text:
    HOUSING AUTHORITY OF THE CITY OF WEST HAVEN v. CB ALEXANDER REAL ESTATE, LLC, ET AL.
    (AC 28528)
    Bishop, McLachlan and Harper, Js.
    Argued January 10
    officially released April 22, 2008

      Mark T. Kelly, for the appellant (plaintiff).

      Jeffrey M. Donofrio, for the appellees (defendants).
   Opinion

McLACHLAN, J.

This appeal concerns the trial court’s decision as to the just compensation for real property subject to eminent domain. Specifically, the plaintiff, the housing authority of the city of West Haven, appeals from the judgment of the trial court finding the total value of the Glen Oaks Condominiums in West Haven, which were owned by the defendants, including CB Alexander Real Estate, LLC, based on the five year income capitalization approach applied by the defendants’ appraiser. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs appeal. In 2004, the plaintiff exercised its power of eminent domain pursuant to General Statutes § 8-50 to acquire the real property subject to the current appeal. Pursuant to its eminent domain powers, the plaintiff took title to all of the units within the Glen Oaks condominium complex, to which it did not have title previously.

In its memorandum of decision, the court made the following factual findings. The plaintiff “filed statements of compensation for seventy-four units in the same period in which the defendants’ property was seized by eminent domain. Previously, the city of West Haven had transferred the sixteen units it owned to the plaintiff. The [plaintiff] thus acquired ownership of all ninety units in the Glen Oaks Condominiums. The [plaintiff] filed statements of compensation as to all seventy-four units it seized by eminent domain, including statements of compensation for each of the sixty-three units [owned by the defendants] . . . .” For these sixty-three units, the plaintiff deposited the sum of $341,002 with the clerk of the Superior Court. Pursuant to General Statutes § 8-132, the defendants filed applications for review of the statements of compensation for their respective units, thereby appealing from the plaintiffs statements of compensation.

At trial, the issue before the court was the amount of just compensation for the property seized by the plaintiff as of the date of the taking. The defendants proposed two methods of valuation: “[1] a straight market value determination and (2) a business plan valuation based on allegations ‘that the plaintiff participated in the devaluation of the subject property.’ ” To calculate the proper valuation, the defendants retained the services of an appraiser, John Leary, president of Leary Counseling and Valuation, Inc.

Leary prepared an appraisal report, which was admitted as a full exhibit at trial and relied on by the court. Leary’s report detailed the two aforementioned valuation methods; however, the court found that Leary’s income capitalization method was the appropriate method to apply in the present case. The court summarized Leary’s income capitalization analysis in its memorandum of decision by quoting from his appraisal report as follows: “The value of the [sixty-three] units as a rental investment holding as of mid-year 2004 is estimated using a five-year discounted cash flow analysis. The capitalization method simulates the rights of an investor to an annual cash flow and to the resale of the property by quantifying the income and expense of the holding over a five-year period (cash flow) and calculating a reversion (resale value) at the end of the fifth year based [on] dividing the sixth year net operating income ... by a terminal capitalization rate. Two income projections are made to bracket market expectations: one with higher vacancy, repairs and maintenance, and management expenses, and one with lower vacancy, repairs and maintenance, and management expenses. Each year of the income projection is then discounted to a present value at a yield rate commensurate with the risk inherent in the income stream. The sum of the present values under each income projection represents the value range of the [sixty-three] units as of mid-year 2004.” In order to calculate the value at the time of taking, also referred to as the present value, Leary performed a discounted cash flow analysis. Essentially, Leary capitalized the income stream of the units projected for a five year period and discounted the rate they could be sold at in the sixth year.

On the basis of Leary’s report, the court concluded that “Leary did a thorough job of minimizing conjecture and speculation.” Therefore, the court accepted and adopted Leary’s conclusion that the value of the units was $1,986,600. In accepting the income capitalization approach, the court rejected the defendants’ business plan approach valuation of $2,240,000. Thus, the court concluded that the value of the subject property was $1,986,600. This appeal followed.

The plaintiff argues that the court improperly accepted the income capitalization approach of the defendants’ appraiser. Specifically, the plaintiff claims that this estimate was flawed because it was based on “first year net operating income substantially in excess of the demonstrated actual net operating income of the units being appraised for the immediately preceding year . . . .’’In opposition, the defendants contend that the “well reasoned and detailed opinion of the trial court should be affirmed” because the plaintiff did not rebut or impeach the valuation testimony offered at trial by Leary. Moreover, the defendants argue that market value is a question of fact and because the plaintiff has not established that the court’s valuation determination is clearly erroneous, the judgment should be affirmed.

“We begin our analysis of this claim by setting forth the general, well established principles that govern the taking of real property by eminent domain. The fifth amendment to the United States constitution, as applied to the states through the due process clause of the fourteenth amendment . . . provides that private property [shall not] be taken for public use, without just compensation. U.S. Const., amend. V. Article first, § 11, of the Connecticut constitution similarly provides that [t]he property of no person shall be taken for public use, without just compensation therefor. This constitutional principle is well reflected throughout the General Statutes and our case law. See, e.g., Minicucci v. Commissioner of Transportation, 211 Conn. 382, 384, 559 A.2d 216 (1989) ([t]he owner of land taken by condemnation is entitled to be paid just compensation . . .). [T]he question of what is just compensation is an equitable one rather than a strictly legal or technical one. The paramount law intends that the condemnee shall be put in as good condition pecuniarily by just compensation as he would have been in had the property not been taken. . . .

“We have stated repeatedly that [t]he amount that constitutes just compensation is the market value of the condemned property when put to its highest and best use at the time of the taking. ... In determining market value, it is proper to consider all those elements which an owner or a prospective purchaser could reasonably urge as affecting the fair price of the land . . . . The fair market value is the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use. Mazzola v. Commissioner [of Transportation], 175 Conn. 576, 581-82, 402 A.2d 786 (1978). Minicucci v. Commissioner of Transportation, supra, [211 Conn.] 384. The highest and best use concept, chiefly employed as a starting point in estimating the value of real estate by appraisers, has to do with the use which will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate. State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 101, 239 A.2d 528 (1968). . . . Robinson v. Westport, 222 Conn. 402, 405-406, 610 A.2d 611 (1992). . . .

“[B]ecause each parcel of real property is in some ways unique, trial courts must be afforded substantial discretion in choosing the most appropriate method of determining the value of a taken property.” (Citations omitted; internal quotation marks omitted.) Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 827-29, 776 A.2d 1068 (2001).

Moreover, “[i]n actions requiring . . . a valuation of property, the trial court is charged with the duty of making an independent valuation of the property involved. . . . [N]o one method of valuation is controlling .... In determining the value of the property taken, the trier arrives at its own conclusions by weighing the opinions of the appraisers, the claims of the parties, and its own general knowledge of the elements going to establish value, and then employs the most appropriate method to determine the damages that result from the taking. . . . [T]he trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard. ... On appeal, it is the function of this court to determine whether . . . [the conclusions of the trial court] are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 70, 931 A.2d 237 (2007).

To prevail, the plaintiff is required to demonstrate that the court’s findings were clearly erroneous when it accepted and relied on Leary’s valuations for the income capitalization approach. See id. In an attempt to meet its burden, the plaintiff argues that the court improperly “accepted . . . Leary’s methodology in determining projected management, repair and expense figures, which must be deducted from the market rentals (less vacancy) to arrive at net operating income” for the subject property, which is a critical variable in income capitalization valuation.

Net operating income is not only a critical variable, it is also a prerequisite in the income capitalization approach. In order to arrive at the net operating income, Leary first obtained the gross income, which was the retail income in this case. In its memorandum of decision, the court carefully and meticulously described the steps that Leary took in arriving at his valuation. As the court explained, gross income “is arrived at with a deduction in rental properties for vacancies and credit loss .... Then expenses are calculated, which are deducted from effective gross income to produce the net operating income.

“To determine rental income . . . Leary took several steps. He inspected fifty-five of the sixty-three units in question, which [he] rated . . . from poor to fair to average to good and very good with intermediate steps between each category where necessary. He examined the rental histoiy of the sixty-three units appraised against the investigatory background to determine market rent for the units, which is necessary in a highest and best use analysis. If anything, his estimates of market rent for each apartment were conservative; in the great majority of cases, the market rent was the same as the actual rent being charged for each unit (which he listed) in May, 2004.” Leary also examined actual rents from other similar units as well as performing a comparative analysis of other rents in the area of the subject property, which ranged between $100 and $150 a month higher than those at the Glen Oaks property.

Leary then projected the gross income and expense figures out over a period of five years to arrive at net operating income. Gross rental income was projected out at a 6 percent increase per year based on performance for a few years before 2004. He calculated both the projected expenses and the percentage increase for the vacancy-credit loss deduction. In order to calculate expenses, Leary examined the expenses for part of the subject property for the calendar years of 2001, 2002 and 2003. He ran both a lower and higher end income projection for each of the following categories: income growth rates, vacancy and credit loss, repairs and replacements, management, expense growth rate, real estate tax growth rate and year one expenses per unit.

In his appraisal report, Leary calculated the percentage projections on the basis of his “selection of a terminal capitalization rate for the two income projections . . . based in part on the Real Estate Research Corporation . . . real estates reports for spring, 2004, and summer, 2004. [Real Estate Research Corporation] defines third tier investment properties as: older properties with functional inadequacies and/or marginal locations.” (Internal quotation marks omitted.) On the basis of his calculations, and his inspection of fifty-five units, Leary assigned a final market value to each of the representative units.

“The values for the representative units, as found by Leary, [were] as follows:

“In accordance with the procedure set forth in the stipulation [in Leary’s appraisal report], market value for the sixty-three units would be calculated as follows:

As the court stated, the plaintiff “did not rely on an expert of its own. In the posture adopted at trial, the [plaintiff] did not appear to object to the use of the income capitalization method adopted by [Leary] or other elements of his methodology such as the use of a lower end income projection and an upper end income projection.”

In the present action, the plaintiff challenges the calculations that Leary used to determine the net operating income, a critical variable in the income capitalization valuation calculation. In challenging Leary’s net operating income valuation, the plaintiff alleges that the court’s use of Leary’s “percentage [of effective gross income] projections suggested for third tier properties [older properties with functional inadequacies or marginal locations] in reference works mentioned to calculate other expenses and the vacancy-credit loss figure” was improper. The plaintiff contends that the units are more than just older properties with inadequacies or in marginal locations; rather, the properties are distressed and in a blighted area. Thus, the expense projections should be higher than those calculated by Leary. The plaintiff further argues that the court, in relying on Leary’s calculations, in which he projected the cash flow in the first year using actual expense figures only with respect to common charges and real estate taxes and calculating all other expenses as percentages of gross income that were “double the actual, historical net operating income,” was improper and amounts to “little more than conjecture and speculation.”

In opposition, the defendants maintain that the plaintiff never offered any other valuation evidence at trial and on appeal is essentially attempting to receive a review of Leary’s appraisal. Moreover, the defendants assert that the plaintiff offers no support for its arguments that the court’s findings were clearly erroneous. We agree.

The court has substantial discretion to determine the appropriate valuation for the Glen Oaks property and to accept or reject an expert’s opinion as to the valuation. See Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, supra, 256 Conn. 829; see also Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422-23, 446 A.2d 799 (1982). “In arriving at the value of property, no one method is controlling, and there is no rule of law that any particular method of valuation must be followed. It is a matter of opinion based on all the evidence and, at best, is one of approximation.” (Internal quotation marks omitted.) Crowther v. Guidone, 183 Conn. 464, 470, 441 A.2d 11 (1981). Moreover, the court is charged with the duty of making an independent determination of value and fair compensation in light of all of the circumstances. See Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, supra, 829. Here, the court did just that. The court examined both of the valuation methods suggested by the defendants and used its substantial discretion to accept the income capitalization method applied by Leary. It thoroughly examined Leary’s valuations and did not rely on conjecture or speculation when it accepted Leary’s valuation of the subject property. Leary’s appraisal addressed and accounted for the “marginal” conditions of some of the condominium units. Moreover, at trial and on appeal, the plaintiff neither challenged the income capitalization approach, nor did it offer any independent evidence as to the value of the subject property.

The plaintiff had the burden to demonstrate that the court’s finding of the value of the property on the basis of Leary’s income capitalization calculation was clearly erroneous. It has failed to meet this burden.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is a public body created pursuant to General Statutes § 8-40. Section 840 provides in relevant part: “In each municipality of the state there is created a public body corporate and politic to be known as the ‘housing authority’ of the municipality; provided such authority shall not transact any business or exercise its powers hereunder until the governing body of the municipality by resolution declares that there is need for a housing authority in the municipality . . . .”

       In addition to CB Alexander Real Estate, LLC, the defendants are various entities and individuals who owned sixty-three units in the Glen Oaks condominium complex that were taken by the plaintiff. The other defendants are Ankeny Homes, LLC, Asgard Investments, LLC, Glen Oaks Condominium Association, Sharon Arline, John A. Crocco, Raymond Fuoco, Jr., Richard Fasanella, Peter Gschlecht, Rosearme Gschlecht and Elmer L. Huckaby, Sr.

       General Statutes § 8-50 provides in relevant part: “An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it deems necessary for its purposes under this chapter after the adoption by it of a resolution declaring that the acquisition of such real property described therein is necessary for such purposes. . . .”
      In order for the plaintiff to acquire the property at issue, it adopted a resolution, which was passed on March 9, 2004.

       The Glen Oaks Condominiums is a condominium complex comprised of ninety units located at Terrace Avenue and Glade Street in West Haven. The plaintiff had acquired title to sixteen of the units directly from the city of West Haven.

       General Statutes § 8-132 (a) provides in relevant part: “Any person claiming to be aggrieved by the statement of compensation filed by the redevelopment agency may, at any time within six months after the same has been filed, apply to the superior court for the judicial district in which such property is situated for a review of such statement of compensation so far as the same affects such applicant. The court, after causing notice of the pendency of such application to be given to the redevelopment agency, may appoint a judge trial referee to make a review of the statement of compensation.”

       Although the defendants refer to the first valuation approach as a straight market value determination, the defendants’ appraiser used an income capitalization approach to determine the fair market value of the subject property.
      “The income capitalization approach consists of the following seven steps: (1) estimate gross income; (2) estimate vacancy and collection loss; (3) calculate effective gross income (i.e., deduct vacancy and collection loss from estimated gross income); (4) estimate fixed and operating expenses and reserves for replacement of short-lived items; (5) estimate net income (i.e., deduct expenses from effective gross income); (6) select an applicable capitalization rate; and (7) apply the capitalization rate to net income to arrive at an indication of the market value of the property being appraised. . . . The process is based on the principle that the amount of net income a property can produce is related to its market value.” (Internal quotation marks omitted.) Abington, LLC v. Avon, 101 Conn. App. 709, 712 n.3, 922 A.2d 1148 (2007).

       Because the court rejected Leary’s business plan valuation method and relied on his income capitalization method for the valuation of the subject property, we need not discuss the business plan approach.

       The court set forth its analysis as follows: “The court agrees with . . . Leary’s conclusion that the highest and best use for the units owned by the defendants was for continued operation as a rental investment. Andrew Whitley controlled the entities that owned the sixty-three units that were part of the ninety unit condominium block. The original plan was to acquire all the units and renovate the Glen Oaks complex for sale to individual owners. . . . Whitley testified that the financing could never be secured to permit the necessary renovation because the banks balked at extending loans since a municipality owned the remaining twenty-seven units, and the city would not sell its units to the defendants.
      “Also, many of the units were boarded up. Especially obvious, since it was at a primary entrance, was building 254, which the city controlled and was in a rundown condition. This would make it difficult to pursue a plan to sell to individual users.
      “Renovation efforts, necessary to foster sale of the individual units, were also hampered because of unpaid condominium charges for the units owned by the city and eleven units owned by others, so self, nonbank financing was not an option for the defendants.
      “Also, the conclusion that the sixty-three subject units could be continued to be managed as rentals was not some after the fact conjecture. . . . Whitley testified that Glen Oaks had a history as a rental income property, and the city of West Haven was itself 45 percent rental. At the time that Leary prepared his report, Whitley testified he had 90 percent occupancy of the defendants’ units on a rental basis.
      “Based on the foregoing, the court conclude[d] that . . . Leary was correct in concluding that at the time he prepared his report, the highest and best use was continued operation of the subject units as rental properties.”

       The court explained Leary’s conclusions by stating: “For the expense side of the five year projections of income and expenses with the aim of determining net operating income, he posited the actual real estate taxes for year one and the condominium charges, which together constituted over 40 percent of all expenses under each projection. For that year, he used percentage projections suggested for third tier properties in the reference works mentioned to calculate other expenses and the vacancy-credit loss figure.
      “For every year after the first year, he projected the same 6 percent rental increase for the low end and high end income projections with the same expense growth rate and real estate tax growth rate for each of the next four year projections—these figures could not be different in each projection at the risk of making his estimates speculative.
      “What is different in each of the two projections [the expense projection and percentage projection]?
      “There are different percentage growth rates for various items in the lower end income projection as compared to the upper end income projection. The source of these differences are the previously referred to [Real Estate Research Corporation] reports for the spring and summer of 2004. As to the lower end income projection, Leary calculated vacancy-credit loss would be 10 percent of potential gross income—this being applied to gross income, which was to increase at 6 percent per year of the five year projection period. As noted, this is deducted from gross income to arrive at effective gross income. As to expenses on the low end projection, repairs and replacements were calculated at 12.5 percent of effective gross income with management expense at 10 percent of effective gross income.
      “As to the upper end projection, there were the following comparative differences: (1) vacancy-credit loss was calculated at 7.5 percent of potential, which would yield a higher effective gross income over the years as compared to effective gross income for the lower end projection. As to expense projections on the upper end projection, repairs and replacements were to be 10 percent of effective gross income and management expense 7.5 percent of that figure. When all the expenses are deducted from the effective gross income for each year of the five year projections, based on the foregoing, the net operating income for the lower and upper end projections would be different.
      “Relying on the industry source reference, [Real Estate Research Corporation], Leaiy then said, ‘[t,]he risk associated with the lower end income projection for the subject . . . holding is reflected in a terminal capitalization rate of 10.5 [percent] and a discount yield rate of 12 [percent].’ Applied to the net operating income projections, a cumulative present value of $1,750,000 is reached on the low end income projection.
      “The upper end income projection provided for a terminal capitalization rate of 11.5 percent and a discount (yield) rate of 13 percent. Applied to the upper end income projection for net operating income, this would yield a market value of $1.9 million for the subject units.
      “This equates with a unit value range of $27,778 to $30,159 per dwelling unit with an average unit value of $29,016. Leary then allocated the income capitalization approach value range to each of the sixty-three units and offered a final market value opinion as to each unit. This came to a value of $1,828,000 for all the sixty-three units.
      “As the plaintiff not,e[d] in [its] trial brief, the ‘court need not find a value for each of the sixty-three units; rather, the valuation found for each of the six representative units should be extrapolated to the remainder of the units in each of the representative groups.’ The six representative units agreed to by counsel are:

        “1.63 Glade Street, unit C-4, is the representative unit for ‘Group A,’ which consists of eleven (11) units. 63 Glade Street, unit C-4, is a one bedroom, 845 square foot unit.
      “2. 55 Glade Street, unit A-7, is the representative unit for ‘Group B,’ a group consisting of twenty (20) units. 55 Glade Street, unit A-7, is a 728 square foot, one bedroom unit.
      “3. 59 Glade Street, unit C-l, is the representative unit for ‘Group C,’ a group consisting of eight (8) units. 59 Glade Street, unit C-l, is a 900 square foot, one bedroom (plus den) unit.
      “4. 59 Glade Street, unit A-2, is the representative unit for ‘Group D,’ a group consisting of five (5) units. 59 Glade Street, unit A-2, is a 827 square foot, two bedroom unit.
      “5. 55 Glade Street, unit A-2, is the representative unit for ‘Group E,’ a group consisting of two (2) units. 55 Glade Street, unit A-2, is a 480 square foot efficiency unit.
      “6. 59 Glade Street, unit C-2, is the representative unit for ‘Group F,’ a group consisting of seventeen (17) units. 59 Glade Street, unit C-2, is a 915 square foot, two bedroom unit.”

       The court noted that the plaintiff did have “several objections to the valuation arrived at by . . . Leary. [The plaintiff] note[d] that he did not ‘base expenses on historic costs and expenses,’ which ‘seriously distorted’ the first year net operating income, which resulted in the value of the units being ‘artificially inflated.’ The 2003 profit and loss sheet for the defendant Ankeny Homes, LLC, which owned forty-four units in 2003, was introduced into evidence. That year was the base year for . . . Leary’s five year projection of net operating income. But the plaintiff points out that in that year, the profit and loss sheet reflects that property taxes of $64,000 were not paid. Not including them in expenses would distort any calculation of net operating income by necessarily inflating it. But the point is (hat in his projections . . . Leary did include the figure for property taxes and, over the years, projected their increase, which would be the critical factor for any prospective buyer who might hypothetically have access to . . . Leary’s appraisal report.”

      “According to the plaintiff, Leary testified that “the [defendants] had stabilized the properties they owed by repairs and renovations. The actual 2003 [net operating income] figures do not bear this out. Second . . . Leary testified that a 35 percent [net operating income] is a sufficient discount from a normal apartment complex where [net operating incomes] are usually around 65 percent. However, the actual [net operating income] of 20 percent indicates that the 35 percent is not a sufficient discount. Third . . . Leary finds that value estimates he ascribed to the units display a sufficient discount from the sales prices of neighboring condominium units given the ‘distressed conditions at Glen Oaks’ .... However . . . Leary had also testified . . . [about] the comparable sales method of valuing the units due to the inability to produce sales because of the deteriorated condition of the condominium. Finally, the court compares the values found by . . . Leary to the market value of the units determined by the city of West Haven on the October 1, 2000 grand list and finds them similar. However, the Appellate Court has ruled that tax assessments placed upon the subject property are only relevant for taxing purposes and are not relevant in an eminent domain proceeding.” (Citation omitted.)


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    ANDERSON VAZQUEZ v. COMMISSIONER OF CORRECTION
    (AC 28504)
    Graendel, Harper and Berdon, Js.

      Argued January 8
    officially released April 22, 2008

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellant (respondent).

      William P. Bums, Jr., special public defender, for the appellee (petitioner).
   Opinion

BERDON, J.

The respondent, the commissioner of correction (commissioner), appeals from the judgment of the habeas court granting relief to the petitioner, Anderson Vazquez, on count one of his habeas petition and ordering a new trial. The commissioner claims that the court (1) abused its discretion by denying her petition for certification to appeal and (2) improperly concluded that the petitioner’s trial counsel provided ineffective assistance of counsel by failing to present an alibi defense. We dismiss the appeal.

The following facts and procedural history are relevant to our review of the commissioner’s appeal. The petitioner was arrested in connection with an armed robbery that occurred sometime after 11 p.m. on September 2, 2002, in Bridgeport. The petitioner was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). David Abbamonte was appointed by the court as a special public defender to represent the petitioner. The jury found the petitioner guilty, and he was sentenced to a term of eighteen years imprisonment. The conviction was upheld on appeal. See State v. Vazquez, 87 Conn. App. 792, 867 A.2d 15, cert. denied, 273 Conn. 934, 875 A.2d 544 (2005). On March 23, 2004, the petitioner filed a petition for a writ of habeas corpus. The operative petition, in which he alleged, inter alia, that he was denied the effective assistance of counsel, was filed on December 7, 2005. The court granted his petition, concluding that Abbamonte’s assistance as counsel was ineffective because he failed to call witnesses to establish the petitioner’s alibi defense and that Abbamonte’s ineffectiveness entitled the petitioner to a new trial. The court denied the commissioner’s subsequent petition for certification to appeal, and this appeal followed. Additional facts will be addressed as necessary.

In deciding whether the commissioner has established a clear abuse of discretion in the court’s denial of her petition for certification, we must determine whether a certifiable issue exists. “A certifiable issue exists, warranting an appeal to this court, if a petitioner [for certification] can show that the habeas court abused its discretion. To do so, a petitioner must demonstrate that the resolution of the underlying claim involves issues that are debatable among jurists of reason, that a court could resolve the issues differently or that the questions involved deserve encouragement to proceed further.” (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 99 Conn. App. 434, 437, 914 A.2d 585, cert. granted on other grounds, 282 Conn. 910, 922 A.2d 1098 (2007); Bowden v. Commissioner of Correction, 93 Conn. App. 333, 338, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006). Our careful review of the record leads us to conclude that the court did not abuse its discretion when it denied the commissioner’s petition for certification to appeal.

The commissioner claims that the court abused its discretion by denying her petition for certification to appeal. The commissioner argues that Abbamonte did not provide ineffective assistance of counsel by failing to call witnesses to present an alibi defense demonstrating that the petitioner was asleep with his girlfriend at the time of the robbery. More specifically, the commissioner argues that the habeas court failed to “view [the petitioner’s] claim in the light of trial strategy.”

A claim of ineffective assistance of counsel “is governed by the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .... For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn. App. 228, 230, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006). “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) McClellan v. Commissioner of Correction, 103 Conn. App. 159, 161, 927 A.2d 992 (2007).

During the hearing on the habeas corpus petition, the petitioner presented three witnesses: himself; Michelle Rosado, his girlfriend; and an attorney offered as an expert. The state did not call any witnesses. The petitioner testified that during his criminal trial, Abbamonte called no witnesses on his behalf. The petitioner also testified that before his criminal trial, he informed Abbamonte of several alibi witnesses who would testify that on September 2, 2002, at the time of the armed robbery, he was asleep in his apartment with Rosado. The petitioner testified that Abbamonte informed him that calling these witnesses would not be necessary because the victim, whom he believed was in the United States illegally, would not show up at trial. Rosado testified that she was with the petitioner on the evening of September 2, 2002, that the petitioner had gone to sleep with her at approximately 9:30 or 10 p.m. and was asleep at the time of the robbery. Rosado also testified that the petitioner had never left the apartment after he returned home from church earlier that evening. Rosado testified that before trial, she informed Abbamonte that she was willing to testify on the petitioner’s behalf, but on the day of trial, without explanation, he informed her that her testimony was unnecessary. Furthermore, with the consent of the commissioner, the petitioner introduced letters written by Cynthia Frazier and Carol Frazier, two women who lived on the first floor of the apartment building in which the petitioner resided.

The court found the petitioner and Rosado credible, and, on the basis of their testimony, concluded that Abbamonte had rendered ineffective assistance of counsel by failing to call these witnesses to establish an alibi defense. In support of its conclusion, the court noted that there was no evidence in the form of criminal records or prior inconsistent statements suggesting that these witnesses would have been subject to effective impeachment by the state. In light of these findings, the court concluded that the potential alibi testimony had a “propensity to induce reasonable doubt in the minds of the jury . . . .”

Here, no evidence was introduced by the commissioner during the habeas trial demonstrating that Abbamonte’s failure to call these alibi witnesses was a matter of professional judgment involving trial strategy. To the contrary, testimony was introduced by the petitioner suggesting that Abbamonte did not prepare an alibi defense because he believed that the robbery victim was present in the United States illegally and therefore would fail to show up at trial. Moreover, even if a tenable strategic justification existed that would have accounted for Abbamonte’s failure to call these alibi witnesses, this would not insulate Abbamonte’s actions from a subsequent claim of ineffective assistance of counsel. The United States Supreme Court has cautioned that “ [t]he relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000); see also Wiggins v. Smith, 539 U.S. 510, 526, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (deference inappropriate when counsel’s decisions are product of inattention rather than reasoned strategic judgment); Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (“[a]s a general rule, a habeas petitioner will be able to demonstrate that trial counsel’s decisions were objectively unreasonable only if there [was] no . . . tactical justification for the course taken” [internal quotation marks omitted]), cert. denied, 549 U.S. 1257, 127 S. Ct. 1383, 167 L. Ed. 2d 168 (2007); Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir. 2003) (“the decision not to call a witness must be grounded in some strategy that advances the client’s interests”).

In the present case, we note that “[t]he habeas court, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Ankerman v. Commissioner of Correction, 104 Conn. App. 649, 653, 935 A.2d 208 (2007), cert. denied, 285 Conn. 916, 943 A.2d 474 (2008). After our careful review of the record, the court’s ruling and the briefs submitted by the parties, we conclude that the commissioner has not shown that the issues raised with regard to the court’s granting of the petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). The commissioner has failed to demonstrate that the court’s denial of her petition for certification to appeal constituted an abuse of discretion.

The appeal is dismissed.

In this opinion the other judges concurred.

       Our Supreme Court has determined that when either the petitioner or the commissioner “is denied a timely request for certification to appeal from a habeas court’s judgment, such review may subsequently be obtained only if the appellant can demonstrate that the denial constituted an abuse of discretion.” Copas v. Commissioner of Correction, 234 Conn. 139, 150, 662 A.2d 718 (1995). The court recognized that “[i]n enacting [General Statutes] § 52-470 (b), the legislature intended to discourage frivolous habeas appeals.” (Internal quotation marks omitted.) Copas v. Commissioner of Correction, supra, 150.

       The commissioner does not appear to challenge any of the court’s factual findings.

       No testimony was presented from Abbamonte, who was deceased at the time of the habeas proceedings.

         In making this finding, the court noted that the letters written by the Fraziers corroborated the testimony of the petitioner and Rosado.


author: BISHOP, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. CHARLES JOHNSON
    (AC 28537)
    Bishop, Beach and Berdon, Js.

      Argued February 7
    officially released April 22, 2008

      Peter J. Bartinik, Jr., for the appellant (defendant).

      Theresa Anne Ferryman, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Charles Johnson, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the trial court abused its discretion in not giving a jury instruction regarding child witnesses, (2) the court abused its discretion in not permitting the defendant to elicit an allegedly inconsistent statement of the victim’s mother, (3) there was insufficient evidence to convict the defendant of either of the charges against him, and (4) the state’s improper references to religion during final argument (a) deprived him of a fair trial and (b) violated the establishment clauses of the federal and state constitutions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of trial, the victim, C, was fifteen years old and was a junior in high school. Prior to the tenth grade, C had attended a portion of seventh grade, eighth grade and ninth grade in public schools in California. Before moving to California in the middle of the seventh grade, C had resided in Norwich. C testified that while living in Norwich, her family, which included her mother, father and brother, was active in the Norwich Assembly of God church. The defendant, who was a pastor, was the leader of the congregation. C testified that she attended church services and family and youth social functions on a regular basis, and described a close relationship between her family and the defendant and his family. Families regularly would gather at the defendant’s home for church related social functions.

C testified that during one of these social gatherings at the defendant’s home, the defendant grabbed her when she ran into him at the top of the stairs on the second floor, started tickling her, and then groped her and put his hands in her pants and his finger in her vagina. C indicated that during the incident, she was kicking the defendant and telling him to stop, which he did when other children came running up the stairs. C further testified that there had been a previous incident at the defendant’s home during which the defendant groped her chest. Although C was unable to indicate the specific dates of these incidents, she testified that they happened before her family moved to California. C did not alert her parents or any other adults about the incidents with the defendant because she did not want anyone to know about them.

C testified that she first disclosed the incident to a man with whom she was on a church mission trip while she was living in California. On that same trip, she also told a counselor leader and his wife. Shortly after she returned home from that trip, C told her mother, R, who, in turn, told C’s father, about the incidents with the defendant. The police were not contacted because C did not want to take any action at that time. When C and her family moved back to Connecticut, C attended E.O. Smith High School, where she disclosed the incidents involving the defendant to an English teacher after reading an assigned book involving a girl who had been raped and killed. The disclosure to the English teacher led to the involvement of law enforcement.

Thereafter, the defendant was charged with sexual assault in the first degree and risk of injury to a child. The juiy found the defendant guilty of both charges, and the defendant received a total effective sentence of ten years of incarceration followed by five years of special parole. This appeal followed.

I

The defendant first claims that the court abused its discretion in failing to instruct the jury as requested on the credibility of child witnesses. Specifically, the defendant claims that the court should have given the requested instruction because C’s testimony was the sole evidence against him and that the “he said-she said” nature of the evidence necessitated the charge because the credibility of C was the only issue in the case. We are unpersuaded.

The decision of whether to charge on the credibility of a child witness lies in the discretion of the trial court. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989). As later noted by this court, the court in James “adopted the prevailing view that allows the trial judge to exercise his or her discretion in determining whether the jury should receive such a special instruction, and, if so, its nature.” State v. Abrahante, 56 Conn. App. 65, 80, 741 A.2d 976 (1999).

“No abuse of discretion was found in such matters where the victim was twelve years old at the time of trial. [State v. James, supra, 211 Conn.] 571; see State v. Hayes, 20 Conn. App. 737, 748, 570 A.2d 716, cert. denied, 215 Conn. 802, 574 A.2d 218 (1990). Nor was an abuse of discretion concluded where the witness or victim was between eleven and thirteen years old. State v. Angell, 237 Conn. 321, 330-31, 677 A.2d 912 (1996) (twelve years old); State v. Osborn, 41 Conn. App. 287, 290, 676 A.2d 399 (1996) (eleven and thirteen years old).” State v. Abrahante, supra, 56 Conn. App. 80.

At the time of trial, C was fifteen years old. In denying the defendant’s requested charge, the court indicated that “[t]he jury has had the opportunity to have seen and heard [C], [and] her intellectual ability and her real age is something for the jury to assess . . . .” Because the court can most accurately determine those instances where a child witness instruction would be appropriate, we cannot conclude that the court abused its broad discretion in refusing to instruct as requested.

II

The defendant next claims that the court improperly prohibited him from questioning R regarding an alleged prior inconsistent statement she made on the basis that it was irrelevant. We find no fault in the court’s evidentiary ruling.

During his cross-examination of R, the defendant sought to ask the following question: “Isn’t it true that Terry Warner said to you, ‘do you think [C] was molested by [the defendant],’ and [you] responded, ‘Oh, God, no, we’ve talked about that.’ ” Although it is difficult to ascertain the precise purpose of the defendant’s offer in this regard, it appears that the defendant wanted to ask the proposed question to show that, at some point in time, R did not think that the defendant had molested C. The court sustained the state’s objection to the offer because what R thought was irrelevant.

“Evidence is admissible only if it is relevant. . . . The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion. . . . Section 4-1 of the Connecticut Code of Evidence provides in pertinent part that evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . Moreover, [t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Internal quotation marks omitted.) State v. Skidd, 104 Conn. App. 46, 63, 932 A.2d 416 (2007). “It is the obligation of the party offering the evidence to establish its relevance, and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. McSwain, 105 Conn. App. 258, 267, 938 A.2d 595, cert. denied, 286 Conn. 915, 945 A,2d 978 (2008).

Here, the thoughts or beliefs of R as to whether C had been molested by the defendant had no bearing on the question for the jury of whether the defendant did, in fact, sexually assault C. As the court noted: “[I]t’s for the jury to determine the credibility of [C].” Because the opinion of R did not tend to make the sexual assault of C more or less probable, the court properly determined that the proffer was irrelevant.

Ill

The defendant next claims that the evidence was insufficient to prove beyond a reasonable doubt that he committed the offenses of which he was convicted. Specifically, the defendant contends that because C’s testimony was inconsistent with her prior statements, the jury could not have found him guilty beyond a reasonable doubt. We are not persuaded.

In reviewing sufficiency of the evidence claims, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 147-48, 921 A.2d 622 (2007). “The inquiry on appeal is whether the evidence is sufficient to prove the elements of the crimes.” State v. Mezrioui, 26 Conn. App. 395, 398, 602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d 169 (1992). “It [is] for the jury ... to decide whether to believe all or a part of a witness’ testimony and to determine the credibility of the witnesses. . . . When a claim of insufficiency of the evidence is made, an appellate court is not concerned with the credibility of the witnesses but need only decide whether there was evidence from which the jury could conclude that the defendant was guilty beyond a reasonable doubt.” (Citation omitted.) State v. Sirimanochanh, 31 Conn. App. 452, 455, 625 A.2d 832 (1993).

Here, the defendant does not claim that the evidence was insufficient in that the state failed to prove one or more of the elements of the charged offenses. Rather, he contends that the only evidence against him was the testimony of C and that “there was no possible way a jury could rely on her testimony beyond a reasonable doubt.” Because the jury was free to credit all or part of C’s testimony, and it is not our province to second-guess the jury’s judgment as to C’s credibility, the defendant’s claim fails.

IV

The defendant finally claims that the prosecutor improperly referenced religion in her final argument. The defendant’s claim in this regard is twofold. First, the defendant claims that the state’s reference to religion improperly bolstered C’s testimony, that it was unduly passionate and inflammatory, that it improperly invaded the province of the jury and that it constituted unfair comment on the defendant’s failure to testify. Second, the defendant claims that the state’s references to religion violated the federal constitutional prohibition against the establishment of religion and the Connecticut constitutional prohibition against religious preference.

In her final argument to the jury, the prosecutor stated: “You’re going to hear a lot about the issue of consistency, and that is an important matter for you to consider and I want to start there. I want to start basically with what the state asserts has been presented. We have a sixteen year old girl who has had something happen to her, she says. This thing has caused her some difficulty over the years; it has preyed on her mind in some kind of way. She has raised it in different forums with different people in different settings at different times over the last couple of years. She has taken an oath, an oath that you might find has real significance for her based on what is undisputedly a very religious and devout life. That’s something for you to consider when you consider her taking the oath and making these statements under oath.”

Later, when discussing C’s parents, the prosecutor stated: “The question of a financial gain has been touched upon during the evidence. [C’s] father is an attorney; he is well aware of his rights and remedies. Two years have passed, and no lawsuit has been filed based on these claimed incidents. First of all, I’d like you to think about the idea that these two very involved, devout and obviously very earnest parents would put [C] through this for the sake of financial gain. I don’t think that’s reasonable but, ultimately, again, that’s something you need to consider.”

A

As noted, the defendant claims that the state improperly used religion in its final argument to the jury. “Prosecutorial [impropriety] claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute [an impropriety]. Second, if [an impropriety] occurred, the reviewing court must then determine if the defendant has demonstrated substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process. . . .

“Because the claimed prosecutorial [impropriety] occurred during closing arguments, we advance the following legal principles. [P]rosecutoriai [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Citation omitted; internal quotation marks omitted.) State v. Skidd, supra, 104 Conn. App. 64-65. “[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state’s case forcefully, [but] such argument must be fair and based on the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 394, 832 A.2d 14 (2003).

Our Supreme Court first addressed the use of religious references in prosecutors’ arguments in State v. Ceballos, supra, 266 Conn. 364. In Ceballos, “the statements made by the [prosecutor] during his summation not only directly invoke [d] religious characters, including ‘God’ and ‘Satan,’ but also impliedly reference[d] notions of divine punishment for worldly transgressions.” Id., 383. After a thorough review of the law in other jurisdictions and academic commentary examining this issue, the court determined that “courts overwhelmingly have taken a disapproving approach to the prosecutorial use of religious imagery and references during trials.” Id., 384. Although the court expressed a similar concern for the inappropriate insertion of religion into criminal trials, the court declined to adopt a per se rule of reversibility; rather, the court elected to retain the well settled standard under which we evaluate all claims of prosecutorial impropriety whereby the “threshold inquiry ... to be performed [is] whether the challenged statements pass the threshold of impropriety in that they are inflammatory, unduly evoke the passions or prejudices of the jurors, or improperly invade the province of the jury.” Id., 389. Applying this test, the court concluded that “the context of the statements, the manner in which they were delivered, and the substance of the remarks constituted inappropriate statements under our well established standard regarding prosecutorial misconduct” and that “the [prosecutor’s] separate direct invocations of religious characters served solely as an inflammatory emotional appeal to the passions and prejudices of the jury . . . .” Id., 391. The court further concluded that “[b]y raising the inference that the defendant already had been adjudged guilty by an omnipotent other, the statement impermissibly invaded the province of the jury to pass upon the credibility of the respective witnesses.” Id., 392.

Similarly, in State v. Camacho, 282 Conn. 328, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007), the defendant claimed that the prosecutor’s use of religious references to the biblical story of Cain and Abel and to the choice between good and evil were inflammatory. Our Supreme Court agreed, stating that the prosecutor’s “remarks had no bearing on any of the facts adduced at trial, nor did they implicate the jury’s determination of guilt or innocence. Rather, the context of the statements, the manner in which they were delivered, and their substance constituted an inappropriate appeal to the emotions and an invasion of the province of the jurors.” Id., 381-82.

Here, unlike the circumstances in Ceballos and Camacho, religious practice was within the factual context of the case. Therefore, the prosecutor’s mention of C’s and her parents’ religiousness or devoutness had an evidentiary basis. Additionally, unlike the comments under scrutiny in Ceballos and Camacho, the comments made by the prosecutor in this case were not emotionally charged or passionate, and the prosecutor’s suggestion that C’s and her parents’ devoutness could be considered in assessing their credibility did not improperly invade the province of the jury. Furthermore, the prosecutor’s references to the devoutness of C and her parents were embedded in lengthy recitations of other factors for the jury’s consideration. The prosecutor did not invoke religious figures or make any references to a divinity as a means to inflame the jury or to invoke a higher being to influence their deliberations as the prosecutor did in Ceballos. In fact, the prosecutor’s comment, as to C, could fairly be construed as a comment on her ability to appreciate the moral duty to tell the truth. See State v. Aponte, 249 Conn. 735, 757, 738 A.2d 117 (1999).

Furthermore, the prosecutor’s religious references were no more than appeals to the common sense of the jury. On the basis of the evidence that C and her parents were religious and were very involved in religious activity, the prosecutor’s comments can fairly be seen, not as an appeal to a higher being or a preference for religion but simply a common sense observation that someone who is devout may take seriously the invocation of an oath to God.

The defendant also claims that by noting that C had testified under oath, the prosecutor was indirectly making reference to the defendant’s failure to testify. We are not persuaded.

“[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. . . . [T]he limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Citations omitted; internal quotation marks omitted.) State v. Rowe, 279 Conn. 139, 159-60, 900 A.2d 1276 (2006). As to the proper analysis of this claim, the court in State v. Lemon, 248 Conn. 652, 731 A.2d 271 (1999), opined: “As we repeatedly have stated, [i]n determining whether a prosecutor’s comments have encroached upon a defendant’s [fifth amendment] right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) Id., 659.

In the case at hand, the record reveals that the prosecutor made no mention whatsoever of the defendant’s failure to testify, nor did she draw any comparison regarding the presence or absence of witnesses at trial or between those who may have taken an oath or those who may have affirmed as permitted by statute. A fair reading of the record leads us to the conclusion that the sole focus of her comments was on C’s having taken an oath and her suggestion that the jury may consider how seriously C may have taken the obligation of the oath, given the evidence of her religiousness. Thus, we do not believe the prosecutor’s comments can be interpreted fairly as an attempt to draw attention to the fact that the defendant did not testify. These comments neither directly nor indirectly implicated the defendant’s failure to testify. On the basis of the foregoing, we conclude that the prosecutor’s comments were not improper in light of the context and the manner in which they were made.

We recognize, however, that our Supreme Court in Ceballos strongly admonished the state to be wary of interjecting religion into a criminal trial. Thus, even though in this instance we believe the prosecutor’s comments were grounded in the evidence, noninflammatory and noninvasive, we will assess whether these comments, in toto, deprived the defendant of a fair trial.

“In determining whether prosecutorial [impropriety] amounted] to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).

“This does not mean . . . that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor’s improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 575, 849 A.2d 626 (2004). “[T]he fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.” Id., 576.

“To determine whether the defendant was deprived of his due process right to a fair trial, [the reviewing court] must determine whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Internal quotation marks omitted.) State v. George J., 280 Conn. 551, 604, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007).

First, we conclude that there is nothing in the record to suggest that the claimed improprieties were invited by the defendant. Additionally, because of the lengthy delay in reporting the offense, there was no physical evidence incriminating the defendant, and credibility was, therefore, a critical issue in this case. As our Supreme Court has stated, cases that are lacking conclusive physical evidence and hinge on the jury’s determination of the credibility of the victim are not particularly strong cases. See State v. Singh, 259 Conn. 693, 724-25, 793 A.2d 226 (2002). C’s testimony was not, however, the only testimony against the defendant, as the state also offered corroborative constancy of accusation testimony from two other witnesses. Thus, although the state’s case was not overwhelming, it was not wholly dependent on C’s testimony.

The claimed improprieties in this case were neither frequent nor severe because they constituted a very small portion of the state’s final argument. See State v. Pouncey, 40 Conn. App. 624, 636, 673 A.2d 547 (1996), aff'd, 241 Conn. 802, 699 A.2d 901 (1997). Although the court did not issue any specific curative instruction as to the religious references made by the prosecutor, the court did instruct the jury to assess witness credibility not only in terms of appearance, demeanor and bias, but also in terms of the witness’ ability to recall events and the testimony’s harmony with the whole of the evidence presented. These general instructions likely cured any impropriety. Unless there is an indication to the contrary, we presume that the jury followed the court’s instructions. See State v. Warholic, 278 Conn. 354, 401, 897 A.2d 569 (2006). Furthermore, although “a general instruction does not have the same curative effect as a charge directed at a specific impropriety, particularly when the [impropriety] has been more than an isolated occurrence” (internal quotation marks omitted); id.; when “the defendant fail[s] ... to object to this comment ... to bring [the improper comment] to the attention of the trial court, [the defendant] bears much of the responsibility for the fact that [this] claimed impropriety] went uncured.” (Internal quotation marks omitted.) Id., 402. Because the defendant did not object to the state’s remarks when they were made, did not ask for a curative instruction and did not move for a new trial on the basis of the claimed improprieties, it is difficult to accept his claim that those comments deprived him of a fair trial.

As to the defendant’s claim that the prosecutor’s comments improperly emphasized the fact that he did not testify, our Supreme Court has repeatedly stated that in determining whether a prosecutor’s comments have encroached upon a defendant’s fifth amendment right to remain silent, we ask: “Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) State v. Rowe, supra, 279 Conn. 160. Here, not only did the prosecutor never mention the fact that the defendant did not testify, but it is tenuous to suggest that her comment about C having taken an oath was intended to be, or could be construed as, a comment on the defendant’s failure to testify. Additionally, the court instructed the jury that no unfavorable inferences could be drawn from the fact that the defendant did not testify.

Thus, even if we were to conclude that the prosecutor’s comments during final argument were improper, the defendant was not prejudiced by the impropriety and was not deprived of his right to a fair trial.

B

The defendant finally claims that the prosecutor’s references to religion during final argument violated the establishment clause of the federal and state constitutions. Because the defendant raises this claim for the first time on appeal, it is unpreserved. Although we have previously reviewed unpreserved claims of constitutional magnitude, “[i]t is well established . . . that parties must affirmatively seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine [embodied in Practice Book § 60-5] and bear the burden of establishing that they are entitled to appellate review of their unpreserved constitutional claims.” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 781, 894 A.2d 963 (2006). Here, the defendant has requested neither Golding nor plain error review. We therefore decline to review the defendant’s claim that the state’s references to religion during final argument violated the federal and state establishment clauses.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

BERDON, J.,

concurring in the result. I agree with parts I, II and III of the majority opinion.

I part company from the majority with respect to part IV. In part IV, the majority gives its approval to the prosecutor’s final argument, in which she argued with respect to C, the complaining witness, as follows: “She has taken an oath, an oath that you might find has real significance for her based on what is undisputedly a very religious and devout life. That’s something for you to consider when you consider her taking the oath and making these statements under oath.”

The plain import of the prosecutor’s remark directed the jury’s attention to the fact that the complaining witness had given evidence under oath before the jury and, implicitly, that the jury had not heard from the defendant, Charles Johnson.

Our Supreme Court has stated that “[i]t is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. ... As we repeatedly have stated, [i]n determining whether a prosecutor’s comments have encroached upon a defendant’s [fifth amendment] right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Citations omitted; internal quotation marks omitted.) State v. Lemon, 248 Conn. 652, 659, 731 A.2d 271 (1999). The prosecutor’s argument violated the defendant’s fifth amendment right to remain silent under the United States constitution.

Furthermore, I am also deeply concerned that the foregoing argument with respect to religion appealed to the emotions of the jurors and improperly usurped the province of the jury. Here, the majority concludes that the prosecutor’s remarks regarding C and her parents’ religiousness and devoutness were justified because such comments “had an evidentiary basis.” I fail to comprehend the evidentiary basis supporting such comments in a case in which the defendant has been charged with sexual assault and risk of injury to a child.

Nevertheless, I do not dissent because the defendant did not object to the prosecutor’s argument when it was made, nor did he move for a new trial. Rather, I leave this matter to another forum for correction of an injustice.

Accordingly, I reluctantly concur in the result.

       We note that the conduct that gave rise to the risk of injury charge allegedly occurred between June, 2000, and September, 2001. Although § 53-21 was amended during that time, there is no dispute that the conduct in which the defendant allegedly had engaged was prohibited under all of the revisions of the statute applicable during that time period. In the interest of simplicity, we refer to the current revision of § 53-21 as the revision of the statute under which the defendant was charged.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The record reflects that C was sworn as a witness at trial, employing the oath prescribed by General Statutes § 1-25.

       We further note that the court did give a general charge as to the credibility of witnesses, of which the defendant has not claimed any deficiency.

       From the record, it also appears that the defendant was offering the question to show a prior inconsistent statement of C. The court sustained the state’s objection in that regard as well because C had not been confronted with this alleged inconsistency, and, therefore, the offer lacked the proper foundation. The defendant has not challenged the court’s ruling in this regard.

       Although the defendant’s claim of prosecutorial impropriety was not preserved at trial, it may be reviewed utilizing the two-pronged analysis that we have applied in the past. See State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004) (unpreserved claims of prosecutorial impropriety reviewable without seeking review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 [1989]).

       An oath is commonly defined and understood as “[a] solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to a promise.” Black’s Law Dictionary (8th Ed. 2004).

       Although we conclude that the prosecutor’s remarks in this case were not improper, because religious arguments have been condemned by many federal and state courts as confusing, unnecessary and inflammatory, and are fraught with potential establishment clause complications, counsel is cautioned once again against making unnecessary religious references during trial.


author: PER CURIAM.

text:
    NORMAN BRYN ET AL. v. ROGER A. BRYN
    (AC 27765)
    Flynn, C. J., and Bishop and Berdon, Js.
    Submitted on briefs December 3, 2007
    officially released April 22, 2008

      Glenn Gazin filed a brief for the appellants (plaintiffs).
   Opinion

PER CURIAM.

The plaintiffs, Norman Bryn and Jan Bryn, appeal from the judgment of the trial court denying their request for injunctive relief against the defendant, Roger A. Biyn. On appeal, the plaintiffs claim that the court improperly determined that they had an adequate remedy at law. We affirm the judgment of the trial court.

The plaintiffs are the defendant’s brother and father. They initiated this action alleging that, since 1984, the defendant had subjected them to a “deliberate and malicious campaign of harassment, psychological and physical intimidation, physical assault, threat, harassment, invasion of privacy, and libel.” The plaintiffs requested that the defendant be permanently enjoined from having any contact with them. Following an evidentiary hearing, the court determined that the evidence supported many of the plaintiffs’ factual allegations. The court, nevertheless, declined to award injunctive relief on the ground that the plaintiffs had failed to establish irreparable harm and the lack of an adequate remedy at law. This appeal followed.

“[T]he governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction [are]: A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Internal quotation marks omitted.) Kelo v. New London, 268 Conn. 1, 89, 843 A.2d 500 (2004), aff'd, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005).

The one issue raised by the plaintiffs on appeal is their claim that the court improperly determined that they had an adequate remedy at law. The court’s denial of the injunction, however, was based on the plaintiffs’ failure to prove (1) the lack of an adequate remedy at law and (2) irreparable harm. Even if we were to conclude that the plaintiffs proved that they did not have an adequate remedy at law, the plaintiffs, nevertheless, would not be entitled to an injunction because the court also concluded that they failed to prove the requisite element of irreparable harm. Because the plaintiffs have not claimed on appeal that the court improperly determined that they had not suffered irreparable harm, that finding by the court stands unchallenged. As a consequence, we cannot conclude that the court abused its discretion in denying the injunction.

The judgment is affirmed.