text:
    STATE OF CONNECTICUT v. DAVID G. WEAVING
    (AC 30999)
    Gruendel, Alvord and Peters, Js.

      Argued September 2
    officially released November 16, 2010

      Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, David G. Weaving, appeals from the judgment of conviction, following a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1). On appeal, the defendant claims that (1) prosecutorial impropriety during closing argument deprived him of his right to due process, (2) the court improperly refused to instruct the jury that he was entitled to assume others using the road would “obey the law,” and (3) the court improperly refused to permit argument or instruct the jury with respect to the “lack of a headlamp” on the victim’s bicycle. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Shortly before 7 p.m. on April 27, 2007, the defendant was driving his motor vehicle south on Route 69 in Prospect. In Prospect, Route 69 is a residential, two lane road, with one northbound and one southbound lane of travel. Although it was a foggy evening and the road surface was damp, the defendant was traveling at approximately 80 miles per hour, well in excess of the posted speed limit of 45 miles per hour. As he crested a small hill near Radio Tower Road, the defendant came upon another car traveling in his lane at or below the posted speed limit. Approaching a permitted passing zone, the defendant accelerated and began to cross over into the northbound lane in order to pass the slower moving vehicle. Just as he was doing so, the defendant noticed a young boy standing on the pedals of a bicycle near the center of the northbound lane. The boy was dressed in dark clothing, the bicycle he was riding was black and there was no headlamp on the bicycle. The defendant immediately applied his brakes and attempted to steer back into the southbound lane in an effort to avoid hitting the boy. The defendant’s speed, however, coupled with the conditions of the roadway, made avoiding the boy impossible. The defendant’s vehicle collided with the bicycle, throwing the boy onto the hood and windshield and tossing debris along the side of the road. Despite the efforts of emergency medical personnel and physicians, the boy died from his injuries.

The defendant subsequently was arrested and charged with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and manslaughter in the second degree in violation of § 53a-56 (a) (l). After a jury trial, the defendant was convicted of manslaughter in the second degree. The court imposed a total effective sentence of thirteen years and eight months incarceration, execution suspended after ten years, with three years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that prosecutorial impropriety during closing argument deprived him of his right to due process. Specifically, the defendant asserts that the state wrongfully argued to the jury that evidence of the extent of the victim’s injuries and of the structural damage to the defendant’s car and the victim’s bicycle supported the inference that the defendant was driving recklessly at the time of the accident. The defendant maintains that, in the absence of substantiating expert testimony, the state’s argument invited the juiy to “speculate as to inferences outside its ken”— namely, the speed of the defendant’s car — thereby depriving him of a fair trial. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. At trial, a central tenet of the defense was that the defendant was traveling at or near the posted speed limit of 45 miles per hour as he entered the northbound lane to pass the slower moving vehicle in front of him. Both parties presented expert testimony as to the defendant’s speed moments before the collision, focusing particularly on the time when the defendant first applied his brakes. The state’s expert, a specialist in accident reconstruction, testified that, according to his forensic and mathematical analyses, the defendant “was traveling at a minimal speed of 83 miles per hour.” This determination was based primarily on the length of skid marks caused by the defendant’s sudden braking, which measured over 360 feet, but also took account of the condition of the roadway at the time of the accident. The defense offered the expert testimony of a behavioral psychologist trained in principles of human reaction and response time. During recross-examination, the defense expert conceded that the length of the skid marks was consistent with a finding that the defendant was traveling 83 miles per hour at the moment when he began braking.

On December 11, 2008, the parties presented closing arguments to the jury. In both its initial and rebuttal arguments, the state implored the jury to infer that the defendant was driving recklessly at the time of the accident, from evidence such as the condition of the victim’s bicycle, the extent of the injuries suffered by the victim and the condition of the defendant’s car following the collision. The defendant argues that “these assertions and their evidentiary reliability were conjured out of thin air by the prosecutor . . . and, as a result, appeared to give the state more evidence than it actually had to prove its case.”

Before addressing the merits of the defendant’s argument, we begin with the applicable legal principles and standard of review. “[A] claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987).” State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009). “Once prosecutorial impropriety has been alleged ... it is unnecessary for a defendant to seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant’s claim under Golding. . . . The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in . . . Williams . . . .” (Internal quotation marks omitted.) State v. Pascal, 109 Conn. App. 55, 66, 950 A.2d 566, cert. denied, 289 Conn. 917, 957 A.2d 880 (2008). “In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Gould, supra, 77.

“[P]rosecutoriai [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based [on] the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case.” (Internal quotation marks omitted.) Id., 78-79.

“If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the six factors enumerated in State v. Williams, supra, 204 Conn. 540, whether the entire trial was so infected with unfairness so as to deprive the defendant of his due process right to a fair trial. . . . These factors include the extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Jordan, 117 Conn. App. 160, 164, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009). We address each of the alleged prosecutorial improprieties in turn.

A

The first claim of impropriety arises out of the state’s initial closing argument. Specifically, the defendant challenges the following statements of the prosecutor: “There’s the bicycle, look at those spokes, look at how they’re bent and mangled. How fast was that car going?”

We disagree with the defendant’s contention that this argument invited speculation on the part of the jury. Although “[i]t would be improper for the prosecutor to comment during final summation on facts not introduced into evidence at trial,” that is not this case. State v. Lizzi, 199 Conn. 462, 472, 508 A.2d 16 (1986); see also State v. Ceballos, 266 Conn. 364, 400, 832 A.2d 14 (2003) (“[a] prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to [the] evidence” [internal quotation marks omitted]). The “occasional use of [a] rhetorical [device]” falls within the rubric of “fair [comment]” by the prosecutor. State v. Gould, supra, 290 Conn. 78. In addition to viewing the victim’s bicycle, the prosecutor properly reminded the jury to consider other physical and testimonial evidence, including expert testimony, that supported a reasonable inference that the defendant was speeding. For similar reasons, we reject the defendant’s contention that expert testimony was needed to corroborate the inference that the extensive damage to the bicycle was caused by the speed with which the defendant was operating his vehicle. Accordingly, the defendant has failed to establish his first claim of prosecutorial impropriety. See State v. Angel T., 292 Conn. 262,274-75,973 A.2d 1207 (2009) (describing first prong for review of prosecutorial impropriety claims as threshold consideration).

B

In the next claim of prosecutorial impropriety, also challenging a statement made during the state’s initial closing argument, the defendant criticizes the prosecutor’s references to the extensive physical injuries suffered by the victim. The defendant maintains that it was improper for the state to argue that the medical evidence demonstrated that the defendant was “going in excess of 80 miles per hour” at the time that he struck the victim. Again, we are unpersuaded.

During trial, the treating emergency room physician testified in detail about the extensive injuries suffered by the victim on the evening of April 27, 2007. The prosecutor’s statements merely suggested inferences that “the jury could have drawn entirely on its own.” State v. Stevenson, 269 Conn. 563, 585, 849 A.2d 626 (2004). At no time did the prosecutor refer to facts that were not in evidence to bolster his argument, nor did the prosecutor imply that “the state had more evidence than it actually did . . . .” Thus, the state’s references to the victim’s injuries as probative of the defendant’s excessive speed at the moment of the collision did not amount to prosecutorial impropriety.

C

Finally, the defendant challenges the prosecutor’s summary statement, made during rebuttal, that the state’s evidence about the victim’s injuries, the victim’s bicycle, and the defendant’s car, permitted the jury to infer that the defendant was driving 83 miles per hour at the time of the collision. Again, we are unpersuaded.

The challenged statement invited the jury to draw permissible inferences from the evidence bearing on the defendant’s speed and did not invite unreasoned speculation on its part. Indeed, the prosecutor specifically told the jurors not to speculate, but to draw “reasonable inferences about what judgment calls should be made [and] what the evidence means.” (Emphasis added.) See State v. Felix, 111 Conn. App. 801, 811, 961 A.2d 458 (2008) (“ [i]t is not improper for a prosecutor to ask the juiy to draw inferences and to exercise common sense”). Furthermore, following objection by defense counsel, the court indicated that it would provide instructions about the meaning of reasonable inferences and how such inferences could (or could not) be drawn from the evidence. In fact, the court gave such instructions. See State v. Rivera, 61 Conn. App. 763, 773, 765 A.2d 1240 (“[i]n the absence of an indication to the contrary, we presume that the jury followed the [curative] instructions given to it by the court”), cert. denied, 256 Conn. 901, 772 A.2d 559 (2001). We conclude that the defendant has failed to demonstrate that the state engaged in prosecutorial impropriety during rebuttal argument.

II

The defendant next claims that the court improperly declined to instruct the jury that, with respect to the element of recklessness, a driver is entitled to rely on the expectation that others using the roadway, such as the victim, would obey the “rules of the road.” We disagree.

The following additional facts and procedural history are relevant to the resolution of the defendant’s claim. In his request to charge, dated December 9, 2008, the defendant asked the court to instruct the jury that as “an operator of a bicycle on a public highway,” the victim “had an obligation under our statutes to obey all [of] the rules of the road that an operator of a motor vehicle would.” Further, the defendant requested an instruction that the victim “was required ... to operate his bicycle as near to the right side of the roadway as practicable” and to display a “[lighted] lamp [or] illuminating [device]” when operating the bicycle during foggy conditions.

On December 11, 2008, a charging conference was held in which the defendant articulated the relevance of his requested instructions. Defense counsel argued, with respect to the issue of recklessness, that “basically the standard that’s being applied ... is ... a reasonable person’s standard . . . [and] a reasonable person [namely, the defendant] . . . has the right to assume that” the victim would not be in the middle of the road without a headlamp on his bicycle. In reliance on State v. Campbell, 82 Conn. 671, 74 A. 927 (1910), the court stated that “if someone engages in criminal conduct, they’re not relieved of their responsibility for [such] conduct [simply] because the victim may also have been negligent” or otherwise in violation of statutory mandates. Nonetheless, the court went on to emphasize that the defendant was free to argue that he “was unable to perceive [the victim] because of the fog, because of the dark clothing, because he suddenly appeared . . . because he didn’t expect [the victim] to be there, and because of the [other] difficulties in perception.” Moreover, in its jury charge on recklessness, the court instructed the jury that “the state must prove beyond a reasonable doubt that the defendant was aware of but consciously disregarded [a substantial and unjustifiable risk]. The state must further establish that disregarding that risk was a gross deviation from the standard of conduct that a reasonable person would have observed in the defendant’s situation.” (Emphasis added.)

“Our standard of review with regard to claims of instructional error is well established, [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [T]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Where . . . the challenged jury [instruction involves] a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citation omitted; internal quotation marks omitted.) State v. Boyd, 115 Conn. App. 556, 562-63, 973 A.2d 138, cert. denied, 293 Conn. 912, 978 A.2d 1110 (2009). In any case, “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . . Conversely, it also is true that a court is under no duty to give a requested jury instruction that is an improper statement of law. [Thus], if this court concludes that the requested jury instruction was an improper statement of law, the defendant is not entitled to the requested jury instruction and the court’s refusal was proper.” (Citation omitted; internal quotation marks omitted.) State v. Scribner, 72 Conn. App. 736, 740, 805 A.2d 812 (2002).

We agree with the court that Campbell governs this case and supports the court’s denial of the defendant’s request. Campbell is particularly instructive because its factual and procedural history closely resemble the case at bar. In Campbell, the defendant was convicted of manslaughter for striking and killing a pedestrian with his vehicle while speeding down a busy street in New Haven. State v. Campbell, supra, 82 Conn. 673. On appeal, the defendant claimed that the court improperly refused to instruct the jurors that he “had the right to assume that [the victim] would use reasonable care to avoid danger” while crossing the street. Id., 675. In rejecting the defendant’s claim, our Supreme Court stated that “it is generally the province of the jury, rather than of the court, to decide what one in the situation of the defendant, might reasonably have assumed with a view of regulating his own conduct. Statements ... as to what may reasonably be assumed by individuals in given situations . . . are generally . . . conclusions of fact which . . . may be reached by a jury . . . rather than . . . established [rules] of law which” are to be read to the jury in the form of instruction. Id., 678.

Here, as in Campbell, the court clearly instructed the jury about the elements of the crimes with which the defendant was charged and the state’s burden to prove those elements beyond a reasonable doubt. Id., 677. Of particular significance in this regard is the court’s instruction that “[t]he law [in this case] requires [that the defendant engage in conduct that under the] circumstances [demonstrates an] extreme indifference to human life.” This instruction properly permitted the jury to find that, by traveling at over 80 miles per hour on a residential road on a foggy and damp evening, the defendant had engaged in reckless conduct even before the victim entered the roadway.

To adopt the defendant’s argument that the victim’s conduct must necessarily be considered in the course of evaluating recklessness would make the victim’s behavior evidence of a defense, rather than a factor for the jury to consider in evaluating the defendant’s mental state. Our case law in this regard is to the contrary. See State v. Munoz, 233 Conn. 106, 126, 659 A.2d 683

(1995) (“[e]very person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes co-operated to produce that result” [internal quotation marks omitted]); see also State v. Alterio, 154 Conn. 23, 29, 220 A.2d 451 (1966) (ruling that contributory negligence of the victim is no defense to charged mental state but is relevant only to the “issue of causation”); State v. Leopold, 110 Conn. 55, 61, 147 A. 118 (1929) (“[i]n a prosecution for manslaughter by the culpable negligence of the accused, the [s]tate is not obliged to prove that the deceased exercised due care to avoid the consequences of the unlawful act, and his failure to do so is not a defense available to the accused”).

We conclude that the court’s instruction to the jury on the element of recklessness “fairly [presented] the case to the jury in such a way that injustice [was] not done to [the defendant] under the established rules of law.” (Internal quotation marks omitted.) State v. Boyd, supra, 115 Conn. App. 563. Accordingly, the defendant’s claim of instructional error cannot be sustained.

Ill

The defendant’s final claim is that the court improperly refused to permit defense counsel to argue that the victim did not have a headlamp on his bicycle and that the court improperly refused to instruct the jury to consider the absence of a headlamp in its instructions on recklessness. We disagree.

A

First, the defendant alleges that the court improperly refused to allow defense counsel to argue to the jury that the “lack of a headlamp drastically affected the defendant’s perception and reaction time.” This is simply incorrect.

In the course of describing its jury charge during a charging conference, the court discussed both recklessness and intervening causation, especially as these concepts related to the absence of a headlamp on the victim’s bicycle. The court dealt with these concepts separately. Addressing the issue of intervening causation, the court noted that “[it was] not going to allow [defense counsel] to argue, [and would not instruct the jurors, as to the lack of] a light on the bike.” The basis for this ruling was the court’s view that, to be admissible for purposes of intervening causation, the absence of a headlamp on the victim’s bicycle would necessarily have had to have taken place after the defendant engaged in recklessness. See, e.g., State v. Munoz, supra, 233 Conn. 124 (“[intervening causation] refers to a situation in which the defendant’s conduct is a ‘but for’ cause, or cause in fact, of the victim’s injury, but nonetheless some other circumstance subsequently occurs — the source of which may be an act of the victim, the act of some other person, or some nonhuman force — that does more than supply a concurring or contributing cause of the injury, but is unforeseeable and sufficiently powerful in its effect that it serves to relieve the defendant of criminal responsibility for his conduct” [emphasis added]).

In addressing the issue of recklessness, however, the court stated: “[T]he defendant is . . . free to argue the facts as you perceive the testimony to be, which is that [the defendant] was unable to perceive [the victim] because of the fog, because of the dark clothing, because he suddenly appeared. You’re free to argue that he didn’t expect him to be there, you’re free to argue that he wasn’t able to react in time because he didn’t expect him to be there and because of the difficulties in perception. You’re free to argue all those facts. And I want to make it clear that [the court is] not preventing you from doing that.”

Thus, we conclude that the court did not preclude defense counsel from arguing that the absence of a headlamp on the victim’s bicycle contributed to the defendant’s “difficulties in perception.” See State v. Thornton, 112 Conn. App. 694, 708, 963 A.2d 1099 (“If defense counsel [is] uncertain of the scope of the court’s ruling, he should [ask] the court to clarify it. . . . Having failed to seek a clarification, the defendant cannot . . . successfully claim prejudice [on appeal].” [Citation omitted.]), cert. denied, 291 Conn. 914, 969 A.2d 175 (2009). Because the defendant’s characterization of the court’s ruling is inaccurate and unsupported by the record, the defendant cannot prevail on this claim of error.

B

The defendant also asserts that the court improperly refused to “instruct the jury regarding the [absence of a] headlamp, [specifically] as it pertained to the element of recklessness.” We disagree.

As previously discussed, the court’s charge with respect to recklessness adequately instructed the jury as to the meaning of this concept and the fact that the state was required to prove this element beyond a reasonable doubt. Moreover, consistent with our Supreme Court’s ruling in State v. Campbell, supra, 82 Conn. 671, the court’s recklessness instruction should not have included references to the victim’s alleged negligence under the facts of this case, including the absence of a headlamp on the victim’s bicycle. For the reasons articulated in part II of this opinion, the defendant’s claim is meritless.

The judgment is affirmed.

In this opinion the other judges concurred.

       Each of the charged offenses requires that the state prove beyond a reasonable doubt that the defendant “recklessly” caused the death of another. See General Statutes §§ 53a-55 (a) (3) and 55a-56 (a) (1). In this context, the term “recklessly” is defined as a state of mind in which the defendant “is aware of and consciously disregards a substantial and unjustifiable risk . . . .” General Statutes § 53a-3 (13).

       The jury found the defendant not guilty of the first degree manslaughter charge.

       The defendant’s initial sentence for the second degree manslaughter conviction was ten years incarceration, execution suspended after eight years, with three years probation. His sentence later was increased as a result of two prior findings of violation of probation.

       The state also offered the lay testimony of two witnesses who observed the defendant’s car shortly before the accident occurred. One testified that the defendant’s car passed her vehicle at such a high rate of speed that her own car began to shake. Additionally, the driver of the vehicle that the defendant attempted to pass testified to the loud “screeching” sound that she heard seconds before the collision.

       The victim’s bicycle was introduced as a full exhibit during the state’s case-in-chief, and the victim’s treating physician testified about the victim’s injuries. The state also introduced photographs depicting the damage sustained by the defendant’s car.

       During its jury charge, the court explained: “There are a number of things that may have been seen or heard during the trial which are not evidence .... For example, the statements made by lawyers, including statements made in their closing arguments, are not evidence .... In drawing inferences from the established facts, you should use your reason and common sense. The inferences which you draw must be logical and reasonable.” (Emphasis added.)

       Additionally, 1he defendant’s “human factors” expert testified that the defendant perceived the victim approximately two seconds before he reacted by applying his brakes. Given the defendant’s excessive speed of 83 miles per hour, his vehicle would have traveled several hundred feet before the defendant began braking, as measured by the beginning of the skid marks on the road. Thus, the testimony of the defendant’s expert supported the inference that the defendant had perceived the victim several hundred feet farther south from where the skid marks began, regardless of the lack of a headlamp on the victim’s bicycle.

       As the court specifically stated: “I’ve already indicated I’m not going to let you argue [the lack of a headlamp] because it is subsequent conduct or subsequent negligence by [the victim]” alleged to have occurred after the defendant engaged in recklessness.

       The defendant has not raised the distinct issue of whether the court’s refusal to allow argument as to the lack of the headlamp for purposes of intervening causation constituted error.

       See part II of this opinion.

       The defendant also makes the cursory claim that the court improperly omitted from its instruction on intervening causation specific mention of the absence of a headlamp on the victim’s bicycle. Because the court properly concluded, however, that the absence of a headlamp on the bicycle could not constitute an intervening cause, no such instruction was necessary. See part III A of this opinion.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    DANIEL DIAZ v. COMMISSIONER OF CORRECTION
    (AC 30919)
    Robinson, Alvord and Peters, Js.

      Argued September 14
    officially released November 16, 2010

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

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

ALVORD, J.

The petitioner, Daniel Diaz, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly denied his claim of ineffective assistance of trial counsel with respect to counsel’s failure (1) to call a witness, Michael Rosado, who might have provided exculpatory testimony, and (2) to test independently the narcotics he was convicted of possessing or to present evidence regarding their odor. Additionally, the petitioner argues that the habeas court improperly found that his remaining argument was barred by the doctrine of res judicata. We agree that the court incorrectly applied the doctrine of res judicata. Nevertheless, we conclude that the court properly denied the petition. Accordingly, we affirm the judgment of the habeas court, albeit on different grounds.

Following a trial to the jury, the petitioner was convicted of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b), possession of narcotics in violation of General Statutes § 21a-279 (a) and interfering with a police officer in violation of General Statutes § 53a-167a (a). State v. Diaz, 86 Conn. App. 244, 246, 860 A.2d 791 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1081 (2005). On May 17, 2002, the petitioner was sentenced to an effective term of eighteen years imprisonment.

The petitioner appealed from the judgment of conviction to this court, claiming that (1) the evidence was insufficient to sustain his conviction under §§ 2 la-278 (b) and 21a-278a (b) because the state failed to establish that he had intended to sell the narcotics, and (2) the trial court made an improper statement during its final charge to the jury that impinged on his due process rights. Id. On direct appeal, this court held that (1) the evidence was sufficient to support the conviction and (2) the trial court’s comment, although improper, constituted harmless error. Id., 250, 259.

On September 15, 2008, the petitioner filed an amended petition for a writ of habeas corpus, alleging, inter alia, that his conviction should be set aside due to ineffective assistance of his trial counsel, Hisham Leil. In support of his claim, the petitioner argued that Leil performed below the level of reasonable competence required of a criminal defense attorney because he failed (1) to object to the improper statement made by the court during the charge to the jury, (2) to call Rosado, who might have provided exculpatory evidence, and (3) to test the narcotics independently for genuineness or to present evidence regarding then-odor. The petitioner claims that Leil’s acts and omissions contributed significantly enough to his conviction so as to have deprived him of his rights to effective assistance of counsel and to a fair trial.

The habeas court denied the petition. It found that the first claim was precluded under the doctrine of res judicata by the decision of this court on direct appeal that the trial court’s statement, though improper, was harmless error. The habeas court also found that the petitioner had not met his burden to provide evidence that (1) Rosado’s testimony would have been exculpatory instead of cumulative, (2) it was not the petitioner’s personal decision to proceed without Rosado, (3) independent testing of the substance would have altered the disposition of the case or (4) Leil’s decision not to test the substance in question was deficient based on the theory of the defense. The petitioner now appeals from the judgment of the habeas court.

In this habeas appeal, the petitioner’s three arguments in support of a finding of ineffective assistance of counsel duplicate those raised at the habeas trial. He argues that the court erred when it found that Leil did not render ineffective assistance of counsel by failing (1) to object to the trial court’s improper comment, (2) to call a witness that might have aided the defense and (3) to have the narcotics tested or to present evidence regarding their odor. We agree with the habeas court that the petitioner cannot prevail on the second or third claims because the record does not demonstrate that his counsel’s actions were deficient. While we disagree with the court’s application of the doctrine of res judicata, we determine that the precluded claim fails as a matter of law and affirm the judgment denying the habeas petition.

As an initial matter, we set forth the standard of review. “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. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . .

“In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) 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 adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Necaise v. Commissioner of Correction, 112 Conn. App. 817, 820-21, 964 A.2d 562, cert. denied, 292 Conn. 911, 973 A.2d 660 (2009).

“[judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. ” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 121 Conn. App. 295, 304, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

I

The petitioner’s first claim is that the habeas court erred in applying the doctrine of res judicata. Specifically, the petitioner argues that on direct appeal he challenged a due process violation by the court, a right arising from the fourteenth amendment and subject to harmless error analysis. In contrast, in his habeas petition, the petitioner claimed that he was denied his right to effective assistance of counsel, an altogether separate right, which arises under the sixth amendment and requires Strickland review. We agree with the petitioner that the doctrine of res judicata does not apply in the present case. Nonetheless, we conclude that the record shows that the petitioner’s claim of ineffective assistance of counsel fails as a matter of law and that the denial of the petition was proper.

A

The petitioner cites Kearney v. Commissioner of Correction, 113 Conn. App. 223, 965 A.2d 608 (2009), to illustrate the limited application of res judicata to habeas proceedings. “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made. . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings. . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding.” (Internal quotation marks omitted.) Id., 233, quoting Johnson v. Commissioner of Correction, 288 Conn. 53, 66-67, 951 A.2d 520 (2008).

In Kearney, the doctrine of res judicata precluded a claim that was previously litigated fully and adjudicated on its merits in an earlier habeas proceeding. Kearney v. Commissioner of Correction, supra, 113 Conn. App. 233. Likewise, in the primary case it cites on this issue, Johnson v. Commissioner of Correction, supra, 288 Conn. 66, the principles of res judicata prevented a claim from being litigated where an identical claim was raised, argued and litigated in a previous habeas trial. Our courts have repeatedly applied the doctrine of res judicata to claims duplicated in successive habeas petitions filed by the same petitioner. See Smith v. Commissioner of Correction, 122 Conn. App. 637, 999 A.2d 840 (2010); Myers v. Commissioner of Correction, 111 Conn. App. 405, 959 A.2d 646 (2008); Davis v. Commissioner of Correction, 109 Conn. App. 92, 950 A.2d 587, cert. denied, 289 Conn. 930, 958 A.2d 157 (2008). In fact, the ability to dismiss a petition when it “presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition” is memorialized in Practice Book § 23-29 (3). See also Mejia v. Commissioner of Correction, 98 Conn. App. 180,908 A.2d 581 (2006), appeal dismissed after remand, 112 Conn. App. 137, 962 A.2d 148, cert. denied, 291 Conn. 910, 969 A.2d 171 (2009). Those cases and the rules of practice do not dispose of the issue in the present case because this petitioner’s claim was not fully litigated in a prior habeas proceeding.

This court instead must be guided by precedent in which habeas review was precluded by res judicata in light of the litigation of a similar claim on direct appeal. In Fernandez v. Commissioner of Correction, 86 Conn. App. 42, 43, 859 A.2d 948 (2004), this court applied the principle of res judicata to a habeas appeal in which identical claims had been litigated on direct appeal. In that case, the petitioner, following conviction, filed an appeal, claiming that the trial court (1) denied him the right to counsel when it allowed his defense attorney to withdraw and (2) denied him the right to represent himself. State v. Fernandez, 254 Conn. 637, 639-40, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001). The Supreme Court affirmed the judgment of conviction. Id. The petitioner sought habeas review of the exact claims that were raised on direct appeal, and the habeas court granted a motion to dismiss the petition, finding that the claims were precluded pursuant to the doctrine of res judicata. Fernandez v. Commissioner of Correction, supra, 44. This court affirmed the judgment of the habeas court, holding that there was “no difference (apart from slight variations in wording) between the claim raised, litigated and decided on direct appeal and that alleged at the habeas proceeding . . . .” Id., 46-47.

This court also found that an issue resolved on direct appeal was barred from consideration in a habeas proceeding under the doctrine of res judicata in Faraday v. Commissioner of Correction, 107 Conn. App. 769, 776-77, 946 A.2d 891 (2008). The habeas court cited Faraday in support of precluding the claim in the present case. In Faraday, the issue raised, litigated and decided on direct appeal was whether the court improperly canvassed the petitioner during the plea proceeding at issue. Id. The petitioner raised the identical claim in his habeas petition. The court held that “[t]his claim, having been resolved in the petitioner’s direct appeal, is barred by the doctrine of res judicata and is not subject to collateral attack.” Id.

In both Fernandez and Faraday, this court agreed that the principle of claim preclusion applied when identical claims were argued on direct appeal and habeas review. Those cases serve only in contrast to the present case. Unlike those cases, in which the claims were, without question, identical in substance, form and law, the petitioner in the present case challenged court impropriety in his direct appeal. He subsequently alleged ineffective assistance of counsel in his habeas petition, a different, albeit related, claim.

Although the habeas court was correct that the deficiency of counsel claim bears a striking similarity to the claim of impropriety by the court raised on direct appeal, this is a separate claim, thus requiring separate legal analysis. On direct appeal, this court applied harmless error analysis in reviewing allegations that the petitioner’s fourteenth amendment rights had been jeopardized by the trial court’s improper comment. State v. Diaz, supra, 86 Conn. App. 252. The issue before this court now is reviewed through a different lens. In the present case, in accordance with the Strickland standard, the petitioner must demonstrate that there was a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been different. Nonetheless, the petitioner was allowed to argue ineffective assistance of counsel without constraint at the habeas proceeding, which provides us with a complete record for review. Therefore, we will proceed with a plenary review of the record, applying the familiar Strickland standard.

B

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citation omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 77, 967 A.2d 41 (2009). The record shows that the petitioner did not establish prejudice under the second prong of the Strickland test, and, therefore, the claim with respect to Leil’s failure to object must be disposed of in its entirety.

It is here that we reflect on the interplay between the direct appeal and the habeas appeal. Despite the fact that we found that the claims are not the same for the application of res judicata, they are indisputably related. This court’s finding on direct appeal that the trial court’s statement was harmless error; Staley. Diaz, supra, 86 Conn. App. 259; while not dispositive, is persuasive. In light of our holding that the court’s comment was harmless error, it would be a significant hurdle for the petitioner to convince us that there is a reasonable probability that the outcome would have been different if Leil had objected to that comment.

Our holding that the comment was harmless error rested on (1) the court’s exhaustive instructions to the jury that it was solely within its province to find the facts, (2) counsel’s failure to object and (3) the substantial evidence before the jury from which it could have reached its verdict. The petitioner draws our attention to the direct appeal, in which we initially noted that “[w]here counsel . . . seeks to raise on appeal a potential defect in the jury charge which he did not raise at trial, his silence at trial is a powerful signal that, because of the posture of the case, he did not hear the defect in the harmful manner which he presses on appeal, or even if he did so hear it, he did not deem it harmful enough to press in the trial court. When the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial . . . is seriously undercut.” (Internal quotation marks omitted.) Id., 254.

The petitioner contends that at the habeas trial, Leil testified that he did not hear the comment. He argues, therefore, that this court’s previous ruling cannot influence our present habeas review because we used Leil’s failure to object to support the finding of harmless error. The petitioner introduced the following exchange:

“Craig Barton [the petitioner’s habeas attorney]: And do you recall the statement that as to the sixth count, it’s plain that the [petitioner] has possession of the narcotics but then discarded them?

“Leil [the petitioner’s trial attorney]: I did not hear that.

“Barton: You did not hear that?

“Leil: I don’t recall hearing that.

“Barton: Okay. Had — so, you did not, you did not object to that instruction?

“Leil: I didn’t hear the instruction.

“Barton: So, the answer is, you did not object?

“Leil: I did not object to that, yes.”

The petitioner interprets Leil’s responses to mean that the comment was not audible. The state argues that this testimony shows that Leil did not recall the comment.

Our previous ruling indicated three grounds for concluding that the trial court’s comment, while improper, was harmless error. This was not a list of elements or factors required to conclude that the comment amounted to harmless error. It was merely a review of all of the pieces of evidence that informed our decision. Even if we were to resolve any ambiguity regarding counsel’s perception of the comment in favor of the petitioner, we would still find compelling the repeated clarification in the jury instructions and the abundance of evidence against the petitioner. The petitioner has presented no evidence in the habeas record undermining those other facets of our reasoning on direct appeal. Therefore, we disagree that Leil’s failure to hear the comment undermines the finding on direct appeal, and we allow our previous finding of harmless error to influence the present prejudice inquiry.

Independent of our previous ruling, the record shows that the petitioner’s claim fails completely under the Strickland prejudice prong. The record reflects that the petitioner did not provide any evidence that, absent Leil’s failure to object, there is a reasonable probability that the result of the petitioner’s trial would have been different. When asked directly at oral argument what the result would have been had Leil objected, counsel was unable to suggest what additional or different curative instructions could have been issued. The petitioner, therefore, has not shown that had Leil objected, the judgment of conviction would not have been rendered.

In light of the petitioner’s failure to show prejudice as a result of counsel’s silence, we conclude as a matter of law that the petitioner failed to prove ineffective assistance of counsel with respect to the failure to object.

II

The petitioner also claims that the habeas court erred in finding that he was not rendered ineffective assistance of counsel despite Leil’s failure to call a witness, Rosado. We agree with the habeas court that the petitioner failed to prove that Leil’s performance was deficient under the first prong of Strickland. Leil testified that he made a professional assessment that Rosado was unnecessary to the petitioner’s case and that this decision was approved by the petitioner when he directed Leil to “go ahead” without Rosado.* The habeas court’s decision states that the record indicates that the “petitioner apparently did not feel that Rosado was integral to his defense at the time of trial and cannot now credibly come forward and claim that his attorney was ineffective for failing to call Rosado . . . .” We agree.

We need not reach the issue of whether the petitioner proved prejudice under Strickland because the record does not provide evidence that Leil was deficient in his search for Rosado or in his tactical decision to proceed, with the approval of his client.

Ill

Finally, the petitioner claims that trial counsel rendered ineffective assistance by failing to require an independent test of the substance in question. At the habeas trial, Leil testified that the theory of defense in the criminal trial was that a confidential informant who claimed he had purchased drags from the petitioner in fact brought the drags to the scene. Therefore, Leil suggested that an independent test of the drags or a claim that the substance was not illegal would have undermined the credibility of the defense claim that the confidential informant was a “dope fiend . . . .” Leil also stated he had no doubt that the substance was an illegal drag.

We agree with the habeas court’s determination that the petitioner failed to show deficient performance because the decision not to pursue independent testing was consistent with the theory of defense and because there was no indication “whatsoever” that had an independent test been done, the substance in question would have been revealed as anything other than a narcotic substance.

The petitioner argues throughout his brief that the cumulative effect of the three issues raised shows ineffective assistance of counsel. This claim is without merit. Both this court and our Supreme Court have declined to recognize such a claim. See Adorno v. Commissioner of Correction, 66 Conn. App. 179, 195 n.7, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001); see also State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).

We find nothing in the record showing that absent the alleged deficient performance, there is a reasonable probability that the decision would have come out differently. Therefore, we agree with the habeas court that the petitioner failed to prove that Leil rendered ineffective assistance in violation of his constitutional rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       This witness is referred to as Rosado in the habeas decision and the trial transcript but Rosotto in the petitioner’s brief and the habeas transcript. For simplicity, in this opinion we refer to the witness as Rosado.

       The relevant facts of the underlying conviction were set forth in the decision of this court disposing of the criminal appeal. State v. Diaz, 86 Conn. App. 244, 246-47, 860 A.2d 791 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1081 (2005).

       In its charge to the jury on possession of narcotics, the court stated: “Suffice it to say that possession in the sixth count is or has reference to the events at about 11:30 on the street and then for a brief period of time thereafter when, I believe, it’s plain that the [petitioner] had possession of the narcotics but then discarded [them], whatever he had.”

         The petitioner also claimed that his appellate counsel, senior assistant public defender Neal Cone, performed inadequately. This claim was denied by the habeas court and was not challenged on appeal.

       The petitioner characterizes this claim as one of “actual innocence.” This court agrees with the habeas court that, instead, the claim raises an effectiveness of counsel issue. The fact that the witness was available and known to both the petitioner and Leil prior to the criminal trial precludes a claim of actual innocence because there is no new evidence raised here that was not taken into account during the jury trial. See Miller v. Commissioner of Correction, 242 Conn. 745, 789, 700 A.2d 1108 (1997).

       “[I]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason.” (Internal quotation marks omitted.) Coleman v. Commissioner of Correction, 111 Conn. App. 138, 140 n.1, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009).

       The petitioner also cites Mercer v. Commissioner of Correction, 230 Conn. 88, 644 A.2d 340 (1994). That case is easily distinguished from the present case because the court in Mercer dismissed the petition without any evidentiary hearing. In the present case, the petitioner was allowed to present evidence in support of his claims for relief. We are not persuaded that Mercer provides guidance in the present case.

       The petitioner did not, and could not, raise an effectiveness of counsel claim on direct appeal. Except in rare cases, a claim of ineffective assistance of counsel must be raised by way of habeas corpus, rather than by direct appeal. See State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

       To the extent that the petitioner’s argument suggests that our original decision that the court’s statement constituted harmless error should be overruled, this is not within the province of a three judge panel of the Appellate Court. We note that “this court’s policy dictates that one panel should not, on its own, [overrule] the ruling of a previous panel. The [overruling] may be accomplished only if the appeal is heard en banc.” (Internal quotation marks omitted.) Boccanfuso v. Conner, 89 Conn. App. 260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). The record confirms that an en banc review was not requested.

       See Diaz v. Commissioner of Correction, supra, 86 Conn. App. 254 n.6, 255 n.7. The court told the jury exhaustively that it was the sole finder of fact and that no statements made by the court or attorneys should suggest otherwise, and properly instructed the jury that it had to find that the state proved each element beyond a reasonable doubt.

       At the criminal trial, the following relevant colloquy occurred:
      “Leil [the petitioner’s trial attorney]: Well, I had discussions with [the petitioner] about the fruitfulness of [postponing the trial to spend more time searching for witness Rosado] . . . and [the petitioner’s] desire [is] to proceed today. Basically, he’s determined that we should just go ahead. He wants to get this taken care of, and, so, you know, on balance, we feel that we should just proceed today with what we got.
      “The Court: In other words, your client is indicating that he does not wish you to devote any more time in trying to locate these people.

        “Leil: That’s correct.
      “The Court: Do you concur with that . . . ?
      “The Petitioner: Yes, Your Honor.”


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. RAYMOND BRIDGES
    (AC 30378)
    DiPentima, C. J., and Harper and SchaUer, Js.

      Argued September 16
    officially released November 16, 2010

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Amanda E. Gordon, certified legal intern, with whom were Michele C. Lukban, senior assistant state’s attorney, and, on the brief, John C. Smriga, state’s attorney, and Marc R. Durso, assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Raymond Bridges, appeals from the judgment of conviction, rendered following a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a) and larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). The sole claim raised in this appeal is that the court improperly denied the defendant’s motion to suppress certain evidence. We affirm the judgment of the trial court.

On June 30, 2008, following his arrest, the defendant filed a motion to suppress “any and all statements which [he] may have made to law enforcement personnel, on or after September 4, 2007, together with any and all evidence which the [s]tate may subsequently have accumulated by the exploitation of such statements and/or information related therein.” By way of the motion to suppress, as well as argument related thereto, the defendant asserted that, on September 4, 2007, the police had subjected him to a custodial interrogation, during which he was questioned about a burglary that had occurred in Bridgeport on August 29, 2007. The defendant argued that the police had not provided him with Miranda warnings prior to the interrogation and that his statements to the police concerning the crime were not voluntary but the fruit of an unlawful interrogation under the state and federal constitutions.

In July, 2008, the court conducted an evidentiary hearing on the defendant’s motion. At the hearing, the state and the defendant presented evidence. On July 14,2008, in a memorandum of decision, the court denied the motion to suppress. In its decision, the court set forth the following findings of fact: “The evidence produced at the hearing consisted of the testimony of Bridgeport police Officer Daniel Gomez, Detectives Eric King and Alex Ruiz and the defendant. Among the evidence introduced at the hearing were copies of the still photographs taken from the surveillance video that were shown to the defendant during the questioning on September 4, 2007.

“Testimony from the police established that a burglary and larceny occurred at ... a restaurant located in downtown Bridgeport on August 29, 2007. As a result of the investigation, burglary detectives distributed to downtown patrol officers copies of a photograph made from a surveillance video that depicted a suspect seen inside the restaurant. On September 4, 2007, Officer Gomez was patrolling the downtown area on a Segway [personal transportation device] when he observed the defendant, whom he believed to fit the description of the suspect in the photograph. Gomez contacted the detectives, maintained observation of the defendant and followed him until the detectives arrived.

“Responding Detectives King and Ruiz arrived in an unmarked detective bureau vehicle, which has no cage separating the front and backseats, and has back doors that can be opened by a passenger. Once the detectives arrived, King spoke with the defendant and informed him that he fit the description of an individual [who had] gained entry into [the restaurant] and that he was a suspect. King then asked the defendant if he would be willing to come into police headquarters to talk with them, and the defendant agreed. The defendant got into the backseat of the detectives’ car and proceeded to the city hall annex to speak with the detectives. He was not in handcuffs upon King’s and Ruiz’ arrival, and was never placed [in] handcuffs by the detectives. During the car ride from Main Street and Wells [Street] to the city hall annex on Broad Street, King advised the defendant on several occasions that he was not under arrest and was free to leave at any time. The defendant did not tell the detectives that he wanted to leave.

“King, Ruiz and the defendant walked to an interview room. The door to the room was open and remained open during the time the defendant was with the detectives. King again explained to the defendant that he was a suspect in the burglary of the restaurant and asked the defendant if he could take some photographs of him, and the defendant agreed. After that, King produced four photographs that had been taken from the surveillance video of the person inside [the restaurant]. After [observing] photographs one, two and three, the defendant agreed that he was the person [depicted] in the photograph[s]. At photograph four, a photograph depicting the individual with cash being put into [his] pocket, the defendant denied that it was a photograph of him. After some further questioning, the defendant maintained that photograph number four was not him, and he stated that he wanted to leave.

“Before the defendant left the interview room, King explained that he had sufficient information to obtain an arrest warrant for the defendant. The defendant gave King his cell phone number so that King could call him when the warrant was issued. The cell phone number appears on the first photograph shown to the defendant, state’s exhibit number ten. The defendant then left the interview room after declining a ride to Main Street and Wells [Street].

“The defendant’s version of the events of September 4, 2007, differed markedly from that of the police. In short, the defendant claimed that from the moment he encountered the police on Main Street, he was thrown down to the ground, handcuffed, taken to the city hall annex, photographed and then released. The defendant testified that, until he was released, he believed that he was under arrest. Although he admitted that on the prior times he had been arrested by the police he was fingerprinted and had mug shots taken, he acknowledged that such police activity did not occur on that day. He also admitted that it was in fact his cell phone number on state’s exhibit ten. The defendant’s version of events was simply not credible.”

Thereafter, the court stated that the issue before it was whether the defendant was in police custody on September 4, 2007, and, thus, was entitled to Miranda warnings during his encounter with the police. After setting forth the legal principles that guided its analysis, the court reasoned: “The more credible evidence establishes that the defendant was not in custody on September 4, 2007. The defendant was never in handcuffs, was told repeatedly that he was free to leave, was in a room with the door open during the questioning and [was] permitted to leave when he so requested. The defendant went to the city hall annex with the police voluntarily and gave them his cell phone number. The defendant left the police after telling them he no longer wanted to answer their questions. No reasonable person in the defendant’s position on September 4, 2007, would believe that he was in police custody.” In its analysis, the court relied heavily on the fact that the defendant had not been handcuffed and was told that he was free to leave and that he was not under arrest. Thereafter, the court denied the motion to suppress after concluding that the defendant had failed to demonstrate that he was in police custody and, thus, entitled to Miranda warnings.

“It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . . . The defendant bears the burden of proving that he was in custody for Miranda purposes. . . .

“A defendant in custody is subject to interrogation not only in the face of express questioning by police but also when subjected to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . Whether a defendant in custody is subject to interrogation necessarily involves determining first, the factual circumstances of the police conduct in question, and second, whether such conduct is normally attendant to arrest and custody or whether the police should know that such conduct is reasonably likely to elicit an incriminating response.

“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... As we have noted previously, however, when a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights, and the credibility of witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court’s factual findings are supported by substantial evidence. . . . [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision ....

“The question of whether a defendant is in custody for purposes of a custodial interrogation involves a two step inquiry. The trial court first makes a factual determination of the circumstances surrounding the alleged interrogation and then applies those facts to an objective test as to whether a reasonable person would have felt that he or she was not at liberty to leave. . . . The first inquiry is factual and will not be overturned unless, after a scrupulous examination of the record, we find that it is clearly erroneous. . . . The second question calls for application of the controlling legal standard to the historical facts [which is a question of law]. . . . The ultimate determination of whether a defendant was subjected to a custodial interrogation, therefore, presents a mixed question of law and fact, over which our review is de novo.” (Citations omitted; internal quotation marks omitted.) State v. Mullins, 288 Conn. 345, 361-63, 952 A.2d 784 (2008).

The defendant claims, on the basis of the historical facts found by the trial court, that it improperly concluded that, on September 4, 2007, he was not entitled to the warnings constitutionally required by Miranda because he was not in police custody during the interrogation that occurred on that date. The defendant does not argue that the court’s findings of fact concerning what transpired on September 4, 2007, were clearly erroneous. Although the court did not explicitly address these issues in its memorandum of decision, the state appeared to agree at the conclusion of the suppression hearing that an interrogation of the defendant had occurred and that such interrogation was not preceded by the giving of Miranda warnings. The state does not assert any contrary arguments here. Accordingly, the issue before us is a narrow one; our focus is on the court’s explicit legal conclusion that the defendant’s privilege against self-incrimination was not violated because he was not in police custody during his interrogation.

Our Supreme Court has observed that “[n]o definitive list of factors governs a determination of whether a reasonable person in the defendant’s position would have believed that he or she was in custody. Because, however, the Miranda court expressed concern with protecting defendants against interrogations that take place in a police-dominated atmosphere containing inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely . . . circumstances relating to those kinds of concerns are highly relevant on the custody issue. ” (Citation omitted; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 758, 670 A.2d 276 (1996). Although our case law does not furnish a formulaic analysis to resolve the issue of custody, we will focus on several factors that our courts have deemed to be highly relevant in determining whether an individual was in custody during an interrogation.

First, the defendant voluntarily accompanied the detectives to the detective bureau at the city hall annex for questioning. The court found that “King . . . asked the defendant if he would be willing to come into police headquarters to talk with [the detectives], and the defendant agreed.” The fact that the defendant accompanied the detectives voluntarily supports a determination that he was not in police custody. See State v. Britton, 283 Conn. 598, 612, 929 A.2d 312 (2007); State v. Turner, 267 Conn. 414,438,838 A.2d 947, cert. denied, 543 U.S. 809,125 S. Ct. 36,160 L. Ed. 2d 12 (2004); State v. Atkinson, supra, 235 Conn. 760; State v. Papan, 107 Conn. App. 118, 125, 944 A.2d 387, cert. denied, 287 Conn. 917, 951 A.2d 568 (2008).

Second, the court found that, during the automobile ride to the city hall annex, the detectives repeatedly informed the defendant that he was not under arrest and that he was free to leave at any time. During questioning, the defendant was told repeatedly that he was free to leave. Our Supreme Court has stated: “[A] fact finder reasonably might find that a reasonable person would feel free to leave when that person was told repeatedly that he could do so. See State v. Greenfield, 228 Conn. 62, 71 n.10, 634 A.2d 879 (1993) (an important factor distinguishing a consensual encounter from a seizure is whether the police expressly informed the defendant that he was free to leave at the outset of the interview); State v. Northrop, 213 Conn. 405, 415, 568 A.2d 439 (1990) ([i]t is difficult to conceive of a reasonable man who would not feel free to leave after having been told so many times and in so many ways that he could).” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 413, 736 A.2d 857 (1999). The defendant did not state that he wanted to leave the detectives’ presence until after he had viewed photograph number four. At that time, he stated that he wanted to leave and was permitted to do so freely. Additionally, the evidence reflects that the defendant was not questioned for an extensively long period of time, but approximately forty-five minutes. See, e.g., id., 414 (two and one-half hour interrogation in nonhostile environment does not give rise to determination that defendant in custody).

Third, the defendant was not physically restrained or subjected to police force in a manner consistent with a formal arrest. The detectives transported the defendant to the city hall annex in the backseat of an unmarked automobile that did not have a cage separating the front and back of the automobile. The automobile’s back doors could be opened by the backseat occupant. At no time was the defendant placed in handcuffs. Furthermore, the defendant was not placed in a locked room or a jail cell at the city hall annex; the door to the questioning room was kept open during questioning. There was no evidence that the detectives displayed any type of weapons during their encounter with the defendant. Factors of this type strongly support a determination that a reasonable person in the defendant’s position would not have believed that he was in police custody. See, e.g., State v. Britton, supra, 283 Conn. 612 (court deems it relevant that defendant “not handcuffed or subjected to force”); State v. Kirby, 280 Conn. 361, 396, 908 A.2d 506 (2006) (court relies on fact defendant not handcuffed prior to questioning but after arrest); State v. Turner, supra, 267 Conn. 439 (court observes defendant “not threatened in any way” prior to or during interrogation); State v. Atkinson, supra, 235 Conn. 760 (court relies on fact detectives did not threaten or use force, display weapons or threaten defendant in any way); State v. Doyle, 104 Conn. App. 4, 14, 931 A.2d 393 (court deems it relevant interview occurred in unlocked room and defendant not physically restrained in any way), cert. denied, 284 Conn. 935, 935 A.2d 152 (2007).

Fourth, prior to questioning there had been no formal arrest of the defendant, and he was informed that he was not under arrest. Such factors support a determination that a person in the defendant’s position would not reasonably believe that he was in police custody. See, e.g., State v. Britton, supra, 283 Conn. 612 (defendant “told repeatedly that he was not under arrest and that he could leave at any time”).

Fifth, the detectives transported the defendant in an unmarked automobile. The fact that the detectives provided transportation to the defendant in and of itself does not necessitate a determination that he was in police custody. See, e.g., id., 606; State v. Binder, supra, 250 Conn. 412; State v. Atkinson, supra, 235 Conn. 760; State v. Pagan, supra, 107 Conn. App. 122. Additionally, there was no evidence that the automobile had police lights or sirens, or that they were activated when the detectives approached or transported the defendant. These factors made it less likely that a person in the defendant’s position reasonably would have believed that he was compelled to accompany the detectives to police headquarters but could not voluntarily reject the request to accompany the detectives. See State v. Burroughs, 288 Conn. 836, 849-51, 955 A.2d 43 (2008) (noting that use of overhead flashing lights, side spotlights and sirens conveys police authority and supports determination that reasonable person would believe he was not free to leave presence of police).

In analyzing the facts of this case, we are mindful that “[a] person, even if a suspect in a crime, is not in custody every time he is asked questions at a police station.” State v. Northrop, supra, 213 Conn. 415. Here, the interview occurred in an interview room at the city hall annex being used by the detective bureau, and the door to the room remained open during the interrogation. Even an interview in a closed door setting does not necessarily give rise to a determination that the interview was custodial in nature. See, e.g., State v. Turner, supra, 267 Conn. 440 (“mere fact that the defendant’s interview took place behind closed doors at the police station does not entitle the defendant to Miranda warnings”).

Having reviewed the court’s findings of fact and the evidence in the entire record, we conclude that a reasonable person in the defendant’s position would not have believed that he was in custody. Accordingly, we agree with the trial court that the defendant did not demonstrate that he was entitled to Miranda warnings. The court properly denied the defendant’s motion to suppress evidence on that ground.

Before concluding our analysis of this issue, we address certain facts on which the defendant relies to demonstrate that he was in custody. The defendant draws our attention to Gomez’ testimony at the suppression hearing that he was on patrol duty, and presumably in uniform, when he observed the defendant. After at least one other officer arrived on the scene, Gomez approached the defendant and told him that “[h]e has to be questioned for a . . . burglary that happened a couple days ago and . . . detectives . . . should be here soon to talk to you.” Gomez testified that, thereafter, the detectives arrived on the scene within “a minute and a half.” The defendant asserts that Gomez’ initial statement reasonably could be construed to suggest that the defendant was not free to leave the scene and that the presence of uniformed patrol officers and two detectives would lead a reasonable person to believe that he or she was in custody. For the reasons discussed below, we disagree that these facts are dis-positive.

Certainly, the number of police personnel who approached the defendant on a public street could influence our analysis of the issue of custody. In the present case, however, the evidence reflects that Gomez approached the defendant, spoke with him briefly and then stepped away from the defendant when the two detectives arrived on the scene very shortly thereafter. Gomez’ testimony, deemed credible by the trial court, does not give rise to any concerns that Gomez would have led a person in the defendant’s position to believe that he was in custody during the very brief time period before the detectives arrived on the scene. Certainly, there is no claim made or evidence to suggest that Gomez interrogated the defendant. Furthermore, the words and conduct of the detectives, fully analyzed above, were sufficient to dispel any notion that the defendant was not free to leave the scene or that his attendance at an interview was in any way required. In analyzing the facts of the case, we do not view some of them in artificial isolation but in light of all of the facts relevant to our analysis.

Also, the defendant relies on King’s suppression hearing testimony that he told the defendant that he fit the description of the restaurant burglar and that “he was a suspect” in the crime. Under the circumstances present, the defendant’s being labeled “a suspect” does not cause us to conclude that the defendant was in custody. The United States Supreme Court has stated: “Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer’s degree of suspicion will depend upon the facts and circumstances of the particular case. In sum, an officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.” Stansbury v. California, 511 U.S. 318, 325, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994).

Further, the defendant draws our attention to the trial testimony of Ruiz that, when he came upon the defendant, the defendant was with a female companion and was carrying containers of food. The defendant asserts that when he accompanied the detectives, he was separated from his food and his female companion, and that these facts support a conclusion that he was taken into police custody. These facts do not affect our conclusion. The weight of the evidence wholly supports the court’s finding that the defendant accompanied the detectives to police headquarters of his own free will; the natural consequence of that decision was that the defendant became separated from his food and his female companion. Stated otherwise, the police, by use of force or restraint, did not separate the defendant from his food or his female companion. Consequently, the defendant’s argument is untenable.

Additionally, the defendant argues that the fact that he was photographed at the police headquarters — a procedure that invariably occurs following an arrest— supported a conclusion that he was in police custody. The court’s findings, amply supported by the evidence, readily weaken this contention. The court found that the defendant agreed to be photographed by the police: “King . . . explained . . . that [the defendant] was a suspect in the burglary of the restaurant and asked the defendant if he could take some photographs of him, and the defendant agreed.” The defendant freely decided to accompany the detectives to the city hall annex, the police asked the defendant if they could photograph him, and he voluntarily agreed to be photographed. The photograph was taken voluntarily and cannot be said to have resulted from any restriction on the defendant’s freedom. Accordingly, the fact that the detectives took photographs of the defendant does not lead us to conclude that he was in custody.

Finally, the defendant asserts that his mere presence in an interview room at the city hall annex in the presence of two detectives, after being driven to that location by the detectives, strongly supports a finding that he was in custody. As our previous analysis reflects, these facts, viewed in artificial isolation, are by no means dispositive because, under the circumstances present, they do not reflect any degree of restraint on the defendant’s freedom, let alone that degree of restraint associated with an arrest. The defendant also argues that, in light of the circumstances of this case, neither the fact that he repeatedly was told that he was free to leave nor that he was not placed in handcuffs necessarily leads to a conclusion that he was not in custody. We agree that neither of these factors is dispositive of the issue of custody; for this reason, our analysis has taken into consideration all of the facts and evidence relevant to the issue of custody in the present case. These facts, viewed as a whole, lead us to conclude that a custodial interrogation of the defendant did not occur on September 4, 2007.

The judgment is affirmed.

In this opinion the other judges concurred.

       Additionally, the defendant pleaded guilty to being a persistent serious felony offender under General Statutes § 53a-40 (c), as alleged in a part B information. The court imposed a total effective sentence of sixteen years incarceration.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The court’s analysis appears to be based on the federal constitution, and, on appeal, the defendant has not separately analyzed his claim under the state constitution. Accordingly, we review the present claim under the federal constitution. See, e.g., State v. Dyson, 238 Conn. 784, 794, 680 A.2d 1306 (1996) (“[b]ecause the defendant has failed to provide any independent analysis under the state constitution, we limit our analysis to the federal constitution”).

       In resolving the issue of custody, our sole focus is on objective factors surrounding the interrogation of the defendant. Nevertheless, in our scrupulous examination of the record, we observe that the defendant’s conduct r at the city hall annex reflected his subjective belief that he was not in police custody during the interrogation. The defendant informed the police that he wanted to leave after being shown photograph number four. After King told the defendant that an arrest warrant would be forthcoming, the defendant freely provided his cellular telephone number to King who wrote it on the back of one of the photographs shown to him so that King could call him when the warrant had been issued. The defendant left the interview room without incident after he had declined a ride from the detectives.
      As our Supreme Court has observed, “the act of leaving may, in hindsight, lend credence to a determination that the suspect was actually free to leave during the course of the questioning . . . .” State v. Pinder, supra, 250 Conn. 416. Moreover, the evidence, including the defendant’s testimony at the suppression hearing, reflects that the defendant had an extensive arrest history and that he was familiar with police conduct that was incident to a formal arrest. The defendant testified, for example, that he was fingerprinted following his prior thirty-eight arrests. The police did not fingerprint the defendant on September 4, 2007.

       Gomez testified at the suppression hearing that, after observing the defendant and notifying police headquarters, he “detained” the defendant after “cover” arrived upon the scene. Certainly, Gomez’ subjective assessment, that he had “detained” the defendant does not govern our analysis. See Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004) (subjective views of police irrelevant in assessing whether suspect in custody). Gomez testified that he was not patrolling the area in a police cruiser, but on a Segway. He did not arrest the defendant, place him in handcuffs or restrain him in a police automobile but told the defendant that “[h]e has to be questioned for ... a burglary that happened a couple days ago and . . . detectives are coming [and] should be here soon to talk to you.” Gomez testified that the defendant merely replied, “no problem.” Gomez testified that he did not indicate that the defendant could not leave the scene.