author: FREEDMAN, J.

text:
    FREDERICK A. MATZUL ET AL. v. TOWN OF MONTVILLE ET AL.
    (AC 21342)
    Lavery, C. J., and Landau and Freedman, Js.

      Argued December 12, 2001
    officially released June 18, 2002

      LloydL. Langhammer, for the appellants (plaintiffs).

      Ronald F. Ochsner, for the appellees (defendants).
   Opinion

FREEDMAN, J.

This is a municipal tax appeal in which the plaintiffs, Frederick A. Matzul and Charlotte F. Matzul, challenge the right of the assessor of the defendant town of Montville to make an interim change in the assessment of their property. The trial court dismissed the plaintiffs’ appeal, and the plaintiffs appealed to this court. We affirm the judgment of the trial court.

The following facts are necessary to our resolution of the plaintiffs’ appeal. On October 1, 1996, the plaintiffs were the owners of mobile home parks at 15 Meeting House Lane, Chesterfield Road, 75 Chesterfield Road and 55 Chesterfield Road. On the October 1, 1991 revaluation date, the assessor set the assessment of 15 Meeting House Lane at $45,890. By notice dated February 23, 1996 for the assessment year 1995, the assessor increased the assessment of 15 Meeting House Lane to $129,010. By notice dated February 23, 1996 for the assessment year of 1995, the assessor set an assessment of $23,630 on the property at Chesterfield Road, which had no prior assessment. By notice dated February 23, 1996 for the assessment year of 1995, the assessor set an assessment of $40,740 on the property at 75 Chesterfield Road, which had no prior assessment.

On March 4, 1996, the assessor mailed a notice to all mobile home park owners, including the plaintiffs, explaining that “[a] correction of a clerical error in the land valuation used for mobile home parks has been made.” The letter specifically indicated that the February 23, 1996 notice of increase was due to the fact that their properties had previously been incorrectly classified as “excess acreage” when in fact they should have been classified as commercial land.

The plaintiffs appealed from the assessment of the properties to the Montville board of assessment appeals, which made no change in the assessments. The plaintiffs then appealed to the court, challenging the assessment of the properties listed on the October 1, 1996 grand list and subsequent grand lists. The plaintiffs subsequently withdrew their appeal only as to 75 Chesterfield Road, and the case proceeded to trial with regard to the remaining properties.

The plaintiffs argued to the court that the assessor lacked the authority to correct the error in the classification of the plaintiffs’ property between decennial revaluations. The defendants argued that the assessor’s actions were authorized by General Statutes §§ 12-55 and 12-60. The court concluded that the assessor properly corrected the misclassification of property once it became known to him. The court, therefore, dismissed the plaintiffs’ appeal, and the plaintiffs filed the present appeal.

I

The plaintiffs first argue that the court improperly relied on 84 Century Ltd. Partnership v. Board of Tax Review, 207 Conn. 250, 541 A.2d 478 (1988), as authority for the assessor’s actions. The plaintiffs claim that this is especially true in light of subsequent legislative enactments and the Supreme Court decision in DeSena v. Waterbury, 249 Conn. 63, 731 A.2d 733 (1999). We disagree.

“Before considering the merits of the parties’ arguments, we set forth the applicable standard of review. The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. ... In this case, the trial court made conclusions of law based upon its interpretation of [our Supreme Court’s] precedent. Our review, therefore, is plenary.” (Citations omitted; internal quotation marks omitted.) Id., 72-73.

In 84 Century Ltd. Partnership v. Board of Tax Review, supra, 207 Conn. 251, our Supreme Court considered whether a municipal assessor has the power, under § 12-55, to increase a real property assessment between decennial revaluations on the ground that a sale of the property in question demonstrates that the property has greatly increased in value in relation to other properties in the municipality. In holding that a municipal assessor has such power, the court stated: “Section 12-55 contains three operative phrases pertinent to our inquiry: (1) ‘When the lists of any town have been so received or made by the assessors, they shall equalize the same, if necessary’; (2) ‘make any assessment omitted by mistake or required by law’-, and (3) ‘the assessors may increase or decrease the valuation of property as named in any such lists or in the last preceding grand list’ .... There is no ambiguity in this broad grant of powers to assessors. It is a clear legislative mandate to grant to local assessors a continuing duty unrelated to decennial revaluations, to achieve administratively a fair and equal assessment for all taxpayers. The power to equalize the lists, if necessary, imports a watchtower role for the assessor to correct inequalities, whether too high or too low. The ‘if necessary’ language clearly comprehends interim changes in assessments for there is no such requirement in § 12-62 which mandates decennial revaluations. The latter have obviously been legislatively deemed necessary.” (Emphasis in original.) Id., 262.

The court further rejected the plaintiffs claim that § 12-55 authorized only changes “omitted by mistake” or “required by law.” “Such a restrictive interpretation ignores the plain language of the statute. The fact that these two additional powers are specifically set out does not in any way limit the broad power to equalize assessments provided for earlier in the statute. The most logical interpretation of the effect of these two additional powers is that in addition to the power to equalize assessments the assessors are also empowered to make these specified changes. Assessing property omitted by mistake is a common sense administrative duty having no relation to the ‘equalizing’ function of the assessors. The same may be said of the added function of making any assessment ‘required by law.’ If it is required by law, the assessors are required to make it whether or not it is included in this section. Finally, the statute specifically gives to assessors the power to increase or decrease the value of assessed property.” Id., 262-63.

“[A]lmost immediately after, and in direct response to, [our Supreme Court’s] decision in 84 Century Ltd. Partnership v. Board of Tax Review, [supra, 207 Conn. 263] . . . the legislature enacted No. 88-321 §§ 9 and 10, of the 1988 Public Acts, which became General Statutes § 12-63d. Section 12-63d provides that ‘[t]he assessor in any municipality may not, with respect to any parcel of real property in the assessment list for any assessment year, make a change in the assessed value of such parcel, as compared to the immediately preceding assessment list, solely on the basis of the sale price of such parcel in any sale or transfer of such parcel.’ ” (Emphasis added.) DeSena v. Waterbury, supra, 249 Conn. 84.

According to the plaintiffs, the enactment of § 12-63d supports their position that the legislature sought to restrict the power of the assessor as stated by the court in 84 Century Ltd. Partnership v. Board of Tax Review, supra, 207 Conn. 263. The plaintiffs contend that the trial court failed to recognize that restriction. We conclude, however, that the legislature, in enacting § 12-63d, only restricted an assessor’s authority to make a change in assessment “solely on the basis of the sale price of such parcel in any sale or transfer of such parcel.” DeSena v. Waterbury, supra, 249 Conn. 84. The watchtower role of the assessor, as recognized by the court in 84 Century Ltd. Partnership v. Board of Tax Review, supra, 207 Conn. 262, remained unchanged by the legislative enactment. That conclusion is supported by our Supreme Court’s decision in DeSena v. Waterbury, supra, 84.

In DeSena, the court considered whether § 12-55 “which authorizes an assessor to equalize tax lists by making interim adjustments in assessments, likewise affords the taxpayer a vehicle by which to compel such interim adjustments.” Id., 87-88. The court first “note[d] that the plain language of the statute confers upon assessors the broad power to equalize tax lists, ‘if necessary.’ ” Id., 88. In concluding that the statute may not be used as a vehicle to compel interim revaluations, the court further stated: “[I]n 84 Century Ltd. Partnership v. Board of Tax Review, supra, 207 Conn. 251, this court held that § 12-55 permits assessors to conduct interim revaluations. All of this court’s discussions of the statute, both prior and subsequent to the decision in that case, support the proposition that § 12-55 is permissive rather than mandatory in nature. This proposition is supported by the plain language of the statute as well as the revaluation scheme as set forth in the statutes. Neither the arguments advanced by the defendant nor the opinion of the trial court contains persuasive reasoning compelling us to conclude otherwise. We conclude, therefore, that although § 12-55 permits assessors to conduct interim revaluations of property, it cannot be used to compel such revaluations.” (Emphasis in original.) Id., 91. Thus, the court reaffirmed the principle that § 12-55 permits an assessor to conduct an interim revaluation. See also United Illuminating Co. v. New Haven, 240 Conn. 422, 434-35, 692 A.2d 742 (1997).

We conclude, therefore, that the court properly found that the assessor had the authority, pursuant to § 12-55, to make the interim change in the assessment of the plaintiffs’ property.

II

The plaintiffs next claim that the court improperly found that the assessor was operating in his “watchtower role,” pursuant to § 12-55, when in fact he was operating pursuant to § 12-60, which allows for the correction of “[a]ny clerical omission or mistake in the assessment of taxes . . . .” The plaintiffs further claim that because § 12-60 does not permit the change as made by the assessor, the court’s ruling cannot stand. We disagree.

The following facts are necessary to our resolution of the plaintiffs’ claim. By letter dated March 4, 1996, the assessor explained to all mobile home park owners, including the plaintiffs, the February 23, 1996 increase notice. That letter states that “[a] correction of a clerical error in the land valuation used for mobile home parks has been made.” The plaintiffs argue that the assessor’s use of the phrase “clerical error” implies that the assessor was acting pursuant only to § 12-60. The defendants counter that the only authority cited by the assessor was § 12-55 and that the assessor’s use of the phrase “clerical error” does not transform his actions into a correction pursuant to § 12-60. We agree with the defendants.

The notice of increase dated February 23,1996 stated in relevant part: “Pursuant to the provision of Sec. 12-55 of the General Statutes of the State of Conn., you are hereby notified that the Assessor has assessed your property in the tax records.” The notice then reflected the change in assessment. The letter of explanation dated March 4, 1996, although indicating that a clerical error had been corrected, makes clear that the correction involved changing the classification of the plaintiffs’ property from excess acreage to commercial land. Both parties appear to agree that this correction involved a matter of substance as opposed to the correction of a clerical error, which is permitted by § 12-60. See Reconstruction Finance Corp. v. Naugatuck, 136 Conn. 29,32, 68 A.2d 161 (1949) (change made by assessors not correction of clerical error pursuant to precursor of § 12-60 because change involved substance of assessment). Because the assessor referred in the March 4, 1996 letter to a “clerical error,” the issue is whether the court improperly concluded that the assessor was acting in his watchtower role under § 12-55. We conclude that the court’s holding that the assessor acted properly pursuant to § 12-55 was proper.

We held in part I that the court’s reliance on 84 Century Ltd. Partnership v. Rocky Hill, supra, 207 Conn. 250, was correct. That opinion specifically states that the assessor’s broad powers pursuant to § 12-55 are not restricted to changes “omitted by mistake” or “required by law.” Rather, “[t]he power to equalize the lists, if necessary, imports a watchtower role for the assessor to correct inequalities, whether too high or too low.” Id., 262. Thus, in the present case, notwithstanding the reference to a clerical error, the assessor retained the broad power under § 12-55 to equalize the assessments. To accept the plaintiffs’ argument that the erroneous classification of their property could not be corrected until the next decennial revaluation would have been inequitable to all other correctly classified and valued commercial properties. We agree with the court that the assessor not only had the right to make the correction but also the obligation, as an assessor, once the misclassification became known to him.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendant in this appeal is the board of assessment appeals of the town of MontviUe.

       No real estate increase notice was sent regarding 55 Chesterfield Road because the assessed value of that property was reduced from $102,340 to $99,750.

       General Statutes (Rev. to 1995) § 12-55 (a) provides in relevant part: ■‘When the lists of any town have been so received or made by the assessor or board of assessors, they shall equalize the same, if necessary, and make any assessment omitted by mistake or required by law. The assessor or board of assessors may increase or decrease the valuation of property as named in any of such lists . . . .”

       General Statutes (Rev. to 1995) § 12-60 provides in relevant part: “Any clerical omission or mistake in the assessment of taxes may be corrected according to the fact by the assessors or board of tax review, not later than three years following the tax due date relative to which such omission or mistake occurred, and the tax shall be levied and collected according to such corrected assessment. . . .”

       In light of that conclusion, it is unnecessary for us to consider the plaintiffs’ additional but related claim that the court’s decision gives the assessor “unbridled authority” to equalize the assessor’s list.

       The letter states in relevant part: “This letter is to explain the enclosed increase notice. A correction of a clerical error in the land valuation used for mobile home parks has been made. As an owner of a mobile home park I am sure that you are aware that your land has been valued as excess acreage and not commercial land. The value of land used as mobile home sites rests in its ability to generate an income and therefore must be valued as commercial land. The valuation method which calculates value from an income stream is called the capitalization method. Additional land in excess of 10,000 square feet per mobile home site will still be valued as excess acreage. The correction is only for the mobile home sites.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    NORBERTO RIVERA v. COMMISSIONER OF CORRECTION
    (AC 20818)
    Lavery, C. J., and Foti and Daly, Js.
    Argued March 18
    officially released June 18, 2002

      Todd A. Edgington, assistant public defender, for the appellant (petitioner).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Paul E. Murray, state’s attorney, and Rachel M. Baird, former assistant state’s attorney, for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner, Norberto Rivera, appeals from the habeas court’s dismissal of his petition for a writ of habeas corpus, which he based on his claims of ineffective assistance of trial counsel and actual innocence. On appeal, the petitioner claims that the habeas court improperly (1) found that his trial counsel’s failure to impeach the testimony of Javier Mautino, one of the two victims in the incident that led to the petitioner’s conviction, did not constitute ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and (2) rejected his claim of actual innocence. We affirm the judgment of the habeas court.

Our Supreme Court set forth the following facts underlying the petitioner’s conviction, as the jury reasonably could have found them, when it upheld the petitioner’s conviction. State v. Rivera, 220 Conn. 408, 409-10, 599 A.2d 1060 (1991). “Javier Mautino, the assault victim, is the brother of the [petitioner’s] former girlfriend, Maria Ortiz. After Ortiz ended their relationship in 1984, the [petitioner] remained angry at her and blamed her family for interfering with their romance. On February 3,1987, in a taped telephone conversation with Ortiz, the [petitioner] threatened to kill her brother, Mautino. In June, 1988, shortly before the incident underlying the [petitioner’s] conviction, the [petitioner] placed several telephone calls to Ortiz’ sister, Sonia Fraser, telling her that he planned to kill Mautino.

“On the evening of July 1, 1988, Mautino and Fernando Fuentes, the murder victim, were at the Peruvian Club in Hartford. The [petitioner], who was also present, argued with Mautino and challenged him to a fight outside. Mautino declined and the [petitioner], calling him a coward, departed. When Mautino and Fuentes left shortly thereafter, the [petitioner] who had remained outside the club, shot both men. Fuentes died from his wounds and Mautino, although surviving the assault, died from cancer before the trial.” Id.

As a result of that incident, the state charged the petitioner with murder in violation of General Statutes § 53a-54a (a), criminal attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a) (2), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). “On July 13, 1990, a jury rendered a guilty verdict on all counts. The trial court sentenced the [petitioner] to three terms of imprisonment: fifty years for the first count of murder; twenty years for the second count of attempted murder; and twenty years for the third count of assault in the first degree. The second and third counts were to run concurrently and both were to run consecutively with the first count for a total effective sentence of seventy years.” State v. Rivera, supra, 220 Conn. 410.

On May 20,1992, following our Supreme Court’s affirmation of his conviction, the petitioner filed a petition for a writ of habeas coipus, claiming ineffective assistance of trial counsel and actual innocence. On December 30, 1999, the habeas court dismissed the petition for a writ of habeas corpus. Subsequently, the court granted the petition for certification to appeal from that decision. Additional facts will be set forth as necessary to our resolution of the petitioner’s claims.

I

The petitioner first claims that the habeas court improperly found that the representation afforded him by Brian M. O’Connell, his trial counsel, was not ineffective or even if it was ineffective, that it was not prejudicial. Specifically, the petitioner argues that O’Connell’s failure to impeach Mautino on various inconsistencies in his testimony amounted to ineffective assistance of counsel, thereby causing him prejudicial harm under the Strickland standard. We disagree.

We first set forth our well established standard of review regarding the petitioner’s claim. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 68 Conn. App. 484, 486, 791 A.2d 697, cert. denied, 260 Conn. 909, 795 A.2d 544 (2002).

The United States Supreme Court’s decision in Strickland established the two part legal standard, adhered to by our Supreme Court, for determining whether a petitioner’s conviction requires reversal based on a claim that his counsel’s assistance was so defective as to have deprived him of a fair trial. The “petitioner must make a two-fold showing: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers ■with ordinary training and skill in the criminal law; and (2) this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial. ... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Internal quotation marks omitted.) Mercery. Commissioner of Correction, 31 Conn. App. 771, 774, 626 A.2d 831 (1993), rev’d on other grounds, 230 Conn. 88, 644 A.2d 340 (1994); see Valeriano v. Bronson, 209 Conn. 75, 85-86, 546 A.2d 1380 (1988); Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (“court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if it is easier to dispose of the claim on the ground of insufficient prejudice”); Lewis v. Lane, 832 F.2d 1446, 1460 (7th Cir. 1987), cert. denied, 488 U.S. 829, 109 S. Ct. 83, 102 L. Ed. 2d 59 (1988).

Moreover, “[i]n reviewing the claim, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under these circumstances, the challenged action might be considered sound trial strategy. ... In assessing the petitioner’s claim, this court must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” (Citations omitted; internal quotation marks omitted.) Magnotti v. Meachum, 22 Conn. App. 669, 674-75, 579 A.2d 553 (1990); see 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 39, p. 182 & (Cum. Sup. 2000) p. 172. On the basis of these legal principles, we now reach the merits of the petitioner’s claim.

A

The habeas court found, under the first prong of Strickland, two specific instances of ineffective assistance of counsel. Both instances arise from O’Connell’s failure to impeach Mautino’s testimony.

In the first instance, the habeas court found O’Connell’s representation deficient because he failed to cross-examine and expose certain inconsistencies in Mautino’s testimony concerning an alleged physical confrontation, and the events preceding it, between Mautino and the petitioner prior to the shootings. As the habeas court stated, the “inconsistency breaks down into two parts: (1) whether Mautino agreed to go outside to fight with [the petitioner], and (2) whether there was actually a fight. . . . [The petitioner’s] claim is that Mautino invited [him] to fight, that [he] accepted Mautino’s offer, and that there was indeed a fistfight on Francis Avenue. Mautino has apparently given differing statements regarding whether he agreed to fight . . . but he has never testified that he did in fact fight [the petitioner] on the street.”

The habeas court noted that “Detective [Michael] Dakin’s first report of the incident, made roughly sixteen hours after the shootings, indicate[d] that . . . Mautino ‘became angered and complied’ with [the petitioner’s] invitation to go outside to fight.” During Dakin’s subsequent interview of Mautino, “Mautino indicated ‘that previous to going outside to fight, [the petitioner] went outside and returned, then they proceeded to take their differences outside.’ However, at the probable cause hearing, on direct examination, Mautino testified that he declined [the petitioner’s] invitation to go outside and fight. Also, Mautino’s deposition testimony indicate[d] that Mautino refused to go outside to fight with [the petitioner].”

Second, the habeas court found O’Connell’s representation to be deficient regarding his failure to impeach Mautino about the location of his car. As the habeas court stated, “[t]he petitioner alleges that ‘while . . . O’Connell allowed Mautino to place [the petitioner] near a car that was, in fact, at least 145 feet south of where the shooting actually took place . . . O’Connell failed to point this fact to the jury. This alleged inconsistency is drawn from the difference in the location of Mautino’s car, as described by Detective [Peter] Michaud, compared to Mautino’s statements that [the petitioner] started shooting while standing near Mautino’s car, which was near a hght pole. . . . Mautino testified that on the night of the shootings he and [the deceased victim] ‘were intending to go across the street to get to [Mautino’s] car.’ Because of people coming into the club and the fact that cars were parked bumper to bumper, Mautino explained that he turned north to walk around the parked cars. At the deposition, Mautino also testified that his ‘car was across the street, and very near a fight pole.’ Mautino testified further that as he left the club, he turned right (north), in order to avoid the people coming into the club, and then he walked to the other side of the two parked cars in order to cross the street. Mautino explained further that ‘I must have been looking for my keys or something for my car, and when I walked — a car went by and I fift[ed] my head up and I saw very near my car, [the petitioner]. And he shot me. I saw the flare, you know, the fight

The habeas court, however, determined that, although O’Connell’s failure to expose the inconsistencies in Mautino’s testimony regarding the alleged fight and the events preceding it, as well as the location of Mautino’s automobile, amounted to deficient representation, the petitioner did not suffer actual prejudice from it. We review only the habeas court’s conclusion that O’Connell’s deficient representation of the petitioner did not call into question the reliability of the trial, thereby resulting in actual prejudice to the petitioner.

The petitioner argues that O’Connell’s failure was tantamount to a failure to induce reasonable doubt in the minds of the jurors. We disagree because despite the fact that the habeas court found O’Connell’s representation of the petitioner to be deficient regarding those events, the jury had ample evidence on which to base its conviction of the petitioner. For instance, testimony revealed that in 1987 during a taped telephone conversation with Ortiz, the petitioner had threatened to kill Mautino. Testimony further revealed that the petitioner, shortly before the incident, made several telephone calls to Fraser during which he stated to her his plans to kill Mautino. Mautino’s testimony placed the petitioner at the crime scene and on numerous occasions he positively identified the petitioner as the shooter. Mautino further testified that he saw the petitioner shoot him and that he heard the petitioner speak during the shootings and say: “So there are two of you, so there is two for one”; “Now everybody knew who [the petitioner] was”; and “I am going to kill you.”

On the basis of our plenary review of the record, we conclude that the habeas court properly concluded that any deficiencies in O’Connell’s representation of the petitioner did not cause him actual prejudice because they were not so serious as to deprive the petitioner of a fair trial. See Crump v. Commissioner of Correction, 68 Conn. App. 334, 337, 791 A.2d 628 (2002). Stated differently, the habeas court properly concluded that O’Connell’s lack of competency did not contribute so significantly to the petitioner’s conviction as to have deprived him of a fair trial. See Valeriano v. Bronson, supra, 209 Conn. 86. We agree that had O’Connell impeached Mautino’s testimony, such elicitation would have proven trivial at best because it would not have refuted the “totality of the evidence before the judge or jury.” Strickland v. Washington, supra, 466 U.S. 695. The habeas court, therefore, properly concluded that the petitioner failed to show actual prejudice.

B

The petitioner claims that numerous other instances of ineffective assistance of counsel caused him actual prejudice. The habeas court, however, found that such instances either did not amount to deficient representation, under the first prong of the analysis, or that, under the second prong of the analysis, there was no actual prejudice suffered by the petitioner as a result of such representation.

The petitioner specifically claims that O’Connell’s failure to impeach Mautino’s testimony was deficient regarding whether two Puerto Rican males were involved in the shootings, the lighting conditions at the crime scene, his personal knowledge of the petitioner, his knowledge of the petitioner’s relationship with Ortiz, the location of the petitioner’s person from which the weapon was produced, the number of confrontations between Mautino and the petitioner inside the club before the shooting, the sequence of the shootings, why Mautino and the deceased victim left the club on that night, whether people were going into the club while Mautino and the deceased victim were exiting it and whether the deceased victim hit his head on a parked car after being shot.

Assuming that all of those instances amounted to deficient representation of trial counsel, we conclude that the petitioner has failed in each instance, whether considered individually or collectively, to satisfy his burden of proving actual prejudice. In other words, he did not “demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel’s deficient performance.” Copas v. Commissioner of Correction, 234 Conn. 139, 155, 662 A.2d 718 (1995). A jury, on the basis of the totality of the evidence presented to it, reasonably could have concluded beyond a reasonable doubt that the petitioner was guilty of the crimes with which he was charged.

II

The petitioner next claims that the habeas court improperly rejected his claim of actual innocence. He contends that he has asserted a “gateway” claim of actual innocence and that the habeas court erred in failing to apply the federal standard for review of gateway claims of actual innocence set forth by the United States Supreme Court in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). We disagree.

Neither this court nor our Supreme Court has expressly recognized the viability of a gateway claim of actual innocence in this state. In the federal courts, a habeas petitioner may assert a claim of actual innocence to circumvent a procedural obstacle that would otherwise operate to bar review of a claim of constitutional error affecting the criminal trial. See id., 314. Such an actual innocence claim is thus “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). Here, however, the petitioner was not confronted with any procedural impediment to review of his ineffective assistance of counsel claim, and, indeed, the habeas court fully addressed the merits of that claim. The petitioner was therefore in no need of a “gateway,” and the habeas court correctly declined the petitioner’s invitation to apply the federal gateway standard to his actual innocence claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner further claims that the habeas court applied the incorrect standard to its determination of prejudice under the second prong of Strickland when it noted that the petitioner had not established prejudice “by a fair preponderance of the evidence.” The petitioner is correct because the proper standard for a determination of prejudice under Strickland requires a petitioner to demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel’s deficient performance. See Copas v. Commissioner of Correction, 234 Conn. 139, 155, 662 A.2d 718 (1995). While we therefore agree that the habeas court did not apply the appropriate standard to the facts of this case; see State v. Comollo, 21 Conn. App. 210, 216, 572 A.2d 1037, cert. denied, 215 Conn. 811, 576 A.2d 542 (1990); on the basis of our plenary review of the record, we conclude that the petitioner has failed to show that he was prejudiced by his counsel’s deficient performance.

       There are two types of actual Innocence claims: Gateway and freestanding. In a freestanding claim of actual innocence, “there is no claim of an antecedent constitutional violation that affected the result of [the] criminal trial. Such a freestanding claim is to be contrasted with what has come to be known in federal habeas jurisprudence as a ‘gateway’ claim of actual innocence. Such a claim serves as a gateway to permit federal habeas review of an otherwise procedurally barred state conviction that the petitioner asserts is constitutionally flawed”; Miller v. Commissioner of Correction, 242 Conn. 745, 788 n.28, 700 A.2d 1108 (1997); it is “[a] claim based on an antecedent constitutional violation that affects the results of the criminal trial . . . .” Id., 813 n.7 (Berdon, J., concurring and dissenting).


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. DAVID P.

    (AC 20907)
    Spear, Mihalakos and Hennessy, Js.
    Argued February 14
    officially released June 18, 2002

      Dawne Westbrook, with whom, on the brief, was William S. Palmieri, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, supervisory assistant state’s attorney, for the appellee (state).

       Thus entitled to protect the identity of the victims and in keeping with the spirit of General Statutes § 54-86e.

   Opinion

MIHALAKOS, J.

The defendant, David P., appeals from the judgments of conviction, rendered after a jury trial, of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (l) and five counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the court improperly (1) consolidated three separate cases against him, (2) prevented him from presenting a defense, (3) restricted his right to cross-examine witnesses and (4) allowed the prosecutor to engage in prosecutorial misconduct. We affirm the judgments of the trial court.

The defendant was charged in three separate informations in connection with incidents involving three separate victims. In the first information, the defendant was charged with two counts of sexual assault in the first degree and two counts of risk of injury to a child involving A. In the second information, the defendant was charged with three counts of sexual assault in the first degree and two counts of risk of injury to a child involving B. In the third information, the defendant was charged with one count of sexual assault in the third degree and one count of risk of injury to a child involving C. The court granted the state’s motion to consolidate the charges against the defendant. On March 30, 2000, the jury returned verdicts of guilty on all counts. Thereafter, the court sentenced the defendant to a total effective term of ninety years incarceration.

The jury reasonably could have found the following facts. The defendant lived with all three victims at the time of the assaults. The defendant assaulted the first victim, A, on two occasions while she was in the fourth grade. Both times, the defendant called the victim at her grandparents’ residence and asked that she come home alone. The first time, he called the victim to his bedroom and told her to get on the bed. After instructing the victim to remove her clothing, the defendant began touching her. He then put his finger into her vagina and made her touch his penis. The second time, the defendant once again called the victim at her grandparents’ home. Once she arrived, the defendant called her to his bedroom, but this time there was a pornographic video displayed on the television. He told the victim to get undressed and get on the bed. The defendant again told the victim to touch his penis, and he placed his finger into her vagina.

The defendant began assaulting the second victim, B, while she was also in the fourth grade. In the beginning, the defendant touched the victim’s breasts and kissed her on the lips while she was still dressed. After the victim started the fifth grade, the defendant began having sexual intercourse with her in his bedroom, sometimes placing Vaseline on his penis beforehand. The assaults continued while the victim attended the sixth grade. On one occasion, the defendant forced the victim to perform oral sex.

The defendant assaulted his third victim, C, while she attended the second and third grades. During the assaults, the defendant touched her when he placed his hand under the victim’s shirt and down her pants. That also occurred in the defendant’s bedroom. Additional facts will be set forth where they are relevant to the issues on appeal.

I

The defendant first claims that the court improperly granted the state’s motion to consolidate the three informations. Specifically, he argues that because the cases against him were similar factually but unrelated legally, joinder was inappropriate. We disagree.

A trial court is authorized by statute and rule to order a joint trial of charges against the same defendant. See General Statutes § 54-57; Practice Book § 41-19. Furthermore, our courts generally favor joinder of cases because it “expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once.” (Internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 712, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). In Connecticut, there is a presumption in favor of consolidation of appropriate cases. See State v. Chance, 236 Conn. 31, 38, 671 A.2d 323 (1996).

“The grant or denial of a motion for severance rests in the sound discretion of the trial judge.” (Internal quotation marks omitted.) Id. “The trial court has discretion to determine whether separate cases involving the same defendant should be consolidated . . . and the exercise of that discretion may not be disturbed on appeal unless it has been manifestly abused. ... To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of convincing this court that the joinder resulted in substantial injustice.” (Citations omitted.) State v. Walsh, supra, 52 Conn. App. 711-12. “Whether a joint trial will be substantially prejudicial to the defendant’s rights means something more than that it will be less advantageous to [him].” (Internal quotation marks omitted.) Id.

Our Supreme Court has set forth a multifaceted approach for our courts to apply when considering whether to consolidate multiple cases against the same defendant. “[Severance may be necessary to prevent undue prejudice resulting from the consolidation of two or more charges for trial when: (1) the cases do not involve discrete, easily distinguishable factual scenarios; (2) one or more of the counts alleges brutal or shocking conduct by the accused; or (3) the trial is one of long duration or very complex.” State v. Chance, supra, 236 Conn. 42; see also State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987); State v. Stevenson, 43 Conn. App. 680, 686, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997). “If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred from improper joinder.” State v. Walsh, supra, 52 Conn. App. 712. Because none of those factors is present here, the court did not abuse its discretion by consolidating the three cases against the defendant.

First, the factual predicate to each case is distinct. Although the assaults on each victim occurred in the defendant’s bedroom, they each contained easily distinguishable factual scenarios. The first victim was assaulted only twice and was subjected to a pornographic video. The second victim was assaulted over the course of two years. She usually was clothed during the early assaults, but at some point the defendant ordered her to undress and assaulted her vaginally and orally. The third victim was clothed during the assaults at all times. Furthermore, the state presented its casein-chief in an orderly manner that enabled the jury to consider the evidence related to each charge separately. See State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987) (no abuse of discretion in denying severance if state’s orderly presentation of evidence has prevented confusion of jury and has enabled jury to consider evidence relevant to each charge separately and distinctly); State v. Walsh, supra, 52 Conn. App. 712-13 (same); State v. Stevenson, supra, 43 Conn. App. 688 (same).

Next, the defendant was not prejudiced by the joinder of a shocking and brutal case. In his brief, the defendant contends that the “sexual assaults alleged in each case unarguably confronted the jury with ‘brutal and shocking conduct.’ ” Although we may agree that sexual assault against young women and girls is appalling, the assaults against all three victims involved a similar degree of physical force and similar threats. “Sexual assault cases should be severed only where one of the sexual assault crimes with which the defendant is charged is so brutal and shocking when compared with the other[s], that a jury, even with proper instructions, could not treat them separately.” (Internal quotation marks omitted.) State v. Walsh, supra, 52 Conn. App. 714; see also State v. Stevenson, supra, 43 Conn. App. 691 (when all cases sought to be consolidated are brutal and shocking, they may be joined properly if consolidation does not cause high risk of one case being tainted by the unusually shocking or brutal nature of others, especially if evidence as to each would have been cross admissible had cases been tried separately).

Finally, the trial was not overly complex or exceptionally long. It lasted only six days, including argument and jury instructions, and involved only thirteen witnesses. See State v. Walsh, supra, 52 Conn. App. 713 (six day trial involving two victims not exceptionally long or complex); State v. Stevenson, supra, 43 Conn. App. 689 (six day trial involving two incidents not unnecessarily long or complex); compare State v. Boscarino, supra, 204 Conn. 723-24 (ten week trial involving fifty-five witnesses, four victims unduly long, complex).

We are mindful that when incidents are factually similar, there is an inherent danger that a jury might use evidence of one crime to find a defendant guilty of the others. See State v. Boscarino, supra, 204 Conn. 722; State v. Stevenson, supra, 43 Conn. App. 688. There was no such danger in the present cases, however, because the evidence of each assault would likely be admissible in the companion cases as evidence of prior misconduct that is relevant to show a pattern of criminal activity. See, e.g., State v. Walsh, supra, 52 Conn. App. 713 (evidence of sexual assault involving penetration and evidence of second assault not involving penetration cross admissible); State v. Pollitt, supra, 205 Conn. 69 (evidence of attempted sexual assault and evidence of sexual assault cross admissible.) Indeed, “[e]vidence tending to prove prior criminal conduct which is relevant and material to an element of the crime, identity, malice, motive, or which shows a pattern of criminal activity is admissible if the trial court determines, in the exercise of its sound discretion, that its probative value outweighs its prejudicial impact.” (Internal quotation marks omitted.) State v. Walsh, supra, 713. Therefore, “[w]here evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit.” (Emphasis in original.) State v. Pollitt, supra, 68.

Because each of the cases against the defendant involved discrete, easily distinguishable factual scenarios, the defendant used a similar amount of force in each of the assaults and the trial was neither long nor complex, consolidation of the cases did not result in substantial injustice, and the trial court did not abuse its discretion in joining the three cases. Furthermore, the court instructed the jury, both before the trial commenced and during its charge, that it was to consider the evidence presented for each case separately. Therefore, even if the defendant had suffered some degree of prejudice, it was cured by the court’s instructions.

II

The defendant next argues that the court unconstitutionally prevented him from presenting a defense. Specifically, he claims that the court improperly precluded testimony that was admitted in his previous trial, which ended in a mistrial. We are not persuaded.

As a preliminary matter, we set forth our well established standard of review. “[T]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Bush, 249 Conn. 423, 430, 735 A.2d 778 (1999).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 305-306, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). “It is not logical relevance alone, however, that secures the admission of evidence. Logically relevant evidence must also be legally relevant . . . that is, not subject to exclusion for any one of the following prejudicial effects: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Joly, 219 Conn. 234, 260-61, 593 A.2d 96 (1991).

The following facts and procedural history are relevant to our resolution of the defendant’s claim. In the defendant’s first trial, two of the victim’s friends and an investigator for the department of children and families testified regarding B. The two friends each admitted that they maliciously had made a false complaint to a department investigator against the defendant, claiming that he had sexually abused B. In addition, B admitted that her friends had threatened to make a false report. During the trial underlying this appeal, the defendant proffered testimony regarding the false report. In one instance, the defendant attempted to cross-examine B regarding the report. The defendant claimed that the testimony was relevant as to her state of mind, intent, motive and the disclosure itself. The court precluded the testimony because it was not relevant.

The defendant argues before this court that his “ ‘significant interest’ in presenting witnesses and evidence to establish a defense was totally abridged . . . .” The proof of the alleged false complaint would have created a side issue that unduly distracted the jury from the main issues of the case. The issue in this case was not whether or why the two friends made the malicious complaint, but rather, whether the defendant assaulted the victims. Testimony regarding a false complaint initiated by a third party would have no bearing on the victim’s state of mind. Furthermore, the testimony regarding the third party complaint would not have aided the trier of fact in determining whether the allegations of the victims were true or false. Accordingly, the court did not abuse its discretion by precluding testimony regarding the complaint initiated by B’s friends.

III

The defendant next claims that the court unconstitutionally restricted his right of cross-examination. The defendant, however, fails to express exactly how the court restricted his right to cross-examination. He simply cites to various parts of the trial transcript and offers no citation or discussion of any authority to explain how his right to cross-examination was curtailed. See State v. Whipper, 258 Conn. 229, 272 n.20, 780 A.2d 53 (2001). “We are not required to review issues that have been improperly presented to this court through an inadequate brief.” (Internal quotation marks omitted.) In re Shane R, 58 Conn. App. 234, 243, 753 A.2d 409 (2000). We therefore decline to review the claim.

IV

The defendant’s final claim is that the prosecutor engaged in misconduct during his summation and rebuttal argument to the jury. Specifically, he claims that the prosecutor improperly vouched for the credibility of the state’s witnesses, and otherwise expressed his personal opinions about the evidence, commented on facts not in evidence and appealed to the emotions of the jury.

As a preliminary matter, we decline to review the defendant’s arguments that the prosecutor improperly expressed his opinion as to the credibility of the witnesses and commented on facts not in evidence. The defendant did not properly preserve those claims by objecting to the prosecutor’s comments either when the comments were made or at the close of arguments.

“It is well established that generally this court will not review claims that were not properly preserved in the trial court. ... A defendant may prevail on a claim of constitutional error not preserved at trial, however, if the defendant satisfies the four part standard set forth in State v. Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989)].” (Internal quotation marks omitted.) State v. Laracuente, 57 Conn. App. 91, 93-94, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000); see also Practice Book § 60-5. The defendant, however, does not seek review of his claim pursuant to Golding or the plain error doctrine. See Practice Book § 60-5. “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances. . . . The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned.” (Citation omitted; internal quotation marks omitted.) State v. Laracuente, supra, 94. Accordingly, we decline to review those unpreserved claims.

We now address the defendant’s properly preserved claim. The defendant’s only preserved claim of prosecutorial misconduct involves whether the prosecutor improperly appealed to the emotions of the jury. We conclude that he did not.

“[P]rosecutorial misconduct can occur in the course of closing argument. . . . When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 336, 746 A.2d 761 (2000). “Nevertheless, [i]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered. . . . Ultimately, therefore, the proper scope of closing argument lies within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Id., 337.

“A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state’s case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 719, 793 A.2d 226 (2002).

“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.” (Internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 90-91, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).

In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, we consider several factors. “Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Whipper, supra, 258 Conn. 262-63.

The defendant first finds issue with the prosecutor’s statement that he would like the jury to throw the defendant’s closing argument into the trash barrel. It is clear from our review of the record that the prosecutor’s comments were invited by defense counsel. In addition, we conclude that the prosecutor’s remarks were not of the nature that would appeal to the emotions of the jury.

The other comments with which the defendant takes exception related to the prosecutor’s request that the jury remember the testimony of the victims. The prosecutor’s comment that he believed that the jury was touched by their testimony may appeal to the emotions of the juiy when taken in isolation. In the context of the entire trial, however, the remarks do not rise to the level of being so prejudicial that they deprived the defendant of a fair trial.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person

       The charges against the defendant were based on actions taken by him between 1991 and 1997.
      General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
      Currently, General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       A was born in 1982. B was bom in 1984 and C was bom in 1988.

       It is not clear from the record before us whether the defendant objected to the state’s motion for consolidation or if he filed a motion for severance. Because the defendant’s first trial resulted in a mistrial on September 30, 1998, the record from that proceeding is not before us.

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 41-19 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

       The defendant incorrectly relies on State v. Boscarino, supra, 204 Conn. 722-25, in support of his argument that the court improperly joined the three cases against him. Our discussion of the Boscarino factors, however, leads us to conclude that consolidation was not improper.

       The court instructed the jury in relevant part: “There are three separate cases which were tried together during this trial. In each case, there is a different complainant; in each case, there is a separate information in which the state charges the defendant with committing the crimes stated in each count of that information.
      “In the information in which [C] is the complainant, the state charged the defendant with committing the crime of sexual assault in the third degree once and the crime of risk of injury to a minor once.
      “In the information in which [B] is the complainant, the state charges the defendant with committing the crime of sexual assault in the first degree three times and the crime of risk of injury to a minor twice.
      “In the information in which [A] is the complainant, the state charges the defendant with committing the crime of sexual assault in the first degree twice and the crime of risk of injury to a minor twice.
      * * *
      “The jury must consider each information separately and each count in each information separately. The jury’s verdict on any count of any information does not control the jury’s verdict on any other count of that information or any other information.

        “In reaching a verdict on a count of an information, the jury must consider only the evidence that is relevant to that count.”

       The defendant frames his argument as a question of constitutional magnitude. He did not, however, argue at trial that he was deprived of a constitutional right, but merely that the testimony offered was relevant. He also neglected to request our review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. We therefore address the defendant’s claim in the same form that it was presented to the trial court.

       The prosecutor made the following remarks: “I don’t know whether to thank or curse Judge Fracasse for taking that break right then because after [defense counsel’s] closing argument, I’ve got to confess to you, I was hot, and while passion is a good thing in addressing a jury, sometimes we have to be careful just how passionate we become. . . . [Defense counsel] suggested to you that there might be something that I would like to have you do in terms of throwing something in that trash barrel. I’ve never said this before in a closing argument, but I would urge you to throw his closing argument into that trash barrel. . . . It’s a shame that I wasn’t at the same trial.”

       The prosecutor made the following remarks: ‘T’ve got to confess to you that I had a concern today . . . that you may have forgotten what [the complainants] told you and their demeanor on the [witness] stand, and I say that because when I observed you, I felt that perhaps you were touched by what you saw and heard from those three girls. ... I would ask you strenuously not to do so, and I would also ask you not to take their absence from this courtroom today as any indication that they are not concerned about the outcome of this matter.”


author: PETERS, J.

text:
    BARBARA H. KALAS v. EDWARD W. COOK, EXECUTOR (ESTATE OF ADELMA G. SIMMONS)
    (AC 21439)
    Schaller, Flynn and Peters, Js.

      Argued April 1
    officially released June 18, 2002

      Linda C. Lehmann, with whom were Malcolm F. Barlow and, on the brief, Edward W. Cook, for the appellant (defendant).

      Atherton B. Ryan, for the appellee (plaintiff).
   Opinion

PETERS, J.

Pursuant to a long-standing oral agreement, a print shop manufactured and delivered written materials designed by the buyer for the buyer’s use and sale. After the buyer’s death, the executor of her estate refused to pay for the last deliveries of these materials to the buyer. The principal issue in this appeal is whether the statute of frauds, as codified in the Uniform Commercial Code, General Statutes § 42a-l-101 et seq., bars enforcement of the oral agreement. Although our conclusion rests on statutory grounds that were not cited to the trial court, we agree with the court’s conclusion that, under the circumstances of this case, the seller is entitled to be paid.

The plaintiff, Barbara H. Kalas, owner of the print shop, filed a complaint against the defendant, Edward W. Cook, executor of the estate of the buyer, Adelma G. Simmons. The plaintiff alleged that the defendant, in breach of the obligations contained in an oral contract with Simmons for the sale of goods, had refused to pay for goods delivered to her. The defendant denied these allegations and interposed a number of special defenses, including a defense under the statute of frauds as codified in General Statutes § 42a-l-206.

The trial court held that the transaction between the plaintiff and the deceased was a sale of goods as that term is defined in General Statutes § 42a-2-105. That determination has not been challenged on appeal. As a contract for the sale of goods, its enforcement was not precluded by the statute of frauds provision contained in § 42a-l-206. Accordingly, the court rendered a judgment in favor of the plaintiff in the amount of $24,599.38. The defendant has appealed.

The facts found by the trial court, which are currently uncontested, establish the background for the court’s judgment. The plaintiff, doing business as Clinton Press of Tolland, operated a printing press and, for several decades, provided written materials, including books and pamphlets for Simmons. Simmons ordered these materials for use and sale at her farm, known as Capri-lands Herb Farm (Caprilands). The defendant has not suggested that these materials could have been sold on the open market.

Due to limited space at Caprilands, the plaintiff and Simmons agreed that the written materials would remain stored at the plaintiffs print shop until Simmons decided that delivery was necessary. The materials were delivered either routinely, based on Simmons’ ordinary need for materials, or upon her request for a special delivery. After each delivery, the plaintiff sent an invoice requesting payment by Simmons. These invoices were honored.

In 1991, the town of Tolland acquired the land on which the plaintiff resided. In early 1997, the plaintiff was notified that she would have to vacate the property by the end of that calendar year. Upon receiving that notice, the plaintiff decided to close her business. The plaintiff and Simmons agreed that the materials printed for Caprilands and stored at the plaintiffs print shop would be delivered on an accelerated basis. Simmons directed an employee, Jack Lee, to begin to transport the stored materials to Caprilands and he made occasional trips to the print shop to do so. The plaintiff routinely delivered printed materials to Caprilands whenever she visited there.

On December 3,1997, after several months of deterioration of her physical health, Simmons died. Simmons’ will was admitted to probate, and the defendant was appointed executor of her estate. The plaintiff submitted a claim against the estate for $24,599.38 for unpaid deliveries to Caprilands. These deliveries took place from February 12,1997 to December 11, 1997, with the last two deliveries occurring after Simmons’ death.

In his appeal, the defendant raised fifteen claims for reversal. None of these claims was adequately briefed. See Pestey v. Cushman, 259 Conn. 345, 373, 788 A.2d 496 (2002). “We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Citations omitted; internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 623, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001). We could, therefore, affirm the judgment on that ground. At oral argument, however, the defendant elaborated that the trial court improperly had (1) enforced the oral agreement despite its noncompliance with the statute of frauds, General Statutes § 42a-2-201, and (2) admitted, as well as excluded, certain testimony regarding statements by Simmons in violation of General Statutes § 52-172.

I

On appeal, the defendant argues that the oral contract was invalid, not for the reasons advanced at trial, but because a writing was required by § 42a-2-201. This argument is unpersuasive for two reasons.

First, the defendant’s claim, as a matter of procedure, cannot succeed because he did not raise any claim under § 42a-2-201 at trial. “It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60-5; Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) . . . .” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 170-71, 745 A.2d 178 (2000). This court will undertake review of unpreserved claims only when the claim is of constitutional magnitude; State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); or there has been plain error resulting in a manifest injustice that has affected the fairness of the judicial proceeding. Practice Book § 60-5; Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 768, 717 A.2d 150 (1998). Neither of these exceptions is applicable in this case.

Second, even if we exercise our discretion to overlook this procedural failing, the defendant’s § 42a-2-201 argument fails as a matter of substance. While we agree that § 42a-2-201 is the applicable statute, this section does not bar the enforcement of the plaintiffs oral agreement. When a trial court reaches a correct outcome, but on grounds that cannot be sustained, appellate courts have repeatedly upheld the court’s judgment if there are other grounds to support it. Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 794, 749 A.2d 1144 (2000); Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 702, 694 A.2d 788 (1997).

Whether the court properly applied the relevant provisions of § 42a-l-101 et seq. “involves statutory interpretation, which is a question of law. Therefore, our review of this issue is plenary.” (Internal quotation marks omitted.) 37 Huntington Street H, LLC v. Hartford, 62 Conn. App. 586, 590, 772 A.2d 633, cert. denied, 256 Conn. 914, 772 A.2d 1127 (2001), citing Turner v. Frowein, 253 Conn. 312, 337, 752 A.2d 955 (2000). Under the circumstances of this case, we conclude that § 42a-2-201 does not bar the plaintiffs right to recovery.

Section 42a-2-201 is the applicable statute in this case because it takes priority over § 42a-l-206. True, on its face, § 42a-l-206 (2) excludes contracts for the sale of goods from the writing requirement of subsection (1). This article one provision, does not, however, purport to supersede statute of frauds provisions elsewhere in § 42a-l-101 et seq. It does not say that such contracts are altogether exempt from the statute of frauds. Contracts for the sale of goods, although excluded from the general provisions of § 42a-l-206, are governed by § 42a-2-201. See General Statutes Ann. § 42a-l-206, Uniform Commercial Code Comment (West 1990) (purpose of § 42a-l-206 is “[t]o fill the gap left by the [sjtatute of [f|rauds provisions for goods [Section 2-201]”); Decatur Cooperative Assn. v. Urban, 219 Kan. 171, 175, 547 P.2d 323 (1976) (“purpose of [UCC 1-206] is to include within its provisions sales . . . which are not subject to the provisions of [UCC] 2-201”); see also State v. State Employees’ Review Board, 239 Conn. 638, 653, 687 A.2d 134 (1997) (“ ‘[i]t is a well-settled principle of [statutory] construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling’ ”); Burns v. Gould, 172 Conn. 210, 216-17, 374 A.2d 193 (1977) (stating that contracts for sale of securities expressly excluded from § 42a-l-206 because such contracts are specifically covered by General Statutes § 42a-8-319).

Under § 42a-2-201, oral agreements for the sale of goods at a price of $500 or more are presumptively unenforceable. General Statutes § 42a-2-201 (1); see also Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 608, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). The applicable provisions in this case, however, are other subsections of § 42a-2-201.

Under § 42a-2-201 (3) (a), an oral contract for the sale of goods is enforceable if the goods in question are “specially manufactured.” In determining whether the specially manufactured goods exception applies, courts generally apply a four part standard: “(1) the goods must be specially made for the buyer; (2) the goods must be unsuitable for sale to others in the ordinary course of the seller’s business; (3) the seller must have substantially begun to have manufactured the goods or to have a commitment for their procurement; and (4) the manufacture or commitment must have been commenced under circumstances reasonably indicating that the goods are for the buyer and prior to the seller’s receipt of notification of contractual repudiation.” Webcor Packaging Corp. v. Autozone, Inc., 158 F.3d 354, 356 (6th Cir. 1998). In applying this standard, “courts have traditionally looked to the goods themselves. The term specially manufactured, therefore, refers to the nature of the particular goods in question and not to whether the goods were made in an unusual, as opposed to the regular, business operation or manufacturing process of the seller.” (Internal quotation marks omitted.) Id., 357, quoting Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1037 (5th Cir. 1982).

Printed material, particularly that, as in this case, names the buyer, has been deemed by both state and federal courts to fall within the exception set out for specially manufactured goods. Illustrative cases include Perlmuter Printing Co. v. Strome, Inc., 436 F. Sup. 409 (N.D. Ohio 1976); Burger Man, Inc. v. Jordan Paper Products, Inc., 170 Ind. App. 295, 352 N.E.2d 821 (1976); Associated Lithographers v. Stay Wood Products, Inc., 279 N.W.2d 787 (Minn. 1979); and Smith-Scharff Paper Co. v. P.N. Hirsch & Co. Stores, Inc., 754 S.W.2d 928 (Mo. App. 1988).

It is inherent in the court’s findings that the printed materials in the present case were specially manufactured goods. The materials were printed specifically for Caprilands. The materials included brochures and labels with the Caprilands name, as well as books that were written and designed by Simmons. The plaintiff testified that the books were printed, as Simmons had requested, in a rustic style with typed inserts and hand-drawn pictures. Therefore, none of these materials was suitable for sale to others. It is undisputed that, at the time of breach of the alleged contract, goods printed for Simmons already had been produced.

We conclude that, in light of the nature of the goods at issue and the findings of the trial court, the oral agreement in this case falls within the exception for specially manufactured goods. To be enforceable, the agreement for their production was, therefore, not required to be in writing under § 42a-2-201 (3) (a). Accordingly, we affirm the judgment of the court on this issue because it reached the right result, even if it did so for the wrong reason. See, e.g., Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 151, 709 A.2d 1075 (1998); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978); Amsden v. Fischer, 62 Conn. App. 323, 327, 771 A.2d 233 (2001).

II

The defendant next claims that the court misapplied the so-called dead man’s statute, § 52-172, in admitting certain testimony regarding statements by Simmons and excluding other testimony by the defendant. We disagree.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) O’Brien v. Coburn, 46 Conn. App. 620, 630, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997). In reviewing claims that the court abused its discretion, every reasonable presumption should be made in favor of upholding the court’s ruling. Pender v. Matranga, 58 Conn. App. 19, 28, 752 A.2d 77 (2000).

It is fundamental in evidentiary law that an out-of-court statement that is offered to establish the truth of the facts contained in the statement is hearsay and is generally inadmissible unless an exception to the general rule applies. State v. Wargo, 255 Conn. 113, 127, 763 A.2d 1 (2000). Section 52-172 states one such exception. See C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.47.2, p. 727. “Its purpose is to create an equal footing between the living and the dead parties. . . . Although it is to be interpreted liberally, every utterance of a deceased person is not automatically entitled to come into evidence solely because the speaker has died.” (Citation omitted; internal quotation marks omitted.) Pender v. Matranga, supra, 58 Conn. App. 28.

Pursuant to § 52-172, “[i]n actions by or against the representatives of deceased persons . . . the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence. . . .” Therefore, the action in which statements by Simmons are admitted must be by or against Simmons’ representatives; O’Brien v. Cobum, supra, 46 Conn. App. 632; and the statements must be relevant to the issue being decided. Gulack v. Gulack, 30 Conn. App. 305, 316-17, 620 A.2d 181 (1993).

The defendant first argues that the court improperly admitted testimony by Simmons’ employee, Lee, with regard to statements made to him by Simmons. We are not persuaded.

Lee’s testimony, as the court held, is admissible under § 52-172. This action was brought by the plaintiff against a representative of Simmons, the executor of her estate. The statements admitted by the court pertained to Simmons’s instructions to Lee to pick up the printed materials at issue. The statements were therefore relevant to determining the existence of an oral agreement between the plaintiff and Simmons. We can find no support for the defendant’s assertion that the court abused its discretion in admitting Lee’s testimony.

The defendant next claims, also under § 52-172, that the court improperly excluded certain testimony offered by the defendant. Specifically, the defendant challenges the court’s exclusion of testimony in which the defendant was prepared to testify about discussions, if any, between Simmons and himself on the subject of the oral agreement.

During direct examination, the defendant was asked whether Simmons had ever told him about any oral contracts she had made in 1977 and whether she had ever spoken about Clinton Press. The court sustained objections to both questions. The court articulated that “it’s not merely that it’s hearsay, but whether she spoke about something is not relevant.” The defendant concededly was attempting to establish that if Simmons had made such an agreement, she would have so informed the defendant. The court responded that “[t]here’s no logical connection that [Simmons] would discuss every single order she made with [the defendant] .... So the fact that it was not mentioned to him is not evidence that it didn’t occur.”

Our review of the record reveals that the court placed no further constraints on the defendant’s testimony. Notably, it permitted the defendant to testify about other statements made by Simmons.

The court had the authority to exclude testimony as not relevant to the matter to be decided. Section 52-172 is not a carte blanche for the admission of statements by a decedent in an action brought by or against a representative of the decedent. The court did not abuse its discretion in permitting Lee’s testimony to be heard and in excluding two statements proffered by the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant asserted the following special defenses: (1) the complaint was filed beyond the three year statute of limitations in violation of General Statutes § 52-581; (2) the complaint was filed beyond the six year statute of limitations in violation of General Statutes § 52-576; (3) Simmons had paid for all materials that she ordered or expected in 1997; (4) the complaint was filed beyond the four year statute of limitations in violation of General Statutes § 42a-2-725; and (5) there was no written agreement in violation of the statute of frauds in § 42a-1-206.

       General Statutes § 42a-l-206 provides in relevant part: “(1) Except in the cases described in subsection (2) of this section a contract for the sale of personal property is not enforceable by way of action or defense beyond five thousand dollars in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties ....
      “(2) Subsection (1) of this section does not apply to contracts for sale of goods nor of securities nor to security agreements.”

       General Statutes § 42a-2-105 provides in relevant part: “(1) ‘Goods’ means all things, including specially manufactured goods, which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities covered by article 8 and things in action. ...”

       General Statutes § 42a-2-201 provides in relevant part: “(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties ....
      “(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable (a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller . . . has made either a substantial beginning of their manufacture or commitments for their procurement . . . .”

       See footnote 4.

       Section 42a-2-201 (3) (a) provides in relevant part that “[a] contract which [is not in writing] but which is valid in other respects is enforceable (a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller . . . has made either a substantial beginning of their manufacture or commitments for their procurement . . . .” See footnote 4.