of false light and invasion of privacy or defamation by innuendo, it is not essential to the sufficiency of the complaint alleging a statutory cause of action that the precise terms of the applicable statute either be counted upon or recited .... [A]s a pro se litigant, my pleading must be construed liberally.”
      Although it is our policy to be solicitous of pro se litigants, such policy is applicable only when it does not interfere with the rights of other parties. Although our courts “allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. ” (Internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 498, 863 A.2d 680 (2005). In this case, the plaintiff did not plead defamation by innuendo, nor does the cited statute, § 52-237, speak to defamation by innuendo such that the defendants would have been aware of such a cause of action.
      “It is axiomatic that a plaintiff may rely only upon what he has alleged [and] the right of a plaintiff to recover is limited to the allegations of his complaint. . . . What is in issue is determined by the pleadings and these must be in writing. . . . [PJleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them. . . . The purpose of a complaint ... is to limit the issues at trial, and such pleadings are calculated to prevent surprise.” (Citations omitted; internal quotation marks omitted.) Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 460, 938 A.2d 1249 (2008). “A plaintiffs right to recover has traditionally been limited to the allegations of his complaint, and a plaintiff may not allege one cause of action and recover upon another.” (Emphasis added.) Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993), citing Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992), and A. V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn. App. 163, 166, 623 A.2d 1048 (1993).