author: ALVORD, J.

text:
    ERIC S. v. TIFFANY S. TIFFANY S. v. ERIC S.
    (AC 33251)
    Lavine, Alvord and Harper, Js.

      Argued January 22
    officially released May 28, 2013

      Steven R. Dembo, with whom was P. Jo Anne Burgh, for the cross appellant (defendant in the first case, plaintiff in the second case).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

ALVORD, J.

The plaintiff, Eric S., commenced this action on May 14, 2009, against the defendant, Tiffany S., seeking a dissolution of the parties’ marriage. That same day, in a separate action, the defendant filed an application for relief from abuse against the plaintiff pursuant to General Statutes § 46b-15. The two actions became companion cases by order of the court issued on January 19, 2010.

Following a hearing, the court granted the defendant’s application for a domestic restraining order on June 16, 2009. The restraining order was extended several times, as requested in subsequent motions filed by the defendant. On February 14,2011, the defendant filed a motion for contempt against the plaintiff, claiming that he had violated the restraining order. The court heard testimony, found the plaintiff in contempt and ordered him to pay the defendant $7500 in attorney’s fees. The plaintiff appealed from the court’s finding of contempt, and the defendant filed a cross appeal. This court dismissed the plaintiffs appeal on October 18, 2011. On cross appeal, the defendant claims that the court improperly (1) characterized the plaintiffs violation of the restraining order as a civil contempt and (2) limited the choice of sanctions to those available upon a finding of civil contempt. We affirm the judgment of the trial court.

The following additional facts and procedural history are necessary for the resolution of the defendant’s claims. The parties were married on August 23, 2003, and have one minor child. The domestic restraining order, granted after the hearing on June 16, 2009, ordered the plaintiff, inter alia, to refrain from threatening, harassing or stalking the defendant or their minor child, to refrain from having contact in any manner with the defendant or their minor child and to refrain from coming within 100 yards of the defendant or their minor child. Additionally, the order contained firearms restrictions that prohibited the plaintiff from possessing any pistol, revolver or any other firearm. The order also contained the following language: “[A]ny violation of this order constitutes a criminal violation of a restraining order which is punishable by a term of imprisonment of not more than five years, a fine of not more than five thousand dollars or both. ... If you possess any pistol or revolver, or any firearm or electronic defense weapon, after you have had notice of such order and an opportunity to be heard, you will be guilty of criminal possession of a pistol or revolver or criminal possession of a firearm or electronic defense weapon . . . punishable by a fine of up to five thousand dollars or imprisonment of up to five years or both . . . .” (Emphasis added.)

A few days after the issuance of the domestic restraining order, a pawn shop employee contacted the Wethersfield police department and reported that the plaintiff offered him $10,000 to purchase a gun. The plaintiff was arrested and subsequently entered a plea of guilty to reckless endangerment in the first degree in criminal court. At about the same time as the pawn shop incident, the plaintiff went to their minor child’s school in West Hartford and again was arrested for criminal violation of the restraining order. Because of these criminal incidents and arrests, the plaintiff was incarcerated for a short period of time.

The initial domestic restraining order would have expired on December 16, 2009, but the defendant filed subsequent motions to extend it for successive six month periods. On February 11, 2011, after the third requested extension had been granted by the court, the defendant filed a motion for contempt alleging that the plaintiff had violated the domestic restraining order. The motion for contempt related the incidents at the pawn shop and the child’s school and, additionally, set forth various incidents in which the plaintiffs behavior was alleged to be threatening to the health, safety and well-being of the defendant and their minor child. The defendant claimed that the plaintiff continued in his attempts to initiate contact with her and requested that the court “punish him accordingly.” As sanctions, the defendant requested “an order of incarceration, referral to the criminal authorities, imposition of attorney’s fees and costs and such other and further orders as are necessary to protect the defendant’s safety.”

At the contempt hearing held on February 16 and March 2, 2011, the defendant’s counsel told the court that it had a “plethora of [available] remedies” if it found the plaintiff in contempt of the domestic restraining order. Stressing the seriousness of the plaintiffs behavior, the defendant’s counsel, at various times during the hearing, suggested that the court could: (1) impose house arrest; (2) have the plaintiff monitored with an electronic ankle bracelet; (3) refer the matter to the office of the state’s attorney for criminal prosecution; (4) incarcerate the plaintiff; and (5) order the plaintiff to pay the attorney’s fees of the defendant. The defendant’s counsel argued that all of these sanctions could be imposed because § 46b-15 (g) provides that a court “may impose such sanctions as the court deems appropriate” if it finds a party has violated a domestic restraining order.

The court responded that a party’s violation of a domestic restraining order could lead to both criminal prosecution and civil contempt, but the court questioned its authority to impose incarceration as a punishment in a civil contempt proceeding. The defendant’s counsel stated: “[I]f you can do it for nonpayment of child support, incarceration, it would be a mockery of the restraining order, which is there for the protection of people, that you cannot do it in a case of this nature.” The court inquired: “Well, but the reason you can do it in child support is to allow the person to purge themselves of that. How—if you do it in a scenario like this, how does that individual purge himself of the contempt?” The defendant’s counsel responded: “I’ll have to think about that.”

The court found the plaintiff in contempt on February 16, 2011, but continued the hearing to March 2, 2011 to determine the appropriate sanctions for the plaintiffs violation of the restraining order. On March 2, 2011, the defendant’s counsel submitted to the court a “Memorandum of Law Re: Contempt Remedies.” In the memorandum’s concluding paragraph, the defendant requested that the court: (1) refer the matter to the family violence unit; (2) order the court support services division to make arrangements for the electronic monitoring of the plaintiff; (3) order the plaintiff to pay the attorney’s fees of the defendant; and (4) refer the court’s finding of contempt and its entire decision to the appropriate prosecutorial authorities and the plaintiffs probation officer. The remedies requested by the defendant were discussed on the record.

The court concluded as follows: “I’m going to produce this transcript. I’m not going to order his incarceration because, frankly, I don’t think he holds the key to purging himself from whatever I incarcerate him for, and that’s what [is] required in a civil contempt. So, he [is] not going to be incarcerated today.

“I am going to produce the transcript. I’m going to send it over to the probation officer.

“I’m going to indicate that it’s the court’s belief that a much more intensive domestic violence program is appropriate, that the family violence education program is not going to be adequate for this situation. And I will certainly indicate that it’s been suggested that electronic monitoring might be more appropriate. And I’m going to leave it at that. . . . Oh, and I’m going to consider the affidavit on the attorney’s fees and I will make an order on that.”

In her cross appeal, the defendant now challenges the adequacy of the sanctions imposed by the court for the plaintiffs violation of the domestic restraining order. Essentially, she claims that the court improperly treated his contempt as a civil contempt and improperly limited the sanctions to civil contempt remedies.

I

The defendant’s first claim is that a violation of a § 46b-15 domestic restraining order should not be characterized as a “purely civil contempt.” She argues that because the contemptuous behavior in this case subjected the plaintiff to criminal prosecution, the contempt proceedings should be considered quasi-criminal in nature. The defendant cites cases from other jurisdictions in support of this position because there is no case law in Connecticut holding that a § 46b-15 contempt hearing is a quasi-criminal proceeding.

The court expressly stated that it considered the plaintiffs violation of the domestic restraining order to be a civil contempt. A court’s characterization of a contempt as civil is subject to a de novo review on appeal. Monsam v. Dearington, 82 Conn. App. 451, 456 n.8, 844 A.2d 927 (2004). “Our case law classifies civil contempt as conduct directed against the rights of the opposing party . . . while criminal contempt consists of conduct that is directed against the dignity and authority of the court.” (Internal quotation marks omitted.) In re Jeffrey C., 261 Conn. 189, 197, 802 A.2d 772 (2002). In the present case, the plaintiff violated a restraining order designed to protect the defendant and the parties’ minor child. His behavior was directed at those individual parties. Our case law has never treated contempt, under such circumstances, to be criminal or quasi-criminal in nature. To the contrary, our Supreme Court recently made a distinction between a criminal protective order issued in connection with a pending criminal case and a civil domestic violence restraining order issued pursuant to § 46b-15. See State v. Fernando A., 294 Conn. 1, 9-13, 25 n.19, 981 A.2d 427 (2009). The family court’s finding of a civil contempt in this action is not transformed into a criminal contempt simply because the plaintiffs behavior in this case subjected him to both a criminal prosecution and a civil proceeding in the family court for violation of a § 46b-15 domestic restraining order.

Because we conclude that the trial court properly determined that the plaintiffs violation of the restraining order was a civil contempt, the sanctions that may be imposed are limited to civil contempt remedies. “The distinction between civil and criminal contempt focuses on the intent of the punishment and the nature and character of the punishment. . . . Contempt is civil if the intent of the punishment is coercive and the punishment is avoidable. If the effect of the punishment is such that a contemnor can avoid or reduce imprisonment, fine or any other punishment imposed, the contempt is civil in nature. . . . Civil contempt is designed to compel future compliance. After a finding of civil contempt, the court retains jurisdiction to vacate the finding or to give the contemnor the opportunity to purge the contempt by later compliance with a court order. . . .

“Criminal contempt, in contrast to civil contempt, is punitive in nature. If the contemnor cannot avoid or has no opportunity to purge the defiance, the act of defiance is criminal. ... A finding of criminal contempt is usually levied for completed acts of disobedience to vindicate the authority of the court itself.” (Citations omitted.) Monsam v. Dearington, supra, 82 Conn. App. 456-57.

Here, although the defendant frames her issue as the court’s improper refusal to impose sanctions other than those available in civil contempt proceedings, she has focused solely on the punishment of incarceration in her appellate brief and at the time of argument before this court. We, therefore, address only her claim that the court should have considered and imposed the punishment of incarceration for the plaintiffs violation of the domestic restraining order.

We agree with the general premise that incarceration may be imposed in a civil contempt proceeding under certain circumstances. “In Connecticut, the court has the authority in civil contempt to impose on the contem-nor either incarceration or a fine or both.” (Internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 766 n.12, 48 A.3d 16 (2012); Martocchio v. Savoir, 130 Conn. App. 626, 631, 23 A.3d 1282, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011). Nevertheless, as recognized by the trial court in this case, the plaintiff contemnor still must have the opportunity to purge himself because it is a civil contempt. “[A] trial court has the power even to incarcerate contemnors in civil contempt cases until they purge themselves . . . .” (Internal quotation marks omitted.) Martocchio v. Savoir, supra, 631. The defendant wanted the plaintiff incarcerated for his previous violations of the domestic restraining order because she claimed that his behavior was criminal in nature and that she was afraid of him. If the court had imposed a period of incarceration, there is nothing that the plaintiff could have done to secure his release or to reduce the length of whatever sentence was imposed. In other words, it would not have been coercive, it would have been a purely punitive sanction for a previous domestic restraining order violation. There would have been no opportunity for the plaintiff to purge himself of the civil contempt.

II

The defendant claims that incarceration is a permitted sanction in a civil contempt proceeding arising out of an alleged violation of § 46b-15 by virtue of the language in the statute itself. The defendant argues: “As evidenced by both the plain language of the statute and the legislative history, the court’s authority as to a § 46b-16 (g) contempt is significantly broader than for common-law civil contempt.” She directs us to the language in subsection (g) that provides that “the court may impose such sanctions as the court deems appropriate” if it finds a party in contempt of a § 46b-15 restraining order. Such sanctions would include, she claims, incarceration as punishment for a past violation. We disagree.

“Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007). “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 605, 887 A.2d 872 (2006).

The defendant claims that the broad language is clear and unambiguous and permits, virtually, any sanction that a court might find to be appropriate under the circumstances. We conclude that the language is ambiguous because we cannot discern the scope of the remedies that the legislature had in mind from the statutory language alone. We, therefore, look to the legislative history.

Subsection (g) was added to § 46b-15 by No. 86-337, § 7, of the 1986 Public Acts (P.A. 86-337). That amendment was part of a comprehensive bill that included the enactment of General Statutes § 46b-38a et seq. As explained in State v. Fernando A., supra, 294 Conn. 18, “[t]hat statute [§ 46b-38c] was enacted in 1986 in response to the domestic abuse of Tracey Thurman, a woman whose local police department had failed to aid her after repeated beatings by her former husband. . . . The legislature created family violence response and intervention units to accept referrals of family violence cases from judges or prosecutors, and prepare family services reports and recommendations for the court based on interviews of the complainant and the defendant.” (Citation omitted.) In P.A. 86-337, various statutory provisions relating to domestic abuse were either enacted or amended to address existing problems in processing such matters by the court system. Some of the provisions of P.A. 86-337 addressed criminal protective orders and some of the provisions addressed civil proceedings for domestic abuse. The extensive legislative history addresses all aspects of the proposed legislation and must be read carefully, not only to ascertain whether a remark is directed to a civil or criminal provision, but also to determine whether the referenced provision was part of the legislation as enacted.

Section 46b-15 was not substantially changed, but a new subsection (g) was added to address the types of sanctions that a court could impose for the violation of a civil domestic abuse restraining order. Subsection (g) is essentially the same today as it was when it was enacted in 1986. The legislation as passed, and as it exists today, always has authorized the court to “impose such sanctions as the court deems appropriate.” General Statutes § 46b-15 (g). There are, however, other significant differences in the legislation as originally proposed and as passed. The proposed House Bill No. 6256, “An Act Concerning Family Violence Prevention and Response,” as discussed by the legislators and members of the public in 1986, initially contained the following language, which was either deleted or amended.

The proposed bill stated that a restraining order issued pursuant to § 46b-15 would contain the language: “Any violation of this order constitutes criminal offense of a restraining order.” See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1986 Sess., p. 587. That proposed language was deleted from the bill that passed. Further, the proposed bill provided that “[a] person is guilty of criminal violation of a restraining order when he violates a restraining order which has been issued against him under Section 46b-15, and which is in effect. Criminal violation of a restraining order is a class A misdemeanor.” See id., p. 588. That proposed language also was deleted from the final bill. Significantly, subsection (g) of § 46b-15 initially contained the following provision: “If the court finds the respondent in contempt for violation of an order, the court may impose a fine or a term of imprisonment of not more than thirty days or both, order restitution, require the respondent to post a bond which shall be forfeited to the applicant upon a subsequent finding of further contempt of the order, or which if not forfeited shall be returned upon expiration of the restraining order, or any other remedy it deems appropriate.” See id., pp. 588-89. The proposed language, identifying specific sanctions, was deleted from the bill prior to passage. Instead, the legislation that passed provided: “If the court finds the respondent in contempt for violation of an order, the court may impose such sanctions as the court deems appropriate.” Public Acts 1986, No. 86-337, § 7.

Accordingly, the defendant is incorrect when she claims that the legislative history reflects that the legislature broadened the available remedies by adding “such sanctions as the court deems appropriate” to the final bill. The proposed bill already contained that language, although it used the word remedy instead of sanctions. Prior to passage, the legislature deleted all of the enumerated criminal type of penalties. Further, in her brief, the defendant states that the legislative history explicitly provided for a fine, posting of a bond and the possibility of a jail sentence. Again, those remarks, while found in the legislative history, addressed proposed language that was deleted from the legislation that became law.

For these reasons, the defendant’s argument that the statutory language and legislative history support her claim that the punishment of incarceration was available to the court under the circumstances of this case is not persuasive. Although incarceration still may be a sanction in a civil contempt proceeding if it is coercive in nature and allows a contemnor to avoid or lessen the sentence of incarceration by purging himself of the contempt, that was not the situation in the present case. The court’s determination that incarceration was not an appropriate sanction for the plaintiffs violation of the restraining order was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although Eric S. is the plaintiff in the dissolution action and Tiffany S. is the plaintiff in the action for a restraining order against Eric S., we refer to Eric S. as the plaintiff and Tiffany S. as the defendant throughout this opinion for the sake of convenience.

       A judgment of dissolution was rendered on September 6, 2011.

       General Statutes § 46b-15 (a) provides: “Any family or household member, as defined in section 46b-38a, who has been subjected to a continuous threat of present physical pain or physical injury, stalking or a pattern of threatening, including, but not limited to, a pattern of threatening, as described in section 53a-62, by another family or household member may make an application to the Superior Court for relief under this section.”

         The plaintiffs appeal was dismissed for his failure to file an appellate brief.

       The restraining order did provide that the plaintiff was allowed to have supervised visitation with the parties’ minor child at times set forth in that order.

       The plaintiff represented himself at the contempt hearing.

       The defendant did not request incarceration or a suspended sentence of imprisonment in that memorandum of law.

       The court noted that it already had made a referral to the office of the state’s attorney and had sent the transcript from the February 16, 2011 court proceeding.

       The defendant argues: “[The plaintiffs] actions would support a conviction for any of several violations of the Connecticut Penal Code, including stalking in the first or second degree and harassment in the first degree. Stalking in the first degree is a class D felony, and it can be established by proof of conduct constituting stalking in the second degree plus a preexisting court order prohibiting the subject conduct. A criminal defendant who is convicted of stalking in the first degree can be incarcerated. . . . It would, therefore, be a curious result if precisely the same conduct were deemed to be secure from incarceration solely because the complainant alleged violation of a restraining order under § 46b-15 instead of violation of [General Statutes] § 53a-181c.” (Citation omitted.)
      We are not persuaded by this argument. In a criminal proceeding for stalking in the first degree, the accused would have the right to a trial by jury, and the charges would have to be proved beyond a reasonable doubt. The defendant asks the civil court to find a party charged with the violation of a domestic restraining order guilty of a criminal offense and to incarcerate him without the due process protections afforded an accused in a criminal proceeding.

       General Statutes § 46b-l provides in relevant part: “Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving ... (5) actions brought under section 46b-15 . . . .”

       In her brief and at the time of oral argument before this court, the defendant argued that the court could have imposed a suspended sentence of incarceration for a definite, reasonable time. She claims that such a sanction would then be within the scope of proper remedies for a civil contempt because a suspended sentence, to be imposed if the plaintiff violated the restraining order in the future, would be remedial and coercive.
      First, the defendant never raised that argument before the trial court. Second, the restraining order, as acknowledged by the defendant, has expired. This claim, therefore, is moot because the defendant is seeking to have the case remanded to the trial court for it to impose a suspended sentence that would only last for the duration of the restraining order. See Harris v. Harris, 291 Conn. 350, 355, 968 A.2d 413 (2009) (“it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow” [internal quotation marks omitted]).


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    MINERVA LACHIRA ET AL. v. SUTTON AND SUTTON ESQUIRES ET AL.
    (AC 34266)
    DiPentima, C. J., and Beach and Pellegrino, Js.

      Argued January 14
    officially released May 28, 2013

      Richard H. G. Cunningham, for the appellant (plaintiff).

      Kenneth J. Mastroni, with whom was Cynthia Coe-como, for the appellees (defendant James J. Sutton et al.).
   Opinion

DiPENTIMA, C. J.

The plaintiff Minerva Lachira appeals from the denial of her motion to set aside the jury’s verdict in favor of the defendants James J. Sutton (Sutton) and Stanford Guy Sutton, executor of the estate of Stanford H. Sutton. On appeal, the plaintiff claims that the trial court abused its discretion in denying her motion to set aside the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The relationship between the plaintiff and her landlord, Stanford H. Sutton, which had begun in 1999, was fraught with conflict. On December 19, 2005, Sutton, at the time his father’s agent, went to the plaintiffs apartment, along with his maintenance worker, Graham Leavey, in order to supervise repairs and to take photographs of damages to the premises. The plaintiff was home, Leavey having arranged an appointment with her by telephone. After gaming entry to the apartment, Sutton began photographing damage. The plaintiff became agitated and told Sutton to leave, whereupon both he and Leavey left the apartment. Thereafter, Sutton and the plaintiff each called the police.

A police officer arrived and interviewed Sutton, Leavey, and the plaintiff. The plaintiff claimed that Sutton had “barged” into the apartment without her permission and had hurt her wrist. She told the officer that, after forcing his way in, Sutton brushed past her roughly in order to take photographs, causing her to feel “violated” and further injuring her. Sutton, when interviewed, denied having forced his way in or having hurt the plaintiff. Both he and Leavey told the police officer that they came into the plaintiffs apartment with her permission. The officer, a certified paramedic, observed no signs of injury. Because he could not substantiate the plaintiffs injury complaints with either the physical evidence or other witnesses, the police officer made no arrests. Homs later, the plaintiff went to the hospital and was treated for visible redness to her left arm. The next day, the plaintiff arrived at the police station to have photographs taken of her injury. She showed the officer her right arm, which had four vertical marks that she claimed resulted from her encounter with Sutton.

The plaintiff commenced this action against the defendants, seeking damages for the injuries that she claimed to have sustained as a result of the incident. In her complaint, she alleged common-law trespass and battery, as well as a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants filed an answer denying all three counts. A jury trial commenced on November 4, 2011, and evidence concluded on November 8, 2011. The jury returned a verdict in favor of the defendants on November 9, 2011. On November 10, 2011, the plaintiff filed a motion to set aside the verdict. The court, Hon. Edward R. Karazin, Jr., judge trial referee, held a two day hearing, and, on December 28, 2011, denied the motion and rendered judgment in accordance with the jury’s verdict. On January 17, 2012, the plaintiff filed a motion for a rehearing on the issue of juror misconduct, which the court denied. This appeal followed.

The plaintiff claims that the court abused its discretion in denying her motion to set aside the verdict because (1) the verdict was against the weight of the evidence and (2) juror misconduct deprived her of a fair trial. We disagree.

“The standard of review governing our review of a trial court’s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict [that], in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Weyant v. Kristy, 126 Conn. App. 180, 183, 10 A.3d 119 (2011).

I

The plaintiff first argues that the trial court abused its discretion by denying her motion to set aside the verdict as to her trespass and battery claims because the verdict is against the weight of the evidence. The plaintiff directs us to “physical evidence” of her injuries, which she alleges precluded the jury from finding for the defendants. The defendants, in response, argue that the evidence submitted to the jury supports the verdict in their favor. We agree with the defendants.

Notwithstanding our deferential standard of review, the plaintiff argues that, under Mlynar v. A. H. Merriman & Sons, Inc., 114 Conn. 647, 159 A. 658 (1932), we must conclude that the court was obliged to set aside the verdict. We disagree.

In Mlynar, our Supreme Court provided: “When testimony is thus in conflict with indisputable physical facts, the facts demonstrate that the testimony is . . . untrue, and leave no real question of conflict of evidence for the jury . . . .” Id., 650. In that case, the plaintiff alleged that the defendant had negligently driven his milk truck into the road, into the path of the plaintiffs car, causing the plaintiff to collide with him. Id., 649. On the basis of the uncontradicted testimony as to the location of the defendant’s truck after the accident, however, the plaintiffs version of the story was impossible. Id., 649-50. The court therefore set aside the verdict finding for the plaintiff and ordered a new trial. Id., 651.

The plaintiffs reliance on Mlynar is misplaced. “For the rule [of Mlynar] to apply, the facts must be so indisputable that contrary testimony must either be intentionally or unintentionally untrue and there is no real question of evidence concerning which reasonable minds could reasonably differ.” Lessow v. Sherry, 133 Conn. 350, 354, 51 A.2d 49 (1947). The plaintiff in the present case contends that the evidence of the marks on her arms prove that her testimony is true. All that evidence establishes, however, is that she sustained those injuries, not how and when they occurred. The plaintiff also contends that a drawing of the premises admitted into evidence showed that Sutton must have had substantial contact with the plaintiff. We disagree. The physical evidence does not indisputably prove the plaintiffs version of the incident.

Applying the law of Mlynar and Lessow to this case, we cannot say that the physical evidence compelled a verdict for the plaintiff. To begin, the jury had no obligation to believe the plaintiffs testimony. See Weyant v. Kristy, supra, 126 Conn. App. 184 (“[i]n addition to believing the defendant’s testimony, the jury may well have found that the plaintiff was not credible”). The jury further heard evidence that the plaintiff had been convicted of perjury. In addition, her testimony at trial and her statements to the police before trial were inconsistent.

Additionally, the plaintiffs testimony was contradicted by the testimony of the police officer who reported to the scene. When he fust looked at her arm, which she claimed had been injured by Sutton when he allegedly forced his way into the apartment, the officer found no sign of injury. The officer testified that he believed that Sutton had not had more than casual contact with the plaintiff. He observed that, because of the chair behind the plaintiff where she said she had been standing when Sutton passed her, anything more than casual contact would have caused her to fall, which she stated did not occur.

Sutton and Leavey contradicted the plaintiff’s testimony as well. Both men testified that the plaintiff invited Sutton into her apartment after asking him to remove his shoes, and that the plaintiff asked Sutton to leave only when he began taking photographs of the damage to her apartment. Both men also denied that Sutton had done more than brush up against the plaintiff. There was evidence to support the jury’s verdict. See id., 184. Accordingly, we conclude that the court did not abuse its discretion in denying the motion to set aside the verdict.

II

The plaintiff next argues that the court abused its discretion in denying her motion to set aside the verdict because of juror misconduct. Her allegation arises from an alleged gesture of support for Sutton made by one of the jurors. The plaintiff claims that the court abused its discretion with respect to the alleged juror bias by: (1) not finding the alleged gesture to be juror misconduct depriving her of a fair trial and (2) not conducting a more substantial hearing on the matter. We disagree with both claims.

“Our review of the trial court’s action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness .... In reviewing juror misconduct, we use an objective standard in which the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors.” (Citation omitted; internal quotation marks omitted.) O’Briskie v. Berry, 95 Conn. App. 300, 305-306, 897 A.2d 605 (2006).

The following additional facts are necessary for the resolution of these claims. On November 9, 2011, the court delivered its charge to the jury and then excused the jurors for lunch recess. As the jury was exiting the courtroom, one of the jurors raised both of his hands to his face as he passed Sutton. He also turned to look in Sutton’s direction on his way out. The jury commenced its deliberations after recess and reached a verdict that same day. After the court accepted the verdict, the court asked counsel if they had any concerns with the jury; counsel for both parties said no. The next day, the plaintiff filed a motion to set aside the verdict in which she alleged, inter alia, juror bias.

The court responded to the allegations of juror bias by holding a hearing over two days. During the hearing, the court permitted the parties to watch a courtroom security video recording, on which the alleged gesture by the juror was captured, and heard arguments from both parties. The court itself viewed the video recording in the presence of the parties and counsel, both at full speed and at one-quarter speed. On the basis of that evidence, the court found that there had been no juror misconduct and, thereafter, denied the plaintiffs motion for a further evidentiary hearing.

A

We first address the plaintiffs claim that the trial court abused its discretion in finding that there had been no juror misconduct. “[T]he burden is on the moving party in a civil proceeding to establish that juror misconduct denied him a fair trial. . . . That burden requires the moving party to demonstrate that the juror misconduct complained of resulted in probable prejudice to the moving party.” (Emphasis added; internal quotation marks omitted.) Sawicki v. New Britain General Hospital, 302 Conn. 514, 522, 29 A.3d 453 (2011). “[T]o succeed on a claim of bias the [party seeking review] must raise his contention of bias from the realm of speculation to the realm of fact.” (Internal quotation marks omitted.) O’Briskie v. Berry, supra, 95 Conn. App. 306-307.

In its memorandum of decision denying the motion to set aside the verdict, the court found that there had been no juror misconduct: “It appears to this court that the juror was adjusting his glasses, and there does not appear to be a smile on his face .... The old saying is that where there is smoke, there is fire. In this situation, there is not even a hint of smoke. The actions of the juror do not express favoritism or predetermination.”

We cannot say that, in so finding, the court abused its discretion. The plaintiffs principal argument is that the still image that she captured from the security video recording shows “that the juror not only saluted (with two hands) but turned to face [Sutton] and smiled when doing so . . . .” The plaintiff essentially argues that this “salute” was a guarantee of support from this juror for Sutton and that the alleged gesture would have precluded him from rendering a fair decision. The defendants’ counsel disagreed, arguing that the juror was looking at both parties, not just Sutton: “[A]t one point he definitely looks over to [the plaintiffs counsel] just as much as he looked over to the defense side of the table.” The defendants’ counsel also pointed out that his hands “come up in the vicinity of his glasses and he does wear glasses,” suggesting that all he was doing was adjusting his glasses. The defendants’ counsel also disagreed that the juror’s looking back was necessarily at Sutton: “[H]e could have been looking out the window for all we know.” The court reasonably could have agreed with the arguments made by the defendants’ counsel as to the meaning of the alleged gesture and the look back.

We also note that the issue of juror misconduct was not raised in a timely manner. In Bernier v. National Fence Co., 176 Conn. 622, 627-28, 410 A.2d 1007 (1979), the court held that “it was incumbent upon the plaintiff to make a request for such remedial action as was felt necessary, at that time, and not to reserve possible objections until after an adverse verdict was rendered.” More recently, this court affirmed the trial court’s rejection of a juror misconduct claim in part because of its untimeliness in Denniston v. Cash Home Center, Inc., Superior Court, judicial district of New London, Docket No. CV-08-0548288-S (October 10, 2001), aff'd, 76 Conn. App. 906, 819 A.2d 943 (2003). The trial court relied upon Denniston. Here, the plaintiff and her counsel both had witnessed the alleged gesture and had at least five opportunities to address it with the court, including being asked specifically whether there were any issues with the jury. The plaintiff did not raise her concern until after the verdict, and, indeed, after the jury had been discharged. It was reasonable for the court to consider the untimeliness of the plaintiffs juror misconduct claim in denying her motion. The court did not abuse its discretion in denying the motion to set aside the verdict because of juror misconduct.

B

The plaintiff also claims that the court should have granted her motion for a rehearing and should have held a further evidentiary hearing to determine the meaning of the alleged gesture. We are not persuaded.

The form and scope of inquiry into juror misconduct “may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to farther, more extensive proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto. State v. Brown, [235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc)].” (Internal quotation marks omitted.) Harrison v. Hamzi, 77 Conn. App. 510, 522, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003).

In the present case, the court’s actions fell in between the two ends of the spectrum discussed in Harrison v. Hamzi, supra, 77 Conn. App 522. On the basis of “what [was] disclosed during the initial limited proceedings,” the court in the present case held a hearing, where it viewed evidence and heard arguments on the law. See id. Importantly, the court did not merely conclude that the plaintiff had failed to show that the juror’s gesture was evidence of misconduct. The court found, on the contrary, that the gesture definitively was not misconduct: “The actions of the juror do not express favoritism or predetermination.” (Emphasis added.) The plaintiff argues that if the video recording and her counsel’s testimony do not prove that there was misconduct, they raise sufficient concern so as to compel further investigation. The trial court clearly disagreed. It was within its discretion to determine at what point it could make a decision about juror bias. See id.; see also O’Briskie v. Berry, supra, 95 Conn. App. 306. The court did not abuse its discretion in denying the plaintiffs motion to rehear and hold a further evidentiary hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff originally filed on behalf of herself and her then minor son. The son elected not to pursue the complaint and withdrew from the case in 2010.

       The operative complaint named Sutton & Sutton Esquires, Sutton Real Estate, LLC, Stanford H. Sutton, Stanford Guy Sutton and James J. Sutton as the defendants. The estate of Stanford H. Sutton, Stanford Guy Sutton as executor, was substituted as a party following the death of Stanford H. Sutton. The other defendants were removed from the case, according to the plaintiffs brief and docketing statement as well as the judgment file and trial transcript. We therefore refer to James J. Sutton and Stanford Guy Sutton, in his capacity as executor of the estate of Stanford H. Sutton, as the defendants.

       The plaintiff called the police to report the alleged conduct by Sutton. Sutton called the police to report a landlord-tenant incident, and to report that the plaintiff had allegedly threatened his family.

       The plaintiffs operative complaint did not explicitly outline the plaintiffs common-law claims. The court, in the presence of counsel, determined that the complaint encompassed the battery and trespass claims as well as the alleged CUTPA violation. Counsel did not object.

       See also State v. Hammond, 221 Conn. 264, 268, 604 A.2d 793 (1992); State v. Vazquez, 119 Conn. App. 249, 254, 987 A.2d 1063 (2010).

       The trial court noted that the issue of the alleged gesture could have been raised immediately after court reconvened following lunch recess, or when the jury began its deliberations, or while the jury was deliberating, or prior to the court accepting and recording the verdict, or after the court accepted and recorded the verdict, but before the court dismissed the jury.

       We do not decide whether the plaintiff waived her claim of jury misconduct by failing to do so in a timely manner.


author: SHELDON, J.

text:
    STATE OF CONNECTICUT v. VICTOR SANTIAGO
    (AC 34699)
    Robinson, Alvord and Sheldon, Js.

      Argued January 14
    officially released May 28, 2013

      Katherine C. Essington, assigned counsel, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom were Terence D. Mariani, Jr., senior assistant state’s attorney, and, on the brief, Maureen Platt, state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Victor Santiago, appeals from his conviction of felony murder in violation of General Statutes § 53a-54c and murder in violation of General Statutes § 53a-54a, claiming that he was deprived of his due process right to a fair trial due to improper comments made by the prosecutor, Terence D. Mariani, Jr., during his closing and rebuttal arguments to the jury. He also asks this court to invoke its inherent supervisory authority over the administration of justice to reverse his conviction in light of Mariani’s improper comments made during his closing argument to the jury and his deliberate pattern of making such comments in numerous other cases. Because we conclude that Mariani has engaged in a deliberate pattern of improper conduct in this case and others, and he remains undeterred by pronouncements by this court and our Supreme Court that his conduct was improper, we believe that nothing short of reversal will have the effect of deterring him. We thus reverse the defendant’s judgment of conviction and remand the case for a new trial.

The following factual and procedural history provides context for our analysis of the defendant’s claims on appeal. In April, 1998, Wilfred Morales owned a bar, the Morales Café, which was located on Baldwin Street in Bridgeport. After closing the bar in the early morning hours of April 11, 1998, Morales left the bar with a blue bank bag containing the cash and checks received from the bar’s patrons the previous day. At approximately 2:30 a.m. on April 11,1998, Morales was shot and killed in the street near his home on Middle Street in Bridgeport. The defendant was ultimately charged with the murder of Morales.

The state’s chief witness in its prosecution of the defendant was the defendant’s estranged wife, Damaris Algarin-Santiago (Algarin). Algarin testified that she had been in a relationship with the defendant for sixteen years, beginning when she was in the eighth grade; that they had gotten married in 2004 so that she “couldn’t testify against him”; and that they had four children together. She stated that, in the course of her relationship with the defendant, she had come to fear him because he was physically and verbally abusive, he had threatened her and he was a member and the onetime president of the Latin Kings street gang.

The defendant had two brothers, Thomas Bonilla and Noel Bermudez. Algarin testified that Bonilla was released from prison on April 10, 1998, which was a cause for celebration because it was “the first time in a long time [that] . . . these [three] brothers were . . . out [of prison] at the same time.” At approximately 8 p.m., the defendant and his brothers went out to celebrate, while Algarin stayed home and later went to sleep.

In the early morning hours of April 11, 1998, at approximately 3 a.m., Algarin was awakened by the defendant yelling for her to come downstairs. Algarin testified that, when she entered the living room downstairs, she saw cash, checks and a blue bank bag on the coffee table, which the defendant and Bonilla were sorting through. Algarin testified that Bermudez was in the kitchen taking apart a gun. Bonilla threatened to kill Algarin and her mother if she said anything about what she was seeing or hearing. Algarin testified that Bermudez told her that he shot Morales because he thought that he had a gun and because Morales previously had shot the defendant.

Algarin explained that the defendant and his brothers next proceeded to destroy the evidence. First, they burned the checks and the bank bag in the kitchen sink. Then they burned the black clothes, which they had been wearing, in a metal bin in the backyard, and put the remaining debris and ashes from that bin and the kitchen sink into a garbage bag which the defendant threw into a dumpster. Algarin testified that Bonilla and Bermudez went to clean any gun residue from the vehicle that they had used the previous night, while the defendant wiped the pieces of the gun with a towel and baby oil to get rid of the fingerprints. The defendant then put the pieces of the gun into three separate bags and took Algarin with him to dispose of them. Algarin recalled that the defendant threw the first bag in the dumpster across the street from their house; the second bag into another dumpster down the hill from where they lived; and the third bag into a river that was near a car wash. The defendant forced Algarin to go with him to dispose of the pieces of the gun so that she would not be able to “snitch” on him. Algarin testified that, while they were in the car, she again asked the defendant about the murder. He told her that he had been stalking Morales because he and his brothers needed money to start selling drugs; that Bermudez and Bonilla had waited in the bushes for Morales while he waited in the car; and that Bermudez had shot Morales.

When they all returned to the house, the defendant and his brothers began formulating an alibi. They instructed Algarin to tell the police that they were celebrating Bonilla’s release from prison and, because April 10, 1998, had fallen on Good Friday, they had all gone to their mother’s house to eat fish. Algarin agreed to go along with the alibi. Algarin testified that she deposited the $3000 cash that had been in Morales’ bank bag into her bank account in three increments, using three different ATM machines. When the deposits cleared a day or two later, Algarin withdrew the money for the defendant and his brothers.

Algarin stuck to her story for the next twelve years, despite repeated questioning by the police. In 2009, however, Algarin began dating a man with whom she shared her knowledge about Morales’ murder. In April, 2010, when that man had some legal troubles of his own, he told the police what Algarin had told him about Morales’ murder. When confronted by the police, Alg-arin finally admitted that the defendant and his brothers had killed Morales and told the police everything she knew regarding the murder.

The defendant thereafter was charged with murder in violation of General Statutes §§ 53a-8 and 53a-54a (a), murder in violation of § 53a-54a (a) and felony murder in violation of § 53a-54c. The jury found the defendant not guilty of murder in violation of §§ 53a-8 and 53a~54a (a). The jury found the defendant guilty of both murder in violation of § 53a-54a (a) and felony murder in violation of § 53a-54c. The court merged the conviction of murder into the conviction of felony murder and sentenced the defendant to a term of sixty years incarceration. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that Maiiani made several improper comments during his closing and rebuttal arguments to the jury, which deprived him of his constitutional right to a fair trial. “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. . . . This heightened duty derives from our long recognition of the special role played by the state’s attorney in a criminal trial. He is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused be guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider. . . .

“Or to put it another way while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ... A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows. . . .

“It is well established, furthermore, that a prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.

“A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. . . . Moreover, when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury.” (Citation omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 744-46, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

“[I]t is axiomatic that a prosecutor may not advance an argument that is intended solely to appeal to the jurors’ emotions and to evoke sympathy for the victim or outrage at the defendant. ... An appeal to emotions, passions, or prejudices improperly diverts the jury’s attention away from the facts and makes it more difficult for it to decide the case on the evidence in the record. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. ... An improper appeal to the jurors’ emotions can take the form of a personal attack on the defendant’s character ... or a plea for sympathy for the victim or her family.” (Citations omitted; internal quotation marks omitted.) State v. Long, 293 Conn. 31, 59, 975 A.2d 660 (2009).

The defendant’s claims of impropriety are confined to comments made by Mariani during his closing and rebuttal arguments to the jury. The state concedes that several of Mariani’s comments were improper, but defends the propriety of his other comments. We thus begin by addressing each claim of impropriety separately.

I

ALLEGED IMPROPRIETIES IN THIS CASE

A

The defendant first claims that Mariani attempted to appeal to the jurors’ emotions by repeatedly referring to the defendant’s involvement with a gang despite the fact that the court had admitted evidence of the defendant’s gang involvement for the limited purpose of showing Algarin’s fear, which, under the state’s theory, explained Algarin’s failure to reveal to police what she knew about Morales’ murder for twelve years.

Prior to trial, the state had filed a notice of intent to offer evidence of uncharged misconduct on the part of the defendant, including violence toward Algarin, his drug dealing activities and his gang membership. In response, the defendant filed a motion in limine to exclude evidence of the defendant’s domestic violence and his and his brothers’ membership in the Latin Kings. The defendant also filed a separate motion in limine seeking to exclude any reference to his gang membership on the basis that such evidence was irrelevant and prejudicial and was an attempt by the state to engender sympathy for Algarin. Following a hearing on these motions on October 28, 2010, the court ruled that evidence of the defendant’s gang affiliation would not be allowed because its probative value was outweighed by prejudice to the defendant.

At trial, during cross-examination by defense counsel, Algarin indicated that she was afraid of the defendant and his brothers, particularly Bonilla. Defense counsel asked her if she felt as though the defendant still posed a threat to her even though he and his brothers were incarcerated. Algarin responded affirmatively, explaining that the defendant was a Latin King. Upon hearing that testimony, the court excused the jury to again discuss with counsel the issue of evidence of the defendant’s gang involvement. Finding that defense counsel had opened the door to that evidence, the court allowed the witness’ answer to stand, but agreed to give the jury a limiting instruction that they could consider Algarin’s reference to the Latin Kings only in relation to her claimed fear of the defendant while he was incarcerated and not for any other reason. On redirect examination, Algarin testified that, after telling the police about Morales’ murder, she left her home in Waterbury and has not been back since. She explained that she feared the defendant because he was a member of the Latin Kings, that he had been the president of the Latin Kings in 1996, and that the Latin Kings are “very dangerous” and “have killed a lot of people.”

The defendant claims that Mariani improperly referred to his gang involvement, in that he (1) twice referred to the defendant as a “gang banger”; (2) used the defendant’s membership in a gang to attack his character and suggest that he was a violent person generally, stating, “It’s not as if [Algarin] finally decided that she was going to get rid other abusive gang-banging husband”; (3) referred to the defendant and his two brothers as “gangsters,” remarking, “these three gangsters hadn’t been out of jail together in four years until April 10, 1998. That’s the day the gang was all back together”; and stated that the defendant and his brothers “were in and out of jail more than most of us go to the—the grocery store”; (4) asked the jury during his rebuttal closing: “Do you think . . . Algarin, you know, with her gang-banging husband, her kids, everybody in and out of jail, is spending a lot of time reading the Waterbury newspaper . . . ?”; and (5) reminded the jurors two more times that the defendant was a member and president of the Latin Kings. The defendant claims that Mariani’s repeated references to him as a gang member amounted to “name calling and character assassination” and constituted an attempt to portray him as a violent and dangerous person.

The state concedes that all of these comments were improper because the court had limited the evidence of the defendant’s gang affiliation solely for the purpose of explaining Algarin’s fear of her husband. Mariani’s comments were thus made in direct contravention of the court’s order. See State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001 (“[w]here a prosecutor in argument interjects remarks deliberately intended to undermine the rulings of the trial court to the prejudice of the defendant, his conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal”), cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). This, moreover, is not the first time that Mariani has disregarded a court’s ruling in arguing to the jury. In State v. Ortiz, 280 Conn. 686, 911 A.2d 1055 (2006), the court concluded that Mariani had improperly contravened the trial court’s preclusion of evidence of the guilty plea of one Angel Mundo, a cocon-spirator, by continuing to seek admission of that guilty plea before the jury.

In addition to flouting the court’s ruling limiting the evidence of the defendant’s gang involvement, Mariani’s repeated references to the gang involvement and his inexplicable attacks on Algarin and the children she shares with the defendant can only be seen as an attempt to stigmatize the defendant, and thereby appeal to the emotions of the jury. As noted, “[a]n improper appeal to the jurors’ emotions can take the form of a personal attack on the defendant’s character . . . .” (Citation omitted; internal quotation marks omitted.) State v. Long, supra, 293 Conn. 59; see also State v. Santiago, 269 Conn. 726, 755-56, 850 A.2d 199 (2004) (although defendant’s nickname, “Danger,” was in evidence, prosecutor’s use of nickname eighteen times during closing argument was improper appeal to jury’s passions, emotions and prejudices); State v. Alexander, 254 Conn. 290, 300-308, 755 A.2d 868 (2000) (by categorizing interactions between “vulnerable . . . small, weak, naive” victim and “bigger, stronger, more experienced” defendant as “David and Goliath” relationship, prosecutor improperly sought to elicit powerful feelings of disgust for defendant in average juror [internal quotation marks omitted]); State v. Williams, 204 Conn. 523, 546-47, 529 A.2d 653 (1987) (improper appeal to emotions of jury may arise from state’s use of personal and degrading epithets to describe defendant; prosecutor impermissibly referred to defendant in closing argument and cross-examination as “drunken bum,” “drunk who uses cocaine and smokes marijuana and beats children,” “coward,” “hiding like a dog,” “stupid,” and “evil man” [internal quotation marks omitted]); State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984) (“[i]t is no part of a district attorney’s duty, and it is not his right, to stigmatize a defendant”), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Alvarez, 95 Conn. App. 539, 551, 897 A.2d 669 (prosecutor’s reference to defendant as “ ‘junkie’ ” was improper appeal to emotions of jury because term is pejorative, downgrading and disparaging), cert. denied, 279 Conn. 910, 902 A.2d 1069 (2006).

It cannot reasonably be disputed that Mariani knew or should have known that his repeated references to the defendant’s gang involvement would be construed as an improper appeal to the jury’s emotions in an attempt to distract the members of the jury from the evidence of the offenses with which the defendant was charged and to have the jury decide the case at hand on the basis of the defendant’s involvement with the Latin Kings.

B

During his closing argument to the jury, Mariani also stated: “And the first thing I’m gonna do is tell you that this case reminded me of why I became a prosecutor. You know, we’re here, all of us, to seek the administration of justice, and that’s what this case is about. And every once in a while a case comes along that reminds me of how important this job is. And this is one of those cases. Because what happens? I mean, the beautiful thing about this case is that for twelve years—for twelve years the defendant got away with murder. And here we are, this jury able to reach back in time and hold him responsible for what he did. That’s what my job is about, and that’s what your function is about, to make people pay for the wrongs that they’ve done.” Mariani further argued: “[W]hen the police do their job and when witnesses find the courage to step forward and say what they know, we can reach back, not a month, a year, or five years even, we can reach back twelve years and make him pay for what he did, and that’s what this case is about.” The defendant argues: “[Mariani’s] statements that this case reminded him of why he became a prosecutor, and stressing the importance of this case versus other cases, implied to the jury that he personally believed in [the defendant’s] guilt.” The state concedes that these remarks were improper, in that Mariani should not have attempted to align the office of the prosecutor with the role of the jury. We agree.

Mariani made similar comments in State v. Bermudez, 274 Conn. 581, 597, 876 A.2d 1162 (2005), which were found to be improper by our Supreme Court in 2005, five years before this case was tried in 2010. In Bermudez, Mariani told the jury: “I tried a lot of criminal cases, and I’ve stood in front of a lot of juries and I’ve asked a lot of juries to convict a lot of people and they have.” (Internal quotation marks omitted.) Id. The court found that Mariani’s comment was improper, concluding: “By referring to his experience prosecuting cases and convincing juries to convict defendants, [Mariani] improperly sought to have the jury trust his judgment and analysis of the evidence as previous juries had. It is for the jury, however, not the state’s attorney, to decide if there is reasonable doubt as to the defendant’s guilt.” Id., 598-99. Here, as in Bermudez, Mariani improperly expressed his personal opinion and stressed to the jury the importance of this case to his career and to the administration of justice in an attempt to appeal to the emotions of the jury and to have the jurors decide the case before them on the basis of something other than the evidence.

C

The defendant further claims that Mariani improperly appealed to the emotions of the jurors by urging them to decide the case based upon sympathy for the victim and the victim’s family. Mariani argued that “your verdict should speak for Mr. Morales. Your verdict should shout out for justice for him and his family. It’s the defendant, the defendant sitting there, who put in motion the plan that resulted in Mr. Morales being shot through the heart on his doorstep while his wife was asleep inside.” Mariani further argued to the jury: “[W]e throw around words like the body and talk about the body laying in the road, [but] he was a man who was shot and killed. There are sons who lost a father and there’s a wife who lost a husband. Don’t—lose sight of that because of this sterile environment.” Finally, Mariani told the jury: “[I]f you don’t feel sad for Freddy Morales, you’re not human, right; he didn’t deserve to be shot and killed.” The state argues that these comments were not improper. We disagree.

It is worth repeating that “[a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . We have stated that such appeals should be avoided because they have the effect of diverting the jury’s attention from their duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 204 Conn. 545-46.

Mariani’s comments are similar to the prosecutor’s improper appeal to a jury’s emotions in State v. Mills, 57 Conn. App. 202, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000), where the Appellate Court ordered a new trial because of prosecutorial impropriety. The prosecutor in Mills stated that the state and the victim wanted justice and justice required a conviction for murder, the victim was not going to be a nameless, faceless, slab of meat on an autopsy table, and the victim could not come to court to tell his story. Id., 209-11, 210 n.14.

Mariani’s comments are also similar to those made by the prosecutor in State v. Payne, 260 Conn. 446, 797 A.2d 1988 (2002), which were found to be improper by our Supreme Court, and constituted a basis for reversing the felony murder conviction in that case. In Payne, the prosecutor stated: “Ask yourselves, is that what our law is all about here? Are victims of crime going to have to continually defend themselves, their family, their friends from the grave? Because we all know that is impossible. [The victim] doesn’t deserve to be treated like that in life or in death. His name [besmirched, his family besmirched] mudslinging. He can’t defend himself. And the defendant, the defendant knows that. That’s why we heard the stories we did. All his family has left is his picture. Now on a slab, on a cutting board. Let them have, let them, let his family come away from this trial with one good thing out of it. They heard a lot of negative things in this trial, a lot of accusations that have not been proven against him, his friends, his family. Let them come away with one positive thing. Let them have a memory of [the victim] that they can go back home with. Let them come away with a guilty verdict against the person that put a twenty-five caliber bullet into his body. ” (Internal quotation marks omitted.) Id., 461-62. The court determined that “the prosecutor’s statement . . . was a direct and unabashed appeal to the jury to find the defendant guilty out of sympathy for the victim and his family. The prosecutor indicated that only a guilty verdict would protect our legal system. Moreover, the description of the victim ‘on a slab, on a cutting board’ was calculated to inflame the passions of the jury against the defendant as much as to engender sympathy for the victim and his family.” Id., 463. Likewise, Mariani’s comments constituted an improper appeal to the jury’s emotions..

D

The defendant claims that Mariani improperly referred to facts not in evidence in his rebuttal closing argument. Ralph Crozier, an attorney who previously had represented the defendant and his family, as well as members of Algarin’s family, testified at trial on behalf of the state. Crozier testified that approximately ten months after Morales’ murder, Algarin came to see him and told him that she was in fear for her life because she had knowledge about the murder. Crozier testified that Algarin told him that she had seen the defendant and his brothers destroying the evidence of the crime and that they had forced her to take the money that they had stolen from Morales and deposit it into her bank account.

The defendant takes issue with Mariani’s reference to Crozier’s testimony, in which he told the jury: “Crozier’s a man [who has] dedicated his life to defending people accused of crimes. That’s what he does. So, don’t think that he comes in here lightly and points a finger over at the defendant that may very well land him with a guilty conviction for murder.” The defendant claims that there was no evidence presented to the jury that criminal defense work was a substantial part of Crozier’s practice, and thus that Mariani’s statement amounted to unsworn testimony on his part. The state disagrees, asserting that evidence was presented to support the inference that Crozier was a criminal defense attorney. Such evidence, it argues, included testimony that Crozier had represented the defendant in civil and criminal matters, and had represented members of both Algarin’s and the defendant’s families in such matters. We agree with the state that sufficient evidence was adduced at trial to support the inference that Crozier had done a great deal of criminal defense work, and thus that Mariani’s comments to that effect were not improper.

II

MARIANI’S IMPROPRIETIES IN OTHER CASES

Mariani’s improper comments in the present case were serious and deliberate. It cannot reasonably be disputed that Mariani, a seasoned prosecutor, knew or should have known of the extensive case law governing the proper bounds of argument and that his comments to the jury in this case exceeded those bounds and were thus improper. In fact, Mariani previously has ventured beyond those bounds in making similar comments in other cases, which this court and our Supreme Court have found to be improper and he has thus engaged in a deliberate pattern of improper conduct.

Before examining Mariani’s pattern of impropriety, we reiterate: “A great deal is at stake in a criminal trial. The interests involved go beyond the private interests at stake in the ordinary civil case. They involve significant public interests. . . . [T]he criminal jury trial has aróle in protecting not only the liberty of the accused, but also the entire citizenry from overzealous or overreaching state authority. Duncan v. Louisiana, 391 U.S. 145, 156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).” State v. Patterson, 230 Conn. 385, 398, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996). “When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury. . . . The prosecutor here appeared ready to shelve this solemn duty in favor of lesser gains.” (Citation omitted; internal quotation marks omitted.) State v. Moore, 69 Conn. App. 117, 130, 795 A.2d 563, cert. denied, 260 Conn. 941, 835 A.2d 59 (2002). Not only did Mariam shelve that duty in this case, but he has done so repeatedly.

As we will discuss, this case is not the first in which Mariani has disregarded a trial court’s ruling. Mariam’s repeated references to the defendant’s gang involvement here despite the trial court’s ruling limiting the consideration of that evidence to a very limited purpose is similar to his disregard of the trial court’s ruling precluding evidence of a plea deal of a coconspirator in State v. Ortiz, supra, 280 Conn. 686.

Mariani also has repeatedly made improper comments to juries by interjecting his personal opinion and attempting to appeal to their emotions. In State v. Heredia, 253 Conn. 543, 754 A.2d 114 (2000), Mariani argued to the jury: “If I loaded that gun and shut out the lights in this courtroom and put it in [the defendant’s] hand, I think everybody would have a very different perception of how dangerous he is.” (Internal quotation marks omitted.) Id., 565. The court concluded that, in so stating, Mariani “went beyond the bounds of proper argument, by improperly evoking feelings of fear on the part of the jurors.” Id.

In State v. Dillard, 66 Conn. App. 238, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001), this court concluded that, during Mariani’s closing argument, he improperly suggested that the defendant intimidated an alibi witness into testifying on his behalf. This court determined that Mariani’s “comment was designed to encourage the jury to speculate, beyond the evidence, as to why [the witness had] testified . . . .” Id., 248. This court also concluded in Dillard that Mariani had improperly expressed his personal opinion as to the veracity of the testimony of one of the witnesses. Id., 257-58.

In State v. Moore, supra, 69 Conn. App. 125, this court determined that Mariani improperly attempted to bolster the victim’s credibility by downplaying the victim’s arrest record, “calling it a ‘minor thing’ that ‘certainly wasn’t a felony.’ ” This court held that, in so stating, Mariani referred to facts not in evidence. Mariani also told the jury that the defendant’s half sister “held [the victim’s] head as he was lying there bleeding.” (Internal quotation marks omitted.) Id., 126. This court concluded that the evidence did not support that statement and that it was also an improper attempt to appeal to the jury’s emotions and passions.

In State v. Blackwell, 86 Conn. App. 409, 861 A.2d 548 (2004), cert. denied, 272 Conn. 922, 867 A.2d 838 (2005), this court concluded that Mariani’s statement during closing argument that a friend of the defendant who was present near the scene of the murder at issue in that case may have been “guilty, too,” constituted an improper statement of his personal opinion that the defendant was guilty. Id., 421.

In State v. Bermudez, supra, 274 Conn. 581, in addition to determining that Mariani had improperly personalized his argument by stressing the importance of the case to his career, which we have noted previously in this opinion, the court concluded that Mariani improperly attempted to appeal to the emotions of the jury by stating that justice would have been better served if the defendant had died instead of the victims. Id., 597.

In State v. Warholic, 278 Conn. 354, 897 A.2d 569 (2006), which involved the sexual assault of a child, Mariani commented: “The evidence proves that [the defendant] is the child molester that he’s accused of being. They’re out there. They’re among us.” (Internal quotation marks omitted.) Id., 374-75. Mariani also referred to the victim in that case as a “ ‘cute little kid’ . . . .” Id., 375. The Supreme Court found that both of those comments were improper appeals to the jury’s emotions and that the latter comment was also an improper interjection before the jury of Mariani’s personal opinion as to the physical appearance of the young victim before the jury. Id., 377.

The pattern of improper conduct in which Mariani has engaged can only be seen as a deliberate disregard for the previous determinations of this court and our Supreme Court. Mariam knew or should have known that his comments exceeded the proper bounds of argument, and the similarity of the statements that he made here to those that previously were deemed improper by this court or our Supreme Court indicates that the misconduct was deliberate. Mariani’s misconduct was typical of a larger pattern of misconduct that is not likely to be corrected absent extreme measures. In State v. Payne, supra, 260 Conn. 446, in which our Supreme Court reversed a felony murder conviction on the basis of prosecutorial misconduct, the court held: “This experienced prosecutor flagrantly violated a rule that is so basic we can only conclude it was deliberate. Such deliberate appeals to juror sympathy cannot, and will not, be countenanced.” Id., 463. We echo that sentiment here.

Ill

APPROPRIATENESS OF NEW TRIAL

Having determined that Mariani has engaged in repeated deliberate misconduct, we must determine whether we should invoke our supervisory authority over the administration of justice and reverse the defendant’s conviction.

“As an appellate court, we possess an inherent supervisory authority over the administration of justice. . . . The standards that we set under this supervisory authority are not satisfied [merely] by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. ... Of course, our supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Thus, [e]ven a sensible and efficient use of the supervisory power . . . is invalid if it conflicts with constitutional or statutory provisions. . . .

“ [W]hen prosecutorial misconduct is not so egregious as to implicate the defendant’s right to a fair trial, an appellate court may invoke its supervisory authority to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . State v. Pouncey, [241 Conn. 802, 811-12, 699 A.2d 901 (1997)]. In Pouneey, we previously have recognized that reversal is appropriate when there has been a pattern of misconduct across trials, not just within an individual trial. Id., 815-16 (noting that the defendant does not claim either that the assistant state’s attorney in this case previously has used racially charged rhetoric in her arguments to other juries and concluding that [i]f such a pattern or practice of misconduct were discernible . . . reversal of the defendant’s conviction would serve the important purpose of demonstrating that such conduct cannot, and will not, be tolerated).

“Accordingly, we exercise our supervisory authority in this context to redress repeated and deliberate misconduct by a prosecutor seeking to increase the likelihood of conviction even though that conduct does not necessarily require reversal as a due process violation. In accordance with the cases cited previously, we pay particular attention to the fact that the prosecutor knew or should have known that the conduct was improper and was part of a pattern of similar misconduct in other cases. We exercise our supervisory authority in order to protect the rights of defendants and to maintain standards among prosecutors throughout the judicial system rather than to redress the unfairness of a particular trial. We do so in order to send a strong message that such conduct will not be tolerated.” (Citations omitted; internal quotation marks omitted). State v. Payne, supra, 260 Conn. 450-52.

“[O]ur determination of whether reversal is warranted requires us to balance society’s interest in maintaining a justice system that treats all defendants fairly and appears to do so, against some of the difficulties that might arise in a new trial, including the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct.” (Emphasis in original; internal quotation marks omitted.) Id., 463-64.

We begin by noting that “improper statements during closing arguments may have a profoundly serious effect because they are [a]mong the final words of persuasion the jury [hears] before deliberation . . . .” (Internal quotation marks omitted.) Id., 464. It cannot reasonably be doubted that Mariani’s comments, either taken alone or cumulatively, prejudiced the defendant. Mariani’s repeated references to the defendant’s gang involvement and lifestyle increased the possibility that the defendant was convicted for being a member and past president of the Latin Kings, and perhaps for other crimes that might be stereotypically associated with being a member of a street gang. Mariani’s explanation to the jury that it was his job and its function “to make people pay for the wrongs that they’ve done,” when considered in the context of the defendant’s gang involvement, may have led the jury to believe that the defendant was on trial not only for his role in murdering Morales, but also for his activity as a gang member.

The second, and most difficult, factor that we must consider is the emotional trauma to the victim’s family caused by going through a new trial. Of course, the experience of going through another trial is going to be traumatic for the victim’s family. And the state’s primary witness, the defendant’s wife, is also going to have to face and attempt to overcome her fear of the defendant in testifying against him again. In light of Mariani’s pattern of deliberate improprieties, however, the emotional impact to those involved in the trial does not outweigh the need to ensure the fair administration of justice.

The possibility of memory loss and the unavailability of witnesses also do not outweigh our reasons for reversing the judgment of conviction. Twelve years had passed between Morales’ murder and the time at which Algarin disclosed her knowledge regarding that murder to the police. It is not likely that Algarin’s memory has been seriously impaired since the 2010 trial in this case.

We must finally consider the availability of other sanctions. “We have stated that reversal of a conviction under our supervisory authority generally is appropriate . . . only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal. . . . Some tribunals have declined to use such supervisory power on the theory that society should not bear the burden of a new trial because of prosecutorial [impropriety] where a new trial is not constitutionally mandated. . . . According to some authorities, the evil of overzealous prosecutors is more appropriately combatted through contempt sanctions, disciplinary boards or other means. . . . This court, however, has long been of the view that it is ultimately responsible for the enforcement of court rules in prosecutorial misconduct cases. . . . Upsetting a criminal conviction is a drastic step, but it is the only feasible deterrent to flagrant prosecutorial misconduct in defiance of a trial court ruling. We are mindful of the sage admonition that appellate rebuke without reversal ignores the reality of the adversary system of justice. The deprecatory words we use in our opinions . . . are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of [verbal criticism without judicial action]—recalling the bitter tear shed by the Walrus as he ate the oysters—breeds a deplorably cynical attitude towards the judiciary. . . . Merely to reprimand a prosecutor who disregards the authority of a trial court and engages in deliberate conduct that undermines the fairness of a trial would not sufficiently convey our strong disapproval of such tactics.” (Citations omitted; internal quotation marks omitted). State v. Payne, supra, 260 Conn. 465-66.

Mariani made several improper comments in this case, a felony murder case, and, in so doing, jeopardized the constitutionality of the trial proceedings. More troublesome, however, is his repeated and deliberate use of improper argument throughout other cases. Despite the fact that this court and our Supreme Court have repeatedly determined that Mariani has exceeded the bounds of proper conduct, he continues to do so. We thus conclude, as our Supreme Court did in Payne, that “nothing short of reversal will deter similar misconduct in the future.” Id., 466.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant also claims that the trial court improperly permitted the introduction of certain evidence of uncharged misconduct into evidence and improperly allowed his wife’s statement to the police to be admitted into evidence and read to the jury in its entirety. Because we reverse the defendant’s conviction on other grounds, we need not address these claims.

       Because we exercise our inherent supervisory authority to reverse the judgment of conviction and order a new trial to deter prosecutorial impropriety that has been unduly offensive to the maintenance of a sound judicial process, we do not undertake an analysis of whether Mariani’s improper comments violated the defendant’s due process rights. See State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).

       The court also precluded the defendant’s drug related activity, but determined that the evidence of domestic violence between the defendant and Algarin was admissible due to its materiality relative to Algarin’s failure to report the defendant’s involvement in the killing of Morales for several years.

       We further note that Mariani’s comments not only were improper in a legal sense, but they were also rude and irrelevant to any of the issues in the case. In fact, Mariani’s negative comments as to Algarin’s lifestyle and her children were ill-advised because his case against the defendant relied heavily on her testimony. Those comments demonstrate a palpable feeling of disdain for all of the individuals involved in this case, a sentiment that has no place in our court system.

       In State v. Lepri, 56 Conn. App. 403, 743 A.2d 626, cert. denied, 253 Conn. 902, 753 A.2d 938 (2000), the defendant alleged several claims of impropriety on the part of Mariam. Because those claims were unpreserved, this court did not make a determination as to whether they were improper. It is noteworthy that one of the claimed improprieties by Mariam was comments as to why he became a prosecutor: “I want to thank [defense counsel] because he did something during his argument—he reminded me why I became a lawyer. You can get somebody bom in Fairfield, who practices law in Bridgeport, you can get the former chief of adjudications in the motor vehicle department, you can go to Kentucky and get a twenty year [judge advocate general] attorney, but in this courtroom the word of a twelve year old boy is enough to push them out of the room. The first case I ever tried was in Kendrick Avenue and it was a horrible courthouse. There were linoleum floors, the carpet was all tom up, but when I walked in I realized why I wanted to be a trial attorney and why I wanted to be a prosecutor—because a twelve year old boy can come in here and out in the street people might not believe him—someone who spent fourteen years at the motor vehicle department might think that when he is out there he can take advantage of him because there is nobody looking out for him, but when he comes here that’s where I—and that’s where the state is. And we are not going to let this little boy be abused by that man and hire three attorneys.” (Internal quotation marks omitted.) Id., 415-16. The trial court admonished Mariani to “[m]ove the argument away from the personalization of counsel.” (Internal quotation marks omitted.) Id., 416.

       We note that the defendant raised other claims of impropriety by Mariani in Dillard, but the propriety of those claims was never specifically decided; rather, those claims were rejected as not having prejudiced the defendant.

       Most recently, in State v. Jordan, 135 Conn. App. 635, 663, 42 A.3d 457, cert. granted, 305 Conn. 918, 47 A.3d 388 (2012), this court determined that Mariani improperly failed to take steps to correct false testimony from two state’s witnesses that they did not have plea agreements with the state.