author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. JOSE VAZQUEZ
    (AC 30057)
    Lavine, Beach and Alvord, Js.
    Argued November 9, 2009
    officially released February 9, 2010

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Adam E. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Jonathan C. Benedict, former state’s attorney, and Howard S. Stein, assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Jose Vazquez, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and carrying a dangerous weapon in violation of General Statutes § 53-206 (a). On appeal, the defendant claims that the trial court (1) abused its discretion in denying his motion for a new trial, (2) improperly permitted the state to introduce a piece of evidence and (3) violated his due process rights by diluting the state’s burden of proof. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was dating Jennifer Serrano, the victim’s cousin. In June, 2006, the victim, Billy Lopez, and some of his relatives were involved in a verbal altercation with the defendant and the defendant’s friends. A few days later, on June 29, 2006, the victim and his relatives assaulted the defendant.

Bridgeport held its Puerto Rican Day Parade on July 9, 2006. The victim and one of his cousins, Eddie Velez, walked to Seaside Park, where the parade concluded, to meet the victim’s son and the child’s mother. When the victim arrived at Seaside Park, he did not find whom he was looking for but, rather, found two of the defendant’s friends with whom the victim argued. The victim and Velez walked away from the defendant’s friends toward the area where the victim had seen his mother and other family members when he was walking to Seaside Park.

As the victim was hugging his mother and his son, he sensed someone behind him. When he turned around, he saw the defendant. The victim and the defendant argued, the defendant told the victim he wanted to fight, and the victim punched the defendant. The defendant fell to the ground, and a melee ensued. The victim punched the defendant while the defendant was on his knees, at which point the defendant pulled a butterfly knife from his back pocket and stabbed the victim in the stomach. The defendant removed the knife and ran away from the victim as another person stabbed the victim a second time. When the victim awoke in a hospital, he told the police that the defendant had stabbed him.

The defendant was later arrested in Florida. The jury found him guilty of assault in the first degree and carrying a dangerous weapon. This appeal followed.

I

The defendant’s first claim is that the court abused its discretion in denying his motion for a new trial. Specifically, the defendant argues that the verdict was based on physically impossible conclusions and that the state’s witnesses were so lacking in credibility that the conviction constituted a miscarriage of justice. We disagree.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Bolmer v. McKulsky, 74 Conn. App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).

A

The defendant first contends that the verdict was based on physically impossible conclusions. He argues that it would be physically impossible for him to inflict the wounds on the victim’s left side given that he is left-handed. The defendant also argues that it would have been impossible for him to have retrieved the knife from his right rear pocket, as -witnesses testified. Finally, the defendant asserts that it would have been impossible for the butterfly knife, which he allegedly used, to have inflicted the wound.

The following additional facts are relevant to the resolution of the defendant’s claim. At trial, the state presented witness testimony that the defendant pulled the knife from the right rear pocket of his pants. Additionally, a medical expert testified that the wounds suffered by the victim were consistent with those inflicted by someone who was holding the knife in his right hand. The defendant testified, however, that he is left-handed.

The defendant also introduced evidence that he asserts tends to show that the butterfly knife that the victim claims that the defendant used in the attack was incapable of causing the victim’s wounds. A medical expert testified that the victim’s deepest internal injury was approximately three inches from the surface of the skin. The only evidence as to the length of the defendant’s butterfly knife was from one witness who testified that the blade’s length was about the width of three fingers. The court estimated the width of three fingers to be about three inches. The testimony adduced at trial further indicated that Jio Villafane, a friend of the defendant, possessed a knife that was approximately two and one-quarter to two and one-half inches wide. The victim’s wound was only one and three-quarters inches wide.

After the conclusion of evidence, the defendant moved for a new trial. He argued that there was no evidence proving beyond a reasonable doubt that he had or used a weapon on July 9, 2006, that the only evidence of a knife at the scene was the large knife possessed by Villafane, one of the state’s witnesses, and that the evidence proved that the wounds were caused by a right-handed person. The court denied the defendant’s motion, and the defendant renews the argument on appeal.

“One cogent reason for overturning the verdict of a jury is that the verdict is based on conclusions that are physically impossible. [A] verdict should be set aside [w]here testimony is thus in conflict with indisputable physical facts, the facts demonstrate that the testimony is either intentionally or unintentionally untrue, and leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ.” (Internal quotation marks omitted.) State v. Hammond, 221 Conn. 264, 268, 604 A.2d 793 (1992). “Scientific evidence is relevant to a determination of what is physically impossible.” Id., 269.

Even if we assume arguendo that the jury accepted the defendant’s testimony that he is left-handed, this does not lead to the logical conclusion that he could not have used his right hand to stab the victim. “[I]t is axiomatic that jurors [i]n considering the evidence introduced in a case . . . are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life . . . .” (Internal quotation marks omitted.) State v. King, 289 Conn. 496, 521-22, 958 A.2d 731 (2008). It is well within the common knowledge of jurors that, even if a defendant was left-handed, he could use his right hand to stab a victim. Left-handedness is not such a condition that it renders someone’s right hand unusable. No scientific evidence was presented from which the jury could have concluded that the defendant could not use his right hand to stab the victim.

The defendant’s contention that his knife could not possibly have caused the victim’s injury similarly fails on appeal. He argues that the wound could have been caused by Villafane’s knife. The record simply does not support that contention. Villafane’s knife was too wide to have caused the wound the victim suffered. Furthermore, the defendant’s knife, contrary to his argument on appeal, was long enough to cause the victim’s injuries. There is no evidence tending to show that it was physically impossible for the defendant, using his butterfly knife, to cause the victim’s injuries. The defendant presented no evidence that the jury reasonably could not have found as it did.

B

The defendant also argues that the court abused its discretion in denying his motion for a new trial because the state’s witnesses were so lacking in credibility that the conviction constituted a miscarriage of justice. We disagree.

“In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Finally, it is beyond question that the trier of fact . . . the jury, is the arbiter of credibility. This court does not sit as an additional juror to reconsider the evidence or the credibility of the witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Rivera, 74 Conn. App. 129, 136, 810 A.2d 824 (2002). “Whether [a witness’] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Harris, 85 Conn. App. 637, 654, 858 A.2d 284, cert. denied, 272 Conn. 901, 863 A.2d 695 (2004).

The defendant claims that Villafane’s and the victim’s “intentional lies,” in addition to their biases toward the defendant, cast doubt on their credibility. Although it is true that the victim’s testimony differed from Vil-lafane’s in some respects, the jury was free to make credibility determinations and believe whatever testimony it found credible. Furthermore, the supposed biases against the defendant, namely, the ongoing feud between the victim and the defendant, as well as Vil-lafane’s plea agreement, allegedly hinging on his testifying against the defendant, merely provide further information on which the jury made its credibility determinations. The jury reasonably could have found either the victim, Villafane or both credible. The court did not abuse its discretion in declining to grant the defendant’s motion for a new trial.

II

The defendant next claims that the court improperly permitted the state to introduce a piece of evidence. The defendant argues that the picture of a butterfly knife, though not the knife used in this case, was prejudicial and misleading. Because the defendant did not preserve his claim at trial and did not adequately brief his request for plain error review, we do not address this claim.

The defendant claims on appeal that the introduction of the picture of the butterfly knife was prejudicial and misleading. At trial, however, he objected to the introduction of the exhibit because of a lack of foundation. The defendant made no mention of prejudice or misleading the jury in his objection. We therefore decline to review this claim because it was preserved improperly at trial.

The defendant argues that even if we find that the claim was improperly preserved at trial, the claim is reviewable under the plain error doctrine. He claims that the error is “so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995).

This state’s appellate courts have routinely stated that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008).

The defendant’s brief offers no plain error analysis. He merely presents the claim in a subsection of his brief in which he cites State v. Day, supra, 233 Conn. 849, but does not analyze the claim. We are not required to consider such inadequately briefed claims and will not do so in this instance.

Ill

The defendant’s final claim is that the court violated his federal and state due process rights by diluting the state’s burden of proof. Specifically, he contends that the court’s instruction that proof beyond a reasonable doubt is “proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion” misled the jury because of the use of the words “rational” and “hypothesis.” We do not agree.

At the conclusion of the trial, the court charged the jury. The court instructed that the state had the burden of establishing each element beyond a reasonable doubt. The court then gave the following instruction with regard to reasonable doubt: “Reasonable doubt. What does the term reasonable doubt mean? The phrase reasonable doubt has no technical or unusual meaning. The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess, or mere conjecture. It is such a doubt as in serious affairs that concern you, you would heed. That is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other persons who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.

“On the other hand, proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.” (Emphasis added.)

Following the court’s charge, the defendant objected, with regard to the reasonable doubt instruction, questioning the instruction that one person’s testimony is enough to establish guilt beyond a reasonable doubt on all charges. The court explained that this instruction accurately portrayed the law, and defense counsel responded: “Thank you. I only objected for technical reasons. I think your charge was excellent.”

Although the defendant claims that his general objection to the instructions preserved the issue for appellate review, he nevertheless requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). On appeal, the defendant does not claim, on the basis of his objection at trial, that the court improperly charged the jury. The defendant, therefore, must satisfy the familiar four prongs of State v. Golding, supra, 239-40, for his claim to succeed.

A defendant can prevail on an unpreserved claim only if “all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. The record in this case is adequate for review and the claim is of constitutional magnitude.

“In harmony with the objective of Golding, [a] defendant’s claim may be disposed of by focusing on whichever condition is most relevant in the particular circumstances. . . . A defendant may prevail under the third prong of Golding on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.” (Internal quotation marks omitted.) State v. Bivrell, 116 Conn. App. 556, 563, 976 A.2d 60 (2009).

“Reasonable doubt is a concept easily comprehended but difficult to define. That this is so is manifested by the numerous appeals engendered over the years by the definitions, clarifications and amplifications of the phrase, which various courts have attempted. Each apparently slight deviation from language that previously has been approved seems to spawn a new appeal. In the light of our established standard of review, however, the claim that a phrase taken in isolation dilutes the state’s burden of proof or casts some burden of proof on the defendant usually must fail. Our Supreme Court has pointed out frequently that when a jury instruction is challenged, the charge is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.” (Internal quotation marks omitted.) State v. Mussington, 87 Conn. App. 86, 90-91, 864 A.2d 75, cert. denied, 273 Conn. 914, 870 A.2d 1084 (2005).

The instruction given in this case is nearly identical to the instruction this court upheld in State v. Howard, 88 Conn. App. 404, 428-29, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005). Although the defendant argues that this instruction was inappropriate and misleading under the facts of this case, we see no reason why this case is distinguishable from the myriad other cases in which this court or our Supreme Court has approved of similar language. See, e.g., State v. Wallace, 290 Conn. 261, 962 A.2d 781 (2009); State v. Johnson, 288 Conn. 236, 951 A.2d 1257 (2008); State v. Jones, 82 Conn. App. 81, 841 A.2d 1224, cert. denied, 269 Conn. 912, 852 A.2d 741 (2004). We conclude that the instruction in this case did not dilute the state’s burden of proof and thus there was no constitutional violation. The defendant’s final claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a). The jury found the defendant not guilty of those charges.

       Villafane testified that on the day of the fight, he had an eight inch hunting knife, which he unsheathed and waved around to force the other fighters to retreat.

       The defendant, in his motion for a new trial, also argued that the admission of “an online description of a butterfly knife” and the at the scene identification, made by the victim’s father and uncle, of Jio Villafane and Anthony Villafane, who are brothers, as the people who stabbed the victim required a new trial. He does not, however, raise these arguments on appeal.

       See footnote 5 of this opinion.

       Practice Book § 60-5 states in relevant part: “The [reviewing] court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The reasonable doubt instruction challenged in State v. Howard, supra, 88 Conn. App. 428 n.9, reads: “Let’s talk about reasonable doubt. The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture. It is not a doubt suggested by counsel which is not warranted by the evidence. It is such a doubt as, in serious affairs that concern you, you would heed. That is, such doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.” (Internal quotation marks omitted.)


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    PASQUALE RAFFONE v. INDUSTRIAL ACCEPTANCE CORPORATION ET AL.
    (AC 30561)
    Gruendel, Lavine and Mihalakos, Js.

      Argued October 28, 2009
    officially released, February 9, 2010

      Pasquale Raffone, pro se, the appellant (plaintiff).

      Michael E. Healey, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

This case is about a red Ford F-350. The pro se plaintiff, Pasquale Raffone, appeals from the judgment of the trial court in favor of the defendant Industrial Acceptance Corporation. He raises a bevy of claims challenging the factual findings, evidentiary rulings and credibility determinations of the court, none of which merit discussion. He further claims that the court improperly precluded him from exceeding the scope of his pleadings at trial and failed to enforce certain subpoenas he issued. We affirm the judgment of the trial court.

This litigation centers on a dispute between the plaintiff and the defendant finance company over the alleged repossession of a Ford F-350 truck (vehicle). The plaintiffs handwritten complaint dated March 23, 2007, was in narrative form and did not specify any particular cause of action. That complaint alleged in relevant part: “On or about [January 3, 2007, the vehicle] was found to be missing . . . . I . . . contacted my sister . . . and asked her to call the East Haven police department [department] [to] report my vehicle stolen or missing. As I was and still am incarcerated. . . . Upon contacting the [department], we were informed [that] they impounded my vehicle. A person or persons were in possession of my vehicle and were pulled over and apprehended for alleged drug possession. ... I then had a friend of mine make contact with the [department] to find out what he had to do in order to retrieve my vehicle from the police impound. He was told that my vehicle had been released to [the defendant]. This was done without inquiry or notification to myself or my sister . . . nor [with my] permission .... I [have] since come to find out that [the defendant] was attempting to recover my vehicle simultaneously with my incarceration.

“I refinanced the amount of [$5000] with [the defendant] in [November, 2006]. The balance of my initial loan was paid off and that account was closed out. I received the balance from the new loan in the form of a check for [$2000]. My [first] payment wasn’t due until [December 12, 2006] and [the defendant] recovered my vehicle around [January 14, 2007]. My loan was not in default. My [Florida] registration had expired [on December 31, 2006] but my Connecticut registration was still active. I had also acquired a different [and] new policy from Geico insurance.

“This vehicle was purchased in the amount of [$12,900]. I put a cash deposit down in the amount of [$8000]. Also I had additional [moneys] into this [vehicle, i.e.] TracRac ladder system—[$700], sprayed on bed liner—[$500], aluminum tool box—[$250]. So with the equity and incentives I’m claiming a total of [$9450]. Also my personal property or tools in the amount of [$2000] has not been returned or recovered to date via [the department]. I will be asking for a total claim in the amount of [$11,450].”

In its answer, the defendant stated that it “has no knowledge and leaves the [p]laintiff to his burden of proof.” The defendant subsequently filed a disclosure of defense, which stated: “The plaintiff defaulted in his initial payment. That plaintiff made no subsequent payments, the dealer was notified of the default and satisfied the amount due in full.”

Prior to trial, the plaintiff filed a “motion for offer of judgment by plaintiff” that presented the defendant with two options. First, the plaintiff requested that the defendant reimburse him $8000. Alternatively, the plaintiff offered to “[forgo] any further action against the defendant ... if the defendant is in agreement to guarantee a small business loan in the amount of $20,000 upon the plaintiff’s release from confinement in approximately [sixteen] to [eighteen] months. The terms will be as follows: [1] [$14,000] to be set aside for the sole purchase of a comparable vehicle, [the defendant] to retain title until such time [as] the loan is satisfied; [2] [$3000] in the form of a check made payable to the plaintiff for the purpose of business re-start, tools etc.; [and] [3] [$3000] in the form of a check made payable to the plaintiff, if agreement is accepted as specified, at time of notification . . . .” The defendant declined that offer. The plaintiff thereafter filed an “offer of compromise” in which he offered “to settle this matter for the total sum of $11,300 and upon payment agrees to dismiss the complaint against the defendant.” The defendant again declined, and the matter proceeded to trial on September 19, 2008.

The plaintiffs case at trial consisted solely of his testimony. He alleged that the defendant improperly repossessed the vehicle without providing him notice. The defense consisted of testimony from the plaintiff and Dolores Caroche, the credit manager for the defendant, as well as four documents admitted without objection as full exhibits. In his testimony, the plaintiff conceded that he had failed to make any payments to the defendant on the refinanced loan. In addition, Caroche testified that the defendant had a relationship with Auto Sales, Inc., the dealership from which the plaintiff purchased the vehicle, providing that the dealership would hold the defendant “harmless and take recourse and assignment back on obligations that go bad.” Caroche further testified that the defendant routinely exercised that recourse “with any dealer on a first payment default.” Caroche averred that the defendant played no role in repossessing the vehicle. Rather, she explained that the defendant had exercised its right of recourse and assigned its interest in the vehicle to Auto Sales, Inc., which, in turn, paid the defendant the remaining balance on the plaintiffs loan.

In its September 29, 2008 memorandum of decision, the court found in favor of the defendant. It stated: “The plaintiff brought this action against [the defendant]. The gravamen of his complaint was that the defendant was responsible for the loss of his truck, which was repossessed and allegedly sold while he was incarcerated. . . . The plaintiff had financed [the vehicle] with the defendant. He refinanced the vehicle with the defendant on November 17, 2006. On November 6, 2006, the plaintiff sent the defendant a check for $642.09, but the check was written on a closed account and was not credited to his account with the defendant. On December 29, 2006, the plaintiff was arrested and incarcerated and has been incarcerated since that time. On January 10, 2007, the East Haven police arrested the operator of the plaintiffs truck and the truck was impounded. The . . . department contacted the defendant as hen holder of record, and the defendant arranged to have the truck towed from the police lot. No evidence was presented as to what happened to the truck after it was released from the police. . . .

“The plaintiff did not present a clear argument as to the legal basis of his claim. The court, as trier of fact in this matter, reviewed chapter 669, part XI of the Connecticut General Statutes, which covers retail installment sales financing. Evidence was presented that the . . . department contacted the defendant as the lien holder of record. The title to the truck was, at least, as official records indicated, in the possession of the defendant. General Statutes § 36a-785 provides the authority to the holder of the contract to retake possession. Since the only attempt at payment was a check on a closed account, the authority of statutory law is with the defendant. Judgment may enter in favor of the defendant.” From that judgment, the plaintiff appeals.

We begin by noting that the court’s determination that “[n]o evidence was presented as to what happened to the [vehicle] after it was released from the police” finds support in the record before us. Caroche testified that the defendant “played no role in repossessing the vehicle” and further gave no “directive to any towing facility to go get the vehicle.” The court, as the sole arbiter of credibility; see Somers v. Chan, 110 Conn. App. 511, 530, 955 A.2d 667 (2008); was free to credit that testimony.

We next briefly address the plaintiffs contention that the court improperly failed to enforce certain subpoenas issued by the plaintiff. At no time during trial did the plaintiff articulate such a request. His failure to do so is fatal to his claim on appeal. As this court has observed in addressing a plaintiff s failure to make such a request, “[e]nforcement of a subpoena is not self-executing in the event that a subpoenaed party fails or refuses to comply. We cannot ascribe impropriety to a court’s failure to order compliance when those seeking enforcement never notified the court of noncompliance nor asked for compliance.” Cutler v. Greenberg, 60 Conn. App. 752, 754-55, 761 A.2d 237 (2000), cert. denied sub nom. Cutler v. Estate of Agostinelli, 255 Conn. 943, 769 A.2d 58, cert. denied, 534 U.S. 1056, 122 S. Ct. 648, 151 L. Ed. 2d 565 (2001).

Last, we consider the plaintiffs claim that the court improperly precluded him from presenting evidence and claims exceeding the scope of his pleadings. At trial, the plaintiff alleged that the terms of his refinance loan with the defendant contained “a charge of greater than legal interest.” The plaintiff further claimed that the defendant’s alleged conduct in repossessing his vehicle violated certain provisions of the General Statutes. Because the plaintiff failed to raise those allegations in his pleadings, the defendant immediately objected.

“The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Citations omitted; internal quotation marks omitted.) Matthews v. F.M.C. Corp., 190 Conn. 700, 705, 462 A.2d 376 (1983). On our plenary review of the pleadings in the present case, we concur with the court’s assessment that the plaintiff at trial sought to exceed the allegations contained therein. The court properly sustained the defendant’s objections on that ground.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs complaint also named the East Haven police department as a defendant. The East Haven police department moved to dismiss the action against it for lack of subject matter jurisdiction, which motion the court granted. Because the East Haven police department is not a party to this appeal, we refer to Industrial Acceptance Corporation as the defendant.

       In electing to proceed pro se, the plaintiff was “bound by the same rules of evidence and procedure as those qualified to practice law.” Cersosimo v. Cersosimo, 188 Conn. 385, 394, 449 A.2d 1026 (1982). Although certain exhibits were marked for identification by the plaintiff, they were not introduced as full exhibits and, hence, were not properly before the finder of fact. See, e.g., Barry v. Quality Steel Products, Inc., 280 Conn. 1, 19-20, 905 A.2d 55 (2006). When the plaintiff first presented those materials, the defendant objected. In accordance with the maxim that “[although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law”; (internal quotation marks omitted.) Rivnak v. Rivnak, 99 Conn. App. 326, 332 n.4,913 A.2d 1096 (2007); the court informed the plaintiff of the distinction between an exhibit marked for identification and a full exhibit. In response to the defendant’s objection, the court stated that the plaintiffs exhibits “will be marked for identification only at this time.” The plaintiff thereafter made no effort to admit them as full exhibits. His failure to do so precludes any complaint on appeal as to the court’s refusal to consider those materials and demonstrates that a pro se “party who, unskilled in such matters, seeks to remedy some claimed wrong by invoking processes which are at best technical and complicated, is very ill advised and assumes a most difficult task.” O’Connor v. Solomon, 103 Conn. 744, 745, 131 A. 736 (1926).

       At trial, the plaintiff informed the court that Auto Sales, Inc., no longer was in business.


author: BEACH, J.

text:
    STATEWIDE GRIEVANCE COMMITTEE v. JONATHAN I. RAPOPORT
    (AC 30758)
    Lavine, Beach and Pellegrino, Js.

      Argued November 17, 2009
    officially released February 9, 2010

      Jonathan I. Rapoport, pro se, the appellant (defendant).

      Kimberly A. Knox, with whom was Kenneth J. Bartschi, for the appellee (plaintiff).
   Opinion

BEACH, J.

This is an appeal by Jonathan I. Rapoport, an attorney suspended from the practice of law, from the judgment of the trial court denying his application for reinstatement to the bar of this state. On appeal, he claims that (1) the court improperly applied an abuse of discretion standard in its consideration of the report and recommendation of the standing committee on recommendations for admission to the bar for Fairfield County (committee), (2) when the court accepted the committee’s recommendation, it improperly disregarded the order suspending him from the practice of law for five years and (3) the court and the committee violated his due process rights in various ways. We affirm the judgment of the trial court.

The record discloses the following procedural history and relevant facts. In April, 2001, Rapoport pleaded guilty to three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). Rapoport admitted to having fondled and manipulated the genitalia of three boys, who were all under the age of sixteen. The court, Hon. Martin L. Nigro, judge trial referee, sentenced Rapoport to thirty years incarceration, execution suspended after three years, and thirty-five years probation.

Following Rapoport’s felony conviction, the statewide grievance committee filed a presentment. Pursuant to Practice Book § 2-40 (e), the matter was referred to Judge Nigro, who was the sentencing judge. Following a hearing, Judge Nigro issued a decision on January 3, 2002, in which he concluded that Rapoport “should be suspended from the practice of law for a term of five years, retroactive to September 6, 2001, that is, suspended until September 6, 2006. By that time, he shall have been released from the custody of the commissioner of correction, either from confinement or parole, his electoral rights shall be restored ... he shall be under the supervision of the probation department and of special services, and shall have had the opportunity to demonstrate whether he would be worthy for reinstatement under the provisions of Practice Book § 2-53 (d).”

Rapoport was released from prison in April, 2004. In August, 2007, he filed in the Superior Court an application for reinstatement to the bar. Pursuant to Practice Book § 2-53 (a), the Superior Court referred the application to the committee. Following hearings on the matter, the committee issued a report. The committee found that Rapoport was not presently fit to practice law and recommended that the court deny Rapoport’s application for reinstatement.

Following a hearing, the court, a three judge panel, issued a memorandum of decision. The court determined that the committee did not act arbitrarily, unreasonably, in abuse of its discretion or without a fair investigation of the facts. Accordingly, it accepted the committee’s recommendation and denied Rapoport’s application for reinstatement to the bar. This appeal followed.

I

Rapoport first claims that the court improperly applied an abuse of discretion standard to the consideration of the committee’s recommendation. We disagree.

The issue of whether the appropriate standard of review was used presents a question of law over which our review is plenary. See Adams v. State, 259 Conn. 831, 837, 792 A.2d 809 (2002); see also Scott v. State Bar Examining Committee, 220 Conn. 812, 821-22, 601 A. 2d 1021 (1992).

The standard that the trial court is to apply when reviewing the committee’s recommendation is well settled. “The standard of review in cases involving admission or readmission to the bar has been clear since it was announced by this court in 1906 in O’Brien’s Petition, [79 Conn. 46, 55-56, 63 A. 777 (1906), overruled in part on other grounds by In re Application of Binan, 157 Conn. 67, 72, 244 A.2d 608 (1968)].” Scott v. State Bar Examining Committee, supra, 220 Conn. 823. In O’Brien’s Petition, supra, 55, our Supreme Court “held that the [Superior Court] had ‘rightly declined to hear evidence as to questions the decision of which was entrusted to the State bar examining committee’ and that it was ‘proper for [the court] to inquire whether the approval of the bar was withheld after a fair investigation of the facts.’ We have since adhered to that rule generally, stating that the issue before the court is whether the committee or the bar . . . acted arbitrarily or unreasonably or in abuse of its discretion or without a fair investigation of the facts.” (Emphasis added.) In re Application of Warren, 149 Conn. 266, 273, 178 A.2d 528 (1962); see also In re Application of Koenig, 152 Conn. 125, 133, 204 A.2d 33 (1964) (“the court will determine whether the committee acted fairly and reasonably or from prejudice and ill will in its consideration of the application”).

Rapoport does not claim that the court improperly failed to apply this standard but, rather, he disagrees with the use of the standard itself in the readmission context. Citing the different sections of the rules of practice for admission to the bar; Practice Book § 2-3 through 2-10, 2-12; and reinstatement to the bar; Practice Book § 2-53; he argues that it is improper to employ the same standard in cases involving readmission to the bar as is used in cases involving admission to the bar. He urges that a less deferential standard should be used in cases involving readmission.

Our Supreme Court very clearly has stated the standard to be employed in cases involving readmission to the bar. It is well established that “the trial court must determine whether the standing committee, in recommending a denial of an application, ‘acted arbitrarily or unreasonably or in abuse of its discretion or without a fair investigation of the facts.’ Scott v. State Bar Examining Committee, [supra, 220 Conn. 818].” Statewide Grievance Committee v. Klein, 86 Conn. App. 338, 340, 862 A.2d 303 (2004).

We decline Rapoport’s invitation to change this standard. It is not within our power as an intermediate appellate court to overrule Supreme Court authority. See State v. Fuller, 56 Conn. App. 592, 609, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000).

II

Rapoport next claims that the court improperly disregarded Judge Nigro’s January 3, 2002 order, which imposed a five year suspension from the practice of law, when it determined that his application should not be granted. We disagree.

Review of the court’s decision, following the committee’s recommendation, is plenary. See Scott v. State Bar Examining Committee, supra, 220 Conn. 823 (“[b]ecause the trial court exercises no discretion, but rather is confined to a review of the record before the [committee], we are not limited to the deferential standard of ‘manifest abuse’ or ‘injustice’ when reviewing its legal conclusions about the adequacy of the evidence before the [committee]”).

The following additional facts are relevant to our resolution of this issue. In its report, the committee determined that Rapoport did not possess the present fitness to practice law and issued a recommendation that the court deny Rapoport’s application for reinstatement. In determining whether Rapoport had met his burden of proving present fitness to practice law, the committee considered, inter alia, his moral character in light of the amount of time that had passed since his offenses. The committee noted that “for his entire adult life, [Rapoport] engaged in illegal and immoral conduct. ‘A redemptive and rehabilitative life requires the passage of time for documentation. The more serious the misconduct, the more time required to meet the burden of moral trustworthiness.’ In re Application of Avcollie, 43 Conn. Sup. 13, 22-23, 637 A.2d 409 (1993). Considering the nature and seriousness of [Rapoport’s] misconduct, the committee feels that insufficient time has passed for [Rapoport] to be deemed morally trustworthy.” (Emphasis added.) In its memorandum of decision, the court determined that “[t]he committee’s concern about the short duration of time since [Rapo-port’s] release from prison and his potential risk to the community are borne out by the evidence presented at the hearing and the record as a whole.”

Rapoport argues that Judge Nigro ordered suspension for five years and five years only, and that it was thus improper for the committee to determine that he was not fit to practice law for the reason that an insufficient period of time had passed since his offenses and for the court to take that determination of the committee into consideration when denying his application for reinstatement. The issue of whether a sufficient period of time had elapsed following suspension for him to be reinstated, Rapoport contends, was not before the committee or the court because it conclusively had been determined by Judge Nigro’s order.

The court’s ruling simply was not inconsistent with Judge Nigro’s order. Judge Nigro’s order imposed sanctions following a presentment proceeding. 6Judge Nigro ordered that Rapoport be “suspended from the practice of law for a term of five years,” after which time he “shall have had the opportunity to demonstrate whether he would be worthy for reinstatement under the provisions of Practice Book § 2-53 (d).” After more than five years had passed, Rapoport applied for reinstatement pursuant to Practice Book § 2-53.* * The committee then properly examined whether Rapoport possessed present fitness to practice law. “[T]he appropriate inquiry when deciding whether to grant admission to the bar is whether the applicant has present fitness to practice law. . . . Fitness to practice law does not remain fixed in time. ” (Emphasis in original; internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 88 Conn. App. 523, 531, 871 A.2d 380 (2005), aff'd, 282 Conn. 1, 917 A.2d 966 (2007). The committee considered, inter alia, the nature of Rapoport’s misconduct and his potential risk for reoffending. It reasoned that Rapoport at that time did not possess “good moral character necessary for readmission to the bar.”

It was not inconsistent with Judge Nigro’s order for the tribunals to consider the passage of time, along with other factors, such as the nature of Rapoport’s misconduct and his potential risk for reoffending, in determining whether he possessed good moral character necessary for readmission to the bar. Judge Nigro’s order, indicating that Rapoport was eligible to apply for readmission after five years, did not explicitly or implicitly limit the discretion of the committee after five years. “An applicant for readmission to the bar must be possessed of such standards of honor and honesty and have such an appreciation of the distinctions between right and wrong in the conduct of men toward each other as will make him a fit and safe person to engage in the practice of law. . . . Good moral character is a necessary and proper qualification for admission to the bar.” (Citation omitted.) In re Application of Koenig, supra, 152 Conn. 132. “Character is not measured in the crucible of a single instance and the assessment for reentry appropriately centers on the question of present fitness.” In re Application of Pagano, 207 Conn. 336, 345, 541 A.2d 104 (1988). “An attorney at law admitted to practice, and in the exercise of the right thus conferred to act as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the implied condition that his continued enjoyment of the right conferred is dependent upon his remaining a fit and safe person to exercise it, so that when he, by misconduct in any capacity, discloses that he has become or is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney, his right to continue in the enjoyment of his professional privilege may and ought to be declared forfeited. As important as it is that an attorney be competent to deal with the oftentimes intricate matters which may be entrusted to him, it is infinitely more so that he be upright and trustworthy.” (Internal quotation marks omitted.) Id.

Ill

Rapoport next argues that his due process rights to a fair trial were violated by (1) the failure of the committee to conduct a separate and independent investigation of his application, (2) certain acts of the disciplinary counsel during the committee hearings, (3) the committee’s prejudice against him and (4) the committee’s having made various clearly erroneous factual findings. We examine each claim in turn.

A

Rapoport claims that Practice Book § 2-53 requires the committee to conduct a separate and independent investigation of his application for reinstatement apart from the committee hearings and that it improperly failed to do so. Rapoport did not raise this claim before the court. An unpreserved claim may be reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine embodied in Practice Book § 60-5. See Statewide Grievance Committee v. Gifford, 76 Conn. App. 454, 461, 820 A.2d 309 (2003). Rapoport, however, fails to seek review of his unpreserved claim under Golding or the plain error doctrine. “It is inappropriate for an appellate court to engage in a level of review that has not been requested.” State v. Elson, 116 Conn. App. 196, 238, 975 A.2d 678 (2009). “Where a [party] fails to seek review of an unpreserved claim under either Golding or the plain error doctrine, this court will not examine such a claim.” (Internal quotation marks omitted.) State v. Parham, 70 Conn. App. 223, 231 n.9, 797 A.2d 599 (2002). Therefore, we decline to review this claim.

B

Rapoport next claims that his due process rights were violated by certain acts of the disciplinary counsel during the committee hearings.

1

Rapoport argues that because the proceedings are nonadversarial in nature, the committee acted improperly by permitting the state disciplinary counsel to cross-examine Rapoport’s witnesses.* **** Because he fails to cite authority or to provide adequate analysis in support of this claim, we decline to afford it review. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]).

2

Rapoport next argues that the disciplinary counsel was biased against him. He contends that she acted improperly by contacting and conferring with witnesses who were opposed to his reinstatement while failing to do the same with respect to witnesses who were in favor of his reinstatement. We do not have before us the transcripts of the committee hearings and, accordingly, decline to review this claim due to the inadequacy of the record. Eremita v. Morello, 111 Conn. App. 103, 107, 958 A.2d 779 (2008) (“[a]ppellants bear the burden of affording this court an adequate record for review” [internal quotation marks omitted]).

3

Rapoport claims that certain statements made by the disciplinary counsel during her summation before the committee were designed to mislead and to frighten the committee into recommending a denial of Rapoport’s application and thereby denied him of his right to due process. We disagree.

Rapoport first challenges two statements made by the disciplinary counsel regarding the issue of whether he would be able to meet his burden of proving fitness to practice law. Citing In re Application of Avcollie, supra, 43 Conn. Sup. 13, Rapoport argues that the disciplinary counsel misstated the law when she commented that there may be some question whether he “has the requisite or will ever have the requisite moral character to be admitted to the practice of law” and that some acts demonstrate such a lack of moral fitness “that I think they could preclude readmission to the bar at any point in the future.” The disciplinary counsel’s comments addressed the question of whether Rapoport would be able to prove fitness to practice law, which question is the focus of the readmission process. See In re Application of Pagano, supra, 207 Conn. 345 (readmission process focuses on issue of present fitness to practice law). In In re Application of Avcollie, supra, 27, the court stated: “The law requires a reformation of character as demonstrated by an applicant’s more recent life and conduct. The more egregious the misconduct resulting in disbarment, the greater the proof of moral character and trustworthiness required for reinstatement. Declarations of good moral character do not necessarily refute the evidence of bad moral character reasonably inferable from the prior egregious misconduct.” The contested statements in the disciplinary counsel’s argument were not inconsistent with this proposition.

Rapoport next argues that the disciplinary counsel “inventfed]” a breach of duty by arguing that Rapoport betrayed a trust and his family’s confidence in him. It was not improper for the disciplinary counsel, in discussing whether Rapoport was fit to practice law, to discuss the aspects of Rapoport’s crimes that might reflect on moral trustworthiness.

Rapoport also argues that the disciplinary counsel improperly stated that Rapoport’s conduct was predatory. In support of his argument, Rapoport refers to the testimony of Eliza Borecka, a licensed clinical social worker who testified in support of the application for reinstatement. At the April 17, 2001 sentencing hearing following Rapoport’s criminal trial, Borecka testified that Rapoport is not “predatory” in the sense that he takes a long time to become emotionally attached to the victim before he “grooms” them for sexual acts. He argues that the characterization by the disciplinary counsel of his conduct as predatory was contrary to “established facts.” Rapoport cannot prevail on this tack. Borecka’s testimony was not “established fact,” and the committee was not required to credit it. Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983) (“[a] trier of fact is free to reject testimony even if it is uncontradicted”).

Rapoport also argues that the disciplinary counsel misstated facts when she questioned the existence of adequate conditions on his reinstatement and whether potential future clients would be aware that he may only be able to represent people in limited circumstances. He argues that this statement was factually inaccurate because he had expressed his willingness to inform each prospective client of his offense and to have a practice monitor. It was not improper for the disciplinary counsel to question whether these conditions would protect the public adequately.

C

Rapoport next claims that the committee was prejudiced against him. He argues that “[t]o conclude that a committee has not been motivated by prejudice, it is not sufficient to observe that an applicant has been afforded an opportunity to present whatever evidence he wished to; it is more important to see whether the committee has drawn the proper conclusions from the evidence before it. Sometimes a committee’s conclusions are themselves evidence of prejudice.” Rapoport claims that the committee was prejudiced against him because of its conclusion that, at the present time, he did not possess the good moral character necessary for readmission. This claim is so obviously without merit that little further discussion is necessary.

We agree with the court’s determination that “[t]he record is devoid of any bias, prejudice or ill will towards [Rapoport]. . . . The committee credited the long legal career of [Rapoport] and noted [Rapoport’s] compliance with the conditions of his probation and his sexual offender treatment. The record reflects a fair and thorough investigation of the facts.” In Keeney v. Buccino, 92 Conn. App. 496, 518, 885 A.2d 1239 (2005), we stated that “[j]ust because a court’s statement of findings and conclusions is adverse to a party does not make the statement unfairly prejudicial.” Accordingly, Rapoport cannot prevail on this claim.

D

Rapoport also challenges the committee’s findings that (1) “for his entire adult life [Rapoport] has engaged in illegal and immoral conduct” and (2) he was a moderate risk to reoffend. We disagree.

We review the committee’s findings of fact under the clearly erroneous standard of review. See Friedman v. Connecticut Bar Examining Committee, 77 Conn. App. 526, 529, 824 A.2d 866 (2003) (“Superior Court’s role in reviewing a petition for admission is not that of factfinder” [internal quotation marks omitted]), appeal dismissed, 270 Conn. 457, 853 A.2d 496 (2004); see also Machado v. Statewide Grievance Committee, 93 Conn. App. 832, 840, 890 A.2d 622 (2006) (reviewing committee in attorney grievance appeal is trier of fact); Henry v. Statewide Grievance Committee, 111 Conn. App. 12, 21,957 A.2d 547 (2008) (factual findings reviewed under clearly erroneous standard).

1

Rapoport’s testimony before the committee supports the committee’s finding that he had engaged in illegal and immoral conduct for his entire adult life.

At the committee hearings, Rapoport testified, in relevant part, as follows:

“[Disciplinary Counsel]: And there were three children who were the victims of the criminal charges. Is that correct?
“[The Witness]: Correct.
“[Disciplinary Counsel]: And there were a total of how many victims all together?
“[The Witness]: Over my entire lifetime?
“[Disciplinary Counsel]: Yes.
“[The Witness]: Probably six or seven.
“[Disciplinary Counsel]: Six or seven.
“[The Witness]: Yeah.
“[Disciplinary Counsel]: Okay. And can you tell us basically the years spanning this period of time?
“[The Witness]: Oh. Probably starting in my twenties and finishing up with what you’re aware of here.”

Rapoport argues that he voluntarily disclosed involvement with all other victims, which incidents were not criminally actionable and were not the subject of any criminal adjudication. This argument fails to support his claim. Rapoport testified before the committee that there were approximately six or seven victims and that he began victimizing them when he was in his twenties. Based on this testimony, the finding of the committee that Rapoport had engaged in illegal and immoral conduct for his entire adult life was not clearly erroneous but finds support in the record.

2

Rapoport also takes issue with the committee’s findings regarding his risk of reoffending. In its report, the committee, when reciting the evidence at issue, noted that Rapoport had been given numerous tests by Bor-ecka and others to determine Rapoport’s risk of reof-fending. Referencing exhibit C, which was a sex offender risk assessment report prepared by Dennis Gibeau, a clinical psychologist, the committee noted that “ [t]he tests report a mild risk in terms of dangerousness but a moderate risk in terms of relapse. . . . [E]xhibit C . . . suggests that the likelihood of [Rapo-port] being reconvicted of a sexual offense increases to a 15 percent chance after fifteen years. . . . Borecka testified that current testing given to [Rapoport] places him in a low risk to reoffend.” (Citation omitted.)

Rapoport argues that it was clearly erroneous for the committee to find that both Borecka, his treating therapist, and Gibeau found him to be a moderate risk to reoffend. He argues that Borecka found him to be a low risk to reoffend and that it was a “gross mischarac-terization of the evidence for the committee to conclude that [he] is presently a moderate risk to reoffend.” Rapo-port cannot prevail on his argument.

Rapoport mischaracterizes the committee’s recitation of the evidence. The committee did not expressly find that Borecka concluded that he was a moderate risk to reoffend. Rather, the committee, citing Gibeau’s report, noted that tests revealed that Rapoport was a moderate risk to reoffend. The committee subsequently noted that Borecka testified that, under current testing, Rapoport was a low risk to reoffend. Later in its report, the committee found that “there is some element of risk of [Rapoport] reoffending.” The committee also cited Rapoport’s “potential risk for reoffending” as one reason for finding him unfit or unsafe to practice law and thereby recommending the denial of his application for reinstatement. There was evidence before the committee, from both Borecka and Gibeau, that there was some risk that Rapoport would reoffend. Accordingly, the committee’s finding that there was “some element of risk” of Rapoport reoffending was supported by the evidence.

The challenged findings of the committee are supported by the record. Accordingly, the panel acted properly in determining, with respect to the challenged findings, that the committee did not abuse its discretion or act without a fair investigation of the facts.

The judgment is affirmed.

In this opinion the other judges concurred.

       At that time, the violations were unclassified felonies carrying the potential of ten years incarceration for each count.

         Practice Book § 2-53 (a) provides in relevant part: “The standing committee on recommendations shall investigate the application, hold hearings pertaining thereto and render a report with its recommendations to the court. The court shall thereupon inform the chief justice of the supreme court of the pending application and report, and the chief justice shall designate two other judges of the superior court to sit with the judge presiding at the session. Such three judges, or a majority of them, shall determine whether the application should be granted.”

       The burden of proving fitness is on the applicant. See In re Application of Warren, supra, 149 Conn. 274.

       In determining that the committee had not acted in abuse of its discretion in recommending that Rapoport’s application for readmission be denied, the court stated: “[0]ur courts have long recognized that a ‘redemptive and rehabilitative life requires the passage of time for documentation. The more serious the misconduct, the more time required to meet the burden of moral trustworthiness.’ In re Application of Avcollie, supra, 43 Conn. Sup. 22-23. It is irrefutable that the crimes . . . which [Rapoport] admitted and [of which he] was ultimately convicted, directly implicate the moral parameters of trustworthiness and fitness to practice law. This is particularly true in this case, where the evidence presented to the committee established that the multiple victims involved were all minors, entrusted to [Rapoport’s] care, and with whom he had long established relationships. The committee referenced allegations of prior unidentified victim misconduct and also noted that ‘for his entire adult life [Rapoport] has engaged in illegal and immoral conduct.’ The committee’s concern about the short duration of time since [Rapoport’s] release from prison and his potential risk to the community are borne out by the evidence presented at the hearing and the record as a whole.”

       “Hearings concerning the eligibility to practice law of attorneys who have been convicted of a felony in Connecticut are governed by General Statutes § 51-91a and Practice Book § 28B [now § 2-40]. The statute gives the trial court the power to determine, under the circumstances of each case, what sanction is appropriate. Under the statute, an attorney convicted of a felony in Connecticut may be disbarred, suspended, or disciplined in some other manner, at the discretion of the trial court.” Statewide Grievance

        Committee v. Glass, 46 Conn. App. 472, 476-77, 699 A.2d 1058 (1997); see also Practice Book § 2-40 (e).

       Practice Book § 2-53 (d) provides in relevant part: “An attorney who has been suspended from the practice of law in this state for a period of one year or more shall be required to apply for reinstatement in accordance with this section . . . .”

       Rapoport claims due process violations under both the federal and state constitutions. He has not provided a separate analysis under the state constitution and has therefore waived any claim that the state constitution affords him greater protection than the federal constitution. See State v. Sinvil, 270 Conn. 516, 518 n.l, 853 A.2d 105 (2004).

       In light of Rapoport’s ability to present evidence before the committee without apparent limitation, it is difficult to see how he could have been harmed by whatever vague shortcoming is claimed.

       We note that disciplinary counsel have broad powers. See, e.g., Practice Book §§ 2-34A (b) (4) and 2-53 (b). Rapoport does not suggest who else would cross-examine witnesses, and it would seem odd to avoid cross-examination altogether.

       We again note that disciplinary counsel has broad powers; see footnote 9 of this opinion; including the ability to subpoena witnesses. See Practice Book § 2-34A (b) (4).

       The statewide grievance committee provided excerpts from the transcript of the committee hearings in the appendix to its brief. These excerpts, however, do not render the record adequate with respect to this particular issue.

       Rapoport has not provided us with the transcripts of the committee hearings. The statewide grievance committee has included some excerpts in the appendix to its brief that contain some of the disciplinary counsel’s statements at issue. For purposes of this argument, we will treat Rapoport’s recitation in his brief of the relevant portions of the transcript, which recitation is not contested by the statewide grievance committee, as being an accurate recitation of the portions of the transcript at issue.

       The disciplinary counsel made two contested statements in the context of the following argument: “I think with regard to present fitness to practice law, [Rapoport] may well be intellectually fit to practice law, but I frankly have serious questions as to whether ... he has the requisite or will ever have the requisite moral character to be admitted to the practice of law. And as a result of that position, my office is taking a position of opposition to this application. We oppose this application. There are, I think, some acts that demonstrate such a lack of moral fitness at a human level that I think, they could preclude readmission to the bar at any point in the future. And I think the types of acts that [Rapoport] was convicted of over the period of time that they occurred, the effects that those acts have had, the lingering effects on a number of victims, some of whom were very, very vulnerable victims . . . the vulnerabilities being very well known to [Rapoport].” (Emphasis added.)

       Rapoport also claims that this finding by the committee was clearly erroneous. The committee, however, had evidence before it from which it could have made this finding. The committee stated in its report that Rapoport “remains on probation for the next thirty years. He must continue to undergo sexual offender therapy, he cannot work or travel without approval of his probation officer, and he must disclose to each and every potential client his conviction. Additionally, there is some element of risk of [Rapo-port] reoffending. Violation of any condition of his probation may result in his reincarceration. . . . Considering the nature of the [Rapoport’s] misconduct, the relatively short period of time since his release from prison and the potential risk for reoffending, the committee finds that [Rapoport] at this time is an unfit or unsafe person to be entrusted with the responsibilities and obligations of an attorney.”


text:
    STATE OF CONNECTICUT v. HUDEL CLIFTON GAMBLE
    (AC 29140)
    Gruendel, Beach and Borden, Js.

      Argued December 3, 2009
    officially released February 9, 2010

      William B. Westcott, special public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Melissa Patterson, deputy assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Hudel Clifton Gamble, appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-55 (a) (3) and 53a-8 The defendant claims that the court improperly (1) accepted the jury’s verdict finding him guilty of manslaughter in the first degree with a firearm under the theory of accessorial liability and not guilty of the same crime under the theory of principal liability, thereby (a) violating his right against double jeopardy, (b) resulting in his being convicted of the nonexistent crime of being an “accessory,” (c) resulting in a legally inconsistent verdict and (d) returning a verdict in violation of the principles of collateral estoppel, and (2) suggested in its jury instructions that defense counsel had made an improper closing argument, thereby improperly highlighting the defendant’s decision not to testify. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendant’s appeal. In November, 2005, Ricardo Ramos, who was fifteen years old, and the defendant, who was seventeen years old, were both residents of the “Hill” section of New Haven and had known each other for two or three years. On November 29, 2005, the defendant gave Ramos a loaded .22 caliber gun. Later in the day, Ramos and Daniel Smith, while riding in a BMW in the “Hill” section, picked up the defendant. Smith drove the vehicle, Ramos was seated in the front passenger seat and the defendant was seated in the backseat. They rode around in the vehicle while smoking marijuana.

At some point, Smith drove toward the “Tre” section of New Haven toward Kensington Street. While on Ken-sington Street, Ramos saw a woman with whom he was acquainted. Smith stopped the vehicle. The woman loudly informed Ramos that a person with whom Ramos had a “beef’ was in the area. The three men drove around the block. As they drove down Kensington Street a second time, Ramos observed a person, who he believed had killed his cousin approximately one month earlier, walking on a sidewalk with a group of four or five other people. As Smith drove closer, the group on the sidewalk fired gunshots at the right side of the BMW. Ramos and Smith, who were both carrying weapons, returned fire through the open windows of the BMW. The defendant fired an SKS semiautomatic assault rifle, the barrel of which was resting on an open car window. The following morning, Ramos heard on the news that the victim, Marquis White, had been shot and killed on Kensington Street. Ramos realized that the victim was not the person who he believed had killed his cousin but, rather, was someone Ramos did not know.

Following a jury trial, the defendant was convicted of manslaughter in the first degree with a firearm as an accessory. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant challenges his conviction of manslaughter in the first degree with a firearm as an accessory on the ground that the jury’s verdict (1) violated his right against double jeopardy, (2) resulted in his being convicted of the nonexistent crime of being an “accessory,” (3) resulted in a legally inconsistent verdict and (4) violated the principles of collateral estop-pel. The defendant concedes on appeal that his claims were not preserved at trial but nevertheless seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We examine each claim pursuant to Golding in turn.

The following additional facts are relevant to our resolution of these issues. The defendant had been charged with, inter alia, murder. Over the defendant’s objection, the court granted the state’s request for a jury instruction on the lesser included offense of manslaughter in the first degree with a firearm under the theories of principal and accessorial liability. The court so instructed the jury.

Following deliberations, the jury reached a verdict. After the roll of jurors was called, the foreperson answered “not guilty” as the court clerk read the following charges: murder, manslaughter in the first degree with a firearm, conspiracy to commit murder, possession of an assault weapon and conspiracy to possess an assault weapon. The court then accepted the verdict.

Thereafter, the foreperson stated that “[s]omething is wrong.” The court sent the jury back to the deliberation room and informed counsel of the procedure that was to follow. The jury then returned to the courtroom, and the court asked the jury to articulate its concern in a note. The jury returned to the deliberation room and sent out a note that stated: “[W]e found [the defendant] guilty of ‘accessory to manslaughter’ and [want] guidance. We were waiting for ‘accessory’ to be read.” The court described the contents of the note on the record. The court stated that, as evidenced by the note, it was the jury’s position that it had not been asked to provide its verdict as to manslaughter in the first degree with a firearm as an accessory. The court indicated that it would have to vacate its finding that the verdict was accepted and recorded, at least as to the manslaughter charge. The court then stated that, unless the parties had an objection, the jury would be asked to return its verdict again as to all the charges, including the lesser included offense of manslaughter in the first degree with a firearm. In an effort to ameliorate any misunderstanding, the court planned to separate the manslaughter charge into two subsets: manslaughter as previously read and manslaughter as an accessory. There was no objection.

After the jury returned to the courtroom, the court clerk again called the jury roll and then asked for the jury’s verdict as to each offense. This time, the court clerk inquired as to the offense of manslaughter in the first degree with a firearm twice: once as previously read and interpreted by the jury to encompass only liability as a principal and once as an accessory. The court clerk inquired: “To the lesser included offense in count one, what say you to the lesser included offense of manslaughter in the first degree with a firearm in violation of § 53a-55 (a) (3) of the Connecticut General Statutes,” to which the foreperson responded: “Not guilty.” The court clerk then inquired: “For the lesser included offense in count one, what say you to the lesser included offense of manslaughter in the first degree with a firearm as an accessory in violation of the same section of the Connecticut General Statutes,” to which the foreperson responded: “Guilty.” The juiy returned a verdict of not guilty to the remaining charges. The court then accepted the verdict. The defendant did not object.

A

The defendant contends that the prohibition against double jeopardy was violated because the jury first found him not guilty of manslaughter in the first degree with a firearm and then, upon the second formulation of the verdict by the clerk, found him guilty of manslaughter in the first degree with a firearm as an accessory. Because the record is adequate and a double jeopardy claim is of constitutional magnitude; see State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); we review the defendant’s claim.

“The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb .... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment. . . . Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of [our state constitution] include protection against double jeopardy. . . . [T]he Double Jeopardy Clause consists of several protections: It protects [inter alia] against a second prosecution for the same offense after acquittal.” (Citation omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007).

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . While the first prong requires a review of the bill of particulars, the second prong requires the application of the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Re, 111 Conn. App. 466, 469, 959 A.2d 1044 (2008), cert. denied, 290 Conn. 908, 964 A.2d 543 (2009).

The defendant’s claim fails because he was not convicted of the same offense of which he also was acquitted. In this case, the jury expressed confusion in its first effort to return a verdict on the charge of manslaughter in the first degree with a firearm. Ordinarily, of course, criminal liability as either a principal or an accessory is charged as one offense, and the jury is instructed that it should return a verdict of guilty if it finds the defendant guilty either as principal or as accessory. It is not even necessary for conviction that the jury agree on whether the defendant was a principal or an accessory. See State v. Flanders, 214 Conn. 493, 504-505, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990). The court, having already accepted the verdict prior to the foreperson’s noting that “[something is wrong,” indicated that it would vacate that verdict at least as to the manslaughter charge. The jury’s note clearly and unequivocally stated that it “found [the defendant] guilty of ‘accessory to manslaughter’ . . . .” The court then, without objection from counsel, separated the offense of manslaughter in the first degree with a firearm into principal and accessorial liability for purposes of the jury’s verdict. The jury’s verdict, which was more specific than legally required, indicated that the defendant was found guilty of the crime as an accessory and not as a principal. This parsing of the jury’s verdict, in the unusual circumstances presented, does not amount to a violation of the defendant’s right to be free from double jeopardy. Accordingly, the defendant’s claim fails under the third prong of Golding because he has not proven that a constitutional violation clearly exists and clearly deprived him of a fair trial.

B

The defendant next claims that the verdict resulted in his being convicted of the nonexistent crime of being an “accessory.” The defendant argues that because he was “unequivocally” acquitted of the crime of manslaughter in the first degree with a firearm, he could not also have been convicted of the crime of manslaughter in the first degree with a firearm as an accessory. The defendant asserts that because accessory and principal liability are alternative ways of committing the same substantive crime, he cannot be guilty of manslaughter in the first degree with a firearm as an accessory after first being acquitted of the substantive crime. Thus, in the defendant’s view, when the jury found him guilty, it must have found him guilty of the “crime” of being an accessory only, unattached to any substantive crime. Because there is no such crime as being an accessory, the defendant argues, he was convicted of a crime that is not cognizable at law. We review the defendant’s claim because the record is adequate for review and the defendant alleges a violation of a fundamental right; that is, that he was convicted of a nonexistent offense. State v. Mooney, 61 Conn. App. 713, 722-23, 767 A.2d 770, cert. denied, 256 Conn. 905, 772 A.2d 598 (2001).

We agree with the defendant that “there is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility” and that “[t]here is no such crime as being an accessory .... The accessory statute merely provides alternate means by which a substantive crime may be committed.” (Citation omitted; internal quotation marks omitted.) State v. Aponte, 50 Conn. App. 114, 119, 718 A.2d 36 (1998), rev’d in part on other grounds, 249 Conn. 735, 738 A.2d 117 (1999). The fact that there is no practical significance in being labeled as an “accessory” or a “principal” for purposes of determining criminal responsibility does not mean, however, that the defendant was convicted of simply being an accessory, unattached to a substantive crime. Although the jury in its verdict in this case specified in form that it found him guilty of being an accessory and not a principal, the defendant in substance was convicted of the crime of manslaughter in the first degree with a firearm under a theory of accessorial liability. We conclude that this claim fails under the third prong of Golding because the defendant has not shown that a constitutional violation clearly exists and clearly deprived him of a fair trial.

C

The defendant next claims that his conviction is legally inconsistent because he was first found not guilty of manslaughter in the first degree with a firearm and then found guilty of manslaughter in the first degree with a firearm, when the jury returned its verdict a second time. In State v. Arroyo, 292 Conn. 558, 586, 973 A.2d 1254 (2009), our Supreme Court adopted the rule that claims of legal inconsistency between a conviction and an acquittal are not reviewable in accordance with United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). See also State v. Ramirez, 292 Conn. 586, 590-91, 973 A.2d 1251 (2009). Accordingly, this claim is not reviewable.

D

The defendant next claims that his conviction violates the principles of collateral estoppel. We review the defendant’s claim because the record is adequate for review and the defendant alleges a violation of a constitutional right. See State v. Garner, 270 Conn. 458, 482, 853 A.2d 478 (2004) (defendant’s collateral estoppel claim failed under third prong of Golding)-, see also State v. Knight, 266 Conn. 658, 663, 835 A.2d 47 (2003) (collateral estoppel given constitutional dimensions by double jeopardy clause).

“The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. ... As a general rule, [application of the doctrine of collateral estoppel is neither statutorily nor constitutionally mandated. ... In a criminal case, [however], collateral estoppel is a protection included in the fifth amendment guarantee against double jeopardy. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Citations omitted; internal quotation marks omitted.) State v. Garner, supra, 270 Conn. 482.

In this case, the principles of collateral estoppel do not apply. The defendant argues in his appellate brief that, although collateral estoppel has a strict requirement of a prior proceeding, the repeated taking of verdicts can be viewed as successive proceedings. There was, however, only one final judgment involved in this case, and there was no subsequent litigation involving the same ultimate facts. The principles of collateral estoppel do not apply, and the defendant cannot prevail under the third prong of Golding.

II

The defendant next claims that in its jury instructions, the court improperly suggested that defense counsel had made an improper closing argument, thereby improperly highlighting the defendant’s decision not to testify. We disagree.

The following additional facts are relevant to our resolution of this issue. At trial, defense counsel elicited testimony from various witnesses that the SKS rifle used in the shooting was heavy and generally required two hands to load or fire. During closing argument, defense counsel stated that the jury heard Ramos testily that the defendant had an SKS rifle and that the jury heard testimony that such a rifle is “pretty heavy” and “has a kick.” Defense counsel stated: “I would ask you, looking at [the defendant] right here, he’s a buck nothing, little scrawny guy. Do you think he could handle a weapon such as—such as that? When you go back in the jury room, you handle that weapon.”

Defense counsel then asked the defendant to stand up. As the defendant stood, defense counsel continued: “You handle that weapon and see if you could handle it and then see if you could handle it with one hand.” The defendant then raised both of his hands. Defense counsel then argued: “One hand. You handle it with two and then you try to handle it with one. The state wants you to believe that [the defendant] was able to maneuver this weapon. [The defendant] couldn’t maneuver this weapon. Ramos had the assault rifle, Ramos fired the assault rifle and Ramos killed the victim.”

After counsel completed closing arguments and the court recessed, the prosecutor objected. He asserted that although he had not observed the defendant display his left hand during defense counsel’s closing argument, he had been alerted during the recess that this had occurred. The prosecutor noted that the defendant had kept his left hand covered with his shirt during trial. During defense counsel's closing argument he had exposed his left hand, apparently revealing that the hand’s digits consisted of only a thumb and half of a little finger. The prosecutor requested that the court instruct the jury that the defendant’s visual display of his hand was not evidence and that there was no evidence that the defendant was unable to fire a gun. Defense counsel argued that any such instruction would be inappropriate. The court decided that it would instruct the jury to disregard what had occurred even though “it highlights the issue and that is [a] catch-22 .. . .”

Prior to its instruction on defense counsel’s improper argument, the court generally instructed the jury that proper evidence for its consideration included sworn testimony under oath subject to cross-examination and full exhibits, and that proper evidence did not include statements made by lawyers, including statements in their closing arguments. With respect to the visual display, the court instructed the jury as follows: “You are to consider only the evidence in this case. What is the evidence? Witness stand and exhibits; we discussed that. That’s the evidence. It has been tested through cross-examination, and the court has received the exhibits as full with counsel having the ability to object or make their claims legally known for the record.

“Visual displays other than permitted by the court. In this courtroom, although you—you saw something, not evidence, not evidence, not evidence. It is not subject to cross-examination, it’s not subject to anything at all in this courtroom in the orderly course of this proceeding. And why so? Because of that we can determine . . . the integrity of any evidence only through the accepted procedures established . . . [a]nd whether or not the state proved beyond a reasonable doubt that [the defendant] fired the weapon or was a principal or accessory, you determine that based upon the facts, the facts in this case, and they came from the witness stand, whether you believe it or not. It’s your job to determine whether you believe any or all of the evidence; that’s your job. You can disbelieve any or none of anyone’s testimony; that’s your job. Not speculation. Not conjecture. Not guesswork. Not sympathy. But only on the facts, what was proven. And your decision is made, proof beyond a reasonable doubt, on the evidence or the lack thereof. ” Regarding the defendant’s right not to testify, the court instructed the jury that the defendant elected not to testify and that “[h]e has a constitutional right not to testify, and you must draw no unfavorable inferences from the defendant’s election not to testify.” The defendant objected, outside of the presence of the jury, to the court’s instruction regarding the defendant’s “visual display.”

“The standard of review for claims of instructional impropriety is well established. [Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Internal quotation marks omitted.) State v. Reynolds, 118 Conn. App. 278, 307, 983 A.2d 874 (2009), cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010).

“A trial court has wide discretion to determine the propriety of counsel’s argument and may caution the jury to disregard improper remarks in order to contain prejudice. A reviewing court may only disturb the trial court’s actions in instances of abuse of this wide discretion.” State v. Herring, 210 Conn. 78,102, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

“Our Supreme Court frequently has stressed the importance of restricting comments made during closing arguments to matters related to the evidence before the jury. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Emphasis in original; internal quotation marks omitted.) State v. Rios, 74 Conn. App. 110, 119, 810 A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003).

“[C]ounsel may comment [in closing argument] upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest [in closing argument] an inference from facts not in evidence.” (Internal quotation marks omitted.) State v. Sweeney, 104 Conn. App. 582, 598, 935 A.2d 178 (2007). “Bodily conditions that are visible and readily apparent may be exhibited to the trier. . . . Unlike manipulation or demonstration of bodily functions, the display of static bodily conditions does not raise questions as to the sincerity and honesty of the witness. A person who is merely exhibiting static or objective bodily conditions need not be a competent witness or under oath unless his or her testimony is necessary to make the exhibition relevant. ” (Citations omitted; emphasis added.) C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 11.10.2, pp. 665-66.

The condition of the defendant’s hand was not a part of the evidence in the record and, therefore, was not a proper subject of the defendant’s closing argument. See State v. John B., 102 Conn. App. 453, 465, 925 A.2d 1235, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). The defendant did not testify and evidence relating to the condition of the defendant’s hand had not been admitted as evidence, whether by demonstration, through documentary evidence or witness testimony. The only time that the hand was demonstrated was during the defendant’s closing argument. Defense counsel’s comments on the condition of the defendant’s hand were not proper because they constituted argument on matters extrinsic to the evidence. See id. There was no evidence introduced at trial that at the time of the crime the defendant’s hand was in a damaged condition, or that the damage prevented him from being able to shoot the rifle. “It would be pointless to conduct trials according to established rules of procedure and evidence and to charge juries to base their verdicts only on the evidence, or lack thereof, and then to permit closing arguments to contain unsworn testimony from lawyers to the jury about matters that were not in evidence and for which opposing counsel could not have offered evidence.” State v. Giordano-Lanza, 83 Conn. App. 811, 817, 851 A.2d 397, cert. granted on other grounds, 271 Conn. 911, 859 A.2d 572 (2004) (appeal dismissed as moot October 25, 2005).

In response to the defendant’s display of his hand during defense counsel’s closing argument and defense counsel’s corresponding argument relating to this extrinsic evidence, the court properly instructed the jury that it could consider only the evidence in this case, which evidence did not include visual displays not permitted by the court. Contrary to the defendant’s argument, the court’s instruction did not improperly highlight the defendant’s decision not to testify at trial. Rather, in its instructions regarding the defendant’s election not to testify, the court aptly told the jury that it could “draw no unfavorable inferences from the defendant’s election . . . .” Accordingly, the defendant cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also charged with and found not guilty of murder in violation of General Statutes §§ 53a-54a and 53a-8, conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48 (a), possession of an assault weapon in violation of General Statutes §§ 53-202c and 53a-8, and conspiracy to possess an assault weapon in violation of §§ 53-202c and 53a-48 (e).

        State v. Golding, supra, 213 Conn. 239-40, provides that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”
      The defendant also seeks review of his claims under the plain error doctrine. See Practice Book § 60-5. “[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.
      . . . Plain error is a doctrine that should be invoked sparingly. . . . We recently clarified the two step framework under which we review claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . We made clear . . . that this inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .
      “In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Citation omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009).
      The defendant cannot prevail under the plain error doctrine. There is no error, plain or otherwise; additionally, his claims are simply not of the truly extraordinary nature that the plain error doctrine is intended to remedy.

       The first of the separated inquires as to guilty regarding the offense of manslaughter did not expressly refer to liability as a principal. In context, however, it is clear from the jury’s prior responses and note that the defendant in substance was found not guilty as a principal, rather than not guilty of the offense of manslaughter.

       We note that any question may have been avoided in this case had the court, in its recharge, emphasized that one may be guilty of the offense of manslaughter in the first degree with a firearm either as a principal or as an accessory.

       A display of bodily condition may well have been appropriate during the evidence phase of the trial, at which time relevant testimony about the condition and any attendant disability may have been presented. We conclude, however, that, in the circumstances of this case, a display during the argument phase, with no opportunity for qualification, explanation or determination of functional disability, was inappropriate.