author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. MARCUS PRICE
    (AC 18853)
    Lavery, C. J., and Schaller and Healey, Js.
    Argued September 18, 2000
    officially released January 23, 2001

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher A. Alexy, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Marcus Price, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l), carrying a weapon in a vehicle in violation of General Statutes § 29-38 and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The trial court also found, as a matter of law, that the defendant had committed a class B felony with a firearm, warranting a mandatory, nonsuspendable five year term of imprisonment pursuant to General Statutes § 53-202k.

On appeal, the defendant claims that (1) the court improperly found that violation of § 53-59 (a) (1) established by operation of law a violation of § 53-202k, which subjected him to an enhanced penalty, (2) the evidence was not sufficient to convict him of carrying a weapon in a vehicle and (3) the court improperly restricted the defense counsel’s cross-examination of the victim in violation of the defendant’s confrontation rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Carl Pollard, knew each other through mutual friends and neighborhood acquaintances. In the early morning hours of February 16, 1997, Pollard was driving alone on Sylvan Road in New Haven. Pollard stopped his car to talk to some friends who were sitting in a truck that was at the side of the road. After talking to his friends for a few minutes, Pollard saw the defendant exit a blue station wagon parked behind the truck and walk to his car. The defendant thrust a gun through the open passenger window and began to fire at Pollard. Pollard was shot four times. He suffered severe injuries, including a collapsed lung and multiple bone fractures. A security guard at a nearby nursing home heard several gunshots while he was making rounds. He went outside and saw Pollard lying on the ground next to his car, but did not observe any other vehicles. The security guard returned to the nursing home and called the police.

Officer Robert Levy of the New Haven police department was one-quarter mile from the shooting. He and another police officer heard seven gunshots. Levy arrived on the scene less than twenty seconds after he heard the shots. He found Pollard lying on the street. Initially, Pollard told Levy that the assailant had tried to carjack him and that he did not know the assailant. After several interviews with Detective Hilden Wright of the New Haven police department and several conflicting accounts of the incident, the victim named the defendant as his assailant.

At trial, the jury rendered a verdict of guilty on all counts. Thereafter, the court found as a matter of law that the defendant had committed a class B felony and was therefore subject to a mandatory five year term of imprisonment pursuant to § 53-202 (k) in addition to the maximum twenty-year sentence permitted by General Statutes § 53a-35a (5) for violating § 53a-59 (a) (1).

I

The defendant first claims that the court improperly failed to instruct the jury regarding the elements of § 53-202k and that, as a result, the jury made no express finding as to whether the state had proven that he used a firearm in the commission of a class A, B or C felony in violation of § 53-202k. The defendant further claims that this omission violated his state and federal constitutional due process rights, and asks this court to remand the case to the trial court with direction to vacate the sentence of twenty-five years imprisonment on the count of assault in the first degree and to resentence him to a term of twenty years. Although we agree with the defendant that the jury and not the trial court must make the factual determinations required under § 53-202k, we nevertheless conclude that the court’s failure to instruct the jury regarding the elements of § 53-202k was harmless under the facts of this case. Therefore, we reject the defendant’s claim that the enhanced sentence imposed under § 53-202k must be vacated.

Because the defendant concedes that his claim is unpreserved, he asks for review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The first two steps in the Golding analysis address the reviewability of the claim, whereas the last two steps address the merits of the claim. State v. Hafford, 252 Conn. 274, 305, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). With regard to the first prong of Golding, we conclude that the record is adequate for our review. We next turn to the second prong of Golding, that is, whether the defendant’s claim is of constitutional magnitude and alleges the violation of a fundamental right. We conclude that it is a claim of constitutional magnitude on the basis of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

In Apprendi, the United States Supreme Court held unconstitutional a sentence enhancement statute that provided for an extended term of imprisonment if the trial court found, by a preponderance of the evidence, that the defendant, in committing the underlying crime, acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity. The court held that due process and the sixth amendment rights to a jury trial require that any fact, other than the fact of a prior conviction, that increases the punishment for a crime above the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Id., 476.

In State v. Montgomery, 254 Conn. 694, 759 A.2d 995 (2000), our Supreme Court, in applying Golding review to the issue of whether the sentence enhancement factors of § 53-202k must be determined by the jury, implicitly held that this claim implicates a defendant’s constitutional rights. The defendant in Montgomery was convicted of minder and felony murder. The trial court then, in considering § 53-202k, determined that the jury, by convicting the defendant, had necessarily found that he had committed a class A felony and that the felony had been committed with a firearm. The court sentenced the defendant to a term of imprisonment that exceeded the statutory maximum. On appeal, the defendant was afforded Golding review of his claim that the trial court improperly had failed to instruct the jury on the elements of § 53-202k. Id., 735 n.46. Our Supreme Court indicated that the jury finding that the defendant had committed murder, a class A felony, necessarily satisfied the jury finding requirement as to the felony element of § 53-202k. Id., 737. With regard to the firearm element of § 53-202k, the court concluded that any error committed was harmless because the evidence was uncontested and overwhelming that the defendant had committed the murder with a firearm. Id., 738.

In this case, the crime of assault in the first degree is a class B felony and carries a maximum term of imprisonment of twenty years. The court lengthened the defendant’s sentence by five years by applying the sentence enhancement provision, i.e., because the defendant had committed a class B felony and “use[d] or [was] armed with and threatenfed] the use of . . . [a] firearm . . . .” General Statutes § 53-202k. His total sentence of twenty-five years, therefore, exceeds the maximum term of imprisonment for assault in the first degree.

Apprendi does not discuss circumstances under which a jury does not need to decide a sentence enhancing fact that increases the prescribed statutory maximum. Indeed, Apprendi creates a bright line rule that a jury must decide any fact, other than the fact of a prior conviction, that exposes a defendant to punishment greater than the statutory maximum. Because the enhanced punishment in this case exceeded the statutory maximum, under Apprendi, we conclude that the court improperly failed to instruct the jury regarding the enhanced punishment provision under § 53-202k. In addition, State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000), requires the same result. Velasco holds that it is improper under our statutory scheme for a court not to submit the firearm element of § 53-202k to the juiy. Velasco, like Apprendi, does not suggest that a situation exists that would allow circumvention of this requirement.

Certain constitutional issues require automatic reversal to vindicate the fundamental rights in question. State v. Chapman, 229 Conn. 529, 552, 643 A.2d 1213 (1994) (Berdon, J., dissenting). Apprendi does not answer the question of whether failure to submit to the jury a fact that is essential to the application of a sentence enhancement provision requires automatic reversal or is subject to harmless error analysis. Harmless error analysis is inappropriate “where the constitutional violation must be deemed harmful under all circumstances or where it is of such a nature that ascertainment of its harmfulness is impossible or so difficult as not to warrant the endeavor.” (Internal quotation marks omitted.) Id. Constitutional errors deemed appropriate for such analysis arise from structural defects in the trial mechanism that obviously have affected the entire conduct of the trial from beginning to end. Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). “When the error undermines the structural integrity of the tribunal, no review for harmless error or prejudice to the defendant need be made. Such an error can never be harmless and automatically calls for reversal and a new trial. . . . Even when the evidence for conviction is overwhelming and a trial is otherwise fair, the taint attributable to a structural defect cannot be purged.” (Citations omitted.) State v. Anderson, 55 Conn. App. 60, 72-74, 738 A.2d 1116, cert. granted on other grounds, 251 Conn. 926, 742 A.2d 363 (1999). An Apprendi error is not such a structural defect. See Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (omission of element of criminal offense from jury instruction not structural error and therefore subject to harmless error analysis); United States v. Champion, 234 F.3d 106, 110 (2d Cir. 2000) (“even if the district court erred by arrogating to itself [the fact-finding function in determining the quantity of drugs involved in the crimes charged], any such error was surely harmless”).

In Velasco and Montgomery, the court applied a harmless error test to determine whether to resentence the defendants in those cases as a result of the trial courts’ failure to instruct on the elements of § 53-202k. State v. Velasco, supra, 253 Conn. 232-36; State v. Montgomery, supra, 254 Conn. 735-38. The court applied the test established in Neder v. United States, supra, 527 U.S. 17. Under the Neder harmless error test, the omission of an essential element from a jury charge constitutes harmless error if “a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .’’Id. Neder requires the reviewing court to conclude beyond a reasonable doubt that the element omitted from the charge was uncontested and supported by overwhelming evidence. Id.; see State v. Montgomery, supra, 738; State v. Velasco, supra, 232-33.

Under Neder’s harmless error analysis, the question is whether it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty [of the enhancement element] absent the error . . . .” Neder v. United States, supra, 527 U.S. 18. As the state points out in its briefs, the victim, Pollard, testified that the defendant reached into the victim’s car and fired four shots into his body. In addition, there was medical testimony regarding the bullet wounds that the victim sustained. The state further points out that the court charged the jury that “[a] deadly weapon means any weapon, whether loaded or unloaded, from which a shot may be discharged,” and it does not appear that the defendant objected to that instruction. It appears that the evidence against the defendant was both overwhelming and uncontested. We agree with the defendant that the court should have instructed the jury on the elements of § 53-202k, but we find that the court’s failure to do so constituted harmless error. Therefore, the sentence imposed under § 53-202k was not improper.

II

The defendant next claims that there was insufficient evidence to support his conviction for carrying a weapon in a vehicle in violation of § 29-38. Although the defendant concedes that the jury found that he possessed the weapon while outside the vehicle, he contends that there was insufficient evidence to conclude that he possessed the weapon while inside his vehicle. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Montgomery, supra, 254 Conn. 732. When viewing evidence that could lead to contrary inferences, the jury may make inferences consistent with guilt and is not required to make only inferences consistent with innocence. State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994); State v. Rogers, 50 Conn. App. 467, 473, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998).

In the present case, the jury, having concluded that the defendant shot Pollard, could then reasonably infer that the defendant had possessed the gun in his motor vehicle. The gravamen of the defendant’s claim is that the possibility exists that the other occupant of the car could have possessed the weapon and held a valid pistol permit. This court, however, does not ask whether there is a view of the evidence that supports another reasonable hypothesis about the evidence. State v. Rogers, supra, 50 Conn. App. 473; see also State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). Rather, this court asks whether there is a reasonable view of the evidence that supports the jury’s verdict. State v. Rogers, supra, 473; see also State v. Sivri, supra, 231 Conn. 134. “If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Lavigne, 57 Conn. App. 463, 468-69, 749 A.2d 83 (2000).

Here, the evidence and the reasonable inferences drawn therefrom are sufficient to support the jury’s finding that the defendant possessed a gun in his motor vehicle. First, according to Pollard’s testimony, the defendant was sitting in the driver’s seat of a vehicle that was parked less than five feet from Pollard. Streetlights and bright lights from the nursing home illuminated the street. Pollard testified that when the defendant exited the car, his hand was against his thigh and that was the hand in which the defendant held the gun. Although Pollard testified that he did not have a full frontal view of the defendant, the jury reasonably could infer that the defendant was holding the gun as he left the car.

Second, the police investigating the shooting did not discover a weapon at the crime scene. The police arrived seconds after they heard the shots, and Pollard testified that his assailant fled by car. Therefore, it is reasonable to infer that the assailant possessed the weapon in the motor vehicle when he left the crime scene. On the basis of the evidence and the reasonable inferences drawn therefrom, we conclude that there was sufficient evidence for the jury to draw a reasonable inference that the defendant knowingly possessed a weapon in a vehicle without a permit. We therefore reject the defendant’s sufficiency of the evidence claim.

Ill

The defendant’s last claim is that the court violated his confrontation rights by restricting defense counsel’s cross-examination of Pollard.

The facts relevant to this claim are as follows. At trial, the defendant sought to cross-examine the state’s key witness, the victim, Pollard, regarding certain issues. Specifically, defense counsel wanted to question Pollard regarding whether he possessed a gun at the time of the shooting. The defendant claims that this line of questioning would have gone to Pollard’s motive and bias to testify falsely, and that the court abused its discretion in restricting that line of inquiry. We disagree.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest seemed by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Andrews, 248 Conn. 1, 11-12, 726 A.2d 104 (1999). If the constitutional standard has been met, then we must nonetheless examine whether the court abused its discretion in restricting the defendant’s cross-examination of the victim. State v. McKnight, 47 Conn. App. 664, 667-68, 706 A.2d 1003 (1998).

“[T]he exclusion of evidence that provides the defendant a basis for cross-examination of the state’s witnesses may give rise to a claim of denial of the defendant’s right to confrontation.” State v. DeCaro, 252 Conn. 229, 258, 745 A.2d 800 (2000). “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 324, 331, 618 A.2d 32 (1992). Here, the defendant’s counsel had ample opportunity to cross-examine Pollard. The defendant’s counsel elicited extensive testimony regarding Pollard’s prior criminal record and his conflicting accounts of the shooting. Defense counsel also asked Pollard whether he had a gun at the time of the assault, and Pollard responded that he did not. In addition, the police who arrived within minutes of the shooting testified that they did not find a gun at the scene. The court determined that the defendant would have no basis for continuing that line of questioning if the victim said that he did not have a gun.

“In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) Id. Taking into account the complete cross-examination of Pollard, the jury was given sufficient facts from which it could determine the reliability of his testimony. Pollard’s cross-examination, therefore, met the constitutional standard.

After determining that the constitutional standard has been met, the second step of our inquiry for a claim of undue restriction on cross-examination is whether the trial court abused its discretion. State v. McKnight, supra, 47 Conn. App. 668. To establish an abuse of discretion, the defendant must show that the court’s restrictions clearly prejudiced him. State v. Oliver, 41 Conn. App. 139, 145, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996). Here, it appears that defense counsel wanted to pursue a line of questioning regarding Pollard’s possession of a gun and the possibility of whether he was the first shooter. On the basis of the fact that defense counsel presented no evidence whatsoever regarding the existence of a second gun, the court was well within its discretion to restrict defense counsel’s inquiry on that subject.

Under the circumstances of this case, we conclude that the court did not infringe on the defendant’s right to cross-examine Pollard. The court did not violate the defendant’s right to confrontation, and the court did not abuse its discretion in precluding cross-examination regarding Pollard’s possession of a gun.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. The word ‘weapon’, as used in this section, means any pistol or revolver . . . .”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm . . . shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMEL BEALL
    (AC 18469)
    Foti, Mihalalcos and Healey, Js.

      Argued October 17, 2000
    officially released January 23, 2001

      Susan M. Hankins, assistant public defender, with whom were Stephanie J. Sweeney, certified legal intern, and, on the brief, Janice Wolf, certified legal intern, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Gary Nicholson, senior assistant state’s attorney, and Eileen McCarthy Geel, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Jamel Beall, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l) and carrying a pistol without a permit in violation of General Statutes § 29-35, and from the sentence imposed by the court in a separately charged part B information for the use of a firearm in the commission of a felony in violation of General Statutes § 53-202k. The court sentenced the defendant to a term of eighteen years, suspended after eight years, with three years of probation on the assault charge, and to a concurrent three year term on the weapons charge. Following the court’s action on the part B information, the court sentenced the defendant to the mandatory five year consecutive sentence for violating § 53-202k. Thus, the court sentenced the defendant to a total effective term of eighteen years imprisonment, suspended after thirteen years, with three years probation.

The defendant claims that the court improperly (1) imposed its sentence pursuant to § 53-202k without submitting the necessary factual determination to the jury, (2) limited cross-examination, (3) allowed venire-persons, who would later become jurors, to view an indoctrination film and (4) refused to disclose mental health records allegedly pertaining to the victim’s veracity. The defendant also claims that prosecutorial misconduct occurred during closing argument to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 15, 1996, the victim, Derrick Harris, and his friend, Tito Wilson, decided to go to downtown New Haven to purchase some clothes. Harris and Wilson met with several of their friends, and went to Winchester Street to take a bus. Harris went into the Sweet Shop, a store on Winchester Street, where he purchased soda and made change for the bus trip. After making his purchase, Harris left the Sweet Shop and drank his soda as he stood on the sidewalk in front of the store. While there, he noticed three individuals on minibikes traveling on the street toward him. As the individuals on the minibikes came within approximately twenty feet of Harris, one of them fired four shots from a gun at him. One of the shots struck Harris in the chest, causing permanent paralysis from the location of the wound throughout the lower part of his body.

Harris identified the defendant as the person who shot him. Harris further testified that the two other individuals on the minibikes did not fire at him. Additional facts will be discussed where relevant to the issues on appeal.

I

The defendant first claims that he was denied his right to trial by jury under § 53-202k, and the state and federal constitutions, because the court failed to submit to the juiy for its determination, beyond a reasonable doubt, the factual question of whether he had used a firearm in the commission of a class A, B or C felony. We disagree.

A jury, and not the court, must determine whether a defendant used a firearm in the commission of a class A, B or C felony for purposes of § 53-202k. State v. Velasco, 253 Conn. 210, 214, 751 A.2d 800 (2000). When there is no question that the jury’s finding necessarily satisfied the two requirements of § 53-202k, the court’s failure to instruct the jury regarding the elements of § 53-202k is harmless beyond a reasonable doubt. State v. Montgomery, 254 Conn. 694, 737-38, 759 A.2d 995 (2000). The jury’s finding that the defendant was guilty of having committed assault in the first degree, a class B felony, necessarily satisfied the first requirement. The use of a firearm is not always an element of the crime of assault in the first degree, and the information in this case did not expressly state that the “deadly weapon” used to cause the serious physical injury was a firearm. The evidence presented at trial was that the victim was shot in the chest and paralyzed below the site of the wound. The defendant did not dispute that evidence. His defense was that he was not the shooter. The sole evidence, therefore, of the assault in the first degree, was that it was committed with a firearm. The element found by the court rather than by the jury, i.e., that the class B felony was committed with a firearm, was uncontested and supported by overwhelming evidence; the court’s failure to instruct on that element of § 53-202k therefore constituted harmless error. See id., 738. As in Montgomery, albeit where the charge was murder, because the defendant in this case did not dispute that the victim suffered serious physical injury by means of being shot by a firearm, and because the jury found beyond a reasonable doubt that the defendant was guilty of assault in the first degree, a class B felony, the court’s failure to instruct the jury regarding the elements of § 53-202k was harmless beyond a reasonable doubt.

II

The defendant next claims that the court violated his constitutional right of confrontation by improperly limiting his cross-examination of the state’s key witness, Harris. We review this claim because the defendant preserved it at trial.

The facts relating to this claim and necessary for the resolution of the issue are as follows. During the trial, the defendant sought to cross-examine Harris regarding his conviction of certain crimes. Specifically, the defendant sought to elicit information regarding Harris’ conviction for burglary in the second degree and an escape charge from June, 1996. The defendant conceded that he did not have information about the facts concerning the burglary charge that would implicate Harris’ veracity. The defendant claimed, however, that he had information that Harris escaped from the Long Lane School by failing to return to the institution after the expiration of a pass that it had granted him. Although the court limited the defendant’s ability to cross-examine Harris regarding those crimes, the court allowed the defendant to cross-examine Harris regarding, inter alia, his incarceration at Long Lane School and his contact with the defendant during that time, as well as his arrest for possession of a stolen car.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Andrews, 248 Conn. 1, 11-12, 726 A.2d 104 (1999).

“Although it is within the trial court’s discretion to determine the extent of cross-examination . . . the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment.” State v. Colton, 227 Conn. 231, 249, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). “The right of confrontation is preserved [however] if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) Id. “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).

While “[t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause”; (emphasis added) State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986); that is not the situation in this case. The defendant’s counsel questioned Harris extensively, not only about the incident itself, but also about his truancy, his commitment as a juvenile delinquent at Long Lane School and his possession of a stolen car. The court limited the evidence admitted for impeachment purposes to that involving veracity. The defendant was unable to demonstrate that any evidence relating to the burglary or escape charges implicated Harris’ veracity.

The defendant argues that the court should have allowed him to cross-examine Harris regarding the burglary and escape, regardless of whether he could establish an association with the lack of veracity, because cross-examination to show motive, bias, interest and prejudice is a matter of right. While it is correct that cross-examination tending to show those conditions is a matter of right that may not be unduly restricted; State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985); it is the party offering the testimony who has the burden of establishing its relevancy. State v. Andrews, supra, 248 Conn. 12. The defendant did not proffer a sufficient reason to establish such a basis.

Under the circumstances of this case, we conclude that the court did not infringe on the defendant’s right to cross-examine Harris. The court did not violate the defendant’s confrontation right, and it did not abuse its discretion in precluding cross-examination regarding the burglary or escape charges.

Ill

The defendant next claims that the court improperly permitted the venirepersons, from which the jury was selected, to view an official juror indoctrination film that exposed them to prejudicial comments, thereby violating his right to an impartial jury and a fair trial. We disagree.

Prior to jury selection and voir dire, the defendant requested that the court preclude prospective jurors from viewing the official juror indoctrination videotape titled, “Judge and Jury: Partners in Justice,” which is shown to prospective jurors in the jury assembly room. In denying the defendant’s motion, the court stated: “Counsel, I did have this issue before me in Waterbury. I viewed the videotape you’re talking about on more than one occasion. Specifically, we all viewed it during the hearing. The jury court administrator came down and testified. I denied the motion by [counsel] for the reason that (1) most if not all criminal judges do give certain preliminary remarks to the panel that comes down to them for their respective case. But aside from that, during the voir dire, any taint that you may feel has gone to those prospective jurors, you will take care of it during voir dire. They read newspapers, they watch the six o’clock news. I mean, believe me, what we see on the six o’clock news may be ten times or more than that worse than what [the judge in the videotape] says. He’s making generic comments about society in general, which I think can be cured by your voir dire questioning to see if jurors in fact of that mind would prejudice your client; you can ask for the juror to be excused for cause or to exercise a peremptory challenge. For those reasons, sir, your motion is going to be denied, and you have an exception to that.”

A preinstruction, in this case in the form of an indoctrination film, is permissible to provide preliminary instruction to prospective jurors. See State v. Lewis, 220 Conn. 602, 614, 600 A.2d 1330 (1991). The final charge, however, supersedes and usually overrides earlier comments, particularly if the closing charge is temporally distant from the challenged preinstruction. See State v. DelVecchio, 191 Conn. 412, 422, 464 A.2d 813 (1983). The true issue raised is whether the preinstruction affected the fairness or integrity of the proceedings. State v. Marra, 222 Conn. 506, 537, 610 A.2d 1113 (1992).

The defendant was given full opportunity during individual voir dire to delve into any impact the film might have had on prospective jurors and to establish through their responses if the defendant’s rights were in any way prejudiced. The defendant failed to establish a record demonstrating that any individual prospective juror, or the entire panel, should have been excused, given the circumstances of this particular case, because of prein-struction prejudice adversely affecting his constitutional rights. We conclude that the defendant did not demonstrate that the indoctrination film unfairly biased any prospective jurors and that the court properly permitted the venirepersons to view the film.

IV

The defendant next claims that comments made by the prosecutor during closing argument violated his right to a fair trial. This claim was not preserved, and the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

At the end of the state’s second closing argument, the prosecutor stated: “[C]ertainly the state would not compound the tragedy by letting somebody who is responsible for that serious permanent injury walk out of this courtroom. Now, it’s your responsibility as jurors in this case to enforce the law. You know, the police, it is their job to investigate crime such as this, it’s their job to arrest people that they suspect of crimes. It’s Judge Hadden’s job to preside over the trial, to see to it that everyone involved in the case gets a fair trial. And it’s the state’s attorney’s job—again, the state’s attorney’s office doesn’t enforce the law. It’s the state’s attorney’s job to make sure that the trial is a fair trial, and the evidence is presented for your consideration so that you can render a fair and impartial verdict in this case after you have considered all of the admissible evidence.

“But, again, in the final analysis, it’s up to you to make that decision; it’s not up to me, it’s not up to Judge Hadden, it’s not up to defense counsel, it’s not up to the New Haven police department. If you are not willing to enforce the law as an arm of the court, then unfortunately, then, the law is not going to be enforced at all.”

We often have stated our standard of review of a claim of prosecutorial misconduct that allegedly results in an unfair trial. “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . [M]oreover . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout trial ....

“In determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant. ... In doing so, we have focused on several factors, [i]ncluded among those factors are the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 164, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Mod- ica, supra, 1181; Harris v. United States, 402 F.2d 656, 657 n.l (D.C. Cir. 1968); State v. Doehrer, supra, 654; and the strength of the state’s case. See United States v. Modica, supra, 1181; State v. Couture, supra, 564; see also State v. Glenn, 194 Conn. 483, 492, 481 A.2d 741 (1984). . . . State v. Alexander, 50 Conn. App. 242, 255-56, 718 A.2d 66 (1998), rev’d on other grounds, 254 Conn. 290, 755 A.2d 868 (2000).

“We do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Citations omitted; internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 355-56, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999).

Prosecutorial misconduct can occur in the course of closing argument. State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996). Counsel, in addressing the jury, must be allowed a generous latitude in argument, including the zeal of counsel in the heat of argument. State v. Andrews, supra, 248 Conn. 19. Ultimately, the proper scope of closing argument lies within the sound discretion of the trial court. State v. Copas, 252 Conn. 318, 337, 746 A.2d 761 (2000). We review the allegedly improper comments in the context of the entire trial. State v. Andrews, supra, 19.

The defendant satisfies the first two prongs of Golding because an adequate record exists to review his claim and he alleges a constitutional violation. The defendant, however, cannot prevail under the third prong because he cannot demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial. The record discloses that the prosecutor made isolated comments and did not engage in a pattern of egregious conduct. The comments do not rise to the level of misconduct; they describe the respective roles of the parties in the process, perhaps somewhat over-zealously in the comment that if the jury was “not willing to enforce the law as an arm of the court, then unfortunately, then, the law is not going to be enforced at all.” We conclude, therefore, that the prosecutor’s argument did not infringe on the defendant’s constitutional right to a fair trial.

V

The defendant requests that we review certain sealed, privileged records not disclosed to him at trial. The court reviewed certain of the victim’s confidential psychiatric or psychological records, and the court released some of those records and found that others were not relevant. Thereafter, the court marked the records as exhibits B and C, and ordered them sealed. The court’s determination not to disclose the contents of the records to the defendant because they contained no relevant material was within the court’s discretion, and our standard of review is whether the court abused that discretion. State v. Rosado, 52 Conn. App. 408, 416, 726 A.2d 1177 (1999).

Our in camera review of the records; see State v. Olah, 60 Conn. App. 350, 353-56, 759 A.2d 548 (2000); see also State v. Crosswell, 223 Conn. 243, 270, 612 A.2d 1174 (1992); leads us to conclude that the court, under the circumstances of this case, did not abuse its discretion by not releasing the material in question.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 provides: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such ir\jury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical iryury to another person; or (4) with intent to cause serious physical ir\jury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person; or (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.
      “(b) Assault in the first degree is a class B felony provided (1) any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court and (2) any person found guilty under subsection (a) shall be sentenced to a term of imprisonment of which ten years of the sentence imposed may not be suspended or reduced by the court if the victim of the offense is a person under ten years of age.”

       General Statutes § 29-35 provides: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser’s residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business alter the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors’ group if such person is a bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any other state or subdivision of the United States, or to any person carrying a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33.
      “(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit on his person while carrying such pistol or revolver.”

       General Statutes § 53-202kprovides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       Harris testified that he knew the defendant by the name Mellywack. He further testified that he had seen the defendant around the neighborhood twice a week on average for a couple of years previous to the shooting, and that he and the defendant had an argument about a month prior to the shooting.

       The defendant cites the fifth, sixth and fourteenth amendments to the United States constitution, and article first, §§ 8,9 and 19, of the constitution of Connecticut.

         The defendant argues that the court’s failure to instruct the jury on the requirements of § 53-202k is not amenable to harmless error analysis and that our Supreme Court improperly applied that analysis in State v. Montgomery, 254 Conn. 694, 759 A.2d 995 (2000). We see no merit in his argument that this error requires automatic reversal and can never be found harmless. See State v. Velasco, supra, 253 Conn. 230-36; see also State v. Montgomery, supra, 735, 737-38; State v. Price, 61 Conn. App. 417, 423-24, 767 A.2d 107 (2001). Furthermore, even if we believed that this argument had merit, it is axiomatic that we are bound by our Supreme Court precedent. See State v. Otero, 49 Conn. App. 459, 468 n.9, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).

       The defendant did not object and failed to ask for any curative instruction with regard to this issue. “The defendant, therefore, presumably did not regard those remarks ... as seriously prejudicial at trial.” State v. Cox, 50 Conn. App. 175, 180, 718 A.2d 60 (1998), aff'd, 251 Conn. 54, 738 A.2d 652 (1999).

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Shinn, 47 Conn. App. 401, 409, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).


author: HENNESSY, J.

text:
    STATEWIDE GRIEVANCE COMMITTEE v. NITOR EGBARIN
    (AC 19801)
    Lavery, C. J., and Schaller and Hennessy, Js.
    Argued October 30, 2000
    officially released January 23, 2001

      Kweku J. Hanson, for the appellant (defendant).

      Christopher L. Slack, assistant bar counsel, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendant, Nitor Egbarin, an attorney licensed to practice law in the state of Connecticut, appeals from the judgment rendered on a presentment in which the trial court concluded that the defendant was guilty of professional misconduct in violation of rule 8.4 (3) of the Rules of Professional Conduct and suspended him from the practice of law for five years. On appeal, the defendant claims that the court (1) improperly found that he violated the Rules of Professional Conduct because rule 8.4 (3) is unconstitutionally vague and overbroad, (2) improperly found that he engaged in actions prohibited by rule 8.4 (3), (3) violated his due process rights by considering allegations of misconduct not raised in the presentment, (4) abused its discretion in suspending his license to practice law because the court’s findings are unsupported by the record and (5) abused its discretion in suspending his license to practice law for a period of five years. The defendant also claims that the composition of the reviewing subcommittee violated his due process rights. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The defendant has been a member of the bar and has practiced law in Connecticut since 1987. For approximately one year, in 1993, the defendant and his wife leased a house owned by Claude Picard and Pauline Picard (Picards) in Bloomfield, with an option to buy. The defendant decided to exercise his option to purchase the Picards’ house, and the purchase price was initially set at either $300,000 or $330,000. The property was subsequently appraised for $300,000. To purchase the Picards’ property, the defendant obtained a mortgage loan from Sanborn Corporation (Sanborn) in the amount of $270,000. The Picards then lent $30,000 to the defendant for which the defendant also signed a promissory note. The defendant secured both loans with a mortgage on the property.

As a condition to receiving the loans, the defendant provided Sanborn and the Picards with copies of his 1992 and 1993 federal income tax returns. The defendant’s 1992 federal income tax return listed an adjusted gross income of $93,603 and a tax liability of $26,210. His 1993 federal income tax return stated that the adjusted gross income was $116,950, with a tax owing of $31,389. The defendant also prepared a Uniform Residential Loan Application (URLA) for Sanborn and answered, “No, see file,” to the question on the application regarding whether he was delinquent on any federal debt or financial obligation. As to the defendant’s answer of “No, see file,” the trial court found that the defendant was referring to certain outstanding student loans.

The closing on the property was held on May 31, 1994. Scott Lewis, an attorney, represented the Picards at the closing. The defendant signed and submitted a final version of the URLA at the closing. When asked on the application whether he was delinquent on any federal debt or financial obligation, the defendant answered, “No.” As of the date of the closing, however, the defendant had in fact not paid, nor even filed for, the amounts due and owing on the 1992 and 1993 federal income tax returns. The defendant did not disclose either to Sanborn or to the Picards that he had not paid his 1992 and 1993 federal income tax obligations.

Shortly after the closing, the defendant defaulted on the loan payments to both Sanborn and the Picards. Represented by Lewis, the Picards sued the defendant for the amounts owing on the promissory note. On November 4, 1998, the court found in favor of the Picards regarding the promissory note and awarded damages in favor of the Picards in the amount of $38,544.

In 1996, Lewis filed with the plaintiff statewide grievance committee a grievance complaint against the defendant, alleging that the defendant violated rules 3.3 (a) and (b); 4.1 (a) and (b); and 8.4 (a), (b) and (c) of the Rules of Professional Conduct. On April 30, 1997, a grievance panel found probable cause that the defendant violated rules 4.1 (a) and 8.4 (3). A reviewing subcommittee of the statewide grievance committee found that the defendant violated rule 8.4 (3) and recommended a Superior Court presentment.

On December 10, 1998, the plaintiff filed a presentment in the Superior Court. In the presentment, the plaintiff claimed that the defendant violated rule 8.4 (3) “by providing the tax returns but not disclosing to the lender and sellers that the tax liability represented in the returns had not been paid” and “by falsely representing on the [URLA] that he was not delinquent on any federal debt or other financial obligation.” A hearing ensued.

During the presentment hearing, which commenced in March, 1999, Claude Picard testified that in lending the defendant $30,000, he relied, in part, on the federal income tax returns that the defendant provided. At the hearing, the defendant also testified and stated before the trial court that at the time of the property closing in 1994, his taxes were not paid in full because of a personal arrangement with the Internal Revenue Service (IRS). When the court asked the defendant about the details of his arrangement with the IRS, the defendant avoided answering the question and failed to provide the court with any information or details. The defendant further revealed to the court that he also failed to pay his 1994 taxes.

On June 22, 1999, in a memorandum of decision, the court held that the plaintiff demonstrated by clear and convincing evidence that the defendant was guilty of professional misconduct and suspended the defendant from practicing law for five years. Specifically, the court concluded that the defendant violated rule 8.4 (3) in that he “fraudulently misrepresented relevant facts to his mortgage lender and to the seller of his former home. He has failed to pay his taxes and he has been less than honest and forthright with this court.” After the expiration of the five years, the court stated that the defendant may be readmitted to the bar pending the successful completion of a bar approved course on legal ethics. This appeal followed.

Before addressing the defendant’s specific claims, our analysis begins with a review of the legal principles that govern attorney disciplinary proceedings. “An attorney is admitted to the practice of law on the implied condition that the continuation of this right depends on remaining a fit and safe person to exercise it.” Statewide Grievance Committee v. Fountain, 56 Conn. App. 375, 377, 743 A.2d 647 (2000). The Rules of Professional Conduct bind attorneys to uphold the law and to act in accordance with high standards in both their personal and professional lives. See Preamble to Rules of Professional Conduct. As officers and commissioners of the court, attorneys are in a special relationship with the judiciary and are “subject to the court’s discipline.” Statewide Grievance Committee v. Fountain, supra, 377.

It is well established that “[¡Judges of the Superior Court possess the inherent authority to regulate attorney conduct and to discipline the members of the bar. ... It is their unique position as officers and commissioners of the court . . . which casts attorneys in a special relationship with the judiciary and subjects them to its discipline. . . . [TJhe judges have empowered the statewide grievance committee to file presentments in Superior Court seeking judicial sanctions against those claimed to be guilty of misconduct. . . . In carrying out these responsibilities . . . the [statewide grievance committee] is an arm of the court . . . .” (Internal quotation marks omitted.) Statewide Grievance Committee v. Whitney, 227 Conn. 829, 838, 633 A.2d 296 (1993), quoting Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 525-26, 576 A.2d 532 (1990). “A court disciplining an attorney does so not to punish the attorney, but rather to safeguard the administration of justice and to protect the public from the misconduct or unfitness of those who are members of the legal profession.” Statewide Grievance Committee v. Fountain, supra, 56 Conn. App. 378.

I

The defendant first claims that rule 8.4 (3) is unconstitutionally vague and overbroad in violation of the United States constitution. We decline to address this issue because it was not properly preserved for appellate review.

The record reveals that the defendant did not raise the issue of the constitutionality of rule 8.4 (3) before the trial court. Practice Book § 60-5 provides in relevant part that this “court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ...” This rule against considering claims not advanced at trial also pertains to constitutional issues. Statewide Grievance Committee v. Whitney, supra, 227 Conn. 846. “Only in the most exceptional circumstances will this court consider a claim that was not raised [before the trial court]. . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Friedland, 222 Conn. 131, 147, 609 A.2d 645 (1992), quoting Dubois v. General Dynamics Corp., 222 Conn. 62, 68-69, 607 A.2d 431 (1992).

The defendant has not pointed to or established any exceptional circumstances warranting our review of this unpreserved claim. In his brief, the defendant seeks our review of this claim on the grounds that this issue is capable of repetition and will adversely affect future attorneys subject to discipline under rule 8.4 (3). The defendant’s argument, however, fails to address whether exceptional circumstances exist warranting review of this unpreserved claim. The defendant failed to assert any additional arguments or facts demonstrating exceptional circumstances that would justify review of this unpreserved claim. Accordingly, we decline to review the merits of this claim. See Berry v. Loiseau, 223 Conn. 786, 828-29, 614 A.2d 414 (1992).

II

The defendant next claims that the court improperly found that he violated rule 8.4 (3) because rule 8.4 (3) does not proscribe the defendant’s actions in the present situation. Specifically, the defendant argues that rule 8.4 (3) prohibits only active, intentional misrepresentation and, because he did not explicitly say that he paid his income taxes, he engaged in, at most, passive misrepresentation. Further, the defendant contends that he could not have misrepresented any facts to Sanborn or to the Picards because he did not have a duty to disclose to them that his taxes were unpaid. We disagree.

In presentment proceedings, the statewide grievance committee must prove by clear and convincing evidence that the attorney engaged in misconduct in violation of the Rules of Professional Conduct. See Statewide Grievance Committee v. Whitney, supra, 227 Conn. 838. The trial court conducts the presentment proceeding de novo. See Statewide Grievance Committee v. Presnick, 215 Conn. 162, 167, 575 A.2d 210 (1990). In determining whether an attorney violated the Rules of Professional Conduct and the appropriate sanction to impose, the trial court possesses a great deal of discretion. See Statewide Grievance Committee v. Presnick, 216 Conn. 127, 131, 577 A.2d 1054 (1990); Grievance Committee v. Nevas, 139 Conn. 660, 666, 96 A.2d 802 (1953). When the trial court determines that an attorney committed misconduct in violation of the Rules of Professional Conduct, “unless it clearly appears that [the attorney’s] rights have in some substantial way been denied him, the action of the court will not be set aside upon review.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Presnick, supra, 216 Conn. 132, quoting In re Durant, 80 Conn. 140, 150, 67 A. 497 (1907).

In essence, the court found that the defendant’s actions amounted to both fraudulent misrepresentation and fraudulent nondisclosure in violation of rule 8.4 (3) . The court found that there was clear and convincing evidence demonstrating that the defendant misrepresented relevant facts to Sanborn and to the Picards by submitting his federal income tax returns without disclosing that he did not pay his income taxes, stated a falsehood on the URLA when he denied having any outstanding federal obligations and was “less than forthright [to the court] in his testimony concerning his taxes.” Further, the court concluded that the defendant failed to disclose information “under circumstances where there is a duty to speak,” all in violation of rule 8.4 (3).

The elements comprising an action in fraud or fraudulent misrepresentation are that: “(1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.” (Internal quotation marks omitted.) Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 493, 705 A.2d 210 (1998). Fraud by nondisclosure “expands on the first three of [the] four elements [and] involves the failure to make a full and fair disclosure of known facts connected with a matter about which a party has assumed to speak . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 494, quoting Gelinas v. Gelinas, 10 Conn. App. 167, 173, 522 A.2d 295, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987). “To constitute [fraud by nondisclosure], there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak.” Egan v. Hudson Nut Products, Inc., 142 Conn. 344, 347, 114 A.2d 213 (1955). The duty to disclose known facts is imposed on a party “insofar as he voluntarily makes disclosure. Aparty who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak.” (Internal quotation marks omitted.) Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977).

We are not persuaded by the defendant’s arguments that his actions did not amount to fraud and further that he did not have a duty to disclose to Sanborn and to the Picards that his taxes were unpaid. The court properly analyzed the defendant’s actions under the four elements of fraudulent misrepresentation and the legal concepts of fraudulent nondisclosure. Given the great amount of discretion that we accord to the trial court in attorney grievance proceedings, we do not conclude that the court abused its discretion in finding that, under the circumstances, the defendant fraudulently misrepresented facts on his URLA application, committed fraudulent nondisclosure in failing to inform Sanb-orn and the Picards that he did not pay his taxes, and fraudulently misrepresented facts regarding his taxes before the court.

Likewise, the defendant’s claim that rule 8.4 (3) does not prohibit “passive misrepresentation” is without merit. “[U]nder certain circumstances, there may be as much fraud in a person’s silence as in a false statement.” Egan v. Hudson Nut Products, Inc., supra, 142 Conn. 347. Therefore, we find no merit to the defendant’s second claim.

Ill

The defendant next claims that the court deprived him of his due process rights by improperly considering allegations beyond those contained in the presentment. Specifically, the defendant contends that his due process rights were violated because the presentment did not adequately provide notice that his failure to pay taxes was at issue. We disagree.

Although in reviewing an attorney grievance proceeding we afford great discretion to the trial court to determine the manner in which to conduct and resolve a matter, “[t]his discretion, however, must not be exercised at the expense of an attorney’s right to procedural due process.” Statewide Grievance Committee v. Botwick, 226 Conn. 299, 308, 627 A.2d 901 (1993). “Because a license to practice law is a vested property interest, an attorney subject to discipline is entitled to due process of law.” Statewide Grievance Committee v. Shluger, 230 Conn. 668, 675, 646 A.2d 781 (1994). In attorney grievance proceedings, due process mandates that “[b]efore discipline may be imposed, an attorney is entitled to notice of the charges, a fair hearing and an appeal to court for a determination of whether he or she has been deprived of these rights in some substantial manner.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Botwick, supra, 308. Regarding the notice required to satisfy due process, the presentment must “be sufficiently intelligible and informing to advise the court of the matter complained of, and the attorney of the accusation or accusations made against him, to the end that . . . the latter may prepare to meet the charges against him . . . .” (Internal quotation marks omitted.) Statewide Grievance Committee v. Shluger, supra, 675, quoting In re Peck, 88 Conn. 447, 453, 91 A. 274 (1914).

The defendant claims that the presentment failed to apprise him that his failure to pay taxes was at issue. Contrary to the defendant’s assertions, the presentment specifically states in paragraphs six through ten that the defendant’s failure to pay his federal income taxes is the basis for the plaintiffs allegations that the defendant engaged in misconduct. Further, this grievance proceeding arose out of the defendant’s failure to pay his federal income taxes and subsequent nondisclosure. If the defendant had satisfied his federal tax obligations at the time he entered into transactions with Sanborn and the Picards, then this proceeding would not be before us today.

In arguing that he lacked notice that his failure to pay his taxes was at issue, the defendant cites Statewide Grievance Committee v. Botwick, supra, 226 Conn. 299, to support his position. Botwick, however, does not pertain to the present case. In Botwick, our Supreme Court held that the trial court infringed the defendant’s due process right to notice in an attorney grievance proceeding when the court found that the defendant violated the Rules of Professional Conduct based on a transaction wholly unrelated to the allegations contained in the presentment. Id., 311. Here, not only is the defendant’s failure to pay his taxes related to all of the allegations in the presentment, but it is the cornerstone and basis of the entire grievance proceeding. There is no question that the defendant knew that his failure to pay his income taxes was at issue, that this issue repeatedly arose throughout the hearing and that the defendant was given a full opportunity to respond. See Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 595 A.2d 819 (1991), cert. denied, 502 U.S. 1094, 112 S. Ct. 1170, 117 L. Ed. 2d 416 (1992). Accordingly, we conclude that because the defendant received adequate notice, his due process claim must fail.

IV

The defendant next contends that the court abused its discretion because its findings are unsupported by the record. In particular, the defendant claims that there is a lack of evidence demonstrating that he submitted his 1993 tax returns to the Picards and that he committed any misrepresentation. Further, the defendant argues that the court unreasonably relied on Lewis’ testimony. We disagree.

We will reiterate and expand on our prior discussion of the standard of review of a trial court’s judgment in the context of attorney grievance proceedings. The trial court conducts the presentment hearing de novo. Statewide Grievance Committee v. Presnick, supra, 215 Conn. 167. In determining whether the evidence on the record supports the trial court’s conclusion, our scope of review is of a limited nature. In re Application of Pagano, 207 Conn. 336, 344, 541 A.2d 104 (1988). “AH of our cases agree that the trial court has a wide discretion in the premises.” Grievance Committee v. Nevas, supra, 139 Conn. 666. “[A] reviewing court must defer to the discretion of the fact finder, whether it be the trial court or the committee, because the fact finder is in the best position to evaluate the evidence and the demeanor of the parties.” Statewide Grievance Committee v. Glass, 46 Conn. App. 472, 479, 699 A.2d 1058 (1997), citing Practice Book § 27N (f), now § 2-38 (f). “[E]very reasonable presumption should be given in favor of the correctness of the court’s ruling.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Glass, supra, 479. “Judicial discretion is always a legal discretion. Its abuse will not be interfered with on appeal to this court except in a case of manifest abuse and where injustice appears to have been done.” (Internal quotation marks omitted.) Grievance Committee v. Nevas, supra, 666, quoting Hayward v. Plant, 98 Conn. 374, 382, 119 A. 341 (1923).

After reviewing the record, we conclude that ample evidence exists supporting the trial court’s conclusions. At the hearing, Claude Picard testified that the defendant submitted the 1993 tax return to him and that he relied on the tax return in deciding to grant the $30,000 loan to the defendant. Further, it was the prerogative of the court to determine what weight, if any, to give to the testimony of Picard and Lewis. See In re Deana E., 61 Conn. App. 197, 208, 763 A.2d 45 (2000). Under the circumstances, we cannot say that a manifest abuse of discretion has occurred. Therefore, we decline to disturb the court’s factual findings and conclusion.

V

The defendant further claims that the court abused its discretion in suspending him from the practice of law for five years. We disagree.

The trial court possesses “inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire record before it.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Shluger, supra, 230 Conn. 678, quoting In re Weissman, 203 Conn. 380, 384, 524 A.2d 1141 (1987). It is well established that in sanctioning an attorney for violations of the Rules of Professional Conduct, “courts are, as they should be, left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Shluger, supra, 679. “Whether this court would have imposed a different sanction is not relevant. Rather, we must determine whether the trial court abused its discretion in determining the nature of the sanction. . . . We may reverse the court’s decision [in sanctioning an attorney] only if that decision was unreasonable, unconscionable or arbitrary, and was made without proper consideration of the facts and law pertaining to the matter submitted.” (Citation omitted.) Statewide Grievance Committee v. Fountain, supra, 56 Conn. App. 381.

In determining the appropriate sanction for the defendant’s violations of rule 8.4 (3), the court utilized various sections of the American Bar Association’s Standards for Imposing Lawyer Sanctions (Standards). Specifically, the court relied on Standards 3.0 and 9.1 in deciding to suspend the defendant from the practice of law for five years.

The court’s memorandum of decision demonstrates that the court thoroughly considered various aggravating and mitigating factors in arriving at its final determination. Pursuant to Standard 9.22, the court considered several aggravating factors. The court noted that there are pending grievances against the defendant and that the defendant committed multiple offenses. Further, the court found that the defendant’s misrepresentation evinced a selfish motive and that the defendant refused to acknowledge the wrongful nature of his conduct. The court concluded that the defendant made false statements before the court and engaged in illegal conduct in failing to pay his taxes and to disclose to Sanborn and to the Picards that his taxes were unpaid. Lastly, the court took into account the victims in the case and the defendant’s failure to pay restitution.

Regarding mitigating factors, the court acknowledged that the defendant lacked a prior disciplinary record. Additionally, the court contemplated that the defendant never had been charged with the failure to pay his taxes. The court recognized the defendant’s arguments that his misrepresentation, if any, was passive and that restitution was unnecessary here. Further, the court took into account that the defendant suffered injury to his reputation and financial losses, including the forfeiture of his prestigious home and luxury cars, that his children no longer attend private school and that the defendant suffered embarrassment resulting from the proceedings. After balancing the aggravating and mitigating factors in light of the defendant’s violations of rule 8.4 (3), the court imposed a five year suspension from the practice of law.

Although, the defendant cites numerous cases in which the attorneys subject to discipline received less severe sanctions, we are unpersuaded that the court abused its discretion in the present case in suspending the defendant’s license to practice law for five years. Given the record before the court and the court’s consideration of both aggravating and mitigating factors, we cannot conclude that the court acted unreasonably, unconscionably or arbitrarily. See Statewide Grievance Committee v. Glass, supra, 46 Conn. App. 480. “[0]f paramount importance in attorney disciplinary matters is ‘the protection of the court, the profession of the law and of the public against offenses of attorneys which involve their character, integrity and professional standing.’ ” Statewide Grievance Committee v. Shluger, supra, 230 Conn. 681, quoting Grievance Committee v. Broder, 112 Conn. 263, 265, 152 A. 292 (1930). We conclude that the court properly exercised its discretion in suspending the defendant from the practice of law for five years.

VI

The defendant finally claims that the composition of the reviewing subcommittee of the grievance committee violated his due process rights because it was comprised of only one attorney and one lay person, as opposed to two attorneys and one nonattomey. We disagree.

At the hearing before the reviewing committee, the defendant failed to object to the composition of the committee. “We have held that the failure to raise a procedural claim or the failure to utilize a remedy available to cure a procedural defect can constitute a waiver of the right to object to the alleged defect.” Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 95, 596 A.2d 374 (1991). We conclude that the defendant’s failure to object to the composition of the reviewing committee during the hearing constitutes a waiver of this claim. See Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       Rule 8.4 (3), formerly Rule 8.4 (c), of the Rules of Professional Conduct provides that it is professional misconduct for a lawyer to “[ejngage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”

       The judges of the Superior Court on October 1, 1986, adopted the Rules of Professional Conduct, which replaced the Code of Professional Responsibility as the guiding authority in Connecticut for attorney conduct.

       The Rules of Professional Conduct have been adopted by the judges of the Superior Court and “govern the professional rights and obligations of attorneys practicing law in Connecticut.” Statewide Grievance Committee v. Botwick, 226 Conn. 299, 301 n.4, 627 A.2d 901 (1993).

       The defendant and the Picards vigorously disagreed over the purchase price of the property. The defendant claimed that the price was fixed at $330,000, while the Picards claimed that the price was $300,000. The trial court did not resolve the amount of the actual purchase price of the property.

       Practice Book § 2-32 (a) provides in relevant part: “Any person, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. ...”

       Practice Book § 2-32 (b) provides in relevant part: “The statewide bar counsel, chair or attorney designee and nonattomey member shall have fourteen days from the date the complaint was filed to determine whether to dismiss the complaint. If after review by the statewide bar counsel . . . it is determined that the complaint should be forwarded to a grievance panel for investigation . . . the complaint shall be so forwarded . . . .”

       Under Practice Book § 2-32 (f), “[t]he grievance panel . . . shall investigate each complaint to determine whether probable cause exists that the attorney is guilty of misconduct.” Practice Book § 2-32 (i) provides in relevant pari: “The panel shall, within one hundred and ten days from the date the complaint was referred to it, file . . . with the statewide grievance committee: its written determination concerning whether probable cause exists that the respondent is guilty of misconduct . . . “If the grievance panel determines that probable cause exists that the respondent is guilty of misconduct, the statewide grievance committee or the reviewing committee shall hold a hearing on the complaint. . . .” Practice Book § 2-35 (c).

       “Within ninety days of the date the grievance panel filed its determination of probable cause or no probable cause with the statewide grievance committee, the reviewing committee shall render a final written decision dismissing the complaint, imposing sanctions and conditions as authorized by Section 2-37 or directing the statewide bar counsel to file a presentment against the respondent in the superior court and file it with the statewide grievance committee. . . .” Practice Book § 2-35 (e).

       The defendant argues that his actions amounted to, at most, passive misrepresentation. Under the circumstances present here, however, we view passive misrepresentation as a euphemism for fraudulent nondisclosure.

       The presentment provides in relevant part:
      “6. At the time the mortgage loans were obtained, the [defendant] had not paid the amounts shown as due and owing on the tax returns.
      “7. The [defendant] did not disclose to either of the lenders, including the sellers, that said taxes had not been paid at the time the tax returns were provided or at any time prior to obtaining the mortgage loans.
      “8. The [defendant] further provided a Uniform Residential Loan Application in which the [defendant] represented that he was not delinquent or in default on any federal debt or any other financial obligation, despite the unpaid federal tax liability.
      “9. The [defendant] violated Rule 8.4 (3) (formerly Rule 8.4 (c)) of the Rules of Professional Conduct by providing the tax returns but not disclosing to the lender and sellers that the tax liability represented in the returns had not been paid.
      “10. The [defendant] violated Rule 8.4 (3) . . . by falsely representing on the Uniform Residential Loan Application that he was not delinquent on any federal debt or other financial obligation.”

       Practice Book § 2-38 (f) provides in relevant part: “Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee as to the weight of the evidence on questions of fact. . . .”

       Although the Standards have not been formally adopted by the judges of this state, trial courts may rely on the Standards for guidance when a particular rule of professional conduct, in this case rule 8.4, does not provide guidelines for ascertaining the proper sanction for attorney violations. Statewide Grievance Committee v. Shluger, supra, 230 Conn. 673 n.10; Statewide Grievance Committee v. Glass, supra, 46 Conn. App. 481.

       Standard 3.0 of the American Bar Association’s Standards for Imposing Lawyer Sanctions provides: “In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors: (a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.”

       Standard 9.1 of the American Bar Association’s Standards for Imposing Lawyer Sanctions provides: “After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose.”

       Standard 9.21 of the American Bar Association’s Standards for Imposing Lawyer Sanctions provides that the presence of aggravating factors may justify an increase in the severity of the discipline imposed. Under Standard 9.22, aggravating factors include but are not limited to: “(b) dishonest or selfish motive . . . (d) multiple offenses ...(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim . . . Q) indifference to making restitution; (k) illegal conduct . . . .”

       Standard 9.31 of the American Bar Association’s Standards for Imposing Lawyer Sanctions instructs that the existence of mitigating factors may justify a reduction in the degree of discipline to be imposed. Pursuant to Standard 9.32, mitigating factors include the absence of a prior disciplinary record, personal or emotional problems, a good faith effort to make restitution or to rectify the consequences of misconduct, character or reputation, and the imposition of other penalties or sanctions.

       Practice Book § 2-35 (a) provides in relevant part: “Upon receipt of the record from a grievance panel, the statewide grievance committee may assign the case to a reviewing committee which shall consist of at least three members of the statewide grievance committee, at least one third of whom are not attorneys. . . .”