author: BEACH, J.

text:
    JEROME G. TERRACINO ET AL. v. ANDREW J. BUZZI ET AL.
    (AC 30543)
    Lavine, Beach and Robinson, Js.

      Argued January 5
    officially released June 22, 2010

      Michael S. Lynch, for the appellants (plaintiffs).

      Leonard M. Isaac, for the appellee (named defendant).

      Paul A. Sobel, for the appellees (defendant Robert Rossman et al.).
   Opinion

BEACH, J.

The plaintiffs, Patricia Morasco, the administratrix of the estate of Jerome G. Terracino, and Guardian Systems, Inc. (Guardian), appeal from the judgment of the trial court rendered after it granted, in part, the motions for summary judgment filed by the defendants, Andrew J. Buzzi, Catherine Rossman and Robert Rossman, and after the plaintiffs withdrew their remaining claim. The plaintiffs claim that the court improperly concluded that their claims were barred by collateral estoppel. We disagree and affirm the judgment of the trial court.

The relevant background facts are set forth in Terracino v. Fairway Asset Management, Inc., 75 Conn. App. 63, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003), as follows. “On July 19,1991, [Mutual Communications Associates, Inc. (Mutual)] entered into a loan agreement with Brookfield Bank (Brookfield) to borrow $270,000. Mutual, through two of its corporate officers, [Richard T.] DeMarsico and Terracino, signed a promissory note for the loan amount. Mutual secured the debt by a mortgage on one of its properties. DeMarsico, Terracino and [Robert] Rossman, another corporate officer, signed personal guarantees as well. Terracino and [Robert] Rossman signed an additional guarantee as principals and officers of Guardian, an alarm company in which they were the only shareholders.

“On May 8, 1992, the Federal Deposit Insurance Corporation (FDIC) took possession of Brookfield’s assets, including the promissory note, mortgage and guarantees. At about the same time, Mutual defaulted on the loan. On or about November 30, 1994, the FDIC commenced a foreclosure action against Mutual and the other defendants. A judgment of foreclosure by sale was rendered on December 16, 1996.

“Thereafter, the judgment was opened and a judgment of strict foreclosure was rendered with law days commencing March 25, 1997. Prior to the judgment of strict foreclosure, JLM Services Corporation (JLM) succeeded the FDIC as plaintiff, and title vested in JLM when Mutual failed to redeem its equity within the set law days. JLM filed a motion for a deficiency judgment on April 1, 1997. . . .

“While JLM’s motion was pending, relations between guarantors Terracino and [Robert] Rossman deteriorated, as the two became embroiled in various business disputes. Also, during that time, Rossman allegedly asked his friend and attorney, [Buzzi], to attempt to purchase the note, guarantees and deficiency claim from JLM on his behalf. JLM eventually sold the note, guarantees and deficiency claim to Andrew J. Buzzi, Jr., Trustee for $30,000. Buzzi, in turn, assigned the note, guarantees and deficiency claim to Consolidated Asset Management, LLC (Consolidated), a limited liability company that he had formed with [Robert] Ross-man’s wife, Catherine Rossman. Thereafter, Consolidated assigned the note, guarantees and deficiency claim to Fairway Asset Management, Inc. (Fairway), [which became] the substituted plaintiff and judgment creditor. . . .

“[Terracino and Guardian] filed three special defenses, a cross complaint and a counterclaim in response to the motion for a deficiency judgment. The special defenses, as amended, alleged facts that occurred subsequent to the judgment of strict foreclosure. The defendants claimed that [Robert] Rossman breached the fiduciary duty that he owed them because of his role in assigning the note to Consolidated .... The counterclaim and cross complaint . . . requested a judgment that Fairway and its predecessors could enforce the note only to claim a proportionate contribution toward funds actually paid on behalf of [Robert] Rossman for the note, or a judgment declaring the note null and void. ... At trial, Buzzi testified that he did not purchase the note on behalf of [Robert] Rossman. He testified, instead, that he had purchased the note on behalf of Consolidated.

“The court [DiPentima, J.] granted the motion for a deficiency judgment. It rejected the third special defense and concluded that there was insufficient evidence to find that either Buzzi or Catherine Rossman acted as [Robert] Rossman’s agent [in purchasing the note from JLM], and, therefore, there was no need to address the defendants’ other claims premised on a theory of agency. The court also concluded that the defendants had not met their burden of proof on the counterclaim and cross claim. . . . On or about January 28,2000, the court rendered judgment for the substitute plaintiff, Fairway, in the amount of $324,631.08, plus attorney’s fees. Thereafter, Terracino and Guardian appealed to this court from that judgment. This court, with Chief Judge William J. Lavery dissenting, affirmed the judgment of the trial court. . . .

“While the appeal in Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., [66 Conn. App. 397, 784 A.2d 970 (2001), appeal dismissed, 262 Conn. 358, 814 A.2d 377 (2003)], was pending, the plaintiffs, Terracino and Guardian, filed ... [a] petition for a new trial on the ground that they had discovered new evidence that likely would have produced a different result had it been presented to the court during the trial. That new evidence consisted of three pieces of correspondence, which, some four months after judgment had entered in the original action, counsel for [Terracino and Guardian] received from the law firm that had represented JLM in conjunction with its sale of the note, guarantees and deficiency claim to Buzzi. In their petition, [Terracino and Guardian] claimed that the new evidence demonstrated that JLM had accepted [Robert] Rossman’s offer to purchase the note and, therefore, the defenses that [Terracino and Guardian] raised in the original trial were applicable. They also claimed that Buzzi, [Robert] Rossman and Rossman’s wife, Catherine Rossman, prevented them from discovering that correspondence before or during the trial, and that the correspondence demonstrated that Buzzi and the Rossmans testified falsely at trial that Buzzi had not purchased the note, guarantees and deficiency claim from JLM on behalf of [Robert] Rossman. Finally, [Terracino and Guardian] claimed that the testimony of Buzzi and the Rossmans was intended to mislead the court and to prevent [Terracino and Guardian] from fairly presenting their defenses to Fairway’s claims.

“In a memorandum of decision filed March 8, 2001, the court [DiPentima, J.] denied [Terracino’s and Guardian’s] petition for a new trial. It concluded that although the evidence presented by [Terracino and Guardian] had, in fact, been newly discovered and would be material to the issue of whether Buzzi had purchased the note on behalf of [Robert] Rossman, the plaintiffs failed to demonstrate that they had exercised due diligence in their efforts to discover that evidence prior to trial.” (Citations omitted; internal quotation marks omitted.) Terracino v. Fairway Asset Management, Inc., supra, 75 Conn. App. 65-68.

We turn now to the present case. On January 23, 2006, the plaintiffs filed a second revised complaint, which alleged “civil fraud” (count one), “civil conspiracy to commit fraud” (count two) and indemnification (count three) against the defendants. Only Terracino also alleged a claim for emotional distress (count four). On June 20, 2007, Robert Rossman and Catherine Ross-man filed an answer and asserted three special defenses, including, inter alia, collateral estoppel. On that same date, Buzzi and the Rossmans filed motions for summary judgment as to all claims against them.

The court, Cremins, J., granted the motions for summary judgment as to counts one, two and four of the complaint as to all defendants. It granted Buzzi’s motion as to count three and the Rossmans’ motion as to count three but only as to Catherine Rossman. The plaintiffs subsequently withdrew count three as to Robert Ross-man. The plaintiffs then appealed. Additional facts will be set forth as necessary.

Judge Cremins concluded, as a matter of law, that the plaintiffs’ claims were barred by principles of collateral estoppel in that a determinative issue had been decided adversely to them in a prior action. The plaintiffs claim that the court’s conclusion in this regard was erroneous. We disagree.

We first set forth our 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. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... 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.” (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).

“Whether the . . . doctrine of collateral estoppel [is applicable] is a question of law for which our review is plenary. . . . Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . [Thus] [i]ssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment. . . . The doctrine of collateral estoppel express [es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest. . . .

“Before collateral estoppel applies . . . there must be an identity of issues between the prior and subsequent proceedings. To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.” (Citations omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 100 Conn. App. 94, 99, 917 A.2d 555, cert. denied, 282 Conn. 914, 924 A.2d 140 (2007). “Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party.” Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 303, 596 A.2d 414 (1991).

The determinative question is whether a dispositive issue raised by the plaintiffs in the present case was litigated and determined in an earlier action. Like Judge Cremins, we begin our analysis by turning to the decision of Judge DiPentima in the initial foreclosure action, Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-95-0067158 (October 20, 1999). In that case, as noted previously, JLM moved for a deficiency judgment against Mutual, DeMarsico, Robert Rossman, Terracino and Guardian. Terracino and Guardian filed special defenses, a counterclaim and cross claim against Robert Rossman. In the special defenses, Terracino and Guardian alleged that enforcement of the note was inequitable because “[Robert] Rossman breached his fiduciary duty owed to [them] by his role in the assignment of the note to a limited liability company owned by his wife and his attorney.” In describing the pleadings, Judge DiPentima noted that “[t]he thrust of the defense here is that when [Robert] Rossman’s wife and attorney formed a limited liability corporation to purchase the note and deficiency, they were acting on [Robert] Rossman’s behalf. With this premise, they argue that [Robert] Rossman’s actions constitute a breach of fiduciary duty owed to [Terracino and Guardian] that is now attributable to the present plaintiff, who is not a holder in due course.” Id. Terrac-ino and Guardian’s counterclaim and cross complaint were based on the same facts alleged in the special defenses, and they requested “a judgment that [the FDIC] and its predecessors may not enforce the note except to claim equitable proportionate contribution toward funds actually paid on behalf of [Robert] Ross-man for the note or a judgment declaring the note null and void.”

The court found that “ [Robert] Rossman never owned the note. There was no evidence of an agreement with [Fairway] not to pursue judgment against [Robert] Rossman.” In granting the motion for a deficiency judgment, the court found that Terracino and Guardian had not met their burden of proof on their counterclaim and cross claim. The court determined that there was not sufficient evidence to find that either Buzzi or Catherine Rossman were acting as agents for Robert Ross-man and concluded that neither Robert Rossman or any agents of Robert Rossman had purchased the note, guarantee and debt. The court stated that because it “concludes that neither [Robert] Rossman nor his agents purchased the note, guarantee and debt, it need not address [Terracino and Guardian’s] arguments premised on the opposite conclusion.” Id. Terracino and Guardian appealed from the deficiency judgment rendered against them, and this court affirmed the decision of the trial court. Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., supra, 66 Conn. App. 397.

The issues of whether Robert Rossman owned the note and whether Buzzi or Catherine Rossman were acting as Robert Rossman’s agent were actually litigated and necessarily determined in the action on the motion for a deficiency judgment. The plaintiffs contend, however, that this determination was necessary only to determine the chain of title to the note and, thus, was not essential to the judgment. We do not agree. After finding that Terracino and Guardian did not prove that Robert Rossman or his agents purchased the note, the court concluded that it did not need to address the arguments of Terracino and Guardian that were premised on the opposite conclusion. The court found against Terracino and Guardian on their special defenses and cross claim precisely because they did not prove that Robert Rossman or his agents purchased the note. The absence of agency was necessary to the court’s decision.

The issue of whether Robert Rossman owned the note, by virtue of Buzzi’s or Catherine Rossman’s acting as Robert Rossman’s agent, is necessary for recovery on the complaint in issue. All four counts of the plaintiffs’ complaint are based on the following allegations. Robert Rossman and Terracino, recognizing that they were obligated to JLM as guarantors of the note, agreed to negotiate together with JLM to purchase it for a discounted amount and then to retire it. While negotiations with JLM were ongoing, relations between Robert Rossman and Terracino began to deteriorate. Robert Rossman thought that if he could acquire the promissory note from JLM by himself, instead of jointly with Terracino, he could enforce it against Terracino and Guardian, thereby securing a financial windfall and possibly forcing Guardian out of business or into bankruptcy. According to Buzzi’s advice, the note would become unenforceable against Terracino and Guardian if Robert Rossman took ownership of it because Robert Rossman was a coguarantor of the note. Therefore, Buzzi and the Rossmans devised a plan whereby Buzzi would take assignment of the note as trustee for Robert Rossman and would then transfer the note to Consolidated, a limited liability company created and owned by Buzzi and Catherine Rossman. The plan was executed, and the defendants pursued the action for a deficiency judgment previously filed by JLM against Terracino and Guardian. During that proceeding, the Rossmans and Buzzi withheld evidence regarding the note transaction, which evidence was later the subject of the plaintiff’s petition for a new trial, in order to mislead Terracino’s attorney, Terracino and Guardian into believing that Robert Rossman never owned the note and that, as a result, the note was still enforceable against Terracino and Guardian. The plaintiffs claim that as a result of the defendants’ actions, they suffered harm. In the count alleging “civil fraud,” the plaintiffs further allege that they suffered harm as a result of the defendants’ fraudulent actions, namely, withholding critical statements or testimony regarding the note transaction, which, if disclosed, would have changed the result. The count alleging “civil conspiracy to commit fraud,” is premised on the plaintiffs’ allegations that Buzzi and the Rossmans devised a plan whereby they agreed not to disclose the true facts and circumstances of the transaction, namely, that Robert Ross-man had acquired the note, so that they could enforce the note against the plaintiffs or influence the entry of a judgment against the plaintiffs. In the common-law indemnification claim, the plaintiffs further allege that the court, misled by inaccurate testimony, improperly concluded that Robert Rossman never owned the note. In his emotional distress claim, Terracino further alleges that as a result of the defendants’ actions, he suffered emotional distress.

The essence of the complaint is that Robert Rossman devised a plan with Catherine Rossman and Buzzi whereby Robert Rossman would, in effect, acquire the note, and all three would fraudulently keep this fact from the plaintiffs during litigation. The complaint is premised on the assertion that either Robert Rossman or his agents purchased the note from JLM. All agree that Robert Rossman never owned the note in an individual capacity; if no one acted as his agent, the summary judgment was rendered properly because the dispositive issue of Robert Rossman’s ownership was necessarily decided in the previous case.

The plaintiffs claim additionally that in granting in part the defendants’ motions for summary judgment, Judge Cremins improperly failed to consider the findings of fact made in the court’s ruling on the plaintiffs’ petition for a new trial in the foreclosure action. We disagree.

In the memorandum of decision on the plaintiffs’ petition for a new trial, Judge DiPentima stated: “As to the element of materiality, the court determines that this newly discovered evidence would affect some of the court’s findings in the original action, specifically that Buzzi was unsuccessful in negotiating the purchase of the note by Rossman. In fact, exhibit one shows that JLM accepted the last offer by Buzzi on behalf of Rossman for $30,000.” The plaintiffs argue that these findings are significant in that they demonstrate that the court recognized that its initial finding regarding Buzzi’s and Catherine Rossman’s involvement in the note acquisition, including the finding that they were not agents of Robert Rossman, was erroneous. The plaintiffs contend that in ruling on the defendants’ motions for summary judgment, Judge Cremins properly should have considered these subsequent findings because they directly concern the issue of agency and more accurately reflect the available evidence. If the court had considered these findings, the plaintiffs argue, it would have concluded either that issues of material fact remain or that the issue was resolved in favor of the plaintiffs because it was clear from the newly discovered evidence that Robert Rossman in effect pm-chased the note with the assistance of Catherine Ross-man and Buzzi.

Judge DiPentima’s decision on the petition for a new trial does not affect the applicability of collateral estop-pel in the present case. While the court, in ruling on the plaintiffs’ petition for a new trial, commented on the effect that the newly discovered evidence might have had on its findings in the original action, it denied the plaintiffs’ petition. The court’s decision in the foreclosure action is a final judgment, and the court’s denial of the petition for a new trial does not affect the finality of that judgment. To the extent that the plaintiffs are now claiming that the court’s decision in the foreclosure action is erroneous, that claim does not affect the applicability of the doctrine of collateral estoppel in this case. “Unless, and until, it is corrected, modified, reversed, annulled, vacated, or set aside on appeal or in some other timely and appropriate proceeding, a final judgment on the merits which has been rendered by a court having jurisdiction of the parties and the subject matter, and which is not void, is conclusive as to matters put in issue and actually determined in the suit, when they come into controversy again in subsequent litigation between the same parties or their privies, even though it is irregular or erroneous. Under the [doctrine] of . . . collateral estoppel, a later court cannot alter the results of a prior final judgment even if that judgment is wrong . . . .” 50 C.J.S., Judgments § 1047, p. 405 (2009). The court’s denial of the petition does not affect the fact that in the foreclosure action, the issues of agency and note ownership were actually litigated and necessarily determined. As such, the court’s subsequent denial of the petition for a new trial leaves the prior decision intact.

In the petition for a new trial, the plaintiffs alleged that three pieces of newly discovered evidence, namely, correspondence between Buzzi and the attorney for JLM dated July 2 and 3, 1997, would affect the court’s finding in the original action that Buzzi was unsuccessful in negotiating the purchase of the note by Robert Rossman. Following the denial of the petition, the plaintiffs alleged in their complaint in the present action that after the deficiency hearing, but during the pendency of the appeal, the newly discovered critical evidence, namely, the letters dated July 2 and 3, 1997, which demonstrate that Robert Rossman personally acquired the note, thus rendering the note unenforceable against the plaintiffs. The plaintiffs, in their complaint in the present action, are attempting to relitigate the issue of whether Robert Rossman had an ownership interest in the note, which issue already was litigated in the foreclosure action. “Under the issue preclusion doctrine, a party may not be permitted to introduce new or different evidence to relitigate a factual issue which was presented and determined in a former action. Litigation of an issue necessarily encompasses all arguments and evidence that could-be presented to resolve the issue, and the mere discovery of new evidence does not create a new issue, in the issue preclusion context. . . . Some degree of diligence must be shown to avoid the application of issue preclusion on a ‘new evidence’ theory . . . .” 50 C.J.S., supra, § 1061, p. 424. The “new evidence” that formed the basis for the plaintiffs’ petition for a new trial, and which forms the basis of the plaintiffs’ allegation in their present complaint that Robert Rossman owned the note does not create a new issue in the collateral estoppel context. In denying the plaintiffs’ petition for a new trial, Judge DiPentima reasoned that the plaintiffs failed to demonstrate that they had exercised due diligence in their efforts to discover that evidence prior to trial. The plaintiffs are unable to avoid the application of collateral estoppel. The plaintiffs had a full and fair opportunity to litigate the issues of whether Robert Rossman owned the note and whether Buzzi or Catherine Rossman were acting as Robert Rossman’s agent. Nothing in the record before us, or in the briefs and arguments of counsel, provides any justification for departing from the doctrine of collateral estoppel to allow the plaintiffs an opportunity to relitigate these issues. It was not improper for the court, in ruling on the defendants’ motions for summary judgment, to decline to consider any finding in the court’s memorandum of decision on the petition for a new trial. “[T]he judicial [doctrine] of . . . collateral estoppel [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” (Internal quotation marks omitted.) Honan v. Dimyan, 63 Conn. App. 702, 706-707, 778 A.2d 989, cert. denied, 258 Conn. 942, 786 A.2d 430 (2001). The court properly granted Buzzi’s motion for summary judgment and properly granted, in part, the Rossmans’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       During the pendency of the lawsuit, Terracino died, and Patricia Morasco, his wife, was substituted as a plaintiff as the administratrix of his estate. We refer in this opinion to Morasco and Guardian as the plaintiffs.

       During the pendency of the deficiency action, a limited liability company owned by Buzzi or Catherine Rossman, had in some capacity purchased the note.

       Fairway had been assigned the note by the limited liability company formed by Buzzi and Catherine Rossman.

       But see Terracino v. Gordon & Hiller, 121 Conn. App. 795, 1 A.3d 97 (2010). In a case arising from the same factual background, this court has held that, by virtue of the language of the guarantee, the note is fully enforceable against Terracino in any event.

       We note that “there is no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself. . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.” (Citations omitted; internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 779 n.37, 835 A.2d 953 (2003).

       This count depends on the underlying claim that Buzzi was Robert Ross-man’s agent. The count essentially alleges that the defendants conspired to conceal the truth concerning the agency relationship.

       We further note that there is no civil remedy for perjury. See DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991) (“[w]hile no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness’ statements”); see also Petyan v. Ellis, 200 Conn. 243, 245, 510 A.2d 1337 (1986) (“[i]t has long been established that there is an absolute privilege for statements made in judicial proceedings”).

       The court denied the motion for summary judgment as to count three as to Robert Rossman, and the propriety of the denial is not before us.

       The issue of diligence was addressed by Judge DiPentima in denying the petition for a new trial as well.

       The plaintiffs seem to argue, however, that collateral estoppel does not apply because the court’s decision in the foreclosure action did not encompass issues raised by the plaintiffs in the present action, such as whether Buzzi and the Rossmans conspired to acquire the note, what they did with the note after they acquired it, and whether they testified falsely and misled the plaintiffs. Collateral estoppel requires that there be an identity of issues between prior and subsequent proceedings. Williams v. Commissioner of Correction, supra, 100 Conn. App. 99. Even though the only issues that are identical in both actions are agency and ownership of the note, collateral estoppel applies because the plaintiffs cannot prevail on the causes of action alleged if the allegations as to these issues are not proved. Once these issues are taken not to be proved, then the complaint, which is dependent on these allegations, must fail. It is of no moment that the court in the foreclosure action did not decide each and every allegation in the complaint.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WELLS FARGO BANK, N.A., ET AL. v. JOHN J. DORAN ET AL.
    (AC 30951)
    Bishop, Beach and Borden, Js.
    Argued April 20
    officially released May 18, 2010
   Per Curiam.

The judgment is affirmed.


text:
    JEFFREY J. DONTIGNEY v. O & G INDUSTRIES, INC.
    (AC 30917)
    DiPentima, C. J., and Robinson and Hennessy, Js.
    Argued April 20
    officially released May 18, 2010
   Per Curiam.

The judgment is affirmed.


text:
    MAUREEN WALSH v. DEAN MOBERG
    (AC 31357)
    Beach, Alvord and West, Js.
    Argued April 21
    officially released May 18, 2010
   Per Curiam.

The judgment is affirmed.


text:
    FIRST CONNECTICUT CAPITAL, LLC, ET AL. v. JOHN J. DORAN ET AL.
    (AC 30871)
    Bishop, Beach and Borden, Js.
    Argued April 20
    officially released May 18, 2010
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new foreclosure sale date.


text:
    HOUSEHOLD REALTY CORPORATION v. CHRISTOPHER CIMMINO ET AL.
    (AC 31259)
    Bishop, Beach and West, Js.
    Argued May 17
    officially released June 8, 2010
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. NEMIAH ALLEN
    (AC 31488)
    DiPentima, C. J., and Bear and Pellegrino, Js.
    Argued May 17
    officially released June 8, 2010
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. SASHA KOPPEL
    (AC 31329)
    Harper, Beach and Hennessy, Js.
    Argued May 18
    officially released June 8, 2010
   Per Curiam.

The appeal is dismissed.


text:
    VINCENT ARTESE v. JOANN ARTESE
    (AC 31261)
    DiPentima, C. J., and Alvord and Foti, Js.
    Submitted on briefs May 18
    officially released June 8, 2010
   Per Curiam.

The judgment is affirmed.


text:
    RICHARD R. PALKIMAS v. ZDZISLAW GORSKI
    (AC 31078)
    Harper, Alvord and Peters, Js.
    Argued May 21
    officially released June 15, 2010
   Per Curiam.

The judgment is affirmed.


text:
    DEBORAH NAPOLITANO v. MARK J. NAPOLITANO
    (AC 30415)
    Bishop, Gruendel and Harper, Js.
    Argued May 20
    officially released June 15, 2010
   Per Curiam.

The judgment is affirmed.


text:
    DEBORAH NAPOLITANO v. MARK J. NAPOLITANO
    (AC 30416)
    Bishop, Gruendel and Harper, Js.
    Argued May 20
    officially released June 15, 2010
   Per Curiam.

The judgment is affirmed.


text:
    DEBORAH NAPOLITANO v. MARK J. NAPOLITANO
    (AC 30761)
    Bishop, Gruendel and Harper, Js.
    Argued May 20
    officially released June 15, 2010
   Per Curiam.

The judgment is affirmed.


text:
    IN RE JOHNNA R.
    (AC 31460)
    DiPentima, C. X, and Graendel and Hennessy, Js.
    Argued May 24
    officially released June 15, 2010
   Per Curiam.

The judgment is affirmed.


author: MCDONALD, J. FLYNN, C. J.,

text:
    STATE OF CONNECTICUT v. TYEHIMBA A. ADEYEMI
    (AC 30739)
    Flynn, C. J., and Graendel and McDonald, Js.

      Argued November 18, 2009
    officially released June 22, 2010

      Heather M. Wood, assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

MCDONALD, J.

The defendant, Tyehimba A. Adeyemi, appeals from the judgment of conviction, rendered after a jury trial, of accessory to murder in violation of General Statutes §§ 53a-54a and 53a-8, felony murder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-48, and attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (3). On appeal, the defendant claims that (1) the trial court improperly admitted detailed evidence of his escape following his arrest and (2) the state engaged in prose-cutorial impropriety during cross-examinations and closing argument, thereby depriving him of his due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant had been a friend of the victim, Matthew Barrett, for about three months when the victim sold the defendant an automobile in early March, 2005. The victim was a car salesman at Best Buy Auto in New Haven. Sometime before May 5, 2005, the defendant and the victim had a falling out.

On May 5, 2005, the defendant met Craig Davis in a diner near the dealership, and they discussed robbing the victim, who sometimes carried a wallet containing money to buy automobiles at auctions. The defendant and Davis went to Best Buy Auto, where Davis repeatedly stabbed the victim with a box cutter and a knife and struck the victim’s head with a shovel. The defendant also struck the victim’s head with a fire extinguisher because the victim had called the defendant a sex offender.

Shortly thereafter, the victim’s friend, Kraushon Clark, entered Best Buy Auto while simultaneously calling the victim’s cellular telephone. After hearing voices and the victim’s cellular telephone ringing in the garage, Clark knocked on the garage door. Davis opened the door wide enough for Clark to see the victim in a pool of blood on the floor. Davis then swung a shovel at Clark, who ran from the scene. As the defendant and Davis fled, the defendant picked up the victim’s cellular telephone and dropped it while running in the Best Buy Auto parking lot. The defendant and Davis ran until they reached the defendant’s car. While they were driving, Davis paid the defendant $300 to satisfy a prior debt from the $1500 now in Davis’ possession. When the police arrived at the scene, they did not find the victim’s wallet or money.

When Davis and the defendant reached Davis’ house, both of them changed their bloody clothing. After the crimes took place that morning, the defendant fled from Connecticut and did not return until May 25, 2005, a day before he gave a taped statement to the New Haven police. The defendant subsequently was arrested on June 30, 2005. Other facts will be discussed as they become relevant.

I

The defendant first claims that the court improperly admitted prejudicial evidence concerning the details of his escape from the custody of the department of correction on July 6, 2005. The defendant argues that the admission of the details concerning his theft of clothing, bicycles and a garbage truck was irrelevant, prejudiced the jury and violated his federal constitutional right to a fair trial implicit in the fourteenth amendment to the United States constitution. We disagree.

The following additional facts were presented at trial. On July 6, 2005, about two weeks after his arrest, while in the custody of the department of correction, the defendant escaped from Yale-New Haven Hospital where he was undergoing medical treatment. In a written statement to the state police after he was apprehended, the defendant stated that after he fled from the hospital, he ran through backyards, taking a red bicycle and some clothes off a clothes line. He rode the bicycle to a Mend’s house looking for help. Once he had showered and changed, his friend gave the defendant some money and drove him to the comer of Mansfield and Tilton Streets in New Haven. There, he tried to contact other friends but was unsuccessful. The defendant then stole another bicycle from Hazel Street in New Haven. When he reached Ella T. Grasso Boulevard in New Haven, he stole a garbage truck parked next to a dumpster. He drove the tmck to Arthur Street and Lamberton Street, where he picked up prostitutes and drove them from New Haven to the Milford rest area on Interstate 95. Because the prostitutes had promised him money after they worked, he then waited for about an hour and drove the prostitutes back to Arthur Street. The prostitutes did not give him the money as promised, so he drove back to where he had stolen the track. He left the truck and walked back toward West Haven, where he stole another bicycle and rode it to the West Haven beach. The next day, he sold the bicycle and walked back to New Haven. Finally, a day later, he turned himself in to the New Haven police department.

At trial, the defendant did not object to the admission of evidence concerning the escape itself, but he did object to the introduction of his written statement given to the state police when he turned himself in, concerning his theft of clothing, bicycles and the garbage truck. According to the defendant, such evidence was irrelevant and particularly prejudicial because it improperly allowed the jury to infer that because the defendant had a propensity to commit theft, he also had a propensity to participate in the brutal killing and robbery of the victim. The state countered that such evidence was relevant to show the defendant’s state of mind, as the conduct was part of the defendant’s escape from custody and showed that he desperately sought funds to flee from Connecticut. The court overruled the defendant’s objection and allowed the state to introduce the defendant’s statement in its entirety. The court found that the evidence of this conduct was relevant and material to show the defendant’s state of mind.

Generally, “[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. . . . Nevertheless, Connecticut Code of Evidence § 4-5 (b) provides: Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. . . . The list of exceptions provided in the code of evidence is not exclusive but rather is intended to be illustrative.” (Citations omitted; internal quotation marks omitted.) State v. Damato, 105 Conn. App. 335, 353, 937 A.2d 1232, cert. denied, 286 Conn. 920, 949 A.2d 481 (2008). Our Supreme Court has recognized state of mind as such an exception. State v. Meehan, 260 Conn. 372, 395-96, 796 A.2d 1191 (2002).

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, [the court has] adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence. . . .

“[An appellate court’s] standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Damato, supra, 105 Conn. App. 353-54. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) Id., 352. “In [State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006) (en banc)], our Supreme Court explained that a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Davis, 98 Conn. App. 608, 628, 911 A.2d 753 (2006), aff'd, 286 Conn. 17, 942 A.2d 373 (2008).

In this case, the state offered evidence of the defendant’s theft of clothing, bicycles and a garbage truck, following his escape from custody, for the purpose of establishing consciousness of guilt. Although the court and the parties never expressly used the term “consciousness of guilt” at trial, we recognize it to be synonymous with “state of mind.” Our Supreme Court has recognized that evidence of uncharged misconduct is admissible when the evidence is offered to prove the defendant’s state of mind. State v. Meehan, supra, 260 Conn. 395-96.

This court has observed that “consciousness of guilt [evidence] goes to the question of the defendant’s state of mind, a determination which in turn requires an assessment of the defendant’s motivations .... In seeking to introduce evidence of a defendant’s consciousness of guilt, [i]t is relevant to show the conduct of an accused ... as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.” (Internal quotation marks omitted.) State v. Davis, supra, 98 Conn. App. 628.

We conclude that the court did not abuse its discretion in admitting into evidence the defendant’s written statement concerning his theft of clothing, bicycles and a garbage truck. The evidence of the defendant’s uncharged misconduct was not introduced for the purpose of demonstrating that because the defendant had committed other criminal offenses, it was likely that he had committed the crimes with which he had been charged. Rather, it was offered as consciousness of guilt evidence. Our Supreme Court has stated: “The state of mind which is characterized as guilty consciousness or consciousness of guilt is strong evidence that the person is indeed guilty • • • and under proper safeguards ... is admissible evidence against an accused.” (Citation omitted; internal quotation marks omitted.) State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986).

The jury reasonably could have inferred that the defendant’s escape and subsequent details of the escape indicated consciousness of guilt. This court has stated that “[a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Erhardt, 90 Conn. App. 853, 861-62, 879 A.2d 561, cert. denied, 276 Conn. 906, 884 A.2d 1028 (2005). Here, the jury heard evidence of the defendant’s escape and that the defendant conspired with Davis to rob the victim, robbed the victim and bludgeoned the victim’s head with a fire extinguisher. In addition, the defendant’s DNA was found on the victim’s cellular telephone in the auto dealership parking lot, he drove himself and Davis away from the crime scene, his clothes were bloody and he received $300 from Davis for a prior debt immediately after the incident. Following the incident, witnesses also testified that the defendant told them details regarding the robbery and murder before the defendant fled from Connecticut and remained out of state for approximately two weeks. Cellular telephone records also showed that the defendant and Davis called one another shortly thereafter. We, therefore, cannot conclude that the court abused its discretion when it determined that the probative value of the evidence of the theft of clothing, bicycles and a garbage truck as to the defendant’s state of mind during his escape outweighed any prejudicial impact on the jury.

Also, the limiting instruction, given during the court’s charge to the jury, minimized any unduly prejudicial impact. See State v. Anderson, 86 Conn. App. 854, 870, 864 A.2d 35 (jury presumed to follow court’s instructions absent clear evidence to contrary), cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005); see also State v. William C., 103 Conn. App. 508, 520, 930 A.2d 753 (jury presumed to have followed court’s limiting instructions, which serve to lessen any prejudice from admission of prior misconduct evidence), cert. denied, 284 Conn. 928, 934 A.2d 244 (2007). Because the court properly weighed the evidence and gave a limiting instruction that reduced its prejudicial effect, we conclude that the court did not abuse its discretion by admitting evidence of theft of clothing, bicycles and a garbage truck and any prejudice to the defendant also was avoided.

II

The defendant claims that the prosecutor’s comments during cross-examination and closing and rebuttal arguments were improper and violated his constitutional right to a fair trial. The defendant claims that the prosecutor improperly (1) expressed his personal opinion that the defendant was a liar, (2) vouched for the credibility of the state’s witnesses and (3) expressed his personal opinion regarding the defendant’s guilt or innocence. The state argues that the prosecutor’s comments were not improper, and, even if they were improper, they did not prejudice the defendant, so as to deny the defendant his due process right to a fair trial. We conclude that the prosecutor’s comments were not improper.

The defendant concedes that the prosecutorial impropriety claim is unpreserved. Our Supreme Court has explained that the. determination in these circumstances must involve application of the specific factors articulated in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), regardless of whether the defendant objected to the prosecutor’s conduct at trial.

“Accordingly, we engage in a two step analytical process when reviewing claims of prosecutorial [impropriety]. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper ....

“In the event we find that [impropriety] occurred, we must then determine the due process issue by applying the following Williams factors mandated by our Supreme Court: (1) the extent to which the [impropriety] was invited by defense conduct or argument; (2) the severity of the [impropriety]; (3) the frequency of the [impropriety]; (4) the centrality of the [impropriety] to the critical issues in the case; (5) the strength of the curative measures adopted; and (6) the strength of the state’s case. ... In addition, defense counsel’s failure to object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial . . . .” (Citations omitted; internal quotation marks omitted.) State v. Holliday, 85 Conn. App. 242, 258-59, 856 A.2d 1041 (2004), cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004).

A

The defendant claims that the prosecutor impermissi-bly expressed his personal opinion to the jury regarding the defendant’s credibility. In support of this argument, the defendant cites to numerous comments made during cross-examination and closing argument that he claims amounted to the prosecutor improperly characterizing the defendant as a liar. We disagree that the prosecutor’s comments amounted to an expression of personal opinion.

This court has stated that “the degree to which a challenged statement is supported by the evidence is an important factor in determining the propriety of that statement. Therefore, although a prosecutor may not state his or her personal opinion concerning the credibility or truthfulness of a witness, a prosecutor may comment on the credibility or truthfulness of a witness as long as the comment is grounded in the evidence.

“Furthermore, our Supreme Court has concluded that it is not improper for a prosecutor to argue that a witness is lying, provided that the jury reasonably could infer from the evidence admitted at trial that the witness is lying. In State v. Oehman, 212 Conn. 325, 334, 562 A.2d 493 (1989), the court stated that [although such invective is wholly unprofessional and has no place in a Connecticut courtroom, we conclude that the comments by the prosecutor characterizing the defendant as a liar . . . were supported by the evidence ....

“Similarly, in State v. Stevenson, [269 Conn. 563, 584, 849 A.2d 626 (2004)], the court concluded that it was not improper for a prosecutor to state that the defendant’s testimony was totally unbelievable. . . . The court reasoned that it was not improper because it was a comment on the evidence presented at trial, and it posited a reasonable inference that the jury itself could have drawn without access to the assistant state’s attorney’s personal knowledge of the case.” (Citation omitted; internal quotation marks omitted.) State v. Luther, 114 Conn. App. 799, 815-16, 971 A.2d 781, cert. denied, 293 Conn. 907, 978 A.2d 1112 (2009). In the instances cited by the defendant, the prosecutor’s argument that the defendant was not telling the truth was supported by evidence from which the jury reasonably could have inferred that the defendant was lying. See id.

The defendant cites to two of the prosecutor’s comments during cross-examination. With regard to the first comment, during direct examination, the defendant testified that he cut his hand while trying to separate Davis from the victim. On cross-examination, however, the defendant admitted that in his taped statement to the New Haven police, he never mentioned having cut his hand during the incident. With regard to the second comment, when the prosecutor questioned the defendant about his role in the incident, there were inconsistencies between his statements to the New Haven police and his statements at trial. On cross-examination, the defendant claimed that he gave significantly more details of his involvement in the incident as the detectives continually questioned him than appeared in his statement.

The defendant cites to the prosecutor’s following comments during closing argument. First, “[the defendant] was asked about that, did you make that call [to Davis]? He denied it. He denied it on the witness stand, but the records are what they are, ladies and gentlemen. Telephone records are records. They are what they are. They show what they show. They don’t lie, they are what they are. Why is he denying making that phone call? Because he knows that there is absolutely no innocent explanation that he can give for calling the sole alleged murderer in this case right after the murder takes place. Because if you believe [the defendant’s] testimony on the [witness] stand yesterday, he really didn’t want anything to do with . . . Davis after this.” Second, “I’m in New York. That’s a complete he. If you don’t believe it, all you have to do is look at state’s exhibit number 125, and these are the cell phone records from [the defendant], . . . Why are you going to lie about where you are? . . . That’s why he lied. . . . And what happened after he lied . . . .’’In this case, the telephone records revealed that the defendant did make a call to Davis following the murder and the defendant was, in fact, not in New York.

On the basis of the evidence, in the instances set forth previously, the jury reasonably could have inferred that the defendant was lying. See State v. Luther, supra, 114 Conn. App. 815-16. Accordingly, the prosecutor’s arguments that the defendant was lying were permissible comments on the evidence and, therefore, were not improper.

B

The defendant also challenges the propriety of the prosecutor’s statements during rebuttal to the defendant’s closing argument: “That’s why he wasn’t truthful with the police. Just ask yourselves, if he wasn’t willing to tell the police the truth, why would he tell you?” The defendant argues that this was an improper statement of the prosecutor’s personal opinion because the prosecutor improperly suggested that to find the defendant not guilty, the jury had to find that the state’s witnesses were lying. We disagree.

We recognize that “[a]s a general rule, prosecutors should not express their personal opinions about the guilt of the defendant, credibility of witnesses or evidence.” State v. Holliday, supra, 85 Conn. App. 261. The prosecutor in this case, however, was not improperly suggesting that to acquit the defendant, the jury had to find the state’s witnesses were lying.

The substance of the prosecutor’s remarks is distinguishable from those remarks in State v. Thompson, 266 Conn. 440, 470, 832 A.2d 626 (2003), and State v. Singh, 259 Conn. 693, 705-706, 793 A.2d 226 (2002). In Thompson, the prosecutor stated: “For you to believe that the defendant is innocent, you must believe that . . . [the state’s witnesses] are both lying. You must believe that when they got up on the stand and took that oath they committed perjury. ... In Singh, the prosecutor stated: So everyone else lies. [The witnesses] all must be lying because you’re supposed to believe this defendant .... Again, remember that if you buy the argument that [the witness] couldn’t have done it, couldn’t have seen what he says he saw, then you have to conclude that [he] lied.” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 269 Conn. 726, 743-44, 850 A.2d 199 (2004); id., 744 (concluding prosecutor’s comments merely summarized defendant’s position when he stated: “[D]id Michael Ibscher lie? Did all these witnesses get together and lie? The police lied? That’s what they want us to believe.” [Emphasis in original; internal quotation marks omitted.]).

Our review of the transcript in the present case reveals that the prosecutor’s comments do not rise to the level of those comments made in Singh. Instead, the prosecutor’s first comment had an evidentiary basis and the prosecutor’s second comment merely was marshaling the evidence. See id., 743-44 (when comments with evidentiary basis examined in context, it was clear prosecutor marshaling evidence presented at trial). Accordingly, we conclude that these comments during closing argument were not improper.

C

The defendant argues that the prosecutor made improper statements of personal opinion during rebuttal argument regarding the defendant’s guilt or innocence. We disagree.

The defendant cites to two statements made during the state’s closing argument. First, the defendant points to the following: “The only thing that he was doing was, he was getting out of state because he didn’t want to ... be questioned by the New Haven police. He needed some time, he needed some time to get his story together; that’s why he fled the state. Are those the acts, is that the conduct of someone who is truly innocent?” The defendant argues that the prosecutor’s comment improperly expressed his opinion regarding the defendant’s guilt or innocence, which is a determination that should be left to the jury.

In this case, the prosecutor’s comment was based on the evidence presented at trial, such as the defendant’s flight from Connecticut immediately following the murder and his return approximately two weeks later. Because the jury reasonably could have inferred that those acts did not reflect the “conduct of someone who [was] truly innocent,” we conclude that the prosecutor’s comment was not improper. State v. Luther, supra, 114 Conn. App. 815-16.

The defendant also refers to the prosecutor’s following statement: “Keep in mind that, you know, [the defendant] has had the opportunity to hear all the evidence in this case before he testified . . . .” The defendant argues that the prosecutor’s comment improperly expressed his opinion that the defendant had an opportunity to tailor his testimony because he was present during trial and heard all the evidence presented against him.

This court has explained: “In Portuondo v. Agard, [529 U.S. 61, 62, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000)], the United States Supreme Court squarely addressed the issue before us today, that is, whether it is consistent with due process for a prosecutor, during summation, to call the jury’s attention to the fact that the defendant had the opportunity to hear all the other witnesses testify and had the ability to tailor his testimony accordingly. The court stated that it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him. ... In concluding that the comments were proper, the [United States Supreme Court] held: Allowing comment upon the fact that a defendant’s presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate—and indeed, given the inability to sequester the defendant, sometimes essential—to the central function of the trial, which is to discover the truth. . . . Similarly, in State v. Alexander, [254 Conn. 290, 299-300, 755 A.2d 868 (2000)], our Supreme Court concluded that a prosecutor’s comments during closing argument were not improper when [the prosecutor] stated that the defendant had the opportunity to observe the testimony of all the witnesses, consequently enabling him to tailor his testimony.” (Citations omitted; internal quotation marks omitted.) State v. Perez, 78 Conn. App. 610, 628-29, 828 A.2d 626 (2003), cert. denied, 271 Conn. 901, 859 A.2d 565 (2004). In this case, the prosecutor’s statement during closing argument that suggested that the defendant had an opportunity to tailor his testimony because he was present during trial and heard the state’s evidence against him was not improper. See id.

We conclude that the prosecutor’s conduct was not improper. Accordingly, we need not address the Williams factors required in the second step of our review.

The judgment is affirmed.

In this opinion GRUENDEL, J., concurred.

FLYNN, C. J.,

concurring. I concur in the opinion and the result reached because of the strength of the state’s case against the defendant, Tyehimba A. Adeyemi, and agree that with respect to prosecutorial closing argument we are constrained by Supreme Court precedents. I write separately because my sense of justice is offended when either defense counsel or a prosecutor characterizes the testimony of a witness or a defendant who takes the witness stand as a lie.

In addressing the records of a cellular telephone call made from a telephone owned by the defendant, the prosecutor implied that the defendant was a liar. In referencing the defendant’s testimony about another cellular telephone call that he made to his wife concerning his whereabouts, the prosecutor stated: “That’s a complete lie.” Later, in addressing different things that the defendant told his wife and the police, the prosecutor argued that “he wasn’t truthful . . . .”

First, credibility is a jury determination. Such expressions of personal opinion by lawyers intrude on the jury’s function. Second, rule 3.4 of the Rules of Professional Conduct specifically states that “[a] lawyer shall not ... (5) state a personal opinion as to . . . the credibility of a witness . . . .” Final arguments that do so violate the plain language of this rule. Final arguments are only made in trials. All trials consist of testimonial or physical evidence or both. Excusing a violation of such a rule when there is some evidence in a case on which to base this eviscerates the rule.

Third, American Bar Association, Standards for Criminal Justice: Prosecution and Defense Function (3d Ed. 1993), prohibit this. Standard 3-5.2, titled “Courtroom Professionalism,” requires that “[a]s an officer of the court, the prosecutor should support . . . the dignity of the trial courtroom by strict adherence to codes of professionalism . . . .” Id., standard 3-5.2 (a). Although standard 3-5.8, titled “Argument to the Jury,” authorizes a prosecutor “[i]n closing argument to the jury” to argue “all reasonable inferences from evidence in the record”; id., standard 3-5.8 (a); subsection (b) of these same standards specifically states that “[t]he prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence . . . .” Id., standard 3-5.8 (b).

Finally, there may be reasons why a witness’ testimony is mistaken that relate to his or her lack of ability to remember events and to relate them back at trial truly and accurately. The jury makes the decision whether a witness is simply mistaken or lying.

When our courts of law do not require compliance with professional rules of conduct and accepted national standards of attorney conduct, public trust and confidence in the judicial system inevitably suffers.

       The defendant also was charged with burglary in the third degree in violation of General Statutes § 53a-103. The state withdrew that charge during trial.

       A forensic scientist with the state forensics laboratory performed DNA testing on the victim’s cellular telephone and determined that the DNA on the cellular telephone and the cellular telephone holder was consistent with the defendant’s DNA.

       The fourteenth amendment to the United States constitution, § 1, provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . .

       The court gave the foUowing limiting instruction in relevant part: “Ladies and gentlemen, before we go any further with respect to that statement, you heard the statement that [the prosecutor] just read, and it contains some information concerning some thefts that [the defendant] mentioned in that particular statement, I believe two bicycles, some clothes and a truck. This evidence is not being offered, nor can it be considered by you to prove that [the defendant] has a propensity to commit criminal acts, but can only be used by you to show his conduct after his escape and before turning himself in insofar as that conduct may bear upon his state of mind.”

       See footnote 3 of this opinion.

       During the cross-examination of the defendant, the following colloquy took place:
      “[The Prosecutor]: Now, where does it say in the statement that you cut your hand?
      “[The Defendant]: It doesn’t say that in that statement.
      “[The Prosecutor]: All right. Where does it say in the statement that you ever tried to help [the victim] during the course of this killing?
      “[The Defendant]: When I tried to pick up the phone and I couldn’t.
      “[The Prosecutor]: So, does it say something about the phone in that statement?
      “[The Defendant]: No, it doesn’t.
      “[The Prosecutor]: And it certainly doesn’t say anything at all about your reference to getting between [Davis] and [the victim] during this fight, does it?
      “[The Defendant]: No, it does not.

        “[The Prosecutor]: That statement is a lie, isn’t it?
      “[The Defendant]: No, that’s not a lie.
      “[The Prosecutor]: It’s not a lie?”

       During the cross-examination of the defendant, the following colloquy took place:
      “ [The Prosecutor]: The reason why you [gave the police] different versions is because you simply are not telling the truth; isn’t that true, sir?
      “[The Defendant]: That is not true.
      “[The Prosecutor]: In fact, you would lie to keep—you lied to the New Haven police in an attempt to stay out of jail, right?
      “[The Defendant]: No.
      “[The Prosecutor]: And that’s what you are doing here this afternoon, isn’t it?
      “[The Defendant]: Not at all.
      “[The Prosecutor]: Not at all?
      “[The Defendant]: No.
      “[The Prosecutor]: You do admit that you lied to the police, though, don’t you?
      “[The Defendant]: I didn’t lie to the police, I didn’t tell them all that I knew.
      “[The Prosecutor]: So, that’s not lying?
      “[Defense Counsel]: Objection, Your Honor. It’s argumentative, at this point.
      “The Court: Sustained. . . .
      “[The Prosecutor]: You don’t consider that to be telling a lie, sir?
      “[The Defendant]: No.
      “The Court: Sustained.”

       See parts IIA and C of this opinion.

       In referring to a statement the defendant made to the police, the prosecutor during cross-examination stated: “That statement is a lie, isn’t it?” Later in the cross-examination, the prosecutor asked the defendant: “The reason why you gave [the police] different versions is because you simply aren’t telling the truth; isn’t that true, sir?”