author: McLACHLAN, J.

text:
    ALBEMARLE WESTON STREET, LLC v. CITY OF HARTFORD
    (AC 28125)
    DiPentima, McLachlan and Hennessy, Js.
    Argued September 10
    officially released December 11, 2007

      John Rose, Jr., corporation counsel, with whom, on the brief, was Lori Mizerak, assistant corporation counsel, for the appellant (defendant).

      Lisa Silvestri, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

In this municipal tax appeal, the defendant, the city of Hartford, appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Albemarle Weston Street, LLC, from the assessor’s interim revaluation of its property. On appeal, the defendant claims that (1) the court’s factual finding as to the use of the subject property was clearly erroneous in view of the testimony presented at trial and (2) the court improperly sustained the plaintiffs appeal because General Statutes § 12-55 (b) authorizes an interim revaluation under the circumstances of this case. We affirm the judgment of the trial court.

The following evidence was presented to the court. In February, 2005, the plaintiff acquired property at 92 Weston Street in Hartford, on which is located a single-story, multitenant commercial building. The building was constructed in 1978, contains approximately 48,000 square feet and has forty-two rental spaces with separate entrance doors and movable walls. It has electrical outlets spaced throughout in a manner to accommodate either office or warehouse use.

Pursuant to General Statutes § 12-62, the defendant engaged the services of Cole, Layer and Trumbull to collect property data in connection with its 1999 revaluation. An employee of that firm personally inspected the subject property and recorded that 30 percent of the total building area, or approximately 14,400 square feet, was allocated for use as office space and 70 percent of the total building area, or approximately 33,600 square feet, was allocated for use as warehouse space. Using that data, the assessor determined that the fair market value of the property was $1,434,600, as of October 1, 1999, with an assessed value of $1,004,220. The then owner of the property did not challenge the valuation.

The next general revaluation in Hartford was scheduled for 2003. The defendant began the process of reassessing the real estate in the city. In connection with that revaluation, the assessor mailed a letter to the owner of the subject property on December 16, 2003, indicating that the assessed value of 92 Weston Street was $1,365,630 as of October 1, 2003. The owner retained the services of an appraiser, William Karamitis, to meet with the assessor to discuss the claimed excessive valuation of the property.

At that meeting on January 5, 2004, Karamitis reviewed comparable sales from his appraisal with a staff member of the assessor’s office, Sanya Ahn, and advised her that 19,900 square feet of the building was being used as office space. Ahn recorded the information provided by Karamitis on an internal review form. Before the 2003 grand list was certified, however, the city council passed a resolution on May 24, 2004, to delay the implementation of the 2003 revaluation of all property until October 1, 2006; see General Statutes § 12-62Z; and to freeze the grand list “at its current rate” (in this instance, the 1999 assessment).

On June 4, 2004, the assessor mailed a revised notice of assessment change to the owner of 92 Weston Street, in which the assessed value of the property was determined to be $1,392,090 as of October 1, 2003. In response to the owner’s inquiry regarding the increase in its property assessment, the assessor indicated that the assessment was correct and had been changed because of “an error in the description of your property” that had been discovered in the process of gathering information for the postponed 2003 revaluation. Specifically, “[t]he original listing had 33,608 square feet of light manufacturing and 14,404 square feet of office. The corrected sizes are 4,801 [square feet] of retail, 23,526 [square feet] of warehouse and 19,685 [square feet] of office. Using the corrected] description gave the assessment of [$1,392,090].” At trial, the assessor testified that the subject property had been revalued at that time using the 1999 value levels and schedules but using the new information provided by Karamitis.

The plaintiff, which had acquired the property in February, 2005, appealed to the defendant’s board of assessment appeals, which upheld the valuation. The plaintiff then appealed from that decision to the Superior Court, claiming that the increase in the assessment was made unlawfully and constituted an ultra vires action. Following a two day trial, the court issued its memorandum of decision sustaining the plaintiffs appeal. The court found that there was “no support for the assessor’s claim that a mistake occurred in the process of the 1999 revaluation that would provide a basis for the assessor to make an interim revaluation of the subject property.” This appeal followed.

I

The defendant first claims that the court’s factual finding, i.e., that no mistake had been made in the determination of the amount of square feet used for office space when the subject property was assessed in 1999, was clearly erroneous. Specifically, the defendant argues that because Karamitis stated that 19,900 square feet in the building were utilized as office space in 2003, the court should have concluded that the same amount of space was used as office space in 1999. This conclusion must be reached, the defendant claims, because the testimony submitted at trial established that the building was the same size in 1999 and 2003, and that no building permits had been obtained to increase the amount of office space between 1999 and 2003. According to the defendant, building permits would have been required to increase the amount of office space from 14,400 square feet to 19,900 square feet. We disagree.

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn. App. 294, 301-302, 912 A.2d 1117 (2007).

From the testimony and exhibits presented at trial, the court reasonably could have concluded that subsequent events caused the use of office space to increase from 14,400 square feet to 19,900 square feet by the time the 2003 revaluation process occurred. It is undisputed that a personal inspection of the property was made in connection with the 1999 revaluation and that the inspector noted that 14,400 square feet of that building were being used as office space. Lisa Sadinsky, a member of the plaintiff limited liability company, who also was involved in the management of the commercial property, testified that the building was designed as “flex space” to accommodate changes in the tenant mix. She indicated that it was built as a “vanilla box” having “four white, plain walls” with electrical outlets spaced appropriately for office or warehouse use. Sadinsky further testified that the rental units could be converted from warehouse space to office space, without any construction, by simply adding desks and chairs and other office equipment. According to the assessor, building permits are not required if the conversion of space does not involve new construction.

From that testimony, it is evident that the court reasonably could have found that “there was insufficient evidence presented to support the [defendant’s] contention that its appraiser . . . made a mistake during its inspection of the subject property for the 1999 revaluation year. The very nature of this property is to be flexible, and it would not be unusual for there to be an increase or decrease of office, retail or warehouse spaces between the 1999 revaluation and [the] 2003 revaluation, even in the absence of building permits.” We conclude that the factual finding of the court was not clearly erroneous.

II

The defendant next claims that the court improperly sustained the plaintiffs appeal because § 12-55 (b) authorizes an interim valuation, allowing an assessor or board of assessors to equalize the assessments of properties in the municipality even when there is no mistake. At oral argument before this court, counsel for the defendant claimed that he had made a bifurcated argument at the time of trial: (1) that the interim assessment was made to correct a mistake made in the 1999 assessment relative to the amount of square feet used as office space; and (2) that § 12-55 (b) authorized the assessor to make an interim valuation, in his watchtower role, to equalize property assessments in the municipality. From a thorough review of the record, including the trial court file and posttrial briefs, we conclude that the defendant’s second issue was not distinctly raised at trial.

The operative complaint alleged that the assessor reassessed the value of the plaintiffs property without authority to do so and that the change in valuation was unlawful. By way of a special defense, the defendant claimed that the assessor “corrected the misstated market value of the property ... to reflect the additional office space valuation . . . .” The testimony of the assessor was that the 1999 assessment figure reflecting office use of 14,400 square feet was incorrect and that the correct figure should have been 19,900 square feet. Significantly, the court and counsel engaged in a colloquy and agreed that the issue to be determined was the amount of office space in the building in 1999.

The case was tried before the court on that basis. Neither the assessor nor the defendant ever claimed that the interim revaluation was made in order to equalize the assessments of property in Hartford. The entire premise of the defendant’s defense was that the assessment of the plaintiffs property was changed to reflect the corrected value of the property because the information on which the valuation had been based, 14,400 square feet of office space, was incorrect. The defendant argued that once the mistake had been discovered, it was the assessor’s duty to correct it and that he had authority to do so by the provisions of § 12-55 (b). That authority, however, was claimed to be by virtue of the statute’s reference to an omission “by mistake . . . .” General Statutes § 12-55 (b). No testimony or other evidence was presented that indicated the change was made to equalize the tax lists.

We decline, therefore, to review the claim that an interim revaluation of the plaintiffs property could be made pursuant to § 12-55 (b) in order to equalize the assessments of property in Hartford. The defendant did not present that theory to the trial court. “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one . . . .” (Citation omitted; internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 730, 930 A.2d 774 (2007). “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004) , cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005) .

The judgment is affirmed.

In this opinion the other judges concurred.

       The legislature enacted Public Acts, Spec. Sess., May, 2004, No. 04-2, § 32, effective May 12, 2004, and codified as General Statutes § 12-621, and also amended, in § 33 of the public act, General Statutes § 12-62 to provide that a municipality could postpone the 2003 revaluation.

       General Statutes § 12-621 provides in relevant part: “(a) Notwithstanding any provision of the general statutes, any municipal charter, any special act or any home rule ordinance, any municipality required to effect a revaluation of real property under section 12-62 for the 2003, 2004 or 2005 assessment year shall not be required to effect a revaluation prior to the 2006 assessment year provided any decision not to implement a revaluation pursuant to this subsection shall be approved by the legislative body of such town or, in any town where the legislative body is a town meeting, by the board of selectmen. Any required revaluation subsequent to any delayed revaluation effected pursuant to this subsection shall be effected in accordance with the provisions of said section 12-62. . . .
      “(b) The assessor or board of assessors of any municipality that elects, pursuant to subsection (a) of this section, not to implement a revaluation of real property for the 2003 assessment year shall prepare a revised grand list for said assessment year, which shall reflect the assessments of real estate according to the grand list in effect for the assessment year commencing October 1, 2002, subject only to transfers of ownership, additions for new construction and reductions for demolitions. ...”

       For the purposes of property assessment, space allocated for office use has a higher value than that allocated for warehouse use.

       General Statutes § 12-55 (b) provides in relevant part: “Prior to taking and subscribing to the oath upon the grand list, the assessor or board of assessors shall equalize the assessments of property in the town, if necessary, and make any assessment omitted by mistake or required by law. The assessor or board of assessors may increase or decrease the valuation of any property as reflected in the last-preceding grand list, or the valuation as stated in any personal property declaration or report received pursuant to this chapter. . . .”

       “We may take judicial notice of the contents of the court’s file.” (Internal quotation marks omitted.) Dockter v. Slowik, 91 Conn. App. 448, 459 n.7, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).

       The assessor testified as follows:
      “[The Plaintiffs Counsel]: Is it your position, or your opinion, that Mr. Karamitis in his statement in the meeting with Ms. Ahn, was correct in stating that there were 19,900 square feet of office?
      “[The Witness]: That’s what we relied on.
      “[The Plaintiffs Counsel]: And is it also your' position that in 1999 that figure was also the correct figure, 19,900?
      “[The Witness]: That was our opinion that we—that it was really 19,900, and we had something other than that listed, so we made the correction.
      “[The Plaintiffs Counsel]: Okay. So, is it your opinion then—that the 1999 figure of 14,000 square feet of office space was actually not correct?
      “[The Witness]: Yes.
      “[The Plaintiffs Counsel]: And it was not correct in 1999?
      “[The Witness]: That’s because we had no other building permits to show that they’ve changed it since then.
      “[The Plaintiffs Counsel]: So, other than your review of the building permits, and what was or was not in them, and other than Mr. Karamitis’ statement, did you rely on anything else in changing the assessment with regard to the amount of office space?
      “[The Witness]: No.”

       The following colloquy occurred:
      “The Court: Well, it seems that the key issue in this case is, what was the square footage of the subject property on October 1,1999? Was it 14,000 square feet or was it 19,900 square feet? That’s the issue.
      “[The Defendant’s Counsel]: I don’t disagree with that.
      “The Court: So, the question, at least, that is, in the mind of the court, is, what’s the evidence to show the property was 19,900 on October 1,1999, rather than 14,000 square feet in 1999? That seems to be the issue. Does counsel disagree?
      “[The Plaintiffs Counsel]: I don’t disagree. I maintain my objection to the—what the square footage was in 2005.”

       We recognize that an assessor, in his or her watchtower role, has the authority, pursuant to § 12-55, to make certain interim changes in the assessments of properties even absent a “mistake.” See Matzul v. Montville, 70 Conn. App. 442, 447-48, 798 A.2d 1002, cert. denied, 261 Conn. 923, 806 A.2d 1060 (2002). For the reasons outlined in this opinion, however, we do not reach the issue of whether the defendant legally could increase the assessment of the plaintiffs property to equalize tax lists in an interim valuation on the basis of an increase in office space that occurred after the 1999 assessment.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ABRAHM HANNAH
    (AC 27414)
    Flynn, C. J., and Bishop and Borden, Js.

      Argued September 6
    officially released December 11, 2007

      Robert E. Byron, special public defender, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Abrahm Hannah, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8, and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). The defendant claims that (1) the trial court improperly excluded two cellular telephone recordings concerning the credibility of a prosecutorial witness and (2) the court’s exclusion of the recordings and the court’s limiting instructions on a third recording denied him the constitutional right to present a defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 9,2003, at approximately 10 p.m., Dominique McClendon and Mercedes McClendon were sitting with Shameel Times (Wheatie) on their grandmother’s front porch at 116 Kent Street in Hartford. While they were talking, three armed men approached them. According to Mercedes McClendon, she recognized the defendant, also known as “Too Cool,” among the men because she went to school with him and he was a friend of her child’s father. One of the men, described as short with very dark skin, came onto the porch and started beating Wheatie with a gun, causing both Wheatie and Mercedes McClendon to fall to the floor. While the man continued to beat Wheatie, the gun went off, injuring Wheatie’s pinkie finger.

After the gun went off, Dominique McClendon screamed at the men not to shoot her sister, jumped over the porch banister and ran around the side of the house. One of the men chased her, grabbed her shirt and took her hat. The man then let her go and ran back around to the front of the house where he joined the other two men. Together they started shooting down the street toward Albany Avenue.

Mercedes McClendon testified that after she and Wheatie had fallen to the ground, he held on to her as a shield while she struggled to escape. She managed to pull away from Wheatie and ran to the comer of the porch. After the gun went off, the man who was beating Wheatie stopped and ran off the porch. He and the defendant ran into the street to join the third man, and they all started shooting their guns in the direction of Albany Avenue. While the shooting continued, Mercedes McClendon ran inside the house.

As the defendant and the other two men were firing their guns down Kent Street, twelve year old Martin McClendon was riding his bike up the same street toward them. Martin McClendon heard noises that he thought were firecrackers and saw some flashing lights ahead of him in the street. He kept riding and “didn’t think anything of it” because he had heard fireworks earlier in the day. Then, Martin McClendon felt something hit his right leg and thought it was a rock. He got off his bike and ran back toward Albany Avenue. As he ran, he heard “things” fly past his head and hit poles around him. He ran to Albany Avenue where he collapsed. Martin McClendon realized that the “things” flying past him were bullets when he was told that he had been shot in the leg.

At trial, Mercedes McClendon testified that although she did not know the name of the man who had beaten Wheatie at the time, it was rumored that he was called “BK.” On cross-examination, she stated that she did not know BK either before the shooting or at the time of her testimony. The defendant introduced his sole witness, Katari James, for the purpose of impeaching Mercedes McClendon’s testimony. James testified that Mercedes McClendon had sexual relations with BK in 2005 while Mercedes McClendon was living with her. James also testified that Mercedes McClendon told her that the defendant was not present during the shooting.

As part of James’ testimony, the defendant attempted to enter into evidence three short recorded segments of a single cellular telephone conversation that James had with Mercedes McClendon on September 28, 2005, one week prior to the defendant’s trial. The recordings are of statements made only by Mercedes McClendon, as James’ cellular telephone records only the caller’s side of a conversation in fifteen second increments. In an offer of proof, all three conversations were played in their entirety. The court excluded the first two recordings, but the third tape was admitted for impeachment purposes along with the following transcription: “Who? How he cover me, that don’t make no sense, because by the time BK stop beating up on Wheatie, I was already off the porch, like running up in the door, and the was all . . . .”

The defendant was convicted on all counts and sentenced to the custody of the commissioner of correction for a total effective term of seventeen years imprisonment, suspended after ten years, with five years probation and 100 hours of community service for each year of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion by excluding the first two cellular telephone recordings. The court excluded the first two recordings because they were difficult to comprehend and one-sided and because the third recording accomplished the same purpose for which the other two recordings were offered. We decline to consider whether the court acted improperly in this case because the defendant failed to preserve the recordings for our review.

The appellant bears the burden of providing this court with an adequate record of review. Practice Book § 61-10. “The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . . . Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did .... The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review.” (Internal quotation marks omitted.) Finan v. Finan, 100 Conn. App. 297, 308-309, 918 A.2d 910, cert. granted on other grounds, 282 Conn. 926, 926 A.2d 666 (2007); State v. Calderon, 82 Conn. App. 315, 327 n.7, 844 A.2d 866, cert. denied, 270 Conn. 905, 853 A.2d 523, cert. denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004).

The defendant in this case failed to have the recordings marked for identification or transcribed on the record. “The failure to mark an exhibit for identification ordinarily precludes appellate review of its exclusion .... Exceptions have been made when there exists an adequate substitute in the record for the unmarked exhibit.” (Citation omitted; internal quotation marks omitted.) Weinberg v. Weinberg, 89 Conn. App. 649, 655, 874 A.2d 321 (2005) (court’s failure to mark notes from rabbinical court for identification was harmless as ample evidence existed to resolve issues); Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 455-57, 505 A.2d 1255 (trial court did not err in refusing to mark disassembled automobile for identification as plaintiffs fifty photographs were adequate substitute), cert. denied, 200 Conn. 802, 509 A.2d 516 (1986).

Although the court held an extensive evidentiary hearing concerning the admissibility of the recordings, the content of each recording never was stated explicitly, and, in fact, there was never an agreement about what exactly was said. Furthermore, the defendant failed to request that a transcript be made of the recordings; he did not prepare a transcript of the recordings himself; he did not ask that the recordings be marked for identification; and he did not file a motion for rectification in order to correct the record. Because there is no factual record of the first two recordings, we decline to review this claim.

II

The defendant next claims that the court’s exclusion of the first two recordings and the limited admission of the third recording denied him his constitutional right to present a defense. We limit our review of this claim to the third recording because, as discussed previously, the first two recordings are not part of the record.

The following facts are relevant to the defendant’s argument. At the evidentiary hearing, the parties argued about the admissibility of the recorded portions of Mercedes McClendon’s half of the cellular telephone conversation. Regarding the third recording, the defendant argued that it should be admitted to impeach Mercedes McClendon’s testimony that she did not know BK, both at the time of the shooting and at the time of trial, and that she was still on the porch when the individual finished beating Wheatie and the shooting in the street began. The state objected to the admission of the recordings in general because (1) the language was difficult to decipher, (2) the context of the statements was vague, as only Mercedes McClendon’s half of the conversation was recorded, (3) to the extent that some statements could be deciphered, they were not inconsistent with Mercedes McClendon’s testimony, (4) it was not clear that the BK in the recording was the same BK who Mercedes McClendon referred to in her testimony and (5) the third recording was an incomplete statement.

In order to address these concerns and similar concerns raised by the court, James was questioned further about the third recording:

“The Court: Do you recall the question that you asked her or the things you said to her immediately before that statement?

“[The Witness]: Before which statement?

“The Court: The third one.

“[The Witness]: What I asked her? No. What I said was, how you know who shot little Martin? She said [because] she was off the porch, then it was like a pause. And the pause was when I was saying something. I don’t know for sure. It’s—how they put it in words, it was—she said—I said to he—no, I said what happened, how did you see who was shooting? And right when it was cut off, she was, like, and that’s when she said, I never said Too Cool was there, and, Too Cool did not shoot little Martin. They got my statements wrong.

“The Court: That’s not on the tape, correct?

“[The Witness]: Yeah. Nope. It didn’t record. It only records fifteen seconds of conversation.”

The court then made the following ruling: “I’m not going to let this tape recording in. I’m going to allow you to question her about the conversation, and, depending on the cross-examination, I may let you offer a portion of it in evidence to bolster her claim if she’s attacked on that level by the state’s attorney. But it’s apparent to me that the point that you wished to establish with respect to knowledge of BK as of the time, there is no foundation for that, either in the statements which went up to it or in her personal knowledge because she doesn’t offer any. And that was the one primary use of the actual hearing of the recording itself.”

The defendant objected to the court’s narrow interpretation of the third recording, arguing that it also contradicted Mercedes McClendon’s testimony that she was still on the porch at the time of the shooting. The court asked James to clarify exactly what she asked Mercedes McClendon that elicited the third statement:

“The Court: Was it a question about Wheatie covering her, which was the question that led to that particular answer?

“[The Witness]: It was where was—no, Wheatie was suppose to have been covering you, that’s what it was, Wheatie was suppose to have been covering you, so how did you see who was shooting. She was, like, no, by time BK finished stop beating Wheatie up, she was already off the porch.”

The court then amended its ruling to allow the third recording for the limited purpose of impeaching Mercedes McClendon’s testimony as to her knowledge of BK and where she was when the three individuals were shooting down the street.

With the jury present, James offered the following testimony. Three months after the shooting, Mercedes McClendon referenced BK in a conversation with James. In March or April, 2005, Mercedes McClendon was having a sexual relationship with BK while she was living with James. Subsequently, on September 28,2005, James spoke with Mercedes McClendon on the telephone and recorded Mercedes McClendon’s half of the conversation in fifteen second intervals. During the conversation, James asked Mercedes McClendon “what had happened, and it was said that Wheatie was covering her. So, she didn’t know who was shooting.” Mercedes McClendon responded, “Who? How he cover me, that don’t make no sense, because by the time BK stop beating up on Wheatie, I was already off the porch, like running up in the door, and the was all . ...” In addition, James testified that Mercedes McClendon stated that “she never told anybody Too Cool was there or Too Cool did any shooting” and that “the report that the attorneys have is not the report that she gave to the police stating that Too Cool was at the incident. She said she never said Too Cool was at the incident and Too Cool wasn’t there. And she said she knows BK did it and BK need to stand up to the plate and say he did it.”

The court then instructed the jury: “Ladies and gentlemen, I am going to indicate to you that the statement there that you heard, that one snippet of recorded telephone conversation, is introduced . . . for the limited purpose of indicating that it was uttered just as the other ones we talked about in the past. It was not introduced to prove the truth of its contents, the truth of what was stated in that recording. And as a matter of fact, it’s only introduced for the purpose of showing, if you find that it is so, material inconsistency between that statement and the trial testimony of Mercedes McClendon. It will be up to you to determine whether it is materially inconsistent with that testimony. It will be up to you to determine if it is, whether or not to draw an adverse inference to her credibility based upon it. . . . [A] gain, understand it is not introduced for the truth of its contents. Only to show it was uttered as a prior inconsistent statement if you so consider it on the question of credibility of Mercedes McClendon.” Both parties responded that they had nothing further, and the defendant rested.

The defendant claims that the court’s limiting instruction denied him the constitutional right to make a defense as provided for by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. See State v. Cerreta, 260 Conn. 251, 260-61, 796 A.2d 1176 (2002) (reaffirming defendant’s fundamental right to present defense). Because the defendant is claiming a constitutional error that was not preserved at trial, he seeks review in accordance with 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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id., 239-40.

The defendant’s claim passes the first prong of the Golding test. This recording was entered properly into evidence, a transcript was made of the recording and the transcript of the evidentiary hearing was submitted for this court’s review. Therefore, the record is adequate to review the claim of error.

The second prong of Golding requires that a claim be of constitutional magnitude. The defendant contends that his constitutional right to present a defense was violated solely by the court’s failure to admit the third recording substantively. Because the third recording was a hearsay statement, in order to be admitted for substantive purposes, it must fall under one of the exceptions to the hearsay rule. The defendant argues that the third recording should be admitted as a prior inconsistent statement pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). In Whelan, our Supreme Court adopted “a rale allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” Id., 753.

Our case law concerning the nature of a Whelan statement is well established; Whelan statements are evidentiary matters and not of constitutional magnitude. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991) (“court’s failure to give the requested Whelan charge was an evidentiary error that did not involve the violation of a constitutional right”); State v. Holloway, 209 Conn. 636, 649-50, 553 A.2d 166 (“[w]e do not discern the Whelan change allowing the substantive consideration of prior inconsistent statements to be a change of constitutional dimension”), cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. Holbrook, 97 Conn. App. 490, 499, 906 A.2d 4 (Whelan claim evidentiary in nature), cert. denied, 280 Conn. 935, 909 A.2d 962 (2006); State v. Daniels, 83 Conn. App. 210, 214-17, 848 A.2d 1235 (court’s exclusion of prior inconsistent statement did not preclude defendant from presenting defense and did not warrant Golding review as statement was “essentially evidentiary issue”), cert. denied, 270 Conn. 913, 853 A.2d 528 (2004); State v. Bryant, 61 Conn. App. 565, 568-71, 767 A.2d 166 (2001) (Golding review unavailable for defendant because no authority supports claim that admittance of Whelan statement is constitutional violation). Accordingly, the defendant’s claim fails to satisfy the second prong of Golding and is not reviewable.

The defendant contends, however, that even if the limiting instruction was an evidentiary ruling, it was so debilitating to his ability to present a defense that it amounted to a constitutional violation. We disagree and note that the defendant was allowed to use the third recording to impeach Mercedes McClendon’s testimony that she did not know BK and that she was present on the porch when the shooting happened in the street. Moreover, the defendant cross-examined Mercedes McClendon and further impeached her testimony through his direct examination of James. “The defendant’s sixth amendment right [to present a defense], however, does not require the trial court to forgo completely restraints on the admissibility of evidence.” (Internal quotation marks omitted.) State v. Cerreta, supra, 260 Conn. 261. “[I]t would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.” (Internal quotation marks omitted.) State v. Bryant, supra, 61 Conn. App. 571. The defendant was not denied the right to present his defense.

The judgment is affirmed.

In this opinion the other judges concurred.

       Times testified that his nickname is “Wheatie,” and he is called Wheatie throughout the trial transcript.

       As stated in part I, the court excluded the first two recordings because of questions about their reliability.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. DAVID O.

    (AC 27617)
    Bishop, Harper and Dupont, Js.

      Argued September 19
    officially released December 11, 2007

      Michael Zariphes, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, James E. Thomas, former state’s attorney, and Anne F. Mahoney, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

HARPER, J.

The defendant, David O., appeals from the judgment of conviction, rendered following a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (l). The defendant claims that prosecutorial impropriety during closing argument deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim is the defendant’s daughter and, at the time of the incident underlying this appeal, was five months old. During the morning hours of March 25, 2004, the victim’s mother, who was the defendant’s girlfriend at the time, left her residence that she shared with the defendant, the victim and others, to go to work. While caring for the victim sometime during the early afternoon, the defendant caused the victim to sustain bodily injury. The defendant did not provide any treatment for the victim or summon any medical assistance on her behalf. When the victim’s mother returned home that evening, she became alarmed at the victim’s physical appearance, specifically, numerous marks and bruises about her face and body that were not present when she had last seen the victim earlier that day.

After the victim’s mother decided to obtain medical assistance for the victim, the defendant drove the victim and her mother to a nearby hospital where the victim underwent medical evaluation and treatment. John Peng, a treating physician at the hospital, who was board certified in pediatrics and pediatric emergency medicine, testified that he observed bruises on the victim’s face, chest, arms and legs; some of the bruises appeared to have been made by “three fingers.” Peng related that, apart from the victim’s visible injuries, tests revealed a significant likelihood of trauma to the victim’s liver. Peng described the injuries as “probably . . . the worst bruising that [he had] seen on a child.”

During the course of the evening, the police were notified of the incident, and a police officer arrived at the hospital to investigate the case. The defendant later provided a written statement to the police in which he provided his explanation for the victim’s condition. The defendant stated therein that, at approximately one o’clock that afternoon, he attempted to soothe the victim, who was crying, by placing her in a stroller. The defendant also stated: “Before putting [the victim] in the stroller, I had [a] bottle in my left hand and [the victim] on the other. [The victim] threw herself backwards and she fell out of my hands and hit the wall but did not touch the floor. I held [the victim] against the wall . . . holding [her] legs. I saw one small line when the chest touched the wall and [her] little face was changing colors when she stumbled, she was scratched. . . . [The victim] pushed herself very hard against the [wall. The] wall is very [hard; it] has a lot of concrete. It is true that I held [the victim’s face] against the wall but it was so she wouldn’t fall. There was a piece of furniture that I did not want her to fall onto. I got nervous [and] felt sorry for my daughter.” The defendant further stated that he comforted the victim and that she subsequently took a nap. The defendant acknowledged that he had not related these events to his girlfriend, the victim’s mother, and characterized the incident as “an accident.”

The defendant claims that prosecutorial impropriety occurred in two ways. First, he alleges that during both her initial and rebuttal arguments, the prosecutor, in violation of a clearly expressed ruling by the court, improperly instructed the jury on the law. Second, he alleges that during her initial and rebuttal arguments, the prosecutor improperly appealed to the emotions of the jurors. We will analyze separately each aspect of the defendant’s claim.

I

Prior to the start of closing arguments by both parties, the court ruled that the attorneys were “not to instruct the jury on the law” during their arguments. The court provided the following example: “[T]he parties could mention principles of law, for instance, serious physical injury, and indicate to the jurors what facts they can rely on to find that there is serious physical injury and what facts they can rely on to find that there was not . . . serious physical injury. But they are not to instruct the jury on the definition of any legal principle, for example, serious physical injury.” The defendant’s attorney objected to the court’s ruling, arguing that it hampered his ability to discuss the “intersection between the law and the facts of this case.” The court noted the objection.

During her initial closing argument, the prosecutor argued in relevant part: “If you find that [the defendant] injured [the victim] in such a way that it was a serious physical injury to her liver, that he intended to do so, he intended to injure her, and that he caused the injury, you should find him guilty of . . . assault in the first degree.

“If you find that he failed to bring her to the hospital, even though he knew she was injured, failed to get her any treatment, failed to provide any treatment himself, you should find him guilty of the risk of injury in count three.

“If you find that he did an act likely to impair the health of the child, who was under sixteen years of age, by this, you should find him guilty of count four.

“The state is not required to prove a motive in this case. Would it be helpful if I could say to you, I know why he did this? Sure. When you have a larceny case it helps if you, you know—common sense tells you why people steal. But the state is not required to prove— when you listen to the judge’s instructions about what the elements axe, motive won’t be one of the elements.

“The state is also not required to prove that any of these injuries were permanent, nor that they were— that they did, in fact, cause a risk of death .... In order for you to find serious physical injury, if there were life threatening injury, you can consider that.

“You will get a definition from the judge about what a serious physical injury is.”

Later, during the state’s rebuttal argument, the prosecutor argued in relevant part: “With regard to the serious physical injury, you have the injury both to the liver and also to her skin. And it’s up to you to conclude— [the defendant’s attorney] said —there’s no testimony about life threatening illnesses. You’re going to hear from the judge what the definition of a serious physical iryury is, and listen to the entire definition. I believe that you’ll have a copy of the instructions with you when you go back into the jury room. But if you listen carefully to what the judge has instructed you, you will find that the injury to the liver and the injury to the skin does, in fact, qualify as a serious physical injury. The question for you, then, becomes, was it intentional or was it reckless? And if it was reckless, was it as such [an] extreme level of recklessness?

“The state submits to you that you could find either one of those things here based upon the evidence that you have. And the coverup is the indication, the consciousness of guilt of not telling what happened here, is the evidence that you can use from the circumstantial evidence that this child was left with him; he and the mother both agree she’s fine in the morning and yet . . . when the mother comes home from work at the end of the day, she’s no longer fine. So, you look at the direct evidence, you look at the circumstantial evidence, and you’re allowed to draw reasonable inferences from that evidence.”

After the prosecutor concluded her argument, the jury left the courtroom, and the court addressed the prosecutor as follows: “You said, many times, you don’t have to find that, you have to find that. And then you even put up a note about you don’t have to prove motive, permanent injury, you don’t have to prove that the victim was in risk of death. That’s exactly what I told you not to do. . . . [I]t is confusing to the jury to do that. That’s exactly why I don’t allow such statements. . . . I’m not going to mention motive at all. That’s not, I believe, in the court’s instruction.” The prosecutor apologized to the court, noting that she did not believe she had violated its ruling and had not intended to do so. The court stated, “I think you didn’t intend to, but you did.”

The defendant’s attorney thereafter moved for a mistrial on the ground that the prosecutor had violated the court’s ruling and that the court’s ruling unfairly restricted the argument of both parties. The court denied the motion on the ground that the prosecutor’s arguments, despite having “crossfed] the line,” had not resulted in any advantage to the state. The court noted that, at the beginning of its charge, it would instruct the jury that it was to follow its instructions on the law and to disregard any statements concerning the law that had been made by the attorneys.

The defendant claims that this court should invoke its supervisory authority, reverse the judgment and remand the case for a new trial because the prosecutor engaged in deliberate impropriety by instructing the jury on matters of law in violation of the court’s ruling concerning the content of argument. “[A] prosecutor may not make an argument in violation of a court ruling. . . . [I]n considering claims of prosecutorial misconduct, we apply a due process analysis and consider whether the defendant was deprived of a fair trial. . . . A different standard is applied, however, when the claim involves deliberate prosecutorial misconduct during trial which violates express court rulings .... When such an allegation has been made, we must determine whether the challenged argument was unduly offensive to the maintenance of a sound judicial process. ... If we answer that question in the affirmative, we may invoke our supervisory powers to reverse the defendant’s conviction. ... In determining whether the use of our supervisory powers to reverse a conviction is appropriate, we consider whether the effect of the challenged remark was to undermine the authority of the trial court’s ruling .... We also consider the degree of prejudice suffered by the defendant as a result of the remark. . . .

“Our Supreme Court . . . has urged a cautionary approach in this regard, noting that [rjeversal of a conviction under our supervisory powers . . . should not be undertaken without balancing all of the interests involved: the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Downing, 68 Conn. App. 388, 403-404, 791 A.2d 649, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

In State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983), our Supreme Court first enunciated the principles relevant to claims of deliberate prosecutorial impropriety in violation of a trial court’s ruling. Our Supreme Court held that, where such impropriety has occurred, an appellate court may exercise its “inherent supervisory authority over the administration of justice” to “defend the integrity of the judicial system.” (Internal quotation marks omitted.) Id., 568, 570. The court blatantly rejected the argument that it could upset a criminal conviction on account of prosecutorial impropriety only where such conduct had deprived the defendant of his constitutional right to a fair trial. Id., 568. Instead, the court recognized that, given the proper circumstances and regardless of whether deliberate impropriety deprived a defendant of a fair trial, the “drastic step” of upsetting a criminal conviction might be necessary to “deter conduct undermining the integrity of the judicial system.” (Internal quotation marks omitted.) Id., 571-72. Thus, after weighing relevant considerations, the court placed a primacy upon its responsibility “for the enforcement of court rules in prosecutorial misconduct cases” and for preventing “assaults on the integrity of the tribunal.” Id., 571, 575. The court reasoned that it had an obligation to deter purposeful impropriety and concluded that reversal in cases involving such deliberate conduct may be warranted even where “a new trial is not constitutionally mandated.” Id., 571. Hence, the touchstone of our analysis in a claim of this nature is not the fairness of the trial but the existence of misconduct that deliberately circumvents trial court rulings. See, e.g., State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984).

The record reflects the court’s assessment of the alleged impropriety. The court crafted a unique ruling concerning the content of closing argument and, thus, had a superior vantage point from which to assess whether the prosecutor deliberately had violated that ruling. Also, having presided over the trial, the court had a superior vantage point from which to assess the argument’s likely effect on the jury and whether it inured to the defendant’s detriment. Thus, we look with interest on the court’s primary determination as to whether the prosecutor’s argument was a flagrant or deliberate violation of that ruling, one that was “unduly offensive to the maintenance of a sound judicial process,” or whether the prosecutor made a minor transgression, of little or no significance at trial. The court found that although the prosecutor had transgressed its ruling, the transgression was not intentional. The court further determined that the challenged argument had not in any way benefited the state and denied the defendant’s motion for a mistrial on that ground. The tenor and substance of the court’s remarks reflect that the court viewed the incident as a noteworthy, yet minor, unintended transgression, one that had not unfairly prejudiced the defendant.

There is no basis on which to call into doubt the correctness of the court’s finding that the prosecutor had not deliberately violated its ruling. Although the prosecutor attempted to explain generally how the state met its burden with regard to the elements of the crimes, the arguments do not reflect an attempt by the prosecutor to define legal principles. Our review of the statements at issue, and the prosecutor’s argument generally, reflects that the prosecutor deferred to the court’s role as lawgiver to the jury, often reminding the jury to follow the court’s legal instructions. Thus, this case does not concern deliberate or purposeful prosecutorial impropriety.

Having concluded that the effect of the prosecutor’s remarks was not to undermine the trial court’s authority, we next consider whether the degree of prejudice to the defendant, if any, caused by the remarks warrants reversal of the conviction. We conclude that the court’s determination that there had been no prejudice suffered by the defendant as a result of the prosecutor’s argument is sound. The court, referring generally to the prosecutor’s references to what facts the state must prove, did not appear to single out every argument by the prosecutor that it deemed objectionable. The court, however, singled out the prosecutor’s references to motive, permanent injury and risk of death. As did the parties in their briefs, we have set forth the arguments that appear to be at issue. Insofar as the court took issue with the prosecutor’s arguments concerning “permanent physical injury,” we note that these arguments were relevant only with regard to the two assault charges. The defendant was not convicted of these charges; see footnote 2; and, thus, these arguments were not prejudicial to him. Insofar as the prosecutor’s arguments with regard to the risk of injury counts, or with regard to principles (such as motive or consciousness of guilt) that applied generally to all of the charges against him, violated the spirit or letter of the court’s ruling, we are not persuaded that they were in any way prejudicial to the defendant.

This is not a situation, for example, in which a prosecutor, in violation of an express ruling, referred in argument to highly prejudicial matters that were not in evidence and, thus, not before the jury. In the present case, the prosecutor’s transgression apparently concerned her reference to the elements of the crimes of which the defendant stood charged and what the state needed and did not need to prove to obtain a conviction. Although the court perceived a minimal degree of impropriety, there is no basis on which to conclude that the prosecutor’s isolated references to matters of law in any way prejudiced the defendant. To the extent that the defendant argues that the prosecutor misled the jury with regard to the law or, specifically, the elements of the crimes at issue, we are mindful that, after the prosecutor concluded her rebuttal closing argument, the court immediately instructed the jury to disregard legal instructions from counsel and that its instructions with regard to the law were controlling. The court unambiguously reiterated this instruction in substance during its charge. “[T]he jury [is] presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Flowers, 278 Conn. 533, 547, 898 A.2d 789 (2006).

In light of the nature of the impropriety at issue, as well as our conclusion that the impropriety did not in any way affect the fairness of the trial, we decline to exercise our supervisory authority to reverse the defendant’s conviction.

II

During the state’s principal closing argument, the prosecutor, while summarizing the testimony of several witnesses, stated: “You . . . heard from Dr. Peng, who testified about the material that you have, the medical records, how he treated the child, that, in fact, the baby was treated with morphine because the pain she was suffering was so strong.” During the state’s rebuttal argument, the prosecutor stated in relevant part: “With regard to count number four, that [the defendant] did an act that caused [the victim] physical injury, that it was not accidental, that it was purposeful. Why did he do this to a five month old, I cannot tell you that. It is hard to accept that anyone would injure a child.”

The defendant claims that these arguments improperly “inflamed” the jury’s emotions against him in an effort by the prosecutor to distract the jury from considering the evidence. The defendant also claims that reference to the victim’s degree of pain was not based on the evidence. The defendant did not preserve these claims, yet we will afford them review nonetheless pursuant to State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). See State v. Stevenson, 269 Conn. 563, 572-74, 849 A.2d 626 (2004). “In analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. . . . Only if we conclude that prosecutorial [impropriety] has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Gordon, 104 Conn. App. 69, 73, 931 A.2d 939, cert. denied, 284 Conn. 937, 937 A.2d 695 (2007).

“It is well settled that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state’s case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Nevertheless, [w]hen making closing arguments to the jury . . . [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Farr, 98 Conn. App. 93, 107-108, 908 A.2d 556 (2006).

As a preliminary matter, we disagree that the argument concerning the fact that the victim was in pain was not based on the evidence or the reasonable inferences to be drawn from the evidence. The jury had before it ample evidence concerning the nature and extent of the victim’s injuries. The defendant, in his statement to the police, stated that the victim had fallen from his hands and made forceful contact with a concrete wall and that he had held her face against the wall so that she would not fall to the ground. The victim’s mother testified that when she observed the victim upon returning home from work on March 25, 2004, the victim appeared to be in pain. The victim’s mother also testified that when the victim was touched that evening, her reaction reflected that she was in pain. Carlos Ocasio, an officer with the Hartford police department, spent time with the victim upon her arrival at the hospital as part of his investigation of this case. Ocasio testified that the victim was crying while he photographed her. Photographs of the victim’s injuries and various medical records related to the injuries were in evidence. Further, Peng testified that the victim received “both [intravenous] fluids and morphine” at the hospital. Peng explained that “the morphine was to treat pain.”

For obvious reasons, the state was unable to present direct testimony from the victim, who was five months old on the date of this incident, that she had experienced the sensation of pain. “[T]he prosecutor had the prerogative to invite the jury to draw reasonable inferences from the facts in evidence and could argue on the basis of such inferences. In so doing, the prosecutor does no more than invite the jury to apply the common sense that we expect it to bring to its deliberations.” State v. Swain, 101 Conn. App. 253, 272, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007). It was entirely consistent with a rational view of the evidence to state as a fact proven, as did the prosecutor, that the victim had experienced pain. Peng’s testimony that at the hospital the victim had been administered morphine, an opiate commonly understood to reheve severe pain, unquestionably provided a reasonable factual predicate for the prosecutor’s argument that the victim had been treated with morphine and that she was administered such substance because her pain was strong enough to warrant its use.

The defendant does not justify clearly his claim that the prosecutor improperly aroused the emotions of the jury. He merely asserts that the prosecutor’s reference to evidence that the victim was in pain was improper. Similarly, he argues that the prosecutor’s observations that there was no explanation as to why he purposefully would have harmed the victim and that it was “hard to accept” such conduct were inherently prejudicial.

The prosecutor was well within the bounds of appropriate argument to refer to the fact that the victim was in pain. We already have concluded that this was a fact amply supported by the evidence. It was also a material fact because, if the victim experienced pain, it helped to substantiate the state’s allegation that the defendant caused her physical harm and that she was in need of medical care. Accordingly, this fact was fodder for the prosecutor’s argument. We recognize that evidence of this type, in a case involving harm to a victim of atender age, has an inherent tendency to arouse the emotions of the jury. The context in which the prosecutor referred to this fact, however, reflects that she did not refer to the fact for an improper purpose. The prosecutor referred to the victim’s pain in the limited context of summarizing the evidence concerning the extent of the victim’s injuries. Thus, we find no merit to the defendant’s claim in this regard.

Furthermore, the record does not reflect that the prosecutor’s argument that the defendant purposefully had harmed the victim was an expression of personal opinion or an improper attempt to arouse the jury’s emotions. During his closing argument, the defendant’s attorney argued that the victim’s injuries were caused accidentally. The defendant’s attorney also discussed photographs in evidence that depicted the victim’s injury. He characterized this evidence as follows: “Those pictures [show] a cute little five month old baby there with ugly bruises. Those are ugly—it’s an ugly, ugly thing to look at.” During her rebuttal argument, the prosecutor challenged the argument that the injuries were accidental and attempted to persuade the jury that the defendant wrongfully neglected to aid the victim. The prosecutor properly argued from the evidence that the defendant had purposefully harmed the victim and risked injury by failing to care for her injuries. Likewise, that the prosecutor deemed such conduct “hard to accept” was not inherently prejudicial. It was the prosecutor’s province to attempt to explain reasonably the evidence of the defendant’s conduct and the jury’s task to draw inferences from the evidence of that conduct. That the prosecutor would refer to the type of criminal conduct at issue as “hard to accept” was both entirely consistent with the tone struck by the defendant’s attorney during closing argument as he referred to graphic evidence of the victim’s physical abuse and, in the heat of argument, not an instance of impropriety.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court sentenced the defendant to a total effective term of incarceration of five years. The state also charged the defendant with one count of intentional assault in the first degree and one count of reckless assault in the first degree. The jury returned a not guilty verdict with regard to the intentional assault count. The court declared a mistrial on the reckless assault count after the jury was unable to reach a unanimous verdict as to that count, and the state subsequently entered a nolle prosequi on that count.

       Moments later, the court summoned the jury to the courtroom and began its charge as follows: “[BJefore I start, I just want to tell you that what any lawyer said about the law in this case is to be disregarded by you. You are to listen to my instructions and apply the law that I give you and only the law that I give you.”

       The defendant asserts that the impropriety was advantageous to the state because the improper argument related to critical issues in the case, the prosecutor improperly raised issues such as motive and consciousness of guilt, 1he prosecutor “was able to argue instructions of law to the jury and the defense was not,” the prosecutor “reinforced” its “version of the law to the jury,” and, generally, the prosecutor “confused the jury.”

       To a lesser extent, the defendant also claims that, by these arguments, the prosecutor essentially presumed his guilt and, thus, deprived him of a fair trial. This aspect of the defendant’s claim lacks merit. The defendant suggests that the prosecutor “convict[ed] him in advance” by asking rhetorically why he had engaged in the conduct alleged. The prosecutor was not precluded from interpreting the evidence elicited consistent with a finding of guilt. These arguments do not reflect that the prosecutor improperly expressed a personal belief in his guilt but one that was wholly connected to the evidence presented at trial and, thus, was not improper. See State v. Swain, 101 Conn. App. 253, 278-79, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007).


text:
    TYREESE BOWENS v. COMMISSIONER OF CORRECTION
    (AC 27260)
    Flynn, C. X, and Harper and Peters, Js.
    Argued September 18
    officially released December 11, 2007

      AlanE. Dillon, special public defender, for the appellant (petitioner).

      Timothy F. Costello, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Tyreese Bowens, appeals following the denial of certification to appeal from the judgment denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying certification to appeal and improperly rejected his claim that his trial counsel had provided ineffective assistance. We dismiss the petitioner’s appeal.

In 1998, the petitioner was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a (a). Following his direct appeal, we affirmed the judgment of conviction. State v. Bowens, 62 Conn. App. 148, 773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). The petitioner subsequently filed a petition for a writ of habeas corpus in which he claimed, in relevant part, that his court-appointed trial counsel's failure to investigate and to present the testimony of an eyewitness who allegedly possessed exculpatory evidence amounted to ineffective assistance. The habeas court rejected the petitioner’s claims and then denied his petition for certification to appeal. This appeal followed.

We begin by setting forth the applicable standard of review. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable. . . .

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citations omitted; internal quotation marks omitted.) Dwyer v. Commissioner of Correction, 102 Conn. App. 838, 840-42, 927 A.2d 347, cert. denied, 284 Conn. 925, 933 A.2d 724 (2007).

At the hearing on the petition, the court heard evidence that on September 11, 1996, two New Haven police officers in the course of their investigation interviewed the occupants of an apartment building located near where the shooting had occurred and at which the petitioner occasionally would stay. There, the officers interviewed Randi Hobson, who was watching dogs for an occupant of the building. Hobson told the officers that she had witnessed the shooting and that the petitioner had not been the shooter. She also stated that at the time of the shooting, she had been exiting a nearby convenience store when a car driven by the shooter collided with the victim’s car. The shooter, while still inside his car, then shot the victim, who remained inside his own car. Hobson declined to accompany the officers to the police department to provide a. written statement.

Sometime thereafter, Hobson met with the petitioner’s trial counsel, Thomas Ullman. Ullman did not take a formal statement from Hobson at this time, but rather, in an effort to minimize the amount of the petitioner’s bail, sent Hobson to speak with the prosecutor assigned to the case. Hobson never appeared before the prosecutor.

Shortly before trial, one of Ullman’s investigators interviewed Hobson, and she provided a “completely different story” than the one she had provided to the police. Hobson this time stated that she had been inside a convenience store at the time of the shooting, when she observed the victim and the shooter get into an argument. The shooter then followed the victim out of the store and fired his gun. As was the case with her first version of the shooting, Hobson said the petitioner was not the shooter. Ullman took no further statements from Hobson, nor did he call Hobson as a witness at the petitioner’s criminal trial.

At the habeas trial, Ullman testified concerning his reasons for not calling Hobson as a witness. He testified that his trial strategy had been to attack the credibility of the state’s lone eyewitness, as well as to highlight the lack of motive on the part of the petitioner. Consistent with this strategy, Ullman chose not to present the testimony of Hobson, whom he viewed as a reluctant, incredible witness.

The petitioner claims that Ullman’s failure to subpoena and to present the testimony of Hobson amounted to ineffective assistance of counsel, in that the jury never had an opportunity to hear Hobson’s potentially exculpatory testimony. We cannot agree. The habeas court concluded, and we agree, that on the basis of the aforementioned evidence, “Hobson presents [herself] not only as a reluctant witness, but one whose credibility is significantly at issue.” We also agree with the habeas court that miman reasonably concluded that “even if he could have [successfully] secured [Hobson] as a witness, [she] would have been a liability.” As “the presentation of testimonial evidence is a matter of trial strategy”; (internal quotation marks omitted) Adorno v. Commissioner of Correction, 66 Conn. App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A. 2d 428 (2001); we conclude that it was reasonable for miman to have acted as he did.

In light of the foregoing conclusion, the petitioner has not demonstrated that the issues raised with regard to the court’s denial of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. Thus, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       This court recounted the facts underlying the petitioner’s conviction in his direct appeal: “On August 18, 1996, Kevin Hood, the victim, and Tiara Phelmetta were riding around New Haven in Hood’s car. They stopped in front of a convenience store at the well lit intersection of Columbus Avenue, Arch Street and Washington Avenue. Hood made some purchases at the convenience store, and, upon his return to the car, Phelmetta noticed a man with a hooded jacket walking toward the car from Washington Avenue. The man came up to the front passenger seat window where she was seated and peered through from about three feet away. She was able to look closely at his facial features before he turned away and walked around the back of the car, appearing to head away from the car. Suddenly, the man changed course and again approached the car. As he walked up to the driver’s side, Phelmetta saw him withdraw a gun from underneath his shirt. The man leaned into Hood’s open window and shot Hood several times. Phelmetta jumped out of the car through her window and fled to safety.
      “Thereafter, officers from the New Haven police department patrolling on Columbus Avenue came upon the victim. A few minutes later, Phelmetta returned to the scene and told a police detective that she had witnessed the shooting and gave a description of the shooter. The following day, on August 19,1996, Phelmetta went to the police station, viewed a photographic array and identified the [petitioner] as the shooter. He was arrested and ultimately found guilty of murder . . . .” State v. Bowens, 62 Conn. App. 148, 149-50, 773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001).

       The petitioner claimed in his habeas petition ineffective assistance of counsel, actual innocence and partiality on the part of jurors. The ineffective assistance claim alleged four deficient acts on the part of the petitioner’s trial attorney: (1) failure to subpoena Randi Hobson, (2) failure to call Otis Brown as a witness, (3) failure to perform an adequate investigation to find the real murderer and (4) failure to prepare an alibi witness properly. On appeal, the petitioner challenges only the habeas court’s resolution of the ineffective assistance claim as it relates to the failure to subpoena Hobson.

       Specifically, Hobson’s reluctance as a witness was demonstrated by evidence that she declined to provide a written statement to investigating officers and failed to speak with the prosecutor after Ullman had encouraged her to do so. Hobson’s incredibility reasonably stems from the evidence that she provided Ullman with inconsistent testimony that was in conflict with testimony provided by expert and lay witnesses and that she had at least some personal connection with the petitioner.