author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. BRENT PASCAL
    (AC 27463)
    Flynn, C. J., and McLachlan and Pellegrino, Js.

      Argued March 28
    officially released July 8, 2008

      Mary H. Trainer, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, was Kevin D. Lawlor, state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Brent Pascal, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction, (2) the prosecutor engaged in impropriety that deprived him of a fair trial and (3) the court improperly instructed the jury on consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 17, 2004, at approximately 10:30 a.m., a man later identified as the defendant entered Romantix, an adult retail establishment, located on Boston Post Road in Milford. On that day, Christopher Towne was the clerk on duty at Romantix and was working the 9 a.m. to 5 p.m. shift. During the next several hours, the defendant, who was wearing a powder blue sleeveless T-shirt, a powder blue do-rag on his head and powder blue boots, remained in Romantix, though he frequently walked in and out of the store. At one point, the defendant purchased a video card, which he used to view adult movies in a video booth located in the store.

Shortly before 4 p.m., the defendant approached Towne, who was standing near a chair behind the counter, and motioned toward his waistline. The defendant then lifted his shirt, revealing a portion of a handgun. As the defendant reached toward the handgun, he stated to Towne: “You know what this is. You know what you have to do. Open the register and put the money in the bag.” The defendant also stated: “This is how I make my money.” Towne then walked over to the first cash register and, after several attempts, opened the register. Towne put the money from the cash register, which totaled $270, into a bag and handed the bag to the defendant. The defendant, after looking at the money in the bag, became angry and told Towne to open the other cash register because the bag did not contain enough money. Towne informed the defendant that he was unable to open the other register because he did not have a key. The defendant remained in the store for approximately five to ten minutes before departing.

After the defendant exited Romantix, Towne activated an alarm, which notified the police, and telephoned his supervisor. Detective Greg Kopanza of the Milford police department, as well as several other Milford police officers, responded to the call. Kopanza arrived at Romantix shortly after 4 p.m. to investigate the incident, and he spoke with Towne, who provided a description of the defendant. The police were unable to locate the defendant that day.

As part of his investigation, Kopanza spoke with a clerk who was working in a video store located in the same shopping plaza as Romantix and gave the clerk a description of the defendant. The video store clerk informed Kopanza that a person matching the defendant’s description had been in the video store that day, and the clerk gave Kopanza a surveillance videotape, which depicted the defendant. Kopanza also obtained a surveillance videotape from Romantix, which revealed the defendant standing at the counter and then moving something near his waistline with his right hand. The videotape further depicted Towne removing money from the first cash register, placing the money in a bag and then handing the bag to the defendant.

Approximately four months later, on December 27, 2004, the defendant entered Romantix, purchased a video card from the sales clerk, Ivan Aponte, and went into a video booth to the view a movie. Aponte, recognizing the defendant from a photograph taken from the video store’s surveillance camera on August 17, 2004, used his cellular telephone to contact the police. Thereafter, several officers from the Milford police department, including Jason Anderson and Kenneth Rahn, were dispatched to Romantix. The police located the defendant, along with another male, who was partially undressed, in a video booth. The police questioned the defendant about his involvement in the August 17, 2004 robbery of Romantix, which he denied. The defendant initially provided the police with an incorrect name and date of birth, but the police eventually learned the defendant’s actual name and date of birth from the defendant’s mother.

In February, 2005, following further investigation, the defendant was arrested and charged with robbery in the first degree. After the defendant’s arrest, Nancy Bodick, president of Milford Boat Works, contacted the police because the defendant, her former employee, had left a pair of powder blue boots at Milford Boat Works. Bodick also informed the police that she had observed the defendant wearing the powder blue boots as well as a powder blue do-rag and a powder blue shirt. The police retrieved the boots from Milford Boat Works.

On December 6, 2005, the jury found the defendant guilty of robbery in the first degree. The court subsequently sentenced the defendant to seven years imprisonment, execution suspended after three years, and five years of probation with special conditions. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal on the ground that there was insufficient evidence to support his conviction of robbery in the first degree. Specifically, the defendant argues that the evidence did not establish that he had the requisite mental state. We do not agree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 808-809, 911 A.2d 1099 (2007).

In order to find the defendant guilty of robbery in the first degree, the jury had to find beyond a reasonable doubt that the evidence showed that, “in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, [the defendant] or another participant in the crime ... (4) displayed] or threatened] the use of what he represented] by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” General Statutes § 53a-134 (a).

General Statutes § 53a-133 defines robbery as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” Larceny is defined in relevant part by General Statutes § 53a-119 as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

The mental state required to commit robbery in the first degree is the intent to commit larceny, which requires the specific intent to deprive or to misappropriate. State v. Sam, 98 Conn. App. 13, 35, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006). “It is well settled, however, that the question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [WJhether such an inference should be drawn is properly a question for the jury to decide.” (Citation omitted; internal quotation marks omitted.) Id., 35-36.

On appeal, the defendant claims that there was insufficient evidence to support his conviction of robbery in the first degree because the state failed to prove beyond a reasonable doubt that he had the necessary intent to commit the charged crime. In making this claim, the defendant asserts that the evidence adduced at trial supported only his version of events. Although the defendant did not testify at trial, his version of events was presented to the jury through a videotape and an accompanying transcript, which were admitted as full exhibits, that depicted an interview of the defendant conducted by Detective William Haas and Officer Nick Ricci of the Milford police department shortly after the defendant’s arrest. According to the defendant, Towne, the clerk at Romantix, approached him prior to August 17, 2004, and asked him to return to the store for the purpose of engaging in a homosexual act with an acquaintance of Towne for $250, and the defendant agreed to this arrangement. Also during his interview, the defendant told the police that after he performed the homosexual act with another male at Romantix on August 17, 2004, he then sought payment from Towne. Because Towne initially refused to give the defendant money, the defendant stated that he became upset and used threatening words but maintained that he did not have a gun. Thereafter, Towne gave the defendant money, and the defendant left the store a few minutes later. On the basis of his view of the evidence, the defendant then contends that the jury could not have concluded that he possessed the requisite intent because, in taking the money from Romantix as payment for a sexual act, he acted in good faith and under a claim of right.

Contrary to the defendant’s assertion that his view of what had occurred at Romantix on August 17, 2004, was unchallenged, the state did present an alternate version of events through, in part, the testimony of Towne. The defendant, in challenging the sufficiency of the evidence, is challenging the credibility of Towne and is seeking to have this court revisit the testimony and evidence presented at trial and to weigh it differently than did the jury, which we simply cannot do. “If there is conflicting evidence . . . the fact finder is free to determine which version of the event in question it finds most credible.” (Internal quotation marks omitted.) State v. Griffin, 78 Conn. App. 646, 651, 828 A.2d 651 (2003). In the present case, it was not unreasonable for the jury to have believed the testimony of Towne and to have rejected the defendant’s account of what had transpired at Romantix on August 17, 2004. Therefore, the jury, in crediting Towne’s testimony about the defendant’s conduct, reasonably could have inferred that the defendant intended to deprive Romantix of the $270 that he took from the cash register and that he did so by the threatened use of force of what he represented to be a handgun.

The following facts, which were before the jury, illustrate this sufficiency. There was evidence before the jury that the defendant approached Towne, who was near the counter, and motioned toward his waistline. The defendant then lifted his shirt and revealed a portion of a handgun. Towne testified that as the defendant reached toward the handgun, the defendant demanded that Towne give him money from the cash register. Specifically, the defendant stated: “You know what this is. You know what you have to do. Open the register and put the money in the bag.” The defendant also stated: “This is how I make my money.” Towne’s testimony further indicated that after he put the money from the first cash register in a bag and handed the bag to the defendant, the defendant became angry and demanded additional money from the second register.

The state also introduced into evidence, as a full exhibit, the video surveillance tape from Romantix, dated August 17, 2004, which shows the defendant approaching Towne at the counter and moving something at his waistline. The videotape further depicts Towne handing money to the defendant in a bag. In addition, the state presented Detective John Brunetti of the forensic services division of the New Haven police department as a witness, who testified that he had analyzed the video surveillance tape from Romantix. According to Brunetti, the videotape revealed, inter alia, that the defendant was holding an object in his right hand. Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have determined that the defendant, by revealing a handgun and demanding money from the cash register, intended to deprive Romanitx of its money by the threatened use of force by what the defendant represented to be a handgun. Accordingly, we conclude that the state presented sufficient evidence to support the defendant’s conviction of robbeiy in the first degree.

II

Next, the defendant claims that the prosecutor’s reference to “prostitution” during closing argument was improper in several respects and that he was deprived of a fair trial as a result of this alleged impropriety. We disagree.

In his final argument to the jury, the prosecutor stated: “The first thing in the course of a larceny, wrongfully [taking] another’s property with no legal justification or excuse—well, whose property did he take? The evidence shows, Christopher Towne testified, you have a business record, which is in evidence from the parent corporation of Romantix, that $270 was taken from register number one; that was the company’s money. The store’s money was taken from that register . . . on August 17, 2004. Did the defendant have any legal justification or excuse to take their money? No. What evidence have you heard of, anything other than he came in and demanded the money, and it was taken from the clerk at gunpoint? What evidence is there that this ... I know counsel [has] intimated, and . . . there’s some evidence out there that this was supposedly something over—you heard lots of gory details about what this was supposedly for. What did I ask Detective Haas when he was on the [witness] stand yesterday? What was that money transaction for? What’s the evidence show that Detective Haas said? Prostitution. . . . [J]s that legal? Is that a legal excuse? No. So, even if the . . . defendant’s version is to be believed, does that make a difference? It does not. It’s a wrongful taking of another’s property. You heard it from Mr. Towne. You saw it on the video. You heard that cash register pop. He cleaned out the money. He put all the money, except for the change, in a bag and handed it to him; threatened the immediate use of physical force. For whatever his reasoning, what did Christopher Towne tell you [the defendant] did? ‘Don’t do anything stupid. Put the money in a bag. This is how I make my money.’ He displayed a handgun.” (Emphasis added.)

The defendant concedes that he did not object to the alleged instance of prosecutorial impropriety at trial. “Once prosecutorial impropriety has been alleged, however, 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 State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).” (Citation omitted; internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007).

We now set forth the legal principles that govern our resolution of a claim of prosecutorial impropriety. “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial.” (Citations omitted.) Id., 32. 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. See State v. Schiavo, 93 Conn. App. 290, 302, 888 A.2d 1115, cert. denied, 277 Conn. 923, 895 A.2d 797 (2006). 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. State v. Williams, supra, 540. Having set forth these legal principles, we now turn to the defendant’s arguments.

A

The defendant first argues that the prosecutor acted improperly when he characterized the defendant’s version of events as involving an act of prostitution because the defendant was not charged with prostitution. In a related claim, the defendant contends that the prosecutor, by using this improper characterization, was arguing implicitly to the jury that it “should convict [the defendant] of a crime with which he was not charged— i.e., prostitution.” We are not persuaded.

We conclude that, under the circumstances of the present case, the prosecutor’s reference to “prostitution” was not improper. This characterization related directly to the evidence as well as to the defendant’s version of events and his theory of defense, which were presented to the jury through the defendant’s videotaped interview with Haas and Ricci of the Milford police department. The videotape and its accompanying transcript were admitted as full exhibits, without objection from the defendant. During the interview, the defendant told the police that he had an arrangement with Towne, in which Towne would pay him money after the defendant had participated in a homosexual act with Towne’s acquaintance. The defendant also informed the police that, on August 17, 2004, he took the money because it was owed to him as payment for the sexual acts he had engaged in with another male. At trial, Haas testified, in response to multiple questions posed by the prosecutor and by defense counsel, about what the defendant had told him during the police interview, including how the defendant had made an arrangement for the performance of sexual services in exchange for money. Haas also characterized this type of arrangement as prostitution, without objection from the defendant. Defense counsel then asked Haas whether the defendant had been arrested for prostitution, to which Haas replied in the negative. Prostitution is defined as “[t]he act or practice of engaging in sexual activity for money or its equivalent . . . .” Black’s Law Dictionary (7th Ed. 1999). The evidence adduced at trial and, indeed, the version of events advanced by the defendant are consistent with this definition. See generally State v. Alvarez, 95 Conn. App. 539, 553, 897 A.2d 669, cert. denied, 279 Conn. 910, 902 A.2d 1069 (2006). Accordingly, the defendant has failed to demonstrate how the prosecutor’s reference to prostitution was improper.

Further, we disagree with the defendant’s assertion that the challenged remark was an implicit argument to the jury that it “should convict the defendant of . . . prostitution.” The prosecutor’s statement was not of such character that the jurors reasonably would understand it to be a comment directing them to find the defendant guilty of prostitution. Here, the prosecutor merely was responding to the defendant’s theory of defense and arguing why such a defense was untenable. We therefore conclude that the defendant’s argument fails.

B

The defendant’s last contention amounts to a claim that the prosecutor’s comment during closing argument, in which he stated that prostitution was not a legal excuse, was a misstatement of the law. We disagree.

The defendant’s theory of defense to the charge of robbery in the first degree was that he had a claim of right to the money because, pursuant to an arrangement with Towne, he had engaged in sexual services with another male on August 17, 2004, in exchange for that money. The prosecutor, in arguing that the jury should find the defendant guilty of robbery in the first degree, properly responded to the theory of defense advanced by the defendant. The challenged statement was an argument by the prosecutor that an alleged entitlement to money as payment for sexual activities could not be a valid defense to robbery in the first degree. We conclude that this remark was not improper.

In so concluding, we find instructive our Supreme Court’s decision in State v. Morant, 242 Conn. 666, 701 A.2d 1 (1997). In Morant, the defendant and a participant, after fatally shooting the victim, took cocaine and money made from the sale of cocaine from the victim’s apartment. Id., 669. The defendant later was convicted of felony murder, predicated on robbery. Id., 670. On appeal, to support his claim of insufficiency of the evidence, the defendant asserted that he had not engaged in a robbery. Id. Specifically, the defendant claimed, as a defense, that he had a legal right to recover the cocaine and the money that belonged to him. Id. Our Supreme Court disagreed with the defendant and stated that “a person commits a robbery when he forcibly takes contraband from another person’s possession. We find that it would be contrary to our statutes and absurd to hold that the defendant cannot be convicted of robbery in the first degree when he takes contraband from another person.” Id., 672. The court further stated that several courts from other jurisdictions have held that a person cannot use force to collect illegal debts from another person, noting that “[f]or the law to approve the collection of an illegal obligation would serve only to encourage the use of violence in the collection of such debts . . . .” (Internal quotation marks omitted.) Id. Accordingly, under the circumstances of the present case, we conclude that it was not improper for the prosecutor to argue to the jury that the defendant’s version of events, which consisted of, inter alia, an alleged entitlement to the money as a result of his engagement in sexual activity with another male, could not support a claim of right defense to the charge of robbery in the first degree.

III

The defendant last claims that the court’s instruction to the jury concerning consciousness of guilt was not supported by the evidence and, therefore, was improper. We are not persuaded.

The following facts are relevant to our resolution of the defendant’s claim. On December 27, 2004, Aponte, having recognized the defendant from a photograph taken from the surveillance videotape, contacted the police with information that the defendant was at Romantix. Several members of the Milford police department responded to the call and, upon arriving at Romantix, learned that another male, in addition to the defendant, might be present in the video booth area of the store. The officers located the video booth, in which the defendant and a partially undressed male were present. Thereafter, the police questioned the defendant about his possible involvement in the robbery of Romantix that occurred on August 17,2004, and showed the defendant the photograph taken from the surveillance videotape. In response, the defendant stated that, although he previously had been in Romantix, he had not committed the robbery.

The defendant, who did not have any official identification on his person, initially stated that his name was Brent Carlson and that he was bom on December 31, 1979. The police, when verifying the accuracy of that information, discovered that the defendant had provided an incorrect name and date of birth. During this time, Officer Anderson spoke with the defendant’s mother on the defendant’s cellular telephone. The defendant’s mother told Anderson that the defendant’s name was Brent Pascal and that he had a date of birth of December 31, 1983.

“The decision to give a consciousness of guilt instruction is left to the sound discretion of the trial court. State v. Scott, 270 Conn. 92, 104, 851 A.2d 291 (2004) [cert. denied, 544 U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005)]. We review the defendant’s claim under this standard.” State v. Hinds, 86 Conn. App. 557, 565, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005).

“A trial court may admit [e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . In seeking to introduce evidence of a defendant’s consciousness of guilt, [i]t is relevant to show the conduct of an accused ... as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act. . . . [M]isstatements of an accused, which a jury could reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime or were influenced by the commission of the criminal act, are admissible as evidence reflecting a consciousness of guilt.” (Internal quotation marks omitted.) State v. Jimenez, 74 Conn. App. 195, 212, 810 A.2d 848 (2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003); see also State v. Oliveras, 210 Conn. 751, 759, 557 A.2d 534 (1989); State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986). “The assumption of a false name . . . obviously constitutes consciousness of guilt evidence.” State v. Bell, 188 Conn. 406, 412, 450 A.2d 356 (1982).

“Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity in the evidence.” State v. Aleksiewicz, 20 Conn. App. 643, 652, 569 A.2d 567 (1990); see also State v. Scott, supra, 270 Conn. 105-106 (court within discretion giving instruction where reasonable view of evidence supports inference that defendant wanted to evade detection).

The defendant argues that the court’s instruction on consciousness of guilt was improper because his “misstatements as to his last name and date of birth could not reasonably give rise to an inference of consciousness of guilt” regarding the charge of robbery in the first degree because the “misstatements were made in the course of an investigation which the defendant believed was related to public sexual acts and that had nothing to do with a robbery.” We reject this argument.

In the present case, the evidence demonstrated that the defendant had provided the police with an incorrect name and date of birth. Although the police had located the defendant on December 27, 2004, in a video booth with a partially undressed male, Officer Rahn testified before the jury that the police had informed the defendant at that time that they wanted to question him about his possible involvement in the robbery of Romantix that occurred on August 17, 2004. Rahn’s testimony also indicated that the police had showed the defendant a photograph taken from the August 17,2004 surveillance videotape. In addition, the defendant, in the videotaped interview with the police following his arrest, stated that when the police arrived at Romantix on December 27, 2004, the officers informed him first that Romantix had been robbed and also showed him a picture from the surveillance videotape. On the basis of this evidence, we cannot conclude that the court abused its discretion by charging the juiy on consciousness of guilt. The jury was free to draw any reasonable inferences from the testimony and was left to determine whether the defendant’s initial statements relating to his name and date of birth were false and whether they were made in connection with the August 17, 2004 robbery. Accordingly, we conclude that the court did not abuse its discretion by instructing the jury on consciousness of guilt.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the initial information, the defendant also was charged with larceny-in the fifth degree in violation of General Statutes § 53a-125a. The state later filed a long form information, charging the defendant only with robbery in the first degree.

       “Larceny involves both taking and retaining. The criminal intent involved in larceny relates to both aspects. The taking must be wrongful, that is, without color of right or excuse for the act . . . and without the knowing consent of the owner. . . . The requisite intent for retention is permanency.” (Internal quotation marks omitted.) State v. Calonico, 256 Conn. 135, 162, 770 A.2d 454 (2001).

       Because we conclude that the jury was not bound to accept the defendant's version of events, we do not analyze his “claim of right” argument in this section of the opinion but do so in his prosecutorial impropriety claim, which we address in part III.

       The court charged in relevant part: “In any criminal trial it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may fairly have been influenced by the criminal act; that is, the conduct or statements show a consciousness of guilt.

        “In this case, you have heard evidence that the defendant gave a false name and date of birt h when questioned by the Milford police on December 27, 2004. First, you must determine whether the state has proven such statements, and, if so, that any proven statement was false. You must then find proven that the defendam made such statements in connection with the crime. Such statements tend to show a consciousness of guilt. They do not, however, raise a presumption of guilt.
      “It is up to you as the judges of the facts to decide whether statements or conduct of the defendant reflect consciousness of guilt and to consider in your deliberations in conformity with these instructions.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SHAUN WILLIAMS
    (AC 28521)
    McLachlan, Graendel and Mihalakos, Js.
    Argued April 28
    officially released July 8, 2008

      H. Owen Chace, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and John F. Fahey, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Shaun Williams, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), and from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. He claims that his conviction of robbery in the first degree and larceny in the second degree violated the constitutional prohibition against double jeopardy. We affirm the judgments of the trial court.

On the morning of May 4, 2005, the victim, Denise Laureano, was walking to work at the Children’s Medical Center in Hartford when a vehicle blocked her path. The defendant exited the vehicle, pointed a handgun at the victim and demanded her necklace. The victim refused. After pushing the victim to the ground, the defendant placed the handgun against her head and inside her mouth. At that moment, the defendant’s accomplice exited the vehicle, approached the victim and ripped the necklace from her neck. The defendant then took the victim’s cellular telephone from her person and fled the scene with his accomplice.

The defendant subsequently was arrested and tried before the jury, which found him guilty of robbery in the first degree, conspiracy to commit robbery in the first degree and larceny in the second degree. The court rendered judgment accordingly and thereafter found the defendant in violation of probation. This appeal followed.

The defendant’s sole claim is that his conviction of robbery in the first degree and larceny in the second degree violated the constitutional prohibition against double jeopardy. He failed to preserve that claim at trial and now requests Golding review. We conclude that no constitutional violation exists.

“The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb. . . . The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment. . . . Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of [our state constitution] include protection against double jeopardy. . . . [T]he Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Citation omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007).

The defendant’s claim implicates the last of these protections, contending that his conviction of robbery in the first degree and larceny in the second degree twice punishes him for the same crime. In State v. Hudson, 14 Conn. App. 472, 476, 541 A.2d 539 (1988), this court explained that “because larceny from the person requires a taking from the victim’s person as opposed to a taking from his presence or control, larceny in the second degree under § 53a-123 (a) (3) is not ordinarily a lesser included offense of robbery, the larceny component of which does not require such a taking.” Relying on that precedent, we rejected the defendant’s double jeopardy challenge to his conviction of robbery in the second degree and larceny in the second degree in State v. Littles, 31 Conn. App. 47, 58, 623 A.2d 500, cert. denied, 227 Conn. 902, 630 A.2d 72 (1993). Resolution of the present claim likewise is governed by that precedent. We therefore conclude that the defendant has failed to establish the existence of a clear constitutional violation.

The judgments are affirmed.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”
      General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

       See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. The first two questions relate to whether a respondent’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jarrett, 82 Conn. App. 489, 492 n.1, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).


text:
    STATE OF CONNECTICUT v. JEREMY LOMBRA
    (AC 28888)
    Gruendel, Robinson and Borden, Js.
    Argued May 29
    officially released July 8, 2008

      Kevin M. Smith, with whom, on the brief, was, Norman A. Pattis, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Jeremy Lombra, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that the court violated his constitutional right to due process by failing to inform him of his right to a hearing. The state concedes error. We reverse the judgment of the trial court.

On January 18, 2002, the defendant was convicted of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (b). The court sentenced him to a term of seven years imprisonment, execution suspended after twenty-three months, followed by four years probation pursuant to certain conditions. Following his failure to report to his probation officer and his failure of multiple urine tests, which tested positive for marijuana, a violation of probation warrant issued.

On October 6, 2006, the defendant appeared before the court. That proceeding commenced as follows:

“[The Prosecutor]: Criminal line forty-nine, Jeremy Lombra. Case has been continued for the defendant to hire counsel. He does not have counsel today.
“The Court: Put him to plea.
“[Clerk of the Court]: . . . [U]nder docket number CR 01206601, you’ve been charged with violation of probation under General Statutes § 53a-32. Do you admit or deny?
“[The Defendant]: Do I have to plead today? I haven’t even gotten a chance to talk to any attorney or anything.
“The Court: Sir, you were arrested on this, I believe, on August 11, 2006. It is now October 6. Do you admit or deny you violated your probation?
“[The Defendant]: I admit.”

The court thereafter rendered judgment revoking his probation pursuant to § 53a-32, and this appeal followed.

“The United States Supreme Court has held that although due process does not require that a person facing probation revocation be provided the full panoply of rights afforded a defendant at a criminal trial, it does require that a hearing be held before probation is revoked. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).” State v. Johnston, 17 Conn. App. 226, 232, 551 A.2d 1264 (1988), cert. denied, 210 Conn. 810, 556 A.2d 609 (1989). In Johnston, this court explained that “a defendant who desires to admit a probation violation must first be informed, on the record, of his right to have a hearing . . . . [H]e is entitled to a hearing to determine his culpability for the alleged violation.” (Internal quotation marks omitted.) Id., 234. The record plainly reflects that the court did not comply with that constitutional requirement. For that reason, the state concedes that “the defendant is entitled to another revocation hearing at which he is adequately informed of his right to contest the charges if he wishes to do so.” We agree and, accordingly, reverse the judgment of the trial court.

The judgment is reversed and the case is remanded for a new probation revocation hearing.

       The defendant also contends that the court failed to canvass him regarding the waiver of counsel. We need not consider that claim in light of our conclusion that a due process violation transpired.

       We note further the express mandate of General Statutes § 53a-32 (a), which provides in relevant part: “[T]he court shall cause the defendant to be brought before it . . . for a hearing on the violation [of probation] charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge, shall be advised by the court that such defendant has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in such defendant’s own behalf.”


author: GRUENDEL, J.

text:
    CHRISTOPHER R. RUSSO, SR., ADMINISTRATOR (ESTATE OF LOUISE RUSSO), ET AL. v. PHOENIX INTERNAL MEDICINE ASSOCIATES, P.C., ET AL.
    (AC 27696)
    Gruendel, Robinson and West, Js.

      Argued March 19
    officially released July 8, 2008

      Kathleen L. Nastri, for the appellants (plaintiffs).

      James S. Newfield, for the appellees (named defendant et al.).
   Opinion

GRUENDEL, J.

The plaintiff Christopher R. Russo, Sr., on his behalf and as administrator of the estate of his wife, Louise Russo, the decedent, appeals from the judgment rendered after a jury trial in favor of the defendants, Phoenix Internal Medicine Associates, P.C. (Phoenix), and one of its members, Leonardi Koliani, a board certified internist. On appeal, the plaintiff claims that the court improperly granted the defendants’ motion in limine to preclude the testimony of one of his expert witnesses, Ahvie Herskowitz, a board certified cardiologist and aboard certified internist. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Beginning in September, 2000, the decedent was treated at Phoenix for asthma related symptoms, including wheezing, sinus congestion and infection for which she was prescribed steroids and antibiotics. Beginning on January 19, 2001, the decedent informed Koliani that she was suffering from new symptoms. She reported that in addition to her asthma, she had throat discomfort, chest tightness, shortness of breath when she exerted herself and ankle swelling. Koliani examined the decedent and diagnosed her as having a steroid induced yeast infection in her throat due to the asthma medication and recurrent asthma symptoms. In addition, Koliani ordered an echocardiogram to evaluate the function of the decedent’s heart. Because of her new symptoms, he thought it was possible that the decedent might be suffering from a viral infection in her heart known as myocarditis, or from sleep apnea.

Robert Soufer, a board certified cardiologist, performed an echocardiogram on the decedent on or about February 6, 2001. He interpreted the echocardiogram and found that the decedent had a small to moderate pericardial effusion, which is an accumulation of fluid in the outside lining of the heart. Soufer also reported that the pericardial effusion did not explain the decedent’s shortness of breath, and he instructed Koliani to continue to observe the decedent. On the basis of the echocardiogaphic finding, Koliani ruled out the possibility of sleep apnea and thought that the decedent might be suffering from a resolving viral myocarditis. In addition, he diagnosed her with steroid induced fluid retention, which explained her ankle swelling.

On February 13, 2001, the decedent telephoned Koliani’s office and reported that although she had been breathing a little better for the past four to five days, she had been experiencing “flu like” symptoms in that she was veiy weak, had a temperature of 103 degrees Fahrenheit and could not do a “simple task.” Concerned that the decedent might have developed pneumonia, Koliani diagnosed her with an infection of her respiratory tract for which he prescribed antibiotics and ordered a chest X ray. Her medical chart indicated that the chest X ray was put on hold. Although not indicated in her medical chart, Koliani testified that it was put on hold because the decedent refused it. He also testified that she was offered an appointment to be seen by him on February 13, 2001, but that she refused that as well.

The decedent died in the early morning hours of February 15, 2001. Koliani received a telephone call from the medical examiner on that day and reported to the medical examiner that the decedent had a history of asthma, flu like symptoms, a fever and a small to moderate pericardial effusion. In addition, he told the medical examiner that the likely causes of the decedent’s death were viral myocarditis or an acute broncho-spasm. The medical examiner listed the likely causes of death as cardiac arrhythmia or infarction from viral myocarditis and obesity. No autopsy was performed.

The plaintiff subsequently brought this medical malpractice action against the defendants. The plaintiff alleged that the defendants failed to exercise that degree of care and skill ordinarily and customarily used by physicians specializing in the field of internal medicine and its subspecialties in that they “[a] failed to adequately and properly care for, treat, monitor, diagnose and supervise the plaintiffs decedent . . . [b] failed to properly perform the echocardiogram . . . [c] failed to properly interpret the echocardiogram . . . [d] failed to properly diagnose her true condition; [e] failed to provide appropriate follow up medical therapy after obtaining the results of the echocardiogram . . . [¶] failed to refer the plaintiffs decedent to a cardiologist; [g] failed to timely hospitalize the plaintiffs decedent after obtaining the results of the echocardiogram . . . [h] failed to timely obtain diagnostic testing; [i] failed to refer the plaintiffs decedent to a pulmonary specialist; [j] failed to perform complete physical examinations; [k] failed to prescribe proper medications; [1] failed to maintain a complete medical chart; and [m] failed to promulgate rules, regulations, standards and protocols for the treatment of patients such as the plaintiffs decedent.”

In the months leading to trial, in compliance with Practice Book § 13-4, the plaintiff disclosed two experts expected to testify at trial, Paul Lewinter, a board certified internist, and Herskowitz. The defendants deposed Lewinter and Herskowitz. From a review of the decedent’s medical records, Lewinter opined on the basis of a reasonable degree of medical probability that the decedent died from a pulmonary embolism and that Koliani breached the standard of care of a board certified internist by failing to diagnose and to treat the decedent for a pulmonary embolism, which breach caused the decedent’s death. He further concluded that it was not medically probable that the decedent died from viral myocarditis because the echocardiogram did not show wall motion abnormalities that would be consistent with that diagnosis. Herskowitz also reviewed the decedent’s medical records and testified that he was unable to narrow the decedent’s cause of death to one diagnosis. He opined on the basis of a reasonable degree of medical probability that the decedent could have died from one of three conditions, either from a pulmonary embolism, ischemic heart disease or viral myocarditis, and that the failure of Koliani to diagnose or to follow-up and treat for these three conditions was a breach of the standard of care of a board certified internist, which breach caused the decedent’s death.

During his deposition, when Herskowitz was asked how he arrived at the two additional diagnoses not contemplated by Lewinter, particularly viral myocarditis, he testified that he had “additional information and knowledge of viral myocarditis, and perhaps that confounds my ability to sort of decide on one versus the other.” He also opined that “there are any number of potential causes, but the three most likely, based on my experience and knowledge, would be those three.” Further, he testified that according to his reading of the echocardiogram, there was no way to rule out viral myocarditis.

Approximately three months prior to the start of the trial, the defendants filed a motion to preclude the testimony of Herskowitz on the ground that it would duplicate parts of Lewinter’s testimony and would contradict other parts of Lewinter’s testimony. The court, Trombley, J., denied the defendants’ motion on March 6,2006, without comment. On March 30, 2006, the defendants moved again, by way of a motion in limine, to preclude the testimony of Herskowitz on the ground that it would duplicate parts of Lewinter’s testimony and that it would confuse the standard of care to which Koliani should be held. On the eve of trial, the court, Bozzuto J., heard argument on the motion in limine. The court found that Herskowitz’ deposition testimony was cumulative of Lewinter’s deposition testimony, would invite confusion and possibly mislead the jury and had the potential to hold Koliani to a different standard of care than the law required. On those grounds, the court granted the defendants’ motion and precluded Herskowitz’ testimony. The case was tried to the jury, and the jury found in favor of the defendants. The plaintiff moved to set aside the verdict. The court denied the motion and rendered judgment in favor of the defendants in accordance with the jury verdict. This appeal followed.

Before we analyze the plaintiffs claim, we first determine the applicable standard of review. The plaintiff suggests that in precluding Herskowitz’ testimony, the court misinterpreted General Statutes § 52-184c, Connecticut Code of Evidence § 7-4 and Practice Book § 13-4 and that we should afford plenary review of the court’s ruling because the ruling presents a question of law. We disagree. In concluding that Herskowitz’ testimony should be precluded, the court did not engage in statutory interpretation. Rather, the court made an evidentiary ruling that Herskowitz’ testimony should be precluded because its prejudicial effect would outweigh its probative value. Accordingly, we review the court’s ruling under the abuse of discretion standard of review.

“It is well established that [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Concerning expert testimony specifically, the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) Al-Janet, LLC v. B & B Home Improvements, LLC, 101 Conn. App. 836, 845, 925 A.2d 327, cert. denied, 284 Conn. 904, 931 A.2d 261 (2007).

“[Bjefore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result.” (Internal quotation marks omitted.) Terio v. Rama, 104 Conn. App. 35, 39, 930 A.2d 837 (2007), cert. denied, 285 Conn. 912, 943 A.2d 471 (2008). Only if the plaintiff succeeds in demonstrating that the court abused its discretion, must we consider whether the impropriety was harmful. Id.

I

The plaintiff first claims that the court improperly precluded Herskowitz’ testimony on the standard of care because he was qualified to testify as a similar health care provider in accordance with § 52-184c. Regardless of whether Herskowitz was qualified to testify as a similar health care provider, the court concluded that the substance of his testimony was inadmissible because it was cumulative of Lewinter’s, would invite confusion and possibly mislead the jury and had the potential to hold Koliani to a different standard of care than the law required.

We first discuss the court’s finding that Herskowitz’ testimony had the potential to hold Koliani to a different standard of care than the law required. “[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons.” (Citation omitted; internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).

In proving the requisite standard of care for treatment in which it is alleged that the decedent’s injury or death resulted from the negligence of a health care provider, the plaintiff “shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” (Emphasis added.) General Statutes § 52-184c (a).

In the present case, because Koliani is a board certified internist, it was the plaintiffs burden to present expert testimony of what a reasonably prudent board certified internist would have done under the facts and circumstances of the present case. Furthermore, because Herskowitz maintained two board certifications, one as an internist and one as a cardiologist, it was paramount for the plaintiff to prove to the court that Herskowitz not only knew the standard of care of a board certified internist but also that he would testify to that standard of care without imposing the standard of care expected of a board certified cardiologist. See Friedman v. Meriden Orthopaedic Group P.C., 272 Conn. 57, 69, 861 A.2d 500 (2004) (“The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards, and not to the standards of the witness’ particular specialty if it differs from that of the defendant. . . . [T]he crucial question is whether . . . [the expert] knows what . . . [the standards of practice] are.” [Internal quotation marks omitted.]).

The plaintiff argues that Herskowitz knew what the standard of care of a board certified internist was under the facts and circumstances of this case and that he therefore should have been allowed to testify that a board certified internist should have considered ischemic heart disease and viral myocarditis on his differential diagnosis of the decedent. The plaintiffs argument misses the mark. Regardless of whether Herskowitz knew the standard of care applicable to a board certified internist, his deposition testimony was not limited to that standard of care. He testified that he considered the diagnoses of viral myocarditis and ischemic heart disease not as a result of his experience as an internist but, rather, as a result of his “experience and knowledge” and his “additional information and knowledge of viral myocarditis.” The court understood this testimony to mean that Herskowitz arrived at these two diagnoses on his differential as a result of his education, training and experience as a cardiologist, not as an internist. The plaintiffs counsel confirmed the court’s understanding when, during argument on the motion in limine, the court asked the plaintiffs counsel whether two of Herskowitz’ three diagnoses were a result of his expertise as a cardiologist, and the plaintiffs counsel responded that they were. Because Herskowitz arrived at the diagnoses of viral myocarditis and ischemic heart disease as a result of his education, training and experience as a cardiologist, the court did not abuse its discretion when it precluded Herskowitz from testifying that a board certified internist should have done the same, regardless of whether Herskowitz was qualified as a similar health care provider.

In addition, the court found that Herskowitz’ testimony had the potential to confuse the jury. We agree. Herskowitz’ deposition testimony that on the basis of a reasonable degree of medical probability, viral myocarditis was one of three conditions from which the plaintiff could have died was inconsistent with Lewinter’s deposition. Lewinter testified that it was not medically probable that the decedent died from viral myocarditis because the echocardiogram did not show any condition consistent with that diagnosis. Such inconsistent testimony had the potential to confuse the juiy.

Furthermore, that part of Herskowitz’ testimony that was consistent with Lewinter’s testimony was cumulative and was precluded properly. See Glaser v. Pullman & Comley, LLC, 88 Conn. App. 615, 627, 871 A.2d 392 (2005) (“[e]vidence is cumulative if it multiplies witnesses or documentary matters to any one or more facts that were the subject of previous proof’). Because the court may, in its discretion, preclude evidence if its probative value is outweighed by the needless presentation of cumulative evidence, the court did not abuse that discretion in precluding that part of Herskowitz’ testimony that was consistent with Lewinter’s testimony. See id. The plaintiffs claim, therefore, fails.

II

In the alternative, the plaintiff argues that even if the court properly precluded Herskowitz’ testimony regarding the standard of care, it improperly precluded his testimony regarding causation. In addition to proving the requisite standard of care for treatment and a deviation from the standard of care, the plaintiff was required to prove a causal connection between the deviation and the claimed injury. Cavallaro v. Hospital of Saint Raphael, 92 Conn. App. 59, 65, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005). Furthermore, because there was no autopsy performed on the decedent, the plaintiff had to prove from what the decedent had died.

The plaintiff argues that the court abused its discretion in precluding Herskowitz’ testimony on causation because § 52-184c does not preclude expert witnesses of a specialty different from that of a defendant from testifying regarding the element of causation. Although we agree with that proposition, it does not persuade us that the court abused its discretion in precluding Herskowitz’ causation testimony.

Under the facts and circumstances of this case, the court’s preclusion of Herskowitz’ testimony on the standard of care necessarily precluded his testimony on causation. Because Herskowitz was precluded from testifying that Koliani breached the standard of care of a board certified internist by failing to diagnose or to follow-up and treat for viral myocarditis, ischemic heart disease and a pulmonary embolism, he also was precluded from testifying that the failure to do so was the cause of the decedent’s death. That testimony would have implicated his improper testimony on the standard of care. In addition, Herskowitz’ testimony on the cause of the decedent’s death was speculative. He testified that he was unable to narrow down the decedent’s death to one cause and that to a reasonable degree of medical probability the decedent could have died from any one of three causes. Such testimony was improper, and the court was within its discretion to preclude it. We conclude that the court did not abuse its discretion in precluding Herskowitz’ testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lewinter was disclosed to testify that the defendants departed from the applicable standard of care in one or more of the following ways: “[a] failed to construct a reasonable differential diagnosis and workup; [b] failed to follow up on the results of the echocardiogram; [c] failed to perform a thorough examination of the plaintiffs decedent who presented with ankle edema, shortness of breath, weakness and hypertension, which would have included an examination for phlebitis, an abdominal examination, and examination for tamponade and a urinalysis; [d] failed to take an adequate history in light of chest tightness; and [e] failed to hospitalize the plaintiffs decedent, given her complaints and the lack of diagnosis.”

       Herskowitz was disclosed to testify that the defendants departed from the applicable standard of care in one or more of the following ways: “[a] failed to construct a reasonable differential diagnosis and workup; [b] failed to follow-up on the results of the echocardiogram; [c] failed to perform an [electrocardiogram], despite her cardiac symptoms; [d] failed to perform a thorough examination of the plaintiffs decedent who presented with ankle edema, shortness of breath, weakness and hypertension; [e] prescribed asthma medication over the telephone, despite a lack of asthma symptomatology on her most recent visit; [¶] failed to take an adequate history in light of chest tightness; and [g] failed to hospitalize the plaintiffs decedent, given her complaints and the lack of diagnosis.” In addition, Herskowitz was disclosed to testify that the decedent’s death was related to pulmonary embolism, cardiac tamponade and ischemic heart disease and that Koliani failed to consider and to follow-up on these diagnoses.

       Specifically, Herskowitz testified: “The basis of my opinion is that viral myocarditis can present without regional wall motion abnormalities on the echocardiogram, without systolic dysfunction on the echocardiogram, and can solely present with pericardial effusion and diastolic dysfunction, both of which I believe that [the decedent] showed.”

       General Statutes § 52-184c (c) provides in relevant part: “If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty . . .


text:
    JAMES DAVIS v. COMMISSIONER OF CORRECTION
    (AC 28289)
    Graendel, Robinson and Peters, Js.

      Argued April 21
    officially released July 8, 2008

      Martha Brooke Hansen, special public defender, for the appellant (petitioner).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, and David M. Carlucci, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

GRUENDEL, J.

The petitioner, James Davis, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that the court improperly concluded that res judicata barred relitigation of his claim of ineffective assistance of trial counsel in preserving his appellate rights. We affirm the judgment of the habeas court.

In 1991, following a jury trial, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a), threatening in violation of General Statutes (Rev. to 1989) § 53a-62 (a) (1) and kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a. He was sentenced to a total effective term of thirty-six years imprisonment. The petitioner did not appeal from that judgment.

The petitioner subsequently filed a petition for a writ of habeas corpus that alleged, inter alia, ineffective assistance of trial counsel in that counsel, “with respect to the [p]etitioner’s [r]ight to [a]ppeal, did not advise or assist him in preserving and perfecting his [a]ppeal in a timely fashion nor did he advise or assist the [p]etitioner in having the [a]ppeal referred to the Appellate Office of the Chief Public Defender. ” A trial followed, at which both the petitioner and his trial counsel, attorney Richard Perry, testified. In its memorandum of decision, the court, Sferrazza, J., rejected the petitioner’s claim of ineffective assistance. The court stated: “Credibility is for the trier of fact to determine. The court finds Perry’s testimony to be credible and accurate, and the court concludes that the petitioner never informed Perry of his desire to file an appeal, despite Perry’s instructions to him in the event the petitioner wished to appeal. . . . With respect to the first count, the petitioner has failed to meet his burden of proving [that] Perry improperly advised and assisted him regarding the taking of an appeal. On the contrary, the court finds that the failure to perfect an appeal was the result of the petitioner’s inaction rather than any omission by Perry.” (Citation omitted.) Accordingly, the court dismissed the petition for a writ of habeas corpus on that basis, which judgment this court affirmed on appeal. Davis v. Commissioner of Correction, 39 Conn. App. 735, 667 A.2d 560 (1995), cert. denied, 236 Conn. 902, 670 A.2d 321 (1996).

On August 18, 2006, the petitioner commenced a second habeas proceeding with what he termed a “Latest Amended Petition” that consisted of two counts. Count one alleged ineffective assistance of trial counsel for failing (1) to move for disclosure of a confidential informant, (2) to move to suppress the petitioner’s arrest as the fruit of the poisonous tree, (3) to move to suppress the testimony of a police officer and (4) to “properly act as [the] petitioner’s appellate counsel pursuant to Practice Book § 62-8, which places all responsibility on trial counsel to appear for the petitioner, absent filing a motion to withdraw.” In count two, the petitioner repeated those allegations and added claims that attorney James A. Shanley, Jr., his counsel on the first habeas petition, rendered ineffective assistance by not raising them and by not claiming that trial counsel “was further ineffective for not filing a Franks [m]otion challenging the factual allegations of the arrest warrant.” Following a trial, the court, Fuger, J., dismissed the petition. In its oral decision, the court concluded that the claim concerning the petitioner’s appellate rights was barred by the doctrine of res judicata. As to the remaining claims, the court concluded that the petitioner had not satisfied his burden of proving either deficient performance on the part of his counsel or prejudice resulting therefrom. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This appeal followed.

On appeal, the petitioner claims that the court improperly dismissed his “latest amended” petition for a writ of habeas corpus. The court concluded that the claim of ineffective assistance regarding his appellate rights had been litigated in the petitioner’s previous habeas action and, thus, was res judicata. We agree with the court.

We first note the applicable standard of review. “[T]he conclusions reached by the trial court in its decision to dismiss the habeas petition are matters of law, subject to plenary review .... Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 86 Conn. App. 42, 44, 859 A.2d 948 (2004).

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” (Internal quotation marks omitted.) Bridges v. Commissioner of Correction, 97 Conn. App. 119, 122, 905 A.2d 103, cert. denied, 280 Conn. 921, 908 A.2d 543 (2006). “Res judicata is a doctrine grounded in public policy, whose primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction. Dunham v. Dunham, 221 Conn. 384, 391, 604 A.2d 347 (1992). The doctrine applies to criminal as well as civil proceedings and to state habeas corpus proceedings, including matters previously litigated in federal court. McCarthy v. Warden, 213 Conn. 289, 294-98, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).” Brown v. Commissioner of Correction, 44 Conn. App. 746, 750, 692 A.2d 1285 (1997).

In his first habeas action, the petitioner raised the claim that trial counsel rendered ineffective assistance in failing to perfect an appeal on his behalf. That claim was litigated fully and fairly before the habeas court, which held a trial and heard testimony from both the petitioner and trial counsel on that claim. The court expressly credited the testimony of trial counsel and discredited that of the petitioner. It concluded that “the petitioner has failed to meet his burden of proving [that trial counsel] improperly advised and assisted him regarding the taking of an appeal. On the contrary, the court finds that the failure to perfect an appeal was the result of the petitioner’s inaction rather than any omission by [trial counsel].” The petitioner thereafter had a full and fair opportunity to challenge that determination on appeal to this court, which affirmed the judgment of the habeas court. Davis v. Commissioner of Correction, supra, 39 Conn. App. 735.

In his “latest amended” petition, the petitioner again alleged that trial counsel had failed to perfect an appeal on his behalf, claiming that counsel did not “properly actas [the] [petitioner's [a]ppellate [c]ounselpursuant to Practice Book § 62-8, which places all responsibility upon trial counsel to appear for [the] [petitioner, absent filing a motion to withdraw.” Although that petition reformulates his contention in terms of our rules of practice, it is, essentially, the same claim of ineffectiveness. It is well established that a petitioner must “show that his [petition] does, indeed, involve a different legal ground”; Iasiello v. Manson, 12 Conn. App. 268, 272, 530 A.2d 1075, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987); and not “merely a verbal reformulation of previously rejected claims.” Negron v. Warden, 180 Conn. 153, 161, 429 A.2d 841 (1980); see also Mejia v. Commissioner of Correction, 98 Conn. App. 180,190, 908 A.2d 581 (2006).

In Brown v. Commissioner of Correction, supra, 44 Conn. App. 746, this court found the doctrine of res judicata applicable to the petitioner’s ineffective assistance claim. In so doing, we explained: “[The petitioner] had a fair hearing before that prior court, and his claims were fully litigated. He is, therefore, barred from any future actions on matters raised or that could have been raised in the first proceeding.” Id., 751. Similarly, the claim that trial counsel rendered ineffective assistance in failing to perfect an appeal on the petitioner’s behalf was fully and fairly litigated in the prior habeas proceeding. His verbal reformulation of that claim in the present proceeding is unavailing.

Furthermore, the petitioner misreads Practice Book § 62-8. By its plain language, that rule pertains only to those instances in which an appeal has been filed. As the court aptly noted in its oral decision, “the key here is [that] no appeal was ever filed.” Contrary to the assertion of the petitioner, Practice Book § 62-8 contains no provision requiring trial counsel, in each and every legal proceeding, to commence an appeal on behalf of a client when that client has indicated no desire to file an appeal, as in the present case. The petitioner has provided this court no authority in support of his strained reading of Practice Book § 62-8, and we decline his invitation to graft onto that rule a requirement not contained therein.

We agree with the determination of the court that the petitioner asserted, in his “latest amended” petition, a claim that previously has been adjudicated fully on its merits. We therefore conclude that the court properly dismissed the petition.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we conclude that the court properly determined that res judicata barred the petitioner’s claim of ineffective assistance, we do not reach his ancillary contention as to the merits of that claim.

       See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

         The court subsequently granted the petition for certification to appeal.

       On appeal, the petitioner has raised no claim concerning his trial counsel’s alleged failure (1) to move for disclosure of a confidential informant, (2) to move to suppress his arrest as the fruit of the poisonous tree, (3) to move to suppress the testimony of a police officer or (4) to file a motion pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

       Our Supreme Court recently repeated this principle in rejecting a blanket prohibition of res judicata in habeas proceedings. See In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 667-69, 866 A.2d 542 (2005) (en banc).

       Although Practice Book § 62-8, which, at the time of the petitioner’s conviction was Practice Book § 4034, has been amended several times since 1991, those amendments do not affect the substance of his claim. We therefore refer to the current version of § 62-8 as the applicable rule of practice.
      Practice Book § 62-8 provides: “Counsel for all parties in the trial court shall be deemed to have appeared in the appeal unless permission to withdraw has been granted pursuant to Section 62-9 or unless an in lieu of appearance pursuant to Section 3-8 has been filed by other counsel. Counsel who filed the appeal or filed an appearance in the appellate court after the appeal was filed shall be deemed to have appeared in the trial court for the limited purpose of prosecuting or defending the appeal. Unless otherwise provided by statute or rule, counsel who have so appeared shall be entitled to review all trial court docket sheets and files, including sealed files, and shall be entitled to participate in proceedings in the trial court on motions filed in the trial court pursuant to Section 66-1 and motions filed in the appellate court but referred to the trial court for decision. Where counsel did not file the appeal but have appeared in the appellate court, a copy of an appearance form stamped by the appellate clerk’s office shall be satisfactory evidence of an appearance in an appeal. This rule shall not be deemed to permit appellate counsel to review records that were sealed as to trial counsel but retained in the trial court file for appellate review.

        “This rule shall not be deemed to excuse trial counsel with respect to preserving a defendant’s right to appeal pursuant to Section 63-7; nor shall this rule prevent trial counsel from moving for a withdrawal of appearance pursuant to Section 62-9.
      “No change, substitution or withdrawal of counsel shall be permitted after the due date of the final reply brief without leave of the court.”

       The decision to appeal rests with the client, not the attorney. See Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000); Johnson v. Commissioner, 218 Conn. 403, 413 n.11, 589 A.2d 1214 (1991).