author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. DONALD MOODY
    (AC 23471)
    Lavery, C. J., and Schaller and West, Js.

      Argued February 13
    officially released June 3, 2003

      Jeremiah Donovan, special public defender, with whom, on the brief, was Rita Christopher, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Donald Moody, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and assault in the first degree in violation of General Statutes § 53a-59 (a) (5). The defendant claims that (1) the trial court improperly refused to admit into evidence the full transcript of a defense witness’ statement to police, (2) the prosecutor committed misconduct during cross-examination and closing argument in violation of the defendant’s right to a fair trial and (3) the court failed to investigate adequately whether jurors saw certain notes made by the prosecutor that inadvertently had been given to an alternate juror. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 9, 1994, the victims, Marquis Clark and Frank Doughty, were walking with a third person near' the intersection of George Street and Day Street in New Haven. The defendant was behind the steering wheel of a car stopped at the traffic signal on Day Street. As the victims walked along the sidewalk on Day Street, they and the defendant began shouting at each other. They had just walked past the rear of the defendant’s car when the defendant aimed a handgun over his shoulder and fired eight to ten shots at them through the car’s rear windshield. Doughty was shot in the thigh, but survived. Clark was shot in the hand and chest, and died of injuries to his heart and left lung. The third person walking with the victims returned the defendant’s gunfire, striking the defendant in the left leg. Additional facts are set forth as necessary for resolution of the defendant’s claims.

I

The defendant first claims that the court improperly refused to admit into evidence the full transcript of a defense witness’ statement to the police. We are not persuaded.

The following additional facts underlie the defendant’s claim. The defendant’s theory of defense at trial was that he had acted in self-defense when he shot Clark and Doughty. He called Larry Smith as a witness. Smith testified to the following facts. On the morning of November 9, 1994, the defendant and Smith were at the house where the defendant lived with his mother. Around lunchtime, the defendant left the house. When he returned, he appeared upset and stated that he had been approached, threatened and “ruffled up” by somebody at a convenience store on Sylvan Avenue. The defendant asked Smith to return to the store with him. When they arrived at the store, the individuals who earlier had approached the defendant no longer were there. The defendant purchased some food while Smith waited in the car. When the defendant returned to the car, Smith told the defendant that he wanted to go home.

The defendant drove in the direction of Smith’s home, which was located near the comer of George and Day Streets. When the defendant stopped the car near that intersection, Smith opened the passenger side door part way to exit the vehicle. He saw a man standing on the comer pull a gun out of his coat pocket. While Smith was still seated in the passenger seat, the man began firing the gun. After seeing the man fire the first shot, Smith ducked down behind the dashboard and heard what he described as “a rain of shots.” At some point during the shooting, Smith caught a glimpse of the defendant holding a gun. The defendant, however, returned fire only after receiving a gunshot wound in his leg. The entire incident, from the time the first shot was fired, lasted approximately fifteen seconds.

After the shooting had ended, the defendant drove himself and Smith to the defendant’s house. On the way there, Smith saw an automatic weapon in the defendant’s lap, but testified that he did not know what happened to the gun after that point. When they arrived at the defendant’s home, Smith helped the defendant out of the car and into the house. Smith then drove off in the car, accompanied by a person known to him only as “Anklehead.” Smith and Anklehead eventually were stopped by the police and taken into custody. Smith was taken to a police station, where he made a tape-recorded statement.

During cross-examination, the state repeatedly questioned Smith about certain inconsistencies between his testimony and his November 9, 1994 tape-recorded police interview. Smith admitted that he had told the police that he did not know the defendant’s first name and admitted that he had lied when he said that. Smith also admitted that he had not told the police that the reason he and the defendant were near the intersection of George and Day Streets was that the defendant was driving Smith home. In addition, Smith admitted that he told police that he had left the defendant’s gun in the car upon arriving at the defendant’s house, contrary to his trial testimony that he did not know what happened to the gun.

Prior to beginning redirect examination of Smith, the defendant filed a motion in limine seeking to introduce the full twelve page transcript of the interview (police statement). In support of his motion, the defendant made two arguments. He argued that admission of the police statement was necessary to counter the state’s implication that Smith recently had fabricated his testimony. In addition, the defendant argued that the police statement should have been admitted for purposes of rehabilitation, to place the apparent inconsistencies with Smith’s trial testimony in context so as not to mislead the jury.

The court denied the motion to introduce the full police statement, but stated that it would permit the defendant to introduce certain sections. With regard to the defendant’s argument that admission of the full police statement was necessary to counter an implication that Smith recently had fabricated his testimony, the court concluded that there was “no evidence of recent fabrication either explicit or implicit based on the examination [by the state].” The court also rejected the defendant’s argument that the full police statement was necessary to place Smith’s inconsistencies in context. The court ruled, however, that certain sections of the police statement were admissible for that purpose. Specifically, the court ruled that it would permit the defendant to introduce the section of the police statement relating to Smith’s knowledge of the defendant’s name as well as two sections in which Smith answered questions regarding the gun used by the defendant. The court specifically stated that those sections of the police statement would be admitted if offered by the defendant. Despite the court’s ruling that the three excerpts from the police statement were admissible, the defendant never offered them into evidence, nor did he make any subsequent attempt to have the full police statement admitted.

We begin by setting forth the applicable standard of review. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . This deferential standard is applicable ... to questions relating to prior consistent statements . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801-802, 709 A.2d 522 (1998).

As stated, the defendant did not make any further attempts to have the police statement admitted into evidence after the court’s ruling on the motion in limine. Nevertheless, on appeal, the defendant relies heavily on the prosecutor’s use of the police statement to impeach Smith’s testimony during recross-examination after the court’s ruling. “This court will not review issues of law that are raised for the first time on appeal. . . . We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Citation omitted; internal quotation marks omitted.) State v. Beliveau, 52 Conn. App. 475, 479, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A.2d 235 (1999). Because the defendant did not argue before the court that the prosecutor’s use of portions of the police statement during recross-examination of Smith rendered the full police statement admissible, that argument is unpreserved and therefore is unreviewable. Consequently, we give no consideration in our analysis to the prosecutor’s use of the police statement during recross-examination.

The remainder of the defendant’s claim amounts to the following. The defendant argues that the court should have permitted the introduction of the full police statement to rebut the prosecutor’s implication that Smith recently had fabricated his testimony that he and the defendant were present near the intersection of Day and George Streets because the defendant was driving Smith home. The defendant further argues that the full police statement should have been admitted to provide context for Smith’s statements to the police that he had left the gun in the car and did not know the defendant’s full name.

A

We first consider whether the court improperly concluded that the full police statement was not admissible to rebut the prosecutor’s implication that Smith recently had fabricated his testimony regarding the reason for the defendant’s presence at the location of the shooting.

“Although the general rule is that prior consistent statements of a witness are inadmissible, we have recognized exceptions in certain circumstances. Major exceptions include using the prior consistent statement to rehabilitate a witness who has been impeached by a suggestion of bias or interest arising subsequent to the prior statement ... by a suggestion of recent contrivance ... by a charge of faulty recollection ... or by a prior inconsistent statement.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 651-52, 789 A.2d 519, cert. denied, 261 Conn. 938, 808 A.2d 1133 (2002). “Whether the circumstances support the admission of [prior consistent statement] evidence is left to the discretion of the trial court.” (Internal quotation marks omitted.) State v. Vines, 71 Conn. App. 359, 368, 801 A.2d 918, cert. denied, 261 Conn. 939, 808 A.2d 1134 (2002). Section 6-11 of the Connecticut Code of Evidence provides in relevant part: “(a) Except as provided in this section, the credibility of a witness may not be supported by evidence of a prior consistent statement made by the witness, (b) ... If the credibility of a witness is impeached by . . . (3) a suggestion of recent contrivance, evidence of a prior consistent statement made by the witness is admissible, in the discretion of the court, to rebut the impeachment. . . .” Conn. Code Evid. § 6-11.

A review of the full police statement reveals that it does not contain any statement consistent with Smith’s testimony that he and the defendant were present near the intersection of George and Day Streets because the defendant was giving Smith a ride home. As Smith acknowledged during cross-examination, he did not mention that fact in his statement to the police. Consequently, the court did not abuse its discretion when it declined to permit the admission of the full police statement to rebut the prosecutor’s implication of recent fabrication.

B

We next address the defendant’s argument that Smith’s full statement should have been admitted to provide the jury with context for Smith’s statements. Specifically, the defendant argues that admission of the full statement was necessary to prevent the jury from being misled by Smith’s comments to police that he left the gun in the car and that he did not know the defendant’s full name. With regard to Smith’s statement to police that he did not know the defendant by any name other than “Moody,” the defendant argues that the jury should have had an opportunity to consider the precise question that the interviewing officer had asked Smith: “Do you know him by any other name, his first name or street name?” According to the defendant, that question sounds as if the officer was asking whether Smith knew the defendant by an alias, rather than asking whether Smith knew the defendant’s first name. The defendant in his principal brief further argues that the full statement should have been admitted because Smith’s statement that he left the gun in the car “implies a far greater control over the firearm than the statement, read in the context of the entire interview, conveys.”

The defendant asserts that the transcript of the full police interview with Smith was admissible under the principle that “[w]hen a party has impeached a witness with portions of a statement that are inconsistent with his or her trial testimony, the trial court may, in its sound discretion, admit the entire statement for rehabilitative purposes, in order to place the allegedly inconsistent statement into context and to prevent the jury from being misled.” State v. Hines, supra, 243 Conn. 807-808. The defendant’s argument ignores the fact that the court, in its ruling on the defendant’s motion in limine, determined that it would admit the relevant sections of the transcript upon an offer by the defendant. Despite that ruling, the defendant never offered those sections of the transcript into evidence. An examination of the transcript of the police statement reveals nothing, apart from those sections, that would have been relevant to place into context, or prevent the jury from being misled by, the statements used by the prosecutor for impeachment purposes. Consequently, if the jury was unable to place Smith’s statements in context, as argued by the defendant, it was not because of any erroneous ruling by the court, but because of the defendant’s failure to offer the sections of the police statement that the court already had ruled admissible. Because no additional sections of the transcript were relevant, we conclude that the court did not abuse its discretion by declining to admit the full transcript of the police statement into evidence to provide a context for Smith’s statements.

II

The defendant next claims that he was denied a fair trial because the prosecutor committed misconduct during cross-examination and in closing argument to the jury. Specifically, the defendant argues that the prosecutor improperly (1) compelled him to characterize the veracity of other witnesses and then emphasized that characterization in closing argument, (2) appealed to the emotions, passions and prejudices of the jurors, and (3) expressed his personal opinion as to the defendant’s guilt.

The defendant concedes that he did not object to the alleged prosecutorial misconduct at trial and that his claim therefore is not properly preserved. He may prevail on his unpreserved claim of prosecutorial misconduct, however, if he satisfies all four requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Those four requirements are: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” Id.

“To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . .

“Prosecutorial misconduct may occur in the course of cross-examination of witnesses . . . and may be so clearly inflammatory as to be incapable of correction by action of the court. ... In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury’s verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal. . . . Moreover, prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself ....

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [our Supreme Court], in conformity with courts in other jurisdictions, has focused on 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. . . .

“As is evident upon review of these factors, it is not the prosecutor’s conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole. . . . We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. . . . By reason of his [or her] office, [the prosecutor] usually exercises great influence upon jurors. [The prosecutor’s] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he [or she] should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury [has] no right to consider.” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 699-702, 793 A.2d 226 (2002).

A

The defendant first argues that the prosecutor committed misconduct by compelling him to characterize the testimony of other witnesses and then emphasizing that characterization in closing argument.

The following additional facts are relevant to that issue. At trial, the state called Carlos Stewart, Jr., a New Haven police officer, as a witness. Stewart testified to the following facts. On November 9,1994, he received a dispatch over his police radio indicating that there was an individual with a gunshot wound at 115 Beers Street. When Stewart arrived at that address, he observed a black male with a gunshot wound to his upper left leg. The wounded man identified himself as Sean Dent. A woman at the scene told Stewart that her name was Diane Dent and that she was Sean Dent’s mother.

The defendant subsequently took the witness stand. During cross-examination, the defendant admitted that he had given Stewart a false name. The cross-examination continued as follows:

“[Prosecutor]: And [Stewart] talks to your mom, right?

“[Defendant]: Yes.

“[Prosecutor]: And your mom doesn’t give him her true name, right?

“[Defendant]: My mother wasn’t out there with me.

“[Prosecutor]: Well, didn’t you just say you were— that the police officer talked to your mom?

“[Defendant]: No, I never said that.

“[Prosecutor]: Did he talk to your mom?

“[Defendant]: No.

“[Prosecutor]: He didn’t. So, when he testified that he talked to somebody who identified themselves as your mother and gave the last name Dent, that police officer wasn’t telling the truth?

“[Defendant]: Yes.

“[Prosecutor]: Okay. So, that police officer was lying?

“[Defendant]: He talked to somebody, but he didn’t talk to my mother.

“[Prosecutor]: Well, if your mother wasn’t out there, how do you know he didn’t talk to her?

“[Defendant]: He was talking to the people upstairs.

“[Prosecutor]: So, one of the people upstairs identified themselves as your mother and gave the name Dent?

“[Defendant]: Yes.”

The defendant also testified that when he and Smith had reached the defendant’s house after the shooting, the defendant told Smith to “put the gun up.” The defendant explained that this meant that he wanted Smith to put the gun someplace other than in the house. The defendant further testified that Smith stated that he had placed the gun under the steps. The prosecutor then asked the defendant, “So, when [Smith] testified the other day that he didn’t know what happened to the gun, that was a lie. Is that correct?” The defendant replied, “I don’t know.”

During closing argument, the prosecutor stated: “[Y]esterday . . . the defendant had the gall to call Officer Carlos Stewart a liar. Remember, Stewart was the one who came there. He was the first cop on the scene to aid [the defendant], who’s suffering from a gunshot wound, who’s lying outside his house. He’s lying outside. In fact, he’s lying outside the back of his house where there just happens to be, you know, four or five more shell casings fired from his gun, and he has the gall to call Stewart a liar. Now, he’s calling Officer Stewart a liar.”

Our Supreme Court has held that it is improper to ask a witness to comment on another witness’ veracity. State v. Singh, supra, 259 Conn. 712. “[I]t is well established that determinations of credibility are for the jury, and not for witnesses. . . . Consequently, questions that ask a defendant to comment on another witness’ veracity invade the province of the jury. . . . Moreover, [a]s a general rule, [such] questions have no probative value and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence. . . .

“[(Questions of this sort also create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the witness has lied. . . . This risk is especially acute when the witness is a government agent in a criminal case. ... A witness’ testimony, however, can be unconvincing or wholly or partially incorrect for a number of reasons without any deliberate misrepresentation being involved . . . such as misrecollection, failure of recollection or other innocent reason.

“Similarly, courts have long admonished prosecutors to avoid statements to the effect that if the defendant is innocent, the jury must conclude that witnesses have lied. . . . The reason for this restriction is that [t]his form of argument . . . involves a distortion of the government’s burden of proof. . . . Moreover, like the problem inherent in asking a defendant to comment on the veracity of another witness, such arguments preclude the possibility that the witness’ testimony conflicts with that of the defendant for a reason other than deceit.” (Citations omitted; internal quotation marks omitted.) Id., 707-10.

Applying those principles to the present case, we conclude that the prosecutor did not argue, as the prosecutor in Singh did, that the jury could find the defendant not guilty only by concluding that the state’s witnesses had lied. Nevertheless, the prosecutor asked the defendant during cross-examination whether Smith and Stewart had lied in their testimony. Those questions were improper because they violated the principle that a witness may not be asked to comment on another witness’ veracity.

B

The defendant next argues that the prosecutor committed misconduct by appealing to the emotions, passions and prejudices of the jurors. Specifically, he argues that the prosecutor, in closing argument, improperly appealed to the jurors’ sympathy for the victims.

The defendant takes issue with the following portion of the prosecutor’s closing argument: “You know, it’s sad here. You’ve got Mr. Doughty, who had an injury to his leg, seventeen years old at the time. It’s even sadder, you had Marquis Clark, an eighteen year old kid, suffered catastrophic injuries, and, you know, your verdict isn’t going to return Mr. Clark to his family. Your verdict isn’t going to return a normal healthy leg to Mr. Doughty. And, you know, you could perhaps feel, ‘Why, as a juror in this case, am I going to compound this and convict [the defendant] of this — these crimes?’ And that’s understandable. But ladies and gentlemen, you remember during the jury selection, you weren’t chosen to do the easy thing here. You’re here to do what the law and what justice requires.”

“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, supra, 259 Conn. 719.

We conclude that the prosecutor’s remarks were not improper. Although the prosecutor characterized the victims’ injuries as “sad” and “even sadder,” those comments, when viewed in context, cannot be said to have appealed to the passions, emotions or prejudices of the jurors. On the contrary, the point of the prosecutor’s argument was that the jury’s verdict should be based on the law and evidence, rather than on sympathy. Accordingly, we conclude that the prosecutor’s comments did not rise to the level of misconduct.

C

In his final claim of prosecutorial misconduct, the defendant argues that the prosecutor improperly expressed his personal opinion as to the defendant’s guilt. Specifically, the defendant argues that the prosecutor committed misconduct when he stated: “You know, when I was thinking about how to begin this closing statement, I was wondering, should I start with how strong the evidence in this case is, and ... I believe that it certainly proves beyond a reasonable doubt that the defendant is responsible for the death of Mr. Clark and, the shooting of Mr. Doughty. What I believe is not evidence. Okay. It’s what Ifeel I’ve proved in this case, but you are the final finders of fact. You’re going to hear the law in this case. This argument is only a persuasive element of the trial. It’s not what I believe here that is important. It’s not what [defense counsel] believes is important. It’s what you believe has been proven in this case.” (Emphasis added.)

A prosecutor may not express his own opinion, directly or indirectly, as to the guilt of the defendant. State v. Singh, supra, 259 Conn. 713. “Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Internal quotation marks omitted.) Id.

“It does not follow from this, however, that every use of rhetorical language is improper. We emphasize that closing arguments of counsel are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. . . . Therefore, because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [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.” (Citation omitted; internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 399-400, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).

“Undoubtedly, using the pronoun T in an argument increases the chances that appropriately structured arguments will deteriorate into expressions of personal opinion. Prosecutors should be circumspect and artful in designing their arguments to avoid having a jury misinterpret such remarks as improper expressions of personal opinion.” Id., 401. Nevertheless, “[t]he mere use of phrases such as I submit, I find, or I believe does not constitute improper argument. . . . Use of the personal pronoun I is a normal and ordinary use of the English language. If courts were to ban the use of it, prosecutors would indulge in even more legalese than the average lawyer, sounding even more stilted and unnatural.” (Citations omitted; internal quotation marks omitted.) Id., 400.

In the present case, the prosecutor’s statements that he believed and felt that the evidence proved the defendant’s guilt beyond a reasonable doubt did not constitute improper argument. Those comments clearly related to the strength of the evidence, rather than the prosecutor’s personal belief as to the defendant’s guilt. Because the prosecutor specifically was addressing the strength of the evidence presented at trial, there was no danger that the jury would infer that his comments were based on his personal knowledge of matters not in evidence. Furthermore, the comments were followed immediately by the prosecutor’s admonition that the beliefs of counsel were irrelevant and that only the jurors’ beliefs mattered. Although the prosecutor’s comments might have been more carefully worded, we conclude that they did not constitute improper expressions of personal opinion regarding the defendant’s guilt.

D

Having concluded in part II A that the prosecutor committed misconduct by asking the defendant to comment on the veracity of other witnesses, we must now determine whether that misconduct was so serious as to amount to a denial of due process. We conclude that it was not.

The prosecutor’s misconduct was not invited by defense conduct or argument. Although the misconduct had a bearing on a critical issue in the case, namely, the credibility of the defendant’s claim of self-defense, it was not central to that issue. While that particular type of misconduct is severe, it was limited in the present case to two brief questions on cross-examination. We also note that the state had a strong case against the defendant.

Moreover, the prejudicial effect of the misconduct was minimized both by the defendant’s answers to the improper questions and by the court’s jury instructions. As noted, when the prosecutor asked the defendant whether Stewart had lied about having been given a false name by the defendant’s mother, the defendant offered the explanation that the person Stewart had spoken to was someone other than his mother. When the prosecutor asked the defendant whether Smith had lied, the defendant answered that he did not know. The fact that the defendant gave those answers, rather than merely labeling the other witnesses as liars, minimized any risk that the jury would conclude that to acquit him, it had to find that the other witnesses had lied. In addition, the court specifically instructed the jurors that they were the sole triers of the witnesses’ credibility. For all of the foregoing reasons, we conclude that the defendant was not deprived of a fair trial by the prosecutor’s misconduct. The defendant has failed to satisfy the third prong of State v. Golding, supra, 213 Conn. 239-40, and therefore cannot prevail on his unpreserved claim of prosecutorial misconduct.

E

The defendant argues in the alternative that we should exercise our supervisory authority to reverse his conviction because of the prosecutor’s misconduct. We conclude that this is not an appropriate case for such an exercise of our supervisory authority.

“Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . [0]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 290 n.11, 750 A.2d 1059 (2000).

“Reversal of a conviction under [such] supervisory powers . . . should not be undertaken without balancing all of the interests involved: the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct.” (Internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901 (1997). “[R]eversal of a conviction under our supervisory authority generally is appropriate . . . only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal. ” (Internal quotation marks omitted.) State v. Payne, 260 Conn. 446, 465, 797 A.2d 1088 (2002).

In State v. Payne, supra, 260 Conn. 446, our Supreme Court exercised its supervisory authority to reverse a judgment of conviction because of misconduct by the same prosecutor involved in the present case. That decision was based in part on a conclusion that the prosecutor had engaged in a pattern of misconduct not only in Payne itself, but in other cases as well. Id. The court stated that “the prosecutor . . . repeatedly committed serious prosecutorial misconduct and our experience counsels that nothing short of reversal will deter similar misconduct in the future.” Id., 466. At oral argument in the present case, we ordered the parties to file supplemental briefs on whether, in light of the holding in Payne, we should likewise reverse the present case under our supervisory authority.

After reviewing the parties’ briefs, we conclude that this is not an appropriate case for reversal under our supervisory authority. As we concluded in part II D, the two brief instances of misconduct in the present case were minimally prejudicial, in contrast to the misconduct in Payne, which “significantly prejudiced [the] defendant.” Id., 464. We also note that another sanction not only was available, but has in fact already been imposed, namely, the Supreme Court’s reversal in Payne. The misconduct in the present case occurred prior to our Supreme Court’s opinion in Payne. We therefore cannot conclude from the misconduct in the present case that the sanction imposed in Payne was inadequate as a deterrent to future misconduct. In light of the minimally prejudicial nature of the misconduct in the present case and the fact that another sanction already has been imposed, we conclude that this is not a case in which the prosecutor’s conduct “is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” (Internal quotation marks omitted.) Id., 465. We therefore decline to exercise our supervisory authority to reverse the defendant’s conviction.

Ill

The defendant’s final claim is that the court failed to investigate adequately whether jurors saw certain notes made by the prosecutor, which were inadvertently given to an alternate juror. Specifically, the defendant argues that the court improperly (1) failed to ascertain whether any of the jurors had seen the notes on a previous occasion and (2) failed to ask each juror individually whether he or she had seen the transcript. We disagree with the defendant’s first argument and decline to consider the second argument because it was not properly preserved for appellate review.

The following additional facts are relevant to the defendant’s claim. On December 8,2000, the state called Gilbert Burton, a detective with the New Haven police department, as a witness. Burton testified that he interviewed the defendant on the day of the shooting and that the interview was tape recorded. The court permitted the state to play the tape recording of the interview for the jury. The court also allowed the state to distribute to the jurors copies of the interview transcript bearing the defendant’s signature. After the jurors had listened to the tape recording, the sheriff collected the copies of the transcript from them.

On December 14,2000, during the state’s cross-examination of the defendant, transcripts of the defendant’s tape-recorded statement again were distributed to the jury. Immediately before the next recess, the clerk informed the court that one of the jurors had received a copy of the transcript on which there were handwritten notes. After the recess, the court questioned B, the alternate juror who had received that copy of the transcript. B indicated to the court that although she had read the handwritten comments on the transcript, she could set aside anything she had read and make her own independent judgment based on the evidence. The defendant requested that the court excuse B or, in the alternative, to instruct B individually or the entire jury as a group not to discuss the handwritten notes. The court denied the request to excuse B, but explained to the entire jury that there had been a delay in the proceedings because B’s copy of the transcript “had some markings on it that shouldn’t have been there.” The court reminded the jurors not to discuss the case among themselves and instructed them specifically not to discuss the markings on B’s copy of the transcript. B was given a clean copy of the transcript and the trial resumed.

At the close of evidence on December 15, 2000, the defendant orally requested a mistrial on the ground that B had read the handwritten notes on the transcript. The court denied the motion for a mistrial. The jury began its deliberations, and the court dismissed the alternate jurors, including B.

On December 18, 2000, the court stated on the record that on December 15, 2000, the clerk heard other jurors saying reassuring words to B before she entered the courtroom to be questioned by the judge about the transcript. Also on December 18, 2000, the defendant filed a written motion for a mistrial. In addition to renewing the grounds for the previous motion for a mistrial, the defendant raised two additional grounds. First, the defendant sought a mistrial on the basis of the reassuring words spoken to B by other jurors. Second, the defendant argued that a mistrial was appropriate because it was not clear whether any juror had received the copy of the transcript containing the handwritten comments when the transcripts were first distributed on December 8, 2000.

The jurors were brought into the courtroom and the court proceeded to ask them two questions. First, the court inquired whether any other juror had received a transcript with extraneous markings. None of the jurors indicated that they had. Second, the court asked whether B had discussed the writing on the transcript with any of the other jurors. The jurors all responded in the negative. One juror responded that B had indicated that she had received something that she should not have, but that B did not elaborate on what she had received. The court cautioned the jury not to let the incident affect its deliberations in any way. The defendant argued that “the canvass didn’t solve the problem.” The court responded that it thought the canvass was adequate and denied the motion for a mistrial.

“To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment ... a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. . . . [Although the form and scope of such an inquiry lie within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jur[or] misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.” (Citation omitted; internal quotation marks omitted.) State v. Dorans, 261 Conn. 730, 751-52, 806 A.2d 1033 (2002).

“Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of [juror bias or] misconduct will necessarily be fact specific. No one factor is determinative as to the proper form and scope of a proceeding. It is the trial court that must, in the exercise of its discretion, weigh the relevant factors and determine the proper balance between them. . . . Consequently, the trial court has wide latitude in fashioning the proper response to allegations of juror bias. . . . We [therefore] have limited our role, on appeal, tó a consideration of whether the trial court’s review of an alleged jury misconduct can fairly be characterized as an abuse of its discretion. . . . Although we recognize that trial [c] ourts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias ... we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred.” (Internal quotation marks omitted.) State v. Roman, 262 Conn. 718, 727, 817 A.2d 100 (2003).

The defendant argues that the court improperly failed to ascertain whether any of the jurors had seen the handwritten notes on the transcript when it was first distributed on December 8, 2000. We note, however, that the court specifically asked the jurors whether any of them had received a transcript containing extraneous markings and that no juror answered that question in the affirmative. The court’s question was broad enough to encompass both occasions on which the transcripts were distributed to the jury. Although the defendant may have preferred for the court to specifically ask the jurors about the December 8, 2000 distribution of transcripts, we conclude that the court did not abuse its discretion by not asking about that specific date.

The defendant further argues that the court failed to ask each juror individually whether he or she had seen the transcript with the handwritten notes. That argument is raised for the first time on appeal. Because the defendant failed to preserve the issue properly by raising it in the trial court, it is unreviewable. See State v. Beliveau, supra, 52 Conn. App. 479.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”

       The court permitted the defendant to introduce the following passages from the transcript of Smith’s statement to the police:
      “[New Haven police department Detective Gilbert Burton]: Larry, is it not a fact that you’re in the New Haven Police Department on this date, that being 11/9/94, giving information concerning a shooting that you have information on?
      “[Larry Smith]: Yes.
      “Q. And can you name the persons if you can that was involved in this shooting?
      “A. That was involved? I don’t know the people that was on the comer. I don’t know their names.
      “Q. But do you know anyone involved in the shooting?

        “A. Yeah.
      “Q. What’s the person’s name that you know?
      “A. Moody.
      “Q. You said Moody?
      “A. Yeah.
      “Q. Do you know him by any other name, his first name or street name?
      “A. Nah, Moody.
      “Q. And can you tell me where this shooting took place?
      “A. On Day and George.

        v * H*
      “Q. You never touched a gun, is that correct?
      “A. Huh?
      “Q. Do you ever touch a gun?
      “A. No, I didn’t touch it ‘till we got to the house.
      *'Q. And what do you do with it after you get to the house?
      “A. That’s it. I help him in the house cause he’s shot.
      “Q. No, no, no. The gun we’re talking about. What do you do with the gun after you get to the house, or do you touch Hie gun before the shooting started?
      “A. No. After we get to the house, bring it in the house. Help him.
      “Q. You brought the gun in the house while you were helping Moody in the house?
      “A. Nah. I left the gun in the car. I helped Moody in the house.
      “Q. So the gun was left in the car.
      “A. Yeah. Until somebody got it out of the car.
      “Q. Do you know who took the gun out of the car?
      “A. Positively, no. I don’t. You think I’m lying but I don’t.
      “Q. Larry, after the shooting is done Moody drives off, he says he’s hit. He goes home, is that correct?
      “A. Yes.
      “Q. You help him into the house?
      “A. Yes.
      “Q. You don’t know what happened to the gun?
      “A. He left the gun in the car I guess. We weren’t thinkin’ about a gun. He was shot.
      “Q. You didn’t put the gun under the porch?
      “A. No.
      “Q. Were you asked to put the gun under the porch?
      “A. I don’t know. He was sayin’ somethin’. I think he was sayin’ — I don’t know, man, I’m not sure. I .just know he kept sayin’ I’m shot, shot.”

       Specifically, the court stated: “Those are the three sections that I believe are admissible. I will permit them to come in, and if they come in, I will instruct the jury that they are coming in to be considered only on the question of Mr. Smith’s credibility and not as proof of the facts stated in this statement. You know, if the defense chooses to offer those, they will be admitted. If not, that’s, obviously, your option as far as if you choose to offer them or not. ”

       The defendant also claims that, the court improperly declined to permit the jury to hear the tape recording of Smith’s statement. He argues that the jury should have been permitted to hear the tape recording, rather than simply read the transcript, because certain statements cannot properly be understood without hearing the speaker’s tone of voice. The defendant, however, failed to have the tape recording marked as an exhibit; the tape therefore is not part of the record on appeal. “The duty to provide this court with a record adequate for review rests with the appellant. Practice Book § 61-10. . . . Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did .... The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review.” (Citation omitted; internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 257 Conn. 359, 364, 777 A.2d 681 (2001). Accordingly, we do not review the defendant’s claim that the tape recording was excluded improperly.

       See footnote 3.

       Furthermore, as previously stated, Smith admitted at trial that he had lied to police when he told them he did not know the defendant by any name other than Moody.

       The prosecutor acknowledged his responsibility for the error, stating: “It’s a big mistake, and I apologize to the court.”

       In the interest of protecting the juror’s privacy, we choose not to use her name.

       The court inquired of the jurors as follows: “One of your members, [B], who was an alternate juror, mistakenly received a copy of a transcript that had some handwriting in the margins and some underlining on it. I think all of you received a transcript that had some corrections that [the defendant] had made with the police officer. I’m not talking about that. I’m talking about underlining and handwritten notes in the margin of the document itself. So, my first question is this: Did anyone else receive a transcript that had those sorts of marking on them?”

       “[W]hen we refer to fhe rubric of jury misconduct with respect to the jury’s exposure to extrinsic material, we include both the jury’s intentional and inadvertent exposure to such material.” State v. Brown, 232 Conn. 431, 446, 656 A.2d 997, superseded on other grounds, 235 Conn. 502, 668 A.2d 1288 (1995). Our use of the phrase “jury misconduct” in the present case should not be interpreted as implying any culpability on the part of any juror.


source: Caselaw Access Project

author: DRANGINIS J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. OSCAR HARVEY
    (AC 22355)
    Foti, Dranginis and West, Js.

      Argued January 15
    officially released June 3, 2003

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Proloy K. Das, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS J.

The defendant, Oscar Harvey, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2) and two counts of making a false statement in the second degree in violation of General Statutes § 53a-157b. On appeal, the defendant claims that the court improperly (1) limited his cross-examination of the victim’s mother and (2) denied his motion in limine seeking to exclude evidence of his extramarital affair with the victim’s mother. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the evening of December 18, 1999, the defendant drove A, the victim’s mother, to work at a department store. The defendant had agreed to babysit A’s twenty-two month old daughter (victim) at his apartment while A was at work. A testified that she called the defendant twice from work to check on the victim. During their first conversation, the defendant told A that the victim had removed her overalls and had put her finger in her vagina. In their second conversation, the defendant again told A that the victim had put her “hand up in her vagina.” At around midnight, the defendant picked A up from work and dropped her off at his apartment; he did not stay. A testified that while changing the victim’s diaper, she discovered blood and lots of baby powder in the dirty diaper. She immediately called the police.

When Officer John McGrath of the Hartford police department arrived, he found A crying hysterically. McGrath testified that he observed a lot of baby powder and a “pinkish tinge” discharge inside the victim’s diaper. He further testified that A had told him that the defendant might have sexually assaulted the victim.

The victim was transported by ambulance to the Connecticut Children’s Medical Center, where Kenneth Platt, a physician, examined her. Platt testified that he had observed vaginal bleeding and bruising, and a small laceration near the entrance of the victim’s vagina. He further testified that the victim’s injuries could not have been self-inflicted, but were consistent with a sexual assault by digital penetration.

The jury also heard testimony from a friend of A. She testified that the defendant and A had had a romantic relationship, and that the defendant had told her that he was divorced and that his daughter was dead.

On January 10, 2000, the defendant voluntarily went to the police station for questioning. Prior to being questioned by Detective Steven DiBella and Detective William Long, the defendant signed an acknowledgment form indicating that he had been advised of his Miranda rights. Initially, the defendant insisted that he did not know A, but he later admitted that she was a former tenant. He also stated that he never had baby-sat the victim. DiBella testified that on further questioning, the defendant confessed that he had been untruthful in his first statement because he did not want his wife to find out about his extramarital affair with A.

In his second written statement, the defendant admitted that he and A had had a sexual affair and that he had baby-sat the victim on the night in question. He also wrote that the victim took her clothes off and started to “play with herself.” DiBella then told the defendant that his version of the incident was not credible because the victim wore a buckled overalls outfit.

The defendant then decided to give a third written statement. In that statement, the defendant confessed that he had removed the victim’s clothes and diaper, and accidentally penetrated her vagina with his finger to see how it felt. He also wrote that when he finished the sexual assault, he put powder on the victim’s genital area and put her diaper back on.

The following day, the defendant returned to the police station to give another statement. In that statement, he stated that A had used his daughter’s social security number to get her job at the department store. At trial, the defendant recanted the sworn statements he had made on January 10, 2000, testifying that he did not know A and that he never had baby-sat the victim or touched her.

At the conclusion of the state’s case-in-chief, the defendant orally requested a judgment of acquittal, which the court denied. On June 15, 2001, the jury returned a verdict of guilty. On August 21, 2001, the court sentenced the defendant to a total effective term of twenty years incarceration, execution suspended after eighteen years, with ten years probation. This appeal followed.

I

The defendant argues that the court violated his sixth amendment right of confrontation by impermissibly curtailing his cross-examination of A. Specifically, the defendant argues that the court’s decision not to allow him to question A about her prior arrests restricted his right to demonstrate her bias in testifying against him. We decline to review the claim.

The defendant raises his claim for the first time on appeal. Additionally, the record reveals that the defendant failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. “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, [supra, 239-40].” (Internal quotation marks omitted.) State v. Parham, 70 Conn. App. 223, 231 n.9, 797 A.2d 599 (2002). “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.” (Internal quotation marks omitted.) State v. David P., 70 Conn. App. 462, 474, 800 A.2d 541, cert. denied, 262 Conn. 907, 810 A.2d 275 (2002). Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice. See State v. Rogelstad, 73 Conn. App. 17, 26 n.6, 806 A.2d 1089 (2002). Accordingly, we decline to review his unpreserved claim.

II

The defendant next claims that the court improperly denied his motion in limine seeking to preclude the state from any inquiry into the sexual relations between himself and A, a much younger woman. The defendant contends that that evidence was irrelevant and highly prejudicial. According to the state, the evidence was relevant to the material issue of why A entrusted the defendant with the care of the victim. We agree with the state.

“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. Rogelstad, supra, 73 Conn. App. 22-23. “Determinations of relevancy are within the broad discretion of the trial court and will not be overturned in the absence of clear abuse of discretion.” (Internal quotation marks omitted.) State v. Livingston, 22 Conn. App. 216, 227, 577 A.2d 734, cert. denied, 216 Conn. 812, 580 A.2d 63 (1990). “We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Emphasis in original; internal quotation marks omitted.) Van Nest v. Kegg, 70 Conn. App. 191, 201, 800 A.2d 509 (2002).

The testimony in question undoubtedly was sensitive in its nature, but as the court stated: “[S]ocietal mores have changed significantly. . . . [People are not] going to be unduly influenced by hearing evidence that the defendant . . . had any marital relations outside the marriage.” A review of the transcript clearly reveals that at trial, the defendant denied knowing A and taking care of the victim. Under those circumstances, the court, in adopting the state’s theory of admissibility, properly concluded that the evidence of the extramarital affair was relevant in that the evidence helped the jury to understand how it was that the defendant came to know and be a caretaker of the victim.

Additionally, the defendant contends that the admission of the evidence was highly prejudicial. “A court may exclude relevant evidence ‘if its probative value is outweighed by the danger of unfair prejudice . . . .’ (Emphasis added.) Conn. Code Evid. § 4.3.” State v. Sanchez, 69 Conn. App. 576, 593, 795 A.2d 597 (2002). Our Supreme Court has outlined four situations in which prejudice to the defendant could outweigh the probative value of evidence. “These are: (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.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 757, 760 A.2d 82 (2000). Applying the four factors, we conclude that none of those dangers is present here. Because the court admitted ample other evidence concerning the extramarital affair, namely, testimony from A’s friend and DiBella, which the jury heard, the defendant has not demonstrated that the admission of the contested evidence was unreasonable or that it was so prejudicial as to deny him a fair trial.

On the basis of the record before us and the circumstances of this case, we cannot say that the court abused its discretion in admitting the evidence.

The judgment is 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 (Rev. to 1999) § 53-21 provides in relevant part: “Any person who ... (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.”

       General Statutes § 53a-157b provides: “(a) A person is guilty of false statement in the second degree when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.
      “(b) False statement in the second degree is a class A misdemeanor.”

       In accordance with our policy to protect the privacy interests of the victims of sexual abuse, we decline to identify the victims or others through whom the victims’ identity may be revealed. See General Statutes § 54-86e.

       The defendant owned a residential building in Hartford. He lived and had an office in one apartment and A previously lived in another apartment.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       In his brief to this court, the defendant also based his claim on the fact that he was not allowed to question A about prior deportation proceedings. The defendant did not develop that portion of his claim or provide citations or analysis of case law in support thereof. Claims on appeal that are briefed inadequately are deemed abandoned. See State v. Rivera, 74 Conn. App. 129, 135 n.6, 810 A.2d 824 (2002).

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

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

       At trial, the defendant filed a motion in limine (1) to prohibit inquiry into the defendant’s physical abuse of A, (2) to exclude any medical records that did not directly relate to the victim’s medical treatment, including the identity of any alleged assailant, and (3) to prohibit inquiry into sexual relations between the defendant and A. The court granted the first two requests. Only the court’s ruling with respect to the introduction of evidence regarding the extramarital affair is at issue.

       At the lime of the incident, the defendant was fifty-two years old and A was twenty-one years old.

       The defendant relies on State v. Kindrick, 30 Conn. App. 56, 57-60, 619 A.2d 1 (1993), to support his claim that the trial court improperly admitted evidence of his extramarital affair with A. We find, to the contrary, that an examination of Kindrick demonstrates that it is factually distinguishable from this case. In Kindrick, we upheld the trial court’s decision to grant the defendant’s motion in limine to exclude evidence of prior sexual conduct with the victim. Unlike the defendant in Kindrick, the defendant in this case wants to exclude evidence of prior sexual conduct with someone other than the victim. Therefore, we consider the defendant’s reliance on Kindrick misplaced.


author: STOUGHTON, J.

text:
    MARY PIKULSKI v. WATERBURY HOSPITAL HEALTH CENTER
    (AC 22810)
    Schaller, Dranginis and Stoughton, Js.
    Argued March 17
    officially released June 3, 2003

      James P. Brennan, for the appellant (defendant).

      Hugh D. Hughes, with whom were William F. Gallagher and, on the brief, William P. Yelenak, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

In this negligence action, the defendant, Waterbury Hospital Health Center, appeals from the judgment rendered by the trial court after the jury verdict in favor of the plaintiff, Mary Pikulski. The court accepted the verdict and conducted a hearing pursuant to General Statutes § 52-225a to determine the amount of collateral source payments to be applied to reduce the amount of economic damages awarded to the plaintiff. On appeal, the defendant claims that the court improperly calculated the collateral source reduction pursuant to § 52-225a. We agree with the defendant.

The record discloses the following relevant facts. On January 28, 1994, the plaintiff was injured when she slipped and fell on the defendant’s premises for which she claimed damages in an action in negligence. At the trial, the plaintiff introduced evidence of medical bills in the amount of $92,013.23. The jury returned a verdict in favor of the plaintiff, but found that both parties had contributed to the plaintiffs fall and that her negligence amounted to 49 percent of the total negligence. The jury assessed economic damages at $48,980 and non-economic damages at $44,880 for total damages of $93,860 before any reduction for the plaintiffs negligence or collateral source payments.

The defendant filed a motion for a collateral source hearing pursuant to § 52-225a and Practice Book § 16-35. The total collateral source payments were $84,279.05. The parties agreed that the amount of the premiums paid by or on behalf of the plaintiff from 1994 through 2000, the years in which she had received treatment, was $26,324.46. The court, reasoning that the purpose of § 52-225a is to allow the plaintiff to keep as economic damages the amount that has not been received in the form of insurance payments, determined that the collateral source reduction should be calculated by using the economic damages actually awarded rather than the amount claimed by either party prior to a verdict. It thereupon used the amount of economic damages actually awarded, $48,980, as the gross amount of collateral source payments that could be considered. It then reduced that amount by the sum of the unpaid bills, $7700, and by 49 percent of the economic damages awarded, $24,000, an amount equal to the amount of reduction of the economic damages attributable to the plaintiffs own negligence, to produce a figure of $17,280. The court denominated that figure to be the net collateral source reduction before the offset for premiums paid by or on behalf of the plaintiff. The court determined that the plaintiff was entitled to offset the net collateral source reduction of $17,280 by the total amount of the premiums paid, $26,324.46, thus reducing to zero the collateral source reduction. The court therefore rendered judgment for the plaintiff to recover $45,991.40.

The defendant claims that the court improperly applied § 52-225a in calculating the collateral source reduction. It asserts that the amount of the collateral source reduction is the total amount paid by collateral sources for the medical bills less the sum of the costs of the benefits and an amount equal to the reduction in economic damages attributable to the plaintiffs negligence.

The plaintiff claims that because the purpose of § 52-225a is to preclude a possible double recovery, only the payments made for those medical bills determined by the jury to have been related to the case may be considered in determining the collateral source reduction. She maintains that only payments for those medical bills included in the award of economic damages may be considered as collateral source payments and that the amount of the collateral source reduction may not exceed the amount of the economic damages. We agree with the defendant.

Our opinion in Jones v. Kramer, 72 Conn. App. 789, 806 A.2d 606, cert. granted, 262 Conn. 914, 811 A.2d 1291 (2002), controls the result in this case. In Jones, we rejected a claim that only payments for medical bills specifically included in the jury’s verdict may be deducted as collateral sources and determined that “§ 52-225a requires the reduction of economic damages by the total of all collateral source payments received, less the total of premiums paid to secure the collateral sources.” Id., 792. The court’s assessment to the contrary must therefore be reversed.

The judgment is reversed only as to the amount of collateral source payments to be applied to reduce the economic damages awarded to the plaintiff and the case is remanded with direction to reduce the amount of economic damages by the total amount paid by collateral sources for the medical bills less the sum of the costs of the benefits and an amount equal to the reduction in economic damages attributable to the plaintiffs own negligence. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 52-225a provides: “(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987, or (2) personal injury or wrongful death, arising out of the rendition of professional services by a health care provider, occurring on or after October 1, 1985, and prior to October 1, 1986, if the action was filed on or after October 1, 1987, and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”

       The court awarded the plaintiff 49 percent of the damages rather than reducing the damages award by 49 percent.


text:
    STATE OF CONNECTICUT v. KWAME STEWART
    (AC 22469)
    Lavery, C. J., and Foti and Schaller, Js.

      Submitted on briefs December 10, 2002
    officially released June 3, 2003

      Kweku J. Hanson filed a brief for the appellant (defendant).

      James E. Thomas, state’s attorney, Bruce R. Lockwood, assistant state’s attorney, and John A. O'Reilly, Jr., supervisory assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Kwame Stewart, appeals from the trial court’s judgment of conviction rendered after his guilty plea to the charge of sale of narcotics in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that (1) the court improperly denied his motion to vacate his guilty plea and (2) his plea was erroneously made due to the ineffective assistance of his counsel. We affirm the judgment of the trial court.

The following facts and procedural histoiy are relevant to the defendant’s appeal. The Bloomfield police department received information from an informant that the defendant was selling crack cocaine in the greater Bloomfield area. The informant arranged a meeting between the defendant and an undercover officer. During the meeting, the officer purchased from the defendant a plastic bag containing a substance later determined to be crack cocaine. Subsequently, at a second meeting, the defendant was taken into custody and charged with the sale of narcotics.

On August 20, 2001, the defendant entered a guilty plea as to the charge. Prior to accepting the defendant’s plea, the court canvassed the defendant. After informing the defendant of the consequences of his plea, the court accepted his plea of guilty. The defendant subsequently filed a motion to vacate his guilty plea. The court denied the defendant’s motion and sentenced him to eighteen months incarceration, execution suspended, and three years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to vacate his guilty plea. Specifically, the defendant argues that (1) his plea was not voluntarily and knowingly entered because he did not fully appreciate the consequences of his plea, and (2) he was entitled to withdraw his plea pursuant to Practice Book § 39-26. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. During the plea canvass, the following colloquy occurred between the court and the defendant:

“The Court: If you are not a citizen, Mr. Stewart, I do have to advise you that conviction of the offense to which you are pleading guilty may have the consequences of deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. Do you understand that, as well, sir?

“The Defendant: Yes.”

Before accepting the defendant’s plea, the court asked the defendant whether he understood that he was waiving his right to a trial. The defendant again responded, “Yes.” The court accepted the defendant’s guilty plea after he indicated that he understood the nature and consequences of his plea. The court found that the plea was voluntarily and understandingly made with the assistance of competent counsel.

On October 16, 2001, the defendant obtained new counsel and filed a motion to vacate his guilty plea on the ground that he did not fully appreciate the consequences of his guilty plea. After oral argument, the court denied the defendant’s motion to vacate, noting that the defendant had numerous opportunities to withdraw his plea while he was being canvassed.

A

The defendant first argues that the court improperly denied his motion to vacate because his plea was not voluntarily and knowingly made. Specifically, he contends that his plea was not voluntary and knowing because he was unaware that there was a certainty, rather than a mere possibility, that he would be deported as a result of his conviction. We are not persuaded.

“A guilty plea, once accepted, maybe withdrawn only with the permission of the court. . . . The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27]. . . . Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused.” (Internal quotation marks omitted.) State v. Gundel, 56 Conn. App. 805, 812, 746 A.2d 204, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000).

Practice Book § 39-27 provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plead of guilty after acceptance are as follows . . . (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . . .” That provision is consistent with the United States Supreme Court’s holding that acceptance of a guilty plea comports with due process only if the plea was voluntarily and knowingly made. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “The Boykin constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20]. . . . Those rules provide that the trial court must not accept a guilty plea without first addressing the defendant personally in open court and determining that the defendant fully understands the items enumerated in [Practice Book] § 39-19, and that the plea is made voluntarily pursuant to [Practice Book] § 39-20.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 504, 752 A.2d 49 (2000). “There is no requirement, however, that the defendant be advised of every possible consequence of such a plea.” (Emphasis added.) State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987). “Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow. . . . In Connecticut, the direct consequences of a defendant’s plea include only [those enumerated in Practice Book § 39-19 (2), (3) and (4)].” (Internal quotation marks omitted.) State v. Irala, 68 Conn. App. 499, 519, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148 (2002). If a defendant is not informed of all possible indirect or collateral consequences, his plea is not thereby rendered unintelligent or involuntary. State v. Andrews, supra, 505.

General Statutes § 54-1 requires the court to advise the defendant during his canvass that a conviction of the offense with which the defendant was charged may have the consequence of deportation. In this case, the court recited the statutory language with near precision. The defendant’s affirmative responses to the canvass satisfied the requirements for ensuring voluntary pleas.

“The onus rests . . . with the defendant and [the defendant’s] counsel to determine the final result applicable to [the defendant’s] situation under federal immigration law before entering a plea.” State v. Irala, supra, 68 Conn. App. 520. The defendant in the present case concedes that he was clearly informed, in accordance with state law, of the possibility of deportation. We previously have held that such a warning is adequate and that the failure to inform a defendant that his or her conviction will certainly result in deportation does not render a plea unintelligent or involuntary in the constitutional sense. Id., 519-20. We therefore conclude that the court did not improperly deny the defendant’s motion to vacate his guilty plea on the ground that it was not voluntary and knowingly made.

B

The defendant next argues that he was entitled to withdraw his plea under Practice Book § 39-26. Specifically, the defendant argues that the intended purpose of Practice Book § 39-26 is to entitle the defendant to withdraw his plea for any credible reason that is not outweighed by any prejudice to the state. The defendant makes that argument for the first time on appeal.

“The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5. “The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis in original; internal quotation marks omitted.) State v. Taylor, 12 Conn. App. 427, 431 n.5, 531 A.2d 157 (1987). The defendant also has not requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Accordingly, we decline to review the defendant’s unpreserved claim that he was entitled to withdraw his guilty plea pursuant to Practice Book § 39-26.

II

The defendant next claims that his plea was erroneously made due to ineffective assistance of counsel. Specifically, he argues that his attorney provided ineffective representation by failing to inform him that his guilty plea would result in certain deportation. We decline to review that claim because it is unpreserved.

As previously stated, a claim must be distinctly raised at trial. In his brief, the defendant argues that he “tangentially” raised the issue at the oral argument on his motion to vacate by informing the court that his prior counsel had not alerted him to the danger of deportation. A claim briefly suggested is not distinctly raised. McKiernan v. Caldor, Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981). “The defendant’s failure to raise distinctly in the trial court the grounds upon which he now relies effectively deprived the trial court of the opportunity to consider the matter in the first instance.” State v. Rogers, 199 Conn. 453, 462, 508 A.2d 11 (1986). Moreover, the defendant has not requested review of his claim pursuant to State v. Golding, supra, 213 Conn. 239-40. “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996). Therefore, this court declines to engage in that analysis.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . . ”

       Practice Book § 39-26 provides: “A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
      Practice Book § 39-20 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo conlendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       General Statutes § 54-lj provides: “(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: ‘If you are not a citizen of the United States, you are hereby advised that conviction of (he offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’
      “(b) The defendant shall not be required at the time of the plea to disclose his legal status in the United States to the court.
      “(c) If the court fails to advise a defendant as required in subsection (a) of this section and the defendant not later than three years after the acceptance of the plea shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”

       We note that the defendant, at oral argument on his motion to vacate his guilty plea, referred to his attorney at the pleading stage as a “brilliant, well respected defense counsel.”

       Even if we were to review the claim under Golding, the claim would fail under Golding’s first prong, which requires that the defendant provide (his court with an adequate record for review. In this case, the record is inadequate and fails to provide the court with facts on which to base a decision.