text:
    STATE OF CONNECTICUT v. EDUARDO GARCIA
    (AC 23118)
    Laveiy, C. J., and West and Mihalakos, Js.

      Submitted on briefs December 4, 2003 —
    officially released January 27, 2004

      Steven B. Rasile, special public defender, filed a brief for the appellant (defendant).

      Scott J. Murphy, state’s attorney, and Christopher T. Godialis and Brian Preleski, assistant state’s attorneys, filed a brief for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Eduardo Garcia, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1). On appeal, the defendant claims that (1) the court abused its discretion by failing to order a competency hearing, (2) there was insufficient evidence to support his conviction of assault in the first degree and (3) the court improperly instructed the jury. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Charlene Rodriguez lived with the defendant, who was her boyfriend, at the home of the defendant’s mother. Rodriguez and the defendant had a child who was approximately five months old. Rodriguez was attending a program for young parents to complete her high school education. Although the program provided a day care service, on the morning of January 18, 2000, Rodriguez did not take her daughter with her because snow had been falling. A teacher from the school picked up Rodriguez, who left the child in the sole care and custody of the defendant. The child was behaving as usual and did not have any visible injuries when Rodriguez left between 8 a.m. and 8:30 a.m.

Rodriguez returned from the program between 12:30 p.m. and 1 p.m. She immediately noticed that the child was wearing different clothes, including a hat. When Rodriguez asked why the child was wearing a hat, the defendant removed the hat, thereby revealing various injuries. Specifically, Rodriguez noticed that the child’s left temple was “dented in,” there was bruising on both sides of her head and scratches on her face. The defendant stated that he had been giving the child a bath when she slipped out of his hands and flipped over the “baby bathtub.” As a result, the child hit the sink and fell to the floor. Rodriguez questioned that explanation because, in her experience, the child was not yet capable of overturning the “baby bathtub.”

Rodriguez noticed changes in the child’s behavior that day; specifically, she would not eat and slept all the time. Rodriguez wanted to take her daughter for medical treatment, but the defendant prevented her from leaving or from using the telephone. He also told Rodriguez that she was not to mention the child’s injuries to his mother. The next morning, Rodriguez was able to sneak downstairs to use the telephone and called one of her teachers to request transportation. She lied to the defendant and told him that she needed to take the child with her to obtain government assistance. Rodriguez then was able to obtain medical treatment for her daughter. The child was hospitalized with multiple skull fractures, bleeding in the brain and soft tissue swelling. Those injuries were caused by repeated forcible trauma and were consistent with child abuse.

The defendant subsequently was arrested, tried before a jury and convicted of assault in the first degree and risk of injury to a child. The defendant pleaded guilty to part B of the information, which subjected him to penalty enhancements pursuant to General Statutes §§ 53a-40b and 53a-59 (b) (2). On April 29, 2002, the defendant was sentenced to an effective prison term of twenty-seven years. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion by failing to order a competency hearing. Specifically, the defendant argues that the court, sua sponte, should have ordered a hearing during the trial on the basis of his behavior. We disagree.

The defendant asserts that although his claim was not raised at trial, he is entitled to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“In Golding, our Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Bangulescu, 80 Conn. App. 26, 32, 832 A.2d 1187 (2003). We will review the defendant’s claim because we agree that the first and second Golding prongs are satisfied. See State v. George B., 258 Conn. 779, 785, 785 A.2d 573 (2001). The defendant’s claim, however, fails to meet the third prong.

The following additional facts are necessary for the resolution of the issue. On September 7, 2000, defense counsel made a motion for a hearing pursuant to General Statutes § 54-56d to determine whether the defendant was competent to stand trial. The court granted the motion. On October 5, 2000, the court heard testimony from members of the medical team that evaluated the defendant. The defendant refused to cooperate with or respond to the team. The defendant also had defecated and smeared fecal material on his face, arms and hands. As a result, the evaluation team opined that at that time, the defendant was not competent to stand trial, but that there was a substantial probability that competency could be restored. The defendant was placed in the Whiting Forensic Institute (institute) for treatment.

On April 30, 2001, defense counsel waived a competency hearing and stipulated that the defendant was competent to stand trial. That was done on the basis of a February 26, 2001 report from the institute in which the evaluation team unanimously determined that the defendant had regained competence. On January 14, 2002, prior to the start of the trial, the court noted on the record that the defendant had refused to speak with counsel. The court also stated that it had observed the defendant’s interactions with correction officers and marshals. Additionally, the court was satisfied with the defendant’s responses to its questions. The court, on that basis, reminded the defendant that he had been declared competent and informed him that the trial would proceed.

At the outset, we set forth the relevant standard of review and legal principles that guide our resolution of the issue. “We review the court’s determination of competency under an abuse of discretion standard. ... In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. . . .

“The conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1 .... This constitutional mandate is codified in . . . [General Statutes] § 54-56d (a), which provides that [a] defendant shall not be tried, convicted or sentenced while he is not competent. [A defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.] . . . This statutory definition mirrors the federal competency standard enunciated in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam). According to Dusky, the test for competency must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him. . . . Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial. . . .

“Although § 54-56d (b) presumes the competency of defendants, when a reasonable doubt concerning the defendant’s competency is raised, the trial court must order a competency examination. . . . Thus, [a]s a matter of due process, the trial court is required to conduct an independent inquiry into the defendant’s competence whenever he makes specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency. . . .

“[T]he rule of Pate v. Robinson [383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966)] imposes a constitutional obligation, under the due process clause, to undertake an independent judicial inquiry, in appropriate circumstances, into a defendant’s competency to stand trial. . . . When a Pate inquiry is required, a court may not rely on the defendant’s subjective appraisal of his own capacity or on the court’s personal observations of the defendant but must hold an evidentiary hearing into the defendant’s competence. . . . Competence to stand trial is a legal question, which must ultimately be determined by the trial court. . . . The decision to grant [an evidentiary] hearing [into a defendant’s competence] requires the exercise of sound judicial discretion.” (Citations omitted; internal quotation marks omitted.) State v. Cuesta, 68 Conn. App. 470, 480-82, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002).

In the present case, the defendant cites several instances of behavior at trial that he ar gues constituted substantial evidence of mental impairment and required that there be a competency hearing. First, during cross-examination of Rodriguez, the defendant passed a note to his counsel that stated that he wanted the cross-examination to stop. The jury was excused, and the defendant stated that he did not understand what was going on. After being questioned by the court, however, the defendant indicated that he wanted the cross-examination to continue. The court stated that it was becoming concerned that the defendant was attempting to “build another § 54-56d record.”

After the state rested its case, the defendant informed his counsel that he wanted to exercise his right to testify. The defendant, however, refused to inform his counsel as to the topics and content of his testimony. During direct examination, the defendant testified that he had struck the child in the head with a closed fist. He then began to embellish and to fabricate testimony by stating that he had hit the child all day, had struck her with such force that her jawbone came out of her face, and then grabbed a knife and stabbed her in the stomach.

At the conclusion of the defendant’s testimony, the jury was excused, and the court again reiterated that the defendant had been declared competent and that the reason for the defendant’s wildly false testimony was an attempt to introduce an insanity defense. Defense counsel orally requested a hearing pursuant to § 54-56d. The court reviewed the February 26, 2001 competency report, which had documented the defendant’s prior behavior and concluded that the defendant had made efforts to delay the proceedings. The court stated that “[b]asically, [the experts’] conclusion is that he is malingering and he has [made] a conscious effort not to be cooperative .... And I think this is just another continuation of the whole thing of malingering and trying to set up a phony deal.” The court determined that despite the defendant’s embellished testimony, a hearing was not required.

After the defendant was convicted, the court ordered a competency evaluation as part of the presentence investigation. On the basis of the evaluation, another § 54-56d examination ensued. The evaluation team, in a report dated April 12, 2002, again unanimously concluded that the defendant was competent. Starting with the February 26, 2001 report, all of the various evaluation reports from the institute concluded that the defendant was competent to stand trial. The reports also stated that he had engaged in a deliberate pattern of behavior to delay his trial. For example, the February 26, 2001 report concluded that “[i]t should be noted for the court that [the defendant] has demonstrated the capacity to engage in extremely provocative behavior in an effort to thwart the judicial process; however, it is clear that this behavior is not the product of a serious mental disorder.” (Emphasis added.)

We also note that after the defendant’s “embellished” testimony and confession, the court excused the juiy and reviewed the competency report. On the basis of the report and the court’s observations, it was within the court’s discretion to find that the defendant was malingering. As we have stated, “[t]he trial judge is in a particularly advantageous position to observe a defendant’s conduct during a trial and has a unique opportunity to assess a defendant’s competency. A trial court’s opinion, therefore, of the competency of a defendant is highly significant.” State v. Murray, 28 Conn. App. 548, 553-54, 611 A.2d 916 (1992), appeal dismissed, 225 Conn. 524, 624 A.2d 377 (1993).

This case calls to mind the policy that although “[t]he trial court should carefully weigh the need for a hearing in each case . . . this is not to say that a hearing should be available on demand.” (Emphasis added; internal quotation marks omitted.) State v. Williams, 65 Conn. App. 59, 86, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001); State v. Janice, 20 Conn. App. 212, 214, 565 A.2d 553, cert. denied, 213 Conn. 811, 568 A.2d 795 (1989).

We conclude, therefore, that the record indicates that the court properly weighed and considered all of the evidence regarding the defendant’s competence prior to, during and after the trial. The court, therefore, did not abuse its discretion, and the defendant’s claim fails to meet the third prong of Golding.

II

The defendant next claims that there was insufficient evidence to support his conviction of assault in the first degree. Specifically, the defendant argues that no reasonable jury could have found that he acted with extreme indifference to human life or that he recklessly engaged in conduct creating a risk of death to another, both necessary elements for a conviction of assault in the first degree pursuant to § 53a-59 (a) (3). We are not persuaded.

At the outset, we set forth our standard of review. “In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Gentile, 75 Conn. App. 839, 862, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003).

“We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Best, 56 Conn. App. 742, 752, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000).

From the evidence presented at trial and the reasonable inferences that could be drawn therefrom, we conclude that the state produced ample evidence that the defendant had acted with extreme indifference to human life and that he recklessly engaged in conduct that created a risk of death to another. The defendant testified that he repeatedly struck the child in the head with his fist. Furthermore, the jury heard evidence that on January 18, 2000, the child was not suffering from any injury when her mother left in the morning, but that when the mother returned later that afternoon, the child had suffered visible injuries and demonstrated changes in her behavior. The defendant was alone with the child and had sole custody of her during the time period that she suffered her injuries. He prevented Rodriguez from seeking medical attention or informing anyone of the child’s injuries. The defendant gave two versions of the incident to the authorities, both of which were false. Finally, two physicians testified that the child’s injuries could not have occurred in the manner described by the defendant and were the likely result of forcible trauma on repeated occasions that was consistent with child abuse.

On the basis of the cumulative effect of all of the evidence, a rational jury could have found that the defendant had caused repeated forcible trauma that resulted in multiple skull fractures, bleeding of the brain and soft tissue swelling, and that such actions were a gross deviation from the standard of conduct a reasonable person would observe. Further, the jury reasonably could have concluded that the defendant had evinced an extreme indifference to human life and that he recklessly engaged in conduct that created a risk of death to the child. In short, the jury reasonably could have returned a guilty verdict with respect to the charge of assault in the first degree. We conclude, therefore, that the defendant’s insufficiency of the evidence claim is without merit.

Ill

The defendant’s final claim is that the court improperly instructed the jury by failing to define “extreme indifference to human life.” Specifically, he argues that the court failed to provide (1) any specific, in-depth instructions defining recklessness and (2) an adequate definition of “extreme indifference to human life.” We disagree.

The defendant concedes that his claim was not preserved at trial and therefore seeks review pursuant to Golding. We will review the defendant’s claims of instructional error because the record affords us an adequate basis on which to do so, and the claimed errors are of constitutional magnitude because claims of instructional error of the elements of a charged crime implicate the defendant’s due process right to a fair trial. See State v. Gonzalez, 69 Conn. App. 649, 656-57, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002). “Even though we review this claim under the third prong of Golding, we note that [w]hen the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial . . . is seriously undercut.” (Internal quotation marks omitted.) State v. Cruz, 75 Conn. App. 500, 509-10, 816 A.2d 683, cert. granted on other grounds, 263 Conn. 921, 822 A.2d 243 (2003). The defendant’s claims fail under Golding’s third prong because he fails to demonstrate that a constitutional violation clearly existed and that it clearly deprived him of a fair trial.

We now set forth the applicable standard of review. “Where . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict. ... In evaluating the particular charges at issue, we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view [them] as improper. ” (Internal quotation marks omitted.) State v. Ortiz, 79 Conn. App. 667, 674, 830 A.2d 802, cert. denied, 266 Conn. 933, 837 A.2d 806 (2003).

In its charge to the jury, the court first read the text of § 53a-59 (a) (3) and then identified each of the elements twice. The court then continued its charge: “The state must prove beyond a reasonable doubt that the circumstances evince an extreme indifference to human life on the part of the defendant. Indifference means simply not caring. It means lacking any interest in a matter one way or the other. Extreme indifference is more than carelessness or ordinary recklessness. You must find circumstances showing an extreme indifference to human life.

“Second, the state must prove beyond a reasonable doubt that under the circumstances as described, the defendant recklessly engaged in conduct that created a risk of death to another person. I’ll define recklessness under our statutes. Recklessly: A person acts recklessly with respect to a result or to a circumstance described by statute, defining an offense, when he is aware of and consciously disregards a substantial and unjustifiable risk that such results will occur or that such circumstances exists. The risk must be of such a nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in a situation.” After defining the “reasonable person” standard, the court then explained that a gross deviation is a “great or substantial deviation, not just a slight or moderate deviation. There must be a reasonable — there must be a great or substantial difference between, on the one hand, the defendant’s conduct in disregar ding a substantial and unjustifiable risk, and on the other hand, what a reasonable person would have done under the circumstances. Whether a risk is substantial and unjustifiable is a question of fact for you to determine under all of the circumstances.”

We are satisfied that the court’s charge adequately guided the jury in reaching its verdict. The court read to the jury the statutory definition of recklessness. It further informed the jury that recklessness was a “gross deviation” from the conduct of a reasonable person. It also defined the term “gross deviation” for the jury. The charge was more inclusive than others we have deemed proper. See, e.g., State v. Bunker, 27 Conn. App. 322, 325-29, 606 A.2d 30 (1992).

The court’s charge with respect to the term “extreme indifference to human life” also was proper. “Our Penal Code does not define, in title 53a of the General Statutes, what constitutes extreme indifference to human life. . . . Therefore, it is appropriate to look to the common understanding of the term as expressed in a dictionary. . . . This court has done so in the past. Examining the term as it is used in title 53a of the General Statutes, we have stated that the legislature modified the level of indifference required with the adjective extreme, which has been defined to mean existing in the highest or greatest possible degree. ... It is synonymous with excessive. . . . What evinces an extreme indifference to human life is really a question of fact.” (Citations omitted; internal quotation marks omitted.) State v. Colon, 71 Conn. App. 217, 225, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

In its charge, the court stressed that “indifference” meant “not caring” and “lacking any interest in the matter . . . .” It also instructed that “extreme indifference” is more than “careless or ordinary recklessness.” We affirmed a similar charge in State v. Bunker, supra, 27 Conn. App. 326, and conclude that the court gave the jury a clear understanding of the term “extreme indifference to human life.” Accordingly, the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The child had been bom approximately three months premature and required hospitalization for ten weeks after her birth.

       The defendant demonstrated a history of that type of behavior throughout the proceeding's. Such an incident was reported on May 29, 2000, after the defendant’s request to be placed in protective custody was denied. His actions were repeated on September 20, 2000, the day of his competency examination and at several times in November, 2000. At the defendant’s competency and sentencing hearing, the court stated that the defendant had been “urinating in the cell and holding the feces in his hands with his pants down.”
      Man Liu, a forensic psychologist, testified at the sentencing hearing that he had examined the defendant and opined that the defendant’s bizarre behavior was done on purpose. He further testified that such behavior is very rare and only manifests itself in individuals suffering from the most severe forms of mental illness, none of which had been diagnosed in the defendant.

       The medical evidence at trial did not even remotely suggest that the child sustained either an injury to her jaw or any sort of stab wound.

       “Malinger” has been defined as “[t]o feign sickness or any physical disablement or mental lapse or derangement, especially for the purpose of escaping the performance of a task, duty, or work, or for purpose of continuing to receive disability payments. Person who consciously feigns or simulates mental or physical illness for gain.” (Emphasis added.) Black’s Law Dictionary (6th Ed. 1990).

        Our Supreme Court has accepted a definition of “malingering” as “the conscious manipulation of facts and details for self-serving ends. Basically lying about your condition so that people will believe [that you suffer from the feigned condition].” (Internal quotation marks omitted.) State v. Medina, 228 Conn. 281, 307 n.32, 636 A.2d 351 (1994).

       The defendant concedes that he failed to preserve his claim at trial and, therefore, seeks Golding review. “Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. . . . Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Citation omitted; internal quotation marks omitted.) State v. Ward, 76 Conn. App. 779, 795 n.8, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003).

       The defendant does not challenge the third element of § 53a-59 (a) (3), which is that he “thereby cause[d] serious physical injury to another person . . .

       “Generally, póstenme false exculpatory statements may only be considered by the jury as circumstantial evidence of consciousness of guilt.” State v. Brown, 199 Conn. 14, 26-27, 505 A.2d 690 (1986). The fact that such statements are circumstantial evidence does not, however, dimmish their probative value.

       The defendant also argues that the court failed to distinguish the charge of assault in the first degree from the lesser included offense of assault in the third degree. The court did differentiate the two degrees of assault in its charge. Furthermore, the jury never reached the issue of assault in the third degree because it convicted the defendant of assault in the first degree. That claim, therefore, does not merit any further discussion.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY A. GROPPI
    (AC 23000)
    Foti, Schaller and McLachlan, Js.

      Argued October 16, 2003 —
    officially released February 3, 2004

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Christopher L. Morano,
      chief state’s attorney, and John F. Blawie, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Jeffrey A. Groppi, appeals from the judgment of conviction rendered by the trial court subsequent to his plea of guilty to the charge of fraud in the sale of securities in violation of General Statutes § 36b A. On appeal, the defendant claims that (1) his guilty plea was not knowingly and voluntarily made because the court failed to inform him of one of the direct consequences of his plea and (2) the court improperly failed to make a determination, pursuant to General Statutes § 53a-28 (c), of his ability to pay restitution. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. The defendant was a manager of Empire Investing Group, which dealt in commodity futures and foreign currency trading. From 1998 to 1999, the defendant, along with other employees of Empire Investing Group, personally retained and used the sum of $115,500 that had been given to the firm to be invested.

The defendant was arrested and charged with seven counts of fraud in the sale of securities in violation of General Statutes § 36b-4. The defendant and the state reached a plea agreement under which he would plead guilty to one count of fraud in the sale of securities, pay $12,500 in restitution at the time of sentencing and pay $85,000 in restitution over the course of fifty-nine months. The agreement was presented to the court. The specific amount of restitution was not discussed at the plea canvass, but was mentioned twice during sentencing. At the sentencing proceeding, the prosecutor stated that “[t]he plea agreement at the time of the plea called for . . . [restitution, $85,000 joint and several, after payment of $12,500 by each accused.” The court stated that “[t]he balance of $85,000, which will be joint and severable restitution, will be ordered over the first fifty-nine months of probation at the rate of $1425 a month.” Neither defense counsel nor the defendant took issue with the court’s statements that the defendant would make restitution in the amount of $85,000. This appeal followed.

I

The defendant claims that his guilty plea was not knowingly and voluntarily made because the court failed to inform him of one of the direct consequences of his plea. The defendant argues that the restitution of $85,000 imposed pursuant to the plea agreement was a direct consequence of his guilty plea and, as such, the court was required to canvass him regarding restitution. We disagree.

At the outset, we set forth our standard of review. Our cases instruct that we conduct a plenary review of the circumstances surrounding the plea to determine if it was knowing and voluntary. See State v. Irala, 68 Conn. App. 499, 507, 792 A.2d 109 (“[a]t the appellate level, a ‘determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances’ ”), 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); see also In re Jason C., 255 Conn. 565, 571-75, 767 A.2d 710 (2001) (conducting full and complete review); State v. Andrews, 253 Conn. 497, 502-14, 752 A.2d 49 (2000) (same); United States v. Good, 25 F.3d 218, 219 (4th Cir. 1994) (de novo review); United States v. Roberts, 5 F.3d 365, 368 (9th Cir. 1993) (same).

A defendant entering a guilty plea waives several fundamental constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Internal quotation marks omitted.) State v. Andrews, supra, 253 Conn. 503. To satisfy that requirement, a defendant must be fully aware of the direct consequences of his or her plea. See Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 146, 325 L. Ed. 2d 747 (1970). Direct consequences are generally defined as consequences that are “definite, immediate and [that have] largely automatic effect[s] on the range of the defendant’s punishment.” Cuthrell v. Director, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S. Ct. 362, 38 L. Ed. 2d 241 (1973). In Connecticut, “Practice Book § 39-19 defines the scope of the . . . constitutional mandate that a defendant be advised of all direct consequences of his plea . . . .” State v. Andrews, supra, 507. 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.”

The defendant argues that the restitution component of his sentence was a direct consequence of his guilty plea and, therefore, the court improperly failed to include the restitution in the plea canvass. The threshold issue of his claim is whether restitution is considered a direct consequence. “[0]ur case law clearly and consistently has limited the direct consequences of a guilty plea to those consequences enumerated in Practice Book § 39-19.” State v. Andrews, supra, 253 Conn. 507; see also State v. Gilnite, 202 Conn. 369, 383-84, 521 A.2d 547 (1987). Our Supreme Court also has stated, albeit in obiter dictum, that it does “not hold, as a matter of law, that there can never be direct consequences to a guilty plea, i.e., consequences covered by the [Boykin v. Alabama, supra, 395 U.S. 242] constitutional mandate, beyond those listed in Practice Book § 39-19. Rather, we conclude that neither this court nor the Appellate Court has identified any such consequences to date.” State v. Andrews, supra, 507 n.8. Despite that reservation, we find no reason to expand the list of direct consequences set forth in Practice Book § 39-19. Because restitution is not a direct consequence of a guilty plea, the court was not required to canvass the defendant to ensure that he had a full understanding of the relationship between a guilty plea and restitution. The defendant’s claim fails.

II

The defendant’s second claim is that the court improperly failed to make a determination, pursuant to § 53a-28 (c), 6of his ability to pay restitution. The defendant argues that § 53a-28 (c) is mandatory and nonwáivable, and that the court’s failure to conduct an analysis of his ability to pay deprived him of a statutory right under § 53a-28 (c).

We note that the defendant’s claim is unpreserved. The defendant argues that “[a] claim that a particular statutory right is ‘nonwaivable as a matter of law,’ made for the first time on direct appeal, is reviewable despite the fact that it was not raised [at trial].” In support of that proposition, the defendant cites In re Manuel R., 207 Conn. 725, 733-36, 543 A.2d 719 (1988). A careful reading of In re Manuel R. has failed to unearth that principle.

The defendant also argues that his claim is reviewable under the plain error doctrine. See Practice Book § 60-5. Plain error review may be appropriate when a court fails to follow or apply a statute that is clearly relevant to the case. See generally State v. Thornton, 55 Conn. App. 28, 739 A.2d 271 (1999). Thus, the issue is whether a court is required to undertake an analysis pursuant to § 53a-28 (c) when, as part of a plea bargain, the defendant agrees to pay restitution.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc). The language of the statute is the most important consideration in determining the meaning of the statute. Id. In addition, the legislature has stated that courts should first look to the “plain meaning” of the words of the statute when interpreting the statute’s meaning. Public Acts 2003, No. 03-154. In light of those principles, we turn to the language of the statute.

Subsection (a) of § 53a-28 provides that “[e]xcept as provided in section 17a-699 and chapter 420b, to the extent that the provisions of said section and chapter are inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.” The word “shall” suggests that compliance with the statute is mandatory. See Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 239-40, 794 A.2d 1016 (2002). Therefore, a court must utilize the statute when sentencing a defendant unless the statute does not apply to a particular situation.

In subsection (c), § 53a-28 provides that the court “shall consider” four factors “[i]n determining the appropriate terms of financial restitution . ...” In subsection (c), the statute provides that “[i]f the court determines that the current financial resources of the offender or the offender’s current ability to pay based on installments or other conditions are such that no appropriate terms of restitution can be determined, the court may forego setting such terms. ...”

The legislature’s continued use of the word “determine” is significant. “Determine” means, among other things, “to find out or come to a decision about by investigation, reasoning, or calculation.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1999). “Determine” also means “to settle or decide by choice of alternatives or possibilities.” Id. As it is used in the context of § 53a-28 (c), the word “determine” implies that the legislature intended that subsection to apply when the court itself was grappling with the decision to impose restitution; the factors set forth in § 53a-28 were intended to guide the court’s “investigation, reasoning, or caiculation[s].” Merriam-Webster’s Collegiate Dictionary, supra.

When a court imposes restitution pursuant to a plea agreement, it does not choose between alternatives or reach a conclusion after investigation, reasoning or calculation. Rather, the court accepts an agreement between the state and the defendant. The plea negotiations and agreement between the defendant and the state relieve the court of the obligation to conduct an analysis pursuant to § 53a-28 (c) to determine “the appropriate terms of financial restitution . . . .” That is because the defendant and the state have had the opportunity to examine the circumstances, discuss various possibilities, and determine the most efficient and favorable outcome.

We conclude that the court did not commit plain error when it did not conduct an analysis pursuant to § 53a-28 (c) during sentencing because § 53a-28 (c) does not apply to plea bargains in which the defendant and the state already have agreed to a restitution amount. If we were to reach the opposite result, we would be holding, in effect, that restitution is a direct consequence of a guilty plea. That opposite result would create a situation in which restitution would eclipse in importance the other direct consequences set forth in Practice Book § 39-19. Not only would the court have to canvass a defendant regarding the issue of restitution, the court also would have to analyze whether the defendant’s answers to its canvass questions made sense in light of the relevant statutory criteria. Section 53a-28 (c) does not require that action by the court. The court, therefore, did not commit plain error by not conducting an analysis pursuant to § 53a-28 (c) prior to imposing restitution in accordance with the plea agreement between the state and the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 36b-4 provides: “(a) No person shall, in connection with the offer, sale or purchase of any security, directly or indirectly: (1) Employ any device, scheme or artifice to defraud; (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or (3) engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
      “(b) No person shall, in connection with the offer, sale or purchase of any security, directly or indirectly engage in any dishonest or unethical practice.”

       There also was a provision for incarceration, but that provision is not relevant to the appeal.

       Other defendants agreed to pay restitution as well.

       We note that a court always may canvass a defendant beyond the requirements of Practice Book § 39-19.

       General Statutes § 53a-28 (c) provides: “In addition to any sentence imposed pursuant to subsection (b) of this section, if (1) apersonis convicted of an offense that resulted in injury to another person or damage to or loss of property, (2) the victim requests financial restitution, and (3) the court finds that the victim has suffered injury or damage to or loss of property as a result of such offense, the court shall order the offender to malee financial restitution under terms that it determines are appropriate. In determining the appropriate terms of financial restitution, the court shall consider: (A) The financial resources of the offender and the burden restitution will place on other obligations of the offender; (B) the offender’s ability to pay based on installments or other conditions; (C) the rehabilitative effect on the offender of the payment of restitution and the method of payment; and (D) other circumstances, including the financial burden and impact on the victim, that the court determines makes the terms of restitution appropriate. If the court determines that the current financial resources of the offender or the offender’s current ability to pay based on installments or other conditions are such that no appropriate terms of restitution can be determined, the court may forego setting such terms. The court shall articulate its findings on the record with respect to each of the factors set forth in subparagraphs (A) to (D), inclusive, of this subsection. Restitution ordered by the court pursuant to this subsection shall be based on easily ascertainable damages for injury or loss of property, actual expenses incurred for treatment for injury to persons and lost wages resulting from injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses, but may include the costs of counseling reasonably related to the offense. Restitution ordered by the court pursuant to this subsection shall be imposed or directed by a written order of the court containing the amount of damages for injury or loss of property, actual expenses incurred for treatment for injury to persons and lost wages resulting from injury as ascertained by the court. The order of the court shall direct that a certified copy of the order be delivered by certified mail to the victim and contain an advisement to the victim that the order is enforceable as a judgment in a civil action as provided in section 53a-28a.”

       The defendant’s claim is unpreserved, no doubt, because he agreed to pay restitution pursuant to a plea bargain agreement.

       We note that our holding today does not encompass the situation in which the defendant and the state agree that restitution will be imposed, but leave it to the court to determine the amount. In a situation in which both parl ies agree to restitution and agree that the amount will be determined after argument to the court, § 53a-28 (c) would apply.

       Under such holding, restitution would not be a constitutional direct consequence, but rather a statutory direct consequence.

       We need not address the defendant’s argument that the statute is nonwaivable because we hold that the statute does not apply.


text:
    STATE OF CONNECTICUT v. ANTHONY SPENCER
    (AC 23099)
    Foti, Schaller and Dupont, Js.

      Argued September 15, 2003 —
    officially released February 3, 2004

      Jon L. Schoenhom, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Anthony Spencer, appeals from the judgment of conviction, rendered after a juiy trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), 3sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. The defendant claims that he was deprived of a fair trial as a result of (1) prosecutorial misconduct in closing argument and (2) the court’s refusal to instruct the jury on a lesser included offense. Because we conclude that the prosecutor engaged in misconduct that violated the defendant’s right to a fair trial, we reverse the judgment of the trial court and order a new trial.

The jury reasonably could have found the following facts. In June, 1994, the alleged victim, a fourteen year old girl, left school in New Haven to meet her boyfriend. The alleged victim boarded a bus from her school to downtown New Haven. Once the bus took her to downtown New Haven, she waited at another bus stop. While waiting at that bus stop, she witnessed a classmate conversing with the defendant. The defendant was twenty-four years old at the time. The defendant asked the alleged victim to get into his car. When she refused, the defendant grabbed her and forced her into the car. The defendant unsuccessfully attempted to buckle her seat belt. He closed the car door and ran to the driver’s side. The alleged victim attempted to open the car door, but could not figure out how to operate the door handle.

The defendant drove off with the alleged victim. He stopped at a package store to obtain beer. He left her in the car, but she remained in his sight the entire time. The defendant then drove her to a New Haven motel. Once again, he left her in the car for about five minutes as he registered for a room. The defendant returned and escorted her to the motel room. She did not attempt to escape, but unsuccessfully attempted to get the attention of other people in the parking lot. In response, the defendant grabbed her neck from behind. After they entered the motel room, the defendant locked the door. Once inside, the defendant threatened her with a partially concealed knife. The defendant then allegedly sexually assaulted her. After the alleged assault ended, she made up a story that she had a child and that she needed to pick the child up from her baby-sitter at a residence on Congress Avenue in New Haven. The defendant and the alleged victim departed from the motel in his car.

When the defendant and the alleged victim arrived at the specified location on Congress Avenue, which was actually the residence of her boyfriend, she went inside. The defendant waited outside so she supposedly could retrieve her child before the defendant would drive her home. Once inside, she broke down and informed her boyfriend that she had been assaulted. The boyfriend proceeded outside with a friend to confront the defendant, but the defendant sped off. The alleged victim reported the alleged sexual assault to the police. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the prosecutor committed misconduct during his closing argument. Specifically, the defendant argues that the prosecutor improperly (1) expressed his personal opinions as to the defendant’s guilt and the credibility of witnesses, (2) appealed to the emotions, passions and prejudices of the jurors, and (3) introduced unproven facts that were not in the record. We agree.

The defendant concedes that because he did not object to the prosecutorial misconduct at trial, his claim was not preserved properly. He may prevail on his unpreserved claim of prosecutorial misconduct if he satisfies all four requirements set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “It is well established that [w] e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Perry, 58 Conn. App. 65, 69, 751 A.2d 843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000). We now review the closing argument to determine whether a pattern of misconduct existed or whether the conduct was so egregious as to infringe on the defendant’s right to a fair trial.

“[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.

“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). “Aprosecutor 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 are 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.” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 701-702, 793 A.2d 226 (2002). We will address each of the defendant’s claims of prosecutorial misconduct in turn.

A

The defendant first claims that the prosecutor improperly expressed his personal opinions as to the defendant’s guilt and the credibility of witnesses. We agree.

During closing argument, the prosecutor argued that the crux of the case was whether the jury chose to believe the alleged victim as opposed to the defendant’s assertion that he did not forcibly assault her. The prosecutor commented at length regarding his views of the defendant’s version of the facts. Some of the prosecutor’s comments included: “It just doesn’t make sense,” “[t]he defendant’s argument is senseless,” “[i]t just doesn’t make sense. . . . That absolutely makes no sense,” “[Y]ou’ve heard the defendant, his crazy story,” and, “[h]e makes partial admissions, half truths, all to try to confuse the issues. Don’t be confused. Don’t be misled.” The prosecutor also stated on three occasions during closing argument that the defendant was “trying to mislead us” in reference to the defendant’s version of the facts. The prosecutor continued to argue throughout closing argument that the defendant was not telling the truth and did not understand the solemnity of an oath, and the prosecutor repeatedly stated, “come on,” after referring to testimony of the defendant.

The prosecutor offered his opinion concerning the alleged victim’s credibility during the closing argument. The prosecutor stated that she had behaved in the manner in which she did because “[t] hat’s only going to happen if you really did get raped.” In reference to her explanation for not attempting to flee when she was left alone in the defendant’s car, the prosecutor stated, “I think she explained her reactions quite well.” The prosecutor stated, “She’s just telling what happened,” and continued by stating that he did not think she had any motive to lie, unlike the defendant.

The prosecutor gave his opinion on the ultimate issue of guilt during closing argument. The prosecutor argued that “the state feels that these are the only verdicts that the evidence supports and fairness demands in this case.” He continued: “In reaching such a verdict in this case, you can walk out of this courtroom with your heads held high [because] justice will have been done.” Later in closing argument, the prosecutor argued that “[t]his defendant is trying to mislead us about the kidnapping and forcibly raping the victim. Don’t let him fool you. He’s guilty.”

“[I]t is well established that the evaluation of [witnesses’] testimony and credibility are wholly within the province of the trier of fact.” (Internal quotation marks omitted.) Hoffer v. Swan Lake Assn., Inc., 66 Conn. App. 858, 861, 786 A.2d 436 (2001). “The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 263, 780 A.2d 53 (2001).

In the present case, the prosecutor expressed his personal opinion with regard to the defendant’s testimony, the alleged victim’s testimony and the ultimate issue of guilt. He repeatedly expressed his opinion that the defendant’s testimony was beyond belief and that the defendant had lied throughout the trial to conform his testimony to the state’s evidence. The prosecutor also commented directly on the alleged victim’s credibility and gave his view that she would not have acted and testified in the manner in which she did unless she actually had been assaulted. It is impermissible for a prosecutor to express his personal opinion directly or even indirectly as to the guilt of the defendant. See State v. Hampton, 66 Conn. App. 357, 371, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001). The prosecutor, moreover, on two separate occasions directly gave his personal opinion that the defendant was guilty.

This case follows the reasoning of State v. Ceballos, 266 Conn. 364, 832 A.2d 14 (2003), in which our Supreme Court reversed the judgment of conviction in a sexual assault case because the prosecutor had engaged in misconduct. In Ceballos, the court concluded that the prosecutor’s improper comments pertained to the critical issue of the credibility of the alleged victim and the defendant. Id., 417. Our Supreme Court recently discussed its holding in Ceballos, describing the case as a “credibility contest between the state’s witnesses and the defense witnesses.” (Internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 481, 832 A.2d 626 (2003). The Thompson court further stated that in Ceballos, it “concluded that there was no independent physical evidence substantiating the state’s allegations that the defendant had sexually assaulted the victim, the significance of the assistant state’s attorney’s improper conduct increase[d] considerably.” (Internal quotation marks omitted.) Id. The present case is similar to Ceballos because it involved a credibility contest between the defendant and the alleged victim. This case is unlike State v. Thompson, supra, 481, in which our Supreme Court determined that the prosecutorial misconduct was not so egregious as to implicate the defendant’s due process right to a fair trial. In Thompson, the court concluded that the opposite principle was at work — “that is, contrary to the defendant’s contentions, the state’s case against him was strong, and the testimony of the state’s witnesses was corroborated by the physical evidence, as well as the behavior of the defendant . . . .” Id. Because the factors involved in Thompson are not present in this case, we follow the rationale set forth in Ceballos.

The prosecutor’s statements were compounded by his appeals to the jury to identify with the state’s case. An appeal to the jury to decide a case out of a sense of duty to the state is highly inappropriate. See State v. Singh, supra, 259 Conn. 722. Such comments as “you can walk out of this courtroom with your heads held high [because] justice will have been done,” and his attempts to align himself with the jury by reference to the jury and himself as one were improper.

The prosecutor’s personal opinions during closing arguments were not an appropriate way to highlight the evidence presented or to suggest a reasonable conclusion that could be drawn by the jury; see State v. Hampton, supra, 66 Conn. App. 373; rather, they constituted a form of unsworn testimony that would have been difficult for the jury to ignore because of the prosecutor’s special position. We conclude that the comments were improper.

B

The defendant next claims that the prosecutor improperly appealed to the emotions, passions and prejudices of the jurors. Specifically, he argues that when the prosecutor interjected a story from his adolescence, the prosecutor attempted to inject personal sympathy and to suggest that his “irrational” reaction to that situation would explain why the alleged victim had behaved the way that she did in this case. We agree.

The defendant takes issue with the prosecutor’s having recounted during closing argument a childhood experience with a bully. The prosecutor spoke at some length to explain how he had run from a bully, hid and locked himself in the family bam before finally coming out after being threatened. He told the jury how the bully beat him even though he could have remained safely in the bam until his parents came home or perhaps stayed on the school bus. He explained that when he later saw the bully while driving with his father, he was too afraid to speak out. He used the story to suggest that his “irrational” reaction to a situation at the age of fourteen would explain why the fourteen year old complainant had behaved as irrationally as she did in this case.

“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. . . . [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.

The prosecutor’s personal story was an improper attempt to inject personal sympathy into the case and to suggest that his irrational reaction to a situation at a young age could help explain why the alleged victim had acted in the manner that she did. The personal stoiy was irrelevant and unrelated to the evidence before the jury. The story was offered to persuade the jurors on one of the most important issues in the case, the rationale behind the alleged victim’s behavior before and after the alleged sexual assault. By diverting the jurors’ attention to such matters, the prosecutor improperly sought to persuade them on the basis of their emotional reaction to his personal story.

C

The defendant claims finally that the prosecutor improperly referred to facts outside the record in his closing arguments. We agree.

During closing arguments, the prosecutor argued that the alleged victim was afraid of the defendant and what he would do to her if she talked. The prosecutor stated: “He testified he didn’t know where she lived. He wanted to know that so he’d have the threat over her so she wouldn’t tell anybody. That’s why he waited. He figured she’d get her baby. He already had her so afraid she didn’t run and will take her to her house and find out where she really lives.” The defendant also contends that the prosecutor used evidence that was outside the record in his explanation of the alleged victim’s behavior before and immediately following the alleged sexual assault by telling an anecdotal story from his adolescence.

“A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. ... [A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument. . . . [T]he state may [however] properly respond to inferences raised by the defendant’s closing argument.” (Citations omitted; internal quotation marks omitted.) Id., 717.

The prosecutor’s comments that the defendant waited for the alleged victim to find out where she lived represented a fair inference that was based on the evidence. A prosecutor may argue the state’s case forcefully as long as it is fair and based on the facts in evidence and reasonable inferences that can be drawn from them. See State v. Stevenson, 70 Conn. App. 29, 42, 797 A.2d 1, cert. granted on other grounds, 261 Conn. 918, 806 A.2d 1057 (2002). On the basis of the evidence in the record, it was a reasonable inference to draw that the defendant had waited for the alleged victim outside in his car while she went inside to pick up her baby because he was going to drive her home. It also was reasonable to infer that he wanted to drive her home so that he could intimidate her with his knowledge of where she lived. As discussed in part I B, however, it was not proper for the prosecutor to set forth his anecdotal story from his adolescence to explain why the alleged victim had acted in the manner that she did. See, e.g., State v. Rogelstad, 73 Conn. App. 17, 30 n.9, 806 A.2d 1089 (2002) (prosecutor should not have referred to his prior experience as social worker).

D

We consider finally whether the cumulative effect of the prosecutor’s misconduct so infected the proceedings as to deprive the defendant of his right to a fair trial. That final determination requires the consideration of several factors: 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. See State v. Whipper, supra, 258 Conn. 262-63. We conclude that the defendant was deprived of a fair trial.

In the present case, the prosecutorial misconduct was not invited by defense conduct or argument. It is imperative that we “must review the challenged comments in the context of the entire trial, with due regard to the extent to which the objectionable remar ks were invited by defense conduct or argument.” (Internal quotation marks omitted.) State v. Briley, 55 Conn. App. 258, 262, 739 A.2d 293, cert. denied, 251 Conn. 927, 742 A.2d 363 (1999). Nothing in the record demonstrates that the objectionable remarks were invited by the defendant’s argument.

The misconduct did not consist of a single, isolated episode, but recurred throughout the prosecutor’s closing argument. The misconduct was of a severe nature and central to the critical issues in the case because the case rested on the credibility of witnesses. On numerous occasions, the prosecutor expressed his personal opinion on the credibility of both the alleged victim and the defendant, and on the ultimate issue of guilt. Those improprieties were only compounded by his appeal to the jury to decide the case out of a sense of duty to the state and his attempts to align himself with the jurors.

The prosecutor’s anecdotal story from his adolescence was improper. It was irrelevant, unrelated to the case and not in evidence. It was an attempt to inject personal sympathy and to suggest that his irrational reaction to a situation at a young age also could help explain why the alleged victim would act in the manner that she did during the alleged kidnapping and immediately following the alleged sexual assault.

The state argues that it has demonstrated the harmlessness of the alleged constitutional violations to satisfy the fourth prong of Golding. It argues that even if the prosecutor’s conduct was improper, the court remedied any impropriety by giving the jury a curative instruction to disregard the comments. The court’s instructions to the jury were insufficient to cure the accumulated harm created by the course of prosecu-torial misconduct. See State v. Stevenson, supra, 70 Conn. App. 45. Because of the severity and the frequency of the misconduct, this is not a situation in which we can rely on the presumption that the jury will follow the court’s instruction and disregard the prosecutor’s statements. Furthermore, the curative instruction did not address the prosecutor’s anecdotal story.

This is not a case in which the state’s evidence was so strong that we can say that the misconduct constituted harmless error. The state’s case rested largely on the credibility of the alleged victim and the defendant. The prosecutor’s pervasive misconduct was directed at the credibility of those witnesses and the ultimate issue of guilt, and we cannot dismiss as inconsequential its cumulative effect on the jury. The other major question in the case was why the alleged victim did not flee when left alone in the defendant’s car during the course of the alleged kidnapping and sexual assault. The prosecutor’s irrelevant story from his childhood was used to explain that behavior.

Accordingly, we conclude that a constitutional violation clearly existed and that the cumulative effect of the prosecutor’s misconduct deprived the defendant of his right to a fair trial. Because the state has failed to demonstrate the harmlessness of the constitutional violation beyond a reasonable doubt, a new trial is required.

II

We address the defendant’s second claim because it is likely to arise on retrial. The defendant claims that the court improperly refused to instruct the jury on a lesser included offense. Specifically, the defendant argues that the court improperly refused to instruct the jury on unlawful restraint in the second degree as a lesser offense included within the charge of kidnapping in the first degree. We agree.

“[Tjhere is no fundamental constitutional right to a jury instruction on every lesser included offense .... State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980). Rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following [Whistnant] conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Internal quotation marks omitted.) State v. Corbin, 260 Conn. 730, 744-45, 799 A.2d 1056 (2002).

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. ... On appeal, an. appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Internal quotation marks omitted.) State v. Corbin, supra, 260 Conn. 745.

The defendant argues that his written request to charge satisfied all of the prongs of Whistnant. The state concedes, and we agree, that the defendant satisfied the second and third prongs, but it argues that he failed to satisfy the first and fourth prongs. Our discussion will address the first and fourth prongs of Whistnant.

We now turn to the issue of whether, under the first prong of Whistnant, the defendant’s request to charge constituted an appropriate request for an instruction. “A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book [§ 42-18]. . . . We previously have held, in the context of a written request to charge on a lesser included offense, [that the] requirement of [Practice Book § 42-18] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the corut in charging in the form requested.” (Citation omitted; internal quotation marks omitted.) State v. Corbin, supra, 260 Conn. 746.

The defendant met the requirements of Practice Book § 42-18 by filing an appropriate written request to charge as to the lesser included offense of unlawful restraint in the second degree. The request contained a complete statement of the essential facts that would have justified the court in charging in the form requested by differentiating between the unlawful restraint and the kidnapping charges, stressing the distinctions of intent and abduction. We conclude that the court was aware of the basis for the defendant’s request to charge and, therefore, that the request satisfied the first prong of Whistnant.

Having determined that the defendant met the first prong of Whistnant and that the state has conceded that the second and third prongs of Whistnant were satisfied, we now address the fourth prong. We must determine whether the proof on the element or elements that differentiate the lesser offense from the offense charged was in dispute sufficiently to permit the jury reasonably to find the defendant innocent of the greater offense but guilty of the lesser offense. Proof is in dispute sufficiently when “it is of such a factual quality that [it] would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense.” (Internal quotation marks omitted.) State v. Faria, 47 Conn. App. 159, 183-84, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998).

To prove unlawful restraint, the state had to prove that the defendant abducted the alleged victim by restraining her with the intent to prevent her liberation by using or threatening to use physical force or intimidation. See General Statutes § 53a-91 (2). To obtain a conviction on unlawful restraint in the second degree in this case, the state would have been required to prove that the defendant “restrained” the alleged victim within the meaning of General Statutes § 53a-91 (1). See General Statutes § 53a-96 (a). Thus, the state would have had to prove that the defendant restricted the alleged victim’s movements intentionally in such a manner as to interfere substantially with her liberty by confining her to the place where the restriction began without her consent. See General Statutes § 53a-91 (1). Those elements differ from the elements of kidnapping in the first degree. Under the kidnapping statute, the state had to prove that the defendant had abducted and restrained the alleged victim with the intent to inflict physical injury or to sexually attack her. See General Statutes § 53a-92 (a) (2) (A); State v. Faria, supra, 47 Conn. App. 184.

In the present case, the alleged victim testified that the defendant had forced her into the vehicle. She further testified that the defendant threatened her life, grabbed her neck as he escorted her to the motel room and then forcibly assaulted her. The defendant set forth a different scenario of events that would have allowed the jury to acquit him on the charge of kidnapping in the first degree while still allowing it to conclude that he was guilty of unlawful restraint in the second degree. The defendant stated in closing argument: “This is one of busiest areas in the city of New Haven, if not this entire region. . . . Something is wrong with her story of how she ended up in [the defendant’s] car. She testified that she was scared of him. She didn’t know if he had a weapon. She didn’t want to find out. That purports to explain why she didn’t try to leave at the bus stop, why she didn’t try to leave at the package store, why she didn’t try to leave when he went to register at the motel, why she didn’t try to leave when she said he went to buy drugs.” Viewed in the light most favorable to the defendant’s version of the facts included in the request to charge on the lesser included offense, the jury reasonably could have concluded that the alleged victim was not free to leave or to get out of the car due to fear, but that neither physical force nor the requisite intent was involved, as is required for a conviction of the greater offense, kidnapping in the first degree.

The defendant satisfied the fourth prong of Whist-nant because we cannot exclude the possibility that the jury could have found him guilty of the lesser offense and not of the greater offense. We conclude that the court improperly failed to give the requested instruction.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       General Statutes § 53a-70 (a) (1) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1993) § 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.”

       The four requirements of State v. Golding, supra, 213 Conn. 239-40, are that “(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.”

       The prosecutor attempted to align himself with the jurors by his continuous references to the jurors and to himself as one through the use of the term “us.” Some examples were: “The defendant is trying to mislead us about the kidnapping and forcibly raping the victim. Don’t let him fool you. He’s guilty,” and, “He just weaves his bizarre and senseless tales to conform with the state’s evidence. That’s what he did in this case. Again, he’s trying to mislead us.” (Emphasis added.)

       In State v. Stevenson, supra, 70 Conn. App. 32-33, we concluded that when all four prongs of Golding are satisfied and a new trial is required, there is no need to conduct plain error review or to invoke our supervisory powers to reverse the defendant’s conviction. Because we conclude that the defendant’s claim satisfies all four prongs of Golding, we do not engage in the other requested modes of review.

       Practice Book § 42-18 (a) provides in relevant part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .”


author:
SCHALLER, J.
      BERDON, J.,

text:
    GARY J. WILSON v. CITY OF STAMFORD
    (AC 24013)
    Foti, Schaller and Berdon, Js.

      Argued September 22, 2003 —
    officially released February 3, 2004

      Gary J. Wilson, pro se, the appellant (plaintiff).

      Scott Wilson Williams, with whom, on the brief, was James D. Moran, Jr., for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Gary J. Wilson, appeals from the decision of the workers’ compensation review board (board) reversing the determination by the workers’ compensation commissioner for the seventh district (commissioner) that the plaintiff was entitled to health insurance while he was receiving medical benefits for a compensable injury. On appeal, the plaintiff claims that the board improperly determined that he was not entitled to benefits pursuant to General Statutes § 31-284b (a). We affirm the decision of the board.

The commissioner found the following facts. The plaintiff was a member of the Stamford police department. On approximately July 8, 1991, the plaintiff suffered from a heart condition commonly referred to as a myocardial infarction. The plaintiff established his claim pursuant to General Statutes § 7-433C and began receiving benefits pursuant to § 31-284b. At the hearing before the commissioner, the parties narrowed the issue to whether the plaintiff was eligible to receive benefits pursuant to § 31-284b when the plaintiff was receiving medical benefits, but not indemnity benefits. The commissioner determined that the plaintiff was entitled to receive benefits pursuant to § 31-284b while he was receiving either indemnity or medical benefits, as a result of his compensable injury of July 8, 1991. The board reversed the commissioner’s determination on the basis of its holding in Graham v. University of Connnecticut Health Center, 4418 CRB-6-01-7 (July 23, 2002), and our holdings in Kelly v. Bridgeport, 61 Conn. App. 9, 762 A.2d 480 (2000), cert. denied, 255 Conn. 933, 767 A.2d 104 (2001), and Auger v. Stratford, 64 Conn. App. 75, 779 A.2d 773 (2001). The board held that the plaintiff was not entitled to benefits pursuant to § 31-284b while receiving only medical benefits. This appeal followed.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. ‘The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). . . . It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995)....’

“The interpretation of § 31-284b is a matter of statutory construction. ‘Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.’ . . . General Motors Corp. v. Dohmann, 247 Conn. 274, 286, 722 A.2d 1205 (1998); Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 195, 708 A.2d 1371 (1998).” (Citation omitted.) Kelly v. Bridgeport, supra, 61 Conn. App. 13-14.

The plaintiff argues that the board improperly interpreted the statutes. Section 31-284b provides in relevant part that an employer “shall provide to the employee equivalent insurance coverage or welfare plan payments or contributions while the employee is eligible to receive or is receiving compensation pursuant to this chapter . . . The plaintiff contends that the word “compensation,” as it is used in § 31-284b, is defined by General Statutes § 31-275 (4). Section 31-275 (4) provides in relevant part that “ ‘[compensation’ means benefits or payments mandated by the provisions of this chapter, including, but not limited to, indemnity, medical and surgical aid or hospital and nursing service required under section 31-294d and any type of payment for disability ... or any adjustment in benefits or payments required by this chapter.” The plaintiffs argument is that under § 31-275 (4), compensation includes medical benefits and because he was receiving medical benefits, he qualified for benefits under § 31-284b.

In Kelly v. Bridgeport, supra, 61 Conn. App. 9, we held that an employee who is receiving only medical benefits is not eligible for benefits pursuant to § 31-284b. Part of our holding in Kelly was premised on the language of General Statutes (Rev. to 1991) § 31-284b, which contained language different from the current statute. Section 31-284b was revised in July, 1991, by Public Acts 1991, No. 91-32, § 8 (P.A. 91-32). Prior to the revision, “the employer’s obligation to provide insurance coverage” was conditioned on the “employee’s receipt of . . . ‘workers’ compensation payments pursuant to this chapter.’ ” Kelly v. Bridgeport, supra, 14 n.4. Section 8 of P.A. 91-32 eliminated the phrase “workers’ compensation payments pursuant to this chapter” and substituted “compensation pursuant to this chapter . . . .” In Kelly, “we [concluded] that the term ‘compensation payments’ as used in § 31-284b (a) does not include payments for medical care after the indemnity compensation period has ceased. The statute mandates that an employer is required to continue insurance benefits only while an employee is receiving ‘compensation payments’ for disability under the Workers’ Compensation Act [(act), General Statutes § 31-275 et seq.].” Kelly v. Bridgeport, supra, 16-17.

The Supreme Court has, in Weinberg v. ARA Vending Co., 223 Conn. 336, 612 A.2d 1203 (1992), interpreted the importance of the changes wrought by P.A. 91-32. In an illuminating opinion, the Supreme Court stated that the “legislative history of No. 91-32 of the 1991 Public Acts indicates that it was intended to be a technical amendment. In commenting on the bill on the floor of the Senate, Senator James H. Maloney, senate chairman of the joint standing committee on labor and public employees, described the bill as ‘the bill that makes technical recodification of the Workers’ Compensation statute’ and that ‘cleans up the statute in regard to Workers’ Compensation.’ 34 S. Proc., Pt. 3, 1991 Sess., p. 836. Similarly, in presiding over a hearing of the joint standing committee, Maloney described the bill as ‘a technical revision in [e]ffect to the existing statute.’ Conn. Joint Standing Committee Hearings, Labor and Public Employees, 1991 Sess., p. 16. He went on to state: ‘So we’re not really dealing with changes in the substantive legislation today. If there are substantive changes that are made because of the draft, we do want to hear about that because that’s not what’s supposed to have occurred with this instrument.’ Id. Commissioner John Arcudi of the compensation review division, who participated in formulating the proposed revisions, also testified at the hearing that ‘the purpose of the bill [was] not to change substance, but to try to simplify language and eliminate archaic language, reduce language if possible . . . .’ Id., p. 17. Finally, in commenting on the bill on the House floor, Representative Joseph A. Adamo, house chairman of the joint standing committee on labor and public employees, stated that the bill ‘brings into focus a new section of describing all the definitions that were utilized and sprinkled throughout the entire chapter.’ 34 H.R. Proc., Pt. 5, 1991 Sess., pp. 1959-60. When viewed together, the foregoing statements make clear that the definition of 'compensation’ provided in the 1991 amendment merely clarified the term as it had already been used throughout the act and did not enact any substantive change in the law.” (Emphasis added.) Weinberg v. ARA Vending Co., supra, 346-47; see also Luce v. United Technologies Corp., 247 Conn. 126, 136-37, 717 A.2d 747 (1998) (P.A. 91-32 was technical amendment that did not change substantive law).

Because our Supreme Court has determined that P.A. 91-32 was a technical amendment, P.A. 91-32 did not change the law, but merely clarified the law. See Greenwich Hospital v. Gavin, 265 Conn. 511, 520-24, 829 A.2d 810 (2003). On the basis of the doctrine of stare decisis, we stand by our holding in Kelly v. Bridgeport, supra, 61 Conn. App. 16, that compensation “does not include payments for medical care after the indemnity compensation period has ceased.” The plaintiff accordingly was not entitled to benefits pursuant to § 31-284b.

The decision of the workers’ compensation review board is affirmed.

In this opinion FOTI, J., concurred.

BERDON, J.,

concurring. I concur in the result reached by the majority only because our Supreme Court’s three to two decision in Weinberg v. ARA Vending Co., 223 Conn. 336, 612 A.2d 1203 (1992), requires that I do so. Nevertheless, I wish to point out, as Justice Covello did in his dissent in Weinberg, that “compensation benefits . . . means any compensation from any source . . . .” (Emphasis added; internal quotation marks omitted.) Id., 351 (Covello, J., dissenting). The plain language of General Statutes § 31-275 (4) defines compensation to include medical benefits, stating: “ ‘Compensation’ means benefits or payments mandated by the provisions of this chapter, including, but not limited to . . . medical . . . aid . . . .” (Emphasis added.) Unfortunately, the majority in Weinberg looked beyond the plain language of the statute and relied on the statute’s legislative history for its result.

Our legislature, in passing Public Acts 2003, No. OS-154, recently pointed out to this court and our Supreme Court that the “meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.” (Emphasis added.) Public Acts 2003, No. 03-154.

Accordingly, although I believe that the definition of compensation includes medical benefits, I concur in the result of the majority because of our Supreme Court’s decision in Weinberg v. ARA Vending Co., supra, 223 Conn. 336.

       General Statutes § 7-433c provides in relevant part that “in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment . . . .”

       General Statutes § 31-284b (a) provides in relevant part: “In order to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer who provides accident and health insurance or life insurance coverage for any employee or makes payments or contributions at the regular hourly or weekly rate for full-time employees to an employee welfare plan, shall provide to the employee equivalent insurance coverage or welfare plan payments or contributions while the employee is eligible to receive or is receiving compensation pursuant to this chapter .... As used in this section, ‘income’ means all forms of remuneration to an individual from his employment, including . . . health insurance coverage . . . .”

       “[T]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” (Internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 318, 736 A.2d 889 (1999). “[I]n assessing the force of stare decisis, our case law has emphasized that we should be especially cautious about overturning a case that concerns statutory construction.” (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 202, 708 A.2d 1371 (1998). Hence, our decision stare decisis et non quieta movere.

       In other words, the legislature says what it means and means what it says.