author: CRETELLA, J.

text:
    COUNCIL 4, AFSCME, AFL-CIO v. STATE BOARD OF LABOR RELATIONS ET AL.
    (AC 28700)
    Bishop, Haiper and Cretella, Js.

      Argued September 16
    officially released December 23, 2008

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellant (plaintiff).

      Alexandra Gross, assistant general counsel, with whom, on the brief, was Jaye Bailey, general counsel, for the appellee (named defendant).

      Timothy Brignole, with whom, on the brief, was Juri E. Taalman, for the appellees (defendant Donna Bligh et al.).
   Opinion

CRETELLA, J.

The plaintiff, Council 4, AFSCME, AFL-CIO (union), appeals from the judgment of the trial court affirming the decision of the defendant state board of labor relations (labor board). On appeal, the union claims that the court should not have affirmed the decision of the labor board because the labor board’s determination that the union violated its duty of fair representation to its member, the defendant Donna Bligh, was clearly erroneous, as it was not supported by substantial evidence. We disagree. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to the unioh’s appeal. In July, 2000, Bligh was employed by the East Granby board of education (board of education) as a nonunion, full-time secretary to the superintendent of schools with an hourly wage of $19.25. In March, 2001, Bligh sought and obtained a union position with the board of education as a secretary at Allgrove School. In this new position, Bligh continued to receive the same pay of $19.25 per hour.

In October, 2001, another secretary employed by the board of education reported to the union president that Bligh was not being paid in accordance with the collective bargaining agreement pay schedule. The union filed a level one grievance on March 25, 2002, claiming that the superintendent of schools did not follow the appropriate salary scale contained in the collective bargaining agreement when he filled the vacant secretarial position at Allgrove School. As a remedy, the union requested that Bligh’s salary be adjusted downward to $15.97 per hour in accordance with the salary schedule in the 2002 collective bargaining agreement.

The union did not inform Bligh of the grievance. Bligh first learned of it from the superintendent of schools. Bligh then contacted the new president of the union to inquire as to whether the grievance would affect her hourly wage and to request representation. The union president refused to answer Bligh’s questions directly and told her that it was a matter between the union and the board of education concerning an alleged breach of the collective bargaining agreement and that she did not need representation.

On April 5,2002, the superintendent of schools denied the grievance, stating that Bligh was earning $19.25 per hour in her previous position and that salary was consistent with other employees in similar positions. The union then appealed from the denial to a level three grievance hearing before the board of education. Upon learning of the appeal, Bligh again contacted the union president to inquire as to whether the grievance would affect her pay and to request representation at the hearing. She again was informed that the grievance was against the superintendent and, therefore, did not involve her and that she did not need representation. Bligh then retained her own counsel, Timothy Brignole, who also is a defendant in this matter. By letter dated April 26, 2002, from Brignole to the union president, Brignole demanded that the union provide Bligh with representation. He did not receive a reply to the letter and was later advised that Bligh did not need to attend the level three grievance hearing, as it did not pertain to her.

In June, 2002, the board of education held the grievance hearing and subsequently denied the union’s appeal. The union then appealed the grievance to level four, which required arbitration before the state board of mediation and arbitration (mediation board). On the day of the arbitration proceedings, the board of education and the union entered into a voluntary settlement agreement The agreement included, among other things, that Bligh’s salary rate would remain at $19.25 per hour and not be reduced to $15.97 per hour. Pursuant to the agreement, the union withdrew the grievance and the demand for arbitration.

On August 27, 2003, Bligh filed a complaint with the labor board, alleging that the union had breached its duty of fair representation by arbitrarily filing and pursuing a grievance that aimed to reduce her wage rate, refusing to provide her with representation and treating her disparately. The union and Bligh, represented by Brignole, appeared before the labor board for a hearing on May 3 and 25, 2004. At the hearings, both parties were afforded the opportunity to introduce evidence, to examine and to cross-examine witnesses, to make argument and to submit posthearing briefs. The labor board issued its decision on July 28, 2005.

In its decision, the labor board determined that the union had breached its duty to Bligh of fair representation by acting discriminatorily and in bad faith. The labor board found that because the union had been aware of other bargaining unit members with similar circumstances, the union had engaged in discriminatory conduct when it pursued a grievance and requested a remedy that would have adversely affected Bligh but did not pursue a grievance involving the other bargaining unit members. The labor board concluded that the union had acted in bad faith in that it was deceitful and intentionally misleading in its representations to Bligh regarding the pending grievance. The labor board found that the responses of the union president to the inquiries of Bligh were “evasive and dishonestly misleading” and that the union’s conduct could in no way be construed to further the best interests of its member, Bligh. The labor board determined that the proper effective remedy would be for the union to pay Bligh’s attorney’s fees and other costs incurred during the course of the grievance proceedings, as well as the processing of the labor board case.

On August 25, 2005, the union, pursuant to General Statutes § 4-183 (a) of the Uniform Administrative Procedure Act (UAPA), appealed from the labor board’s decision to the Superior Court, seeking a reversal of it. The basis of its appeal was that the labor board’s decision that the union had breached its duty of fair representation to Bligh was not supported by substantial evidence. On March 28, 2007, the Superior Court issued its judgment, affirming the labor board’s decision. The court found that there was substantial evidence in the record to support the labor board’s findings of fact and conclusion that the union acted discriminatorily and in bad faith, in violation of the duty of fair representation. The court also found that the labor board properly awarded attorney’s fees and costs to Bligh. It is from this decision that the union appeals.

“At the outset, we set forth the applicable standard of review with regard to the trial court’s review of the findings of fact and conclusions of law of the [labor board]. [J]udicial review of the [labor board’s] action is governed by the [UAPA, General Statutes §§ 4-183 (j), 4-184], and the scope of that review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our [standard of review] is to determine, in view of all of the evidence, whether the agency . . . acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 68, 942 A.2d 345 (2008).

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. [See] General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency .... It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion .... The law is also well established that if the decision of the [agency] is reasonably supported by the evidence it must be sustained.” (Citation omitted; internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 833-34, 955 A.2d 15 (2008). “This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review.” (Internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 742, 945 A.2d 936 (2008).

The standard for a claim of breach of duty of fair representation is well established. “A union must represent its members in good faith. This duty of fair representation derives from the union’s status as the sole bargaining representative for its members. As such, the union has the exclusive right and obligation to act for its members and to represent their interests. . . . The duty of fair representation requires the union to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion in complete good faith and honesty, and to avoid arbitrary conduct. ... A union breaches this duty if it acts arbitrarily, discriminatorily or in bad faith. . . .

“[A] union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness ... as to be irrational. . . . Furthermore, a union’s actions are in bad faith if the union acts fraudulently or deceitfully ... or does not act to further the best interests of its members.” (Citations omitted; internal quotation marks omitted.) Labbe v. Hartford Pension Commission, 239 Conn. 168, 193-95, 682 A.2d 490 (1996).

In this appeal, the union argues that the labor board’s legal conclusion that it breached its duty of fair representation to Bligh is clearly erroneous, as it is not supported by substantial evidence because there are no facts that show that Bligh was being treated differently from similarly situated employees or that the union acted in bad faith. The union also claims that the decision was not supported by substantial evidence because neither the filing of a grievance that may have an adverse affect on a member, nor the failure to provide a member with representation, constitute a breach of the duty of fair representation.

We first note that neither the labor board, in deciding that the union breached its duty, nor the court, in concluding that there was substantial evidence in the record to support that decision, relied on the fact that the union failed to supply Bligh with representation. Moreover, both the labor board and the court acknowledged that pursuing a grievance that may have an adverse affect on a member would not, by itself, constitute a breach of the union’s duty of fair representation. The labor board found that the union had pursued a grievance that would have adversely affected Bligh but did not pursue a grievance that would have adversely affected two other union members when, like Bligh, they both had been employed in nonbargaining unit positions and upon joining the bargaining unit, were paid hourly rates that exceeded the top rate listed in the salary schedule. The labor board concluded that such a course of action was discriminatory and, therefore, constituted a breach of the duty of fair representation.

The union’s argument that this determination by the labor board is not supported by the facts in the record is unpersuasive. The union maintains that the facts show that other bargaining unit members were not similarly situated to Bligh because they had been employed by the board of education for more than six years, and, therefore, their wages were calculated on the basis of their rate, times the percentage increase for each year beyond the sixth year. This claim, however, is refuted by the collective bargaining agreement, which provides that hiring rates are at the sole discretion of the board of education, and makes no mention of such a formula. In addition, there was evidence produced that the past practice was that personnel who transferred from nonunion positions to union positions simply retained their nonunion salaries.

Accordingly, the evidence before the labor board was that these employees, like Bligh, were being paid above the top rate listed in the salary schedule upon joining the bargaining unit, yet the union did not pursue a grievance against them. Treating a person differently from similarly situated persons is discrimination; Tuchman v. State, 89 Conn. App. 745, 759, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005); and acting discriminatorily constitutes a breach of the duty of fair representation. Labbe v. Hartford Pension Commission, supra, 239 Conn. 194. Thus, we agree with the court that the facts in the record constitute substantial evidence to support the labor board’s conclusion that the union breached its duty by acting discriminatorily.

The union alternatively argues that even if the other employees were similarly situated, it had no way of knowing that and, therefore, could not take action against them. In a letter copied to the union and dated June 10, 2002, Brignole, however, enclosed documents that showed that other employees were brought into the union at the pay rate they had as nonunion employees, even though that pay rate exceeded the top rate on the salary scale. We agree with the labor board and the court that this correspondence, which was brought to the attention of the labor board at the May 25, 2004 hearing, is sound evidence that the union was well aware of the situations of these other employees prior to the June, 2002 hearing before the board of education, but the union nevertheless continued to pursue the grievance only against Bligh.

We also conclude that there was substantial evidence to support the labor board’s finding that the union breached its duty of fair representation by acting in bad faith. The fact that the union repeatedly informed Bligh that the grievance did not involve her and advised her not to obtain representation when Bligh’s salary was at stake, supports the conclusion that the union intentionally and dishonestly misled her and was not acting in her best interest. Although there was conflicting testimony as to the content of the conversations between the union and Bligh, the labor board resolved these issues in Bligh’s favor. Issues of credibility are in the sole province of the trier of fact and will not be reviewed on appeal. Sanders v. Dias, 108 Conn. App. 283, 294, 947 A.2d 1026 (2008).

Finally, the imposition of attorney’s fees and costs is consistent with General Statutes § 7-471 (5), which requires the labor board to “take such further affirmative action as will effectuate the policies of [collective bargaining under the Municipal Employees Relations Act, General Statutes § 7-460 et seq.]” upon finding that a prohibited practice has been committed. The award to a prevailing party of costs and expenses is well within the discretion of the labor board, so long as the union had the opportunity to examine and to challenge the reasonableness of the attorney’s fees and costs incurred. See Local 1042, AFSCME, Council 4, AFL-CIO v. State Board of Labor Relations, Superior Court, judicial district of New Britain, Docket No. CV-99-0493379-S (June 1, 1999) (McWeeny, J.) (24 Conn. L. Rptr. 616). In the present case, the labor board made a specific finding that the award would be an effective and legitimate remedy for breach by the union of the duty of fair representation. We agree.

The judgment is affirmed.

In this opinion the other judges concurred.

         The union chose to have a combined level one and level two hearing.

       General Statutes § 7-468 (d) of the Municipal Employees Relations Act, General Statutes § 7-460 et seq., provides: “When an employee organization has been designated in accordance with the provisions of sections 7-467 to 7-477 inclusive, as the exclusive representative of employees in an appropriate unit, it shall have a duty of fair representation to the members of that unit.”
      General Statutes § 7-470 (b) provides in relevant part: “Employee organizations or their agents are prohibited from ... (3) breaching their duty of fair representation pursuant to section 7-468 . . . .”

       General Statutes § 4-183 (a) provides in relevant part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . .


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. NAZRA MUNGROO
    (AC 28424)
    McLachlan, Lavine and Beach, Js.

      Argued September 23
    officially released December 23, 2008

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

      Lisa A. Riggione, senior assistant state’s attorney, with whom were Gail P. Hardy, state’s attorney, and Michael J. Sullivan, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Nazra Mungroo, appeals from the judgment of conviction, rendered after a jury trial, of fraudulent receipt of workers’ compensation benefits in violation of General Statutes § 31-290c (a) (2). On appeal, the defendant claims that the trial court improperly (1) denied her motion for a judgment of acquittal in which she claimed that there was insufficient evidence that she had failed to disclose a material fact in her claim for workers’ compensation benefits, (2) denied her motion for a mistrial founded on testimony that she had invoked her right to counsel and (3) instructed the jury. We affirm the judgment of the trial court.

A detailed recitation of undisputed facts is necessary to place the issues in context. In March, 2002, the defendant was employed as the general cashier and income auditor for the Hilton Hotel in Hartford (hotel). In the early morning hours of March 4, 2002, the hotel was robbed of tens of thousands of dollars in cash and checks stored in the hotel’s main safe. The defendant reported the robbery and was taken to Hartford Hospital, complaining of diabetes related symptoms. The defendant was absent from her employment for a couple of days but carried out her responsibilities on March 7 and 8, 2002. She then took sick leave until May 20, 2002. She received workers’ compensation benefits in excess of $5000.

The defendant was arrested in the spring of 2005 and charged with workers’ compensation fraud. Just prior to trial in October, 2006, the state filed a long form information alleging that the defendant (1) intentionally and falsely made a claim for workers’ compensation benefits and (2) intentionally misrepresented and failed to disclose the true circumstances existing at the time of her alleged injury in violation of § 31-290c (a) (1) and (2). Before the case was submitted to the jury, the state filed an amended long form information alleging only a violation of § 31-290c (a) (2). The jury found the defendant guilty, and the court sentenced her to one year of incarceration consecutive to the sentence the defendant was then serving for her conviction related to her role in the robbery.

On the basis of the evidence presented, the jury reasonably could have found the following facts. As the general cashier and income auditor for the hotel, the defendant’s primary responsibility was to prepare money collected by the hotel for deposit in a bank. The defendant also maintained the income journal. The daily deposits were kept in separate bags and stored in the hotel’s main safe along with the ledger. Brinks Armored Car Service (Brinks) called for the bags each day during the work week and transferred them to a bank where the money was deposited. When the defendant turned a deposit over to Brinks, the Brinks employee and the defendant signed the ledger to document the date, time and amount of the deposit. The defendant was the only person authorized to make deposits.

The hotel’s main safe was located in a first floor room adjacent to the cash room, a section of the hotel limited to employees. To gain entry to the cash room, a person had to enter a code to open the door. One could also enter the cash room by taking the service elevator to the area. The service elevator was accessible through an unlocked door on any floor of the hotel. Anyone using the service elevator would be observed by a security camera at the door of the safe room. The defendant prepared the deposit bags in the cash room and stored them in the safe until Brinks called for them. She was the only hotel employee who knew the combination to the safe.

Although the defendant generally performed her responsibilities during the daytime, she had volunteered to work on the evening of Sunday, March 3, 2002, to train the new night auditor. She began her shift at 10 p.m. She also had worked the evening shift on several Sundays immediately prior to March 3, 2002. At the time of the robbery, Susan Ridgeway, the general manager, was returning to the hotel from her home in Pennsylvania where she routinely spent weekends. Rupert Bennett, controller and the defendant’s immediate supervisor, whose responsibilities included verifying the hotel’s bank deposits online, had been on vacation during the two weeks preceding the robbery. Ridgeway and Bennett each knew one half of the combination to the main safe.

At approximately 8 a.m. on March 4, 2002, Michael Lopez, a detective assigned to the major crime division of the Hartford police department, was dispatched to the hotel to investigate a robbery that reportedly had occurred at 4:45 a.m. that day. The defendant was the reported victim of the robbery. Lopez interviewed the defendant at Hartford Hospital where she had been taken after the robbery because she was complaining of diabetes related symptoms. Lopez asked the defendant if she had been injured during the robbery. The defendant responded that she had not been injured, and Lopez observed no injuries.

When she spoke to Lopez at the hospital, the defendant reported that at approximately 4:34 a.m., she was on her way to the cash room when a hotel employee approached her and asked her to make change. She also was approached by a masked black man, six feet tall, dressed in dark clothing, who placed what she thought was a gun against her back and ordered her to open the safe. The safe, however, was open, and the perpetrator took cash, checks, the ledger and a bank bag and fled. According to the defendant, the safe was open at the time because she was preparing the weekend deposits for pickup.

Gordon Johnson was the only security guard on duty at the hotel that night. According to Johnson, he was sitting in the lobby at approximately 4 a.m. When he got up to return to the security office, the defendant asked him where he was going. Johnson did not recall the defendant’s ever having asked him that question before. Approximately ten minutes later, the defendant called Johnson on the radio to report that the hotel had been robbed at gunpoint. Johnson immediately returned to the lobby of the hotel and instructed another employee to call 911.

Initially, the defendant told Ridgeway that at the time of the robbery, the safe contained deposits only from the weekend of March 1 through 3, 2002. Ridgeway reviewed the hotel’s bank records and determined that the last bank deposit receipt was dated February 19, 2002. Deposits for eleven days had not been transferred to Brinks for deposit and were missing. The total loss to the hotel was $104,718.18. The defendant later told Ridgeway and Lopez that she had received a telephone call from someone she could identify only as an Hispanic male from Brinks, who indicated that the missing deposits had been located and would be deposited immediately. The deposits, however, were never made to the hotel’s account. On April 3, 2002, the defendant told Lopez that the deposits for February 20 through 25, 2002, could have been in the safe at the time of the robbery and that she may not have given Brinks the deposit slips because her numerous other responsibilities may have prevented her from doing so.

Only one of the security cameras operating in the hotel on March 4; 2002, recorded the perpetrator. That security camera was located at the door to the safe room. The only way the perpetrator could have eluded other security cameras in the hotel was to enter the cash room via the service elevator to the first floor. The security camera at the door to the safe room recorded the defendant and the perpetrator. The perpetrator appeared to be pointing something, concealed under his or her clothing, at the defendant. The defendant and the perpetrator were recorded entering the safe room at 4:34 a.m. and exiting it at 4:39 a.m. The security film does not depict a physical altercation between the defendant and the perpetrator. After the perpetrator fled, the individual was not seen in other surveyed areas of the hotel.

On June 10, 2002, Ernest Gonzalez, a member of the hotel maintenance staff, found a bank bag containing several tom checks and a Brinks ledger in room 424 when he moved the furniture to give the carpet a thorough cleaning. The items were turned over to Glenn Peruta, manager of hotel security, who gave them to Ridgeway. Ridgeway then reviewed all of the records pertaining to room 424 for March 3 and 4, 2002.

The hotel’s computer generated key system indicated that a key for room 424 had been made by the defendant on March 3, 2002, at 10:20 p.m. The hotel also had a computer generated historical record of transactions for room 424 from March 3 through March 5, 2002. The record revealed that the defendant checked a guest into room 424 at 10:56 p.m. on March 3, 2002, thirty-six minutes after the key was made. Generally, a guest must register before a room key is made. At 1:43 p.m. on March 4, 2002, another hotel employee, Nadine Jennings, changed the rate for room 424 from complimentary, which was coded in at the time of check in, to $106. The rate was changed twice more. On the evening of March 4, 2002, the guest’s departure date was changed from March 4 to March 5, 2002. The guest checked out of room 424 at 4:23 p.m. on March 5, 2002.

Ridgeway also reviewed the registration card for room 424 and examined the signature. The name on the top of the card was “Wagner, Lawrence,” but the card was signed William Lawrence. Ridgeway recognized Wagner as the name of one of the hotel’s frequent guests. He was an out-of-state employee of an insurance company, whose offices were across the street from the hotel. Wagner had stayed in the hotel ninety-seven times within the year prior to the robbery. Wagner never stayed in a hotel room below the fourteenth floor, and he had never checked into the hotel on a Sunday or a Monday.

The defendant’s physician, Scott Bernstein, saw the defendant in his office on March 5, 2002, at which time she was complaining of anxiety, fatigue and a sore throat. Bernstein reviewed the defendant’s emergency room record and noted that medication for stress and anxiety had been prescribed for her. When Bernstein saw the defendant on March 8, 2002, she was in emotional distress, experiencing anxiety, insomnia and muscle spasms in the back of her neck, shoulders and trapezius muscle. Bernstein referred the defendant to a psychiatrist, Gerald Selzer. Because the defendant was having chest, back and shoulder pain, Bernstein referred the defendant for physical therapy on March 26, 2002. Bernstein next saw the defendant on May 22, 2002, at which time she had concluded physical therapy but was taking muscle relaxants and psychiatric medication.

On June 10, 2002, Ridgeway informed Lopez that the bank bags had been discovered in room 424. That day, Lopez and another police officer went unannounced to the defendant’s home in Hartford to speak with her. At that time, the defendant told Lopez that because the front desk was very busy on March 3, 2002, she assisted and rented room 424 to someone. The defendant also told Lopez that at 3 a.m. on March 4, 2002, the guest who rented room 424 called her and asked to extend the stay. Subsequent to that conversation with the defendant, Lopez reviewed the security video of the front desk for the date in question and observed that the desk was not busy. Moreover, Lopez learned that it was not the defendant’s primary responsibility to sign in guests.

In 2005, the defendant was arrested and charged with violation of § 31-290c (a) (1) and (2). Amy-Sue Munroe, an employee of the workers’ compensation commission, testified at trial. Munroe controls files and records for workers’ compensation claims. Those records include a numbered file for the defendant, indicating that she made a workers’ compensation claim arising from an incident at the hotel on March 4, 2002, and that she received benefits. The file contains medical reports from Hartford Hospital, Bernstein and Selzer.

Robert McCarthy was the Kemper Insurance Company claims representative assigned to investigate and process the defendant’s claim. In the course of processing the defendant’s claim, McCarthy took a statement from the defendant and subsequently recommended that the claim be rejected. The workers’ compensation commissioner, however, informally recommended that the claim be paid. The defendant received $472.96 in medical and $5263.61 in indemnity benefits.

Richard Owens, program manager of the insurance fraud unit of the insurance department, testified. He is responsible for receiving and reviewing complaints of insurance fraud and referring them to federal or state authorities, if appropriate. He received a complaint from Broadspire Services, regarding the defendant, on August 11, 2004. After reviewing the file, Owens forwarded the file to the office of the chief state’s attorney, workers’ compensation fraud control unit. Additional facts will be addressed as necessary.

I

The defendant’s first claim is that the court improperly denied her motion for a judgment of acquittal because there was insufficient evidence that she failed to disclose material facts about the injury for which she submitted a claim for workers’ compensation benefits. Specifically, the defendant claims that the evidence was insufficient because the state failed to place her written claim for workers’ compensation benefits into evidence, and the jury had to speculate as to whether she omitted material facts. We disagree.

Following the presentation of the evidence, the defendant filed a motion for a judgment of acquittal pursuant to Practice Book § 42-42. In support of her motion, defense counsel noted three elements of § 31-290c (a) that the state had to prove: (1) the defendant made a claim; (2) the claim was based in whole or in part on an intentional misrepresentation of a material fact; and (3) the value of the benefits received was greater than $5000. Defense counsel argued that there was no evidence as to the defendant’s claim for workers’ compensation benefits, as the defendant’s claim form had not been put into evidence. Without seeing the claim form or her statement as to why she was claiming benefits, defense counsel argued that the jury could not evaluate whether there had been a misrepresentation or an omission.

In response, the state recited the evidence for the court, specifically that the defendant had submitted a claim, that she had received benefits and that her claim was investigated for insurance fraud. The state emphasized that a claim cannot be based on a misrepresentation of material fact. In answer to the court’s inquiry as to what the state was alleging the defendant had misrepresented when she filed her workers’ compensation claim, the prosecutor stated that the defendant misrepresented that she (1) was acting in her capacity as a hotel employee with respect to the robbery and (2) was injured. The defendant also failed to state that she helped stage the robbery.

In analyzing the issues, the court first referred to the difference between the subdivisions of § 31-290c (a): subdivision (1) requires the intentional misrepresentation of a material fact, and subdivision (2) requires the intentional nondisclosure of a material fact. See footnote 11. Second, the court reviewed the long form information dated October 6, 2006, in which the state alleged that the defendant “failed to disclose the true circumstances existing of the alleged injury arising out of the course of a staged robbery.” Noting that nondisclosure requires no statement of facts, the court reasoned: “If [the defendant] didn’t put in that the robbery was a phony, that’s nondisclosure of material fact.” Defense counsel agreed with the court’s reasoning but countered that no one knew what she claimed or when. The state offered that the evidence demonstrated that the defendant had received workers’ compensation benefits before it was known that she was involved in the robbery. The court concluded that there was enough evidence to submit to the jury that the robbery was staged but that there was no evidence that the defendant’s claim form contained a material misrepresentation.

On October 31, 2006, the state filed an amended long form information, alleging, in part, that “[o]n or about March 4, 2002 and on diverse days thereafter in the [c]ity of Hartford . . . the defendant . . . intentionally failed to disclose material facts regarding the true circumstances existing at said time and place of her alleged injury arising in and out of the course of a staged robbery of the Hilton Hotel, resulting in the loss of $38,424.00 in U.S. Currency and $66,294.12 in checks, payable to the Hilton Hotel. The defendant . . . thereby intentionally and wrongfully received in excess of $5000 in workers’ compensation benefits to which she was not entitled, all in violation of § 31-290c (a) (2) . . . ,”

The theory of the state’s closing argument to the jury was that “the defendant failed to disclose certain important material information that would affect her right to claim workers’ compensation benefits,” namely, that she failed to disclose the truth concerning the circumstances of the robbery, specifically, that she was a willing participant and that she was not injured. Defense counsel argued that without seeing the defendant’s claim form, the jury could not know what she had claimed or had failed to claim.

In its charge to the jury, the court instructed on, among other things, circumstantial evidence, intent, inference and the elements of the charged crime, including the definitions of intentional nondisclosure, knowingly and material fact. The jury found the defendant guilty of fraudulent receipt of workers’ compensation benefits for failing to disclose a material fact in violation of § 31-290c (a) (2). The defendant renewed her motion for a judgment of acquittal prior to sentencing, arguing that the jury had to speculate as to what she had claimed or withheld. The court denied the motion on December 14, 2006, concluding that the jury did not have to speculate to reach a verdict.

“The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the jury [reasonably could have] concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. . . . The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict. ... It is established case law that when a defendant challenges the sufficiency of the evidence, we apply a twofold test. We first review the evidence . . . in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn . . . the jury [reasonably could] have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ” (Citation omitted; internal quotation marks omitted.) State v. Hamlett, 105 Conn. App. 862, 866, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).

On the basis of our review of the evidence, the arguments of the parties and the court’s instructions, we conclude that the court did not improperly deny the defendant’s motion for a judgment of acquittal on the basis of insufficient evidence. The defendant conceded that she had made a claim and had received workers’ compensation benefits. She argues, however, that the state presented no evidence that she misrepresented a material fact or withheld such information when making her claim. The state, the defendant argues, failed to put into evidence the subject workers’ compensation claim form or the statement she gave to the claims adjuster. Why the state failed to offer such evidence is not in the record.

We conclude that the jury reasonably could have found, on the basis of inferences drawn from the evidence presented, that the defendant staged the robbery and failed to disclose that circumstance when she claimed to have been injured on March 4, 2002. As the court stated in its charge with respect to inference, “[o]rdinarily, knowledge can be established only through an inference from other proven facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable person of honest intention in the situation of the defendant would have concluded that the statement was false. The determinative question is whether the circumstances of the particular case form a basis for a sound inference as to the knowledge of the accused in the transaction under inquiry. Material fact means an important or essential fact relating in this case to the claimed benefits, including but not limited to the existence, time, place, date, location, circumstances or symptoms of the claimed injury or illness.” (Emphasis added.) It was the jury’s right to infer that no workers’ compensation benefits would have been paid to the defendant if she had disclosed that she had participated in the staged robbery of the hotel. The defendant’s claim therefore fails.

II

The defendant’s second claim is that the court improperly denied her motion for a mistrial made in response to testimony that the defendant had invoked her constitutional right to counsel. The state argues that the court properly denied the motion for a mistrial because defense counsel invited the testimony and that the defendant was not prejudiced because the court struck the testimony and gave the jury a curative instruction. We agree with the state.

The following facts are related to the defendant’s claim. During defense counsel’s cross-examination of Lopez, a portion of counsel’s inquiry focused on the events of June 10, 2002, at the defendant’s home:

“Q. And at that point, is it fair to say you no longer considered her a victim but you thought she was a suspect with some involvement in staging this robbery. Is that fair to say?
“A. Yes, sir.
“Q. [I]s it fair to say you were going there to interrogate her that day?
“A. I was going there to interview her. She was not in custody.
“Q. Okay. She was not in custody, of course, but you went with another detective?
“A. Yup.
“Q. Showed up unannounced at her home after you had received information about the case . . . but you’re saying you weren’t interrogating her?
“A. No, sir. I was simply making inquiries about what happened that day.
“Q. Did you have her sign a written statement about what she told you?
“A. No, sir.
“Q. Okay. Did you record her comments on a tape recorder or anything like that?
“A. No, sir.
“Q. Did you write a report specifically about that incident?
“A. I don’t believe I did. She requested counsel at that point.
“Q. Okay.
“A. She refused to talk to me after that meeting.
“Q. Okay. Now, you certainly in your years of being a Hartford detective, you get a lot of experience in interviewing witnesses, witnesses and victims and suspects. Is that fair to say?
“A. True.
“Q. And probably had training on how to do that on top of experience. Right?
“A. Yes, sir.
“Q. And once you had talked to [the defendant] that day, June 10, based on information she gave you, you were able to wrap up your investigation soon afterward. Is that fair to say?” (Emphasis added.)

During redirect examination, defense counsel objected to unrelated questions posed by the prosecutor, and the court excused the jury. After the issue was resolved, the court stated to defense counsel: “[Lopez] mentioned that your client asked to call counsel. You did not ask that that be stricken. I was going to bring that up after this witness has finished his testimony or outside of the presence of the jury, but they’re gone at the moment, and I don’t know if you want to try to do anything about that . . . .” After consulting with cocounsel, defense counsel moved to strike Lopez’ answer that the defendant asked to speak with counsel. After Lopez’ testimony was read back, defense counsel made an oral motion for a mistrial, arguing that it was improper for Lopez to comment on the defendant’s invoking her constitutional right to remain silent. Moreover, Lopez’ answer was nonresponsive.

The court noted that the answer “was sort of responsive. The general line of questioning was attempting ... to show that the investigation was inadequate, the report writing was inadequate or the statement having been taken from the defendant.” The court invited defense counsel to inform it if the court had misinterpreted counsel’s motive. The court denied the motion for a mistrial and instructed the jury to disregard Lopez’ comment regarding the defendant’s request for counsel. Neither counsel mentioned the stricken testimony during final arguments, and the court, in its general instructions, admonished the jury to disregard any testimony that had been stricken.

On appeal, the defendant claims that the state introduced the evidence in violation of her state and federal constitutional rights. The record and the court’s finding are to the contrary. At the time the court was considering the motion for a mistrial, it stated to defense counsel: “I’m talking about walking up to a big sign like this. It says area mined; enter at your own risk. And you leaped the fence and went tiptoeing through the mine field, and there’s certain dangers in that, okay. . . .

“Now, the defendant did not invoke the constitution in a custodial interrogation. You did not establish that. . . . There is no information that the state is behind this testimony. So, stop me whenever you think I’m wrong. And you did, on a couple of occasions, mention why there was no statement from your client. It’s not just one question. That may be the issue on whether or not an answer was responsive, but on the issue of inviting comment, opening the door, failure to have completely clean hands, that’s a different matter.”

“Although the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. ... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial [court] is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court. . . . [T]he defendant bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.” (Internal quotation marks omitted.) State v. Messam, 108 Conn. App. 744, 756-57, 949 A.2d 1246 (2008).

“Discretion involves a choice by a court to do or not to do something that one cannot demand as an absolute right. Courts exercise discretion in cases where impartial minds could hesitate, which exercise usually entails a balancing of the relative gravity of the factors involved. ... An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” (Citation omitted.) In re Shaquanna M., 61 Conn. App. 592, 603, 767 A.2d 155 (2001).

In this case, the court found that defense counsel invited Lopez to explain why he had failed to get a written statement from the defendant in an effort to disparage the investigation Lopez had conducted. “Action induced by an appellant cannot ordinarily be a ground of error. . . . When the claimed error is the result of a question posed by the defendant on cross-examination, [s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.” (Internal quotation marks omitted.) State v. Messam, supra, 108 Conn. App. 757-58. The court, here, noted that there may be a question as to whether Lopez gave a responsive answer to defense counsel's question, “Did you write a report specifically about that incident?” The court also found, however, that defense counsel had pressed for an explanation, as Lopez had testified several times that he did not obtain a statement from the defendant. Because defense counsel persisted in this line of questioning, he opened the door for Lopez to explain why there was no statement.

A similar situation was at issue in Messam, in which defense counsel asked a witness, “[s]o, there is another report other than this one?” The witness answered, “[t]here [are] two [drug] buy reports.” (Internal quotation marks omitted.) State v. Messam, supra, 108 Conn. App. 754. Defense counsel immediately asked that the jury be excused and orally moved for a mistrial. Id. On appeal, the defendant argued that the question required only a yes or no answer. This court reasoned that defense counsel “had been given a yes answer already on the same question. Despite this, counsel continued to press [the witness] as to whether there were additional reports, knowing that there were a total of three reports, two of which related to the controlled [drug] buys. Counsel’s repeated questions opened the door to [the witness’] answer, which was responsive to the question.” Id, 758.

Finally, the defendant here has not demonstrated that she was denied a fair trial. See id, 757. As in Messam, the court struck Lopez’ answer and gave a curative instruction, telling the jury to disregard it. “Absent evidence to the contrary, we presume that the jury followed the court’s limiting instruction.” Id, 758. “Such curative instructions are entitled to great weight and ordinarily prevent an appellate court from finding that [there was] reversible error.” (Internal quotation marks omitted.) State v. Youdin, 38 Conn. App. 85, 94, 659 A.2d 728, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995). Moreover, there was substantial circumstantial evidence against the defendant. The court aptly observed that “a detective in the case thinks this defendant is guilty is not new to anybody, even fledgling jurors.”

For the foregoing reasons, the defendant’s claim that the court improperly denied her motion for a mistrial cannot succeed.

III

The defendant’s third claim is that the court improperly instructed the jury on the element of material fact in § 31-290c (a) (2). In her brief, the defendant acknowledges that this claim was not raised at trial and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). On the basis of our review of the briefs and the record, we conclude that the defendant not only failed to raise the claim at trial but also that she waived it. Under those circumstances, the claim is not renewable. See State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007) (“Golding review is inapplicable to an unpreserved claim of induced error”).

The defendant claims that the court improperly charged that “[m]aterial fact means an important or essential fact relating in this case to the claimed benefits, including but not limited to the existence, time, place, date, location, circumstances or symptoms of the claimed injury or illness.” In her brief, the defendant argues that the court broadened the material fact element of the charged offense if the facts omitted from her claim for workers’ compensation benefits “were merely important,” rather than making a difference in the outcome of the case. Even a cursory review of this claim informs us that, by focusing on one word of the court’s charge—the word “important”—the defendant has not presented her claim within the well known standard that a jury charge is to be read as a whole, within the context of the trial and not in a vacuum. See State v. Davis, 255 Conn. 782, 794-96, 772 A.2d 559 (2001).

“[Wjaiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) State v. Corona, 69 Conn. App. 267, 274-75, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002). In preparing its charge to the jury, the court presented counsel with three drafts of it for comment and objection. The defendant withdrew her request to charge and agreed to the charge that the court intended to give. We therefore conclude that the defendant waived any challenge to the court’s instruction and decline to discuss the claim further.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was convicted of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and falsely reporting an incident in the second degree in violation of General Statutes § 53a-180c (a) (3) for participating in a staged robbery at the hotel on March 4, 2002. See State v. Mungroo, 104 Conn. App. 668, 935 A.2d 229 (2007) (reversed only as to sentence for falsely reporting incident in second degree and remanded for resentencing), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008). This court may take judicial notice of the file in another case. Karp v. Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 623 (1972).

       Lopez spoke to the employee, who was unable to verify the event.

       The location of the service elevator is known to hotel employees.

       The hotel room keys are cards with magnetic strips programmed in a card reader. The security code of the person making the key is entered into the reader, as are the room number, the number of keys made and the duration of the guest’s stay.

       A complimentary rate meant that there was no charge for the room. The decision to offer a complimentary rate is made by hotel management.

       Ridgeway testified that commonly, for various reasons, hotel guests will not stay on particular floors.

       On prior occasions, the defendant failed to keep appointments to meet with Lopez.

       A request for a formal workers’ compensation hearing was made but later withdrawn.

       Copies of cancelled benefit checks paid to the defendant were entered into evidence.

       Kemper Insurance Company sold its claims operation in July, 2003. Broadspire Services was set up as a stand-alone third party claims administrator for Kemper Insurance Company.

       General Statutes § 31-290c (a) provides in relevant part: “Any person . . . who makes . . . any claim for benefits, receives . . . benefits . . . under this chapter based in whole or in part upon (1) the intentional misrepresentation of any material fact including, but not limited to, the existence, time, date, place, location, circumstances or symptoms of the claimed injury or illness or (2) the intentional nondisclosure of any material fact affecting such claim . . . shall be guilty of a class B felony if the amount of such benefits exceeds two thousand dollars. . .

       The jury had a copy of the amended information dining its deliberations.

       The defendant did not take an exception to the charge that was given.

       The following colloquy transpired between defense counsel and the court:
      “[Defense Counsel]: I’m talking about a claim to the employer. The statute’s based on the claim to the employer that’s based upon fraud. We don’t have sufficient evidence of what exactly, what was that claim, and, therefore, the jury has to speculate as to what was claimed or what was withheld. And you can’t speculate. The state has to establish that.
      “The Court: I understand that juries are not supposed to speculate, but is it speculation that she withheld the fact that this was a staged robbery?
      “[Defense Counsel]: Yes. We don’t know the circumstances she claimed the injury occurred in or what the injury was.
      “The Court: If you write to the [workers’] compensation commission and say I staged a robbery at the hotel, I took $114,000 worth of money and checks and credit card slips or whatever they use there, and I got hurt during a robbery that I conspired to create and participate in, and falsify, they’re still going to give you [compensation]?
      “[Defense Counsel]: I wouldn’t think so.
      “The Court: I wouldn’t think so, either. . . . Here, I do not think that the jury had to engage in speculation. The state limited its information, redrafted it to comply with what I thought was the legitimate claim by the defense of a lack of evidence on the one half of the statute that was charged and proceeded on the other section of the statute.
      “I believe there was sufficient evidence that did not require the jury to speculate to reach [the] conclusion which it reached, and, parenthetically, it’s the second jury to reach the conclusion about the nature of the robbery at that hotel a few years ago.” Evidence of the defendant’s prior conviction was not before the jury. See footnote 1.

       As the court properly instructed the jury, “the state of Connecticut has the burden of proving this, [the] burden of proving all of the elements that the [court] is going to tell you that they have to prove. The defense doesn’t have to prove [the defendant’s] innocence.” In this case, the state was required to prove a negative. The fact that the state must prove its case beyond a reasonable doubt does not, however, preclude the defendant from presenting admissible evidence that may defeat the state’s case.

       The state also argues that the jury reasonably could have found that the defendant was not injured during the robbery. We decline to analyze this argument, as it was not the basis on which the court denied the defendant’s motion for a judgment of acquittal.

       The defendant does not claim that she was in custody at the time she invoked her right to counsel or that she had been advised of her right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Evidence of a defendant’s postarrest silence is a violation of the defendant’s state and federal constitutional rights. See Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State
        v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922). The defendant concedes that evidence of a defendant’s prearrest silence is not inadmissible on the same constitutional grounds; see State v. Leecan, 198 Conn. 517, 521-23, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); but she has raised the claim for purposes of further appeal.

       The court instructed the jury: “Now, on cross-examination the detective answered a question concerning the interview with the defendant on June 10,1 believe, at her home, but your recollection of the evidence controls. To some extent, one of his answers was not responsive, and I am going to strike that, in addition to something you couldn’t consider because of the rights we all enjoy. And one of those rights we all eryoy and we all possess by being in this country is the right to counsel. So, any comment about the invocation of the right to counsel was not responsive and is not to be considered by you in any way, shape or form.”

       Earlier in his cross-examination of Lopez, defense counsel conducted the following inquiry:
      “Q. Was there some reason you didn’t meet with her to take a written statement after what transpired?
      “A. With the phone call?
      “Q. Following the phone call.
      “A. Well, there was a point in time when I did try to meet with her with a written statement.
      “Q. I am talking about March 8 at this point again.
      “A. Well, I felt there should be some more information and more facts known.
      “Q. Okay. But at least at that point she didn’t say to you I am not going to give you a statement?
      “A. Not at that point.
      “Q. She didn’t refuse. And isn’t it true that you never did take a statement from [the defendant]?
      “A. No, I did not.”

       The portion of the defendant’s brief concerning this claim commences with a concession that materiality is a question of law for the court to determine, not a question of fact for the jury. She raises the claim for the sake of future review.

       “Although our Supreme Court decided Fabricatore pursuant to a Golding analysis, an argument has been made that a waiver analysis should be applied when an appellant waives a constitutional right to a trial but attempts to undo the waiver by asserting a constitutional claim on appeal and requesting Golding review. See State v. Arluk,, [75 Conn. App. 181, 192, 815 A.2d 694 (2003)] (Landau, J., concurring). Although the Fabricatore court relied, in part, on Arluk,, it did not distinguish a Golding analysis from a waiver analysis, although it implied that a waiver analysis equally would be valid by noting that a change in strategies would amount to induced error. See State v. Fabricatore, supra, 281 Conn. 480-81.” State v. McDaniel, 104 Conn. App. 627, 635 n.6, 934 A.2d 847 (2007), cert. denied, 285 Conn. 912, 943 A.2d 471 (2008).

       We also note that during his final argument to the jury, defense counsel stated: “So, the state has to prove that she didn’t disclose something. The state has to prove that she, that it was an important thing, a material thing, and [it has] to prove that she didn’t disclose it on purpose.”

       The following colloquy transpired between defense counsel and the court:
      “The Court: Did [counsel] read the third edition or third draft of the instruction?
      “[Defense Counsel]: Yes, Your Honor.
      “The Court: Any problems with that?
      “[Defense Counsel]: Just a typo concerning the $2000 versus the $5000 issue.
      “The Court: Okay. Is there anything else about the instruction other than fixing the numbers?
      “[Defense Counsel]: No, Your Honor.”


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JASON J. OSIMANTI
    (AC 28258)
    Bishop, Robinson and Mihalakos, Js.
    Argued September 22
    officially released December 23, 2008

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Jason Osimanti, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). On appeal, the defendant claims that the trial court (1) denied him his constitutional and statutory rights to present relevant self-defense evidence, (2) improperly instructed the jury on self-defense, (3) failed to inquire adequately into alleged juror bias and (4) improperly instructed the jury on reasonable doubt. We affirm the judgment of the trial court.

The jury heard the following evidence from which it reasonably could have made factual determinations. On July 14, 2005, the defendant was at Custom Creations, an auto body shop owned by Orlando Rodriguez, located at 68 Elizabeth Street, Bridgeport. Rodriguez’ apartment, located at 39 Elizabeth Street, was across the street. Adjacent to the shop was an empty lot. The defendant, a painter, had just returned from Rodriguez’ apartment, where the defendant was monitoring the progress of two painters who were working for him. While at the shop, the defendant had been drinking alcohol, but he did not appear to be intoxicated. At one point, Rodriguez asked the defendant to pick up John Bamum, the victim, and to bring him to the shop. Rodriguez had been friendly with the defendant and the victim for “a couple of years.”

When the defendant returned to the shop with the victim, both men appeared to be angry, and they were arguing. The victim accused the defendant of driving erratically on the way back to the shop. The argument between the defendant and the victim increased to the point that the victim threw things at the defendant and tried to fight him. Concerned that the argument was escalating, Rodriguez stepped between the defendant and the victim and told them to take their argument outside.

After the defendant and the victim went into the empty lot adjacent to the shop, their argument turned physical. At trial, Rodriguez could not recall who threw the first punch. Cynthia Morales, Rodriguez’ live in girlfriend, indicated that as she was returning home from the grocery store, she saw the altercation. She and Rodriguez told the defendant to get into his car, which was parked in front of the shop, and to go home. Once Rodriguez was eventually able to separate the two men, he told the defendant again to leave, and Rodriguez pushed the victim into his shop, and he positioned himself at the shop’s front door to prevent the victim from going outside.

At this point, the defendant went to his car, from which he retrieved a four inch long painter’s hook. This was the first time that Rodriguez had seen either man with a weapon. Upon seeing the defendant with the hook, the victim took a mallet from the shop and returned to the empty lot where he used the mallet to strike the defendant in the back. Rodriguez took the mallet from the victim and pushed the victim back inside his shop, but the victim immediately exited the shop through a side door and returned to the lot where a second physical altercation ensued between the victim and the defendant. At this point, Rodriguez separated the two men, told the defendant to go home and began walking the victim toward the apartment he shared with Morales. As Rodriguez was pushing the victim along the street toward his apartment, the victim was screaming at the defendant and trying to break free from Rodriguez’ grasp while the defendant, in turn, was antagonizing the victim to fight with him. Morales, who had since returned to the apartment, could see Rodriguez and the victim approaching. Once Rodriguez and the victim had reached the apartment driveway, Morales came downstairs, where she and Rodriguez calmed the victim down. At that point, the victim was no longer arguing with the defendant.

George Castellini, who lived across the street from Custom Creations, saw the defendant approach Rodriguez and the victim as they were walking away from the lot. He heard Rodriguez tell the defendant to leave and the victim to go into his apartment. The victim, however, refused to go into the apartment because Rodriguez’ children were inside and the victim had to “put a stop to [the defendant].”

As the defendant neared, Rodriguez observed that he was carrying a Sheetrock knife. The victim, in turn, did not have any weapons. Castellini heard Rodriguez say, “Don’t you dare come over here,” and he heard the victim say, “What are you going to do with that knife?” The defendant stopped following Rodriguez and the victim after Rodriguez shouted for him to stay away. At this point, the defendant was approximately forty-five feet from his vehicle and sixty to seventy feet from the victim and Rodriguez. The victim then walked back into the road and toward the defendant where the two men continued arguing. The victim charged the defendant, and the two men began wrestling in the street near the empty lot. The defendant then swung the Sheetrock knife at the victim to keep him at bay. Rodriguez returned to the lot and separated the men again, both men moving to opposite sides of the street. As the defendant bent down to pick up the knife that had fallen to the ground, Rodriguez charged him, knocking the defendant to the ground. While Rodriguez had the defendant pinned to the ground, the victim began kicking the defendant. The defendant claimed that as Rodriguez got off of him and separated him and the victim, the defendant grabbed the Sheetrock knife and tried to stand up because he did not want to be struck again and he feared that if he did not get up, Rodriguez and the victim would kill him. As the defendant was attempting to regain his footing, he and the victim resumed fighting. As the defendant arose, he swung the Sheetrock knife at the victim, stabbing him twice in the chest. Bleeding, the victim fell to the ground and died soon thereafter.

Immediately after the stabbing, the defendant walked to his car and left, taking the Sheetrock knife with him. He was subsequently arrested at his home and taken to the police station, where he admitted that he stabbed the victim but asserted that he acted in self-defense. The defendant was charged with one count of murder in violation of General Statutes § 53a-54a (a). On September 18, 2006, after a jury trial, the defendant was found not guilty of murder but guilty of the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a) (l). On October 23, 2006, the defendant was sentenced to the custody of the commissioner of correction for a period of twelve years, and upon completion of this sentence, to a term of five years special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that certain of the court’s evidentiary rulings constituted an abuse of discretion and deprived him of his constitutional right to present a claim of self-defense as guaranteed by the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. He argues, also, that the court’s limitation of his cross-examination of the victim’s former girlfriend, Angela Giglio, obstructed his constitutional right to confrontation. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. During voir dire of Giglio, outside the presence of the jury, the state limited its direct examination regarding her interactions with the victim to the period of February, 2005, to July 14, 2005. In response, the defendant made an offer of proof, on the basis of police reports concerning arguments between Giglio and the victim that occurred prior to February, 2005, in an effort to demonstrate, by cross-examination of Giglio, that the victim had a propensity for violence when intoxicated. In response to questioning by the defendant, Giglio testified that she did not remember the incident described in an October, 2003 police report that was shown to her, but she did recall getting into arguments with the victim at times and calling the police because he would not leave her house. She further testified that during the 2003 time frame, she occasionally feared that her arguments with the victim would become physical, and, in response to the defendant’s questioning, Giglio acknowledged that the victim had violated a protective order that she had obtained from the court. When the defendant asked Giglio if she remembered telling the police that when the victim drank he became violent, she answered affirmatively but noted that the victim did not get violent every time he drank. On the basis of this testimony elicited during voir dire, the defendant requested that he be permitted to question Giglio, before the jury, about incidents that occurred prior to February, 2005. Specifically, the defendant sought to question Giglio about comments she had made to police officers that the victim was “nice when he’s not drinking alcohol” and her fear that the victim would be “violent to her.” The court denied the defendant’s request. Thereafter, Giglio testified before the jury that she had known the victim for nine years and was the mother of his children. In response to the state’s question on direct examination as to whether Giglio had contact with the victim between February and July, 2005, she indicated that she had approximately sixty contacts with the victim during that period. She further testified that she was of the opinion that the victim was not a violent person during that period.

Although the court limited the defendant’s cross-examination of Giglio to events that occurred after February, 2005, it admitted evidence that the victim had been convicted of (1) threatening in the second degree on May 26, 2004, (2) assault in the third degree, four separate times, between July 16, 1993, and June 26, 2002, and (3) assault in the second degree on September 24, 1990. The jury also heard testimony that the victim was in prison numerous times between 1982 and 2004 and that the department of correction had designated him a member of the Latin Kings street gang. Further, the defendant was able fully to cross-examine each witness who observed the confrontation and to present witnesses on his behalf to establish his self-defense claim. The defendant also testified that the victim had told him that the victim was “down with the Hell’s Angels” and a Latin King, gangs that the defendant knew to be extremely violent. Through such testimony, the defendant was able to establish that he feared the victim, that he feared for his life when he was held down by Rodriguez and kicked by the victim, and that he did not believe that he could safely retreat to his car. The defendant introduced evidence that the victim was the initial aggressor and that the victim never withdrew from the confrontation.

We next set forth the applicable standard of review. “Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. . . . [I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“The court’s discretion, however, comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment [to the United States constitution]. . . . The sixth amendment . . . guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. . . . [P]reclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. ... In determining whether such a violation occurred, [w]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Thomas, 110 Conn. App. 708, 721-22, 955 A.2d 1222 (2008).

The defendant argues that the excluded testimony regarding the victim’s propensity for violence would have raised a reasonable doubt as to the evidence produced by the state to disprove self-defense because it included evidence that the victim violated a protective order obtained by Giglio and that the victim became violent when drunk. The defendant contends that without that testimony, the juiy could not fairly evaluate the issue of who had been the initial aggressor and the reasonableness of the defendant’s acts or state of mind in response to the victim’s conduct during the altercation. We are not persuaded.

We conclude that the defendant’s cross-examination of Giglio was not unduly restricted and that the limitation imposed by the court did not infringe on the defendant’s confrontational and due process rights. Even without Giglio’s testimony regarding events between her and the victim prior to February, 2005, there was a wealth of testimony regarding the victim’s propensity for violence. Moreover, the limitation imposed by the court did not prejudice the defendant because there was no dispute that the victim was violent during his fatal altercation with the defendant. Accordingly, we conclude that the court did not abuse its discretion or deprive the defendant of any constitutional rights in restricting the scope of defense counsel’s cross-examination of Giglio.

II

The defendant next claims that the court improperly instructed the jury regarding self-defense. Specifically, the defendant argues that the court failed to charge the jury as requested and, instead, confused an initial aggressor’s obligation to withdraw with the duty of one using deadly force to retreat if such retreat is available and known to be completely safe. We find the defendant’s allegation to be without merit.

It is well noted that “[a] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. . . . This fundamental constitutional right includes proper jury instructions on the elements of self defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. . . . An improper instruction on a defense ... is of constitutional dimension. . . . [T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed 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. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Terwilliger, 105 Conn. App. 219, 225-26, 937 A.2d 735, cert. granted on other grounds, 286 Conn. 902, 943 A.2d 1103 (2008).

The defendant argues that the court’s use of the word “retreat” and then “withdraw” in the initial aggressor instruction confused the jury. The defendant also notes that when the jury sought reinstruction on self-defense and on the duty to retreat, the court recharged, this time charging that the self-defense statute focuses on whether the defendant “subjectively” knew that safe retreat was available. The defendant excepted and sought a charge that “a person has no duty to retreat when simply confronted with the threat of physical force.” The court did not give the defendant’s requested charge. The jury then requested reinstruction on self-defense other than the duty to retreat. The court recharged, reiterating its initial self-defense instruction. The defendant excepted.

We conclude from our reading of the record on the court’s charge on the defendant’s duty to retreat that the charge complied with General Statutes § 53a-19 (b) and (c) (2). The court’s charge on self-defense included the following: “If you find beyond a reasonable doubt that a safe retreat was available and that the defendant knew about it, you should reject the self-defense claim.” This portion of the charge parallels the language in § 53a-19 (b), which provides in relevant part: “[A] person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety ... by retreating . . . .” General Statutes § 53a-19 (b). Further, this court approved similar language in State v. Ortiz, 79 Conn. App. 667, 676, 830 A.2d 802, cert. denied, 266 Conn. 933, 837 A.2d 806 (2003). The court then charged: “You must also reject the defendant’s self-defense claim if the state proves beyond a reasonable doubt that the defendant was the initial aggressor and did not adequately retreat. ... If you find that the defendant was the initial aggressor, the defendant’s use of force may still be justified if he withdrew from the encounter and made it clear to the other person that he was retreating from the use of force.” (Emphasis added.) The court’s charge is in line with § 53a-19 (c), which provides in relevant part: “[A] person is not justified in using physical force when . . . (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force . . . .” (Emphasis added.) General Statutes § 53a-19 (c). Although the court substituted the word “retreat” for the word “withdraw” in its charge, this court has held that such a minor mistake was not sufficient to mislead the jury. State v. Ramirez, 107 Conn. App. 51, 61, 943 A.2d 1138 (finding court did not mislead jury when it used “retreat” rather than “withdraw” in self-defense instructions), cert. granted on other grounds, 287 Conn. 915, 950 A.2d 1290 (2008). Further, “[w]e have held that an inadvertent slip of the tongue in summarizing jury instructions does not mean that a defendant was deprived of his right to a fair trial when the record reveals that the court properly instructed the jury on the elements of the crime.” State v. Mahon, 97 Conn. App. 503, 519, 905 A.2d 678, cert. denied, 280 Conn. 930, 909 A.2d 958 (2006).

On the basis of the foregoing, we conclude that the court fairly instructed the jury on self-defense and the duty to retreat.

Ill

The defendant next claims that the court failed to inquire adequately into juror bias when, after testimony that the victim was a Latin King, a sitting juror alerted the court that a family member and some of the juror’s friends were Latin Kings. The defendant further argues that the court should have removed the juror for cause. The state counters that the court made a sufficient inquiry into whether the juror could be fair and impartial and that the defendant failed to prove actual prejudice. We agree with the state.

The following additional facts are relevant to our resolution of the defendant’s claim. During trial, the captain of the department of correction’s intelligence unit testified that while incarcerated, the victim had been designated as a member of the Latin Kings. Immediately following that testimony, a juror alerted the court that one of his family members and some of the juror’s friends were Latin Kings. Both parties agreed that further inquiry should be made into the juror’s potential partiality. The defendant suggested that the court ask the juror whether sitting on a case with testimony regarding the Latin Kings would make him feel uncomfortable because of his association with the Latin Kings. The court’s inquiry was as follows:

“The Court: [Juror H],1 have got the note that—and we appreciate, you know, you’re up front in telling us about this—that you know some Latin Kings. As a matter of fact, you have a relative that’s a member of Latin Kings. The fact that that’s your situation, would that in any way impact your ability to be a fair and impartial juror?
“[Juror H]: No, it wouldn’t, Your Honor.
“The Court: The fact that it’s claimed that the deceased in the matter was a Latin King, would that in any way impact on you from your knowledge of Latin Kings and a relative who’s a Latin King?
“[Juror H]: No, it wouldn’t, Your Honor.
“The Court: Do you feel that this knowledge which you have told us about would in any way detract from your ability to be a fair and impartial juror in this case?
“[Juror H]: No, it wouldn’t.”

The court thereafter concluded: “The knowledge of knowing Latin Kings and having a relative that is a Latin King, as has been stated by counsel, can cut both ways. He said that it wouldn’t affect him either way, that he could remain a fair and impartial juror; wouldn’t affect him one way or the other. My observation of him is that he was particularly strong, straightforward and certain in that regard, and the court is not going to remove him from the jury because of the information that he has given to us this evening. So, he’ll remain a regular member of the jury.”

The defendant claims that the court’s failure to ask the juror why he raised the matter and its failure to ask open-ended questions that would have enabled the juror to “air his concerns” constituted an inadequate inquiry. The defendant further argues that the court’s failure to conduct an adequate inquiry resulted in an insufficient record from which to determine whether he received a fair trial. The defendant contends that because the record is too barren to determine the extent of jury bias and whether that bias may have prejudiced the defendant, the case must be remanded for an adequate hearing. We disagree.

“To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment ... a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. . . .

“Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations [or the possibility] of jury [bias or] misconduct will necessarily be fact specific. . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged [or possible] jury misconduct can fairly be characterized as an abuse of its discretion. . . . Although we recognize that trial [c]ourts face a delicate and complex task whenever they undertake to investigate [the possibility] of juror misconduct or bias . . . we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred. . . . Ultimately, however, [t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact. . . .

“Consequently, the trial court has wide latitude in fashioning the proper response to allegations [or the possibility] of juror bias. . . . [W]hen . . . the trial court is in no way responsible for the [possible] juror misconduct [or bias], the defendant bears the burden of proving that the misconduct [or bias] actually occurred and resulted in actual prejudice. . . .

“[W]here the defendant claims that the court failed to conduct an adequate inquiry into possible juror bias or prejudice, the defendant bears the burden of proving that such bias or prejudice existed, and he also bears the burden of establishing the prejudicial impact thereof.” (Internal quotation marks omitted.) State v. Brown, 96 Conn. App. 700, 704-706, 901 A.2d 86, cert. denied, 280 Conn. 912, 908 A.2d 539 (2006).

In this instance, the record reveals that the court conducted a sufficient inquiry. The court asked the juror three questions regarding his ability to remain impartial even though the juror knew, and was related to, members of the Latin Kings and the victim was a Latin Kings member. As the juror repeatedly stated that he could be fair and impartial, it was within the judge’s discretion to find him credible. There was nothing contained in the juror’s answers that demanded further inquiry by the court. When a court’s inquiry is adequate and the court has found the absence of any juror impropriety, the defendant has failed to establish juror bias. Id., 706. In this instance, we find no fault with the court’s conclusion that this juror could fairly and impartially continue to serve. Under this circumstance, therefore, the defendant has failed to demonstrate that juror bias likely occurred and resulted in actual prejudice to him. See State v. Owens, 100 Conn. App. 619, 629, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007). We conclude, therefore, that the court did not abuse its discretion by the limited scope of its investigation of alleged juror bias and that the court’s conclusion regarding the absence of juror bias finds adequate support in the record.

IV

The defendant’s final claim on appeal is that the court improperly instructed the jury on reasonable doubt. Specifically, he argues that the court unconstitutionally diluted the state’s burden of proof by instructing the jury that reasonable doubt is defined as “doubt people would act on,” “heed to” or a doubt that is “substantial, real or honest.” The defendant has acknowledged that the court’s instructions regarding reasonable doubt have been upheld previously by our Supreme Court. See, e.g., State v. Johnson, 288 Conn. 236, 288-90, 951 A.2d 1257 (2008); State v. Velasco, 253 Conn. 210, 248-49, 751 A.2d 800 (2000); State v. Griffin, 253 Conn. 195, 207, 749 A.2d 1192 (2000). Because it is not this court’s province to “ ‘reexamine or reevaluate Supreme Court precedent’ ”; State v. Martinez, 95 Conn. App. 162, 193, 896 A.2d 109, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006); we reject this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       On the date of the incident, Morales and Rodriguez lived together. They were no longer involved or living together at the time of the trial.

       Rodriguez testified that when the victim left the shop, he was wielding a “rubber mallet.” George Castellini, who witnessed the incident from across the street, testified that it was a “five pound sledgehammer ... a heavy duty mallet.”

       The object causing the victim’s death was variously referred to as a “knife,” “Sheetrock knife,” “saw,” “Sheetrock saw” and “keyhole saw.”

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       The defendant also argues that the jury charge Improperly removed from the jury the factual question of whether he was at his place of work at the time of the incident. Pursuant to General Statutes § 53a-19 (b), an “actor shall not be required to retreat if he or she is in his or her . . . place of work . . . .” The record reveals, however, that the stabbing occurred in an empty lot, which was a public place, not the defendant’s place of work. Therefore, we need not reach the question of whether Rodriguez’ apartment, where the defendant claimed he was working, could be construed as his workplace.

       The challenged portion of the court’s self-defense instruction is as follows: “The self-defense statute focuses on the person claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact as to whether a safe retreat was available and whether the defendant objectively knew of it. . . . The duty to retreat is limited to the specific point in time that the defendant used deadly physical force upon the decedent. It is up to you to determine when the defendant used deadly physical force upon the decedent. If you find beyond a reasonable doubt that a safe retreat was available and that the defendant knew about it, you should reject the self-defense claim. ... So, you must ask yourselves, did the defendant know that he could avoid the use of deadly physical force by retreating safely? . . . You must also reject the defendant’s self-defense claim if the state proves beyond a reasonable doubt that the defendant was the initial aggressor and did not adequately retreat. . . . If you find that the defendant was the initial aggressor, the defendant’s use of force may still be justified if he withdrew from the encounter and made it clear to the other person that he was retreating from the use of force.” (Emphasis added.)

       To protect the privacy of the juror, we refer to him by initial. See State v. Newsome, 238 Conn. 588, 624 n.12, 682 A.2d 972 (1996).

       The defendant requested that the court charge that “[a] reasonable doubt is a doubt based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act. The jury will remember that a defendant is never to be convicted on mere proof of probable guilt, but only when the state has carried its burden of proof beyond a reasonable doubt. ...”
      The court charged the jury in relevant part: “[Reasonable doubt] is such a doubt as in the 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’s 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. 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 was 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 explanation.”