author: SHELDON, J.

text:
    JUDSON BROWN v. COMMISSIONER OF CORRECTION
    (AC 34036)
    Robinson, Espinosa and Sheldon, Js.

      Argued November 15, 2012
    officially released March 12, 2013

      John C. Drapp III, assigned counsel, with whom, on the brief, were Joseph A. Jaumann, assigned counsel, and Diana M. Gomez, assigned counsel, for the appellant (petitioner).

      James A. Kilim, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, assistant state’s attorney, for the appellee (respondent).
   Opinion

SHELDON, J.

The petitioner, Judson Brown, appeals from the denial of his second postconviction petition for a writ of habeas corpus challenging the legality of his 1998 convictions for arson in the first degree and conspiracy to commit arson in the first degree. On appeal, the petitioner claims that the second habeas court improperly rejected his claim that counsel in his first postconviction habeas corpus proceeding rendered ineffective assistance, based on her failure to raise certain claims on his behalf in that proceeding. The court ruled that counsel in the first habeas proceeding was not ineffective for failing to raise the claims in question because the petitioner had procedurally defaulted on those claims in a manner that did not justify their later assertion under the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), and, thus, he could not have prevailed on such claims in his first habeas proceeding. On that basis, the second habeas court determined that the first habeas counsel's failure to raise those claims was not prejudicial to the petitioner in that proceeding. We affirm the judgment of the habeas court.

The following procedural history underlies the present appeal. In October, 1996, the petitioner was arrested and charged with two counts of arson in the first degree in violation of General Statutes §§ 53a-lll (a) (3) and 53a-lll (a) (4) and one count of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-lll and 53a-48, in connection with a fire that occurred in August, 1996, at a building in New Haven, which was owned by an associate of the petitioner. The state alleged that the petitioner committed the crimes in question to collect a share of the insurance proceeds paid out in connection with the fire.

After his arrest, the petitioner, claiming indigency, applied for the services of a public defender for his defense at trial. His application was granted and, in December, 1996, Attorney Mary Haselkamp, an assistant public defender, filed an appearance on his behalf. Two years later, in October, 1998, as the scheduled date of trial approached, Attorney Francis Mandanici, an assistant public defender, also appeared in the case to assist in the petitioner’s defense.

Shortly thereafter, however, on November 12, 1998, the state filed a motion for a judicial determination of the petitioner’s eligibility for public defender services. The following day, the petitioner’s public defenders, upon reviewing the state’s motion and supporting documentation and after conducting their own investigation of the matter, determined that the petitioner was not, in fact, eligible for public defender services. On the basis of that determination, they promptly filed a motion to withdraw their appearances for the petitioner pursuant to General Statutes § 51-297 (c). Although jury selection in the petitioner’s trial was scheduled to begin shortly after the motion to withdraw was filed, the public defenders believed, correctly, that if their motion to withdraw were granted, the court would grant the petitioner a reasonable continuance to retain private counsel for his defense at trial. In fact, the petitioner’s trial did not begin until approximately six months after the court granted the motion to withdraw on November 16, 1998.

The petitioner initially chose to pursue an appeal to the court from his public defenders’ determination that he was ineligible for their services pursuant to General Statutes § 51-297 (g), which provides: “If the Chief Public Defender or anyone serving under the Chief Public Defender determines that an individual is not eligible to receive the services of a public defender under this chapter, the individual may appeal the decision to the court before which the individual’s case is pending.” On November 18, 1998, at the beginning of the evidentiary hearing on his statutory appeal, however, the petitioner expressly waived his right to continue prosecuting the appeal. Thereafter, on December 11, 1998, having decided to represent himself at trial rather than hire private counsel, the petitioner filed a pro se appearance.

The petitioner’s jury trial, in which he represented himself, commenced in May, 1999. At the conclusion of the trial, the petitioner was convicted of all charges against him. Ultimately, he was sentenced on those convictions to a total effective sentence of twenty-five years imprisonment.

Thereafter, the petitioner appealed his convictions to our Supreme Court, on the sole ground of prosecutorial impropriety. Upon rejecting that claim, the court affirmed the judgment of conviction. State v. Brown, 256 Conn. 291, 293-94, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001).

The petitioner filed his first postconviction petition for a writ of habeas corpus on June 7, 2002. In that proceeding, he was represented by Attorney Justine Miller, special public defender. In the petition on which he went to trial, the petitioner challenged his arson and conspiracy convictions on four grounds: improper withdrawal by trial counsel from his case; ineffective assistance by his trial counsel; judicial misconduct by the trial judge; and ineffective assistance by his appellate counsel. The habeas court, A. Robinson, J., denied the petition, and this court later affirmed its judgment on appeal. Brown v. Commissioner of Correction, 92 Conn. App. 382, 383, 885 A.2d 761 (2005), appeal dismissed, 281 Conn. 466, 915 A.2d 870 (2007).

In the present case, the petitioner’s second postcon-viction habeas corpus proceeding, the petitioner claims that his counsel in the first habeas proceeding rendered ineffective assistance to him by: (1) failing to raise the claim that he was entitled to a new trial because he was deprived of his constitutional right to counsel at trial; and (2) failing to raise the claim that his appellate counsel was ineffective in failing to raise the aforementioned right to counsel claim on his direct appeal. The respondent commissioner of correction (commissioner) answered this second habeas petition by denying both of the petitioner’s claims and asserting, as special defenses, that his claims were barred by the doctrine of res judicata, or, in the alternative, that the doctrine of deliberate bypass prohibited the petitioner from raising those claims. Following an evidentiary hearing, the court, Fuger, J., in a thorough memorandum of decision, denied the petition on the ground of lack of prejudice because the petitioner could not have prevailed on either unraised claim on habeas corpus by reason of procedural default of such a manner that prevented the petitioner from presenting any evidence that would have allowed the court “to conclude that there was any cause or prejudice to override the procedural default.” The court granted the petitioner’s subsequent petition for certification to appeal from that judgment on August 26, 2011, and this appeal followed.

“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.” (Internal quotation marks omitted.) Morris v. Commissioner of Correction, 131 Conn. App. 839, 842, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 915 (2011).

The intersection of the petitioner’s claim of ineffective assistance of counsel with the doctrine of procedural default implicates both the “performance and prejudice” test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and the “cause and prejudice” standard of Wainwright v. Sykes, supra, 433 U.S. 87. As a threshold matter, “[t]o succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, [supra, 466 U.S. 687]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. . . . The claim will succeed only if both prongs are satisfied. ... As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. Thus . . . the petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . .” (Citation omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 133 Conn. App. 96, 101-102, 33 A.3d 883, cert. denied, 303 Conn. 941, 37 A.3d 153 (2012).

In the present case, the court ruled that the petitioner was unable to demonstrate that Miller’s allegedly deficient performance in the first habeas proceeding prejudiced him, as is required to succeed on his ineffective assistance of counsel claim. According to the habeas court, because the petitioner failed to prosecute to conclusion his statutory appeal from the public defenders’ determination that he was ineligible for their services at trial, in the manner prescribed by § 51-297 (g), he forfeited his right to challenge that determination in any subsequent proceeding, and he failed to demonstrate “cause and prejudice” for not prosecuting his statutory appeal.

In Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the “cause and prejudice” standard, espoused by the United States Supreme Court in Wainwright, which limits the reviewability of claims first raised in. a habeas corpus action. In Johnson, the court held, more particularly, that the cause and prejudice test was applicable to procedural defaults that occurred at the trial level. Johnson v. Commissioner of Correction, supra, 419. Later, in Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993), our Supreme Court applied the cause and prejudice standard to the failure to raise a claim on direct appeal. “Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .” (Internal quotation marks omitted.) Brunetti v. Commissioner of Correction, 134 Conn. App. 160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44 A.3d 180 (2012). The burden of proving cause and prejudice for a procedural default rests on the petitioner. Johnson v. Commissioner of Correction, supra, 409.

Claiming that he did not procedurally default on his right to counsel claim, the petitioner in the present case argues that he had good cause for discontinuing his statutory appeal from his public defenders’ determination that he was not financially eligible for their services at trial. According to the petitioner, “he was concerned about pursuing the appeal of the determination that he was ineligible for public defender services because it would require him to give testimony about his financial situation and the criminal charges were arson, purportedly for profit.” The petitioner explains that his “testimony [in the evidentiary hearing appealing the determination] would have presumably painted a bleak picture of the petitioner’s finances. This would have been useful evidence in an arson prosecution which involved allegations of a building burning shortly after an insurance policy was purchased on the building and its contents, and a woman associated with the petitioner thereafter collecting $412,000 in insurance proceeds as a result of the fire.” As support for his claim, the petitioner relies on Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), and argues that, by requiring him to appeal from the public defenders’ eligibility determination, the trial court improperly forced him to choose between asserting his sixth amendment right to counsel and his fifth amendment privilege against self-incrimination.

The petitioner’s reliance on Simmons is unfounded. There, the United States Supreme Court held that by permitting the government to make substantive use of a defendant’s self-incriminatory testimony concerning his ownership of certain seized property, which was necessary to establish his personal expectation of privacy in such property and resulting right to bring a fourth amendment challenge to the legality of its seizure and later search by government agents, the court would unduly burden the exercise of his fourth amendment rights with the waiver of his fifth amendment privilege against compelled self-incrimination. Simmons v. United States, supra, 390 U.S. 389-94. Accordingly, the court granted the defendant relief from the tension between these two fundamental rights by affording him immunity from the use of his suppression testimony against him in the government’s case-in-chief at trial. Id., 394.

Here, the petitioner faced no such dilemma. At the evidentiary hearing on his statutory appeal from his public defenders’ determination that he was ineligible for their services at trial, the defendant was not required to testify or otherwise to provide evidence that was in any way incriminating. Rather, the petitioner suggests that, in making his claim of eligibility for public defender services he would have “[painted] a bleak picture of [his] finances,” thereby revealing a potential motive for committing arson for profit. Such a situation does not implicate Simmons.

It is well established that the United States constitution does not forbid “every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Chaffin v. Stynchcombe, 412 U.S. 17, 30, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973); see also Ohler v. United States, 529 U.S. 753, 757, 120 S. Ct. 1851, 146 L. Ed. 2d 826 (2000) (“the [state] and the defendant in a criminal trial must make choices as the trial progresses”); Corbitt v. New Jersey, 439 U.S. 212, 218, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978) (“not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such aright, is invalid”). Moreover, in McGautha v. California, 402 U.S. 183, 212, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971), the court stated that although it did not dispute the result in Simmons, its rationale was “open to question.” The court stated: “The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which coruse to follow. . . . Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the [constitution does not by that token always forbid requiring him to choose.” (Citation omitted; internal quotation marks omitted.) Id., 213.

In the present case, given the fact that the petitioner’s evidentiary hearing did not condition his claim of eligibility upon the admission of inherently inculpatory facts, burdening the petitioner with the choice whether to prosecute his statutory appeal created no unconstitutional tension between the assertion of conflicting rights of the sort that was recognized in Simmons. This court thus concludes that the habeas court properly found that the petitioner has failed to show cause and prejudice for his failure to prosecute to conclusion his statutory appeal from the determination of his public defenders that he was not eligible for their services at trial.

Our conclusion, that the habeas court properly found that the petitioner procedurally defaulted on his claim regarding the withdrawal of his trial counsel by reason of their determination that he was ineligible for public defender services, leads us to conclude that, even if the petitioner’s first habeas counsel had raised a challenge to that withdrawal in the petitioner’s first habeas proceeding, there is no reasonable probability that that court would have granted relief to the petitioner on the basis of that claim. See Williams v. Commissioner of Correction, supra, 133 Conn. App. 101-102. We agree with the habeas court that the petitioner has failed to demonstrate that Miller’s assistance prejudiced him, and he cannot prevail on his claim that Miller was ineffective in failing to raise the subject claims at his first habeas trial. Bosque v. Commissioner of Correction, 130 Conn. App. 383, 387-88, 23 A.3d 90 (“[a] reviewing court can find against a petitioner on either [the performance prong or the prejudice prong], whichever is easier” [internal quotation marks omitted]), cert. denied, 302 Conn. 932, 28 A.3d 344 (2011). The petitioner, therefore, cannot prevail on his claim that the second habeas court improperly rejected this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       For the underlying factual history of the crimes for which the petitioner was convicted, see State v. Brown, 256 Conn. 291, 294-97, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001).

       General Statutes § 51-297 (c) provides in relevant part: “If a public defender ... is appointed to provide assistance to any person and he subsequently determines that the person is ineligible for assistance, the public defender . . . shall promptly inform the person in writing and make a motion to withdraw his appearance ... as soon as it is practical to do so without prejudice to the case, giving the defendant a reasonable time to secure private counsel. ...”

       On direct appeal, the petitioner specifically claimed “that the state’s attorney improperly: (1) conducted the voir dire; (2) criticized the defendant’s pro se trial techniques in front of the jury; (3) appealed to the juror’s emotions; and (4) commented upon the defendant’s failure to testify.” State v. Brown, supra, 256 Conn. 297.

       The petitioner originally filed a pro se petition for a writ of habeas corpus on or about February 14, 2001. In that habeas proceeding, however, the operative second amended petition was filed by his counsel on June 7,2002.

       Miller’s representation of the petitioner, which the petitioner claims was constitutionally defective, is the subject of the present appeal.

       On appealing from the judgment of the habeas court in his first postcon-viction proceeding, the petitioner claimed “that the court improperly concluded that he was not deprived of the effective assistance of counsel because of the alleged failure of his public defenders to ensure that he received his file promptly following their withdrawal from his criminal case.” Brown v. Commissioner of Correction, supra, 92 Conn. App. 383.

       Specifically, the commissioner claimed that, to the extent that the petitioner was attempting to assert one or more claims that had been already raised and decided either on direct appeal or in his first postconviction habeas proceeding, the doctrine of res judicata applied to bar relitigation of those claims because he had already had the opportunity fully and fairly to litigate those claims. In the alternative, the commissioner claimed that, to the extent that the petitioner was attempting to assert one or more claims that he could have raised either on direct appeal or in his first postconviction habeas proceeding, but did not, the petitioner deliberately bypassed the opportunity to contest those issues, and had failed to show cause and prejudice as to why the subject claims were not raised in prior proceedings.

       We note that, although “[a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings”; (internal quotation marks omitted) Dennis v. Commissioner of Correction, 134 Conn. App. 520, 531, 39 A.3d 799 (2012); it is well established that “the sixth amendment [also] embodies a right to self-representation and that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Emphasis in original; internal quotation marks omitted.) State v. Flanagan, 293 Conn. 406, 417, 978 A.2d 64 (2009). Here, the trial court informed the petitioner of his statutory right to appeal the public defenders’ determination before he chose to file apro se appearance. Accordingly, because the petitioner voluntarily and intelligently elected to waive his right to pursue his statutory appeal to completion, the cause and prejudice test applies to this case.

       See footnote 1 of this opinion.

       Because we have concluded that the petitioner has failed to demonstrate good cause for his failure to raise the subject claims at trial and/or on direct appeal, we need not reach the issue of whether the petitioner has demonstrated prejudice, under the conjunctive Wainwright standard, from the impropriety alleged in his second amended habeas petition.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RICHARD GAY ET AL. v. SAFECO INSURANCE COMPANY OF AMERICA
    (AC 33846)
    (AC 33847)
    Gruendel, Lavine and SchaUer, Js.

      Argued November 29, 2012
    officially released March 12, 2013

      Philip T. Newbury, Jr., for the appellant (defendant).

      John M. Zullo, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

This consolidated appeal arises from a counterclaim for insurance fraud tried before a jury. The defendant, Safeco Insurance Company of America (Safeco), appeals from the judgment of the trial court in favor of the plaintiffs, Richard Gay and Marie Gay (Gays), denying its motion to set aside the verdict and its motion for judgment notwithstanding the verdict. Specifically, Safeco argues that (1) the court improperly advised Richard Gay, sua sponte, as to his privilege under the fifth amendment to the United States constitution against self-incrimination and (2) the court abused its discretion by denying Safeco’s motion to compel inspection of the Gays’ home. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to resolving this appeal. In 2006 and 2007, the Gays held a homeowners insurance policy with Safeco. Pursuant to that policy, Safeco paid the Gays more than $100,000 in combined benefits for afumace malfunction and a burst pipe. In February, 2008, the Gays filed a breach of contract action against Safeco alleging that it had failed to pay all covered losses. In February, 2009, Safeco filed a counterclaim alleging fraud, among other things, in connection with the Gays’ insurance claims.

Approximately two months before trial, on March 1, 2011, Safeco filed a disclosure of two expert witnesses, and on March 3, 2011, Safeco filed a motion to compel a reinspection of the home by those two witnesses. The Gays objected, arguing that Safeco already had inspected their home, and that the last-minute inspection by two experts would prejudice the Gays. The Gays argued that they would have to prepare a defense and perhaps find and employ experts of their own within a short period of time. The court denied Safeco’s motion.

The jury trial commenced in May, 2011. Richard Gay was called as the first witness. On cross-examination, counsel for Safeco questioned Richard Gay about his income tax returns and the Gays’ claims. Several times, outside the presence of the jury, the court apprised him of his fifth amendment privilege against self-incrimination. Safeco did not object. In the presence of the jury, Richard Gay claimed his fifth amendment privilege on cross-examination, and he refused to answer a number of questions.

The court instructed the jury that it could draw an adverse inference from Richard Gay’s invocation of the privilege. The jury returned a verdict for Safeco on the Gays’ claim for breach of contract, and the jury returned a verdict for the Gays on Safeco’s counterclaim. On its counterclaim, Safeco then filed amotion to set aside the verdict and for judgment notwithstanding the verdict. Safeco argued, for the first time, that the court improperly advised Richard Gay as to his fifth amendment privilege because he had waived the privilege by testifying on direct examination. The court denied the motions and this appeal followed. Further facts and procedural history are set forth as required.

I

Safeco’s first claim is that the court improperly advised Richard Gay as to his privilege against self-incrimination under the fifth amendment to the United States constitution, citing Brown v. United States, 356 U.S. 148, 153, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958). The Gays contend that the issue is not preserved. Safeco argues in response that (1) it preserved the issue by filing posttrial motions and (2) in the alternative, the error is reversible pursuant to the plain error doctrine. We agree with the Gays.

We review the relevant legal standards. Practice Book § 60-5 provides in relevant part: “The [appellate] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” (Emphasis added.) The rule further provides that “[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 60-5. “[T]he plain error doctrine . . . is not ... a rule of reviewability. It is a rule of reversibility. . . . [I]t is a doctrine that [a reviewing] court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . [T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). “[A]n important factor in determining whether to invoke the plain error doctrine is whether the claimed error resulted] in an unreliable verdict or a miscarriage of justice.” (Internal quotation marks omitted.) State v. Samuels, 273 Conn. 541, 572, 871 A.2d 1005 (2005).

Safeco concedes that it did not object to the court’s advisement at the time it was given during evidence. Rather, Safeco argues that the issue is preserved because it raised the claim in posttrial motions. In the present case, the claim did not arise subsequent to the trial, and Safeco did not raise the issue prior to judgment. See Practice Book § 60-5; see also 75 Am. Jur. 2d Trial § 5 (2007) (“[a] jury trial is not complete until all issues of law and fact have been determined and the final judgment entered”). Accordingly, the claim is not preserved, and we decline to review it.

Safeco’s argument that the claim qualifies as plain error is similarly unavailing. Safeco presents no reason to believe that the alleged error is so obvious that it would undermine public confidence in the judicial process nor to believe that the verdict is unreliable or a miscarriage of justice. See State v. Myers, supra, 290 Conn. 289; State v. Samuels, supra, 273 Conn. 572. Other than asserting that the present case has “constitutional ramifications,” Safeco identifies no reason to apply the plain error doctrine. If this argument sufficed, every claim of constitutional error would qualify for appellate consideration under the plain error doctrine.

Furthermore, at oral argument before this court, counsel for Safeco acknowledged that he recognized a “beneficial effect” at the time from Richard Gay’s invocation of the privilege. Safeco enjoyed the tactical benefit of the court’s instruction to the jury that it could draw an adverse inference from Richard Gay’s refusal to answer, and Safeco withheld its objection until after the jury returned a verdict against its interests. The plain error doctrine will not rescue a party from the consequences of its own strategic choice. See State v. Burke, 182 Conn. 330, 332 n.3, 438 A.2d 93 (1980) (“[h]ad there been any indication that defense counsel had made a strategic decision to sit silently . . . and then raise this claim of error if the verdict proved unpalatable ... we would have refused to review the defendant’s claim [under the plain error doctrine]” [citation omitted]).

n

Safeco’s second claim is that the court abused its discretion by denying Safeco’s motion to compel inspection of the Gays’ home. Safeco argues that the court improperly denied the motion in concluding that Safeco had not shown that evidence outside the record was required. We disagree.

Practice Book § 13-9 provides in relevant part: “Requests for Production, Inspection and Examination .... [W]here the judicial authority finds it reasonably probable that evidence outside the record will be required, any party may . . . request ... to permit entry upon designated land . . . for the purpose of inspection . . . .” “[T]he granting or denial of a discovery request ... is subject to reversal only if such an order constitutes an abuse of . . . discretion.” (Internal quotation marks omitted.) Coss v. Steward, 126 Conn. App. 30, 46, 10 A.3d 539 (2011). “Under the abuse of discretion standard, [a reviewing court] must make every reasonable presumption in favor of the trial court’s action.” (Internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 775, 48 A.3d 16 (2012).

In its brief on appeal, Safeco argues that the inspection “was necessary to show the current condition of [the] property ... at issue in the case.” In sustaining the Gays’ objection, the court stated that Safeco “has not shown that it is reasonably probable that evidence outside the record is required.” Although Safeco contends that further inspections were required, it concedes that there were prior inspections. We conclude that the court did not abuse its discretion in denying Safeco’s motion to compel inspection.

The judgment is affirmed.

       On September 2,20H, Safeco filed an appeal from the court’s judgment in the present case. On September 13, 2011, Safeco filed a second appeal from the court’s judgment. Safeco’s preliminary statement of the issues in both appeals was identical. This court consolidated the appeals. Thereafter, without amending its appeal, Safeco attempted to articulate a claim that the court improperly determined the costs awarded to Safeco. See, e.g., Jewett v. Jewett, 265 Conn. 669, 672-73 n.4, 830 A.2d 193 (2003); Practice Book § 61-9.
      At oral argument before this court, Safeco withdrew its claim that the court improperly awarded costs. Accordingly, we do not address that claim further.

       The fifth amendment to the United States constitution provides in relevant part: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”

       Safeco further argues that the Gays had consented to additional inspection of the premises. The mere fact that the parties agree to an inspection does not require the court to grant one. The court, not the parties, controls the progress of the trial. Further, even if Safeco’s argument were legally supportable, Safeco does not identify where the court made this finding of fact, and we are unable to locate such in the record. “[T]his court cannot find facts . . . .” (Internal quotation marks omitted.) Zhuta v. Tartaglia, 135 Conn. App. 113, 117, 43 A.3d 183 (2012). Accordingly, we cannot review this aspect of Safeco’s claim.
      In the alternative, Safeco contends that the Gays did not make a timely objection to a request for production in June, 2008. See Practice Book § 13-10 (a) (party to whom request is directed shall respond within thirty days). This argument is bereft of any citations to the record or case law. Accordingly, Safeco has abandoned the claim. See State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001) (“[c]laims on appeal that are inadequately briefed are deemed abandoned” [internal quotation marks omitted]).


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. DANIEL SOLOMON
    (AC 33328)
    Robinson, Bear and Sullivan, Js.

      Argued December 4, 2012
    officially released March 12, 2013

      Elizabeth M. Inkster, assigned counsel, with whom was Kiel Walker, certified legal intern, for the appellant (defendant).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, former state’s attorney, and Alexander C. Beck, deputy assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Daniel Solomon, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and two counts of disorderly conduct in violation of General Statutes § 53a-182 (a) (1). The defendant also was charged in apart B information with being a persistent offender in violation of General Statutes § 53a-40d for having previously been convicted of assault in the third degree. After the jury’s finding of guilt as to the substantive offenses, the defendant pleaded guilty to the charge of being a persistent offender. On appeal, the defendant claims that the trial court improperly ruled that he had opened the door to the introduction of evidence of a prior misdemeanor assault conviction and, because his conviction was based on improperly admitted evidence of a prior conviction of assault, his conviction of being a persistent offender must be vacated. We affirm the judgment of the trial court.

On the basis of the evidence presented, the jury reasonably could have found the following facts. On June 9,2010, the defendant and his fiancée, Brenda Karwoski, were engaged in a domestic dispute in their shared apartment, when Tiffany Channer, a female friend of Karwoski’s, attempted to intervene. The defendant then assaulted Channer, grabbing her around the neck, causing her to be unable to breathe. During Charmer’s struggle with the defendant, she received several scratches on her chest. Karwoski and Channer managed to escape from the defendant and subsequently from the apartment. Channer then telephoned the police, explaining that a domestic dispute had occurred between her best friend and a man, whom she identified as the defendant. Channer also told police that she had been injured. The police arrived on the scene and took statements from both women, who reported that the defendant had assaulted Channer. Subsequently, the police obtained a warrant for the defendant’s arrest. Following his arrest, the defendant was charged with assault in the third degree and two counts of disorderly conduct. Additionally, he later was charged with being a persistent offender. Following his conviction on all charges, the defendant was sentenced to a total effective term of three years of incarceration. This appeal followed.

The defendant claims that the court improperly ruled that, during his testimony, he had opened the door to the state’s introduction of evidence of a prior misdemeanor assault conviction, and, because his current conviction was based on this improperly admitted evidence, his conviction of being a persistent offender must be vacated. The state contends that because the defendant opened the door to this evidence, he, therefore, cannot complain that it was used against him. We agree with the state.

The following additional facts are relevant to the defendant’s claim. Prior to the start of evidence, the defendant filed a motion in limine, seeking to preclude the state from offering any evidence of his prior felony and misdemeanor convictions. The court ruled that only limited evidence of a 2003 felony conviction was admissible for impeachment purposes but that if the defendant opened the door during his testimony, the court could expand its ruling to allow the state to use additional evidence of prior convictions to attempt to impeach his credibility.

During the trial, the defendant tried to establish that it was Karwoski who had scratched Channer and that men do not scratch when they fight. On cross-examination of the state’s first witness, police Officer Phillip Violette, the first officer to respond to the scene, the defendant elicited the following testimony:

“Q. You’ve been to police training school, you said, police academy?

“A. Yep.

“Q. And there’s a — you learn about physical contact or hand-to-hand combat ....

“A. Uh-huh. . . .

“Q. All right, and you’re a man, obviously, but where I’m going with this is, do men scratch men in fights? Did you ever scratch a man in this hand-to-hand combat at the academy?

“A. In the academy, not that I remember.

* * *

“Q. Okay, but just as a general principle, playing sports, your experience on the force, men, they get in a fight with another man, they don’t — they might hit, punch, grab, throw down to the ground. Scratch, just tell me, tell me how you see it.

“A. Maybe.

“Q. Maybe, but not often, not likely.

“A. I’ve seen — in my eight years, I’ve seen it.

“Q. All right, was that another man that was scratched or a woman?

“A. Woman, man.

“Q. Women scratch men?

“A. Yes.

“Q. That we might know.”

After the state rested, the defendant told the court that he would take the witness stand in his own defense. Before permitting him to do so, the court carefully canvassed the defendant in relevant part as follows:

“The Court: One of the risks of testifying is that evidence that otherwise may not be admissible may become admissible as a result of your testimony. An example of that is, you may recall, that you have a criminal history. And, while I have precluded the state from introducing most of that criminal history, I would permit the state to elicit that you have a prior felony conviction, the one that’s only seven years old. I’m not going to let them get into what the conviction is, but that you do have a felony conviction. Unless, during the testimony, something comes out in something you say, or a question that’s asked that permits the state to get into the nature of that felony, or any other prior criminal history you might have. Do you understand, sir, that one of the risks of taking the [witness] stand is that among other things that would otherwise not be admissible, your criminal history could become relevant and admissible depending on what that testimony is? Do you understand that?

“The Defendant: Yes, Your Honor.

“The Court: Including what I’ve already let in, which is that you have a seven year old felony conviction. Do you understand that?

“The Defendant: Yes, Your Honor.

“The Court: Have you discussed with your lawyer the risks of taking the [witness] stand? All the risks that could come from that?

“The Defendant: Yes, Your Honor.

“The Court: All right, and it is your decision, then, to still take the [witness] stand in your own defense?

“The Defendant: Yes, Your Honor.

* * *

“The Court: . . . You do understand that once you take the [witness] stand . . . you subject yourself to cross-examination by the state. The state can ask you questions, and you will be required to answer them. You can’t, then, change your mind and say, I invoke the fifth amendment. You do realize you have the right not to testify and not to incriminate yourself, but once you’ve made the decision to testify, you can’t go back on that. You understand that?

“The Defendant: Yes, Your Honor.”

When the defendant took the witness stand, he described his version of the night’s events and testified that, as an observant Jew, he is “forbidden from having contact with a woman other than [his] immediate spouse.” He explained: “After I told [Channer that] she was unwelcome [in the apartment], it was the mere fact that [Karwoski] was right there, and I could never, ever touch another woman, even being forbidden to do so as an observant Jew. I most certainly could never do such a thing right in front of my fiancée and put my hands on another woman. I was concerned that if I touched her in any way to try to keep her from coming inside the apartment that I might touch her in some other way incidentally that could be very, very offensive to my fiancée, which is why I never touched her. I never put a hand on her.” He then stated that he “never touched her chest . . . never grabbed her neck . . . [and] never touched her at all.” The defendant briefly discussed that he earlier had been in trouble with the legal system but that he had returned home following his 2003 felony conviction and had turned his life around. He testified that he is the assistant to a rabbi in New Britain and that he helps him in visiting the sick.

Following the defendant’s direct testimony, the state sought, in part, to cross-examine the defendant about his 2006 third degree assault conviction involving his then wife, where the defendant had grabbed her by the throat, scratching her neck. See State v. Solomon, 103 Conn. App. 530, 930 A.2d 716 (2007). The state, in part, maintained that this evidence was admissible to impeach the defendant’s attempts to “extol his virtue and his moral[s] based on his religion . . . .” The state also argued that the defendant had not gone home after his 2003 felony conviction, but, rather, had gone to prison.

The court, after relistening to some of the defendant’s testimony, concluded that the defendant had left the impression -with the jury that “he had a one time conviction, and then, he turned his life around, went home and became a law-abiding citizen, when in fact that is not the reality.” The court went on to discuss the defendant’s statement that under Judaism, he could not have contact with a woman other than an immediate spouse, and his questioning of Officer Violette in which the defendant attempted to establish that a man would not scratch a woman. The court did not permit the state to question the defendant about the additional convictions stemming from the 2006 assault, nor about the fact that the defendant had gone to prison, rather than home, following his 2003 felony conviction. The court concluded, however, that the defendant had opened the door to the admission of the 2006 assault conviction and the facts related thereto.

During cross-examination, the state then asked the defendant only one question related to the 2006 assault conviction:

“Q. And isn’t it true that after [your 2003 felony conviction] specifically, May 16,2006, you were found guilty of assault in the third degree based on an incident with your wife where you scratched her.

“A. Yes.”

In its instructions to the jury, the court, sua sponte, gave a limiting instruction regarding the evidence of two of the defendant’s prior convictions: “You may recall that you heard evidence that the defendant was convicted of two crimes, a felony and a misdemeanor assault in the third degree. The evidence is only admissible on the question of credibility of the witness, that is, the weight that you will give the witness’ testimony. The defendant’s prior convictions bear only on that witness’ credibility. It is your duty to determine whether this witness is to be believed wholly, or partly, or not at all. You may consider the witness’ prior convictions in weighing the credibility of that witness and give such weight to those facts that you decide is fair and reasonable in determining the credibility of that witness.”

Although “[e]vidence that a criminal defendant has been convicted of crimes on prior occasions generally is not admissible . . . [w]hen ... a party opens the door to a subject that pertains directly to the credibility of the witness, he does so at his own risk. ... In such cases, the rule is that a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. . . . The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. . . . The trial court must carefully consider whether the circumstances of the case warrant farther inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. . . . [I]n making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal.” (Citations omitted; internal quotation marks omitted.) State v. Phillips, 102 Conn. App. 716, 733-34, 927 A.2d 931, cert. denied, 284 Conn. 923, 933 A.2d 727 (2007).

“Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In considering whether the trial court abused its discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . .” (Internal quotation marks omitted.) Id., 732.

In assessing the defendant’s claim, we find especially persuasive the decision of our Supreme Court in State v. Hernandez, 224 Conn. 196, 618 A.2d 494 (1992). In Hernandez, the defendant, in part, had claimed that the trial court improperly had permitted the state to go beyond the scope of the direct examination of him and to delve into his purported violence toward women. Id., 203-204. The trial court had found that the defendant had opened the door to this evidence by testifying on direct examination that he, inter alia, was a peaceful churchgoing man. Id., 206. Following the defendant’s testimony, the state attempted to elicit testimony from the defendant about a specific violent relationship he had had with a woman and a sexual assault he was alleged to have perpetrated against her, but the defendant objected. Id., 205. The trial court held that, although the alleged sexual assault was not relevant to the offense with which he was charged, the murder of a woman he was accused of stabbing to death, and the prejudicial effect of the testimony on this topic outweighed its probative value, the “testimony regarding alleged physical violence against the woman was admissible. The defendant had opened the door to this testimony when he created an impression of himself as a peaceful man with good relationships with women.” Id., 206. Affirming the judgment of the trial court, our Supreme Court held that “[a]lthough the defendant did not state on direct examination that he was never violent toward women, the record supports an inference that his relationships were nonviolent. The trial court did not abuse its discretion when it allowed the state to cross-examine the defendant to modify this inference.” Id., 209.

“When a witness voluntarily testifies, as did the defendant here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word. . . . Matters which might not be strictly relevant on direct examination may be so on cross-examination where that matter is explored for the purpose of credibility. Given that function of cross-examination in shedding fight on the credibility of the witness’ direct testimony, [t]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony. ... A question is within the scope of the direct examination if it is intended to rebut, impeach, modify or explain any of the defendant’s direct testimony . . . .” (Citations omitted; internal quotation marks omitted.) Id., 207.

In the present case, the defendant, on direct examination, attempted to portray himself as a peaceful, nonviolent man, who assisted a rabbi with his hospital visits to the sick, after having turned his life around by reforming his behavior following a one time criminal conviction in 2003. The trial court, therefore, did not abuse its discretion when it allowed the state to attempt to challenge this inference during cross-examination.

The defendant also argues that even if we conclude that he opened the door to this evidence, the court, nevertheless, abused its discretion by failing to find that the evidence was overly prejudicial and, therefore, inadmissible. We disagree.

“All evidence adverse to a party is, to some degree prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten injustice if the evidence were to be admitted.” (Internal quotation marks omitted.) State v. Hernandez, 28 Conn. App. 126, 138, 612 A.2d 88, cert. denied, 223 Conn. 920, 614 A.2d 828 (1992). Here, the record demonstrates that the court recognized the prejudicial degree of this evidence and properly weighed the probative value of the evidence versus its prejudice to the defendant. The court further minimized the prejudice by, sua sponte, giving a limiting instruction to the jury and fully explaining the proper use of this evidence. We presume, without evidence to the contrary, that the jury followed the court’s instructions. See State v. Griggs, 288 Conn. 116, 142, 951 A.2d 531 (2008) (“court took steps to minimize any prejudice to the defendant by instructing the jury that it could not consider the defendant’s domestic violence convictions as evidence of his criminal propensity, and we presume, without evidence to the contrary, that the jury followed the trial court’s instructions”). We conclude, therefore, that the court did not abuse its discretion when it permitted the state to impeach the defendant’s credibility with evidence of his 2006 assault conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       Some of the scratches on Charmer’s chest were deep enough to cause scarring.

       Additionally, following the close of evidence, the defendant sought permission to open the evidence to present the testimony of Karwoski, and the court granted that request. Karwoski testified on the defendant’s behalf that it was she who had instigated a “tussle” with the defendant because she was intoxicated and that she, rather than the defendant, scratched Channer. She also testified that she and Channer had concocted their story about the defendant scratching Channer to get the defendant in trouble.

       The defendant argues that the court permitted the state to introduce his 2006 assault conviction because it misinterpreted his statement that he is “forbidden from having contact with a woman other than [his] immediate spouse.” He argues that the court interpreted this to mean that he was stating that he never would touch another woman, when, in fact, he clearly was stating that he never would touch a woman other than his wife. We conclude that this argument has no merit. Although the state argued that the 2006 conviction was admissible, in part, to impeach the defendant’s statement that he would not “lay his hands on another woman,” the court, after having the defendant’s testimony played back, specifically stated that the defendant had testified that “Judaism prohibits contact with a woman other than an immediate spouse.” It is clear, therefore, that the court did not misinterpret the defendant’s testimony.

       On redirect examination, defense counsel then asked the defendant additional questions about the 2006 assault, as did the state during recross-examination. Defense counsel then asked further questions during re-redirect examination.


text:
    SALLY WOJTKIEWICZ v. MIDDLESEX HOSPITAL
    (AC 33758)
    DiPentima, C. J., and Beach and Bishop, Js.
    Argued January 4
    officially released March 12, 2013

      David S. Seidman, for the appellant (plaintiff).

      Jason T. Prueher, with whom was Stephen Sachner, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Sally Wojtkiewicz, appeals from the summary judgment rendered in favor of the defendant, Middlesex Hospital. On appeal, the plaintiff claims that the court improperly concluded that her claims against the defendant were barred by the statute of limitations. Following our decision in Rosato v. Mascardo, 82 Conn. App. 396, 844 A.2d 893 (2004), we affirm the judgment of the trial court.

On October 29, 2008, the plaintiff commenced this action with a single count complaint alleging negligence on the part of the defendant. She claimed that she was admitted to the defendant, a public hospital, for treatment of dizziness, low blood pressure, pain in the left arm and an infection of the urinary tract on May 26, 2006. On May 28, 2006, the plaintiff, while sitting on the edge of her hospital bed, became dizzy and fell off the bed. She suffered injuries to her left arm and shoulder. Following that incident, the plaintiff claimed that she had been continually treated by the defendant until she initiated this action. The plaintiff alleged that the defendant was negligent in failing (1) to supervise properly its physicians, agents, employees, contractors and subcontractors, (2) to use a bed alarm, (3) to place sidebars on her bed and (4) to assign staff to monitor the plaintiff while in her bed. The plaintiff also claimed that a nurse, an agent of the defendant, improperly left her unattended in an upright position on the bed. The only injuries alleged by the plaintiff arose from her fall from the hospital bed on May 28, 2006.

On January 26, 2009, the defendant filed an answer and raised the special defense that the plaintiffs claim was barred by the statute of limitations pursuant to General Statutes § 52-584. On June 10, 2010, the defendant moved for summary judgment, arguing that the plaintiff’s action was untimely. Specifically, it contended that the plaintiff discovered the harm on May 28, 2006, and, therefore, was required to commence her action by May 28, 2008. As a result of the plaintiffs failure to do so, the defendant claimed it was entitled to judgment as a matter of law.

On August 6, 2010, the plaintiff filed an objection to the defendant’s motion for summary judgment. She argued that the statute of limitations was tolled pursuant to the continuing treatment doctrine and that, therefore, her action was commenced in a timely manner. The plaintiff attached an affidavit stating that following her injury on May 28, 2006, she was “continually treated for [her] injuries from the fall and was continually monitored at [the defendant] throughout the year in 2007.” The defendant disagreed that the statute of limitations was tolled for two reasons. First, it argued that the “discovery portion” of § 52-584 cannot be tolled by the continuing treatment doctrine pursuant to this court’s decision in Rosato v. Mascardo, supra, 82 Conn. App. 396. Second, assuming the continuing treatment doctrine could be tolled, the defendant argued that the plaintiff failed to be treated continually by the defendant for the injuries sustained on May 28, 2006.

On July 15, 2011, the court issued an order granting the defendant’s motion for summary judgment. The court concluded that the plaintiffs tolling argument was foreclosed by Rosato. It further determined that the undisputed facts showed that the plaintiff did not continuously receive treatment for the injuries suffered on May 28, 2006. Thus, even if the continuing course of treatment doctrine applied, it failed on its merits. In conclusion, the court stated: “Because [the] plaintiffs complaint was filed five months after the conclusion of the statute of limitations, the defendant’s motion for summary judgment is granted.”

The dispositive issue in this case is whether the trial court properly concluded that the discovery portion of § 52-584 was not subject to tolling. We agree with the reasoning of the trial court that this case is controlled by our holding and the rationale set forth in Rosato, and, therefore, we need not reach the other issue raised by the plaintiff.

“Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an. evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding amotion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary. . . . Summary judgment may be granted where the claim is barred by the statute of limitations. Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Rosenfield v. I. David Marder & Associates, LLC, 110 Conn. App. 679, 684, 956 A.2d 581 (2008); see also Sinotte v. Waterbury, 121 Conn. App. 420, 440, 995 A.2d 131 (whether plaintiffs’ claims are barred by applicable statutes of limitation presents question of law to which we afford plenary review), cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010).” (Citation omitted; internal quotation marks omitted.) Mollica v. Toohey, 134 Conn. App. 607, 610-11, 39 A.3d 1202 (2012).

We now turn to the language of § 52-584, which provides in relevant part: “No action to recover damages for injury to the person . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” In Mollica v. Toohey, supra, 134 Conn. App. 612, we explained that “this statute imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered .... The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of. . . . The three year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose.” (Emphasis in original; internal quotation marks omitted.) See Rosato v. Mascardo, supra, 82 Conn. App. 401-402.

In the present case, the facts are undisputed that the plaintiff became aware of, and thus discovered, her injuries on May 28, 2006, the date of her fall from the bed. “When applying § 52-584 to determine whether an action was timely commenced, this court has held that an injury occurs when a party suffers some form of actionable harm. . . . Actionable harm occurs when the plaintiff discovers . . . that he or she has been injured and that the defendant’s conduct caused such injury. . . . The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof. . . . The focus is on the plaintiffs knowledge of facts, rather than on discovery of applicable legal theories.” (Internal quotation marks omitted.) Id., 404-405; Mollica v. Toohey, supra, 134 Conn. App. 613. In Rosato v. Mascardo, supra, 82 Conn. App. 405, we expressly stated that the continuing treatment doctrine did not apply to the discovery portion of § 52-584. “Once the plaintiff has discovered her injury, the statute begins to run.” Id. Because the statute is not tolled, the plaintiff was required to commence her action by May 28, 2008, in order to comply with the statute of limitations. See General Statutes § 52-584. The undisputed facts reveal that she did not serve the defendant with a summons and complaint until October 29,2008. Her action, therefore, was untimely by approximately five months, and the court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

       “[T]he policy underlying the continuous treatment doctrine seeks to maintain the physician/patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure.” (Internal quotation marks omitted.) Rosato v. Mascardo, supra, 82 Conn. App. 403.

       The defendant submitted an affidavit from its director of risk and accreditation, Jeffrey Lemkin, averring that he had reviewed the plaintiffs medical records and that she had not been treated for her injuries of May 28, 2006, following her discharge on June 1, 2006. The plaintiff had received medical treatment from the defendant from June 1, 2006, through the end of 2007 for other medical issues, including behavioral health, subsequent falls and sequelae from a postcerebral vascular incident that occurred on October 1, 2005.

       The plaintiff also argues that the court should not have considered Lemkin’s affidavit.


author: WEST, J.

text:
    STATE OF CONNECTICUT v. MARK P. KUNCIK
    (AC 33468)
    DiPentima, C. J., and Bear and West, Js.
    Argued October 23, 2012
    officially released March 12, 2013

      John C. Drapp III, assigned counsel, with whom, on the brief, was Joseph A. Jaumann, assigned counsel, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Maureen Platt, state’s attorney, and, on the brief, Daniel H. Miller, special deputy assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Mark P. Kuncik, appeals from the judgments of conviction, rendered after a juiy trial, of interfering with a police officer in violation of General Statutes § 53a-167a (a), operating a motor vehicle while his license was suspended in violation of General Statutes § 14-215 (a) and reckless driving in violation of General Statutes § 14-222 (a). On appeal, the defendant claims that the trial court abused its discretion in permitting him to proceed to trial as a self-represented party and, during oral argument in this court, he sought to have his cases remanded to the trial court for a competency hearing under this court’s supervisory powers. We decline to exercise our supervisory powers and, accordingly, affirm the judgments of the trial court.

This case originated from a motor vehicle stop by state police Trooper Justin Rheiner, which occurred in the early morning of August 21, 2009, on Route 8 northbound in Watertown. The jury reasonably could have found the following facts. The defendant, whose license was under suspension, was the operator of the vehicle, which had been traveling at ninety-three miles per hour. During the stop, the defendant was irate and noncompliant with Rheiner, who, as a consequence thereof, requested backup and drew his gun. When other officers arrived, the defendant was removed from the vehicle and subsequently placed under arrest after refusing to perform field sobriety tests.

The defendant was charged by substitute amended informations with one count of interfering with a police officer in violation of § 53a-167a (a), one count of operating a motor vehicle while under the influence of intoxicating liquor or drags in violation of General Statutes § 14-227a (a) (1), one count of operating a motor vehicle while his license was suspended in violation of § 14-215 (a) and one count of reckless driving in violation of § 14-222 (a). During the course of pretrial proceedings, the defendant was canvassed by multiple judges on numerous occasions about proceeding as a self-represented party, and he continually elected to proceed as such with standby counsel. The defendant pleaded not guilty to all charges. A jury trial followed on March 28 and 29, 2011. The defendant was found guilty of interfering with a police officer, operating a motor vehicle while his license was suspended and reckless driving. The defendant was found not guilty of operating a motor vehicle while under the influence of intoxicating liquor or drags. Thereafter, the trial court rendered judgments in accordance with the jury verdicts and sentenced the defendant to a total effective prison term of one year, execution suspended after sixty days, with three years probation. This appeal followed.

The defendant claims that the court abused its discretion in permitting him to proceed to trial as a self-represented party because he was not competent to conduct the trial proceedings without the assistance of counsel. In particular, the defendant argues that his pattern of behavior and his comments during the course of the pretrial proceedings and, ultimately, the trial demonstrated that he was not competent to represent himself and that he did not adequately grasp the issues pertinent to the proceedings. This claim is not properly preserved, and the defendant did not seek review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. Rather, during oral argument in this court, the defendant sought to have his cases remanded to the trial court for a competency hearing under this court’s supervisory powers. We decline to exercise our supervisory powers.

“Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason[s] which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . [0]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [T]he integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 518 n.23, 973 A.2d 627 (2009).

“Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . Additionally, [i]n certain instances, dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under the Golding or plain error doctrines.” (Citation omitted; internal quotation marks omitted.) State v. Elson, 125 Conn. App. 328, 361, 9 A.3d 731 (2010), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011).

The controlling case in this area, and the case relied upon by the defendant, is State v. Connor, supra, 292 Conn. 483. In Connor, our Supreme Court established that, in accordance with precedent from the United States Supreme Court and pursuant to its supervisory authority over the administration of justice, “we do not believe that a mentally ill or mentally incapacitated defendant who is competent to stand trial necessarily also is competent to represent himself at that trial. Accordingly ... we conclude that, upon a finding that a mentally ill or mentally incapacitated defendant is competent to stand trial and to waive his right to counsel at that trial, the trial court must make another determination, that is, whether the defendant also is competent to conduct the trial proceedings without counsel.” (Emphasis in original.) Id., 518-19; see also Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008). In doing so, our Supreme Court recognized that such a conclusion is not constitutionally mandated; see State v. Connor, supra, 528 n.28; but that, in accordance with Edwards, the court was “free to adopt for mentally ill or mentally incapacitated defendants who wish to represent themselves at trial a competency standard that differs from the standard for determining whether such a defendant is competent to stand trial.” Id., 517.

Ultimately, in Connor, our Supreme Court remanded that case for a determination by the trial court as to whether the defendant, at the time of trial, was competent to conduct trial proceedings by himself, notwithstanding any mental disability, “[b]ecause Edwards had not been decided prior to the conclusion of the trial [and the trial court] had no alternative . . . but to permit the defendant to represent himself once it was determined that he was competent to stand trial.” (Citation omitted.) Id., 528. Our Supreme Court further noted that “[o]ther courts have adopted this approach when . . . the trial of a mentally ill defendant had been completed before Edwards was decided.” (Emphasis added.) Id., 528 n.30.

The defendant claims that he was not competent to represent himself pursuant to the standard set forth in Connor and seeks to have his cases remanded to the trial court for a competency hearing under this court’s supervisory powers. Although our Supreme Court in Connor established, pursuant to its supervisory powers, the heightened standard for competency in order for a defendant to represent himself or herself, our Supreme Court remanded that case “[b]ecause Edwards had not been decided prior to the conclusion of the trial [and the trial court] had no alternative . . . but to permit the defendant to represent himself once it was determined that he was competent to stand trial.” (Citation omitted.) Id., 528.

All the proceedings in the present case occurred after both Edwards and Connor. The court was required to make a determination under the heightened standard set forth in Connor and, although the record does not reveal that the court ever expressly found that the defendant was competent to represent himself under such a standard, “the court is presumed to know the law and apply it correctly to its legal determinations.” Iacurci v. Sax, 139 Conn. App. 386, 396, 57 A.3d 736 (2012). The defendant was canvassed in depth by multiple judges on numerous occasions and the court repeatedly permitted the defendant to proceed as a self-represented party with standby counsel. In light of these considerations and the record in the present case, we find that this is not the “rare circumstance” where our supervisory powers may be invoked and, therefore, we decline to do so.

The judgments are affirmed.

In this opinion the other judges concurred.

       The judgment file has a scrivener’s error and lists General Statutes § 14-222a (a) (1) as the operative section for reckless driving. Section 14-222a, however, concerns negligent homicide with a motor vehicle, which was not at issue in the present case. At all relevant times, § 14-222 (a) was the operative section for reckless driving.

       We note, however, that in his brief the defendant originally sought remand of his cases to the trial court for a new trial with the assistance of counsel.

       The applicable substitute amended information has a scrivener’s error and lists § 14-222a (a) (1) as the operative section for reckless driving. Section 14-222a, however, concerns negligent homicide with a motor vehicle, which was not at issue in the present case. Again, at all relevant times, § 14-222 (a) was the operative section for reckless driving. See footnote 1 of this opinion.

       In his brief, the defendant highlights his “pattern of behavior” and his “comments.” For example, during the motor vehicle stop, the defendant called 911 and, after his arrest, the defendant stated to Rheiner: “I got you on false arrest, kidnapping, extortion, racketeering, false arrest, treason. I got you on all those charges.” At a pretrial hearing, the defendant stated: “I’m going to name [the prosecutor] as a coconspirator to the kidnapping, fraud, extortion and racketeering.” With respect to the charges set forth against him, the defendant repeatedly contested whether he was a person as defined under our motor vehicle statutes. The defendant also repeatedly contested whether he was driving at the time of the motor vehicle stop. In particular, during his cross-examination of Rheiner, the defendant claimed that he was not driving but was “traveling, by right.” In general, the defendant stated: “[N]one of these charges apply to me. ... I have no contract with the state whatsoever.” He further stated that he was not going to lose because the case “would be an instant mistrial in my status.”
      During jury selection, the defendant asked the prospective jurors only if they paid income taxes. With respect to one prospective juror in particular, the defendant stated that he wanted him on the jury “because it would be an instant mistrial” as the prospective juror worked for the state. The defendant repeatedly contested the spelling of his name set forth in the informations simply because it was capitalized. The defendant also continually sought the dismissal of his case on various grounds. In particular, at a pretrial hearing, the defendant stated: “This is title 4, United States Code 1, United States flag of peace. This is a common-law hearing pursuant to Army regulations 840-10, chapter 2-1 A and B. . . . Sheriff or bailiff . . . could you please take and discharge this case as I’ve waited here an horn: and all parties have failed to appear before this court.” The defendant reiterated, at the start of his trial, that the bailiffs did not discharge his case. Again, at trial, during his cross-examination of Rheiner, the defendant sought to have his case dismissed because he believed Rheiner confessed to committing a felony by bringing him to court. When the defendant proceeded with his defense, he attempted to call to the witness stand the state’s attorney prosecuting the case. After the court denied this request, the defendant took the witness stand in his own defense and offered the following:
      “I know I didn’t do any wrong. My rights were taken away from me. I was kidnapped — that’s what I believe — by the police officer. I believe the officer also perjured himself and lied on the [witness] stand here and nothing was done about it. The police officer confessed to practicing medicine without a license, which is a felony in the state of Connecticut, in bringing me here today. He said I was a person, and that’s not true. And I have the definition of that that I brought. It’s right what I’m being charged with. And I’m just trying to stand up for my constitutional rights and yours. That’s why I’m here today.”

       We note that, during oral argument in this court, the defendant clarified that he does not challenge any of the court’s canvasses or that his decision to waive his right to counsel was knowingly and intelligently made.

       In Connor, our Supreme Court indicated that “the trial court ... is best able to make [such a] fine-tuned mental capacity [decision], tailored to the individualized circumstances of a particular defendant . . . .” (Citation omitted; internal quotation marks omitted.) State v. Connor, supra, 292 Conn. 528-29.


text:
    STATE OF CONNECTICUT v. RICHARD COMOLLO
    (AC 33959)
    Alvord, Bear and Sheldon, Js.

      Argued December 11, 2012
    officially released March 12, 2013

      Robert J. Williams, Jr., for the appellant (defendant).

      Melissa Patterson, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert Diaz, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Richard Comollo, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere to the charge of illegal operation of a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. The plea followed the trial court’s denial of the defendant’s motion to suppress. On appeal, the defendant claims that the court improperly denied the motion to suppress evidence obtained during a stop of his vehicle at a sobriety checkpoint, in violation of article first, §§ 7 and 9, of the constitution of Connecticut. We disagree and, accordingly, affirm the judgment of the trial court.

The defendant claims that the operational plan (plan) used by the Hartford police department (department) for implementing the sobriety checkpoint at which he was arrested was not substantially similar to written sobriety checkpoint guidelines that are utilized by the state police and were approved by this court in State v. Boisvert, 40 Conn. App. 420, 427, 671 A.2d 834, cert. denied, 237 Conn. 903, 674 A.2d 1332 (1996). The defendant claims that the plan violated his constitutional rights, arguing that a sobriety checkpoint must contain certain “neutral criteria” that were lacking in this case. Specifically, he argues that the plan contained insufficient (1) notice of the time and location of the checkpoint, (2) signage to notify motorists of alternative routes by which to circumvent the checkpoint and (3) guidance as to where sobriety tests of stopped motorists would be conducted.

The court set forth the following facts in its memorandum of decision. In accordance with the plan, the department conducted a roadside sobriety checkpoint on Brainard Road in Hartford from 7 p.m. on Thursday, May 20, 2010, until 3 a.m. on Friday, May 21, 2010. The plan detailed that officers were to be dressed in full uniform and to place signs in locations that would notify motorists of the checkpoint in advance, allowing them to avoid the checkpoint by taking an alternate route. It also detailed the questions officers were to ask each motorist upon arrival at the checkpoint and the procedure officers were to follow when examining a motorist suspected of intoxication. The department’s unwritten policy and custom is to notify the public of the location and the time of the sobriety checkpoint between twenty-four and forty-eight hours before the operation commences. Fifty-two hours and forty-five minutes prior to putting the sobriety checkpoint in operation, Sergeant Christine Mertes, in her capacity as the department’s public information officer, drafted and distributed a press release about the checkpoint to more than 2000 recipients, including various media and Internet outlets.

At 9:05 p.m. on Thursday, May 20, 2010, Sergeant Andrew Lawrence encountered the defendant driving through the sobriety checkpoint. He asked the defendant questions in accordance with those required under the plan and determined that there was cause to investigate the defendant’s sobriety further. Lawrence eventually arrested the defendant for operating a motor vehicle while under the influence of intoxicating liquor or drugs.

“[T]he 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 .... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights . . . 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 . . . .” (Internal quotation marks omitted.) State v. Doyle, 139 Conn. App. 367, 374, 55 A.3d 805 (2012), cert. denied, 307 Conn. 952, 58 A.3d 976 (2013).

After a scrupulous examination of the record, we conclude that the facts found by the trial court in its memorandum of decision are supported by substantial evidence. Further, we conclude that the court’s legal conclusions are supported by the facts and are legally and logically correct. We therefore adopt the well reasoned decision of the trial court as a proper statement of the relevant facts, issues and applicable law. See States. Comollo, 52 Conn. Sup. 479, 62 A.3d 644 (2011). It would serve no useful purpose for this court to repeat the discussion contained therein. See Norfolk & Dedham Mutual Fire Ins. Co. v. Wysocki, 243 Conn. 239, 241, 702 A.2d 638 (1997).

The judgment is affirmed.

       “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdic-tional defects in the criminal prosecution.” General Statutes § 54-94a.

       The defendant filed a motion to dismiss on March 31, 2011. The parties and the court, Carbonneau, J., agreed to treat the motion as a motion to suppress.