text:
    STATE OF CONNECTICUT v. DARRON L. GASKIN
    (AC 29422)
    Gruendel, Lavine and Lavery, Js.

      Argued May 21
    officially released September 1, 2009

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Amy Sedensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Darron L. Gaskin, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) limited his cross-examination of the victim, (2) failed to disclose all relevant material following an in camera review, (3) admitted the victim’s statement into evidence in violation of the Whelan rule and (4) granted the state’s motion to limit the defendant’s closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 19, 2005, the defendant was thirty years old and the victim was fifteen years old. Although the victim lived with her father, she frequently spent the night at her mother’s home. The victim knew the defendant as a close family friend who socialized with her stepfather and was a frequent weekend visitor at her mother’s home. Prior to the incident that gave rise to the subject charges, the defendant and the victim’s family were on good terms.

On March 19, 2005, the victim had fallen asleep on the living room couch in her mother’s home. Her mother awoke her and instructed her to go upstairs to bed so that the defendant could sleep on the couch. The victim went upstairs but later went to the basement to smoke a cigarette. The defendant came to the basement, sat beside the victim on a couch and also smoked a cigarette. The victim and the defendant played a card game, and the defendant offered the victim a glass of beer, which she refused. The defendant also asked the victim if she wanted to take the drug ecstasy, which the defendant did not have in his possession, but attempted unsuccessfully to get via the telephone.

The defendant noticed a “hickey” on the victim’s neck and asked how she got it. The victim responded that her boyfriend had given it to her. The defendant touched the “hickey” and looked at the victim in a manner that she considered weird. The defendant kissed the “hickey,” released the victim’s bra, touched her breasts and placed his mouth on them. The defendant talked to the victim about her being his wife, marriage, children and getting a place together. The victim was shocked by the defendant’s behavior. The defendant also removed the victim’s pants and asked the victim for a condom, which she did not have and refused to get from upstairs. The victim asked the defendant what he was doing. The defendant assured her that it was all right, as she was his wife. Things, however, did not seem right to the victim. The defendant removed a tampon from the victim and performed cunnilingus. Although the victim resisted the defendant’s advances, she did not fight or try her hardest to stop him. She did not call for her mother, who was upstairs sleeping. The defendant’s sexual assault lasted approximately one-half hour. The victim then put on her clothing, went upstairs to her older sister’s bedroom and fell asleep.

In the morning, the victim confided to her older sister what the defendant had done. The victim also telephoned her boyfriend and confided in him because she thought that she had cheated on him. The boyfriend told the victim’s mother of the defendant’s sexual assault. The victim’s mother, in turn, told the victim’s father and reported the victim’s allegations to the police.

The following day, the victim went to a hospital, where she was examined by an emergency room physician, Otilia Capellán. During the examination, the victim reported the details of the defendant’s sexual assault and permitted swabs from a rape kit to be used to obtain vaginal samples. The examination disclosed no evidence of sexual assault. At the time of the examination, the victim was not wearing the clothes she had worn at the time of the sexual assault. Four days after the defendant sexually assaulted the victim, the victim spoke with two members of the Waterbury police department and provided them with a two page written statement detailing the defendant’s sexual assault.

The defendant was arrested and charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), sexual assault in the second degree in violation of § 53a-71 (a) (1), risk of injury to a child in violation of § 53-21 (a) (1) and risk of injury to a child in violation of § 53-21 (a) (2). At trial, the victim testified that she never thought that the case would go to court and that she did not want the defendant to be prosecuted. She also testified that she had not wanted to talk to her mother, the police or a physician about the incident. The victim was offered an opportunity to talk to a rape counselor at the hospital, but she declined. After the jury found the defendant guilty of sexual assault in the second degree and the charges of risk of injury to a child, he was given an effective sentence of ten years in prison, execution suspended after four years, and ten years of probation. This appeal followed.

I

The defendant first claims that the court improperly denied him the constitutional right to present a defense by barring him from cross-examining the victim about an alleged conversation in which she was overheard laughing with a group of friends about allegations of sexual assault made against an older man. Although the defendant frames his claim as a constitutional one, we conclude that it is evidentiary in nature and that the court did not abuse its discretion by precluding the subject cross-examination.

A trial court has wide discretion to determine the relevance of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. See State v. Na’im B., 113 Conn. App. 790, 801, 967 A.2d 1234, cert. denied, 292 Conn. 905, 973 A.2d 106 (2009). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Id.

The following facts are relevant to the defendant’s claim. The victim was the first witness to testify. During cross-examination, defense counsel asked her: “Do you recall one time before March 19, 2005, talking with a group of your friends about making false accusations?” The prosecutor objected, stating, in part, that the question violated the rape shield statute. Thereafter, the court excused the jury and the victim and heard argument from both counsel. Defense counsel sought to cross-examine the victim about an incident in which William Gaskin, the defendant’s brother, overheard a conversation between the victim and her friends during which the girls laughed about making an accusation of sexual assault against an older man. Defense counsel stated that he was not claiming that the victim had made a false accusation against the defendant but that the proffered evidence was relevant to show the victim’s flippant attitude toward accusations of sexual assault. The defense theory was that the victim had told a “story” and that she could not “take it back.”

Following a short recess, the prosecutor argued that a victim’s past allegations of sexual assault are inadmissible pursuant to the rape shield statute. But see footnote 4. The prosecutor also argued that the defendant bears the burden of proof as to the relevance of such testimony and that the court may give the defendant an opportunity to make an offer of proof during a hearing and to exclude the evidence if it is more prejudicial than probative. The court sustained the state’s objection but nonetheless offered the defendant an opportunity to present evidence outside the presence of the jury.

On the following day, the defendant called William Gaskin to testily as part of an offer of proof. Gaskin testified that he knew the victim and her stepfather and that he and the stepfather had overheard the victim and three of her friends “joking and laughing about how they got somebody jammed up, an older man, and they were saying that’s good for an older guy messing with a younger girl. And they made accusations of a sexual assault.” Gaskin did not know the date of the conversation. He also did not know what the victim said exactly. All he remembered was that the victim was laughing. Defense counsel again stated that William Gaskin’s hearsay testimony was not being offered as to the truth of the victim’s allegations but to demonstrate the victim’s attitude toward allegations of sexual assault against an older man.

The prosecutor again objected, arguing that the court has discretion to determine whether the probative value of the proffered evidence was outweighed by its prejudicial impact, noting that the proffered testimony was hearsay and that William Gaskin did not know when the alleged conversation had taken place, who the participants were and who said what. The court again sustained the state’s objection, stating that the proffered basis for the cross-examination was more prejudicial than probative. The court also noted that it was not clear what William Gaskin was testifying about.

On appeal, the defendant claims that the cross-examination of the victim was the only evidence he had to counter the state’s question about why the victim would fabricate an allegation against the defendant, a family friend. At trial, the defendant sought to demonstrate that the victim had fabricated the assault allegations because she took such allegations lightly; they were something to be laughed about. The defendant contends that conduct, such as laughter, is not hearsay and is “admissible to prove circumstantially a complainant’s state of mind.” State v. Dehaney, 261 Conn. 336, 361 n.15, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003). Moreover, the defendant contends that it was improper for the court to restrict his cross-examination of William Gas-kin because the defendant’s articulated “theory of defense may make the [complainant’s] state of mind material to the determination of the defendant’s guilt or innocence.” (Internal quotation marks omitted.) Id., 357. A function of cross-examination is to demonstrate a witness’ motivation to lie; see State v. Aponte, 249 Conn. 735, 749, 738 A.2d 117 (1999); restricting cross-examination may implicate a defendant’s right to present a defense; see State v. Thomas, 110 Conn. App. 708, 721-22, 955 A.2d 1222, cert. denied, 289 Conn. 952, 961 A.2d 418 (2008); and the right to present a defense is based in the constitutional right to due process. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982).

In response to the defendant’s appellate claims, the state contends that the defendant failed to lay a proper foundation for the proposed cross-examination. Although the defendant argues that the state did not object to the cross-examination on the basis of foundation, at trial, the prosecutor noted that William Gaskin did not know when he overheard the alleged conversation, could not identify who said what and whether the accusations he heard were false. We conclude that the prosecutor’s objection was the functional equivalent of an objection based on lack of an adequate foundation.

We agree with the state that the defendant failed to provide an adequate foundation on which to base the proffered line of cross-examination. Although the court precluded the cross-examination on the basis of its being more prejudicial than probative, the court also implied that it lacked a proper foundation. See footnote 5. “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Internal quotation marks omitted.) State v. Vines, 71 Conn. App. 359, 366, 801 A.2d 918, cert. denied, 261 Conn. 939, 808 A.2d 1134 (2002).

“Generally, under the constitutional right to confrontation, a defendant is allowed broad latitude to test the veracity and credibility of the witnesses testifying against him. . . . The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable.” (Internal quotation marks omitted.) State v. Bardliving, 109 Conn. App. 238, 247-48, 951 A.2d 615, cert. denied, 289 Conn. 924, 958 A.2d 153 (2008).

Our code of evidence provides that “ ‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. The code also provides that “[relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury . . . .” Id., § 4-3. Situations in which the potential prejudicial effect of relevant evidence suggests its exclusion include “where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues . . . .” (Internal quotation marks omitted.) State v. Nash, 278 Conn. 620, 653, 899 A.2d 1 (2006).

Even if we were to conclude that the court abused its discretion by restricting the defendant’s cross-examination of the victim, which we do not, our review of the transcript; see State v. Valentine, 240 Conn. 395, 407, 692 A.2d 727 (1997) (appellate court should review entire cross-examination); demonstrates that defense counsel had the opportunity to conduct a vigorous cross-examination of the victim, particularly in attacking her recollection of the incident by bringing to the jury’s attention her memory lapses and the discrepancies between the statement she gave to the police and her testimony on direct examination. In addition, during final argument, defense counsel presented his theory of defense to the jury that the victim did not regard seriously allegations of sexual assault, did not understand the consequences of such an allegation and did not know how to get out of having told a lie. The defendant, therefore, has failed to demonstrate that the court’s evidentiary ruling was harmful. See State v. Stavrakis, 88 Conn. App. 371, 374, 869 A.2d 686, cert. denied, 273 Conn. 939, 875 A.2d 45 (2005). We conclude that the exclusion of the subject line of cross-examination, which lacked an adequate foundation and was therefore not relevant, did not have a substantial effect on the jury’s verdict.

II

The defendant’s second claim is that the court improperly failed to disclose to him potentially exculpatory material following its in camera review of certain confidential records pertaining to the victim. The defendant requested that this court conduct an in camera review to determine whether the trial court abused its discretion. See State v. Na’im B., supra, 113 Conn. App. 793. “[T]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth . . . so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 381, 857 A.2d 808 (2004) (appellate court should not disturb trial court ruling absent abuse of discretion), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). On the basis of our in camera review of the sealed records at issue, we conclude that the court did not abuse its discretion in failing to make the records available to the defendant. See id. (appellate court should not disturb trial court ruling absent abuse of discretion).

Ill

The defendant’s third claim is that the court improperly admitted into evidence a redacted version of the victim’s statement to the police pursuant to Whelan, as the statement was unreliable under the totality of the circumstances, and the court failed to conduct a hearing to determine the reliability of the statement pursuant to State v. Mukhtaar, 253 Conn. 280, 307 n.27, 750 A.2d 1059 (2000). The state argues that the defendant waived those claims at trial. We agree that the claims were waived.

The following facts are relevant to the defendant’s claim. At a recess during the defendant’s cross-examination of the victim, the prosecutor informed the court that she intended to put into evidence a redacted copy of the statement pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The state sought to put into evidence those portions of the statement that the victim omitted during her testimony and those about which she claimed to have no memory. The state relied on State v. Luis F., 85 Conn. App. 264, 270, 856 A.2d 522 (2004) (inconsistent statement). Defense counsel objected, stating that the statement was unreliable and citing § 8-5 (1) of our code of evidence. The statement is unreliable, according to the defendant, because the fifteen year old victim gave it to police several days after the incident. Moreover, the victim had testified that she did not want to testify, did not tell her mother about the incident, never wanted the matter to go this far and was compelled by her father to give the statement to the police. Defense counsel also stated that a hearing was necessary to determine the reliability of the statement. The court stated that before it ruled on the matter, it wanted to see what portions of the statement the state sought to put into evidence. The prosecutor agreed to prepare a redacted version of the statement showing those portions to be put into evidence.

On appeal, the defendant claims that although the statement meets the Whelan criteria, it was improper for the court to admit the statement without having conducted a hearing under State v. Mukhtaar, supra, 253 Conn. 307 n.27, to determine the reliability of the statement. The state argues that by acceding at trial to the manner in which the statement was redacted and admitted into evidence, the defendant has waived his claim. We agree with the state.

Our review of the transcript reveals that the prosecutor agreed to provide a redacted copy of the statement for the court and defense counsel. Defense counsel voiced no objection to the proposed plan. After the state’s redacted version of the statement was available, defense counsel went through the statement line by line on the record. Thereafter, to assure that only the agreed on portions of the redacted statement would go before the jury, the court went off the record and came off the bench to review the statement with both counsel in the courtroom. Immediately after the court returned to the bench, defense counsel stated, “I would like an opportunity to . . . continue my cross-examination based upon the inconsistent statement that’s being put [into evidence].”

Moreover, with respect to the statement, following an in-chambers charging conference, the court summarized the conference. “For the record, counsel and I had a charging] conference in chambers, and, with respect to the discussion, I am going to briefly summarize what occurred, and, if counsel has anything to add or amend, we can do that. We did agree that we would use the portion of the state’s charge regarding Whelan statements contained on page twenty-three and twenty-four of the state’s amended request to charge. We also amended that section indicating in the middle of page twenty-three, at the defense request, we amended it to read, ‘therefore, if you believe what the witness previously indicated in the portions of the statement,’ which would rule out, as opposed to what the witness testified to here in court. And I have just showed counsel also a few lines down, I’ve changed it to indicate, you may use such evidence either for the purposes of impeachment of the witness’ credibility or substantive evidence of what happened.

“We then also agreed to add the portions submitted by [defense counsel] indicating his entire section on inconsistent statements with the addition of the language, ‘there’s one exception to this,’ as I indicated to you earlier, in the state’s Whelan section. ‘You may consider the portion of [the victim’s] statement contained in state’s exhibit four as substantive evidence of what occurred or for impeachment purposes.’ ” When the court asked if it had omitted anything, defense counsel mentioned only a matter not relevant to the issue on appeal. Defense counsel also did not take an exception to the charge after it was given.

“Waiver consists of the intentional abandonment or voluntary relinquishment of a known right .... [It] involves the idea of assent, and assent is an act of understanding. . . . [W]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied .... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) State v. Ross V., 110 Conn. App. 1, 4-5, 953 A.2d 945, cert. denied, 289 Conn. 939, 958 A.2d 1247 (2008). “When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal. See, e.g., State v. Holness, 289 Conn. 535, 544-45, 958 A.2d 754 (2008) (holding that defendant waived [claim under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), that trial court improperly admitted recording of conversation in violation of confrontation clause of federal constitution] when counsel agreed to limiting instruction regarding hearsay statements introduced by statement on cross-examination); State v. Fabricatore, [281 Conn. 469, 481, 915 A.2d 872 (2007)] (concluding defendant waived claim when he not only failed to object to jury instruction but also expressed satisfaction with it and argued that it was proper).” State v. Smith, 289 Conn. 598, 621, 960 A.2d 993 (2008). Given the procedural facts of this case and the law, we decline to review the defendant’s claims because they were waived.

IV

The defendant’s last claim is that the court abused its discretion in granting the state’s motion in limine prohibiting defense counsel from arguing to the jury that the state had failed to call any investigation police officers as witnesses. He claims that the restriction on defense counsel’s final argument violated the defendant’s right to the effective assistance of counsel. We disagree.

During trial, the defendant filed a notice that he intended to comment during final argument on the state’s failure to call as witnesses the investigating police officers, particularly Detective Rebecca Wisnie, who was the primary investigator. The defendant argued that it was his intention to comment on the lack of an investigation and the absence of certain physical evidence that was never seized, such as the victim’s pants. He did not indicate that he would ask the jury to draw an adverse inference from the fact that police witnesses did not investigate. Our review of the transcript demonstrates that the defendant did not explain what testimony either of the two police officers involved would give that was relevant to the defense. In the trial court, the defendant argued lack of an investigation and failure to call the police officers interchangeably.

The state filed a motion in opposition, asking the court to order defense counsel not to comment on the state’s failure to call Wisnie or Officer Shawn Roberts. The substance of the state’s position was that, under the circumstances of this case, the lack of an investigation beyond the taking of the victim’s statement was not relevant, as the case turned on the victim’s credibility. The state represented that if the court were to permit the defendant to comment on the absence of police witnesses, the state would move to open the evidence to present such testimony. Both parties cited State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), to support their positions. The court granted the state’s motion to preclude the defendant from commenting on the absence of police testimony, citing Malave, but allowed defense counsel to comment on evidence of an investigation presented by other witnesses, for example the rape kit.

A court’s ruling on the scope of final argument is reviewed pursuant to the abuse of discretion standard. Id., 740. “In Malave, our Supreme Court abandoned, in criminal cases, the Secondino rule, also known as the missing witness rule, which sanctioned, under certain circumstances, a jury instruction that an adverse inference may be drawn from the failure of a party to produce a witness. Although our Supreme Court abandoned the rule [of Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960)], it did not intend to prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case. . . . Comments in closing argument that do not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence do not necessarily fall under the ambit of Secondino . . . and accordingly are not forbidden by Malave. Our Supreme Court further provided that [o]f course, the trial court retains wide latitude to permit or preclude such a comment, and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue.

“The broad discretion vested in trial courts by Malave mirrors the general standards regarding the trial court’s ability to limit closing argument. [T]he scope of final argument lies within the sound discretion of the court . . . subject to appropriate constitutional limitations.” (Internal quotation marks omitted.) State v. Cruz, 71 Conn. App. 190, 210, 800 A.2d 1243, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

We conclude that the court properly separated the issues of the lack of an investigation and calling certain witnesses and did not, therefore, abuse its discretion by prohibiting defense counsel from commenting on the state’s failure to call the investigating police officers. Importantly, the court permitted counsel to comment on the evidence and the scope of the investigation. On appeal, the defendant has failed to identify the relevant evidence to which the officers might have testified other than the mere fact that Wisnie took a statement from the victim. The victim did not appear at the police station until several days after the incident, and the officers had no personal knowledge of the incident. As the state has noted, the issue to be determined by the jury was one of credibility. In his brief, the defendant contends that he could not cross-examine the police officers to challenge their credibility. If the defendant thought that the police officers’ credibility was an. issue to be decided by the jury, there was nothing to preclude him from calling them as witnesses. See id., 211.

Moreover, because the record is devoid of any indication as to why the testimony of the police officers was relevant to the defense, the defendant was not denied the constitutional right to the effective assistance of counsel. Secondino is an evidentiary issue, not a matter of constitutional dimension. State v. Malave, supra, 250 Conn. 738.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       The juiy found the defendant not guilty of the charge of sexual assault in the first degree.

       General Statutes § 54-86f, commonly referred to as the rape shield statute, provides in relevant part: “In any prosecution for sexual assault ... no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. . . .” In its brief on appeal, the state has conceded that the rape shield statute is inapplicable in this case, as the line of inquiry the defendant sought did not implicate the victim’s prior sexual conduct or a prior false complaint of rape made by the victim.

       In ruling, the court stated: “The prior ruling excluding that question in that area stands. The court specifically finds that based on the information that [William] Gaskin had to provide, that he was unable to provide anything that [the victim] specifically said, it is not an area to be gone into. Any probative value that it . . . might have ... if any, is outweighed by the prejudicial value.
      * ** *
      “Well, I don’t know if there’s more that [William] Gaskin has to say other than this. But I find that this portion of his testimony is not probative of any of the issues in this case and would be highly prejudicial and can possibly, depending on how it is interpreted, fall under the rape shield statute in terms of being an alleged false accusation. It really was not clear to me what he was testifying about.”

       Section 8-5 of the Connecticut Code of Evidence provides in relevant part: “The following are not excluded by the hearsay rule, provided the declarant is available for cross-examination at trial: (1) ... A prior inconsistent statement of a witness, provided (A) the statement is in writing or otherwise recorded by audiotape, videotape or some other equally reliable medium, (B) the writing or recording is duly authenticated as that of the witness, and (C) the witness has personal knowledge of the contents of the statement. . . .”

       Under Whelan, an out-of-court statement is admissible as substantive evidence if the statement is (1) a prior inconsistent statement, (2) is signed by the declarant and (3) the declarant testifies at trial and is subject to cross-examination. State v. Whelan, supra, 200 Conn. 753.

       The defendant also claims that the admission of the victim’s statement to the police under Whelan implicates his right to cross-examine the victim who has no memory of portions of her statement. If the victim was unable to recollect, the defendant claims that he was not able to cross-examine her, in violation of the confrontation clause. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The defendant concedes, however, that his confrontation claim as to cross-examination and reliability of the statement is controlled by our Supreme Court’s decision in State v. Simpson, 286 Conn. 634, 652, 945 A.2d 449 (2008) (when declarant appears for cross-examination, no constraints on use of prior testimonial statements; irrelevant that reliability of statement cannot be replicated if declarant testifies to same matter in court). He also claims that a witness’ inability to remember a prior statement is not the equivalent of an inconsistent statement. The defendant acknowledges that this claim, too, is controlled by Simpson. Although the defendant recognizes that this court is bound by Supreme Court precedent, he raised those two claims in his brief to preserve them for further review.

       In support of the defendant’s desire to comment on the lack of an investigation and the failure of the state to call any of the investigating police officers defense counsel argued: “Certainly, part of [the defendant’s] defense is the lack of evidence against him. And Your Honor’s general charge to the jury at the beginning of the case references the lack of evidence. So, I think that I should be able to comment upon the lack of an investigation and the lack of certain physical evidence that was never seized, a lack of any evidence of an investigation of this girl’s story, of the crime scene. There’s just a whole side of this case that was never introduced to the jury, and the reason is, and I can say it in good faith, there was no investigation. There just wasn’t. And in all my discovery, I’ve never gotten any police reports from [Detective Wisnie], and there are no photographs and nobody seized any evidence. So, I’m not misleading the jury or anything by arguing that there was a lack of evidence of a police investigation.
      “And I think that if Your Honor says that I can’t comment on calling the state’s failure to call Detective Wisnie, maybe the jury doesn’t even know who Detective Wisnie is at this point, but certainly I should be able to comment upon the lack, for instance, of the victim’s clothes. Where are the victim’s clothes? The clothes that the doctor asked for? Things like that, you know, that might have yielded evidence. Why weren’t the clothes introduced. You know there’s a lot of evidence that could have backed up this girl’s story that just was not presented. And the reason is because it didn’t exist.”

       A redacted version of the victim’s statement was placed in evidence. See part III. With respect to its request that the defendant be precluded from arguing that the investigating police officers did not testify, the prosecutor stated: “The state’s position, Your Honor, that what investigation, if any, the police took is irrelevant as to whether this defendant is guilty or innocent or whether I have proven the case beyond a reasonable doubt or not. This clearly is a case of credibility, whether or not [the jury believes the victim’s] testimony. She testified here in court, and whether [the jury believes], if they believe what she stated in court, proves each element beyond a reasonable doubt. To try to put out there a lack of police investigation to argue essentially with the argument is the police vouching for the credibility of [the victim] is what the bottom line is here. If what the police did would be relevant, if they testified, on cross-examination, but they didn’t testify.”

       In ruling on the motion to preclude the defendant from commenting during final argument that the state failed to call the investigating police officers, the court stated: “With respect to commenting on the state’s failure to call Detective Wisnie or any other . . . police officers, the state’s motion is granted. You are not to comment on that. From my reading of Malave, the state’s motion will be granted. That does not preclude you from commenting in your final argument on aspects that you wish to stress which are presented in evidence by other witnesses and, specifically, with respect to the fact that the entire process of the rape kit was in terms of when it was taken. The fact that it was testified to that she, I believe the box may have been checked on the form or the doctor testified that the fact she was not in the same clothes. I believe there was other testimony to that effect as well. But in terms of the police or anything that they would or would not have testified to, the state’s motion is granted.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    BONNIE DUART v. DEPARTMENT OF CORRECTION
    (AC 29994)
    Bishop, Haxper and Schaller, Js.

      Argued April 28
    officially released September 1, 2009

      Leon M. Rosenblatt, with whom was Lynn M. Mahoney, for the appellant (plaintiff).

      Jane B. Emons, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Antoría D. Howard and Margaret Q. Chap-pie, assistant attorneys general, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Bonnie Duart, appeals from the judgment of the trial court rendered after it denied her motion for a new trial, in which she alleged that the defendant, the department of correction, engaged in discovery misconduct. The plaintiff claims on appeal that the court, in denying the motion, relied on an improper standard when it concluded that she was required to show that the outcome of the trial would have been different without the defendant’s alleged discovery misconduct.

The following facts and procedural history are relevant to the plaintiffs appeal. This case arises out of an employment dispute between the plaintiff, a lieutenant with the department of correction, and the defendant. On May 28, 2002, the plaintiff filed an amended complaint against the defendant. In count one, she alleged that the defendant discriminated against her on the basis of her gender and sexual orientation. In count two, the plaintiff alleged that the defendant retaliated against her after she filed a complaint of discrimination with the commission on human rights and opportunities (commission).

The plaintiff alleged the following facts in support of her claims. On October 7, 1999, the plaintiffs supervisor, Duane Kelley, wrote an incident report in which he alleged that the plaintiff was dating another female correction officer, Cynthia Bruner, who was in the same chain of command as the plaintiff. Kelley published this incident report to the warden, Gurukaur Khalsa. Following the publication of the incident report, both Kelley and Khalsa began making false or grossly exaggerated allegations against the plaintiff. They harassed her about her hair, despite her continual compliance with the rules governing hair length, and, at one point, Khalsa stated to the plaintiff that if she did not know how to put her hair up properly, she should get one of her many women friends to help her. The plaintiff understood this statement to be in reference to her sexual orientation. In addition, the plaintiff was accused falsely of being disrespectful to Kelley and was transferred to the third shift despite a medical condition that prevented her from working that particular shift.

On April 24,2000, the plaintiff filed her first complaint of discrimination with the commission and the federal Equal Employment Opportunity Commission. After she filed the complaint, the discrimination and harassment by Kelley and Khalsa became even more severe, as evidenced by the following events: (1) the plaintiff was suspended for five days under the pretext of not complying with the hair regulations and for supposed disrespectful behavior to Kelley; (2) the plaintiff received her first unsatisfactory evaluation and her pay raise was taken away; (3) the plaintiff was accused falsely of failing to follow procedures regarding sick days, scheduling training and storing facility keys; (4) the plaintiff was denied vacation time; (5) the plaintiff was demoted from her position of lieutenant; and (6) the plaintiff was transferred by another supervisor, Wayne Valade, to a different correctional facility, which resulted in a decrease in pay, authority and prestige. The plaintiff also alleged that both Valade and Kelley had a practice of harassing female officers.

The case proceeded to a jury trial on July 14, 2004. After the trial, on July 27, 2004, the jury returned a verdict in favor of the defendant. On August 6, 2004, before judgment was rendered on the verdict, the plaintiff filed a motion in arrest of judgment, to set aside the verdict and for a new trial, alleging newly discovered evidence and interference with a witness. The defendant opposed the motion, and the court heard testimony and oral argument on October 14, 2004.

On June 5, 2007, the plaintiff filed a supplemental memorandum of law, focusing the basis of her request for a new trial on newly discovered evidence and discovery misconduct. Specifically, the plaintiff argued that she discovered after the trial that two other female correction officers, Catherine Osten and Lisa Jackson, had filed discrimination complaints against Kelley and Valade. The defendant had not disclosed this information despite the plaintiffs request during pretrial discovery that it produce the entire personnel files of Kelley and Valade and any complaints filed against them. The plaintiff contended that these documents should have been disclosed during discovery because they showed that both Valade and Kelley had a history of badgering and retaliating against females, and the information could have been used to test their credibility at trial. The plaintiff also argued that the defendant committed discovery misconduct when it intentionally withheld an anonymous note, which she characterized as “a documentary bombshell,” until the last day of evidence, despite her request during discovery that the defendant produce her personnel file. The plaintiff asserted that the note “accused [her] of ‘hanging out’ with Bruner in the lieutenant’s office or in the staff lounge; spending evenings with her; [and] leaving work early to ‘comfort’ her. It said that [the plaintiff] wore Bruner’s high school ring, with a pink stone, and that they had ‘matching hickies.’ It demanded that [administrative directive] 2.17 be enforced . . . .” The plaintiff argued that it was not until the anonymous note was revealed that she learned that her sexual orientation and relationship with Bruner was the central issue of the case. Until that point, because she had believed that compliance with hair regulations was the principal problem, she had directed her discovery and evidence at that issue.

The defendant filed a memorandum of law in opposition to the plaintiffs supplemental memorandum, essentially arguing that the plaintiff was not entitled to a new trial because it did not intentionally conceal the aforementioned documents from her and that the production of those documents would not have changed the result of the trial. The court heard additional argument on October 17, 2007. On May 13, 2008, the court denied the plaintiffs motion for a new trial and rendered judgment on the verdict. In its memorandum of decision, the court concluded that, although the discrimination complaints should have been produced by the defendant, they did not entitle the plaintiff to a new trial because they were cumulative of other evidence presented, and, therefore, it was unlikely that they would have produced a different result. The court also concluded that, because the anonymous note’s existence and contents were known to the plaintiff during the entire “pendency” of the case, and discrimination on the basis of sexual orientation was at the core of the trial, the note was not such that it would bring “success in its wake” in accordance with Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transportation Co., 953 F.2d 17, 21 (1st Cir. 1992). The court, therefore, determined that the “defendant’s failure to provide a copy of the actual note, even if brought about by discovery misconduct . . . did not so taint the process as to in all equity warrant a new trial.”

The plaintiff appealed to this court on June 2, 2008, following the denial of her motion for a new trial. In her brief, the plaintiff states that she is “not pressing in this appeal her argument concerning newly discovered evidence. She is pressing her claim that the defendant’s pretrial discovery [misconduct] so perverted the process that she is entitled to a new trial.” The crux of the plaintiffs argument is that the court should not have applied the “result altering” standard of Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59, to her claim of discovery misconduct because that case involved a claim of newly discovered evidence. The plaintiff contends that the correct standard to be applied to a claim of discovery misconduct is whether she has demonstrated that there is clear and convincing evidence of the misconduct and that it “substantially interfered with her ability to fully and fairly prepare for, and proceed, at trial,” in accordance with Anderson v. Cryovac, Inc., 862 F.2d 910, 926 (1st Cir. 1988). The plaintiff maintains that Anderson should be relied on because there is no standard in Connecticut for a motion for a new trial that is based on an allegation of discovery misconduct.

Typically “[o]ur standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion.” (Internal quotation marks omitted.) Sequenzia v. Guerrieri Masonry, Inc., 113 Conn. App. 448, 451, 967 A.2d 508, cert. granted on other grounds, 292 Conn. 903, 971 A.2d 689 (2009). Nevertheless, “[a] court’s determination of the proper legal standard . . . is a question of law subject to plenary review.” Fish v. Fish, 90 Conn. App. 744, 754, 881 A.2d 342 (2005), rev’d in part on other grounds, 285 Conn. 24, 939 A.2d 1040 (2008). “If a court applies a different standard, its judgment is subject to reversal.” Moss v. Foster, 96 Conn. App. 369, 375, 900 A.2d 548 (2006).

“[F]ederal rules of civil procedure and the federal court’s interpretations thereon are not binding upon the state courts . . . .” Mac’s Car City, Inc. v. American National Bank, 205 Conn. 255, 260, 532 A.2d 1302 (1987). Federal case law, particularly decisions of the United States Court of Appeals for the Second Circuit; see Turner v. Frowein, 253 Conn. 312, 341, 752 A.2d 955 (2000); can be persuasive in the absence of state appellate authority, which the plaintiff asserts to be the situation in the present case. Decisional authority from this state refutes the plaintiffs assertion. At the outset, however, because both parties in their respective briefs and in oral argument to this court extensively examined the decisions of the United States Court of Appeals for the First Circuit in Anderson and Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59, and, more importantly, because the trial court relied on the latter case in denying the plaintiffs motion for a new trial, we will briefly discuss those cases and the federal rule of civil procedure that is central to both.

Rule 60 (b) of the Federal Rules of Civil Procedure provides in relevant part that “[o]n motion and just terms, the court may relieve a party . . . from a final judgment . . . for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59 (b) [of the Federal Rules of Civil Procedure]; (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.”

In Anderson, the plaintiff moved for a new trial under rule 60 (b) (3), alleging that the defendant engaged in discovery misconduct when it failed to produce or to disclose certain materials. Anderson v. Cryovac, Inc., supra, 862 F.2d 923. The court concluded that this type of behavior “can constitute ‘misconduct’ within the purview of this subsection.” Id. The court then set out the following standard: “[I]n motions for a new trial under the misconduct prong of [r]ule 60 (b) (3), the movant must show the opponent’s misconduct by clear and convincing evidence. Next, the moving party must show that the misconduct substantially interfered with its ability fully and fairly to prepare for, and proceed at, trial.” 6 Id., 926.

In Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transportation Co., supra, 953 F.2d 18, the plaintiffs “attempted to resurrect [their] case from its own ashes” by invoking rule 60 (b) (6), the catchall provision, alleging that they did not receive the defendants’ motion for summary judgment or notice that the court had granted it. The court stated: “[Wjhile a movant, in order to set aside a judgment, need not establish that it possesses an ironclad claim or defense which will guarantee success at trial, it must as least establish that it possesses a potentially meritorious claim or defense which, if proven, will bring success in its wake. Such a showing requires more than an unsubstantiated boast. Even an allegation that a meritorious claim exists, if the allegation is purely conclusory, will not suffice to satisfy the precondition to [r]ule 60 (b) relief. ... In the absence of any cognizable representation that its underlying suit possessed merit, the [named plaintiff] was not entitled to favorable consideration of its [r]ule 60 (b) (6) motion.” Id., 21.

The plaintiff is correct in her contention that Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59, did not supersede Anderson. The First Circuit, in Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59, clarified a basic precondition for a party bringing a motion under rule 60 (b); it did not change the standard, as set out in Anderson, for reviewing motions to set aside a judgment that are based on fraud, misrepresentation or misconduct under rule 60 (b) (3). That standard was recently affirmed by the First Circuit in Karak v. Bursaw Oil Corp., 288 F.3d 15, 20-21 (1st Cir. 2002), and our review of case law from other federal circuit courts of appeal reveals that it remains the widely accepted standard. See Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1036 (8th Cir. 2007); Zurich North America v. Matrix Service, Inc., 426 F.3d 1281, 1290 (10th Cir. 2005); Hesling v. CSX Transportation, Inc., 396 F.3d 632, 641 (5th Cir. 2005); State Street Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004), cert. denied, 543 U.S. 1177, 125 S. Ct. 1309, 161 L. Ed. 2d 161 (2005); Bethel v. McAllister Bros., Inc., 81 F.3d 376, 384 (3d Cir. 1996); Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994); Jones v. Aero/Chem Corp., 921 F.2d 875, 878-79 (9th Cir. 1990).

The plaintiff, however, is incorrect in her contention that Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59, was “a case about newly discovered evidence [in which] the question [was] whether, if the movant had the [newly discovered] evidence, the results would have been different.” The plaintiffs in Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59, did not invoke rule 60 (b) (2), which is the rule governing the ground of newly discovered evidence. Nonetheless, it is true that under rule 60 (b) (2), the movant must show, among other things, that “the evidence is of such a nature that it would probably change the result were a new trial to be granted.” (Emphasis added.) United States Steel v. M. DeMatteo Construction Co., 315 F.3d 43, 52 (1st Cir. 2002); see also Greyhound Lines, Inc. v. Wade, supra, 485 F.3d 1036; Zurich North American. Matrix Service, Inc., supra, 426 F.3d 1290; Hesling v. CSX Transportation, Inc., supra, 396 F.3d 639; United States v. International Brotherhood of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001). “Unlike [r]ule 60 (b) [3], 60 (b) [2] . . . [requires] that the information withheld be such that it can alter the outcome of the case.” (Internal quotation marks omitted.) Hesling v. CSX Transportation, Inc., supra, 641.

Because the plaintiff, in this appeal, is pressing her discovery misconduct claim, and not her newly discovered evidence claim, we can appreciate why she argues that the court should have applied the standard of rule 60 (b) (3), which is that the misconduct “substantially interfere[d] with [the] ability fully and fairly to prepare for, and proceed at, trial”; Anderson v. Cryovac, Inc., supra, 862 F.2d 926; as opposed to the “result altering” standard of rule 60 (b) (2). Yet, as noted by the defendant, our Supreme Court has established a standard for claims of fraud, and, for the reasons we will discuss, we believe that it should also be applied to claims of discovery misconduct, whether wilful or negligent.

In Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980), our Supreme Court imposed four requirements on those seeking relief from a judgment secured by fraud: “(1) There must have been no laches or unreasonable delay by the injured party after fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different.” See also Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107, 952 A.2d 1 (2008); Billington v. Billington, 220 Conn. 212, 218, 595 A.2d 1377 (1991); Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983). The court, in Varley, explained: “Where an unsuccessful party has been prevented, by fraud or deception, from exhibiting fully his case ... a new suit may be sustained to set aside and annul the former judgment and open the case for a new and fair hearing.” Varley v. Varley, supra, 2.

Although Varley spoke in terms of fraud rather than misconduct, we see no reason why those concepts should not be categorized together, thereby sharing the same standard, as is the case in federal law. See Fed. R. Civ. P. 60 (b) (3) (court may relieve party for “fraud . . . misrepresentation, or misconduct by an opposing party”); Anderson v. Cryovac, Inc., supra, 862 F.2d 923 (“the moving party must demonstrate misconduct—like fraud or misrepresentation—by clear and convincing evidence, and must then show that the misconduct foreclosed full and fair preparation or presentation of its case” [emphasis added]). The distinction between fraud and misconduct is difficult to define. Misconduct is a subset of fraud, where wilful, and less culpable when negligent. In Anderson, the court attempted to develop a definition but could only come up with the pronouncement that relief on the ground of misconduct is justified not only when there is an “evil, innocent, or careless, purpose,” but also when there is an accidental omission, “elsewise [misconduct] would be pleonastic, because fraud . . . would likely subsume it.” (Internal quotation marks omitted.) Id. The court did not discuss how to distinguish between fraud and misconduct when an accidental omission is not the conduct in question. The court’s statement, in fact, indicates that in this instance, fraud would likely subsume misconduct.

Unless we, unlike the federal courts, choose to undertake the arduous task of classifying each wrongful act or omission as either fraud or misconduct, it is prudent that the two share the same standard. Otherwise, if we were to adopt the more lenient standard of Anderson for misconduct claims, and yet maintain the more demanding standard of Varley for fraud claims, parties would be likely to frame their complaints in terms of misconduct rather than fraud. Courts would then be compelled to scrutinize the behavior complained of to determine its true nature, whether misconduct or fraud, an uncertain and time-consuming process. Therefore, we find persuasive the decision of the federal courts to apply the same standard to both fraud and misconduct claims.

Additionally, fraud is often considered to consist of either the fabrication or concealment of evidence. See 2 Restatement (Second), Judgments § 70, comment (d), p. 183 (1982) (to obtain relief from fraud “it must be shown that the fabrication or concealment was a material basis for the judgment and was not merely cumulative”). In this case, the plaintiff has alleged that the defendant knowingly and deliberately concealed certain documents from her. Moreover, Varley describes fraud as deception that prevents a party from fully exhibiting his case. Varley v. Varley, supra, 180 Conn. 2; see also Francis T. Zappone Co. v. Plymouth Commons Realty Group, Superior Court, judicial district of Hartford, Docket No. CV-02-0820681-S (October 10, 2007) (Sheldon, J.) (intrinsic fraud is “fraud preventing the moving party from fully presenting his claim or defense at trial”). The plaintiff here argues that the defendant’s deceptive concealment of the documents at issue prevented her from fully presenting her case.

Despite the fact that the court did not set out the standard established in Varley in its memorandum of decision, by concluding that the burden was on the plaintiff to show that the evidence allegedly concealed by the defendant through discovery misconduct would have to “bring success in its wake”; Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transportation Co., supra, 953 F.2d 21; or, in other words, that it be “result altering,” the court effectively applied the correct standard. Moreover, when the court concluded that the plaintiff had failed to do so, it, in effect, concluded that the plaintiffs claim failed under the fourth prong of Variey. Therefore, the court’s reliance on Teamsters, Chauffeurs, Ware-housemen & Helpers Union, Local No. 59, instead of Variey, ultimately is of no consequence in the case at hand.

We now must determine whether the court abused its discretion in determining that the evidence allegedly concealed by the defendant would have changed the result of the trial. In its memorandum of decision, the court essentially concluded that, given its factual findings that the plaintiff was aware of the existence and the general content of the anonymous note and the discrimination complaints throughout the “pendency” of the case, even if the defendant wrongfully had concealed them, it was of no consequence because the actual possession of these items by the plaintiff would not have changed the result of the trial. “[W]e accept the factual findings of the trial court unless they are clearly erroneous.” State v. Webb, 238 Conn. 389, 470-71, 680 A.2d 147 (1996), aff'd after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000). If the record supports the finding, it is not clearly erroneous. See State v. Kennedy, 20 Conn. App. 354, 362, 567 A.2d 841 (1989), cert. denied, 214 Conn. 805, 573 A.2d 317 (1990).

In the plaintiffs amended complaint, dated May 28, 2002, she alleged that “[t]he plaintiff is filing this complaint to contest the willful discrimination against her by the [sjtate of Connecticut, [department of [correction] on the basis of gender, sexual orientation, race, and physical disability in the terms and conditions of her employment . . . .” (Emphasis added.) The plaintiff goes on to state: “On or about October 7, 1999, Captain Kelley wrote in an incident report that he knew the plaintiff was the girlfriend of another female employee. Kelley then published this incident report to Warden Khalsa . . . .” The plaintiff then alleges that Khalsa made an improper comment about her sexual orientation, that she was discriminated against under the pretext of not complying with hair regulations and that she tried to discuss the discrimination with high level supervisors. Finally, the plaintiff avers that “[o]n information and belief, Captain Kelley has a practice of harassing female supervisors and female correctional officers because of their gender. Females have filed complaints against Captain Kelley. . . . Captain Valade has openly stated he believes women do not belong in the [corrections field. He, too, has had complaints of gender discrimination against him.” (Emphasis added.)

In addition, portions of the trial transcript supplied by the defendant in its appendix support the following factual findings made by the court in regard to what transpired at the trial itself: “[The] plaintiffs counsel in opening arguments stressed that . . . [the plaintiff] was on an upward trajectory in her employment from her first year at the [department of correction] in 1988 until October, 1999, when . . . Kelley became her supervisor. The existence of the note and its general content alleging a romantic relationship with another female correctional officer was pointed out to the jury numerous times before the actual document was produced. . . . The existence of the note was not hidden, the central thrust of its contents had been known during the entire pendency of the case. Discrimination on the basis of sexual orientation was at the core of the trial and articulated by counsel at the start. The note’s actual tone and contents tend to support the testimony of the various defense witnesses who claimed that they did not investigate [the allegations in the note] further, since no details could have been secured from an anonymous source. The language of the note is also such [as] to support the comments that it was not particularly trustworthy information, but merely salacious. And it is cumulative of other facts the jury could have found concerning sexual discrimination in the department of correction. . . . Most of what the actual note had to contribute to the outcome was already before the jury . . . .” As to the discrimination complaints, the court stated: “[T]hese documents are cumulative of other evidence that was presented at trial. Lieutenant Osten attended the trial and testified concerning her complaint against Captains Kelley and Valade. The jury had before it the facts, based on her testimony, of what took place and the conduct complained of. . . . The complaint field by . . . Jackson is also cumulative of other evidence . . . .”

Moreover, on the first day of the trial, the plaintiff entered into evidence an incident report written by Kelley, dated October 12, 1999, in which Kelley wrote: “On [October 7, 1999], I received an anonymous note on a page three report. The note appears to have been [w]ritten by staff. The note states that Bruner hurt herself while playing [P]ing-[P]ong with [another correctional officer]. The [n]ote states that Bruner was lying about slipping on water. The note also alleges that Bruner is involved [i]n a romantic relationship with [the plaintiff].”

It is evident that the plaintiff was aware of the existence and content of the anonymous note and the discrimination complaints and used that information to bolster her theory at trial that she was discriminated against on the basis of her sexual orientation. This being so, we conclude that the court did not abuse its discretion in determining that even if the defendant had concealed these items wrongfully, it is of no moment because there does not exist a substantial likelihood that the actual production of them would have changed the result of the trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims on appeal that (1) the defendant engaged in discovery misconduct that was knowing and deliberate, “thus creating an inference that [she] is entitled to a new trial,” and (2) she was “denied access to discovery that would have been valuable trial evidence or a tool for obtaining meaningful discovery . . . .” These claims are either encompassed within the claim that we resolve in this opinion or are directly within the scope of discovery misconduct as set out in Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988), which we decline to follow. For those reasons, we do not reach these claims.

       The plaintiff also alleged that she was discriminated against because of her physical disability, namely, endometriosis, but withdrew that claim prior to trial.

       Romantic relationships between two people in the same chain of command are forbidden pursuant to the defendant’s administrative directive 2.17.

       Rule 59 (b) of the Federal Rules of Civil Procedure provides: “Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 10 days after the entry of judgment.”

       The court further concluded: “This burden may be shouldered either by establishing the material’s likely worth as trial evidence or by elucidating its value as a tool for obtaining meaningful discovery. The burden can also be met by presumption or inference, if the movant can successfully demonstrate that the misconduct was knowing or deliberate. Once a presumption of substantial interference arises, it can alone carry the day, unless defeated by a clear and convincing demonstration that the consequences of the misconduct were nugacious. Alternatively, if unaided by a presumption— that is, if the movant is unable to prove that the misconduct was knowing or deliberate—it may still prevail as long as it proves by a preponderance of the evidence that the nondisclosure worked some substantial interference with the full and fair preparation or presentation of the case.” Anderson v. Cryovac, Inc., supra, 862 F.2d 926.

       The movant must also demonstrate that “(1) the evidence has been discovered since the trial; (2) the evidence could not by due diligence have been discovered earlier by the movant; [and] (3) the evidence is not merely cumulative or impeaching . . . .” United States Steel v. M. DeMatteo Construction Co., 315 F.3d 43, 52 (1st Cir. 2002).

       In Billington v. Billington, 220 Conn. 212, 222, 595 A.2d 1377 (1991), our Supreme Court abandoned the diligence requirement in the marital litigation context.

       Notably, the standard that governs the granting of a petition for a new trial based on newly discovered evidence is very similar. The petitioner must demonstrate, by a preponderance of the evidence, that: “(1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).

       We note that rule 60 (d) of the Federal Rules of Civil Procedure also provides that a court may vacate a judgment when it determines that a party has perpetrated a “fraud on the court.” Fed. R. Civ. P. 60 (d) (3). The “fraud on the court” doctrine is materially different from the fraud or misconduct on an adverse party referred to in rule 60 (b) (3). As the United States Court of Appeals for the Fourth Circuit explained: “The federal courts that have struggled with the definition of ‘fraud on the court’ . . . have found such a definition elusive . . . but have generally agreed that the concept should be construed very narrowly .... The principal concern motivating narrow construction is that the otherwise nebulous concept of ‘fraud on the court’ could easily overwhelm the specific provision of [rule] 60 (b) (3) and its time limitation and thereby subvert the balance of equities contained in the [r]ule. . . . Not all fraud is ‘fraud on the court.’ ” (Citations omitted.) Great Coastal Express, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 675 F.2d 1349, 1356 (4th Cir. 1982), cert. denied, 459 U.S. 1128, 103 S. Ct. 764, 74 L. Ed. 2d 978 (1983).
      “ ‘[FJraud upon the court’ as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication.” Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988). “[F]raud on the court must constitute egregious misconduct . . . such as bribery of a judge or jury or fabrication of evidence by counsel.” (Internal quotation marks omitted.) Herring v. United States, 424 F.3d 384, 390 (3d Cir. 2005), cert. denied, 547 U.S. 1123, 126 S. Ct. 1909, 164 L. Ed. 2d 685 (2006). It “is not fraud between the parties or fraudulent documents, false statements or perjury.” (Internal quotation marks omitted.) Weese v. Schukman, 98 F.3d 542, 552 (10th Cir. 1996). “When alleging a claim of fraud on the court, the plaintiff must show by clear and convincing evidence that there was fraud on the court, and all doubts must be resolved in favor of the finality of the judgment.” Id.
      In Connecticut, the distinction between “fraud on the court” and “fraud on an adverse party” has received little discussion. In Billington v. Billington, supra, 220 Conn. 224-25, the Supreme Court concluded that there exists a distinction between “fraud on the court” and “fraud on an adverse party” in the marital litigation context, in that “fraud on the court” is limited to instances in which “both parties join to conceal material information from the court.” Id., 225. Once outside the marital context, however, the two concepts appear to receive similar treatment. In Varley, the defendant alleged that “the trial was tainted by (a) false testimony; (b) bribery; (c) misconduct of counsel; and (d) misconduct of the state referee.” Varley v. Varley, supra, 180 Conn. 2 n.1.
      Although these allegations befit the “fraud on the court” doctrine, at least according to federal definition, the Varley court referred only to the defendant’s claim as that of fraud. In Billington, the court concluded that it was not “fraud on the court” but “fraud on an adverse party” when one party submitted a fraudulent affidavit with the intent to induce the other party to rely on it and that the moving party should be required to satisfy the limitations of Varley. Billington v. Bittington, supra, 220 Conn. 224-25.

       Extrinsic fraud, meanwhile, has been described as “fraud involving the presentation of perjured testimony or fraudulent evidence . . . .” Francis T. Zappone Co. v. Plymouth Commons Realty Group, supra, Superior Court, Docket No. CV-02-0820681-S.

       The plaintiff failed to file the trial transcripts with this court. Practice Book § 63-8 requires an appellant to order and to file an official transcript and an electronic version of the transcript.


author: WEST, J.

text:
    KEITH PRIOLEAU v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 30183)
    Flynn, C. J., and Alvord and West, Js.

      Argued April 23
    officially released September 1, 2009

      Keith Prioleau, pro se, the appellant (plaintiff).

      Charles Krich, principal attorney, for the appellee (named defendant).
   Opinion

WEST, J.

The plaintiff, Keith Prioleau, appeals from the judgment of the trial court dismissing his appeal from a decision of the defendant commission on human rights and opportunities (commission). The commission determined that there was no reasonable cause to believe that discriminatory or retaliatory practices had been committed and dismissed the plaintiffs complaint without a hearing. The plaintiff claims that the court improperly concluded that (1) the commission applied the proper legal standard to his claims and (2) the commission’s findings were supported by substantial evidence. Because we conclude that the court properly dismissed the plaintiffs appeal, we affirm the judgment of the trial court.

On October 23,2003, the plaintiff was laid off from his position as a senior computer scientist and information security specialist at Computer Sciences Corporation (company). Prior to his layoff, the plaintiff worked in the company’s global infrastructure security services department and was assigned to its account with United Technologies Corporation (United). On March 30, 2004, the plaintiff filed a complaint with the commission in which he claimed that he had been laid off by the company because of his race and color and in retaliation for his participation in protected activity; specifically, he had opposed the discriminatory conduct of his former employer, which, at the time he was laid off, was a client of the company. On May 24, 2004, the company filed its answer in which it asserted nondiscriminatory bases for the plaintiffs layoff. These bases included an economic downturn that necessitated a large and ongoing reduction in force, the fact that the plaintiff’s position had no direct impact on service level agreements between the company and United and issues involving the reliability of the plaintiff. The plaintiff countered these assertions in a July 27, 2004 rebuttal, claiming that the company’s contentions were merely a pretext for its discriminatory and retaliatory practices and offered evidence to support his allegations.

On September 7,2004, the commission, after conducting a merit assessment review pursuant to General Statutes § 46a-83 (b) and concluding that issues of credibility existed that could not be resolved through that procedure, set the plaintiffs complaint for a full investigation and assigned a commission investigator. The purpose of the full investigation of the complaint was to ascertain whether there was reasonable cause to believe that discriminatory or retaliatory practices had been committed as alleged in the plaintiffs complaint. See General Statutes § 46a-83 (c). If the commissioner or investigator found that there was “reasonable cause” to believe that discriminatory or retaliatory acts had been committed and if the complaint was not settled through the procedures outlined in § 46a-83, the plaintiff would be entitled to a hearing on the matter. See General Statutes § 46a-84.

On October 7, 2005, the commission investigator, Theresa Plato, conducted a formal fact-finding proceeding on the record in which sworn witnesses gave testimony regarding the complaint. At the proceeding, Plato heard from the plaintiff, his former supervisor at the company, Douglas Iosbaker, as well as another company employee, Ginger Roberts. The plaintiff, acting pro se, and the company’s attorney were allowed through the investigator to ask questions of the witnesses. After that fact-finding proceeding, both the plaintiff and the company submitted additional evidence.

On February 23, 2006, the commission issued a draft summary finding of no reasonable cause. James M. Flynn, a regional manager with the commission, forwarded a copy of the draft summary finding to the plaintiff. Accompanying the draft summary finding was a letter from Flynn in which he stated that the plaintiff had fifteen days to comment on the draft summary finding. No comments were received by the commission, and, on March 13, 2006, it made its finding of no reasonable cause final. On March 14, 2006, the plaintiff filed a request for reconsideration of the finding of no reasonable cause. On May 15, 2006, the commission issued a written decision denying the plaintiffs request for reconsideration. The plaintiff appealed from the commission’s decision to the Superior Court. On July 31, 2008, by memorandum of decision, the court dismissed the plaintiffs appeal. This appeal followed.

“We first note the limited scope of review to be exercised by the trial court in reviewing a [commission] determination that there is no reasonable cause to believe that a discriminatory practice has been committed. Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . This substantial evidence rule is embodied in General Statutes § 4-183 (j) (5) and (6).

“The substantial evidence standard is satisfied if the record provides a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The issue before the trial court, therefore, was whether there was a substantial basis in the record to support the commission’s finding of no reasonable cause for either the discrimination or retaliation allegation. As [our Supreme Court] noted previously, the term reasonable cause as used in ... § 46a-83 is synonymous with the term probable cause. . . . Probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. ... It deals with probabilities, and the application of the factual and practical considerations of everyday life on which reasonable and prudent [people] act. ... In order to determine whether there was substantial evidence in the record to support the commission’s determination, the commission must have conducted a complete and thorough investigation.” (Internal quotation marks omitted.) Ezikovich v. Commission on Human Rights & Opportunities, 57 Conn. App. 767, 770-72, 750 A.2d 494, cert. denied, 253 Conn. 925, 754 A.2d 796 (2000). We now address each of the plaintiffs claims in turn. Further facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly concluded that the commission applied the proper legal standard to his claims of racial discrimination and retaliation. Specifically, the plaintiff argues that the commission was required to use the analytical framework our courts employ when assessing disparate treatment discrimination claims under Connecticut law that was adapted from the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its progeny. We disagree.

Our Supreme Court settled this issue in Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 596 A.2d 426 (1991), on appeal after remand, 228 Conn. 545, 636 A.2d 1360 (1994). As in Adriani, the plaintiff here contends that the investigator, in making the reasonable cause determination, and the commission, when reviewing the investigator’s recommendation, may consider all of the evidence gathered, but the focus of the inquiry should be on the plaintiffs representations concerning the alleged discrimination. See id. Also, the plaintiff here asserts that the commission is not entitled to draw inferences or to make credibility determinations that would bear on disputed material facts. These assertions misstate the applicable standard employed by the commission in a reasonable cause determination.

In Adriani, our Supreme Court went on to note that “[i]n Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988), the Appellate Court addressed this specific issue. That court rejected the claimant’s contention that the reasonable cause standard set forth in § 46a-83 is akin to the concept of a prima facie case, which applies to the complainant’s initial burden of production at an adjudicative hearing. . . . The court concluded that the term reasonable cause as used in the statute is synonymous with probable cause.” (Internal quotation marks omitted.) Adriani v. Commission on Human Rights & Opportunities, supra, 220 Conn. 315-16; Ezikovich v. Commission on Human Rights & Opportunities, supra, 57 Conn. App. 771-72.

Our Supreme Court concluded that the reasonable cause standard requires the commission to consider all reliable probative evidence, including evidence unfavorable to a complainant’s claim. Adriani v. Commission on Human Rights & Opportunities, supra, 220 Conn. 316-17. Moreover, the court went onto “conclude that a necessary corollary to allowing the commission to consider all relevant evidence gathered during the investigation is that in making the reasonable cause determination, the investigator, and the commission when reviewing the investigator’s recommendation, are entitled to make findings on disputed issues of material fact by weighing the credibility of the witnesses and drawing inferences.” Id., 317. The unavoidable result of the position proffered by the plaintiff is, as our Supreme Court noted, that “any claimant can guarantee that he obtains a hearing simply by alleging in his complaint the existence of direct or overt evidence of discrimination. Such a result would encourage unfounded allegations of overt discrimination, thereby requiring a hearing and effectively rendering the reasonable cause determination a nullity.” Id., 318. Accordingly, we conclude that the court properly determined that the investigator and the commission employed the correct analytical framework in their determination of whether there was reasonable cause to believe that discriminatory or retaliatory practices were committed by the company as alleged in the plaintiffs complaint.

II

The plaintiff next claims that the court improperly concluded that the commission’s findings were supported by substantial evidence. The plaintiff makes two arguments in this regard: because the commission’s finding of no reasonable cause was made on the basis of an inadequate investigation, it was not supported by substantial evidence; and even if the investigation was adequate, the finding of no reasonable cause is not supported by substantial evidence. We disagree.

A

Inadequate Investigation

This claim requires little discussion. We again note that “to determine whether there was substantial evidence in the record to support the commission’s determination, the commission must have conducted a complete and thorough investigation.” (Internal quotation marks omitted.) Ezikovich v. Commission on Human Rights & Opportunities, supra, 57 Conn. App. 772. Here, in his principal brief, after citing the entire Uniform Administrative Procedure Act, General Statutes §§ 4-166 to 4-189, the plaintiff merely makes the assertion that “had [the commission] conducted an investigation in accordance [with the requisite] standards, [it] would have uncovered the fact that the [company] lied about ehminating his position in a [reduction in force].” He follows this up with a thorough rendition of his version of the events that both preceded and were subsequent to his layoff by the company and argues that had the commission conducted an adequate investigation it would have substantiated that the plaintiff was an exemplary employee and that the company’s purported reasons for his layoff were mere subterfuge. Essentially, the plaintiff is arguing not that the commission had investigated his claim inadequately but, rather, that it improperly had considered evidence not favorable to him and had drawn improper inferences on the basis of incorrect credibility determinations.

As we stated in part I, both the investigator and the commission are entitled to make findings on disputed issues of material fact by weighing the credibility of the witnesses and drawing inferences. See Adriani v. Commission on Human Rights & Opportunities, supra, 220 Conn. 318. Moreover, a review of the record clearly shows that the court correctly determined that the commission properly investigated the plaintiffs claims. The commission considered voluminous documents from both parties and held a formal fact-finding hearing after which it solicited from the parties the submission of additional evidence. The commission also sent to the parties a draft of its finding of no reasonable cause, giving the parties an opportunity to comment. Last, we note that the record supports the commission’s conclusion that the plaintiff failed to provide sufficient evidence to show that his color, race and participation in protected activity were the bases for his termination. See Regs., Conn. State Agencies § 46a-54-50a. We therefore conclude that the commission’s investigation was sufficiently thorough to support its determination by substantial evidence that there was no reasonable cause to believe that the company discriminated or retaliated against the plaintiff when it laid him off.

B

Substantial Evidence

The plaintiffs last claim, that the court improperly concluded that the commission’s finding was supported by substantial evidence, essentially is made on the ground that the credibility assessment of the evidence and witnesses made by the investigator and adopted by the commission was in error. In essence, the plaintiff argues that the evidence he submitted was substantial evidence supporting a finding of reasonable cause and that the evidence submitted by the company was not substantial. We do not agree.

“In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency’s assessment of the credibility of witnesses. . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Citations omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, 228 Conn. 651, 668, 638 A.2d 6 (1994). Upon our thorough review of the record, guided by the commission’s comprehensive recitation of the evidence supporting each of the findings of fact and by its well founded determination of no reasonable cause to believe that the alleged discriminatory and retaliatory acts occurred, we are convinced that the court correctly determined that the commission acted properly. See American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 308, 869 A.2d 1198 (2005) (“[a]n administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred” [internal quotation marks omitted]). This claim, therefore, fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       R. Hamisi Ingram, a former executive director of the commission, also was named as a defendant but is not a party to this appeal.

       The claimed protected activity was the plaintiffs participation in an action brought in federal District Court against Sikorsky Aircraft Corporation alleging racial discrimination in hiring and compensation and a racially hostile work environment. Judgment was entered against the plaintiff in that matter on September 24, 2003.

       The record reveals that service level agreements are contractual agreements that provide incentives to the company to meet predetermined monthly service levels for its clients. Douglas Iosbaker, the plaintiff’s supervisor, testified at the October 7, 2005 fact-finding proceeding that “there are specific service levels within that contract [with United] that [United] measures [the company’s] performance by or on [that could result] in financial impact to [the company] if that service level was not met.” Also, in its May 24, 2004 answer to the plaintiffs complaint, the company asserted that it could suffer substantial financial penalty if the service level agreements were not met in any given month.

       General Statutes § 46a-83 (b) provides in relevant part: “Within ninety days of the filing of the respondent’s answer to the complaint, the executive director or the executive director’s designee shall review the file. The review shall include the complaint, the respondent’s answer and the responses to the commission’s requests for information, if any, and the complainant’s comments, if any, to the respondent’s answer and information responses. If the executive director or the executive director’s designee determines that the complaint fails to state a claim for relief or is frivolous on its face, that the respondent is exempt from the provisions of this chapter or that there is no reasonable possibility that investigating the complaint will result in a finding of reasonable cause, the complaint shall be dismissed. . . .”

       General Statutes § 46a-83 (c) provides in relevant part: “The executive director of the commission or his designee shall determine the most appropriate method for processing any complaint pending after review in accordance with subsection (b) of this section. The commission may conduct mandatory mediation sessions, expedited or extended fact-finding conferences or complete investigations or any combination thereof during the investigatory process for the purpose of finding facts, promoting the voluntary resolution of complaints or determining if there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint. As used in this section and section 46a-84, reasonable cause means a bona fide belief that the material issues of fact are such that a person of ordinary caution, prudence and judgment could believe the facts alleged in the complaint. . . .”

       Our Supreme Court “had occasion to explain the operation of this framework in Craine v. Trinity College, 259 Conn. 625, 638, 791 A.2d 518 (2002): [T]here are four elements to a prima facie case where the aggrieved party is alleging illegal denial of tenure: (1) that she belongs to a protected class; (2) that she was qualified for tenure; (3) that, despite her qualifications, she was denied tenure; and (4) that the denial took place under circumstances permitting an inference of discrimination. Under this analysis, the employee must first make a prima facie case of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias. . . . The most typical method used by plaintiffs to establish the fourth prong of a prima facie case is to introduce evidence that the defendant . . . promoted comparably qualified individuals not in a protected class of individuals. . . . Importantly, it is also well established that [w]e look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both.” (Citations omitted; internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009).

       As noted previously, the company defended its layoff of the plaintiff by asserting, inter alia, that his position was selected for a reduction in force because his duties did not directly affect the company’s service level agreements with its clients. See footnote 3. The plaintiff now asserts on appeal that the commission inadequately investigated those agreements. Our review of the plaintiffs appellate briefs reveals that this claim first was asserted during oral argument before this court. We generally do not consider claims raised for the first time at oral argument. See Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 12 n.8, 826 A.2d 1088 (2003); Zenon v. Mossy, 114 Conn. App. 734, 736-37 n.2, 970 A.2d 814 (2009). Moreover, our review of the record further indicates that at no time prior to his oral argument before us had the plaintiff requested the commission to review any service level agreements or to compel the company to produce any. We also note that in its May 15,2006 written decision on the plaintiffs request for reconsideration, the commission concluded that the plaintiff did not rebut the company’s contention concerning the role those service level agreements had in its determination to lay off the plaintiff. See Regs., Conn. State Agencies § 46a-54-50a (complainant has duty continuously to provide information to support allegations).

       We note that the record reveals that the plaintiff did not submit any comments to the commission in response to its draft finding of no reasonable cause.

       The plaintiff bolsters this argument by asserting that the commission and the court were bound to draw all reasonable inferences from the evidence submitted in his favor. This issue was disposed of in part I and will not be revisited here.
      Also, for the first time in his reply brief, the plaintiff claims that the substantial evidence test is not met because the finding of no reasonable cause was made prior to two subsequent complaints of discrimination he made to the commission involving the company in which the commission did find reasonable cause to believe that discriminatory practices had taken place. He argues that these subsequent complaints were made on the basis of the same set of circumstances as the complaint relevant to this appeal and, therefore, we should consider them in our resolution of his appeal. First, we note that “[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). We therefore will not review this claim. Moreover, even if we were to afford this claim review, “[¡Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Emphasis added; internal quotation marks omitted.) Ezikovich v. Commission on Human Rights & Opportunities, supra, 57 Conn. App. 770-71. We cannot say that the plaintiffs subsequent complaints or the commission’s findings related thereto, are, for the purposes of this appeal, part of the administrative record supporting the finding of no reasonable cause and, therefore, would warrant our consideration here.