author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. DEREK RICHARD BEEBE
    (AC 31585)
    Bishop, Robinson and Borden, Js.

      Argued June 1
    officially released September 20, 2011

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

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Charles W. C. Johnson, assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Derek Richard Beebe, appeals from the judgment of conviction, rendered after a jury trial, of two counts of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) and 53a-49 (a) (2), and threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). The defendant claims that: (1) the court improperly instructed the jury on the issue of irrelevance of punishment; and (2) the evidence was insufficient to support his conviction of attempt to commit robbery while using or threatening the use of a dangerous instrument. We affirm the judgment of the trial court.

The defendant was charged by way of an amended long form information with attempt to commit robbery in the first degree in violation of §§ 53a-134 (a) (3) and 53a-49 (a) (2), attempt to commit robbery in the first degree in violation of §§ 53a-134 (a) (4) and 53a-49 (a) (2), and threatening in the second degree in violation of § 53a-62 (a) (l). The jury returned a verdict of guilty on all of the charges, and the court rendered judgment accordingly. In addition, the jury found that the defendant, during the commission of a felony, “used, was armed with or threatened the use of, or displayed, or represented by his words or conduct that he possessed any firearm . . . .” See General Statutes § 53-202k.

During the sentencing proceeding, the court merged the two counts of attempted robbery and sentenced the defendant on the conviction of attempted robbery in the first degree in violation of § 53a-134 (a) (4) to a term of fifteen years imprisonment, execution suspended after one year, followed by five years of probation. That sentence was enhanced by a consecutive term of five years incarceration pursuant to General Statutes § 53-202k. See footnote 4 of this opinion. Regarding the threatening conviction, the court sentenced the defendant to a term of one year of incarceration, execution suspended, with one year of probation, to be served consecutively to the sentence imposed on the attempted robbery conviction. Accordingly, the defendant’s total effective sentence with respect to the aforementioned convictions was twenty-one years incarceration, execution suspended after six years, followed by five years of probation. This appeal followed.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the afternoon of September 10, 2007, the defendant was gathered with a group of acquaintances at the Xtra Mart convenience store in Somers, which was located directly across the street from the China City Restaurant. While the defendant was at the Xtra Mart store, one of his acquaintances, namely, Jesse Morse, observed the defendant pull up his shirt and display a black gun tucked into his waistband. The defendant and other members of the group, including Morse, then proceeded to the Mill Pond parking area a short distance away. While at the parking area, Morse witnessed the defendant grab a pair of sunglasses and a hooded sweatshirt from another person’s vehicle, put those items on, and walk toward the China City Restaurant.

Ling Jing Yang was working in the China City Restaurant on the afternoon of September 10, 2007, when the defendant, dressed in dark clothes and sunglasses, entered and placed an order for food. Yang turned around to calculate his order, and when she tinned back to face the defendant, he lifted up his shirt, displayed the gun in his waistband and said, “give me money.” Yang then loudly called for her husband, Kevin Wu, who was in the back of the restaurant. Wu opened the back door of the restaurant and observed a man wearing dark clothes running away.

Jason Ramsey, another acquaintance of the defendant, was in the Mill Pond parking area when he witnessed the defendant run through the back of a field, hop a fence, enter the parking area and state that “he needed a ride to get out of there.” The defendant and Ramsey got into Ramsey’s truck and drove away. As they proceeded up the road, the defendant told Ramsey that he had tried to rob the China City Restaurant “and that the lady had screamed so loud . . . that he just ran out.” The defendant also showed Ramsey a black gun that he had wrapped up in a T-shirt. Ramsey then dropped the defendant off at a Mend’s house and drove straight home to drop his truck off because he “was scared to drive [his] truck back down to the Mill Pond [parking area] because . . . people had seen [him and the defendant] drive away together.”

Later that day, the defendant met with his friend, Erica L. Dollak. Dollak subsequently gave a statement to the police, admitted as substantive evidence pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), which described the encounter she had with the defendant following the incident at the China City Restaurant. Dollak described the defendant’s demeanor as “very scared,” although “[h]e was pretty sure . . . that he wouldn’t be recognized because he was wearing sunglasses, a baseball hat and a hooded sweatshirt.” The defendant told Dollak that he went into the restaurant wearing that disguise but left because of a “bloodcurdling scream” let out from the woman working in the restaurant. Following the loud scream, the defendant “ran out of there” and proceeded to the Mill Pond parking area. Additional facts will be set forth as necessary.

I

The defendant first raises an unpreserved constitutional challenge to the court’s jury instructions. Specifically, he claims that the court improperly instructed the jury that its findings with respect to the defendant’s guilt or innocence should not be influenced by the potential punishment that may flow from a guilty verdict. The defendant argues, in essence, that by instructing the jury as to the irrelevance of punishment, the court “undermined the state’s burden imposed by the due process guarantees of the federal and state constitutions of proving him guilty beyond reasonable doubt.” Conceding that he did not preserve this claim at trial, the defendant now seeks to prevail pursuant to the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Our careful review of the record, however, reveals that the defendant implicitly waived his instructional error claim; therefore, his claim fails to satisfy Golding’s third prong. See State v.Kitchens, 299 Conn. 447, 467, 10 A.3d942 (2011).

The following additional facts are relevant to our resolution of the defendant’s claim. On the evening of June 30, 2009, the court sent an e-mail to both parties that included a working draft of its final charge. The draft included the irrelevance of punishment instruction that is now challenged on appeal. On the morning of July 1, 2009, the court indicated to the parties that it wanted to have a charging conference on the record and asked whether the prosecutor and defense counsel had received the electronic draft of the final charge. Both responded in the affirmative. Later that day, at the charging conference, the court indicated that it was going to make two changes to the draft charge, both of which were unrelated to the irrelevance of punishment instruction. After discussing those two changes, the court inquired whether the parties had any other objections to the instructions. At that time, defense counsel raised concerns with particular instructions that related to a witness’ recorded past recollections, whether the jury should be instructed in the alternative with respect to the two attempted robbery counts, and how to address the sentence enhancement count. Defense counsel did not raise any objections to the proposed irrelevance of punishment instruction.

The next day, the court noted on the record that that morning it had again reviewed the proposed final charge with counsel for both parties. Following closing arguments that day, the court issued its instructions to the jury, which included an irrelevance of punishment instruction that was a virtual verbatim reproduction of the draft instruction provided to the parties. At the conclusion of its charge, the court inquired of defense counsel whether he had any objections or other comments concerning the instructions, to which he answered in the negative.

“It is well established in Connecticut that unpreserved claims of improper jury instructions are reviewable under Golding unless they have been . . . implicitly waived.” Id., 468. As our Supreme Court explained in Kitchens, “Connecticut courts have deemed a claim of instructional error implicitly waived when the defense failed to take exception to, and acquiesced in, the jury instructions following one or more opportunities to review them.” Id., 480. Accordingly, “when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” Id., 482-83. In State v. Mungroo, 299 Conn. 667, 676, 11 A.3d 132 (2011), our Supreme Court elaborated on its holding in Kitchens, emphasizing that the “opportunity for meaningful review and discussion can give rise to a determination that a defendant has implicitly waived his or her constitutional right to challenge the instructions on direct appeal. . . . Actual discussion of the instruction later challenged is not required.” (Citation omitted; emphasis in original.)

In the present case, we conclude, consistent with our Supreme Court’s recent waiver jurisprudence; see, e.g., id., 667; State v. Akande, 299 Conn. 551, 11 A.3d 140 (2011); State v. Kitchens, supra, 299 Conn. 447; that the defendant implicitly waived his instructional error claim. The underlying record illustrates that the court provided defense counsel with a copy of the draft jury charge and afforded counsel multiple opportunities to review and to raise objections to the language set forth in the instructions before the instructions were delivered to the jury. See State v. Akande, supra, 561 (defense counsel’s review of supplemental instruction overnight “in a deliberate manner without undue time constraints” provided meaningful opportunity to review proposed instructions). During the charging conference, the court solicited comments from defense counsel regarding modifications to the proposed instructions and, absent objections unrelated to the irrelevance of punishment instruction, counsel affirmatively accepted the instructions now challenged on appeal. “In sum, defense counsel had meaningful and multiple opportunities to review the trial court’s instructions and to object to any language therein, and, in response to solicitation by the trial court, repeatedly indicated his satisfaction with the charge.” State v. Mungroo, supra, 299 Conn. 676.

II

The defendant next claims that the evidence was insufficient to support his conviction of attempt to commit robbery while using or threatening the use of a dangerous instrument in violation of §§ 53a-134 (a) (3) and 53a-49 (a) (2). Specifically, he claims that the evidence was insufficient to prove that he threatened to use the gun tucked in his waistband as a bludgeon or hitting device. In light of the following analysis, we do not reach this claim.

As set forth previously, the court merged the defendant’s attempted robbery conviction in violation of §§ 53a-134 (a) (3) and 53a-49 (a) (2); see footnote 1 of this opinion; with his attempted robbery conviction in violation of §§ 53a-134 (a) (4) and 53a-49 (a) (2); see footnote 2 of this opinion; and sentenced him only on the count in which the state charged him with a violation of § 53a-134 (a) (4). The defendant makes no claim that the evidence was insufficient to support his attempted robbery conviction pursuant to § 53a-134 (a) (4); his claim is aimed solely at the evidentiary sufficiency of the attempted robbery conviction under § 53a-134 (a) (3). Consequently, we agree with the state that, as a result of the court’s having merged the conviction on the two attempted robbery counts, we need not consider the defendant’s claim that the evidence was insufficient to support his attempted robbery conviction in violation of § 53a-134 (a) (3).

In State v. Longo, 106 Conn. App. 701, 943 A.2d 488 (2008), this court was presented with a similar sufficiency of the evidence challenge directed at the merger of a conviction under two subdivisions of the same statute. Although Longo involved convictions for operating a motor vehicle while under the influence of intoxicating liquor, its reasoning is instructive. In Longo, the defendant was charged with and convicted of driving under the influence in violation of General Statutes (Rev. to 2005) § 14-227a (a) (l) (behavioral subdivision) and General Statutes (Rev. to 2005) § 14-227a (a) (2) (per se subdivision). Id., 704. The court subsequently merged the conviction on the two counts for sentencing purposes. Id. On appeal, the defendant claimed that the evidence presented by the state was insufficient to support his conviction under both the behavioral and per se subdivisions. Id., 705. This court disagreed, concluding that there was sufficient evidence to support the defendant’s conviction under the behavioral subdivision of § 14-227a. Id., 706. Of particular relevance to this appeal, this court also declined to address the defendant’s sufficiency of the evidence challenge with respect to his conviction under the per se subdivision of § 14-227a. Id., 705-706. The court reasoned that, “as a result of the merger of the convictions under both subdivisions, the defendant’s conviction with respect to the ‘behavioral’ subdivision, (a) (1), remains valid and in effect. In other words, because the state presented sufficient evidence to demonstrate that the defendant had operated a motor vehicle while under.the influence of intoxicating liquor in violation of § 14-227a (a) (1), we need not consider the defendant’s claim that the state failed to produce any evidence of an elevated blood alcohol content by weight.” Id.

We conclude that this rationale applies with equal force to the present circumstances. It is undisputed that the court merged the defendant’s attempted robbery conviction in violation of § 53a-134 (a) (3) with the attempted robbery conviction in violation of § 53a-134 (a) (4). It is also undisputed that the defendant does not claim that the evidence was insufficient to support his conviction under § 53a-134 (a) (4). Moreover, just as the behavioral and per se subdivisions of § 14-227a represent different ways in which a defendant can be convicted of the offense of operating under the influence, both § 53a-134 (a) (3) and § 53a-134 (a) (4) are subdivisions of § 53a-134 (a) that set forth alternative ways to commit the crime of robbery in the first degree. Accordingly, our appellate jurisprudence is clear that the merging of a conviction under two subdivisions of the same statute, each of which represents a separate path for committing the same offense, forecloses a defendant’s opportunity to challenge on appeal the sufficiency of the evidence with respect to only one of the original counts, particularly where the evidence as to the other conviction is either unchallenged, as in the present case, or sufficient to sustain the conviction under the alternative subdivision. Cf. State v. Hood, 106 Conn. App. 189, 198, 941 A.2d 955, cert. denied, 286 Conn. 921, 949 A.2d 481 (2008); State v. Pulaski, 71 Conn. App. 497, 505-506, 802 A.2d 233 (2002).

One final comment. The plaintiff contends that our Supreme Court’s holding in State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), warrants a different conclusion. In Chicano, our Supreme Court determined that the defendant’s double jeopardy rights in that case were violated by his conviction of, and sentencing for, both felony murder and manslaughter in the first degree, inasmuch as the latter crime is a lesser included offense of the former crime. Id., 721. The court, thereafter, addressed the issue of the appropriate form of the remand when a trial court has imposed multiple punishments for the same crime. Id., 721-22. Specifically, the court examined whether both the sentence and the conviction for the lesser offense should be vacated, or if only the sentence should be vacated with the convictions being combined into a compound offense. Id., 722-24. Consistent with the approach of the United States Court of Appeals for the Second Circuit, our Supreme Court concluded that the proper procedure when a court has imposed multiple punishments for the same offense is to vacate the additional sentence only and to combine the conviction of the two offenses into a compound offense. Id., 725. Accordingly, the court noted that if the conviction on the greater offense is “later invalidated for any reason and the defect at issue does not affect the [conviction]” on the lesser included offense, the conviction on the lesser included offense “would be resuscitated . . . .” Id.

The defendant argues that the rule in Chicano, namely, the combining of convictions when a defendant has been convicted and sentenced on both a greater and lesser included offense, demands that he be able to challenge the evidentiary sufficiency of either of the two merged convictions in the present case because the invalidation of one of the convictions would result in the alternative conviction being resuscitated. The Chicano court, however, was not presented with the question of whether, once the convictions have been merged, it is proper for this court to consider a claim that the evidence is insufficient as to only one of the merged offenses. Moreover, pursuant to Chicano, if the surviving offense in the present case for which the defendant was sentenced is subsequently invalidated, the defendant may then return to this court to challenge the sufficiency of the evidence on the merged offense for which he was not sentenced. In any event, as we set forth previously, it is settled in our appellate jurisprudence that the effect of the trial court’s merging of two convictions, the charges for which set forth alternative ways to commit the same crime, is to forbear the defendant from challenging on appeal the evidentiary sufficiency of the merged offense.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       General Statutes § 53a-62 (a) provides in relevant part: “A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

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

       The defendant takes issue with a portion of the court’s final charge to the jury, in which it instructed: “Now, you should not be concerned in any way with the punishment to be imposed in this case in the event of a guilty verdict. That is a matter exclusively within my province under the limitations and restrictions imposed upon me by the law. You are to find the accused guilty or not guilty uninfluenced by the probable punishment or consequences that would follow a conviction.”

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

       Specifically, the court modified the instructions to reflect the state’s filing of a substitute information and to include a consciousness of guilt instruction.

       General Statutes (Rev. to 2005) § 14-227a (a) provides in relevant part: “A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both . . . .”

       General Statutes (Rev. to 2005) § 14-227a (a) provides in relevant part: “A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle ... (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight.”


source: Caselaw Access Project

author: ESPINOSA, J.

license: Public Domain

text:
    MICHAEL BROWN v. COMMISSIONER OF CORRECTION
    (AC 31707)
    Bishop, Espinosa and Borden, Js.

      Argued May 16
    officially released September 20, 2011

      Deren Manasevit, special public defender, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were John A. East III, senior assistant state’s attorney, Erika L. Brookman, assistant state’s attorney, and, on the brief, Gail P. Hardy, state’s attorney, for the appellee (respondent).
   Opinion

ESPINOSA, J.

Upon the granting of certification to appeal by the habeas court, the petitioner, Michael Brown, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. The petitioner claims that the court improperly failed to conclude that his trial counsel rendered ineffective assistance that affected the outcome of his criminal trial. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the present appeal. In 2004, the petitioner was convicted, following a jury trial, of sexual assault in the third degree, unlawful restraint in the first degree, threatening in the second degree, assault in the third degree and breach of the peace in the second degree. The conviction was related to an incident that occurred on September 20, 2002, involving the petitioner and a female victim. The trial court imposed a total effective sentence of five years imprisonment, suspended after three years, followed by a ten year period of probation with special conditions. Following the petitioner’s direct appeal, this court affirmed the judgment of conviction. State v. Brown, 96 Conn. App. 700, 901 A.2d 86, cert. denied, 280 Conn. 912, 908 A.2d 539 (2006).

On September 23, 2008, the petitioner filed this second amended petition for a writ of habeas corpus, alleging that his trial attorney, Scott Sandler, rendered ineffective assistance in a number of ways related to his pretrial investigation and his representation of the petitioner during the trial. Relevant to the claim raised on appeal, the petitioner alleged that Sandler (1) failed to investigate adequately the relationship that existed between the victim and R, one of the police officers involved in the petitioner’s arrest; (2) failed to cross-examine the victim adequately; (3) failed to locate and present testimony from D, R’s former wife and a potential impeachment witness; (4) failed to present testimony from a private investigator concerning the crime scene; and (5) inadequately advised the petitioner concerning his decision not to testify at the underlying trial. In a thorough memorandum of decision, the court rejected the petitioner’s claims. After the court granted certification to appeal, this appeal followed.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . .

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 834-35, 970 A.2d 721 (2009). Having set forth our standard of review, we trun to those portions of the court’s ruling that are challenged by the petitioner in this appeal.

I

The petitioner argued before the habeas court that Sandler rendered ineffective assistance in that he failed to investigate adequately the relationship that existed between the victim and R, one of the police officers involved in the petitioner’s arrest. The court found that, at the earliest, Sandler became aware that a personal relationship existed between the victim and R on the first day of the petitioner’s criminal trial. It is undisputed that Sandler did not request a continuance to investigate the relationship or to compel R to testify concerning the relationship. R did not testify at trial, and Sandler invited the jury to draw an adverse inference from the fact that the state did not call him as a witness in its case. The record reflects, and the court found, however, that Sandler used his limited knowledge of the relationship during a thorough cross-examination of the victim as a basis for discrediting her testimony.

In rejecting the ineffectiveness claim, the court relied upon the fact that the petitioner failed to present any evidence that the relationship at issue was ongoing on the date of the incident or that the relationship had any effect upon the police investigation into the petitioner’s criminal conduct. Further, the court found that if, as the petitioner asserts, Sandler had requested a continuance to investigate the relationship further, the investigation “would have revealed nothing more than that which was revealed at the habeas hearing by the petitioner: a witness [D] who, if allowed to testify and [if] found credible, would have simply placed the start date of the relationship (arguably a matter that is collateral) at a point in time that was not consistent with the trial testimony of the [victim].” The court found that the evidence presented at the habeas trial supported Sandler’s decision not to request a continuance for the purpose of investigating the relationship to any greater degree. As the court found, such investigation “would have added nothing of benefit to the petitioner’s criminal case.”

On the basis of the facts found by the court, which are supported by our careful examination of the record, the petitioner cannot prevail on this claim. The court properly found that the facts surrounding the relationship were collateral to the issues before the jury and that Sandler effectively used his limited knowledge of the relationship in an attempt to discredit the victim. “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.” Holley v. Commissioner of Correction, 62 Conn. App. 170, 175, 774 A.2d 148 (2001). Moreover, based upon our review of the evidence presented at the habeas trial, the petitioner has failed to demonstrate that the claimed deficiencies in Sandler’s investigation were likely to have had any affect on the outcome of the underlying trial.

At the criminal trial, the victim testified that she began living with R for approximately one year prior to the trial and that she was in a romantic relationship with R since approximately December, 2003. At the habeas trial, R’s former wife, D, testified that she discovered evidence that R was having an extramarital affair with the victim in November, 2002. Additionally, D testified that, in the early part of 2003, she confronted the victim concerning the affair. Although Sandler did not locate D or present her testimony at the criminal trial, we conclude that it was unlikely to have had a significant impact upon the jury’s assessment of the victim’s testimony in general or, more importantly, the petitioner’s criminal liability. There simply was no evidence that the relationship existed before the sexual assault or that the relationship affected the police investigation or the victim’s recollection of the events of September 20, 2002. Accordingly, there is no showing of deficient performance and prejudice related to the failure to investigate, and the petitioner cannot prevail on this claim.

II

The petitioner next claims that Sandler rendered ineffective assistance by failing to cross-examine the victim adequately concerning her relationship with R. Essentially, the petitioner argues that Sandler failed to discredit the victim by eliciting facts concerning her relationship with R. We disagree.

The court found that Sandler conducted a lengthy cross-examination of the victim that was both “vigorous” and “far reaching . . . .” Our review of the record reflects that the cross-examination covered many topics relevant to assessing the victim’s credibility, including the extent of the victim’s relationship with R and when that relationship commenced. Nevertheless, the petitioner asserts that, during cross-examination of the victim, Sandler “found out nothing about [the victim’s] relationship with [R].” The record, however, reflects that Sandler elicited from the victim that she was residing with R at the time of the trial, had been residing with R for approximately one year prior to the trial and that, since December, 2003, the victim had been in an intimate relationship with R. Through cross-examination, Sandler also elicited from the victim that R was one of the responding officers on the day of the incident and that she provided a statement to him concerning what had occurred with the petitioner. She added that, although she met R again sometime after the incident, they did not initially recognize each other. The victim testified, also in response to Sandler’s inquiry, that she could not recall how long she had been living with R before they remembered their interaction at the scene of the crime.

Sandler unambiguously brought to the jury’s attention the fact that the victim’s relationship with R was relevant to assessing her credibility. Sandler asked: “So, the officer to whom you [gave] your detailed statement of being sexually assaulted is the same gentleman [with] whom you have an intimate relationship with now?” The victim replied, “Now, yes.” Furthermore, Sandler raised the possibility that the relationship might affect the victim’s testimony and recollection of events. In this vein, Sandler asked the victim if, during the course of their relationship, she discussed the facts of the petitioner’s criminal trial with R, if the victim discussed with R the fact that she had to testify in court and if the victim asked R to anticipate questions that might be asked of her during her examination at trial. The victim replied that she had not discussed any of these things with R because she did not want to discuss the incident with him.

Our review of the record makes clear that Sandler attempted to discredit the victim’s testimony by inquiring about her romantic relationship with R. This line of inquiry was part of an extensive cross-examination that the habeas court aptly characterized as vigorous and thorough. Through speculative argument before this court, the petitioner urges us to conclude that cross-examination following a more thorough investigation into the victim’s relationship with R would have resulted in an adequate cross-examination of the victim. As we already have discussed herein, the petitioner has failed to demonstrate that the fruit of an additional investigation by Sandler likely would have made any difference in either the effectiveness of Sandler’s cross-examination of the victim or the outcome of the trial. For these reasons, we reject the petitioner’s claim.

Ill

Next, the petitioner claims that Sandler was ineffective in that he failed to locate and to present testimony from D, R’s former wife. We disagree.

The substance of D’s habeas testimony, which was previously discussed, will not be repeated here. Given that testimony, we conclude, as did the habeas court, that it is very unlikely that D’s testimony, if credited by the jury, would have had any significant effect upon its consideration of the petitioner’s guilt. The relationship between the victim and R was not related directly to the petitioner’s guilt or innocence but was a collateral matter related to the jury’s assessment of the victim’s credibility. D did not testify that the victim’s relationship with R predated R’s police investigation of the petitioner’s criminal conduct, let alone that it had any effect upon that investigation. Although D testified at the habeas trial that she would have testified at the criminal trial on the petitioner’s behalf, it would be highly speculative to conclude that D would have been a strong witness for the defense or that her testimony would have been admissible evidence, as it related to purely collateral issues. Because D testified that her marriage to R ended because of R’s relationship with the victim, it would have been reasonable for the jury to conclude that D was far from an impartial witness when it came to matters involving the victim. Similarly, Sandler, having heard D’s testimony, never testified that, as a matter of trial tactics, he would have called D to testify on the petitioner’s behalf. Instead, he identified weaknesses in her testimony. The record reflects that Sandler attempted to impeach the victim during a lengthy and thorough cross-examination that covered many topics, including the victim’s relationship with R. Accordingly, we conclude that his failure to locate D and present her testimony did not affect the outcome of the petitioner’s trial.

IV

The petitioner also claims that Sandler rendered ineffective assistance in that he failed to present testimony from a private investigator concerning the crime scene. This claim is also without merit.

At the criminal trial, the victim testified that the sexual assault perpetrated by the petitioner took place in a small bathroom. Sandler hired Donald Light, a private investigator, to investigate the case. During his investigation prior to the criminal trial, Light photographed and took measurements of the bathroom where the incident was alleged to have occurred. Sandler did not present evidence from Light during the criminal trial. Light testified at the habeas trial and opined that it was possible that the assault could have taken place in the bathroom, despite its small size, and that a lock on the bathroom door could have been disabled by the petitioner. These observations were consistent with the victim’s version of events. At the habeas trial, Sandler testified that, as a matter of trial strategy, he did not present Light’s testimony because it did not tend to cast doubt upon the victim’s testimony.

The petitioner urges us to conclude that Sandler’s decision not to present Light’s testimony was unsound because, although the testimony would not have directly contradicted the victim’s testimony, it would have made her testimony seem “highly unlikely, even if theoretically possible.” We decline to second-guess Sandler’s decision not to present the evidence at issue when there is no evidentiary or logical basis upon which to conclude that the decision not to present the evidence caused any prejudice to the petitioner—the evidence merely tended to corroborate the petitioner’s version of events. Both the evidence presented at the habeas trial and the petitioner’s arguments are insufficient to overcome the strong presumption of correctness afforded to the strategic decision made by trial counsel. See, e.g., Stepney v. Commissioner of Correction, 129 Conn. App. 364, 368, 19 A.2d 1262 (2011).

V

Finally, the petitioner argues that Sandler inadequately advised him concerning his decision not to testify at the underlying trial. We disagree.

There was uncontroverted evidence presented at the habeas trial that Sandler advised the petitioner not to testify at his criminal trial and that the petitioner decided not to testify. The petitioner claimed before the habeas court that Sandler was ineffective in so advising him. The habeas court found that Sandler and the petitioner spent a great deal of time discussing the issue and that Sandler reasonably determined that it was in the petitioner’s best interest that he not testify. In reaching this factual determination, the court noted that there was evidence presented at the criminal trial to corroborate the victim’s version of events in that the petitioner’s girlfriend, who was at the residence at the time that the assault allegedly occurred, corroborated the victim’s testimony. Specifically, she testified that the petitioner and the victim were, in fact, alone in a bathroom at the time of the alleged assault. Furthermore, there was evidence that, after the alleged assault, the victim locked the petitioner out of the apartment and summoned the police. When the police arrived at the scene, they found the petitioner in a common hallway of the apartment, in an agitated state and wearing only boxer shorts. As the habeas court reasonably found, it would have been difficult for the petitioner, testifying before the jury, to have offered a benign explanation with regard to this strong evidence. Additionally, the habeas court found that there were weaknesses in the police investigation of the crime as well as a dearth of physical evidence from the crime scene. These deficiencies, the court determined, provided a basis upon which to cast doubt on the state’s case without requiring the petitioner to testify.

The petitioner argued before the habeas court that he was eager to testify at the criminal trial and that his background, specifically, his prior military service, would have been a favorable attribute in the eyes of the jury. The court, however, found that the topics concerning which the petitioner wanted to testify were not substantial in nature in that they were not likely to have affected the jury’s consideration of his alleged criminal conduct. The court found that “there was no offer of testimony provided to the habeas court as to the manner in which the petitioner would have helped his cause in the event he testified at the underlying trial.” Furthermore, the court agreed with Sandler that there were sound reasons to question whether the petitioner’s record of military service would, as the petitioner argued, necessarily have strengthened his credibility in the eyes of the jurors.

The court concluded that Sandler reasonably relied upon the fact that there was ample evidence that the petitioner had placed himself in compromising situations that would have been difficult for the petitioner to explain to the jury. Additionally, Sandler was mindful that the petitioner had behaved in a belligerent manner in the presence of the police. In advising the petitioner, Sandler relied upon the fact that there were deficiencies in the police investigation and a lack of physical evidence to support the state’s case. Additionally, there were ample grounds upon which to challenge the victim’s credibility. There was no claim made by the petitioner that Sandler provided inaccurate or incomplete information to him relevant to his decision not to testify. Instead, he argues that Sandler should have advised him differently.

Upon our review of the arguments of the petitioner and the evidence presented before the habeas court, we conclude that the habeas court’s analysis is correct—there is nothing in the record to suggest that Sandler’s advice was not the product of reflective and sound trial strategy. The court properly considered the myriad of factors that were relevant to Sandler’s advice to the petitioner. Predictably, the petitioner testified at the habeas trial that he did not assault the victim. The petitioner, however, did not present any other substantive testimony to call into doubt the victim’s version of events. Furthermore, a reasonable assessment of the evidence presented at the criminal trial supports Sandler’s reservations concerning the petitioner’s desire to testify. The petitioner has not presented evidence that the advice given by Sandler was not the result of a competent, if not successful, trial strategy that was within the realm of effective representation. Thus, we conclude that Sandler rendered effective assistance by advising the petitioner not to testify, advice that the petitioner heeded in making his own decision not to take the witness stand at his criminal trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to his ineffective assistance of counsel claim, the petitioner alleged that the prosecutor failed to disclose exculpatory information to the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In its decision denying the petition, the habeas court concluded that the petitioner was procedurally defaulted from raising this claim and did not address it. On appeal, the petitioner does not challenge the court’s decision in this regard.


author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. JOSEPH STEPHENSON
    (AC 31829)
    Bishop, Bear and Pellegrino, Js.

      Argued June 2
    officially released September 20, 2011

      John Timbers, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and David R. Applegate, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Joseph Stephenson, appeals from the judgment of conviction, rendered following a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136 and two counts of larceny in the fifth degree in violation of General Statutes (Rev. to 2005) § 53a-125a. On appeal, the defendant claims that (1) the trial court improperly charged the jury regarding robbery in the third degree as a lesser included offense of robbery in the second degree, (2) the evidence was insufficient to prove that he committed robbery in the third degree, (3) the jury failed to address whether a videotape admitted into evidence was genuine, (4) the state deprived him of a fair trial and due process by improperly disposing of evidence that would have been central to his defense, and (5) the court improperly precluded testimony that the police coaxed a witness to lie. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 23, 2006, at approximately 1 p.m., Donovan Sinclair, a store detective for the Macy’s department store in the Stamford Town Center mall, received notice regarding a suspicious individual in the Polo department at the store. Sinclair then observed, on the security camera, an individual later identified as the defendant in the Polo department. The defendant was carrying a white shopping bag under his arm and was picking out a variety of items. Sinclair monitored the defendant for approximately forty-five minutes and observed him taking items of clothing from the racks, folding them and bending down as if putting the items into the bag. The defendant appeared nervous and was looking around. Although Sinclair did not see a tool in the defendant’s hands, it looked like he had something in his hands.

While observing the defendant, Sinclair called upon store manager Steve Johnson for assistance. Johnson remained in the security office to monitor the security camera while Sinclair followed the defendant as he exited the store. When Sinclair reached the defendant, he identified himself as a Macy’s store detective and indicated that he wanted to talk to the defendant about the merchandise in the bag. A “heated argument” between Sinclair and the defendant ensued, during which some pushing and shoving took place. Sinclair attempted to handcuff the defendant but was only able to get one handcuff on him. Johnson and two other individuals from Macy’s came outside and assisted Sinclair in pinning the defendant against a wall until the police arrived and placed the defendant in a police car. When Sinclair returned to the store, he identified six items from Macy’s that had been recovered from the shopping bag. The total cost of these items was $356.49.

In addition to these items, the police recovered three pairs of eyeglasses, totaling approximately $600, from the Macy’s bag. Stephen Singer, the retail manager at a LensCrafters store in the Stamford Town Center mall, later identified the three pairs of eyeglasses as belonging to that store. Singer checked the store records and determined that the eyeglasses had been accounted for when the store had closed the night before, and that they had not been sold by anyone at the store on August 23, 2006. Singer also recalled that the defendant had been in the store between approximately 10:30 a.m. and 11:30 a.m. that morning. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly charged the jury that it could find him guilty of robbery in the third degree as a lesser included offense of robbery in the second degree. Because the court did not charge on robbery in the third degree as a lesser included offense of robbery in the second degree, the defendant’s claim must fail.

The following facts are necessary for the resolution of the defendant’s claim. The amended information dated October 8, 2008, charged the defendant with robbery in the second degree in violation of General Statutes §§ 53a-135 (a) (2) and 53a-133 (l), and with two counts of larceny in the fifth degree in violation of General Statutes §§ 53a-125a (a), 53a-118 (a) (3) and 53a-119 (9). At the conclusion of the state’s case, the defendant moved for a judgment of acquittal as to each of the three counts. The court granted the motion with regard to the charge of robbery in the second degree but indicated that a charge of robbery in the third degree would be submitted to the jury. At the conclusion of the evidence and prior to the court’s charge, the state filed a second amended information charging the defendant with robbery in the third degree in violation of §§ 53a-136 (a) and 53a-133 (l). The court informed the jury that “ [initially, the defendant was charged with robbery in the second degree. That charge is no longer up for your consideration. We’re not expecting you to render a verdict on that. So, that charge is out. Instead, you’re going to be—the lawyers are going to argue about and I will instruct you on a charge called robbery in the third degree. Another word for it is simple robbery.” Subsequently, the court properly charged the jury regarding the elements of robbery in the third degree, in accordance with the amended information. The court did not instruct the jury that it could find the defendant guilty of robbery in the third degree as a lesser included offense of robbery in the second degree. Accordingly, the defendant’s claim must fail.

II

The defendant next argues that the evidence was insufficient to prove that he committed robbery in the third degree. Specifically, the defendant argues that the evidence was insufficient to establish that he used force in connection with the alleged larceny. We disagree.

“The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because [our Supreme Court] has held that a jury’s factual inferences that support a guilty verdict need only be reasonable.” (Internal quotation marks omitted.) State v. Lokting, 128 Conn. App. 234, 241-42, 16 A.3d 793, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

In the second amended information, the state charged the defendant with robbery in the third degree in violation of §§ 53a-136 (a) and 53a-133 (l). Specifically, the state charged that the defendant, “while in the course of committing a larceny, used physical force upon another person to prevent and overcome resistance to the taking of the property and to the retention thereof immediately after the taking . . . .” According to the defendant, the jury reasonably could not have concluded that he used force during his encounter with Sinclair. On the basis of our review of the record, however, we conclude that the jury reasonably could have found that the defendant used force in the course of committing the larceny.

Sinclair testified that when he followed the defendant out of the store and tried to speak to him about what was in the bag, the defendant tried to walk away and said that he had not done anything. In response to Sinclair’s question, the defendant indicated that he had a pocketknife, although Sinclair did not see a knife, as the defendant kept his hand closed “in a ball . . . .” At that point, they had a “[v]ery heated argument” as Sinclair tried to recover the merchandise. Sinclair testified that there was “a little pushing and shoving” and that he was unable to get handcuffs on the defendant. When the other employees from Macy’s arrived, they were able to restrain the defendant against the wall, although Sinclair still was unable to handcuff the defendant. Contrary to the defendant’s claim, the jury was permitted to infer, on the basis of Sinclair’s testimony, that the defendant was pushing and shoving in an effort to prevent and overcome resistance to the taking of the merchandise and to the retention thereof. Accordingly, the evidence was sufficient for the jury to have found the defendant guilty of robbery in the third degree.

Ill

The defendant next claims that the court improperly failed to charge the jury regarding a videotape that had been admitted into evidence. Specifically, the defendant argues that once the court admitted the videotape into evidence, it improperly failed to charge the jury that it was required to find that the videotape was true, accurate and authentic before it could consider the videotape on the merits. We disagree.

The following facts are necessary for the resolution of the defendant’s claim. Outside the presence of the jury, the state sought to have the surveillance videotape from Macy’s admitted into evidence. The defendant objected, citing issues pertaining to the chain of custody and arguing that there were gaps on the videotape. After hearing the defendant’s objection, the court admitted the videotape into evidence as a full exhibit and stated that the defendant could address his concerns through cross-examination. The defendant filed a request to charge that asked the court to instruct the jury that before it could consider the tape as evidence in the case, the state had to prove by clear and convincing evidence that the tape was a true, accurate and authentic depiction of the events that transpired at Macy’s on August 23, 2006. The court declined to charge the jury as requested, stating that it was up to the jury to determine the credibility of any evidence. The defendant took an exception to the failure to charge as requested. Thereafter, during its charge to the jury, the court properly charged, inter alia, that it was up to the jury to determine the facts, to determine how much weight to give to any particular evidence and to decide which testimony to believe and which testimony not to believe.

“We begin with the well established standard of review governing the defendant’s challenge to the trial court’s jury instruction. Our review of the defendant’s claim requires that we examine the [trial] court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. . . . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. . . . Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible [impropriety] when it is shown that it is reasonably possible for [improprieties] of constitutional dimension or reasonably probable for non-constitutional [improprieties] that the jury [was] misled.” (Internal quotation marks omitted.) Stale v. Cutler, 293 Conn. 303, 317, 977 A.2d 209 (2009). Because the defendant’s claim is nonconstitutional in nature, we must determine whether it is reasonably probable that the jury was misled. See State v. Dash, 242 Conn. 143, 152, 698 A.2d 297 (1997) (“claimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature”); State v. Stevenson, 53 Conn. App. 551, 579-81, 733 A.2d 253 (claim that court improperly failed to instruct jury that it could make its own determination regarding authenticity of letter admitted into evidence, when reviewed in context of entire charge, was not reasonably probable to have misled jury), cert. denied, 250 Conn. 917, 734 A.2d 990 (1999).

According to the defendant, § 9-1 of the Connecticut Code of Evidence requires the court to charge the jury, once the videotape had been admitted, that it was required to find that the videotape was true, accurate and authentic before it could consider the videotape on the merits. Section 9-1 (a) provides: “The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.” The commentary to § 9-1 (a) provides in relevant part: “Before an item of evidence may be admitted, there must be a preliminary showing of its genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. . . . The proponent need only advance evidence sufficient to support a finding that the proffered evidence is what it is claimed to be. Once this prima facie showing is made, the evidence may be admitted and the ultimate determination of authenticity rests with the fact finder.” (Citations omitted; internal quotation marks omitted.) Conn. Code Evid. § 9-1, commentary (a).

Contrary to the defendant’s claim, the rule and commentary pertain to the admissibility of the evidence and do not require the court to charge the jury regarding the authenticity of the evidence once the evidence has been admitted. See State v. John L., 85 Conn. App. 291, 301, 856 A.2d 1032 (“[sjection 9-1 [a] requires only a prima facie showing of genuineness and leaves it to the fact finder to decide the true authenticity and probative value of the evidence”), cert. denied, 272 Conn. 903, 863 A.2d 695 (2004). As indicated previously, the court properly charged the jury with regard to its duty to determine the facts and decide how much weight to give to the evidence. “It is well settled that [ajbsent evidence to the contrary, a jury is presumed to have followed the court’s instructions.” (Internal quotation marks omitted.) State v. Serrano, 123 Conn. App. 530, 541, 1 A.3d 1277 (2010), cert. denied, 300 Conn. 909, 12 A.3d 1005 (2011). On the basis of our review of the court’s charge as a whole, we conclude that there was no reasonable probability that the jury was misled. The defendant’s claim, therefore, must fail.

IV

The defendant next claims that the state deprived him of a fair trial by improperly disposing of evidence that would have been central to his defense. We disagree.

The following facts are necessary for the resolution of the defendant’s claim. Prior to the commencement of the evidence, the defendant filed a motion to dismiss the charges on the ground that the state intentionally had disposed of evidence critical to his defense. Claiming violations of due process under the United States constitution and the constitution of Connecticut, the defendant argued that, rather than preserving the evidence, the Stamford police department took a photograph of the evidence and returned the items to Macy’s and LensCrafters. The motion enumerated several ways in which the return of the items allegedly interfered with the defendant’s ability to defend against the pending charges. Following oral argument, the court denied the motion, indicating that it was untimely filed, the defendant would be able to make his points through cross-examination or extrinsic evidence, and the defendant had not shown that he was prejudiced by the return of those items. At the conclusion of the evidence, the court again discussed its ruling with respect to the returned merchandise. Specifically, the court noted that although the case had been pending for two years, the defendant’s motion was filed on the first day of trial and that it was, therefore, untimely. The court also indicated its belief that the matter was controlled by General Statutes § 54-36a, which provides for the return of stolen property if, in the opinion of the law enforcement officer, the property does not exceed $250, and State v. Davis, 10 Conn. App. 130, 521 A.2d 1051 (1987).

On appeal, the defendant argues that the state deprived him of a fair trial by disposing of evidence that would have been central to his defense. Specifically, the defendant contends that his due process rights under the state constitution were violated by the return of the evidence at issue. We disagree and conclude that the court properly applied Davis to the present case. We further conclude that the defendant has not shown that the return of the merchandise deprived him of his due process rights under the state constitution.

In Davis, a case that involved the theft of five or six jogging suits from a K-Mart department store, the defendant argued that his due process rights were violated when the police returned the items to the store. In rejecting this claim, this court stated that “ [t]he police acted properly and in accordance with the statute in returning the items to the store. Unless the state willfully withheld evidence, it cannot be said that it acted in derogation of the defendant’s due process rights. Only an intentional or deliberate suppression of evidence is a per se violation of due process sufficient to reverse or nullify a conviction. . . . Here, the state did not conceal, suppress, lose or destroy the evidence sought by the defendant. . . . The jogging suits were properly returned to the store to which the defendant had full access. Between the time of the arrest and the eve of the trial, when the defendant issued a subpoena to the police for the suits, he made no attempt to obtain the suits himself nor did he move in court to preserve the evidence. His failure to make a timely attempt to do so precludes him from claiming that the state violated his due process rights. . . . The defendant’s own default cannot be attributed to the state.” (Citations omitted; internal quotation marks omitted.) Id., 133.

In the present case, as in Davis, the state did not conceal, suppress, lose or destroy the evidence at issue. Rather, the merchandise was returned pursuant to § 54-36a. The court noted that § 54-36a provides for the return of the merchandise if the officers believe that the value of the property does not exceed $250. The court referenced the testimony of one of the officers, who indicated that the property was returned because it was of minimal value. Finally, as in Davis, the court in the present case noted that the defendant had ample opportunity to review the evidence and make any motions related to the return of the property, yet this was not done until just prior to the commencement of trial. On the basis of the foregoing, we conclude that the court properly applied the Davis case to the facts of the present case and concluded that the state had not deprived the defendant of a fair trial by improperly disposing of the evidence.

The defendant argues, however, that Davis does not apply because, unlike Davis, the value of the merchandise in the present case far exceeded $250. Even if we assume that Davis does not apply, the defendant still cannot prevail on his claim that his due process rights under the state constitution were violated by the return of the merchandise. “[0]ur Supreme Court has set forth the analytical path for determining whether the failure of the police to preserve evidence constitutes a due process violation under our state constitution. In State v. Morales, 232 Conn. 707, 727, 657 A.2d 585 (1995), the court expressly rejected the federal standard of Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). The court in Morales held that the good or bad faith of the police in failing to preserve potentially useful evidence cannot be dispositive of whether a criminal defendant has been deprived of due process of law. . . . Rather, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.” (Internal quotation marks omitted.) State v. Thompson, 128 Conn. App. 296, 301-302, 17 A.3d 488 (2011). Applying these factors to the present case, we conclude that the defendant’s due process rights under our state constitution were not violated by the return of the merchandise to the stores.

The first factor of the balancing test involves the materiality of the missing evidence. “The measure of materiality is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Id., 303. On the basis of our review of the record, we cannot conclude that the result of the proceedings would have been different had the evidence been available to the defense. The defendant had the ability, through cross-examination and extrinsic evidence, to make the points that he argued in the motion to dismiss regarding the unavailability of the evidence. Additionally, we cannot conclude, under the second Asherman factor, that there was a likelihood of mistaken interpretation of the photograph by the witnesses or jury. With regard to the reason for the unavailability, the evidence was returned based on the value of the items. Finally, the defendant has not shown that he suffered prejudice by the return of the items. As noted by the trial court, although the case was pending for two years, the defendant’s motion was not filed until just prior to the commencement of trial and was therefore untimely. Accordingly, we conclude that the return of the evidence did not deprive the defendant of his right to a fair trial under the state constitution.

V

The defendant next claims that the court improperly precluded Sinclair’s testimony that the police had coaxed him to lie. The defendant argues that he would have used this testimony to impeach Singer with regard to the LensCrafters incident, on the theory that if the police had encouraged Sinclair to lie with regard to the incident at Macy’s, they also would have encouraged Singer to lie with regard to the incident at LensCrafters. We disagree.

The following facts are necessary for the resolution of the defendant’s claim. Sinclair testified as a witness during the state’s presentation of evidence. Later, the defendant called Sinclair to testify during the presentation of his case. During an offer of proof outside the presence of the jury, Sinclair testified that the officers told him, prior to his testimony for the state, that he should say that the defendant was waving a knife at him during their encounter outside the Macy’s store. The defendant sought to establish, through this testimony, that the police encourage people to lie, and because they had encouraged Sinclair to lie, they also encouraged Singer to he with respect to the eyeglasses at LensCrafters. Following argument on the issue, the court sustained the state’s objection and precluded the defendant from pursuing this line of inquiry in front of the jury. The court later denied the defendant’s motion for a mistrial, reasoning that the defendant had the opportunity to question Singer on cross-examination and had suffered no prejudice. On appeal, the defendant argues that Sinclair’s testimony would have been highly relevant and would have supported his position that Singer’s testimony was given in response to police coaxing.

“As a preliminary matter, we set forth the standard of review. We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . The trial court has wide discretion to determine the relevancy [and admissibility] of evidence .... In order to establish reversible error on an evidentiary impropriety . . . the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Citations omitted; internal quotation marks omitted.) State v. Cecil J., 291 Conn. 813, 818, 970 A.2d 710 (2009). “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Internal quotation marks omitted.) State v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995).

On the basis of our review of the record, we conclude that the court did not abuse its discretion in precluding Sinclair’s testimony in order to show that the police had coaxed Singer to lie. Sinclair testified during the offer of proof regarding what the police had told him prior to his testimony for the state. There was nothing in that testimony pertaining to Singer or establishing that the police had coaxed Singer to lie with regard to the incident at LensCrafters. The defendant did not attempt to establish through cross-examination that the police had coaxed Singer to lie. In the absence of such a foundation, we cannot say that the court abused its discretion in refusing to admit this evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant subsequently pleaded guilty to being a persistent larceny offender pursuant to General Statutes § 53a-40 (e).

       The defendant also argues that if two or more of his claims are correct, his conviction must be reversed due to an accumulation of errors. The defendant’s entire argument in support of this claim consists of one sentence, with no citation to legal authority. We, therefore, decline to review this claim, as it is inadequately briefed. See State v. T.R.D., 286 Conn. 191, 213-14 n.18, 942 A.2d 1000 (2008) (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” [Internal quotation marks omitted.]).

       Sinclair also testified that in August, 2006, sensor tags were placed on the clothing that was sold at Macy’s. Macy’s store employees would remove these tags after a purchase. Sinclair testified that an experienced shoplifter would be able to remove these tags using tools such as a knife or a wire cutter.

       Specifically, he identified five pairs of pants and one shirt.

       This count charged, in relevant part, that “on or about August 23, 2006, at the Macy’s Department Store located on Broad Street, in the City of Stamford, [the] Defendant . . . while in the course of committing a larceny, or in the immediate flight therefrom, displayed and threatened the use of what he represented by his words and conduct to be a dangerous instrument to prevent and overcome resistance to the taking of the property, in violation of [§§] 53a-135 (a) (2) and 53a-133 (1) of the Connecticut General Statutes.”

       This count charged, in relevant part, that “on or about August 23, 2006, at the Macy’s Department Store located in Broad Street, in the City of Stamford, [the] defendant . . . while in the course of committing a larceny, used physical force upon another person to prevent and overcome resistance to the taking of the property and to the retention thereof immediately after the taking, in violation of Sections 53a-136 (a) and 53a-133 (1) of the Connecticut General Statutes.”

       General Statutes § 53a-136 provides: “A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.” General Statutes § 53a-133 provides in relevant part: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . (1) [preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking . . . .”

       To lay the foundation for the admission of the videotape, Sinclair testified, inter alia, that he was familiar with how the recording equipment worked, and that it was his job to operate the equipment and change the tapes on a daily basis. He stated that the equipment was working properly on August 23,2006, the store was well lit and the video was not stopped or paused while the defendant was being recorded. After the incident with the defendant was over, Sinclair removed the videotape from the videocassette recorder so that he could give it to his supervisor. Sinclair testified that he did not make any changes or alterations to the videotape and that when he viewed the tape prior to testifying, it accurately depicted what he saw on August 23,2006.

       The defendant also filed a motion to preclude the use of the videotape at trial.

       Rule 901 (a) of the Federal Rules of Evidence, which the defendant also cites, provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

       The defendant also argues that the court failed to charge the jury, based on Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), that if the items were returned, it could infer that the facts were against the state’s interest. The defendant, however, has not briefed this issue, and we, therefore, consider it to be abandoned. See footnote 2 of this opinion.

       With regard to the clothing from Macy’s, the defendant argued, inter alia, that if the state had not returned the items, he would have been able to prove that the clothing was not damaged and, therefore, that he did not remove the sensor tags from the items. He also argued that he would have been able to show that he was returning the pants to Macy’s because the belt loops were too small and that the clothes were unzipped and unbuttoned, and therefore not on display for sale. With regard to the eyeglasses, the defendant argued that if the evidence had been preserved, he would have been able to show that they contained prescription lenses and that they were not new. He also argued that the numbers etched into the eyeglasses were not legible from the photograph.

       General Statutes § 54-36a (b) (1) provides in relevant part: “Whenever property is seized in connection with a criminal arrest or seized pursuant to a search warrant without an arrest, the law enforcement agency . . . shall file ... an inventory of the property seized. The inventory, together with the uniform arrest report, in the case of an arrest, shall be filed with the clerk of the court . . . except, when the property is stolen property and, in the opinion of the law enforcement officer, does not exceed two hundred fifty dollars in value ... the filing of an inventory shall not be required and such property may be returned to the owner. . . .”

       The combined value of the jogging suits was slightly more than $100. State v. Davis, supra, 10 Conn. App. 132.

       Peter McManus, a patrol officer with the Stamford police department, testified that the decision whether to take items of property depends on the value of the property, stating that “[i]f it was a felony, if it was a two or three thousand dollar felony of shoplifting, we would take the items. If it is a misdemeanor, a lesser charge, we usually have a picture taken by the employer at the store.”

       Sinclair testified as follows: “Then he said, do you remember something about the knife? And I said, what knife? He said, well, we took a couple of knives off him. But was he waving a knife at you? And I said, no, he wasn’t waving a knife. He said, well, you should say that. That was it.”