author: WEST, J.

text:
    OLENA BOJILA v. OLGA SHRAMKO, ADMINISTRATRIX (ESTATE OF PETER HLYWA)
    (AC 22775)
    West, DiPentima and Peters, Js.

      Argued September 9
    officially released December 16, 2003

      P. Jo Anne Burgh, with whom was Irene P. Roma-nelli, for the appellant (substitute plaintiff).

      George J. Markley, with whom, on the brief, was Alexander Breiner, for the appellee (defendant).
   Opinion

WEST, J.

The substitute plaintiff, William J. Friedberg, administrator of the estate of Olena Bojila, appeals from the judgment of the trial court, denying the motion that had been filed by Bojila to open the judgment rendered in favor of the defendant, Olga Shramko, administratrix of the estate of Peter Hlywa. On appeal, the substitute plaintiff claims, pursuant to Practice Book § 19-16, that the court abused its discretion by sustaining the defendant’s objection to opening the judgment rendered pursuant to the report of an attorney trial referee (referee). More specifically, the substitute plaintiff claims that the court (1) lacked subject matter jurisdiction to render judgment on October 22,2001, (2) lacked statutory jurisdiction to render judgment on October 22, 2001, (3) rendered a void judgment, (4) violated Bojila’s constitutional right to procedural due process and (5) improperly found that her objection to the referee’s report was untimely, con-clusory and unaccompanied by transcripts. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On October 19,2001, Bojila filed an objection to the court’s acceptance of an August 19, 2001 referee’s report that had been mailed to the parties on October 2, 2001. On October 22, 2001, the court rendered judgment for the defendant pursuant to that report and noted what it perceived to be the absence of an objection to its being rendered.

On November 9, 2001, Bojila filed a motion to open the judgment, claiming that the October 19, 2001 objection had been seasonably filed. On November 21, 2001, the defendant filed an objection to the motion to open the judgment. The court sustained the defendant’s objection on December 3, 2001, and indicated that it was then in possession of Bojila’s October 19, 2001 objection. The court determined that Bojila’s objection was (1) untimely under Practice Book § 19-15 because it was not filed within twenty-one days of the mailing of the referee’s report, (2) conclusory because it lacked specific assertions of fact and (3) violative of Practice Book § 19-14 because no transcript of the evidence was filed with the objection.

On December 20, 2001, Bojila filed a motion to rear-gue, contending that her objection was timely filed. The court denied that motion on January 28, 2002, finding that, irrespective of the timeliness issue, the transcripts were not part of the court file. This appeal followed.

We first note the standard of review of a court’s denial of a motion to open a judgment. “[I]n granting or denying a motion to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion.” (Internal quotation marks omitted.) Conway v. Hartford, 60 Conn. App. 630, 634, 760 A.2d 974 (2000). “In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion.” Carlin Contracting Co. v. Dept. of Consumer Protection, 49 Conn. App. 501, 502-503, 714 A.2d 714 (1998).

I

The substitute plaintiffs first claim is that the court lacked subject matter jurisdiction to render judgment on October 22, 2001. He argues that pursuant to the plain language of Practice Book § 19-16, the court could not have rendered judgment on the referee’s report until October 23, 2001. The substitute plaintiff argues that because of that apparent procedural irregularity, the October 22, 2001 judgment should be vacated. We disagree.

“[Bjecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999). “As we have consistently recognized, [a] lack of subject matter jurisdiction can be raised at anytime and cannotbe waived by eitherparty.” (Internal quotation marks omitted.) Cohen v. Cohen, 41 Conn. App. 163, 165, 674 A.2d 869 (1996).

“A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Lesser irregularities do not make a final judgment void.” (Citation omitted.) Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). “Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. ” (Internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998). Practice Book § 19-16 is designed to allow a party time to file an objection. Here, Bojila filed an objection on October 19, 2001, and the court rendered judgment on October 22, 2001, one day less than the full twenty-one days afforded by Practice Book § 19-16. The court then considered Bojila’s objection in its ruling on the motion to open the judgment.

Rendering of judgment one day early under Practice Book § 19-16, but after Bojila’s objection was filed, when that objection was duly considered by the court during its review of the motions to open and to reargue, is clearly the type of lesser irregularity that will not strip the court of subject matter jurisdiction. See Monroe v. Monroe, supra, 177 Conn. 184-85 (absence from case file of signed order of reference mere oversight and lesser irregularity); see also Cohen v. Cohen, supra, 41 Conn. App. 167 (court’s failure to consider statutory guidelines where parties privately agreed to amount of child support not defect in subject matter jurisdiction). Nowhere does the substitute plaintiff contend that Boj-ila would have filed another objection in addition to, or amending, the objection already filed.

We will address the substitute plaintiffs claim related to the plain language interpretation of Practice Book § 19-16 in greater detail with respect to his argument about statutory jurisdiction.

II

The substitute plaintiffs second claim is that the court committed plain error by rendering judgment before the expiration of the twenty-one day period set forth in Practice Book § 19-16, thereby exceeding its statutory authority. He construes Practice Book §§ 19-15 and 19-16 together to mean that any rendering of judgment before the expiration of the twenty-one day grace period is, regardless of the circumstances, an abuse of the authority granted to the court by those rules. We disagree.

The substitute plaintiff requests plain error review of his claim. “Pursuant to Practice Book § 60-5, [t]he [appellate] court may reverse or modify the decision of the trial court if it determines . . . that the decision is otherwise erroneous in law. The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . . Plain error is restricted to extraordinary situations where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Ipacs v. Cranford, 65 Conn. App. 441, 446, 783 A.2d 1044 (2001).

“A charge that demonstrates that the trial court has overlooked the applicable statute justifies consideration as plain error.” (Internal quotation marks omitted.) Id. We will consider the claim that the plaintiff was prejudiced by the court’s failure to follow strictly the language of Practice Book § 19-16, which he contends is mandatory. “The [plaintiff] cannot prevail under [Practice Book § 19-16], however, unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment will result in manifest injustice.” (Internal quotation marks omitted.) Ipacs v. Cranford, supra, 65 Conn. App. 446.

The interpretive construction of the rules of practice is governed by the same principles as those regulating statutory interpretation. State v. Pare, 253 Conn. 611,

622, 755 A.2d 180 (2000). The interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law, and our review, therefore, is plenary. See Wallingford v. Dept. of Public Health, 262 Conn. 758, 773, 817 A.2d 644 (2003). “[T]he 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.” (Internal quotation marks omitted.) Commissioner of Social Services v. Smith, 265 Conn. 723, 734, 830 A.2d 228 (2003).

“General Statutes § 52-123 provides that [n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court. . . . It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects. . . . Indeed, § 52-123 of the General Statutes protects against just such consequences . . . .” (Citation omitted; internal quotation marks omitted.) Boyles v. Preston, 68 Conn. App. 596, 603, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002). “[C]ommon sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 731, 805 A.2d 76 (2002).

The official commentary to the 2000 amendment to Practice Book § 19-15 provides in relevant part: “The amendments to this section . . . increase the time to file objections to twenty-one days to allow parties more time to review the report and formulate objections. The time period will run from mailing rather than filing to ensure that recipients have the full benefit of the allotted time period.” The official commentary to the 2000 amendment to Practice Book § 19-16 provides in relevant part: “The time period was changed to twenty-one days to conform with the amendment to Section 19-15 . . . .”

There is no magic in the twenty-one days specified in Practice Book §§ 19-15 and 19-16, and we are not convinced that it requires strict compliance in all circumstances. “In determining whether a statute is mandatory or merely directory, the most satisfactory and conclusive test is whether the prescribed mode of action is of the essence of the thing to be accomplished or, in other words, whether it relates to matter of substance or to matter of convenience.” (Internal quotation marks omitted.) Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967) (concluding that statutory language “ ‘[s]aid board shall decide such appeal within sixty days after the hearing’ ” not mandatory).

Under the facts of this case, requiring the court to wait a full twenty-one days before rendering judgment is not “of the essence of the thing to be accomplished”; (internal quotation marks omitted) id.; pursuant to Practice Book § 19-16, the purpose of which is to allow all parties enough time to file objections. It is procedural. In a situation in which all objections have been filed, nothing in Practice Book § 19-16 would preclude a court from rendering judgment one day short of the twenty-one day period. Therefore, the substitute plaintiffs statutory authority argument is without merit.

We conclude that the court’s rendering of judgment on October 22, 2001, under the circumstances, was not “so clear and so harmful ... as to constitute manifest injustice.” (Citation omitted; internal quotation marks omitted.) Ipacs v. Cranford, supra, 65 Conn. App. 449. The judgment was neither void nor voidable.

Ill

The substitute plaintiff claims next that the court violated Bojila’s right to procedural due process under the fourteenth amendment to the United States constitution and article first, §§ 8 and 10, of the constitution of Connecticut by rendering judgment prematurely, without a hearing, and by subsequently declining to open the judgment. The substitute plaintiff argues that Bojila was entitled to oral argument as of right with respect to the court’s sua sponte action in rendering judgment on October 22, 2001, and that rendering judgment without oral argument violated Bojila’s right to due process. We disagree.

The substitute plaintiff asks this court to review the due process claim under review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because it was not raised at trial. Under Golding, a party “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 [party] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

In this case, the record is adequate to review the claim. The substitute plaintiff also meets Golding's second prong by alleging that the procedural irregularity of rendering judgment on October 22, 2001, and the denial of the opportunity for Bojila to be heard on her objection before judgment was rendered, constitutes a deprivation of procedural due process.

As to Golding's third prong, however, the alleged violation of procedural due process does not clearly exist. The substitute plaintiff argues in his reply brief that oral argument was available as a matter of right without meeting the procedure set forth in Practice Book § 11-18 (a). That simply is inaccurate. Practice Book § 11-18 (a) provides that oral argument shall be a matter of right only if the motion has been marked ready and the movant indicates at the bottom of the first page that oral argument is desired. Davis v. Westport, 61 Conn. App. 834, 839-40, 767 A.2d 1237 (2001).

The substitute plaintiff does not dispute that the October 19, 2001 objection to the acceptance of the referee’s report did not include a request for oral argument. Bojila also never informed the court that the matter was ready by calling the short calendar marking telephone line, as specified in the calendar instructions. Additionally, Bojila’s November 9, 2001 motion to open the judgment was not claimed for oral argument. Nowhere on that motion did Bojila argue that she was denied a hearing on the objection to the referee’s report.

Lack of diligence in pursuing oral argument cannot serve as a successful due process claim. The substitute plaintiff therefore fails to meet the third prong of Golding.

IV

The substitute plaintiffs final claim is that the court improperly found Bojila’s objection to the referee’s report to be untimely, conclusory and not accompanied by transcripts. Three arguments are submitted: (1) the October 19, 2001 objection was indeed timely, (2) oral argument would have provided the level of specificity that the court required with respect to the objection and (3) the court was unaware that five volumes of transcript had been filed. For those reasons, the substitute plaintiff argues that the court’s judgment of October 22, 2001, and its order sustaining the objection to the motion to open the judgment should be vacated. We disagree.

We begin our analysis of the substitute plaintiffs claim by setting forth the appropriate standard of review. “We have long held that a finding of fact is reversed when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 133-34, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003).

Both parties agree that the court was mistaken in its belief that the October 19,2001 objection was untimely. The court’s December 3, 2001 order sustaining the defendant’s objection to the motion to open the judgment, however, cited two additional problems: (1) the October 19,2001 objection was conclusory without specific assertions of fact and (2) no transcript of the evidence before the referee was attached to the objection as required by Practice Book § 19-14. The court understood in its January 28, 2002 denial of the motion to reargue that the October 19, 2001 objection was indeed timely, but noted that the required transcripts were not part of the court file, as Bojila’s attorney could have verified.

Practice Book § 19-14 provides that a parly objecting to the acceptance of a referee’s report “must file with the party’s objections a transcript of the evidence . . . .” The substitute plaintiff argues that the court was not aware that five volumes of transcripts had been filed and that it would be illogical to construe Practice Book § 19-14 to require Bojila to file a second set of transcripts at the time of the filing of the objection.

The fact remains, however, that as of January 28, 2002, the transcripts were still not part of the court file. The obvious purpose of Practice Book § 19-14 is to present the court with the necessary transcripts of evidence to consider a party’s objection. Even if we adopt the substitute plaintiffs interpretation of Practice Book § 19-14, we would note that the previously filed transcripts were not part of the court file as late as the court’s denial of the motion to reargue on January 28, 2002.

The substitute plaintiff also contends that oral argument would have provided the court with the detail it believed was missing from the October 19, 2001 objection, and cites Practice Book §§ 11-18 (a) and 19-15 as conferring oral argument as a matter of right. As previously discussed, Practice Book § 11-18 (a) provides a right to oral argument on a motion for judgment on a referee’s report, but only if certain procedural conditions are met. In this case, Bojila never marked the case ready or requested oral argument on the front of the October 19, 2001 objection. Practice Book § 19-15 does not directly pertain to oral argument and establishes only a grace period in which objections may be filed against the acceptance of a referee’s report. We therefore conclude that the court’s findings were not clearly erroneous with respect to the October 19, 2001 objection.

For the foregoing reasons, we hold that the court acted reasonably and well within the bounds of its discretion in sustaining the defendant’s objection to the motion to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       In light of Bojila’s death on January 13, 2002, this court on October 3, 2002, substituted Friedberg as the plaintiff.

       The estate of Peter Hlywa was closed and distributed on August 30, 1996. Prior to distribution, the Probate Court appointed two guardians ad litem to represent the interests of unknown heirs and, specifically, an individual known as “Helen Bojila,” the decedent’s missing sister. She finally was discovered after the distribution. On August 22, 1997, she filed an appeal from the order of distribution. The attorney trial referee to whom the matter was referred for trial determined that “every reasonable effort had been made to locate unknown and missing heirs,” and ultimately recommended dismissal of the appeal pursuant to General Statutes §§ 45a-187 (a) and 45a-132 (c) because the thirty day statute of limitations governing the appeal had expired.

       The substitute plaintiff argues that the voidable judgment became void when Bojila filed the motion to open the judgment.

       Practice Book § 19-16 provides: “After the expiration of twenty-one days from the mailing of the report, either party may, without written motion, claim the case for the short calendar for judgment on the report of the committee or attorney trial referee, provided, if the parties file a stipulation that no objections will be filed, the case may be so claimed at any time thereafter.
      “The court may, on its own motion and with notice thereof, schedule the matter for judgment on the report and/or hearing on any objections thereto, anytime after the expiration of twenty-one days from the mailing of the report to the parties or their counsel by the clerk.”

       The distinction between a court’s subject matter jurisdiction and its authority to act pursuant to the terms of a statute is defined clearly in our jurisprudence. See, e.g., Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999); Rosenfield v. Rosenfield, 61 Conn. App. 112, 116, 762 A.2d 511 (2000).

       Practice Book § 19-15 provides: “Objections to the acceptance of a report shall be filed within twenty-one days after the mailing of the report to the parties or their counsel by the clerk.”

       The substitute plaintiff concedes that his statutory jurisdiction argument was not raised at trial. He argues that the issue should be considered under the plain error doctrine. See Practice Book § 60-5.

       For the reasons previously cited, the substitute plaintiffs third claim also is without merit.

       Practice Book § 11-18 (a) provides in relevant part: “Oral argument is at the discretion of the judicial authority except as to . . . motions for judgment on the report of an attorney trial referee and/or hearing on any objections thereto. For those motions, oral argument shall be a matter of right, provided
      “(1) the motion has been marked ready for adjudication in accordance with the procedure indicated in the notice that accompanies the short calendar on which the motion appears, and
      “(2) the movant indicates at the bottom of the ¡first page of the motion or on a reclaim slip that oral argument or testimony is desired . . .


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VINCENT FERRAIUOLO
    (AC 23973)
    Lavery, C. J., and McLachlan and Peters, Js.

      Argued October 20
    officially released December 16, 2003

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Julia K. Conlin, deputy assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Paul O. Gaetano, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Vincent Ferraiuolo, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly admitted into evidence (1) needlessly cumulative autopsy slides, and (2) a Miranda waiver form and written statement that he had signed. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 26, 1999, Chong Hong was employed as a front desk clerk at the West Haven Hotel (hotel) at 7 Kimberly Avenue in West Haven. After Hong ate dinner in the hotel kitchen with the victim, Josephine Lee, and another employee, he went to his room to rest before the start of his shift. At some time before 9 p.m., he heard a banging on his door and ran out to investigate. Hong went to the front desk and saw that it was unattended. Hong called the police and then was informed of an incident that had occurred upstairs in the room of the victim.

The door to the victim’s room was open, and Hong entered. He observed the victim lying on the floor, bleeding extensively from wounds on her face and head. Hong asked the victim what had happened, and she replied, “It’s Vinny.” Hong observed a great deal of blood in the room, and heard the victim “moaning and groaning” as they waited for the police and medical personnel to arrive. An ambulance arrived, and the victim was taken to a hospital. The victim subsequently died as a result of her injuries.

William Bruneau, a patrol officer with the West Haven police department, had received a report of a robbery at the hotel. Bruneau did not go to the hotel, but instead was dispatched as a perimeter officer. Bruneau received a description that the suspect was a white male wearing a green shirt. Bruneau observed the defendant, a white male wearing a green shirt, attempting to enter the backseat of a taxicab. After blocking the taxicab with his police vehicle, Bruneau approached the defendant while removing his weapon from its holster. The defendant immediately threw his hands in the air and said, “I’m the guy you’re looking for. Don’t shoot. Don’t hurt me. I won’t resist.” Bruneau handcuffed the defendant and noticed that the defendant’s hands were covered in blood, and that it appeared that the defendant had wiped blood onto his chin and down the front of his shirt. The defendant was placed in the backseat of the police vehicle, and kept repeating that he would not resist and that he was “the guy you’re looking for.”

Bruneau learned that the defendant might have been carrying a knife, so he took the defendant out of the vehicle to determine if, in fact, the defendant was in possession of a weapon. At that time, the defendant stated: “My name is Vinny. Vinny Ferraiuolo. I don’t have a knife, I beat her with my hands.” The defendant repeated that statement while Bruneau patted him down. No weapon was found, and the defendant was placed back in the police vehicle. The defendant continued to talk in the backseat, stating that “you [Bruneau] got to understand. You’d do the same thing I did.” The defendant stated that he had lent $60,000 to the victim and that she had stolen that money. Bruneau instructed the defendant to be quiet and transported him to the police station.

James Sweetman, a detective with the West Haven police department, asked the defendant if he wanted to discuss the incident, and the defendant stated that he did not. A short time later, the defendant indicated that he wanted to give a statement regarding the victim. Sweetman advised the defendant of his Miranda rights, and the defendant initialed and then signed a waiver form indicating that he was waiving those rights. Sweetman then asked the defendant about the homicide at the hotel, and the defendant verbalized the entire incident. The defendant stated that he repeatedly had struck the victim in the head with a golf club and a metal roller. Golf clubs and the metal roller were recovered from the victim’s room and were covered in the victim’s blood. Sweetman then set up a computer terminal and asked the defendant to repeat his statement so that it could be typed. Sweetman allowed the defendant to read the typed statement and asked the defendant if he wanted to make any changes. The defendant declined to make any changes. The statement was printed, and the defendant reviewed it again and then signed it.

The jury found the defendant guilty of murder, and the court sentenced him to an effective prison term of sixty years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted into evidence needlessly cumulative autopsy slides of the victim. Specifically, the defendant argues that the court abused its discretion in admitting seventeen color slides of the victim, some of which showed the same injuries and some of which did not show any injuries to the head or face at all. The state contends that it was within the court’s discretion to admit the slides into evidence. The state also argues, in the alternative, that even if the court acted improperly in admitting the slides, such error was harmless. We agree with the state with respect to both arguments.

A

At the outset, we set forth the legal principles that guide our review of the issue. “This court has consistently held that photographic evidence is admissible where the photograph [or slide] has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. . . . [Moreover] [t]here is no requirement . . . that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, the test for determining the admissibility of the challenged evidence is relevancy and not necessity. . . . Thus, although irrelevant evidence of a gruesome character is inadmissible, [t]he prosecution, with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 574-75, 710 A.2d 1348 (1998); C. Tait, Connecticut Evidence (3d Ed. 2001) § 11.17.1, p. 816; see generally annot., 37 A.L.R.5th 515 (1996).

“A potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs the prejudicial effect it might have on the jury. . . . The determination of the trial court will not be disturbed unless the trial court has abused its discretion.” (Citations omitted.) State v. Williams, 227 Conn. 101, 111, 629 A.2d 402 (1993); see also State v. Walker, 206 Conn. 300, 314-15, 537 A.2d 1021 (1988); State v. Sanchez, 69 Conn. App. 576, 594, 795 A.2d 597 (2002). With the foregoing legal principles and standard of review in mind, we now address the specifics of the defendant’s claim.

At the defendant’s first trial, the state made an offer of proof outside the presence of the jury with respect to twenty-two color slides that had been taken at the direction of Edward T. McDonough, the state’s deputy chief medical examiner. Seventeen of the slides were of the victim, and five were of objects taken from the victims’ room, specifically, the golf clubs and the metal roller.

The defendant objected to the introduction into evidence of some of the slides. Specifically, he argued that they were repetitious and that there would be a prejudicial impact on the jury. The defendant also argued that the slides, in particular the pictures of the victim’s head, were “gory.” He did not object to some of the slides being shown to the jury. The state argued that all the slides were necessary to prove the element of intent. Furthermore, the state noted that the different angles depicted in the various slides demonstrated the details regarding all of the lacerations and wounds to the victim’s head and face. The court agreed with the state and overruled the defendant’s objection.

During his second trial, the defendant filed a motion in hmine that sought to preclude the admission of the slides into evidence on the ground that their prejudicial effect on the jury outweighed their probative value. During argument on the motion, the defendant conceded that he did not have any additional case law to support his motion or that would change the ruling from the first trial. The court adopted the ruling from the first trial and denied the defendant’s motion.

During McDonough’s testimony, the defendant renewed his objection to the slides. He objected to each and every slide because they were excessive, repetitive, had no probative value and were introduced for the sole purpose of prejudicing the jury. The court overruled the defendant’s objection. McDonough stated that the slides would be helpful in illustrating how he had performed the autopsy and how the injuries were inflicted on the victim.

McDonough then described to the jury each of the slides. He explained that the first few slides were pre-liminaxy photographs of the victim’s body as she first arrived at his office. Those slides were used primarily for identification purposes. McDonough then showed slides that depicted the various lacerations to the victim’s face and head. Some of the slides showed wounds that had been sutured, and others showed the same wounds without the sutures. McDonough noted that the slides demonstrated that the wounds had been caused by an instrument with an edge, such as a golf club, as opposed to a flat surface. He also explained that the victim suffered more than ten lacerations as a result of multiple blows.

In his brief, the defendant first argues that the five slides that depicted the victim’s body as it arrived at the medical examiner’s office were needlessly cumulative. He contends that although it may have been proper for the court to admit one of those slides, to admit all of them into evidence, particularly those slides of the lower half of the body, was improper. He further argues that the before and after slides showing the same wounds with and without sutures was improper and that only the slides of the wounds without evidence of medical intervention should have been admitted into evidence.

At the outset, we note that our Supreme Court has stated that “photographs of a corpse have been held properly admissible in prosecutions for homicide in spite of a claim that they constitute merely cumulative evidence.” State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); see also State v. DeJesus, 194 Conn. 376, 385, 481 A.2d 1277 (1984); State v. Hanna, 150 Conn. 457, 461, 191 A.2d 124 (1963). Furthermore, we have stated that “[e]ven photographs depicting gruesome scenes that may prejudice the jury are admissible, so long as, in the court’s discretion, they are more probative than prejudicial. ... A court may exclude relevant evidence ‘if its probative value is outweighed by the danger of unfair prejudice. . . .’ Conn. Code Evid. § 4.3.” (Citation omitted; emphasis in original.) State v. Sanchez, supra, 69 Conn. App. 593.

In the present case, the slides were used to help explain the autopsy procedure and assist McDonough in describing his observations. As he stated in his testimony: “No matter how good my descriptions of any injury might be, it certainly is easier or complementary to see them in photographic form.” The slides also were relevant to the issues of intent and cause of death. The slides, therefore, were the most convincing evidence that the state was able to produce and assisted the state with its burden of proving every essential element of the crime of murder beyond a reasonable doubt. See State v. Williams, supra, 227 Conn. 111-12.

It is clear that the state was entitled to have the jury view some of the slides. What is less clear is whether it was proper for the court to admit into evidence all of the slides that depicted the victim’s body and did not show any of the wounds from the defendant’s attack or all of the repetitive slides of the wounds with and without sutures. As we have stated, we are bound to review the defendant’s claim under the abuse of discretion standard. If our standard of review were broader, we may well have reached a different conclusion, i.e., that the slides of the victim’s body and wounds were so repetitive in nature that their prejudicial impact on the jury outweighed their probative value. We agree with the Supreme Court of Washington, which stated: “Prosecutors as well as trial courts must exercise then-discretion in the use of gruesome photographs. The statement that the State had the right to prove its case up to the hilt in whatever manner it chose, must be read to mean only that the State may present ample evidence to prove every element of the crime. . . . Prosecutors are not given a carte blanche to introduce every piece of admissible evidence if the cumulative effect of such evidence is inflammatory and unnecessary.” (Citation omitted; internal quotation marks omitted.) State v. Crenshaw, 98 Wash. 2d 789, 807, 659 P.2d 488 (1983). Nevertheless, we are constrained by our standard of review. As we stated in Sanchez: “The fact that we may be able to conclude that a photograph was not relevant does not mean that other reasonable persons might . . . conclude otherwise.” (Internal quotation marks omitted.) State v. Sanchez, supra, 69 Conn. App. 594. In accordance with the principle that the trial court is afforded broad leeway in determining whether the probative value of the slides outweighed their prejudicial effect, even in a close case, we cannot conclude that the court abused its discretion in admitting all of the slides into evidence.

B

Even if we were to assume arguendo that the court abused its discretion in admitting into evidence all of the slides, we would conclude that such error was harmless beyond a reasonable doubt.

We have stated that “[u]nder the current and longstanding state of the law in Connecticut, the burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. The defendant must show that it is more probable than not that the erroneous action of the court affected the result. . . . Furthermore, [t]he ruling of the trial court in order to constitute reversible error must have been both incorrect and harmful. . . . The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result?” (Citation omitted; internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 653-54, 789 A.2d 519, cert. denied, 261 Conn. 938, 808 A.2d 1133 (2002).

In the present case, the defendant was found near the hotel soon after the attack on the victim. He was wearing clothing that matched the description of the perpetrator. When Bruneau handcuffed the defendant, he noticed that the defendant’s hands were covered in blood that later was determined to belong to the victim. The defendant made an oral confession and subsequently signed a written statement that stated he killed the victim in a manner consistent with the evidence; that is, he repeatedly struck the victim’s head and face with an edged instrument. Finally, we note that the victim identified her attacker as “Vinny.”

In light of the overwhelming evidence of the defendant’s guilt, we agree with the state that even if we were to conclude that the court abused its discretion in admitting all of the slides, such error was harmless beyond a reasonable doubt.

II

The defendant also claims that the court improperly admitted into evidence his signed Miranda waiver form and written statement. Specifically, the defendant argues that the court in his second trial simply adopted the ruling from the first trial regarding the authentication of the waiver form and the two page confession, and ignored the testimony from a handwriting expert, which was not available at the first trial. We are not persuaded.

The following additional facts are necessary for the resolution of that issue. During the first trial, a hearing regarding the defendant’s waiver form and the statement was held outside the presence of the jury. Sweetman testified that he had interviewed the defendant at the police station. Initially, the defendant refused to make a statement, but he soon changed his mind. Sweetman advised the defendant of his Miranda rights and filled out a waiver form. Sweetman stated that the defendant had read the form sentence by sentence and placed his initials after each sentence, indicating that he understood the particular right he was waiving. Sweetman testified that he observed the defendant sign the bottom of the form. The defendant objected, stating that he never initialed or signed the waiver form. The court overruled the defendant’s objection and admitted the waiver form into evidence as a full exhibit.

The state next offered the statement into evidence, and the defendant objected. Sweetman testified that he took the defendant’s statement regarding the events that occurred at the hotel. Sweetman asked the defendant questions and typed his responses on the basis of the defendant’s narrative. The defendant was given the opportunity to make changes to the statement both before and after the statement was printed. The defendant then signed the statement in the presence of Sweetman and Walter S. Casey, a detective sergeant in the West Haven police department. Sweetman and Casey both testified that they were 100 percent certain that the defendant had made and signed the statement. The defendant again objected on the ground that he never had read or signed the statement.

The court heard argument with respect to the admissibility of the statement. The court noted that the signature on the statement was not similar to the signature found on the motions that the defendant had filed in court. The court then ruled that the statement was admissible because any discrepancies between the signatures pertained to the weight of the evidence rather than to its admissibility.

At the second trial, the court reviewed the defendant’s motion to suppress the waiver form and the statement, as well as the transcript and ruling from the first trial. The court ruled that the evidence was admissible and that the order from the first trial would not be disturbed. The court further explained that it was aware that a handwriting analysis had been performed, but did not know the results. The handwriting expert, James Streeter, testified that he had examined the signature on the waiver form and the statement, and compared them to the known signature of the defendant. Streeter . was unable to verify that the signature on the waiver form and statement belonged to the defendant. Streeter also stated that he could not eliminate the defendant as being the author of the signatures on the waiver form and statement.

At the outset, we set forth the applicable standard of review. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Moody, 77 Conn. App. 197, 204, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707 (2003).

“Authentication is ... a necessary preliminary to the introduction of most writings in evidence. ... In general, a writing may be authenticated by a number of methods, including direct testimony .... Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary mies that govern admissibility, such as hearsay exceptions, competency and privilege. . . . Rather, there need only be a prima facie showing of authenticity to the court. . . . Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which will ultimately determine its authenticity. . . . The only requirement is that there have been substantial evidence from which the jury could infer that the document was authentic.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 233, 733 A.2d 156 (1999); see also Conn. Code Evid. § 9-1; C. Tait, supra, § 9.6.1, p. 761 (“[a] writing can be authenticated merely by proof of the signature of the writer. . . . Such proof can be provided by testimony of ... an eyewitness who saw the writing executed” [citations omitted]).

The defendant claims that the signatures on the waiver form and statement had not been properly authenticated and that it was therefore improper for the court to admit them into evidence, particularly in light of the inconclusive expert opinion. That argument, however, confuses the admissibility of the signatures with the weight to be afforded to them. In the present case, Sweetman testified that he observed the defendant initial and sign the waiver form. Furthermore, he stated that he saw the defendant sign the statement. Additionally, Casey testified that he witnessed the defendant sign the statement and that he attached his signature to the document.

We find that such testimony was substantial prima facie evidence from which the jury could infer that the document was authentic and therefore admissible. It was for the jury, as the trier of fact, to determine how much weight to afford the waiver form, the statement and the expert opinion. We conclude, therefore, that the court did not abuse its discretion in admitting into evidence the signed waiver form and statement.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a provides in relevant part that “[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

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

       The defendant elected to waive counsel and proceeded pro se at his trial. Jury selection began on May 24, 2000, and the state began to present evidence on June 15, 2000. The jury could not reach a verdict. The court, Grogins, J., issued three “Chip Smith” charges; see State v. Smith, 49 Conn. 376 (1881); but subsequently declared a mistrial on August 7, 2000. Voir dire for the second trial commenced on October 17,2001. Evidence was presented to the jury before Holden, J., and the second jury starting on October 29, 2001. The second jury found the defendant guilty of murder.

       Seth Spector, a surgeon who treated the victim, testified that the victim died as a result of massive blood loss from multiple wounds. Edward T. McDonough, the state’s deputy chief medical examiner, testified that the cause of death was blunt force trauma to the head.

       The two page statement was read to the jury and stated in relevant part: “I, [the defendant], age 39, make the following voluntary statement of my own free will, without threat or promise, to a member of the West Haven Police Department, knowing that it may be used in a court of law. I have been advised that I have a right to consult with a lawyer, to stand mute, and to sign nothing. These rights I hereby waive. I make this statement to Detective Sweetman . . . whom I know to be a member of the West Haven Police Department. I fully understand that if I make a statement that is untrue and which is intended to mislead a law enforcement officer in the performance of his official function, I would be violating [section] 53a-157 of the Connecticut General Statutes.
      “On the first week in March and the last 2 days in Feb. me and [the victim] have been having business problems regarding money. I was [the victim’s] boyfriend. The business is the [hotel] at 7 Kimberly [Ave.]. [The victim] had money problems and I have been helping her run the hotel, 18 hours a day at no charge, for approx, four months.
      “[The victim] came to me about stolen jewelry for an insurance claim. She claimed that the jewelry was stolen out of the hotel. I have personal knowledge that the jewelry is in a safety deposit box in City bank or maybe Citicorp in Manhattan. The safety deposit box is under her name .... [The victim] insisted that if I told the police that I knew where the jewelry was, that she would blame me for taking the jewelry. She did do this at a later date after I left. [The victim] claimed that I stole checks both commercial and personal checks which she blamed me. She filed a police report on the stolen checks, which never happened. She begin in January to keep duplicate records. She was committing Income Tax evasion. [The victim] said if I did not go along with it she would blame me for it. I was also loaning [the victim] money for her legal expenses.
      “I was depressed and I knew she was lying to me about everything, the finances for the hotel and the mortgage from the hotel. At this time I left the hotel and went back to New York. I started to see a Psychologist because I was depressed and felt I was used. At that point I contacted her several times in an effort to straighten the problem out. She refused, and stated that if I called she would find new charges to file against me. [The victim] said at this point she did not care what happened to me, if I lived or died. I became more and more depressed about the situation.
      “I finally snapped, I could not take it anymore. I then snapped and fought back. I picked up a golf club that was on the floor of the room, which was her golf club. I struck [the victim] twice in the head. A wooden handle that was on the floor with the golf clubs, I picked up and struck her with it once or twice on the head. I do not know what the wooden handle was. I then left the room. When I was leaving I heard someone screaming to me in Korean from behind. I kicked a glove down the hallway toward the stairwell. The police then picked me up a block and half from the motel. I voluntary got into the car.
      “I have read the above statement, and it is the truth to the best of my knowledge.”

       At the defendant’s sentencing hearing, the state entered a nolle prosequi to a pending charge of assault in the first degree.

       The defendant also argues in his brief that several of the jurors stated during voir dire that they would be affected by graphic images. We have reviewed the transcript of voir dire questions and are satisfied that the responses indicated that the jurors could be fair and impartial despite observing graphic images.
      We also note that the defendant did not challenge for cause any member of the venire panel with respect to the possible effects of graphic images. Appellate counsel for the defendant acknowledged that no challenge was made during voir dire and that claims regarding the jury therefore were waived. The defendant represented himself in the second trial. “Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” (Citation omitted; internal quotation marks omitted.) Cohen v. Cohen, 41 Conn. App. 163, 165 n.3, 674 A.2d 869 (1996).

       The handwriting analysis took place between the first and second trials.


author: PER CURIAM.

text:
    NANCY BURTON v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 23557)
    Foti, Schaller and Dupont, Js.
    Argued October 17
    officially released December 16, 2003

      Nancy Burton, pro se, the appellant (plaintiff).

      Michael P. Bowler, assistant bar counsel, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Nancy Burton, appeals from the judgment of the trial court dismissing her appeal from the reprimand issued to her by the defendant, the statewide grievance committee (committee). The committee had affirmed the decision of its reviewing committee, reprimanding the plaintiff for a violation of rule 3.1 of the Rules of Professional Conduct. On appeal to this court, the plaintiff claims that the court (1) improperly concluded that there was clear and convincing evidence that she violated rule 3.1 and (2) improperly denied her motion for reargument. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. The grievance giving rise to the reprimand at issue arose from the plaintiffs behavior during a previous administrative appeal. See Burton v. Statewide Grievance Committee, 60 Conn. App. 698, 760 A.2d 1027 (2000). On July 29,1998, the day before a scheduled hearing before the court, McWeeny, J., in that appeal, the plaintiff filed a five count lawsuit in the United States District Court for the District of Connecticut, naming several judges, including Judge McWeeny, as defendants. On July 30, 1998, the day of the scheduled hearing in the administrative appeal, the plaintiff filed a motion to disqualify Judge McWeeny, who denied the motion, stating: “The court will not recuse itself on the basis of an eleventh hour motion that does not comply with Practice Book § 1-23 and contains only a vague, conclusory allegation that the judicial authority is not impartial.”

After rendering his memorandum of decision dismissing that appeal, Judge McWeeny referred the plaintiff to the committee for investigation. The committee referred the matter to the Fairfield judicial district grievance panel, which filed a complaint that was then assigned to the Danbury judicial district grievance panel (Danbuiy panel) to determine whether there was probable cause of misconduct. The Danbury panel found probable cause and notified the committee, which held a hearing before a three person reviewing committee. On September 29,2000, the reviewing committee issued its written decision, concluding that there was clear and convincing evidence that the plaintiff had violated rule 3.1 of the Rules of Professional Conduct by failing to file her July 30, 1998 motion to disqualify in accordance with Practice Book § 1-23.

The statewide grievance committee, in response to the plaintiffs request for review, affirmed the decision of the reviewing committee. The plaintiff then appealed from the committee’s decision to the court pursuant to Practice Book § 2-38. The court dismissed the appeal, concluding that the record supported the committee’s finding of a violation of rule 3.1. On September 12,2002, the plaintiff filed a motion for reargument and to vacate, which the court denied on September 27, 2002.

The plaintiff then filed the present appeal with this court, claiming that the trial court (1) improperly concluded that there was clear and convincing evidence that she had violated rule 3.1 of the Rules of Professional Conduct and (2) improperly denied her motion for rear-gument. We do not agree. Because both of the plaintiffs claims on appeal center on her repeated contention that she did comply with Practice Book § 1-23, we will address the claims jointly.

“At the outset, we note that in reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct. . . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear- and convincing evidence.” (Internal quotation marks omitted.) Somers v. Statewide Grievance Committee, 245 Conn. 277, 290, 715 A.2d 712 (1998).

In its memorandum of decision, the court stated: “Practice Book § 1-23 establishes the requirements for a motion for disqualification of a judicial authority. These rules serve to protect the integrity of the judicial process. The rule very plainly and simply requires that the motion be in writing ‘accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. . . .’ Practice Book § 1-23. The rule also requires that the motion be made ‘no less than ten days before the time the case is called . . . for hearing, unless good cause is shown for failure to file within such time.’ Practice Book § 1-23. The plaintiff made her motion in writing, accusing Judge McWeeny of not being impartial, unaccompanied by an affidavit or a certificate of good faith, on July 30, 1998, the day the hearing was scheduled pursuant to a notice dated June 4, 1998. She claimed good cause for late filing on the grounds that she did not know that Judge McWeeny would be hearing her case that day. The plaintiffs claims are not credible for several reasons: (1) the plaintiff admittedly received notice of the hearing on her administrative appeal signed by Judge McWeeny and dated June 4,1998; (2) in February, 1998, she made a prior attempt to disqualify Judge McWeeny, which was denied on April 13,1998, for failure to comply with the affidavit and certificate of good faith requirements of Practice Book § 1-23; (3) the federal lawsuit filed on July 29,1998, names Judge McWeeny but seeks no relief against him, which suggests that it was not filed in good faith but for the express purpose of creating a reason to seek his disqualification; (4) paragraph thirty-four of the complaint in the federal lawsuit alleges that a hearing on her appeal was scheduled for ‘July 30, 1998 at 10 a.m. before Defendant [Judge] McWeeny’; (5) the lawsuit in and of itself is not grounds for disqualification, otherwise any judge at any time could be disqualified by the filing of a lawsuit; and (6) the plaintiffs repeated statements to the grievance panel and [the trial] court in her brief and at oral argument that she was ‘never provided with notice of a judicial assignment . . . nor did the [committee] produce such evidence’ ... is belied by the fact that the notice she received from the [trial] court . . . was signed with Judge McWeeny’s name. While this notice alone may not have guaranteed that Judge McWeeny would have heard her appeal, it certainly put her on notice of the substantial likelihood that he would, given his predominant role in connection with administrative appeals and his consistent involvement in the plaintiffs appeal throughout.

“Finally ... a charge that a judge is not impartial implicates not only the fundamental concept of a fair trial, but the very integrity of the trial court. Wendt v. Wendt, 59 Conn. App. 656, 691-97, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). Such motions are treated extremely seriously, so much so that ‘[t]he lawyer codes [of professional responsibility] express a special obligation not to criticize judges through false accusations . . . .’Id., 697, citing Rules of Professional Conduct 3.1 and 8.2. Practice Book § 1-23 exists to ensure that motions to disqualify judges are made on solid ground substantiated by the trial record and not for any improper reason. Because the plaintiff failed to comply with any of the three essential requirements of Practice Book § 1-23, the reviewing committee could reasonably infer that the plaintiffs motion to disqualify Judge McWeeny was not meritorious and in violation of rule 3.1.” For all the aforementioned reasons, the court determined that the evidence in the record supported the defendant’s finding of a violation of rule 3.1 by clear and convincing evidence.

Our examination of the record and briefs and our consideration of the arguments of the parties persuades us that the court’s judgment should be affirmed. Because the quoted portion of the court’s memorandum of decision fully addresses the arguments raised in the present appeal, we adopt it as the proper statement of the issues and the applicable law concerning those issues. See Smith v. Trinity United Methodist Church of Springfield, Massachusetts, 263 Conn. 135, 136, 819 A.2d 225 (2003).

The judgment is affirmed.

       Rule 3.1 of the Rules of Professional Conduct provides: “A lawyer shall not. bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”

       On June 4, 1998, file court issued a notice, with Judge McWeeny’s name on it, to the plaintiff stating that “oral argument in the above captioned case is scheduled for July 30,1998, at 10:00AM in Courtroom A of 100 Washington Street in Hartford.”

        Burton v. Moraghan, United States District Court, Docket No. 3:98 CV 1490 (AHN) (D. Conn.).

       It is noteworthy that in the last paragraph of each of the five counts, the complaint states that “[defendant McWeeny is excluded from this Count.”

       The plaintiff had filed a previous motion to disqualify Judge McWeeny in February, 1998. That motion was denied by Judge McWeeny on April 13, 1998, because the plaintiff did not comply with Practice Book § 1-23 concerning motions for judicial disqualification.

       Although Judge McWeeny referred the plaintiff for investigation of issues of compliance with Rules of Professional Conduct 3.1, 8.2 (a) and 8.4 (4), the only rule violation that is relevant to the present appeal is that of rule 3.1.

       Practice Book § 1-23 provides: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

       Practice Boole § 2-38 (a) provides in relevant part: “A respondent may appeal to the superior court a decision by the statewide grievance committee or a reviewing committee reprimanding the respondent . . . .”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ROBERT L. WALKER
    (AC 23974)
    Foti, Bishop and McLachlan, Js.
    Argued October 14
    officially released December 16, 2003

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Russell C. Zentner, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Robert L. Walker, appeals from the judgments of conviction, following a jury trial, of two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (1), four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), two counts of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, four counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), threatening in violation of General Statutes § 53a-62 (a) (2), criminal possession of a weapon in violation of General Statutes § 53a-217, two counts of credit card theft in violation of General Statutes § 53a-128c (a), three counts of fraudulent use of an automatic teller machine in violation of General Statutes § 53a-127b, two counts of illegal use of a credit card in violation of General Statutes § 53a-128d and one count of larceny in the sixth degree in violation of General Statutes § 53a-125b. The defendant fled the state prior to the completion of trial. He was sentenced by the trial court in absentia to a total effective term of fifty years incarceration, suspended after thirty-two years, with twenty years probation. On appeal, the defendant asserts that the court improperly denied his motion for a mistrial, claiming that events that transpired during the trial prejudiced the jury. We affirm the judgments of the trial court.

The facts relating to the defendant’s claim are as follows. Following the state’s case-in-chief, the trial judge informed the parties that one of the jurors, L, had informed the courtroom clerk that she had received, in the mail, an anonymous letter and a news article concerning the defendant. The trial judge thereafter called L into the courtroom outside of the presence of the other jurors and questioned her about what she had received. L stated that she had read the letter, but that she did not read any part of the news article, opting instead to let her husband review it because she did not know if it contained “a threat.” She stated, however, that her husband informed her that the article did not include any threatening material and that she asked her husband to refrain from relating any other information about the article to her.

The trial judge asked L whether the letter would influence her ability to serve as a juror. L responded that it would not. The prosecutor asked L whether she had any doubt that she “could still decide the case for both sides fairly and impartially.” L responded: “Definitely. I mean, it could have come from anybody. For all I know, it could have come from you, it could have come from the defendant’s attorney. It could have come from family members. I don’t know.”

The defendant’s attorney also questioned L. The following colloquy occurred:

“[Defense Counsel]: The sentence, ‘Don’t let that confirmed rapist go free,’ doesn’t have any effect?
“[The Witness]: Not to my knowledge that he is a confirmed rapist, so.
“[Defense Counsel]: So, as far as you are concerned, this was just a crank letter that you cross off as a crank letter?
“[The Witness]: Exactly.
“[Defense Counsel]: Which may or may not be accurate?
“[The Witness]: Exactly, because I don’t even know any facts about his previous history. I’m just here to decide the facts that are given to me.
“[Defense Counsel]: Did you discuss these letters— Did any of you discuss these letters on your way in this morning or after you got together this morning?
“[The Witness]: The jurors asked who got a letter. That was it. Some—
“[Defense Counsel]: Sorry?
“[The Witness]: We all had obviously a letter. We noticed some did, some did not. So, we asked, ‘Did everybody get a letter?’ We did not discuss the contents.
“[Defense Counsel]: Did anybody have any speculation about as to where the letter came from or who the letter came from?
“[The Witness]: No.”

After the court and the attorneys questioned L, the court instructed her to put the items mailed to her aside and not to let them influence her in deciding the case. The court brought each juror, outside the presence of their fellow jurors, into the courtroom and, along with the attorneys, questioned each juror concerning the anonymous letters.

Juror M similarly stated that she had received a mailing containing a letter and a news article. M stated that she had read part of the news article before handing it to her husband. M represented that she did not believe that she could be “completely objective” in deciding the case and expressed her concerns that she might experience “ramifications” were she to vote one way or another in the case. M further represented that she did not think she would be able to put the information aside and decide the case on the basis of the evidence presented at trial.

Another juror, E, stated that she also received the same letter and news article. She recounted that she read only the first line of the letter, which stated, “dear concerned citizen,” and that she then handed it to her husband, who instructed her not to read it and to show it to the court. E further stated that the jurors had acknowledged that certain of them had received letters, but that the jurors had not discussed the contents of the letters. E stated that the letter would not affect her jury service and her ability to follow the court’s instructions.

The defendant’s counsel questioned E and the following colloquy transpired:

“[Defense Counsel]: Did it frighten you at all to be receiving a letter about this case?
“[The Witness]: I don’t think I would say frightened.
“[Defense Counsel]: Concern? Concern you?
“[The Witness]: Yes, concerning.
“[Defense Counsel]: Do you have any speculation— don’t tell me what they are. Do you have any speculation or guesses about—
“[The Witness]: I’m trying not to even think about it because I just don’t want to go there.
“[Defense Counsel]: And you can be as fair as you should be to my client and to the state?
“[The Witness]: I will try my hardest to do that.
“[Defense Counsel]: Do you have any reservations about it?
“[The Witness]: No. I will try my best to do what I feel is right, and that’s usually what I do. I try to do my best.
“[Defense Counsel]: Okay. What you feel is right based on the evidence that is presented in this courtroom, not on evidence that is sent to you in the mail anonymously?
“[The Witness]: Yes.”

The court next questioned juror T, who stated that the letter and news article had been mailed to his home, as well. He stated that his wife had opened the envelope containing the items and showed him the letter, which he read. The court asked T if he recalled the contents of the letter. T responded: “Here’s what I recall. ‘Don’t let this rapist go free. Your duty,’ something like that, ‘friends of the victim.’ ” T further represented that after his wife told him that there was an article about the case, he told her not to read it to him, to put it back in the envelope and that he would bring it to the court’s attention. The court asked T whether he could decide the case on the basis of the evidence he hears in court and not let the items mailed to him affect his verdict. T responded affirmatively. The court asked T if he had “any question” about his ability to disregard the items mailed to him. T responded that he did not.

Defense counsel then questioned T, and the following colloquy occurred:

“[Defense Counsel]: ‘Don’t let that rapist go free.’ That doesn’t have any affect on you?
“[The Witness]: It struck me as being either from someone very dumb or someone dumber, trying to act dumb. The letter. I don’t understand where it came— I don’t know what that letter is all about.
“[Defense Counsel]: Did it bother you to have a letter come to your house about this case?
“[The Witness]: Well, I know that when we did the voir dire — when we went through voir dire, I thought when we gave names and addresses. So, I figured that’s how it came to my house.
“[Defense Counsel]: Names and towns, but—
“[The Witness]: Pardon.
“[Defense Counsel]: Names and towns. This is not going to have any affect on how you view this case or how you view the testimony, or what you think about things in this courtroom that are said?
“[The Witness]: That letter?
“[Defense Counsel]: Yes.
“[The Witness]: No. I mean obviously someone is saying he’s a rapist, he’s saying he isn’t. Why—
“[Defense Counsel]: I’m asking you. If you’re saying it doesn’t, it doesn’t have any affect on how you listen to the testimony, on how you view what the state says and how you view what I say, and what evidence there is, if you’re saying that’s the case then—
“[The Witness]: I don’t think it will affect what the state says or what you say. So, to have an open mind, some idiot sent me a letter trying to say to do a certain thing.”

The court also questioned jurors W, D, J and G, all of whom stated that they had not received the letter or the news article. All four of those jurors represented that, although they were aware that some of their fellow jurors had received something about the case in the mail, the jurors who had received the letter and the news article had not discussed the content of what they had received with them. All four of those jurors also represented that the fact that some of their fellow jurors had received the letter and the news article in no way affected their ability to remain fair and impartial or to hear the evidence adduced at trial and to return a verdict solely on the basis of such evidence.

After the court and the attorneys interviewed the jurors, the defendant moved for a mistrial. Defense counsel argued that the information sent to the jurors concerned the defendant’s prior criminal histoiy and that it was, therefore, “extremely prejudicial.” Defense counsel also argued that it was impossible to predict how that form of jury tampering might affect the jury and that the problem implicated the defendant’s right to receive a fair trial.

The court orally denied the defendant’s motion for a mistrial. The court first noted that it was not predisposed to deny the defendant’s motion simply because the parties and the court already had expended considerable time and resources on the case. Instead, the court based its ruling on the jurors’ responses to the questions asked of them. The court assessed the representations made by the jurors as being “quite frank.” The court further determined that the jurors realized their civic duty, devoted time in hearing the evidence and were motivated to avoid discussing the matter.

The court noted that W, D, J and G, the four jurors who had not received the material in the mail, consistently represented that they were aware only that some of their fellow jurors had received some type of correspondence and that no juror had discussed the contents of what he or she had received. Insofar as those four jurors were concerned, the court determined that it was “beyond [its] comprehension” how the improper communication with some of the jurors could affect them.

The court next discussed its findings with regard to M. The court noted that M was the only juror who had read at least part of the news article concerning the defendant’s prior criminal history. The court determined that this fact, as well as M’s representation that she would have “a hard time” disregarding the information that she read, warranted M’s removal from the jury.

The court noted that L had represented that she read only the letter and not the news article. The court stated that it had concern over the phrase “convicted rapist” in the letter, but that its concerns were allayed by L’s representation that she would disregard what she had read and that it would have no affect on her. The court concluded: “Taking her at her word, I have instructed her, and I assume she will follow those instructions.”

The court stated its findings with regard to E as follows: “[E] indicated that all she read was basically, ‘dear concerned citizen,’ which it doesn’t say. It says, ‘Responsible Citizen.’ But that’s her recollection. That’s all she read. She never even read further where it indicates that the defendant supposedly was a convicted rapist. “So, she did not read the rest of that document or any of the second document, and it would not affect her at all. And I don’t see how it could.” Likewise, the court noted that T had read only the letter and not the news article. The court observed that T did not even recall the fact that the term “convicted rapist” was used in the letter. The court was satisfied that T, as he had indicated, could disregard what he had read.

The court summarized its conclusions with regard to all of the jurors, except M, as follows: “None of these jurors read the second page, which is the Hartford Courant article itself. I am totally satisfied that the little bit they read on that first page, they can put that aside, they can be totally fair and impartial, and [they] said it would not affect them on this case at all. I am extremely satisfied that the jurors were candid. I think they did not share any of that information. And I would be more concerned if they read that second page, which one juror did, which appears [to be] an article from the Courant. The three remaining jurors who received correspondence indicated [that] they did not read the second page. No one in the household told them anything about that. I’m totally satisfied that they will be fair and impartial, that the little bit that they did read will not affect them sitting on the case.”

Having set forth the necessary facts, we now set forth the standard of review that controls our consideration of the defendant’s claim that the court improperly denied his motion for a mistrial. “While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. ... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Higgins, 265 Conn. 35, 75-76, 826 A.2d 1126 (2003).

Our appellate review is constrained to evaluating the court’s exercise of its discretion even when, as here, the issue concerns whether improper communications between members of the jury and a person who is not a member of the jury deprived the defendant of his right to a fair trial. “Although we recognize that trial [c] ourts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias ... we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred.” (Citation omitted; internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 297, 750 A.2d 1059 (2000).

The constitution of Connecticut, article first, § 8, and the sixth amendment to the United States constitution guarantee a defendant’s fundamental right to a fair trial by an impartial jury. “So basic to our jurisprudence is the right to a fair trial that it has been called ‘the most fundamental of all freedoms.’ Estes v. Texas, 381 U.S. 532, 540, [85 S. Ct. 1628, 14 L. Ed. 2d 543] (1965). It is a right essential to the preservation and enjoyment of all other rights, providing a necessary means of safeguarding personal liberties against government oppression.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 586, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976) (Brennan, J., concurring). “[T]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). It has long been the law of this state that any communication between a juror and any person not a member of the jury, concerning the cause under consideration, is prohibited. See Bennett v. Howard, 3 Day (Conn.) 219, 223 (1808).

Before reaching the merits of the defendant’s claim, we first address an issue raised by the defendant concerning whether he or the state bore the burden of proof. The defendant correctly points out that the letter mailed to the jurors attempted to persuade the jurors to convict him of the dimes with which he stood charged and that the news article that accompanied the letter referred to his prior criminal history. He argues that those communications were presumptively prejudicial and that the state bore the burden of demonstrating their harmlessness. The state, in contrast, argues that when, as here, the court itself was in no way responsible for the impropriety, the defendant bears the burden of demonstrating that he actually was prejudiced by the improper communication.

Our Supreme Court discussed the burden of proof in cases involving improper juror contact in State v. Rhodes, 248 Conn. 39, 726 A.2d 513 (1999). The defendant in Rhodes, having been convicted of murder and felony murder, filed a motion for a new trial on the ground of juror misconduct. Id., 42. The defendant alleged that a juror had discussed the deliberations with a third party. Id. The trial court conducted an evidentiary hearing in which the juror at issue admitted that she had engaged in several conversations about aspects of the case in general, and the course of the jury’s deliberations, with her boyfriend. Id., 42-45. The trial court in Rhodes determined that “irrespective of which party bore the burden of proof on the issue of prejudice, and by whatever standard of proof, the defendant could not prevail on his claim” and, thus, denied the defendant’s motion for a new trial. Id., 45.

On appeal, the defendant in Rhodes, as does the defendant in the present case, argued that the improper contacts between the juror and the third party were presumptively prejudicial and that the state bore the burden of establishing that the contacts were harmless. Our Supreme Court stated that this state’s prior case law “places the burden on the defendant to show that he or she was actually prejudiced by the juror misconduct when the trial court is in no way responsible for the impropriety.” Id., 48. The Supreme Court determined that the circumstances of the case presented “no reason to revisit [its] prior case law regarding the burden or standard of proof in juror misconduct cases” because the defendant could not prevail either under the established standard in this state or under the standard proposed by the defendant. Id., 50. The court nevertheless acknowledged that a split of authority existed in the United States Circuit Courts of Appeal “as to whether a presumption of prejudice arises when a juror has improper communications about the case with a third party.” Id., 49 n.16.

Our Supreme Court in Rhodes, however, referring to United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993), signaled that the “critical consideration in resolving a claim of improper juror contact is not whether prejudice may be assumed from such contact, but, rather, whether, under the specific facts of the case, any such impropriety actually affected the verdict.” State v. Rhodes, supra, 248 Conn. 49 n.16. The court cited Olano, in which the United States Supreme Court stated: “There may be cases where [a jury] intrusion should be presumed prejudicial . . . but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s [deliberations] and thereby its verdict?” (Internal quotation marks omitted.) Id., 50 n.16, quoting United States v. Olano, supra, 739.

Our Supreme Court in Rhodes applied the legal principles that apply with equal force to the present claim: “[N]ot every incident of juror misconduct requires a new trial. . . . [D]ue process seeks to assure a defendant a fair trial, not a perfect one. . . . [T]he constitution does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence which might theoretically affect their vote. . . . The question is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. . . . The defendant has been prejudiced if the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror. . . . We have previously held that, in cases where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error. . . . Where, however, the trial court was in no way responsible for the juror misconduct . . . we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Rhodes, supra, 248 Conn. 47.

Applying those well settled legal principles to the present case, we conclude that the court did not abuse its discretion in finding that the defendant failed to meet his burden of proving that the misconduct, which he proved occurred, resulted in actual prejudice. Upon learning that L and some of her fellow jurors had received information about the case, the court afforded the unusual situation the concern and attention that it warranted. As was its duty, the court conducted an appropriate inquiry to investigate the allegation that a juror or jurors may have become biased. See State v. Roman, 262 Conn. 718, 727, 817 A.2d 100 (2003). The record reflects that the court questioned each juror, and invited and permitted counsel for each side to question each juror, which they did.

The court made numerous factual findings in support of its conclusion that the attempt to prejudice the jury did not warrant a mistrial. The court’s function with regard to the matter required it to assess prejudice. On the basis of the representations of each juror, the court had to determine whether “the misbehavior [was] such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror. . . . Because it is in the best position to evaluate the assurances by the jurors, the trial court’s credibility assessment is entitled to substantial weight.” (Citation omitted; internal quotation marks omitted.) State v. Feliciano, 256 Conn. 429, 450, 778 A.2d 812 (2001). The court’s analysis in this case was inherently fact specific. When findings are not clearly erroneous, this court will decline to substitute its judgment for that of the finder of fact.

The court’s findings, that the improper mailings had prejudiced M and that the other jurors had not been prejudiced, find support in the record. The court based its findings largely on the jurors’ representations about what they actually read. As the court noted, jurors W, D, J and G did not even review either the letter or the news article, and they did not learn any of the details about either of those items from their fellow jurors. Of the other three jurors who received the improper items, L, E and T, none of them read the news article. L read the brief letter, which contained the phrase “convicted rapist.” The court found, however, that L credibly represented that the letter would have no affect on her and that she could follow the court’s instructions. E recalled only that she read the greeting, “dear concerned citizen,” in the letter, and the court found credible her representation that this would not affect her ability to remain impartial as a juror. Finally, T represented that he had read the letter, but that he did not even recall that the term “convicted rapist” was used in the letter. Again, the court specifically found that T could disregard what he had read.

The court’s factual findings with regard to all of those jurors are clear. Acting within the scope of its fact-finding role, the court was “extremely satisfied” that the jurors were candid, that they had not discussed the contents of the letter or the article, that they could put aside whatever effect the improper mailing had on them, and that they could remain “totally fair and impartial.” It is fortunate that the court became aware of the incident immediately after it occurred and prior to the jury’s deliberations. That timing permitted the court to examine each juror, to receive face-to-face assurances from each juror that the incident would play no role in their deliberations and specifically to instruct the jurors that they were to disregard completely what recently had been mailed to some of them.

This court does not make light of the potentially negative impact that the letter and the news article might have had on every member of the jury. That can be no better demonstrated than by the representations of M, whom the court properly excluded. Our concerns, however, are allayed by the court’s findings that none of the jurors who remained on the panel had read the news article and that the three jurors who had read some or all of the letter were unaffected. The record supports the court’s determination that those jurors would remain fair and impartial, and that, as they had demonstrated, they would follow the court’s instructions and not permit the information mailed to some of the jurors to affect their verdict. The court’s findings were not clearly erroneous, and its underlying findings support its conclusion that the defendant failed to demonstrate that he suffered actual prejudice. Consequently, we conclude that the court’s denial of the defendant’s motion for a mistrial reflected a sound exercise of its discretion.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant was later apprehended in Canada and returned to this state, where, in a separate proceeding, he pleaded guilty to two counts of failure to appear in the first degree and one count of failure to appear in the second degree. He remains incarcerated.

       Any reference to individual jurors will be made by use of their initials so as to protect their legitimate privacy interests. See, e.g., State v. Reynolds, 264 Conn. 1, 116 n.109, 836 A.2d 224 (2003).

       The court marked the letter, the news article and the envelope in which they were mailed as court exhibits. The letter stated, in its entirety:
      “Responsible Citizen
      “Please don’t let that Convicted Rapist go free!
      “She could have been someone you loved.
      “Friends of Victims”
      The news article, dated March 9, 2000, was in the form of a single page printout from an Internet web site. The article, entitled “Civic Organization’s Leader Is Registered As A Sex Offender,” was not in its entirety. The article stated as follows:
      “The president of the Greater Hartford Jaycees resigned Wednesday, less than two weeks after registering with state police as a convicted sex offender.
      “Robert L. Walker, a 31-year-old Bloomfield resident, assumed the Jaycees’ top job Jan. 1, taking control of a community service organization best known for running the Canon Greater Hartford Open golf tournament.
      “His criminal history came to light Feb. 24 when, after he was contacted by state police, he registered as a sex offender and his picture was placed

        on the registry’s Web site. Court records show Walker was convicted of first-degree robbery and third-degree sexual assault in 1991. Police say that in 1989, he assaulted and robbed a flight attendant at a Windsor Locks hotel after pretending to be a hotel employee.
      “On Wednesday, Walker said he was stepping down from the unpaid Jaycees post because of ‘personal matters and health reasons.’
      “His resignation comes as Middletown police say they are investigating an incident that occurred late last week involving Walker. The case was handed over to the unit that investigates crimes against people, which is seeking an arrest warrant in that case, police said.
      “Walker, who has not been charged in that incident, declined to discuss the matter, citing ‘legal reasons.’
      “But, he said, T have nothing to hide.’
      “The chairman of the Jaycees’ board, Michael J. Davis, said he knew Walker had been in prison but he did not know he was a sex offender.
      “ ‘It had never crossed my mind to wonder what he had done.’ Davis said. ‘We are not an organization that judges people. We take people at face value.’
      “It was clear, however, that Walker was a dedicated Jaycee, a gifted public . . . .”

       The court instructed the jurors to be cautious about what they might receive in the mail about the case and, if at all possible, to have someone else screen their mail. The very next day following the court’s examination of the jury, juror W reported to the court that he, too, had received in his mail the letter and the news article about the case. W delivered the items to the court. The court called W into the courtroom, outside of the presence of his fellow jurors, and W represented that his wife had examined the items and told him that a letter had come in the mail that “would probably pertain to the case.” The court asked W if he had read the contents of what he had received. W responded that he had not. The court instructed W to ignore the fact that he had received the letter. The court asked W if he had “any difficulty at all” in continuing to serve as a juror in the case. W responded that he did not.
      The defendant immediately renewed his motion for a mistrial. The court denied the motion, noting that W did not read the materials and did not know their contents. The court found credible W’s representation that the fact that he had received a letter, which he did not examine at all, would not affect his ability to remain a fair and impartial juror.

       When defense counsel questioned J about the fact that jurors had received the letter and the news article in the mail, the following colloquy occurred:
      “[Defense Counsel]: Did anyone, even though they didn’t go into the content, the ones that said they read it partially, did they talk about the general character of the article?
      “[The Witness]: They refused to offer any opinion. They were very tight lipped. Nobody wants to see a mistrial. And they were very good about it.
      “[Defense Counsel]: Why is it that no one wanted to see a mistrial?
      “[The Witness]: We have given up a lot personally to come here every day, and we don’t want to see the state incur expense, the defendant incur additional expense, ourselves. It’s once you start the process, and you’re committed to do it, you want to see it end. It’s like running a marathon. The last 100 yards you didn’t want to stop. That’s what it feels like.”

       At the time that the court rendered its decision, W had not yet received the mailing. See footnote 4.

       The court had excused another juror for unrelated medical reasons and excused juror M for the reasons previously discussed. The courtroom clerk chose replacement jurors from the pool of alternate jurors, drawing by lot. Jurors L, E, W, D, J and G reached the verdict that underlies this appeal. As is customary, the court excused alternate juror T from the jury’s deliberations after it delivered its jury charge.

       This court is not at liberty to disregard or to reevaluate the decisions of our Supreme Court, for we are bound by those decisions. State v. Colon, 71 Conn. App. 217, 245-46, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). In numerous cases released after Rhodes, both our Supreme Court and this court have continued to require defendants seeking a new trial on the basis of improper juror contact to prove that the misconduct occurred and that it resulted in actual prejudice. See, e.g., State v. Dorans, 261 Conn. 730, 752, 806 A.2d 1033 (2002); State v. Feliciano, 256 Conn. 429, 449, 778 A.2d 812 (2001); State v. Respass, 256 Conn. 164, 191, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001); State v. Anderson, 255 Conn. 425, 446, 773 A.2d 287 (2001); State v. Booth, 250 Conn. 611, 649, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000); State v. Wilson F., 77 Conn. App. 405, 424, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003); State v. Jackson, 73 Conn. App. 338, 356, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002); State v. Sunderland, 65 Conn. App. 584, 591, 782 A.2d 1269 (2001); State v. Jones, 60 Conn. App. 866, 872-73, 761 A.2d 789 (2000), cert. denied, 255 Conn. 942, 769 A.2d 59 (2001); State v. Portee, 55 Conn. App. 544, 566, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A.2d 439 (2000).

       The defendant argues, in what he deems a separate issue, that “a mistrial should have been declared on account of the jurors’ suspicion that the defendant or his counsel had tampered with the jury and had access to their personal information.” In support of his claim, the defendant refers specifically to the responses of jurors L and E that, he presumably argues, evidenced their belief that the defendant or his counsel had mailed the information to the jurors. Our review of the record reveals otherwise.
      When the prosecutor questioned L about whether she could “still decide the case fairly and impartially” despite having received the letter and the news article, L responded: “Definitely. I mean, it could have come from anybody. For all I know, it could have come from you, it could have come from the defendant’s attorney. It could have come from family members. I don’t know.”
      E represented that she was concerned, although not frightened, by the fact that she had received a letter about the case. When defense counsel asked her whether she had any speculation about where the letter came from, E responded: “I’m trying not to even think about it because I just don’t want to go there.”
      The defendant did not raise his claim precisely before the trial court. He did, however, argue that it was prejudicial to him that “the jurors feel that someone is tampering with them . . . and we have no idea who.” The court did not determine that this was the case and, on the basis of the record before us, nothing in the responses of those two jurors, or of any of the other jurors, reflects a belief that either the defendant or his counsel had mailed the letters. We will not presume that such prejudice existed. Accordingly, we conclude that this aspect of the defendant’s claim lacks merit.