author: PELLEGRINO, J.

text:
    ERNEST FRANCIS v. COMMISSIONER OF CORRECTION
    (AC 33427)
    DiPentima, C. J., and Beach and Pellegrino, Js.

      Argued January 14
    officially released May 14, 2013

      Michael Stone, assigned counsel, for the appellant (petitioner).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PELLEGRINO, J.

The petitioner, Ernest Francis, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly rejected his claims of ineffective assistance of counsel. We affirm the judgment of the habeas court.

The petitioner’s conviction was the subject of a direct appeal. See State v. Francis, 228 Conn. 118, 119, 635 A.2d 762 (1993). In affirming the conviction, our Supreme Court set forth the following facts: “On March 8, 1990, the [petitioner] and the victim were incarcerated at the Hartford community correctional center. The two men became involved in an altercation during which the victim and several other inmates attacked the [petitioner]. During the course of this altercation, the [petitioner] was stabbed in his leg with a shank, a prison term for a homemade weapon. The [petitioner] believed that it was the victim who had stabbed him. Both men were subsequently released from custody.

“On August 12, 1990, the [petitioner] and the victim met again. At approximately 4 p.m. on that day, two witnesses, Jennifer Green and Sandra Brown, were on the porch of Brown’s residence at 165 Homestead Avenue in Hartford. At that time, they saw a young man, later determined to be the victim, walking toward them on Homestead Avenue, holding an ‘ice pop’ in his hand. At the same time, two additional witnesses, Victor Lowe and Fred Faucette, were standing on the sidewalk of Homestead Avenue. They also noticed the victim.

“All four witnesses then observed a red Mitsubishi automobile drive up Homestead Avenue, pass the victim, stop suddenly, back up and halt near him. The [petitioner] then emerged from the driver’s side of the car and approached the victim. An argument ensued between the two men. This confrontation continued twenty to forty feet from Lowe and Faucette.

“While the [petitioner] and victim exchanged words, the four witnesses observed, from different vantage points, that the [petitioner] held his right hand behind his back. From where they were located, both Green and Brown observed that the [petitioner]’s hand, which was behind his back, was on the handle of a knife. Upon seeing the knife, Brown commented to Green, ‘He wouldn’t dare do that.’

“After farther words had been exchanged, the victim agreed to fight the [petitioner]. The victim did not, however, make any physical movement toward the [petitioner]. The [petitioner] then pulled the knife from behind his back and began to make stabbing motions at the victim. One of these stabbing motions cut the victim’s ice pop in half as the victim was retreating.

“The victim ran into a nearby yard where he was pursued by the [petitioner]. There, the [petitioner] stabbed the victim in the upper left portion of his chest, causing his death. The [petitioner] then reentered the car and left the scene.” Id., 120-21.

After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a) and sentenced to fifty years imprisonment. Id., 119. In March, 1995, the petitioner, representing himself but with appointed standby counsel, filed a habeas corpus petition alleging, inter alia, that his trial counsel, attorney Kenneth Simon, provided ineffective assistance by failing to present a defense of extreme emotional disturbance. After a habeas trial at which the petitioner and Simon testified, the court denied the petition for habeas corpus and the petitioner’s subsequent petition for certification to appeal. See Francis v. Warden, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-95-0550706 (February 18, 1998), appeal dismissed, 63 Conn. App. 282, 775 A.2d 1004, cert. denied, 256 Conn. 933, 776 A.2d 1150 (2001).

In his present habeas corpus petition the petitioner alleges, inter alia, that Simon provided ineffective assistance because he (1) failed to investigate and to present a defense of extreme emotional disturbance and failed to request a jury charge on the defense, and (2) failed to move to disqualify the presiding judge at the petitioner’s hearing in probable cause and the criminal trial. The habeas trial was held on October 15, 2009, and March 2, 2010; the court heard expert testimony from an attorney and a psychiatrist regarding the petitioner’s claims. Following the trial, the court denied the petitioner’s petition and subsequently granted his petition for certification to appeal. This appeal followed. Additional facts and procedural history will be introduced as necessary.

We first set forth the standard of review and legal principles applicable to the petitioner’s appeal. “Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Ham v. Commissioner of Correction, 301 Conn. 697, 706, 23 A.3d 682 (2011).

A claim of ineffective assistance of counsel as enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), “consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 294-95, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). Our Supreme Court has stated that “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances,” and that “[jJudicial scrutiny of counsel’s performance must be highly deferential.” (Internal quotation marks omitted.) Ham v. Commissioner of Correction, supra, 301 Conn. 706. “[T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Internal quotation marks omitted.) Servello v. Commissioner of Correction, 95 Conn. App. 753, 761, 899 A.2d 636, cert. denied, 280 Conn. 904, 907 A.2d 91 (2006).

“To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, supra, 130 Conn. App. 295. A petitioner’s claim will “succeed only if both prongs are satisfied. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable.” (Citation omitted; internal quotation marks omitted.) Id. “A court can find against a petitioner ... on either the performance prong or the prejudice prong, whichever is easier.” Ham v. Commissioner of Correction, supra, 301 Conn. 704.

I

The petitioner first asserts that Simon provided ineffective assistance because he failed to investigate a defense of extreme emotional disturbance and failed to present or to request a jury instruction on this defense during the petitioner’s criminal trial. We are not persuaded by either contention.

The following additional facts are relevant to this claim. As our Supreme Court recounted on direct appeal: “The [petitioner] testified on his own behalf [at his criminal trial] . . . that, on the date of the homicide, he had been driving a car that his sister had rented. He and two passengers were driving on Homestead Avenue when the rental car was struck by an object. When the [petitioner] got out to inspect the car, he confronted the victim who, he suspected, had thrown the object. Although the [petitioner] did not recognize the victim initially, he soon recalled the jailhouse incident. The two men then began the argument that led to the stabbing. The [petitioner] claimed that he had been ‘nervous and shaken’ during this argument. He also claimed that friends of the victim had approached the two of them. At this point, the [petitioner] reached for a folding knife in his back pocket.

“The [petitioner] also testified that when the victim had swung the hand holding the ice pop, juice from the ice pop had blinded him. The [petitioner] further claimed that, during the struggle that ensued, he had swung his knife only once and had not realized that he had struck anything until he had noticed blood on the knife and had seen the victim fall to the ground.” State v. Francis, supra, 228 Conn. 121-22. Our Supreme Court referred to the petitioner’s theory of the case as “[resting] on the assertion of an ‘ice pop defense’: blinded by the juice of the victim’s ice pop, [the petitioner] . . . swung his knife randomly, and did not intend to stab the victim.” Id., 129.

At the first habeas trial, Simon testified that the petitioner had given him “different versions of what had happened . . . right up until the time that [the petitioner] testified” at his criminal trial, which “handcuffed [Simon’s] decision-making process.” Specifically, the petitioner told Simon’s investigator early in the case that “the victim was stabbed by his own knife, that he fell on the knife or against the knife.” The petitioner also told the investigator at one point that “[he wasn’t] there at all.” Simon further testified that “[he] really didn’t know what [the petitioner’s] defense was going to be, even until . . . the state had rested its case [b]ecause for so long a time [he] had been left with either, it was an accident or [the petitioner] wasn’t there. [The petitioner] never told [him] that he . . . felt that he was emotionally disturbed at the time of this offense.” He also testified that he believed the petitioner’s account of the assault in jail “would have provided very hard evidence of a motive for [the petitioner] to go after [the victim],” and that he did not believe that the circumstances of the crime supported a defense of extreme emotional disturbance. Simon indicated that he understood the defense of extreme emotional disturbance to be: “[I]f the situation presented itself as a stabbing, where you get stabbed and then you stab immediately thereaftér ... I would think that the defense might he. I don’t—there is a time frame here between the time of the . . . original incident [in prison] . . . and the later incident that takes place on the street. And the case law is pretty clear about things having to happen immediately or very quickly. That’s my understanding . . . .”

The first habeas court denied the petitioner’s ineffective assistance claims. Specifically, the court found that Simon had considered a defense of extreme emotional disturbance, but on the basis of the information supplied to him by the petitioner, he chose instead to pursue the defense of accident. See Francis v. Warden, supra, Superior Court, Docket No. CV-95-0550706. The court also found that the petitioner’s trial testimony did not support a defense of extreme emotional disturbance. Id.

At the second habeas trial, the petitioner presented the testimony of attorney Jeffrey Beck as an expert on criminal defense. Beck testified that, on the basis of his review of materials in the case and the facts as set forth in our Supreme Court’s decision on direct appeal, there was enough evidence in the record to assert an extreme emotional disturbance defense. Beck further opined that such a defense “had a good chance of being successful” because the jailhouse attack involving the petitioner exposed him to “an overwhelming state” and he “was still brooding over it four months later,” and that “obviously the feelings of intensity were still there” when the petitioner encountered and ultimately stabbed the victim. Beck also testified that Simon’s understanding of the extreme emotional disturbance defense was not a correct statement of the law, and that he had confused the requirements of the defense with a “heat of passion” defense.

Peter Zeman, a psychiatrist, also testified at the habeas trial. Zeman indicated that the petitioner’s habeas counsel contacted him in 2007, and asked him to evaluate the petitioner and to opine whether an extreme emotional disturbance defense would have been viable if Simon had raised it at the criminal trial. Zeman testified that he interviewed the petitioner three times between 2007 and 2009. Following his meetings with the petitioner and his review of the police report, arrest warrant application, presentence report and psychological testing report related to the petitioner’s case, Zeman opined that “on August 12, 1990, and for a period of time before that date, [the petitioner] was suffering from what we would [diagnose] as a post-traumatic stress disorder” triggered by the March, 1990 jailhouse attack. Zeman further testified that the petitioner’s symptoms of post-traumatic stress disorder would be indicative of extreme emotional disturbance.

The habeas court rejected the petitioner’s ineffective assistance claim, stating that “at no time did the petitioner indicate [to Simon] that he had an extreme emotional reaction to the incident in jail which led him to lose self-control when he saw the victim on the street approximately five months later,” which would have led Simon to investigate such a defense. The court also stated that even if Simon had further investigated an extreme emotional disturbance defense, the petitioner had not demonstrated what benefit any additional investigation would have revealed, as the petitioner’s jail incident was never documented, the petitioner did not testify as to any effects that the incident had on him beyond physical scarring, and “there is simply no credible evidence that a psychiatric evaluation in 1992,” when the criminal trial occurred, would have revealed the same information about the petitioner’s purported mental state after the jail incident that he relayed to Zeman in 2007. The court further found that, while there may have been sufficient evidence for the trial court to instruct the jury on the extreme emotional disturbance defense, the petitioner had not demonstrated a reasonable probability that the outcome of his trial would have been different if Simon had requested such an instruction.

On the basis of our review of the record, we agree with the habeas court that Simon did not provide ineffective assistance. It is axiomatic that “[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” (Emphasis added.) Strickland v. Washington, supra, 466 U.S. 691.

Here, the evidence in the record indicates that the petitioner never indicated to Simon that he felt emotionally disturbed at the time of the stabbing; instead, he

provided varying versions of events and ultimately stated that he stabbed the victim by mistake. The record also demonstrates that the petitioner never expressed symptoms of trauma or emotional disturbance resulting from the jailhouse incident until he asserted his ineffective assistance claims based on Simon’s failure to pursue an extreme emotional disturbance defense, and the habeas court found no credible evidence that a psychiatric evaluation in 1992 would have revealed any of the petitioner’s purported symptoms. Furthermore, although Simon knew about the jailhouse incident, he made the determination that the incident would have provided “very hard evidence of a motive” for the petitioner to attack the victim, which would have been harmful to the petitioner’s case. See, e.g., Lewis v. Commissioner of Correction, 89 Conn. App. 850, 868, 877 A.2d 11 (habeas court will not second-guess tactical decisions made in exercise of professional judgment), cert, denied, 275 Conn. 905, 882 A.2d 672 (2005). In light of the information Simon received from the petitioner, and the deference afforded to counsel's strategic decisions, we cannot conclude that Simon’s failure to investigate or present an extreme emotional disturbance defense was deficient performance, and, accordingly, the petitioner’s ineffective assistance claim is without merit. See Servello v. Commissioner of Correction, supra, 95 Conn. App. 761; see also Ham v. Commissioner of Correction, supra, 301 Conn. 704.

Simon’s failure to request a jury instruction on the extreme emotional disturbance defense likewise did not constitute ineffective assistance. The jury had before it the testimony of four eyewitnesses who saw the stabbing, as well as the testimony of the petitioner, who indicated that he did not recognize the victim at first but eventually recalled him from the jailhouse incident, that an argument ensued between them; State v. Francis, supra, 228 Conn. 120-21; that he was “ ‘nervous and shaken’ ”; id., 121; during the argument, and that he unintentionally stabbed the victim while blinded by juice from the victim’s ice pop. Id., 122. Even if we assume arguendo that Simon should have requested a jury instruction on the defense of extreme emotional disturbance, the petitioner has failed to demonstrate a reasonable probability that the jury would have accepted the defense and found him guilty of manslaughter rather than murder. Accordingly, his ineffective assistance claim fails. See Ham v. Commissioner of Correction, supra, 301 Conn. 704.

II

We turn next to the petitioner’s claim that Simon provided ineffective assistance because he failed to move to disqualify Judge Miaño, who had signed the petitioner’s arrest warrant, from presiding at the petitioner’s hearing in probable cause and his criminal trial. At the habeas trial, Beck testified that Judge Miano’s continued involvement with the petitioner’s case after signing his arrest warrant “may have [resulted in] an appearance of impropriety which rises to the level of a structural error which may affect his due process rights to a fair trial,” and that Simon should have asserted such a claim but failed to do so. The habeas court rejected the petitioner’s claim, recognizing that “a judge who signs the warrant for a defendant’s arrest is not automatically disqualified from presiding over the defendant’s hearing in probable cause,” and, further, that the petitioner’s claims regarding Judge Miano’s purported bias were supported by only “mere speculation and conjecture divorced from any factual predicate of partiality.” We agree with the habeas court that Simon’s failure to move to disqualify Judge Miaño did not constitute ineffective assistance.

Initially, we reject the petitioner’s assertion that General Statutes § 51-183h precluded Judge Miaño from presiding over the petitioner’s hearing in probable cause. Section 5l-183h provides: “No judge may preside at the hearing of any motion attacking the validity or sufficiency of any bench warrant of arrest which he has signed.” A hearing in probable cause is not a hearing on a motion “attacking the validity or sufficiency” of the arrest warrant, and accordingly, § 51-183h does not provide a basis for disqualification in this case. Cf. State v. Reynolds, 264 Conn. 1, 27, 836 A.2d 224 (2003) (probable cause hearing “designed to safeguard an accused’s rights by requiring the state to demonstrate, at an early stage of the prosecution, that the evidence of the defendant’s guilt is sufficient to warrant a prosecution in connection with the particular charge”), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

Similarly, we are not persuaded by the petitioner’s claim that then canon 3 (c) of the Code of Judicial Conduct (2010) required Judge Miano’s disqualification from presiding over the petitioner’s criminal trial. Canon 3 (c) provided in relevant part: “(1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .” It is well settled that canon 3 (c) “encompasses two distinct grounds for disqualification: actual bias and the appearance of partiality. ... As such, [t]o prevail on [a] claim of a violation of this canon, [a party] need not show actual bias. The [party] has met its burden if it can prove that the conduct in question gave rise to a reasonable appearance of impropriety.” (Citation omitted; internal quotation marks omitted.) Tracey v. Tracey, 97 Conn. App. 278, 281, 903 A.2d 679 (2006). As this court has stated, “[t]he question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances.” (Internal quotation marks omitted.) State v. Petaway, 107 Conn. App. 730, 738, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008).

The petitioner asserts that a reasonable person would “certainly question not only the wisdom, but the propriety of the same judicial authority shepherding the petitioner through the prosecutorial process,” and that these questions gave rise to a sufficient appearance of impropriety to warrant the disqualification of Judge Miaño under canon 3 (c). Contrary to the petitioner’s argument, however, it is well settled that a judge’s involvement in more than one stage of a criminal case does not per se create an appearance of partiality requiring disqualification. Indeed, as our Supreme Court has stated: “[T]he law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially,” and “a judge’s participation in the preliminary stages of a case, and the knowledge he or she thereby gains, will not ordinarily preclude his or her continued participation in the same case thereafter.” State v. Rizzo, 303 Conn. 71, 119-20, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012); see also Tracey v. Tracey, supra, 97 Conn. App. 283-84 (“the bias or prejudice sufficient to result in a disqualification must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case” [internal quotation marks omitted]).

With respect to the petitioner’s contention that Judge Miano’s involvement in multiple stages of the criminal prosecution was a “structural error” affecting the petitioner’s due process rights and requiring “immediate reversal,” we are not persuaded. As our Supreme Court has recognized, “a judge’s failure to disqualify himself or herself will implicate the due process clause only when the right to disqualification arises from actual bias on the part of that judge.” (Emphasis in original.) States. Canales, 281 Conn. 572,594,916 A.2d 767 (2007); id., 592 (further stating that “although it is much preferred that a judge who issues a warrant should not preside over the probable cause hearing in the same matter, the failure to adhere to such a practice does not constitute a constitutional violation”). The petitioner contends that actual bias here “may be inferred” from the fact that Judge Miaño, having issued the arrest warrant, had a “significant personal and . . . professional stake” in the outcome of the probable cause hearing because “a finding of lack of probable cause would [lead to] the conclusion that the warrant had been signed in error.” Our Supreme Court has repeatedly rejected claims of due process violations founded on similar allegations. See State v. Canales, supra, 595-96 (“[T]he defendant argues that, because the judge was required to make a determination of probable cause for the purpose of issuing the warrants, his ability to consider objectively the question of probable cause for the purpose of the . . . hearing might reasonably be questioned .... Even if we were to agree that an appearance of bias arose from those circumstances, we would not conclude that the trial court’s actions violated due process without some indication of actual bias.”); see also State v. Rizzo, supra, 303 Conn. 117 (“a judge’s pretrial involvement in a criminal case has not been thought to raise any constitutional barrier against [his] presiding over the criminal trial” [internal quotation marks omitted]).

Because no grounds existed requiring Judge Miano’s disqualification from presiding over the petitioner’s hearing in probable cause and criminal trial, Simon’s failure to move for disqualification did not constitute deficient performance. Accordingly, the petitioner’s ineffective assistance claim fails. See, e.g., Ham v. Commissioner of Correction, supra, 301 Conn. 704.

The judgment is affirmed.

In this opinion the other judges concurred.

       As this court has recognized, “[o]ur Supreme Court has held that [ejxtreme emotional disturbance is a mitigating circumstance which will reduce the crime of murder to manslaughter. ... A homicide influenced by an extreme emotional disturbance ... is not one which is necessarily committed in the ‘hot blood’ stage, but rather one that was brought about by a significant mental trauiha that caused the defendant to brood for a long period of time and then react violently, seemingly without provocation. ... To sustain his burden of establishing extreme emotional disturbance by a preponderance of the evidence, the defendant must persuade the trier of fact that: (1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” (Citations omitted; internal quotation marks omitted.) State v. Ruben T., 104 Conn. App. 780, 785-86, 936 A.2d 270 (2007), cert. denied, 285 Conn. 917, 943 A.2d 476 (2008).

       The respondent, the commissioner of correction, moved to dismiss this claim on res judicata grounds because it had been presented and denied in the petitioner’s prior habeas proceeding. The habeas court denied the respondent’s motion, finding, inter alia, that newly discovered evidence supported the petitioner’s claim. After the court denied the respondent’s motion, the respondent filed a return to the petitioner’s second amended habeas corpus petition and again raised the doctrine of res judicata as to the petitioner’s ineffective assistance claim. In denying the petitioner’s habeas corpus petition, the court, T. Santos, •/., cited the law of the case doctrine and the evidence presented at the petitioner’s habeas trial in rejecting the respondent’s position, and ultimately addressed the claim on the merits. Likewise, we also will review the merits of the petitioner’s ineffective assistance claims on appeal.

       Simon did not testify at the petitioner’s second habeas trial; however, the habeas court admitted the transcripts of the petitioner’s first habeas trial into evidence during the second habeas proceeding.

       Simon’s interpretation of the extreme emotional disturbance as requiring “things ... to happen immediately or very quickly” is at odds with well settled precedent establishing that “[a] homicide influenced by an extreme emotional disturbance ... is not one which is necessarily committed in the hot blood stage . . . (Internal quotation marks omitted.) State v. Ruben T., 104 Conn. App. 780, 785, 936 A.2d 270 (2007), cert. denied, 285 Conn. 917, 943 A.2d 476 (2008). As discussed in further detail herein, however, we agree with the habeas court that, “[d]espite his misunderstanding . . . Simon did not perform deficiently by failing to investigate or present such a defense.”

       In its memorandum of decision, the habeas court stated that it “[did] not find Zeman’s opinion to be particularly reliable.” Although the petitioner argues that the court erred in making this credibility determination, it is well settled that “[t]he habeas judge, 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.) Small v. Commissioner of Correction, 286 Conn. 707, 717, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 565 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). “It was the court’s function to assess the testimony of all the witnesses who testified at the habeas proceeding. We decline the petitioner’s invitation to disturb the court’s findings in that regard.” Doehrer v. Commissioner of Correction, 68 Conn. App. 774, 785, 795 A.2d 548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002).

       In reaching this conclusion, the court noted that at the time of the petitioner’s criminal trial, “[a] defendant [was] entitled to have any instructions presented relating to any theory of defense for which there [was] any foundation in the evidence, no matter how weak or [incredible] . . . .” (Internal quotation marks omitted.) State v. Bryan, 34 Conn. App. 317, 324, 641 A.2d 443 (1994). In State v. Person, 236 Conn. 342, 353, 673 A.2d 463 (1996), however, our Supreme Court held that “a defendant is entitled to a requested instruction [on extreme emotional disturbance] only if there is sufficient evidence for a rational juror to find that all the elements of the defense are established by a preponderance of the evidence.”

         Simon’s misunderstanding of the extreme emotional disturbance defense does not alter our conclusion that he provided effective assistance to the petitioner. Though the petitioner relies on DeLuca v. Lord, 77 F.3d 578 (2d Cir.), cert. denied, 519 U.S. 824, 117 S. Ct. 83, 136 L. Ed. 2d 40 (1996), to support his claim that abandonment of an extreme emotional disturbance defense because of counsel’s misunderstanding of the defense cannot be considered a reasonable strategic choice, his argument is unavailing. In DeLuca, the petitioner was indicted for murder, and the prosecution portrayed the petitioner as a “sinister figure . . . who lured her young prey into a sexual assignation and then killed him.” Id., 581. Though the petitioner indicated that she had been abducted, threatened, beaten and raped by the man she eventually killed, her counsel declined to pursue an extreme emotional disturbance defense “because of [the petitioner’s] aversion to psychiatrists.” Id., 586. The defense rested at trial without calling any witnesses or presenting any testimony or evidence indicating that the petitioner had been raped. Id., 581. The District Court found it likely that counsel did not understand the extreme emotional disturbance defense and thought it referred to a form of mental illness; the United States Court of Appeals for the Second Circuit ultimately held that counsel’s premature rejection of the defense was unreasonable, inter alia, because in light of the facts of the case and the prosecution’s evidence, “a defense based on [extreme emotional disturbance] offered virtually the only realistic chance of avoiding a conviction for second degree murder.” Id., 588. By contrast, here, even if Simon had understood the extreme emotional disturbance defense correctly, the petitioner did not provide him with any information about the crime that would have suggested such a defense would be viable.

       We note that in 2011, the substance of canon 3 (c) was transferred to rule 2.11 of the Code of Judicial Conduct.

       In his brief, the petitioner asserts that Judge Miano’s “partiality and animus towards the petitioner is reflected in his comments at sentencing,” where Judge Miaño purportedly “[referred] to ‘areas’ of the petitioner’s trial testimony as ‘perjury’ . . . that strain credulity” arid made allegedly disparaging comments about the petitioner’s impact on impressionable young people. It is not clear from the record whether the petitioner cited these alleged examples of bias during the proceedings before the habeas court. In any event, however, our Supreme Court has stated that “[t]he concept of impermissible judicial bias or prejudice contemplates the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts. . . . [T]here is nothing impermissible about an opinion formed by a judge after a trial has concluded .... Rather, a trial judge will normally and properly form opinions on the law, the evidence and the witnesses, from the presentation of the case. These opinions and expressions thereof may be critical or disparaging to one party’s position, but they are reached after a hearing in the performance of the judicial duty to decide the case, and do not constitute a ground for disqualification. . . . Thus, [t]he judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant .... But the judge is not thereby recusa-ble for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Rizzo, 303 Conn. 71, 125-26, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).

       The petitioner appears to challenge the holding in Canales, suggesting that the actual bias standard provides a lower level of protection for due process rights than “the minimum threshold required by [f]ederal law,” and claiming that under the purported federal standard, even the “mere appearance of an injustice . . . will serve to violate due process.” This argument is not persuasive. As our Supreme Court has stated, the United States Supreme Court consistently has held that judicial disqualification rises to the level of a due process violation only upon the judge’s actual bias, and has “reaffirmed the principle that the requirements of due process are less rigorous than those of the Code of Judicial Conduct, which mandates both impartiality and the appearance of impartiality.” (Emphasis in original.) State v. Canales, supra, 281 Conn. 594; see also State v. Rizzo, supra, 303 Conn. 115-16 (“[¡judicial disqualification claims rarely raise due process questions; more typically, they invoke statutes, rules or common law imposing much stricter standards than are required constitutionally. . . . The United States Supreme Court has found judicial bias claims to be due process violations only in egregious cases” [citations omitted]).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RICHARD HYLTON v. GARFIELD GUNTER ET AL.
    (AC 33316)
    Beach, Alvord and Bishop, Js.

      Argued January 23
    officially released May 14, 2013

      Houston Putnam Lowry, with whom were Kenneth J. Krayeske and, on the brief, Julie A. Morgan, for the appellant (named defendant).

      Gerald, M. Beaudoin, with whom was Francisco A. Cardona, for the appellee (plaintiff).
   Opinion

PER CURIAM.

“[P]unitive damages serve a different end and have a different purpose than attorney’s fees.” Lord v. Mansfield, 50 Conn. App. 21, 27, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998). Thus, a judgment awarding an undetermined amount of punitive damages and one awarding an undetermined amount of attorney’s fees are treated differently for purposes of establishing whether the judgment is final. Pursuant to Lord v. Mansfield, supra, 27-28, this court does not have subject matter jurisdiction to decide an appeal prior to a determination by the trial court of the recoverability and amount of punitive damages; a judgment is final only after such a determination is made. The dispositive issue in this appeal is whether the undetermined amount of damages owed by the defendant Garfield Gunter at the time he appealed from the judgment rendered by the court in favor of the plaintiff, Richard Hylton, was an award of punitive damages or attorney’s fees. We conclude that the court had yet to determine the amount of an award of punitive damages, and, accordingly, we dismiss the appeal.

The following brief procedural history is relevant to our resolution of this appeal. On March 14, 2011, the trial court issued a memorandum of decision in which it found in favor of the plaintiff on the eight counts of his complaint and awarded him $342,648 in compensatory damages. The court also found that the plaintiff was entitled to “punitive damages in the form of attorney’s fees” on the counts alleging fraud, civil theft, breach of fiduciary duty, and breach of the implied duty of good faith and fair dealing, and it instructed the plaintiff to file an affidavit of attorney’s fees within thirty days. On April 6, 2011, the defendant filed this appeal. On May 20, 2011, after a hearing, the trial court awarded the plaintiff $23,400 in punitive damages, which represented the amount claimed in attorney’s fees. The defendant did not amend his appeal subsequent to the trial court determining the amount of the punitive damages. On September 12, 2012, this appeal was placed on the court’s own motion calendar for dismissal for lack of a final judgment on the ground that, at the time the appeal was filed, the trial court had not yet resolved the plaintiffs claim for punitive damages. After the motion hearing, the court marked the matter over and ordered the parties to brief whether the defendant’s appeal from the March 14, 2011 judgment was an appeal from a final judgment. Both parties subsequently briefed the issue and argued the issue as part of this appeal.

“We begin by setting forth the standard of review. The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise plenary review], . . .

“To consider the plaintiffs’ claims, we must apply the law governing our appellate jurisdiction, which is statutory. . . . The legislature has enacted General Statutes § 52-263, which limits the right of appeal to those appeals filed by aggrieved parties on issues of law from final judgments. Unless a specific right to appeal otherwise has been provided by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.” (Citations omitted; internal quotation marks omitted.) Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 466-67, 940 A.2d 742 (2008).

In Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988), our Supreme Court held that “a judgment on the merits is final for proposes of appeal even though the recoverability or amount of attorney’s fees for the litigation remains to be determined.” Subsequently, this court decided Lord v. Mansfield, supra, 50 Conn. App. 21, and distinguished the reimbursement of attorney’s fees from the awarding of punitive damages. Punitive damages, this court noted, serve the purpose of vindicating the public interest and deterring others from committing similar wrongs. Id., 27. This court held that an appeal taken prior to a determination by the trial court as to the recoverability and amount of punitive damages was not an appeal from a final judgment. Id., 26-28. Our Supreme Court denied the plaintiffs petition for certification for review of this court’s decision in Lord, declining the opportunity to answer the following question: “Did the Appellate Court err in dismissing the plaintiffs appeal from the judgment against her on the counterclaim on the ground it was not taken from a final judgment, where the only thing left for the trial court to determine at the time the appeal was taken, was the amount of attorney’s fees to be awarded as punitive damages?” Since Lord drew the distinction between punitive damages and attorney’s fees, this court has relied on that distinction in determining whether an appeal properly was taken from a final judgment.

Both Paranteau and Lord are controlling, making the determination of whether, in the present case, the $23,400 that the court awarded to the plaintiff several weeks after the defendant filed this appeal was an award of punitive damages or attorney’s fees dispositive of the reviewability of this claim. In the plaintiffs complaint, he sought relief in the form of “Punitive Damages in the form of Attorney’s fees and costs.” The court, in its memorandum of decision, stated that “the plaintiff is entitled to punitive damages in the form of attorney’s fees based on [the defendant] being found hable [of fraud, civil theft, breach of fiduciary duty and breach of implied duty of good faith and fair dealing] .... Attorney’s fees will be awarded within 30 days of this judgment. The plaintiff is to be present at a hearing to be held [and is to submit] an affidavit of attorney’s fees together with any memorandum he may wish to file.”

“Absent statutory or contractual authorization, attorney’s fees are not recoverable. ... An exception to this general rule, however, is that a court may award attorney’s fees as a component of punitive damages.” (Citation omitted.) Plikus v. Plikus, 26 Conn. App. 174, 179, 599 A.2d 392 (1991). The four counts on which the court awarded “punitive damages in the form of attorney’s fees” did not have a statutory basis for an award of attorney’s fees. Thus, the award fell within the exception of awarding attorney’s fees as a component of an award of punitive damages as provided by Connecticut law. See footnote 2 of this opinion. The court’s language, which appears to limit the amount of punitive damages to a reimbursement of attorney’s fees, is indicative only of the restrictions it placed on the composition of the punitive damages. Because the court had no statutory basis on which to award only attorney’s fees and because it explicitly called the award punitive damages, its manifest intention was to award the plaintiff punitive damages. Accordingly, the finality of the judgment is controlled by Lord. We therefore dismiss this appeal, as we do not have subject matter jurisdiction to hear an appeal taken from a judgment that is not final.

The appeal is dismissed.

       The other defendant named in the complaint, Progressive Electric & Telecommunications, LLC, was defaulted for failure to appear and for failure to appear at trial. Accordingly, we refer in this opinion to Garfield Gunter as the defendant.

       We note that “common law punitive damages serve primarily to compensate the plaintiff for his injuries and, thus, are properly limited to the plaintiffs litigation expenses less taxable costs.” (Internal quotation marks omitted.) Lord v. Mansfield, supra, 50 Conn. App. 27, citing Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208,477 A.2d 988 (1984). “[A]ttomey’s fees may be the primary component of litigation expenses”; Lord v. Mansfield, supra, 26-27; and, therefore, attorney’s fees may be the primary component of punitive damages. Not ail awards of attorney’s fees, however, are awards of punitive damages.

       The court found the defendant liable of fraud, negligence, breach of contract, unjust enrichment, civil theft, conversion, breach of fiduciary duty, and breach of the implied duty of good faith and fair dealing.

       We note that the plaintiff, in his complaint, requested punitive damages as relief in only two of the relevant counts, those alleging civil theft and fraud. The court awarded punitive damages on four counts. That determination has not been challenged in this appeal.

       Compare Perkins v. Colonial Cemeteries, Inc., 53 Conn. App. 646, 734 A.2d 1010 (1999), with Paranteau v. DeVita, supra, 208 Conn. 515. In Paran-teau, our Supreme Court held that a final judgment had been rendered despite no determination by the trial court as to the recoverability or amount of attorney’s fees awarded for a violation of the Connecticut Unfair Trade Practices Act (CUTPA). Paranteau v. DeVita, supra, 515, 523; see also General Statutes § 42-110g (d). In Perkins, however, this court held that no final judgment had been rendered when the trial court had yet to make a determination as to the recoverability or amount of punitive damages awarded for a violation of CUTPA. Perkins v. Colonial Cemeteries, Inc., supra, 649; see also General Statutes § 42-1 lOg (a).

       “[T]he Appellate Court cannot overrule a Supreme Court decision . . . .” Conway v. Wilton, 238 Conn. 653, 657, 680 A.2d 242 (1996). Likewise, “[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.” (Internal quotation marks omitted.) Wilson v. Stamford, 81 Conn. App. 339, 345 n.3, 840 A.2d 553, cert. denied, 268 Conn. 918, 847 A.2d 312 (2004). We therefore are compelled to follow both Lord and Paranteau.


author: BEACH, J.

text:
    DAVID A. FERNANDES, JR. v. COMMISSIONER OF CORRECTION
    (AC 34386)
    Beach, Alvord and Bear, Js.

      Argued March 5
    officially released May 14, 2013

      Conrad Ost Seifert, assigned counsel, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and David Smith, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, David A. Fernandes, Jr., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court erred in concluding that his appellate counsel did not provide him with ineffective assistance. We affirm the judgment of the habeas court.

On September 12, 2005, the petitioner was issued a juvenile summons and complaint charging him with conspiracy to commit assault in the second degree in violation of General Statutes §§ 53a-48 and 53a-60, in connection with an incident that had occurred at the petitioner’s high school on September 1, 2005, when the petitioner was fifteen years old. On September 16, 2005, the Superior Court for Juvenile Matters Quvenile court) found probable cause for the petitioner’s arrest. On November 9, 2005, the parties appeared before the juvenile court, Driscoll, J. The juvenile court informed the parties that it had been presented with an order to transfer the petitioner’s case to the regular criminal docket of the Superior Court (criminal court). The petitioner’s counsel asked the juvenile court to exercise discretion and not to transfer the case to the criminal court. The juvenile court explained that the juvenile transfer statute, General Statutes § 46b-127 (b), does not provide such discretion to the juvenile court, but rather to the criminal court. The juvenile court then ordered that the petitioner’s case be transferred to the criminal court.

The parties appeared before the criminal court, Handy, J., later that day. The criminal court stated that the prosecutor had ten days to decide whether to keep the case on the part A docket in the criminal court. The petitioner’s trial counsel, attorney Barry Ward, stated that he would like to be heard on the transfer issue at the appropriate time. The criminal court responded that the appropriate time would be November 17, 2005, but stated that under the statute, it was the state’s decision whether to transfer a case to the criminal court and that it “is not an issue really in which the court even has any input.” When the parties appeared again before the criminal court on November 17,2005, the prosecutor suggested that the case should remain on the criminal docket. The petitioner’s new counsel, attorney Mark Solak, stated, “I’m not going to press the point, Your Honor, at this juncture.” The criminal court accepted the case for transfer.

The state filed a substitute information that added the charge of assault in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-60 (a) (1). Following a jury trial, the petitioner was found guilty of assault in the second degree as an accessory and not guilty of conspiracy to commit assault in the second degree. The petitioner was sentenced to a total effective term of three years incarceration, execution suspended after one year, and three years probation.

The petitioner, through his appellate counsel, attorney Ralph U. Bergman, appealed to this court, which held that “[d]ue process and § 46b-127 (b) require that the defendant be afforded a hearing in which the Juvenile Court judge considers argument from counsel as to whether a case should be transferred to adult criminal court.” State v. Fernandes, 115 Conn. App. 180, 188, 971 A.2d 846 (2009), rev’d, 300 Conn. 104, 12 A.3d 925 (2011). This court concluded that the refusal of the juvenile court to exercise discretion, to consider the arguments presented and to determine whether it should order the transfer violated the petitioner’s rights to due process and misapplied § 46b-127 (b). Id., 189.

The Supreme Court granted certification on the following issue: “Did the Appellate Court properly conclude that the transfer of the juvenile’s case from the juvenile docket to the regular docket of the Superior Court did not comply with the applicable statute and with due process requirements?” State v. Fernandes, 293 Conn. 917, 979 A.2d 491 (2009). Bergman argued in the petitioner’s brief to the Supreme Court that this court had correctly determined that due process required a juvenile to receive a pretransfer hearing in juvenile court. In the alternative, despite having sent a letter to the appellate clerk waiving the issue of a need for a hearing in the criminal court, he also argued that due process entitled the petitioner to a hearing in the criminal court on the issue of whether the transfer was appropriate. The state argued that this court erred in holding that due process required a pretransfer hearing in juvenile court. It further argued that the petitioner’s argument regarding a hearing in the criminal court was improper because Bergman failed to order the transcript of the November 17,2005 proceeding in the criminal court, and, furthermore, Solak had waived the issue by failing to object at that proceeding. The Supreme Court reversed our decision that the petitioner was entitled to a hearing in juvenile court and held that “upon a transfer request by the prosecutor and a determination by the juvenile court that there is probable cause that the child committed the felony offense charged, under § 46b-127 (b), the child so charged is entitled to a hearing before the judge of the criminal court docket prior to that court’s decision to accept and finalize the defendant’s case on the criminal court docket. Such a defendant is not, however, entitled to a hearing before the juvenile court . . . .” State v. Fernandes, 300 Conn. 104, 128, 12 A.3d 925 (2011). Our Supreme Court held that it need “not consider whether the [petitioner] was properly afforded an opportunity for such a hearing in the criminal court. On appeal, the [petitioner] expressly has waived any claims arising from the proceedings in that court.” Id., 128-29.

The petitioner filed a petition for a writ of habeas corpus alleging that Bergman had provided ineffective assistance by failing to raise effectively before our Supreme Court the issue of his entitlement to a pretrans-fer hearing in the criminal court under § 46b-127 (b) and for his express waiver of that issue. The habeas court denied the petition, concluding that Bergman had not provided ineffective assistance. The habeas court determined that the petitioner had not proven that Bergman’s decision to pursue the issue of the petitioner’s right to a hearing in juvenile court rather than in the criminal court fell below the standard of reasonableness of appellate counsel. The habeas court stated that the petitioner had not shown that Bergman pursued a substantially weaker claim—the right to a hearing in the juvenile court—at the expense of an obviously stronger claim—that the hearing should have been held in the criminal court. The habeas court reasoned that the issue of whether a juvenile was entitled to any hearing prior to the case being transferred to the criminal court and where that hearing should be held was, at that time, a novel issue of first impression. The habeas court also noted that a unanimous panel of this court had agreed with Bergman that the hearing should have taken place in juvenile court. Although a majority of our Supreme Court reversed the judgment of this court, stating that the hearing should have taken place in the criminal court, two dissenting justices agreed with this court. The habeas court stated that “[w]ith such a division among seasoned jurists as to which court, adult or juvenile, should hold the pretransfer hearing, the court cannot fault Bergman’s decision to pursue one claim over the other or find that the juvenile court issue was substantially weaker than the adult court issue.”

The habeas court also rejected the petitioner’s claim that Bergman’s performance fell below that of a reasonable attorney because he failed to raise the unpreserved issue of a hearing in criminal court under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the plain error doctrine, or our appellate courts’ supervisory powers. The habeas court reasoned that “such a claim was not expressly plead in the petitioner’s complaint. In addition, at the habeas trial, no one questioned Bergman about whether he was aware of these exceptions to the appellate rule that only preserved errors may be appealed, whether he considered raising the adult court hearing issue under . . . Golding, or one of the other exceptions, or if he was aware of these exceptions and considered them, why he did not seek review under any of these doctrines.” The habeas court granted the petition for certification to appeal. This appeal followed.

“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. ... In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different]. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 674-75, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).

“[T]o satisfy the performance prong [of the Strickland test], a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment.” (Internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments .... The effect of adding weak arguments will be to dilute the force of the stronger ones. . . . Our Supreme Court has stated that [i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment.” (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 87 Conn. App. 560, 563-64, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005).

The petitioner claims that the habeas court erred in concluding that Bergman did not render deficient performance, and that it should have found him to be ineffective because (1) he did not fully and adequately brief the issue of a right to a hearing in the criminal court due to the fact that it was waived, (2) the waived issue regarding a hearing in the criminal court was superior to the briefed claim regarding a hearing in the juvenile court, (3) alternatively, if the waived issue was not superior to the briefed claim, neither was it weaker or inferior, and Bergman’s failure to brief it constituted ineffective assistance of counsel, (4) the issue was not novel because due process required a hearing, and (5) if the issue of a hearing in the criminal court was unpre-served it was renewable under State v. Golding, supra, 213 Conn. 233.

The habeas court did not err in determining that Bergman’s performance was not deficient. After a careful examination of the record and the parties’ arguments on appeal, we conclude that the well reasoned opinion of the habeas court was correct. There is no indication that at the time Bergman made his decisions as to what course to take on direct appeal, the decisions were illogical, especially in light of Solak’s lack of objection with regard to the transfer issue in the criminal court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The transfer was effected between the docket of the Superior Court for Juvenile Matters and the regular criminal docket of the Superior Court. See General Statutes § 46b-127 (b). For convenience, the dockets are occasionally referred to as juvenile court or criminal court. All of the courts are, of course, within the Superior Court.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. THOMAS STOVALL
    (AC 34001)
    Beach, Robinson and Bishop, Js.

      Argued February 4
    officially released May 14, 2013

      John W. Cerreta, with whom, on the brief, was Michael P. Shea, for the appellant (defendant).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Richard L. Palombo, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Thomas Stovall, appeals from the judgment of conviction, rendered after a jury trial, of one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and one count of possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that (1) there was insufficient evidence to support the jury’s verdict that he had constructive possession of the crack cocaine found in the hallway closet in a third party’s apartment, (2) there was insufficient evidence to support the jury’s verdict that he intended to sell within 1500 feet of a public housing project, (3) the trial court improperly instructed the jury with regard to the element of intent to sell within 1500 feet of a public housing project and (4) the admission of the reviewing state analyst’s certification on the controlled substance report was a violation of his constitutional right to confrontation. We reverse, in part, and affirm, in part, the judgment of the trial court.

The jury reasonably could have found the following facts. On January 16, 2010, at approximately midnight, a raid team from the Bridgeport police department executed a search warrant for apartment 449 in building four of the Charles F. Greene Homes housing complex (Greene Homes), a federally funded housing project. In executing the warrant, the officers knocked on the door and waited for a response. When they did not receive one, they opened the door, which was unlocked, and entered the apartment. Upon entry, the officers detained and secured five people—Librea Patrick, the tenant of the apartment, Latavia Goss, Roderick Williams, Shawndell Gaynard and the defendant. Patrick’s two small children were allowed to remain sleeping. All of the adults were searched. The search of the defendant revealed $1125 in mixed denominations. After searching all of the adults, Patrick remained in the apartment and the other suspects were transported to the police station. The police then began to search the apartment.

The search of the apartment revealed a department of social services card and incident report belonging to the defendant in one of the bedrooms, sixteen cellular phones found throughout the apartment, an empty scale box, two razor blades with a residue that was later determined to be cocaine and small ziplock bags in the kitchen. A search of the hallway closet across from the kitchen revealed a shoe box that contained a loaded .38 caliber revolver, a loaded .32 caliber revolver, a Remington bullet box with two five bullets inside, and several letters that referenced “Tom-Tom,” “Thomas” and “Tomster.” The contents of the shoe box were collected as evidence, but the shoe box itself was not. An officer also searched the clothing in the closet. In a heavy, men’s winter jacket, he found thirteen orange-tinged plastic ziplock bags, each containing a white, rock-like substance that was later determined to be crack cocaine. The jacket was not collected as evidence.

In a substitute long form information, the defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a public housing project and two counts of criminal possession of a firearm. On the basis of the evidence presented at trial, the jury found the defendant guilty on all counts. The court sentenced the defendant to ten years of incarceration on the first count and three years of incarceration on the second count. This appeal followed.

I

On appeal, the defendant first argues that there was insufficient evidence to convict him of the drug possession charges. He claims that the conviction on both charges must be reversed because the state failed to present evidence to support an inference that he both knew of the existence of and exercised dominion or control over the crack cocaine that was found in the pocket of a men’s winter coat that was located in Patrick’s hall closet. The defendant additionally maintains that the conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project cannot be sustained because the state failed to present evidence to support an inference that he actually intended to sell at Greene Homes. We disagree with both contentions.

We begin with the standard of review and relevant legal principles. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 146-47, 869 A.2d 192 (2005). “While the jury may not speculate to reach a conclusion of guilt, [it] may draw reasonable, logical inferences from the facts proven to reach a verdict. . . . Deference is given to the trier of fact who had the opportunity to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility.” (Internal quotation marks omitted.) State v. Riser, 70 Conn. App. 543, 551, 800 A.2d 564 (2002).

“[An] appellate court’s first task, in responding to a claim of evidentiary insufficiency, is to apply the traditional scope of review to the evidence. That requires that ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier’s] verdict. . . . We note that a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 77, 993 A.2d 970 (2010).

A

We first address the defendant’s claim that the state did not prove beyond a reasonable doubt that he had constructive possession of the drugs found in the jacket. He contends that because the jury reasonably could not have concluded that the jacket where the crack cocaine was found belonged to him, it also could not have inferred that he knew about and exercised dominion or control over the drugs. We are not persuaded.

In order to establish that the defendant was guilty of the possessory narcotics offenses with which he was charged, the state was required to prove beyond a reasonable doubt that he had actual or constructive possession of the narcotics. State v. Hernandez, 254 Conn. 659, 669, 759 A.2d 79 (2000). “To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it.” (Internal quotation marks omitted.) State v. Butler, supra, 296 Conn. 78. “Where . . . the [controlled substances were] not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact.” (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 149, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101 (2008).

“Under the doctrine of nonexclusive possession, [w]here the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Butler, supra, 296 Conn. 78. “While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the jury [is] entitled to consider the fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.” State v. Padua, 73 Conn. App. 386, 419, 808 A.2d 361 (2002), rev’d in part on other grounds, 273 Conn. 138, 869 A.2d 192 (2005).

“To mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses . . . it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband.” (Internal quotation marks omitted.) State v. Leon-Zazueta, 80 Conn. App. 678, 683, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004).

Officer Robert Simpson testified that he searched the hallway closet. When he opened the closet door, he saw that it was packed full of clothes, boxes and bags. Simpson testified that there was one shelf on top and some clothes that were hanging. There were also bags on the floor of the closet. Simpson began his search by checking the pockets of clothing that were hanging up. When he checked the pockets of an adult men’s jacket that was hanging up in the closet, he found orange-tinged ziplock bags that contained crack cocaine. Simpson described the jacket as a big, thick, heavy winter coat, but could not remember the color of the jacket, whether the jacket had any markings on it or whether there were any initials inside the jacket. He did not look at the tag inside the jacket and did not know the size of the jacket. Additionally, Simpson testified that he did not take the jacket as evidence.

The sole witness who testified about the ownership of the contents of the items in the hallway closet was Patrick. She testified that she allowed the defendant to keep a box of sneakers in her hallway closet. Patrick also testified that the defendant was allowed to keep coats there, but upon further questioning, did not know if the defendant kept more than one coat in the closet and could specifically remember only one coat, which she described as a “red, black and white jacket that was hung up on my ironing board stand that was in the closet on the door. She also remarked that the jacket was “an expensive Coogi jacket” that was “more of a blazer.” Patrick stated that the Coogi jacket was the only jacket that was hanging in the closet and that she knew it was the defendant’s because he was the only one who would wear it. Patrick also testified that she did not know from which jacket the drugs were taken and that she did not know how many jackets were in the closet, but knew that two male friends who were involved in criminal activity kept jackets in the closet that were either folded or thrown on the ground.

On the basis of this evidence, the jury reasonably could have inferred that the jacket that Simpson searched belonged to the defendant. The defendant was present at the apartment when the police executed the search warrant. Simpson testified that he searched a jacket that was hanging in the closet and found crack cocaine. Patrick testified that the defendant owned the jacket hanging in the closet and that no other jackets were hanging up in the closet. Thus, the jury reasonably could have concluded that the hanging jacket that Simpson searched was the same jacket as the one described by Patrick as hanging in the closet and being owned by the defendant. Coming to that conclusion, the jury reasonably could have inferred that the defendant both knew about and exercised dominion and control over the crack cocaine that was found in the jacket.

To be certain, there were discrepancies between Simpson’s and Patrick’s testimony, such as whether clothing was hanging in the closet, whether the hanging jacket described by both Simpson and Patrick was on a hanger or on the closet door on an ironing board stand and the description of the hanging jacket. These inconsistencies required the jury to resolve whether the jacket described by Simpson was the same jacket described by Patrick. “It is axiomatic [however] that it is the jury’s role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses. ... It is the right and duty of the jury to determine whether to accept or to reject the testimony of a witness . . . and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial.” (Internal quotation marks omitted.) State v. Osbourne, 138 Conn. App. 518, 533-34, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012). It is equally axiomatic that “we construe the evidence in the light most favorable to sustaining the verdict. . . .” State v. Padua, supra, 273 Conn. 158. Both witnesses testified about only one jacket hanging in the closet, and Patrick testified that the only hanging jacket belonged to the defendant. The jury was free to credit Simpson’s testimony over Patrick’s with respect to where the jacket was hanging and what the jacket looked like.

Moreover, Patrick’s testimony that two other male friends who were involved in criminal activity had jackets in the closet besides the defendant does not defeat the reasonable inference that the jacket in the closet where the drugs were found belonged to the defendant because that testimony established that those other jackets were not hanging up, but rather were folded or thrown on the floor of the closet. Accordingly, when the evidence and reasonable inferences drawn therefrom are viewed in the light most favorable to sustaining the verdict, the jury reasonably could have inferred that the defendant owned the jacket where the drugs were found and, therefore, knew of, and exercised dominion and control over, the drugs found in the jacket.

B

We next address the defendant’s claim that the state did not prove intent to sell within 1500 feet of a public housing project. The defendant argues that although the jury reasonably could have inferred that he intended to sell drugs somewhere, there was not sufficient evidence to prove beyond a reasonable doubt that he intended to sell drugs at Greene Homes. We disagree.

The following additional facts are necessary to our resolution of this claim. Patrick testified that she and the defendant became friends in 2005 and that she knew him as “Tom Tom.” She also testified that the defendant would come to her apartment two to three times a week and that Patrick would see him around Greene Homes two to three times per week. When at Patrick’s apartment, the defendant would visit her and her friend, Goss. Additionally, Patrick testified, Greene Homes is known as an area where narcotics can be purchased, and she had never seen the defendant sell drugs in her apartment or in the area of Greene Homes.

William Reilly, a detective with the Bridgeport police department who participated in the execution of the warrant, also testified. He testified that Greene Homes is a high crime and drug trafficking area. Reilly further testified that on the night of the raid, he was the evidence officer who gathered and documented any evidence that was recovered. Dining direct examination, Reilly identified the sixteen cell phones recovered from the apartment, the small empty ziplock bags and two razor blades with narcotics residue and the thirteen orange-tinted ziplock bags that contained crack cocaine. Based on his training and experience, Reilly stated that the empty ziplock bags were consistent with the type generally used to package crack cocaine, that the razors were used to cut up narcotics into smaller pieces so as to fit in the small ziplock bags and that the substance in the thirteen orange-tinted bags was crack cocaine. Reilly testified that based on the way the drugs were packaged, individually, the crack cocaine was packaged to be resold and that the street value of one bag was $10. Furthermore, the absence of a crack pipe or another device to ingest crack cocaine suggested that the drugs were being sold out of the house.

“[Section] 21a-278a (b) prohibits any person from transporting with the intent to sell or dispense, [or] possessing with the intent to sell or dispense . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising . . . a public housing project .... [Section] 21a-278a (b) further provides that, [t]o constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising ... a public housing project .... This court has held that the plain language of § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1500 feet of a public housing project, among other geographical designations. . . . There is no requirement that the state prove that the defendant had actual knowledge that the location where he intended to sell drugs was within the proscribed area . . . rather, the state must demonstrate only that the defendant intended to sell or dispense those drugs in his or her possession at a specific location, which location happens to be within 1500 feet of a public housing project, among other geographical designations.” (Citations omitted; internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 658, 1 A.3d 1051 (2010).

On the basis of the evidence, the jury reasonably could have inferred that the defendant intended to sell the crack cocaine found in the jacket within 1500 feet of a public housing project. As we have already concluded, the jury reasonably could have found that the defendant possessed the crack cocaine found in the jacket in the closet. Based on Reilly’s testimony, the jury reasonably could have inferred that the defendant intended to sell the crack cocaine found in the jacket and that he intended to sell the crack cocaine from Patrick’s apartment. Even though Patrick testified that the defendant had never sold drugs from her apartment, a fact that could be construed as being in tension with Reilly’s testimony, it is the jury’s role to weigh the conflicting testimony and determine what weight to lend to a witness’ testimony. See State v. Osbourne, supra, 138 Conn. App. 533-34. The jury simply chose to credit Reilly’s testimony over Patrick’s. When the evidence and reasonable inferences drawn therefrom are viewed in the light most favorable to sustaining the verdict, the jury reasonably could have inferred that the defendant intended to sell the crack cocaine within 1500 feet of a public housing project.

II

The defendant next claims that the court improperly instructed the jury with regard to the element of intent to sell within 1500 feet of a public housing project. The state agrees that the court committed reversible error and that the defendant is entitled to a new trial on that offense. We agree with the parties.

The following additional facts are necessary for the resolution of this claim. On April 20, 2010, prior to closing argument, the court indicated that a charging conference had occurred and asked the parties if they had any further objections to the draft charge provided by the court. Defense counsel stated that he had an exception with respect to the portion of the charge on sale within 1500 feet of a public housing project. Recognizing that he had submitted the language contained in the court’s draft jury charge, based on his reading of State v. Webster, 127 Conn. App. 264, 13 A.3d 696 (2011), rev’d on other grounds, 308 Conn. 43, 60 A.3d 259 (2013), defense counsel orally requested that the jury be instructed that the state also would need to “prove that the intended sales must occur within 1500 feet of a public housing project . . . The court indicated that Webster involved the sale of a narcotics rather than possession with intent to sell narcotics within 1500 feet, and, therefore, that it was inapplicable to the case.

The court subsequently read the charge as follows: “Now, the second count, illegal distribution near public housing. [The] [defendant is charged in count two with the illegal distribution of a controlled substance near a public housing project. The statute defining this offense imposes punishment on any person who possesses with the intent to sell to another person any controlled substance in or on or within 1500 feet of the real property comprising a public housing project. For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. . . . [The] [s]econd element is that the defendant possessed with the intent to sell the freebase cocaine in or on or within 1500 feet of the real property of a public housing project. ... In conclusion, the state must prove beyond a reasonable doubt that the defendant possessed with the intent to sell freebase cocaine and that this occurred in or on or within 1500 feet of the real property of a public housing project.”

“It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.... Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Citations omitted; internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 483-84, 668 A.2d 682 (1995).

“Our review of the defendant’s claim requires that we examine the [trial] court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. . . . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. ... If a requested charge is in substance given, the [trial] court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible . . . when it is shown that it is reasonably possible for [improprieties] of constitutional dimension . . . that the jury [was] misled.” (Internal quotation marks omitted.) State v. Devalda, 306 Conn. 494, 505-506, 50 A.3d 882 (2012).

Our Supreme Court has interpreted § 21-278a (b) and held that the state must produce “evidence that the defendant engaged in conduct reflecting an intent to sell drugs at some location within the proscribed area . . . .” (Emphasis added; internal quotation marks omitted.) State v. Lewis, 303 Conn. 760, 771, 36 A.3d 670 (2012); see also State v. Denby, supra, 235 Conn. 483. “[M]ere possession of narcotics with an intent to sell at some unspecified point in the future, at some unspecified place, is not enough [to prove a violation of § 21a-278a (b)].” (Internal quotation marks omitted.) State v. Lewis, supra, 770. Thus, in order to comport with our precedent, the trial court must inform the jury that the defendant intended to sell the narcotics in his possession within 1500 feet of a public housing project.

Both parties agree that the instruction given to the jury was ambiguous. In its charge, the court stated that “the state must prove beyond a reasonable doubt that the defendant possessed with the intent to sell freebase cocaine and that this occurred in or on or within 1500 feet of the real property of a public housing project.” Because of the structure of the sentence, we cannot discern to what “this” refers. Thus, the jury was faced with two plausible interpretations of the necessary elements. A jury could reasonably interpret the charge to mean that the state needs to prove mere possession of narcotics within 1500 feet of a public housing project, regardless of where the defendant intended to sell the narcotics. Another reasonable interpretation, and the correct one, is that the state needs to prove that not only the possession but also the intended sales were within 1500 feet of a public housing project. Because both interpretations are reasonable, but only one is correct in law, the instruction as given was ambiguous. It is reasonably possible that the jury was misled as to what the essential elements of the crime were. Accordingly, we find that the court improperly instructed the jury with respect to the charge of possession of narcotics with intent to sell within 1500 feet of a public housing project.

Ill

Finally, the defendant claims that his conviction of the narcotics charges should be reversed because the testimonial certification by the reviewing state analyst on the controlled substance report was a violation of his constitutional right to confrontation. Because he did not object to the admittance of the report at trial, the defendant seeks review of this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state, in reply, contends that (1) the defendant waived his right to appeal, (2) the record is inadequate for review, (3) it is not clear that a constitutional violation existed or deprived the defendant of a fair trial and (4) the admission of the reviewing analyst’s signature on the toxicology report was harmless beyond a reasonable doubt. Assuming, without deciding, that the defendant’s claim is reviewable pursuant to Golding, the defendant cannot prevail because any claimed error was harmless beyond a reasonable doubt. See State v. William L., 126 Conn. App. 472, 480, 11 A.3d 1132, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011).

The following additional facts are necessary for our resolution of this claim. Laura Grestini, a chemist for the department of public safety, division of scientific services controlled substance toxicology laboratory, testified about the analysis that she performed on the evidence that was collected at Patrick’s apartment. During her testimony, the state introduced a redacted copy of the report that Grestini had prepared for the case. When Grestini was identifying the document, she testified that the signature next to hers was the reviewing analyst’s signature and that the reviewing analyst would “go through all the work and make sure that our conclusions agree with one another, basically.” Defense counsel briefly conducted avoir dire of Grestini. After noting that the certification did not include language regarding whether Grestini had conducted and performed the examinations or evaluated the data, defense counsel asked her if she performed the examinations, evaluated the data and had a specific recollection of this case. Grestini answered in the affirmative to all of the questions, and the report was entered into evidence as a full exhibit, with no objection from the defendant. Grestini then identified the reviewing analyst’s signature as Jane Ridley and noted that the reviewer, in this case Ridley, would change a milestone in the computer to say that the report was technically reviewed, and print the report and sign it before giving it to Grestini to sign.

Defense counsel subsequently cross-examined Gres-tini about her testing methods, the results of the tests, her schooling and training, and the procedure for processing evidence after testing, but did not question her specifically about Ridley’s signature or the extent of her knowledge of Ridley’s review of Grestini’s work. He did, however, elicit from Grestini that she would print the output from the machines so that when the reviewing analyst did her technical review of the case, she could see why Grestini reached the conclusion that she did. Defense counsel's only remark during closing argument about Grestini’s testimony was that he did not “really have much to say about her because it’s really not the point of what I’m telling you.”

“ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 239-40.

“The sixth amendment to the constitution of the United States guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. This right is secured for defendants in state criminal proceedings.” (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 816, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006). “It is well established that a violation of the defendant’s right to confront witnesses is subject to harmless error analysis . . . and only if the error was not harmless may the defendant prevail on his Golding claim. . . . The state bears the burden of proving that the error is harmless beyond a reasonable doubt.” (Citations omitted.) State v. Smith, 289 Conn. 598, 628, 960 A.2d 993 (2008). “[T]he test for determining whether a constitutional [impropriety] is harmless ... is whether it appears beyond a reasonable doubt that the [impropriety] complained of did not contribute to the verdict obtained.” (Internal quotation marks omitted.) State v. Devalda, supra, 306 Conn. 506.

“It is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony.” (Internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 211, 680 A.2d 1243 (1996). Thus, when evidence contained in a report is merely cumulative, its admission as a full exhibit is harmless. Id.

In the present case, the analyst who performed the tests and generated the report testified at trial. On direct examination, Grestini explained in detail how the evidence was processed, what tests were performed, how the tests were performed, the methods used to ensure accuracy, what machines were used and how the machines work. She also testified as to her findings about the evidence. On cross-examination, Grestini described the output that is generated from the machines that allow her to make her conclusions as well as what daily tests are performed on the machines to ensure that they are in working order.

In addition to Grestini’s testimony, the state also offered into evidence as a full exhibit a copy of her final report, prepared for this case, which identified the evidence submitted, the examinations and methods performed, and the results. The information in the report was the same information that was elicited dining Grestini’s testimony. Moreover, the defendant did not challenge Grestini’s conclusions regarding the results of her analysis, nor did he address her testimony dining closing arguments. Because the report was merely cumulative of Grestini’s testimony, we conclude that the state has met its burden of proving beyond a reasonable doubt that the admission of the report, even if improper, was harmless.

The judgment is reversed only as to the conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project and the case is remanded for a new trial on that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant was also convicted of two counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). He does not challenge that conviction on appeal.

       The court also sentenced the defendant to two years of incarceration for each of the two counts of criminal possession of a firearm and ordered that the sentences run consecutively for a total effective sentence of seventeen years.

       The defendant’s proposed jury instruction provides in relevant part: “The defendant is charged in count two with the illegal distribution of a controlled substance near a public housing project. The statute defining this offense imposes punishment on any person who possesses with the intent to sell to another person any controlled substance in or on, or within one thousand five hundred feet of the real property comprising a public housing project.
      “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt . . .
      “Element 2—Within 1500 feet
      “The second element is that the defendant possessed with the intent to sell the freebase cocaine in or on, or within 1500 feet of the real property of a public housing project. . . .
      “In summary, the state must prove beyond a reasonable doubt that [1] the defendant possessed with the intent to sell freebase cocaine, and [2] that this occurred in or on, or within 1500 feet of the real property of a public housing project.”

       Crack cocaine is also referred to as freebase cocaine.

       The certification provides: “I hereby certify that this is a true copy of the laboratory examination described herein and a true copy of the records of the Laboratory Division of the Connecticut Department of Public Safety pertaining thereto.”