author: BEAR, J.

text:
    NEW LONDON COUNTY MUTUAL INSURANCE COMPANY v. ANDRZEJ BIALOBRODEC ET AL.
    (AC 33433)
    Bear, Espinosa and West, Js.

      Argued May 15 —
    officially released August 14, 2012

      Elizabeth C. Foran, for the appellant (defendant Edward Dzikiewicz, administrator of the estate of TyCody Dzikiewicz).

      Jennifer Katz, for the appellee (plaintiff).
   Opinion

BEAR, J.

In this declaratory judgment action, the defendant Edward Dzikiewicz, administrator of the estate of TyCody Dzikiewicz (decedent), appeals from the summary judgment rendered by the trial court in favor of the plaintiff, New London County Mutual Insurance Company. On appeal, the defendant claims that the court erred in ruling that the motor vehicle exclusion provision and the negligent entrustment of a motor vehicle exclusion provision, both contained in a homeowner’s insurance policy issued by the plaintiff, exclude coverage for the defendant’s negligent supervision cause of action. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the present appeal. In count one of the defendant’s complaint dated November 5,2009, the defendant sued Andrzej Bialobrodec and Grazyna Bialobrodec (parents) for the allegedly negligent supervision of their son, Adrian Bialobrodec, that allowed him to purchase and, thereafter, to give the decedent access to and use of a motorcycle, a motor vehicle, which the decedent operated and crashed, resulting in his death. In count two of his complaint, the defendant sued Adrian Bialo-brodec for his allegedly negligent supervision of the decedent and for the decedent’s use of his motorcycle, which resulted in the decedent’s death.

On February 6, 2010, the plaintiff commenced this declaratory judgment action against the parents and Adrian Bialobrodec. On November 18, 2010, the trial court granted the plaintiffs motion to cite in the defendant as an additional party defendant. In its amended complaint, the plaintiff alleged the following. The parents had a homeowner’s insurance policy (policy) issued by the plaintiff that was in effect at all times relevant to the defendant’s claims. Adrian Bialobrodec resided with his parents at all times relevant to the defendant’s claims. Adrian Bialobrodec was an insured under the policy at all relevant times. The defendant sued the parents and Adrian Bialborodec for alleged bodily injuries and damages sustained by the decedent in the motorcycle accident.

On August 30, 2010, the plaintiff filed a motion for summary judgment on the ground that it had no duty to defend the insured parties in the defendant’s action because the defendant’s causes of action arose out of the decedent’s use of a motor vehicle, or the negligent entrustment of a motor vehicle to the decedent, and the conduct and damages alleged against the parents were excluded from the policy coverage. On April 7, 2011, the court rendered summary judgment in favor of the plaintiff, holding that the policy excluded coverage for causes of action arising out of the use of a motor vehicle and that the policy excluded coverage for the defendant’s negligent supervision cause of action because it arose out of the decedent’s use of a motor vehicle owned by an insured. This appeal followed.

On appeal, the defendant claims that the court erred in ruling that the policy excluded coverage for the defendant’s negligent supervision cause of action. He argues that the court misconstrued his claim as arising out of the use of the motorcycle, when, in fact, his negligent supervision cause of action arises out of the parents’ failure to supervise their son. We are not persuaded.

We begin by setting forth our well settled standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Citations omitted; internal quotation marks omitted.) Lancia v. State National Ins. Co., 134 Conn. App. 682, 687, 41 A.3d 308, cert. denied, 305 Conn. 904, 44 A.3d 181 (2012).

“An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract .... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provision of the policy. ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. . . . [T]his rule of construction . . . [also] extends to exclusion clauses.” (Citation omitted; internal quotation marks omitted.) Id., 688-89.

“The question of whether an insurer has a duty to defend its insured is purely a question of law .... In construing the duty to defend as expressed in an insurance policy, [t]he obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. . . . It necessarily follows that the insurer’s duty to defend is measured by the allegations of the complaint.” (Citation omitted; internal quotation marks omitted.) Id., 689. “[T]o prevail on its own motion for summary judgment . . . for a declaratory judgment that it has no duty to defend in the underlying action, the insurer must establish that there is no genuine issue of material fact either that no allegation of the underlying complaint falls even possibly within the scope of the insuring agreement or, even if it might, that any claim based on such an allegation is excluded from coverage under an applicable policy exclusion. . . . [T]he insurer ... is necessarily limited to the provisions of the subject insurance policy and the allegations of the underlying complaint. Therefore, it is only entitled to prevail under a policy exclusion if the allegations of the complaint clearly and unambiguously establish the applicability of the exclusion to each and every claim for which there might otherwise be coverage under the policy.” Id., 691.

Section II of the policy, entitled “EXCLUSIONS,” provides in relevant part: “1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to ‘bodily injury’ or ‘property damage’ . . . [f] [a]rising out of: (1) The ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented or loaned to an ‘insured’ . . . .”

“If an insurance policy’s words are clear and unambiguous, we must accord them their natural and ordinary meaning. . . . [I]t is generally understood that for liability for an accident or an injury to be said to arise out of the use of an automobile for the purpose of determining coverage under the appropriate provisions of a liability insurance policy, it is sufficient to show only that the accident or injury was connected with, had it origins in, grew out of, flowed from, or was incident to the use of the automobile, in order to meet the requirement that there be a causal relationship between the accident or injury and the use of the automobile. . . . Our case law also imparts a single meaning to the phrase use of an automobile: [u]se is to be given its ordinary meaning. It denotes the employment of the automobile for some purpose of the user. . . . Because our case law gives each relevant term a single meaning — albeit an expansive one — there is no ambiguity in a policy exclusion that provides that [c] overage [for] [p]ersonal [liability and . . . [m]edical [payments to [o]thers do[es] not apply to bodily injury . . . [a]rising out of [t]he . . . use ... of motor vehicles . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 753-54, 36 A.3d 224 (2012).

The defendant specifically alleges in his complaint against the parents that on September 1, 2008, at approximately 12:35 a.m., Adrian Bialobrodec took his motorcycle from his parents’ home and met with friends; he allowed the decedent to operate the motorcycle; the decedent lost control of the motorcycle and crashed into a tree; as a result of the accident, the decedent suffered fatal injuries; and the parents knew or should have known that Adrian Bialobrodec would allow others to use and operate the motorcycle.

In his appellate brief, the defendant argues that the decedent’s death was caused by the parents’ negligent supervision of Adrian Bialobrodec, not by the decedent’s use of the motorcycle. Specifically, the defendant argues that “[the parents] failed to supervise their son and took no action to prevent him from allowing others to use the motorcycle.” The defendant further argues that the policy issued to the parents “provided payments for any damages that their insured[s] were required to pay as a result of bodily injury.” Therefore, the defendant concludes, “[n] either of the two exclusions which the court considered in reaching its decision, the [motor vehicle] exclusion clause or the negligent entrustment exclusion, should exclude coverage in this case.” We are not persuaded.

The defendant attempts to separate his negligent supervision legal theory from the factual allegations of his complaint against the parents pertaining to the decedent’s accident and injuries arising from his use of the motorcycle. The facts alleged by the defendant in his complaint against the parents, however, underlie and undercut his claim that his negligent supervision cause of action stands alone and is separate from any claims arising from the motorcycle accident because they leave no doubt that the injuries for which he seeks to recover arose out of the decedent’s use of the motorcycle owned by an insured under the policy issued by the plaintiff. The policy explicitly and unambiguously provides that bodily injury arising out of the use of motor vehicles owned by an insured shall be excluded from policy coverage. Although the alleged facts may support a negligent supervision cause of action against the parents, that does not change the parameters of our review of this appeal. We review the court’s determination that the motor vehicle exclusion provisions of the policy applied to the allegations in the first count of the defendant’s complaint against the parents, not whether a negligent supervision cause of action might lie against them for their actions or inaction in the supervision of their son.

“It is well settled that, [f] actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case.” (Internal quotation marks omitted.) Luster v. Luster, 128 Conn. App. 259, 262 n.6, 17 A.3d 1068, cert. granted on other grounds, 302 Conn. 904, 23 A.3d 1243 (2011). In his complaint against the parents, the defendant thus makes judicial admissions, including that Adrian Bialobrodec owned the motorcycle, that the decedent drove the motorcycle and, thus, engaged in the use of the motorcycle, that, while driving the motorcycle, the decedent crashed and that the crash gave rise to the decedent’s fatal injuries and, ultimately, to his death. If the decedent had not used and operated the motorcycle, crashed and suffered injuries, any alleged failure of the parents to supervise their son with respect to the motorcycle could not be the basis of a cause of action against them by the defendant. Thus, the defendant seeks compensatory damages against the parents based on his factual allegations that the decedent’s fatal injuries arose out of the decedent’s use or operation of a motorcycle owned by Adrian Bialobro-dec, an insured under the policy, pursuant to a legal theory that the parents negligently failed to supervise their son. Therefore, we conclude that the court properly determined as a matter of law that the plaintiff does not have a duty to defend the parents against the defendant’s negligent supervision cause of action because the terms of the motor vehicle exclusion provision exclude coverage for that negligent supervision cause of action that arose from the decedent’s use of a motor vehicle owned by an insured under the policy.

Because the negligent supervision cause of action is excluded from coverage under the motor vehicle exclusion provision, we need not address the defendant’s other claim that the court erred in ruling that the negligent entrustment of a motor vehicle exclusion provision of the policy also excludes coverage for the defendant’s negligent supervision cause of action. Accordingly, we conclude that the trial court correctly determined that the motor vehicle exclusion provision of the policy excludes coverage for the defendant’s negligent supervision cause of action. Therefore, summary judgment properly was rendered in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants in the operative complaint before the trial court were Andrzej Bialobrodec, Grazyna Bialobrodec and Adrian Bialobro-dec. These individuals, however, are not parties to this appeal. Accordingly, references to the defendant refer only to Edward DziMewicz, as administrator of the estate of TyCody Dzikiewicz.

       At oral argument before this court, the defendant conceded that the motor vehicle exclusion provision excludes coverage for his negligent supervision cause of action against Adrian Bialobrodec. Thus, in this opinion we do not address this claim against Adrian Bialobrodec.

       The defendant was not named as a party in the original complaint. The plaintiff amended its original complaint to make allegations against the defendant after the court granted the plaintiffs motion to cite him in as an additional party defendant.

       The ordinary meaning of the term “use,” in reference to a motor vehicle, necessarily encompasses the act of driving a motor vehicle. See, e.g., New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 753-54; Hogle v. Hogle, 167 Conn. 572, 577-78, 356 A.2d 172 (1975).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT TINE
    (AC 32509)
    Gruendel, Beach and Schaller, Js.
    Argued May 23 —
    officially released August 14, 2012

      William B. Westcott, for the appellant (defendant).

      ToniM. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Mary Rose Pálmese, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Robert Tine, appeals from the judgment of the trial court following a trial to the court. He was convicted of evading responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (b) “by [General Statutes §] 14-107 (b).” He claims that there was insufficient evidence presented to establish that he was the operator of the motor vehicle in question, and thus the court violated his due process rights under the fifth and fourteenth amendments to the United States constitution by convicting him. We affirm the judgment of the trial court.

The following evidence is relevant to the defendant’s appeal. On or about July 29, 2009, between 3 and 4 p.m., Antonia Valentino’s silver 1997 four door Saturn was struck by a white truck while the car was parked on the street in front of her home at 171 Winthrop Street in New Britain. At around 4 p.m. on that date, Valentino noticed that “it looked like there was a bag stuck to the side of [her] car,” and upon closer inspection, she observed that “it was a gaping hole.” Upon Valentino’s request, a mechanic came to inspect the car. The mechanic was unable to move the vehicle. Valentino spoke with a neighbor, Daniel Suarez, who lived across the street. On July 29, 2009, Suarez was home playing a video game with his brother when at approximately 3:45 p.m. he heard “a bang from outside.” When he looked out his window, he saw a white truck on the sidewalk very close to the passenger side of Valentino’s car. He did not see the driver. Suarez observed the truck pull forward away from the car and then pull off the grass. It appeared to Suarez that the truck had hit the car, but he was not certain so he continued playing the video game. He subsequently heard Valentino screaming and went outside to tell her about the white truck that he had observed. He told Valentino that he did not want to talk to the police because he “[didn’t] like cops” but agreed later to provide a statement to the police that provided his recollection of the incident. At trial, he identified the defendant’s truck as the white truck he observed that day.

Valentino called the police at about 6 a.m. the following morning to report the incident, and Jared Barsaleau, an officer with the New Britain police department, responded to Valentino’s home shortly thereafter. Bar-saleau observed damage to the passenger side, front comer panel and fender of Valentino’s car, as well as a hole in the car. He also observed tire tracks on the grassy area behind 81-83 Linwood Street, which borders Valentino’s property, and observed that those tracks moved in a direction toward the roadway and across the sidewalk, which also led in the direction of where Valentino’s car was parked. Valentino told Barsaleau that there was a remodeling project occurring at 81-83 Linwood Street and often there were vehicles coming and going on the property. She also told him that her car had been parked in the same location for the past few days. Barsaleau determined that 81-83 Linwood Street was vacant and observed that it appeared that it was under construction or remodeling. He did not see any trucks on the property.

On August 6, 2009, Daniel McBride, a police officer with the New Britain police department, having been assigned to investigate the incident, went to Valentino’s home to meet with her. He observed tire tracks on the lawn of 81-83 Linwood Street, which tracks ran directly toward Valentino’s car in the area of the car that was damaged. He also observed scuffs on the front tire and white paint transfer “just to the front of the front tire on the fender” of Valentino’s car. He further observed diivetrain damage to the car that appeared to make it inoperable. The damage to Valentino’s car was estimated to be $1383.17.

On the same date, McBride inspected a white truck that was parked on the lawn of 81-83 Linwood Street and observed substantial damage to the right rear of the truck and black tire marks on the truck’s bumper that may have been consistent with additional damage over damage from an accident. McBride spoke to the defendant, who stated that he was the owner of the white Chevy truck, that his truck was not involved in the incident and that he did not cause damage to Valentino’s vehicle. The defendant told McBride that most of the damage to the truck had occurred during a previous accident in April, 2009.

The defendant was charged in a long form information with evading responsibility in violation of § 14-224 (b) “by [§] 14-107 (b).” At a court trial on June 22, 24 and 25, 2010, the defendant maintained that neither he nor his track was involved in the incident. The defendant testified at trial that he performed work at 81-83 Linwood Street on July 29, 2009, but that he arrived between 7:30 and 9 a.m., and left between 1 and 2:30 p.m. He presented witnesses who testified that he was driving a grey track on the day of the incident.

The court found that the state proved beyond a reasonable doubt that the defendant was guilty of evading responsibility in the operation of a motor vehicle in violation of § 14-224 (b). The court sentenced the defendant to one year incarceration, execution suspended, and eighteen months probation with the following special conditions: restitution of $1388.17 to be paid in the amount of $200 per month and a $600 fine. This appeal followed.

The defendant claims that the record contains insufficient evidence to support the court’s conclusion that the state met its burden of proof as to the element of identity pursuant to § 14-224 (b). Specifically, the defendant claims that the court erred in applying a statutory presumption pursuant to § 14-107 (b). We disagree.

“As a preliminary matter, we set forth the applicable standard of review. In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . .

“[An] appellate court’s first task, in responding to a claim of evidentiary insufficiency, is to apply the traditional scope of review to the evidence. That requires that ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier’s] verdict. . . . We note that a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

In order to establish that the defendant evaded responsibility in the operation of a motor vehicle in violation of § 14-224 (b), the state was required to prove beyond a reasonable doubt that the defendant was operating the motor vehicle. Section 14-107 (b) provides in relevant part: “Whenever there occurs a violation of section . . . 14-224 . . . proof of the registration number of any motor vehicle therein concerned shall be prima facie evidence in any criminal action . . . that the owner was the operator thereof

In the present case, the defendant claims that there was insufficient evidence to establish beyond a reasonable doubt that he was the person who caused damage to Valentino’s car. Specifically, the defendant argues that the court “clearly established the element of operation through [§ 14-107 (b)] alone” and further contends that § 14-107 (b) illegally transfers the burden from the state to the defendant to prove one of the elements of § 14-224 (b). In 1963, the Appellate Division of the Circuit Court rejected a claim that § 14-107 unconstitutionally shifted the burden of proof from the state to the defendant. The court in State v. Schonrog, 2 Conn. Cir. Ct. 239, 245, 197 A.2d 546 (1963), stated: “The introduction of evidence sufficient to constitute prima facie evidence of operation under § 14-107 does not, of itself, constitute guilt of a violation of the statute under which the defendant was being prosecuted, as suggested by the defendant. Section 14-107 merely provides that if the registration number of the owner of the motor vehicle concerned is proved, the court shall have the right to presume the owner was the operator.”

In 1996, our Supreme Court concluded that a trial court’s jury instructions that the presumptions in General Statutes § 53-202 (d), (e) and (g) were mandatory presumptions violated the due process clause of the federal constitution. State v. Gerardi, 237 Conn. 348, 357-61, 677 A.2d 937 (1996). The defendant in that case was convicted of violating § 53-202 (c), which prohibited possessing or using a machine gun for an offensive or aggressive purpose. Id., 349-51. Section 53-202 (d) provided in relevant part that “[t]he possession or use of a machine gun shall be presumed to be for an offensive or aggressive purpose” under certain circumstances. Section 53-202 (e)- provided in relevant part that “[t]he presence of a machine gun in any room, boat or vehicle shall be presumptive evidence of the possession or use of the machine gun by each person occupying such room, boat or vehicle.” Section 53-202 (g) provided in relevant part that “[a]ny person who fails to register any gun as required hereby shall be presumed to possess the same for an offensive or aggressive purpose.” In order to preserve the constitutionality of these statutory presumptions, our Supreme Court construed “shall” to mean “may” so that the provisions could be applied constitutionally as permissive inferences. State v. Gerardi, supra, 357-61. The court reasoned that, rather than intending that the presumptions be mandatory, “it [was] more likely that the legislature intended that a jury may infer [the relevant statutory element] if the statutory predicate fact together with appropriate facts are sufficient to render the inference rational.” Id., 359-60. The court concluded: “In sum, the jury must be instructed that it may infer facts only upon finding sufficient predicate statutory and nonstatutory facts and circumstances that are rationally connected with the ultimate facts inferred.” Id., 361.

In the present case, the court did not expressly state how, if at all, it applied the presumption in § 14-107 (b). Section 14-107 (b) clearly operated, however, as a permissive interference. We do not presume that the court erred in applying the law. See State v. Tocco, 120 Conn. App. 768, 781 n.5, 993 A.2d 989 (“[t]his court does not presume error on the part of the trial court; error must be demonstrated by an appellant on the basis of an adequate record”), cert. denied, 297 Conn. 917, 996 A.2d 279 (2010). The record does not reveal that the court relieved the state of its burden of proof. Under the facts and circumstances of the present case, the court rationally inferred that the defendant was the operator of the white truck. The court weighed the credibility of the witnesses, namely, the defendant, Juan Feliciano, who worked at 81-83 Linwood Street on July 29, 2009, and Eugene Kirouac, the then owner of the property. The court stated: “The court does not credit the defendant’s testimony or that of his witnesses, Juan Feliciano and Eugene Kirouac, that on July 29, 2009, the defendant was driving a grey truck which he was using to remove oil from the oil tanks at 81-83 Linwood Street and that the defendant’s white truck was not there the entire day.” The court noted the contradictory nature of the witnesses’ testimony and found that “[i]t is most probative that . . . Feliciano or . . . Kirouac and even the defendant never mentioned to any police officer that the defendant was driving a grey truck on the day of the accident.” Additionally, the defendant testified that he was working on the day Valentino’s car was damaged. It was undisputed that the defendant frequently drove the white truck. Tracks led from the area where the defendant parked his truck to Valentino’s car. No evidence was presented that others operated the truck. There were many facts before the court, including those that we have set forth, which reasonably corroborate the permissive inference that the defendant was the operator of the white truck that was parked at 81-83 Linwood Street on the day in question.

The court properly set forth the elements of § 14-224 (b), considered the evidence before it, assessed the credibility of the witnesses and concluded that the state established each element of the offense beyond a reasonable doubt. That the evidence was circumstantial, rather than direct, does not undermine the court’s conclusions. “[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Butler, supra, 296 Conn. 77. “Nothing in our law is more elementary than that the trier is the final judge of the credibility of the witnesses and of the weight to be accorded their testimony.” State v. Lounsbury, 2 Conn. Cir. Ct. 329, 332, 198 A.2d 719 (1963).

The judgment is affirmed.

In this opinion the other judges concurred.

         In its oral decision at the conclusion of the evidence, the court indicated that it generally credited the state’s witnesses and discredited the testimony of the defense witnesses.

       General Statutes § 14-107 (b) provides in relevant part: “Whenever there occurs a violation of section . . . 14-224 . . . proof of the registration number of any motor vehicle therein concerned shall be prima facie evidence in any criminal action . . . that the owner was the operator thereof . . . .”

       The state’s exhibit ten reflects a damage estimate of $1383.17, and at sentencing, the court ordered restitution in that amount. No one has raised an issue regarding the apparent discrepancy of $5 in the judgment file.

       In addition to proving that (1) the defendant was operating a motor vehicle, the state was required to prove that “(2) the defendant was knowingly involved in an accident and (3) the accident caused physical injury to any other person or damage to property. . . . Once those predicate elements were established, the state could prove a violation of § 14-224 (b) if it proved that the defendant failed to fulfill any one or more of the following duties required of him under the statute: (4) that the defendant failed to stop at once and render such assistance as may have been needed; or (5) unless there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to give his name, address, operator’s license number and registration number to the person injured or to the owner of the damaged property, or to any officer or witness to the accident; or (6) if there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to report immediately the physical injury or property damage to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and to give his name, address, operator’s license number and registration number together with the location and circumstances of the accident causing the physical injury or property damage.” (Citation omitted.) State v. Goodspeed, 107 Conn. App. 717, 726-26, 946 A.2d 312, cert. denied, 287 Conn. 920, 951 A.2d 570 (2008).


text:
    RANDALL SAUNDERS v. COMMISSIONER OF CORRECTION
    (AC 33425)
    Gruendel, Beach and Sheldon, Js.

      Argued April 26 —
    officially released August 14, 2012

      Randall B. Saunders, pro se, the appellant (petitioner).

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Randall Saunders, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that the court (1) erred by concluding that he had procedurally defaulted on his claims of prosecutorial impropriety, (2) erred by rejecting his claims of ineffective assistance of trial and appellate counsel, and (3) abused its discretion in denying his petition for certification to appeal. We dismiss the appeal.

The facts underlying the petitioner’s conviction, as noted by our Supreme Court in its opinion regarding the petitioner’s direct appeal, are as follows. “On January 26, 1997, the [petitioner] and his girlfriend, Susan Bruemmer, went to Tortilla Flat, a restaurant and bar in Danbury, after having spent the previous several hours drinking at another bar. The two remained at Tortilla Flat during the Super Bowl and continued to drink. As the [petitioner] and Bruemmer were getting ready to leave after the end of the game, Bruemmer approached the victim, Dominic Badaracco, Jr., who was seated at the bar, and struck up a conversation with him. Bruem-mer was acquainted with the victim because she previously had dated his brother. The conversation soon escalated into an argument, which culminated in Bruemmer’s throwing a drink in the victim’s face.

“The victim then called out to the [petitioner] that he had ‘better contain [his] bitch.’ The [petitioner] drew a handgun, approached the victim, and placed the barrel of the gun against the victim’s head or neck. A fight ensued between the [petitioner], who is approximately six feet, five inches tall and 220 pounds, and the victim, who was approximately six feet, two inches tall and 230 pounds. The two men proceeded to fight. During the fight, which lasted only á short time, the victim punched the [petitioner] in the face. As a result, the [petitioner] suffered minor injuries including a bloody nose and some cuts and abrasions on his face. The victim’s shirt was tom, and a gold chain that he had been wearing around his neck was broken. . . .

“Bethany McKnight, a bartender, heard someone in the bar yell ‘there’s a gun . . . .’ McKnight went into the kitchen to call 911 but discovered that Paula Keeler, the sister-in-law of Dennis Keeler, one of the owners of Tortilla Flat, already had made the call. Dennis Keeler also entered the kitchen to confirm that the police had been called. By this time, the [petitioner] had entered the kitchen from the bar area. Dennis Keeler noticed that the [petitioner] was holstering his weapon. McKnight and Paula Keeler asked the [petitioner] whether he had been shot and if he wanted them to call for an ambulance. The [petitioner] smiled and said no. Paula Keeler thereafter left the kitchen and went upstairs. At this time, the [petitioner] was located within fifteen feet of a door leading to the outside of the restaurant.

“The victim, who had remained in the bar area, headed toward the kitchen. As the victim approached the kitchen doorway, he kicked a garbage can, stopped near the doorway and, according to Dennis Keeler, shouted to the [petitioner] that ‘if he [the petitioner] ever pulled a gun on him again he’d kill him.’ The victim then continued to move toward the [petitioner]. Dennis Keeler asked the victim ‘to stop, to let it go . . . .’ The victim did not heed Keeler’s request, however, and continued to advance in the direction of the [petitioner].

“By this time, the [petitioner] was leaning against a stove, wiping blood from his face. McKnight, who had remained in the kitchen, testified that the [petitioner] pulled out his handgun and ‘just calm [sic] as a cucumber . . . started firing.’ The [petitioner] discharged all five of the bullets from his gun. The victim was struck by four of the five bullets, three of which entered through his back. The other bullet struck the victim in the left arm, near the armpit. The police soon arrived and arrested the [petitioner]. The victim subsequently died as a result of one or more gunshot wounds.” State v. Saunders, 267 Conn. 363, 366-68, 838 A.2d 186, cert. denied, 541 U.S. 1036, 124 S. Ct. 2113, 156 L. Ed. 2d 722 (2004).

Initially, the petitioner was charged with and tried for murder in violation of General Statutes § 53a-54a. After the jury could not reach a unanimous verdict, the trial court, Moraghan, J., declared a mistrial. The petitioner was retried under a substitute information charging him with manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a (a) and 53a-55 (a) (1) and (3). The petitioner was found guilty of manslaughter in the first degree in violation of §§ 53a-55a (a) and 53a-55 (a) (3). The petitioner was sentenced to twenty-seven years incarceration. The petitioner unsuccessfully appealed his conviction. Id., 365-66.

In his amended petition for a writ of habeas corpus, the petitioner alleges that both his trial counsel and his appellate counsel rendered ineffective assistance in various ways, and also alleges prosecutorial impropriety. The court denied the petition. The petitioner filed a petition for certification to appeal, which the court denied. This appeal followed.

“When confronted with a denial of certification to appeal, we must determine whether this ruling constituted an abuse of discretion. ... A petitioner satisfies that substantial burden by demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... If the petitioner can show that the habeas court abused its discretion in denying the petition for certification to appeal, then the petitioner must demonstrate that the judgment of the habeas court should be reversed on its merits. ... To determine whether the court abused its discretion, we must consider the merits of the petitioner’s underlying claims.” (Internal quotation marks omitted.) Greene v. Commissioner of Correction, 123 Conn. App. 121, 126-27, 2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied sub nom. Greene v. Arnone, 563 U.S. 1009, 131 S. Ct. 2925, 179 L. Ed. 2d 1248 (2011).

I

The petitioner’s first claim concerns the court’s conclusion that he had procedurally defaulted as to his claims of prosecutorial impropriety. Specifically, the petitioner argues that the court incorrectly found that he did not file a reply to the defense of procedural default that had been filed by the respondent, the commissioner of correction, and improperly concluded that the petitioner’s claims were not renewable. We disagree.

With respect to the petitioner’s claims of prosecu-torial impropriety, the court found and concluded as follows: “In his amended petition, the petitioner alleges numerous acts of prosecutorial impropriety. In the return to the petition, the respondent raised the defense of procedural default as to the petitioner’s claim of prosecutorial impropriety on the ground that the petition failed to raise it on direct appeal. The petitioner did not file a reply. . . . There is no dispute that the petitioner did not raise a claim of prosecutorial impropriety on direct appeal. Accordingly, this claim is subject to procedural default. Since the respondent raised the defense of procedural default in the return, the burden shifted to the petitioner to allege and prove cause and prejudice. The petitioner has neither alleged nor proven cause and prejudice to overcome the default. Consequently his claim of prosecutorial impropriety is not directly reviewable by this court.” (Citations omitted.)

“When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the habeas petition allegfing] any facts in support of any claim of procedural default ... or any other claim that the petitioner is not entitled to relief. Practice Book § 23-30 (b). If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply. Practice Book § 23-31 (a). The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. Practice Book § 23-31 (c). . . .

“The appropriate standard for reviewability of [a procedurally defaulted claim] ... is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance .... Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice. . . . [When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test.” (Citation omitted; internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn. App. 778, 787, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).

The petitioner is correct in his assertion that the court incorrectly stated that he had not filed a reply to the respondent’s defense of procedural default. In his reply, the petitioner stated that he was relying on his claims of “ineffective assistance counsel, ineffective assistance of appellate counsel and prosecutorial impropriety to constitute both cause and prejudice . . . .” The habeas court correctly concluded, however, that the petitioner’s claim of prosecutorial impropriety was procedurally defaulted. The petitioner failed to allege or to prove facts to support a finding of cause and prejudice. Furthermore, the habeas court rejected the petitioner’s claims of ineffective assistance of counsel, and, thus, his claims of ineffective assistance cannot provide the basis for cause and prejudice.

II

The petitioner next claims that the court improperly rejected some of his claims of ineffective assistance of trial and appellate counsel. We address these claims in turn.

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. . . . Put another way, the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Sastrom v. Mullaney, 286 Conn. 655, 662, 945 A.2d 442 (2008). “A reasonable probability is one [that] is sufficient to undermine confidence in the result.” (Internal quotation marks omitted.) Borrelli v. Commissioner of Correction, 113 Conn. App. 805, 810, 968 A.2d 439 (2009).

A

The petitioner claims that the court improperly rej ected his claim that his trial counsel rendered ineffective assistance for failing to present evidence of a sixth bullet, which the petitioner alleges was fired at him by the victim. We disagree.

The following additional facts, as found by the habeas court, are relevant to this claim. The petitioner’s gun carried only five bullets. The petitioner testified that he shot the victim five times because he thought the victim was reaching for a weapon, but admitted on cross-examination that he did not see a weapon. Roger Brooks, a police detective who led the team that processed the evidence in the petitioner’s case, testified that seven projectiles or bullet fragments were collected during the investigation: four from the crime scene and three from the medical examiner. From the evidence collected, five complete bullets were identified, and all were identified as having been fired from the petitioner’s gun. No other bullets were identified. All of the eyewitnesses who testified at the criminal trial testified that they never saw the victim with a gun.

The court determined that there was no credible evidence of a sixth bullet. The court noted that trial counsel could not be faulted for failing to present nonexistent evidence. The court noted that Brooks testified that the petitioner’s exhibit 26, which the petitioner argued depicted the sixth bullet, was collected and logged as item number one in the evidence log. The court concluded that the petitioner had not met his burden of establishing deficient performance.

On appeal, the petitioner argues that the projectile depicted in the petitioner’s exhibit 26 is the sixth bullet, a bullet that had not been collected by the police but nevertheless was found in the victim’s clothing after all other bullets had been collected. He argues that the court erred in determining that the projectile in the petitioner’s exhibit 26 was collected and logged as item one in the evidence log and further erred in concluding that there was no credible evidence that a sixth bullet existed.

The habeas court credited Brooks’ testimony that the petitioner’s exhibit 26 had been collected and logged as item number one in the evidence log. The court further credited testimony that five complete bullets were identified, and all had been fired from the petitioner’s gun; no other bullets were identified. The court’s findings are not clearly erroneous. The court determined that there was no credible evidence of a sixth bullet, and we cannot retry the court’s credibility determinations. “[T]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Douros v. Commissioner of Correction, 111 Conn. App. 525, 528-29, 959 A.2d 1041 (2008). The court correctly concluded that trial counsel was not deficient for failing to present evidence of a sixth bullet in light of the fact that the petitioner did not present credible evidence as to its existence.

B

The petitioner next asserts that the court improperly rejected his claim that trial counsel rendered ineffective assistance for failing to object to 911 tapes that were admitted as state’s exhibit 69 during his criminal trial. We disagree.

In his amended petition, the petitioner claimed that his trial counsel rendered ineffective assistance at the second criminal trial by failing to object to the admission of state’s exhibit 69, tape recordings of the 911 transmissions from Tortilla Flat, when it was clear that the transmissions had been tampered with. The court rejected this claim, reasoning that there was no credible evidence that someone had tampered with the 911 tape recordings.

We defer to the court’s determination as to credibility. See State v. Garcia, 299 Conn. 39, 52, 7 A.3d 355 (2010). Because there was no credible evidence that the tapes had been tampered with, the petitioner cannot then prove that his trial counsel’s performance was deficient for failing to object to the admission of the tapes on the basis that they had been tampered with. See Smith v. Commissioner of Correction, 116 Conn. App. 383, 391, 975 A.2d 751 (“[T]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency. . . . [TJhere is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” [Internal quotation marks omitted.]), cert. denied, 293 Conn. 925, 980 A.2d 912 (2009).

C

The petitioner next appears to argue that the court improperly rejected his claim that his trial counsel rendered ineffective assistance for failing to object to the substitute long form information that charged him con-junctively with manslaughter in the first degree with a firearm in violation of §§ 53a-55a (a) and 53a-55 (a) (1), and in violation of §§ 53a-55a (a) and 53a-55 (a) (3). We disagree.

Section 53a-55a (a) provides in relevant part: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .” Section 53a-55 provides in relevant part: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person ... or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

In the petitioner’s second criminal trial, the prosecutor filed a substitute long form information that stated, in pertinent part: “In the Superior Court of the state of Connecticut, [the senior assistant state’s attorney] . . . accuses [the petitioner] of manslaughter in the first degree with a firearm and charges that . . . [the petitioner], while using a revolver with the intent to cause serious physical injury to another person, did cause the death of such other person, Dominic Badaracco, in violation of [§§] 53a-55 (a) (1) and 53a-55a (a). . . . AND further charges that . . . [the petitioner], while using a revolver under circumstances evincing an extreme indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person, Dominic Badaracco, and thereby caused the death of such other person, Dominic Badara-cco, in violation of [§§] 53a-55 (a) (3) and 53a-55a (a).”

The court determined that subdivisions (1) and (3) of § 53a-55 (a) do not constitute separate offenses for charging purposes, but rather describe alternative means of committing a single crime. The court cited State v. Wohler, 231 Conn. 411, 650 A.2d 168 (1994), for the proposition that “[a] charging document may properly allege, conjunctively, in one count, several statutory methods of committing a single offense.” (Internal quotation marks omitted.) Id., 415. The court determined that the petitioner could not prevail on his claim of ineffective assistance because there was no reason for his trial counsel to object to the substituted long form information. The court noted that “[t]he only difference between the two subsections is the requisite mental state; subsection (1) requires a more culpable mental state than subsection (3). Despite this difference, the subsections are not so dissimilar as to constitute separate offenses. See State v. Tanzella, 226 Conn. 601, 613, 628 A.2d 973 (1993) (holding that although subsections [1] and [2] of General Statutes § 53a-61 [a] require a different mental state and degree of harm they are ‘simply different means of committing the same crime, namely, assault in the third degree’).”

The petitioner argues that the court erred in determining that § 53a-55 (a) (1) and (3) are not separate offenses and that they can be combinéd in a single count. The petitioner also argues that the court erred in relying on State v. Wohler, supra, 231 Conn. 411, and State v. Tanzella, supra, 226 Conn. 601, in its analysis because those cases are factually distinguishable from the present case.

The court correctly determined that counsel’s performance was not deficient. Trial counsel had no reason to object because the state’s long form information was proper. We agree with the court’s conclusion that § 53a-55 (a) (1) and (3) are not separate offenses for charging purposes. We agree with the court’s reliance on State v. Wohler, supra, 231 Conn. 415, for the proposition that a charging document may properly allege several statutory methods of committing a single offense. Although subsection (1) requires specific intent and subsection (3) requires a reckless mental state, that difference does not in itself render them separate offenses. By analogy, State v. Tanzella, supra, 226 Conn. 601, provides support for the proposition as well.

D

The petitioner also claims that the court improperly rejected his claim that his trial counsel rendered ineffective assistance by failing to object to jury instructions. Specifically, the petitioner argues that when the court instructed the jury to “[d]ecide one of them,” it essentially instructed the jury to deliberate until it found him guilty of either intentional or reckless manslaughter in the first degree.

The following additional facts are relevant. The court instructed the jury that “[the petitioner] is charged in a long form information . . . with one count. One count, meaning one charge. He’s charge [d] with manslaughter in the first degree with a firearm in violation of the appropriate Connecticut General Statutes. He is charged in this one count with committing manslaughter in the first degree .... [T]he state alleges alternative methods of committing this one crime. It’s one count, alternative methods of committing the one crime.” The court further explained: “Your verdict on either alternative must be unanimous. If you decide on the intent, it must be unanimous. Or if you decide on the reckless portion, it must be unanimous. All your verdicts must be unanimous. You do not need to decide clearly both of them, just decide one. Either intent based upon your view of the evidence and the law or the reckless based on your view of the evidence and the law. Decide one of them. Again, the scenarios with the lesser include [d]s. If you are unanimous, not guilty on the first count, you consider manslaughter in the second degree. [If] you axe unanimous not guilty, then you consider criminally negligent homicide as the lesser included. Any guilty unanimous verdict ends the deliberations immediately.”

The habeas court determined that the trial court’s instruction was not improper in context. The court further stated that a note from the jury to the court revealed that the jury found the petitioner not guilty with respect to the charge of intentional manslaughter in the first degree with a firearm, but found him guilty of reckless indifference manslaughter in the first degree. The court noted that, although it had not been necessary for the jury to decide both allegations, it nonetheless did. The habeas court concluded that even if the trial court’s instruction was improper, the petitioner suffered no prejudice. On this record, our confidence in the verdict is not undermined by a possibly confusing portion of the charge.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the propose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Heinemann, 282 Conn. 281, 300, 920 A.2d 278 (2007).

Reviewing the charge as a whole, we do not conclude that the court instructed the jury to deliberate until it found the petitioner guilty. Although the court instructed the jury to “decide one,” it stated that if the jury found the petitioner not guilty of intentional manslaughter, then it should consider negligent manslaughter. The court further instructed that a guilty verdict would end deliberations. The court again stated that “if you find the [petitioner] not guilty of manslaughter in the first degree, I don’t know if that’s your decision, but this is the scenario. If you do that, then you then consider the lesser included offense. Clearly, if you find the other way, that the [petitioner] is guilty of the first count of the only count of the information, then your deliberations cease. If you find him not guilty of the first count, manslaughter in the first degree, then you consider . . . what we call the lesser included offenses in that same count. And that is manslaughter in the second degree.” The court also instructed that the petitioner is presumed to be innocent until proven guilty beyond a reasonable doubt.

Furthermore, the petitioner cannot prove that he was prejudiced as a result of the court’s instruction. The record reflects that the jury reached a unanimous verdict on both intentional and reckless manslaughter: it found him not guilty of manslaughter in the first degree with a firearm and found him guilty of reckless manslaughter.

E

The petitioner next claims that the court improperly rejected his claim that his trial counsel rendered ineffective assistance for failing to object to a subpoena duces tecum issued to the person holding the petitioner’s power of attorney during the petitioner’s first criminal trial. We disagree.

The following additional facts, as found by the habeas court, are relevant to this claim. During the petitioner’s first criminal trial, the prosecutor caused a subpoena duces tecum to be served on Patricia Joy. The subpoena directed her to bring with her to court a broad array of documents. Although she held a number of the petitioner’s documents, she was not a part of the petitioner’s legal team or an expert hired by the petitioner’s attorney. During a colloquy regarding the prosecutor’s request to look at the documents Joy had brought with her, the prosecutor said that Joy might have possessed evidence such as inculpatory letters written to her by the petitioner. The habeas court determined that the petitioner’s trial counsel had attempted to challenge the subpoena as overly broad, but the trial court had held that he had no standing to challenge the subpoena. The court allowed the prosecutor to take possession of the documents. The prosecutor returned the documents to Joy the day after receiving them and represented to the trial court that he had no intention of using any of them. The habeas court found that there was no credible evidence that the prosecutor had used any of the documents. The court concluded that even if trial counsel could have done more to object to the subpoena, the petitioner’s case did not suffer any prejudice from his failure to do so.

During the petitioner’s first criminal trial, the state asked the court for permission to take possession of the boxes of documents that had been subpoenaed from Joy. The following colloquy occurred:

“[Defense Counsel]: Your Honor, I would ask to see the subpoena and since maybe that subpoena is overbroad.

“The Court: Maybe you have no standing to challenge it.

“[Defense Counsel]: I probably don’t, but I do have—

“The Court: Then, that’s it, you don’t have any challenges. You’re not representing her, are you?

“[Defense Counsel]: No. I would ask for an offer of proof, though, as to why—

“The Court: No. Have her come in, please.”

The court asked Joy about the subpoena, to which question she responded that she thought that the subpoena was very broad. The prosecutor noted that the subpoenaed material may have contained information given by Saunders to Joy regarding his version of events and that he wanted to review the documents before Joy testified. Defense counsel noted that “I think what’s going to happen, as a result of all of this . . . based upon my review of these files, is that there were numerous federal lawsuits filed ... by [the petitioner]. . . . This is going to open the door to numerous collateral issues ... I think all of these are collateral. They have nothing to do with the case. It has to do with what Miss Bruemmer [and the petitioner] may have been trying to do ... to sue people.” Defense counsel continued: “Joy showed me the subpoena, and I think that . . . it’s overly broad. It’s going to delay the case, and it’s going to get us into collateral issues.” The court stated that, although the subpoena was extremely broad, there had not been “any real objection . . . and [defense counsel] does not have any standing to make the objection.”

Accordingly, the record reveals that the petitioner’s defense counsel raised concerns regarding the subpoena to the extent that the court would allow and that he established a record. Because the allegedly deficient activity — failing to object to the subpoena — did not occur, the habeas court did not err in concluding that the prejudice prong was not satisfied.

Additionally, on February 4, 2000, the day after Joy turned over the subpoenaed documents to the state, the defense counsel stated that “[w]ith regard to the motion for material seized from . . . Joy, I understand that the state is returning all materials that were seized from . . . Joy and it does not intend to use any of them in evidence.” The prosecutor agreed and stated that “after 5 o’clock yesterday they were locked ... in an evidence closet down in our office, and we haven’t gone through them. We opened them and started to go through them . . . they’re just too voluminous . . . for me to work with. And at this point, at 5 o’clock yesterday I called . . . Joy and indicated that we would return them to her this morning. I have them in here in court and [am] prepared to transfer them back to her.” At the habeas trial, the prosecutor testified that he obtained three boxes of materials from Joy and that he took the three boxes home one night and returned them the following day. He testified that “all of the evidence in the case, virtually every single scrap of it, was evidence I provided to the defense and that’s pretty much within those boxes. Nothing significant. Certainly nothing that changed my view of the case.” He further testified that he did not find anything in the boxes that was useful or relevant to the case.

The subpoenaed documents were returned to Joy and are not able to be reviewed by us. There is nothing in the record to suggest that the subpoenaed documents contained information important to the case, and there was no evidence that the state learned anything about the petitioner’s trial strategy or confidential thoughts. The habeas court found that there was no credible evidence that the prosecutor used any of the documents, and we see nothing in the record about an invasion of a privilege. On the record before us, we conclude that the court did not err in finding that the petitioner had not proven prejudice.

F

The petitioner next claims that the court improperly rejected his claims that his appellate counsel rendered ineffective assistance by failing to raise on direct appeal the issue of prosecutorial impropriety that allegedly occurred at his second trial, namely, the prosecutor’s use of a visual aid during closing arguments. We disagree.

“[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel’s error, the petitioner would have prevailed in his direct appeal.” (Internal quotation marks omitted.) Davis v. Commissioner of Correction, 117 Conn. App. 737, 740, 980 A.2d 933 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).

The court found the following. During closing argument, the prosecutor used a visual aid and commented: “This is a very complicated area of the law, self-defense; you will see that. And I’ve written down some of my thoughts so that you can see them as I speak them just to help you. Some of these thoughts that I have are propositions of law, and there’s about ten of them, about ten or twelve sentences which are propositions of law, and I just want to get them out of the way early so you can get them in your mind; you can think about them later. The judge is going to talk to you . . . upon what the law is in this case. . . . Let’s start with it.” The prosecutor testified at the habeas trial that he had no specific recollection of displaying his written thoughts to the jury but that he had used visual aids during closing arguments in the past. The habeas court found that there was no evidence before it regarding the visual aid the prosecutor had used, and that it could not speculate as to the content or effect, if any, that the aid had on the jury. The court rejected the petitioner’s argument that visual aids cannot be used to display propositions of law, which the petitioner claimed amounted to unsworn testimony. The court determined that, although the prosecutor may have displayed “propositions of law” to the jury, there was no evidence that he misstated the law, and, moreover, the court instructed the jury that the law comes solely from the court and that the jury is bound by the court’s instructions. The court concluded that even if the prosecutor had improperly displayed propositions of law to the jury during summation, no prejudice resulted therefrom.

On appeal, the petitioner argues that “the act of displaying your thoughts for the exclusive view of the jury with the additional instructions to ‘think about them later’ is a structural error not subject to harmless error analysis.” We do not agree.

The petitioner presented no evidence before the habeas court as to the content of any visual aid used by the prosecutor. As noted by the habeas court, even if the visual aid contained improper propositions of law, the trial court instructed the jurors that they “are bound by the court’s legal instructions.” Juries are presumed to follow the court’s instructions absent clear evidence to contrary. State v. Anderson, 86 Conn. App. 854, 870, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005). The petitioner has not shown prejudice, and, thus, his claim fails.

m

Having reviewed the record, and for the reasons set forth previously, we conclude that the petitioner has failed to establish that the issues he has raised are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions he has raised are adequate to deserve encouragement to proceed further. See, e.g., Greene v. Commissioner of Correction, supra, 123 Conn. App. 126-27. Accordingly, the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

      The same attorney represented the petitioner in both criminal trials.

       In his amended petition, the petitioner alleged thirty-one counts of ineffective assistance of trial counsel. The court reviewed only those allegations as to which the petitioner presented evidence. The petitioner challenged some of those rulings on appeal.

       The habeas court appears to have decided the issue only with respect to the prejudice prong. In passing, the court mentioned that defense counsel had lacked standing to object. The record, as noted, shows that defense counsel in fact made an effort to object to the state’s access to all of the materials.

       We, of course, condemn any foray into an accused’s communications with counsel.

       The petitioner appears to argue that the court erred in rejecting his additional claims of ineffective assistance of appellate counsel. The petitioner offers no analysis, and, accordingly, we do not review this claim. “ [Reviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Raynor v. Commissioner of Correction, 117 Conn. App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010).


text:
    GRECO CONSTRUCTION v. ALISON EDELMAN ET AL.
    (AC 33556)
    Beach, Bear and Espinosa, Js.

      Argued April 26 —
    officially released August 14, 2012

      Brendan J. O’Rourke, with whom, on the brief, was Lorey Rives Leddy, for the appellant (plaintiff).

      Edward Kanowitz, for the appellees (defendant Alison Edelman et al.).
   Opinion

BEACH, J.

The plaintiff, Greco Construction, appeals from the judgment of the trial court granting the motion of the defendants, Alison Edelman, individually, and as executrix of the estate of Claudia Pearl, to dismiss the plaintiffs action for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

The record discloses the following facts. In 2007, the plaintiff commenced an action against the defendants seeking to foreclose on a mechanic’s lien in the amount of $6270 that had been placed on a parcel of real estate owned by the defendants. In its complaint, the plaintiff alleged that it had been subcontracted to perform and had performed renovation work on the defendants’ home but had not received payment. The matter was tried in August, 2010, before an attorney trial referee. The attorney trial referee recommended judgment in favor of the plaintiff in the amount of $6270, plus attorney’s fees, costs and prejudgment interest. The plaintiff filed a motion to accept the report, and the defendants filed an objection to the report. The plaintiff filed a posttrial “motion to amend pleadings to correct misnomers,” seeking to amend the pleadings, pursuant to General Statutes § 52-123, to correct the name of the plaintiff to “Brian Greco d/b/a Greco Construction.” The defendants filed a motion to dismiss the present action, arguing that the action should be dismissed for lack of subject matter jurisdiction because the plaintiff was misnamed in the complaint as “Greco Construction,” when the plaintiff’s true identity was “Brian Greco d/b/a Greco Construction.” The court granted the defendants’ motion to dismiss.

We begin by setting forth our standard of review. “In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary.” (Internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn. App. 323, 335, 958 A.2d 1283 (2008).

The plaintiff argues that the court improperly granted the defendants’ motion to dismiss the complaint on the ground that the plaintiff was named in the pleadings as “Greco Construction” instead of “Brian Greco d/b/a Greco Construction.” The plaintiff claims the misnomer was a circumstantial defect that could be corrected pursuant to § 52-123. Section 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” Our Supreme Court has articulated that in order to deter-' mine whether a defective reference to a defendant is circumstantial under § 52-123, we first look to whether the party intended to reference the proper party or whether it “had erroneously misdirected its action.” Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995). “Second, [the court] considered three factors to determine whether the error was a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that [she] was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to [her] prejudice.” Id.

The plaintiff contends that the defendants had actual notice of the institution of the action by Brian Greco, knew throughout the proceedings the identity of the plaintiff and were not prejudiced. In support of this contention, the plaintiff argues that the name “Greco Construction” incorporated Brian Greco’s surname, that the mechanic’s lien that was appended to the complaint reflected that Brian Greco owned Greco Construction and that Brian Greco testified on direct examination that he was doing business as Greco Construction.

We conclude, however, that America’s Wholesale Lender v. Pagano, 87 Conn. App. 474, 866 A.2d 698 (2005), is dispositive. The defendant in that case appealed from the trial court’s denial of her motion to dismiss, and argued that the court lacked subject matter jurisdiction because the plaintiff had initiated the action solely in its trade name, which was a fictitious name and not a legal entity. Id., 476-77. The court stated: “It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue. . . . Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name. . . . Because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court.” (Citations omitted; internal quotation marks omitted.) Id., 477. The court rejected the plaintiffs argument that bringing an action under a trade name was a misnomer or circumstantial error that, pursuant to § 52-123, should not deprive the court of jurisdiction. Id., 477-78. The court compared § 52-123 with General Statutes § 52-45a, which requires the use of legal names, not fictitious ones, when commencing an action. Id., 478. The court noted that our Supreme Court has held that misnaming a defendant was curable under § 52-123 when the misnomer did not result in prejudice to either party, even in cases where the plaintiff used only the defendant’s trade name and not the defendant’s legal name. Id., 478. The court “decline[d], however, to extend the use of § 52-123 in this manner to a plaintiff that has used a fictitious name for itself when commencing an action.” Id. The court concluded that “lack of subject matter jurisdiction . . . requires dismissal, regardless of whether prejudice exists.” Id., 480.

In the present case, it is not disputed that Greco Construction was the trade name or assumed business name of Brian Greco doing business as Greco Construction. Because the plaintiff instituted the action using a trade name or assumed business name of “Greco Construction,” which is not a legal entity and which does not have a separate legal existence, an action brought under that trade name cannot confer jurisdiction. See id., 477-78. Due to lack of subject matter jurisdiction, dismissal is required. See id., 480.

We reject the plaintiffs attempt to distinguish America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 474. The plaintiff argues that America’s Wholesale Lender involved a plaintiff that was a national mortgage lender involved in a vast number of foreclosures, whereas the plaintiff in the present case was working as a subcontractor on the defendants’ home, had incorporated the surname “Greco” in its trade name and was an individual operating a sole proprietorship. The plaintiff argues that the holding in America’s Wholesale Lender should be construed to apply only to corporate entities that commence actions under wholly different trade names bearing no resemblance to the true identity of the entity.

The court in America’s Wholesale Lender made no distinction between trade names incorporating surnames and those that do not, or between large corporations and sole proprietorships. Rather, it clearly stated that, in order for a court to have jurisdiction, the plaintiff must have an actual legal existence, and, because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court. America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 477. Accordingly, the court properly granted the defendants’ motion to dismiss for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       Claudia Pearl died in March, 2008. By order dated March 10,2010, Alison Edelman, her daughter, was substituted as a party defendant as executrix of her estate.

       The matter was tried in a consolidated proceeding with three related cases. In its memorandum of decision on the defendants’ motion to dismiss, the court severed two cases not “afflicted with the same infirmities” and decided the motion to dismiss, inter alia, with respect to the present case.

       The standard of review on a motion to dismiss is plenary when the facts are undisputed. See, e.g., Conboy v. State, 292 Conn. 642, 650-52, 974 A.2d 669 (2009).

       In its “motion to amend pleadings to correct misnomers,” the plaintiff states that “Greco Construction . . . can be properly seen as the business names for [Brian Greco doing business as Greco Construction].”

       We also reject the plaintiffs argument that the present case is akin to Dyck O’Neal, Inc. v. Wynne, 56 Conn. App. 161, 742 A.2d 393 (1999). In that case, this court concluded that the correction of the name of the substitute plaintiff from “Dyck O’Neal” to “Dyck O’Neal, Inc.,” was a circumstantial error that could be cured pursuant to § 52-123. Id., 166. In America’s Wholesale Lender, the court distinguished Dyck O’Neal, Inc., by, inter alia, noting that the record in Dyck 0 ’Neal, Inc., “suggested the omission of the plaintiffs designation was a typographical error in the court’s judgment file, not an action necessarily attributable to the plaintiff. [Dyck O’Neal, Inc. v. Wynne, supra, 164 n.4.]” America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 479 n.5. The present case does not concern a typographical error in the court’s judgment file, and, thus, Dyck O’Neal, Inc., is inapposite.

       We note that the statutory scheme affords a greater leniency where a defendant is misnamed in the initial papers than where a plaintiff is misnamed. The plaintiff, after all, is the author and presumably ought to know its identity; also it is the plaintiff rather than the defendant who seeks to invoke the jurisdiction of the court.