author: ESPINOSA, J.

text:
    JEFFREY GIBSON v. COMMISSIONER OF CORRECTION
    (AC 32299)
    Robinson, Espinosa and Peters, Js.

      Argued November 28, 2011
    officially released May 1, 2012

      Damon A. R. Kirschbaum, for the appellant (petitioner).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

ESPINOSA, J.

The petitioner, Jeffrey Gibson, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying the petition for certification to appeal, claiming that (1) the court improperly excluded testimony concerning a confidential informant and failed to conduct an in camera review of records concerning the informant, (2) the court improperly excluded from the evidence a police report, (3) his due process right to a fair trial was violated when, during his criminal trial, the prosecutor failed to disclose material evidence that was favorable to the defense and (4) his counsel, during a prior habeas proceeding, rendered ineffective assistance. We conclude that the court did not abuse its discretion in denying certification to appeal and, therefore, dismiss the appeal.

The following procedural history underlies the present appeal. In 1997, the petitioner was convicted of the crimes of murder and carrying a pistol or revolver without a permit. At the petitioner’s criminal trial, Kathryn Hutchings testified on behalf of the state as an eyewitness to the shooting incident underlying the petitioner’s convictions. She testified that the petitioner was the initial aggressor in the shooting death of the victim. The petitioner was sentenced to a total effective term of incarceration of forty-five years. Following the petitioner’s direct appeal, this court affirmed the judgment of conviction. State v. Gibson, 56 Conn. App. 154, 742 A.2d 397 (1999). In 2003, in a prior habeas proceeding, the petitioner filed an amended petition for a writ of habeas corpus in which he alleged that his trial counsel, special public defender Donald Dakers, provided ineffective assistance. The habeas court denied the petition and this court dismissed the petitioner’s appeal from that judgment. Gibson v. Commissioner of Correction, 98 Conn. App. 311, 908 A.2d 1110 (2006), cert. denied, 281 Conn. 908, 916 A.2d 49 (2007).

In November, 2009, in the present habeas proceeding, the petitioner filed a second amended petition for a writ of habeas corpus in which he claimed that: (1) at his criminal trial, the state improperly failed to disclose material evidence that was favorable to the defense in violation of his due process right to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), (2) his trial counsel, Dakers, rendered ineffective assistance and (3) his counsel in the prior habeas proceeding, Robert J. McKay, rendered ineffective assistance in that he failed to raise the claim that the state improperly failed to disclose material evidence at his criminal trial. The court dismissed the second count of the petition on the ground of res judicata, relying on the fact that, in his prior habeas petition, the petitioner raised an ineffective assistance of counsel claim concerning Dakers. Following an evidentiary hearing, the court, in a thorough memorandum of decision, rejected on their merits the remaining counts of the petition. The court concluded that the Brady claim lacked merit and, for that reason, the petitioner was unable to demonstrate that he was prejudiced as a result of McKay’s failure to pursue the Brady claim in the prior habeas petition. The court denied the petitioner’s petition for certification to appeal from its decision. This appeal followed.

In an attempt to discourage frivolous appeals; see Henderson v. Commissioner of Correction, 129 Conn. App. 188, 191, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011); our legislature enacted General Statutes § 52-470 (b), which provides that a petitioner may not appeal from an adverse judgment in a habeas proceeding unless the habeas court certifies that one or more questions ought to be considered by a reviewing court. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and the applicable legal principles. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 428-29, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011). Having set forth the principles guiding our analysis, we turn to the claims set forth by the petitioner.

I

First, the petitioner claims that, during the present habeas proceeding, the court improperly excluded testimony concerning a confidential informant and failed to conduct an in camera review of records concerning the informant. The petitioner presented evidence that, prior to the shooting incident underlying the petitioner’s arrest, Hutchings was a paid confidential informant in illegal drug cases for the New Haven police department. It was not disputed that the state did not disclose this information to the petitioner at the time of the criminal trial. During the petitioner’s criminal trial, Hutchings testified on the state’s behalf as an eyewitness, but there was no evidence presented at the criminal trial or in the present habeas trial that, in connection with the petitioner’s case, Hutchings had provided information to the police or testified for the state as an informant.

At the habeas trial, the petitioner called New Haven police department record keeper Roger Young. Young, in accordance with a subpoena, brought confidential police records to court that included information about Hutchings’ role as an informant in several criminal cases, all of which were unrelated to the petitioner’s case. The respondent, the commissioner of correction, objected to the disclosure of any information from these records on the ground that they were privileged records relating to a confidential informant; see Roviaro v. United States, 353 U.S. 53, 59-62, 77 S. Ct. 623, 1 L. Ed 2d 639 (1957) (defining nature and scope of informer’s privilege and establishing test for assessing challenges to privilege); and on the ground that the records were irrelevant to the present case.

The petitioner argued that the information concerning Hutchings’ role as a confidential informant in other cases was relevant because it tended to prove his claim that the state failed to disclose information that would have been useful to the petitioner in confronting Hutch-ings at his criminal trial. Beyond stating that the evidence was necessary to confront the witness at trial, the petitioner did not elaborate with regard to the issue of relevancy. The court sustained the respondent’s objection. The court reasoned that it already had before it ample evidence from police witnesses that Hutchings was a confidential informant. The court expressed its intent to protect the confidentiality of the records at issue absent a sufficient showing that they should be disclosed. Nonetheless, it based its decision to limit the petitioner’s inquiry on the fact that the information sought by the petitioner was not relevant to the present case. As the court explained: “[F]urther details of whatever participation [Hutchings] may have had with the New Haven police department [are] not relevant to the [determination of this case. It matters not whether she was a confidential informant in one case or in a hundred cases. It matters not whether she provided useful information in several prosecutions or nonuseful information.” On this ground, the court precluded inquiry by the petitioner into any further details concerning Hutch-ings’ status as a confidential informant, such as information about when she first was registered as an informant, the first time she was paid as an informant, how much she was paid, how many times she was paid and which officers paid her.

Thereafter, the petitioner requested that the court conduct an in camera review of the subpoenaed records, which comprised fourteen banker’s boxes. The petitioner argued that such a review was warranted to uncover information about Hutchings that would have been “material to the defense, material to the case,” yet had not been disclosed by the state. The petitioner argued that the information sought was related to Hutchings’ status as a confidential informant, such as when she began to act as an informant, how much she was paid in connection with her role as informant and which officers paid her for information. The court denied the request because it determined that the information sought was immaterial, but it ordered the police department not to destroy the records at issue for at least ninety days after the conclusion of court proceedings in this case.

The petitioner challenges these rulings by arguing, as he did at trial, that Hutchings’ status as a confidential informant in other cases was relevant to proving that a Brady violation had occurred, as alleged in his petition for a writ of habeas corpus. “We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . The trial court has wide discretion to determine the relevancy [and admissibility] of evidence .... In order to establish reversible error on an evidentiary impropriety .. . the defendant must prove both an abuse of discretion and a harm that resulted from such abuse. . . . The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Citation omitted; internal quotation marks omitted.) State v. Stephenson, 131 Conn. App. 510, 527-28, 27 A.3d 41 (2011).

As the court observed, at the time of its ruling, the petitioner had presented ample evidence that Hutchings had been a confidential informant for the New Haven police department in illegal drug cases. Hutchings’ identity as an informant was integral to the petitioner’s claim that the state, at the criminal trial, improperly failed to disclose this information and that McKay improperly failed to pursue a Brady claim at the first habeas proceeding. At the time of the court’s ruling, however, the petitioner’s attorney made clear that the petitioner did not allege that Hutchings was a confidential informant in the petitioner’s criminal case or that there was any evidence in the record to support such a contention. Rather, as stated previously, the petitioner argued only in general terms that the evidence at issue was relevant because Hutchings’ role as a confidential informant in other cases, unrelated to that of the petitioner, would have been useful in confronting Hutchings at the criminal trial and, thus, would have helped to prove that a Brady violation occurred.

We readily conclude, as did the habeas court, that the evidence at issue was not relevant to any issue before the habeas court. The petitioner had a right to present evidence that supported his claim that undisclosed information about Hutchings prejudiced his defense. “To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material.” State v. Esposito, 235 Conn. 802, 813, 670 A.2d 301 (1996). The court excluded inquiry related to the records on the ground of relevancy, and we review its ruling in light of the ground of admissibility articulated by the petitioner at the time of the ruling. See, e.g., State v. Mungroo, 104 Conn. App. 668, 680 n.1, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).

Although impeachment evidence, like exculpatory evidence, falls within Brady's ambit; State v. Esposito, supra, 235 Conn. 813-14; the petitioner did not demonstrate before the habeas court that the evidence had probative value in that it would have been useful to confront Hutchings. On this record, we do not conclude that the excluded inquiry likely would have yielded evidence that was either favorable or material to the claims before the court. Accordingly, we conclude that the court properly sustained the respondent’s objection.

For similar reasons, we reject the claim that the court improperly failed to conduct an in camera review of the police department records. The petitioner, at the habeas trial, argued that the records at issue were relevant to demonstrate that he was unable to fully confront Hutchings at his criminal trial. Addressing the tension between a defendant’s right to confront adverse witnesses and the need to uphold the confidentiality of privileged records, our Supreme Court, in State v. Esposito, 192 Conn. 166, 179-80, 471 A.2d 949 (1984), set forth a procedure for the disclosure of confidential records for the purpose of revealing impeaching information. The court held that a defendant seeking to compel an in camera inspection of privileged records “must [make] a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation . . . .” Id., 179. “To meet this burden, the defendant must do more than assert that the privileged records may contain information that would be useful for the purposes of impeaching a witness’ credibility. . . . [T]he defendant’s offer of proof should be specific and should set forth the issue in the case to which the [confidential] information sought will relate.” (Citations omitted; internal quotation marks omitted.) State v. McClelland, 113 Conn. App. 142, 160-61, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). If an in camera review of the records is permitted and is appropriate, it lies within the court’s discretion to determine whether the record contains relevant material that, in the interest of the defendant’s constitutional right to confront his accusers, must be disclosed. State v. Esposito, supra, 180.

Insofar as the petitioner’s claim is rooted in the constitutional guarantee of due process, we observe that, “to compel an in camera review under the due process clause, the defendant must at least make some plausible statement of how the information [sought to be disclosed] would be both material and favorable to his defense. . . . [Fjavorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist. ... On the other hand, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient, to undermine confidence in the outcome.” (Citation omitted; internal quotation marks omitted.) State v. McClelland, supra, 113 Conn. App. 163. A mere suspicion that there might be something exculpatory in privileged records does not sufficiently justify an in camera inspection. Id., 164.

“We review the court’s conclusion that the defendant was not entitled to an in camera review of the confidential documents pursuant to our standard of review for the court’s evidentiary rulings. . . . The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Smith, 94 Conn. App. 188, 195, 891 A.2d 974, cert. denied, 278 Conn. 906, 897 A.2d 100 (2006).

At the time he requested an in camera review by the habeas court, the petitioner’s attorney stated that he had “a reasonable basis to believe that there are records, confidential informant records, that show when Kathryn Hutchings became a confidential informant, when she was paid, how much she was paid [and] the police officers that she was paid by.” The petitioner’s attorney stated: “[T]here is a reasonable basis to believe that there’s information in these records, confidential informant records, that’s material to the petitioner’s claim. There’s information that would have been material to the confrontation [and] cross-examination of Kathryn Hutchings at the criminal trial.” The court, concluding that the information sought by means of an in camera review was “immaterial,” denied the request.

We carefully have reviewed what the petitioner’s attorney conveyed to the court in support of his request for an in camera review of the privileged records. The petitioner’s attorney stated with specificity the type of information about Hutchings that was the subject of his request. As set forth previously, this information related to Hutchings’ activities as a confidential informant in unrelated criminal cases. Before the habeas court, the petitioner bore the burden of demonstrating why an in camera review would have yielded evidence relevant to his Brady claim. The petitioner argued, in general terms, that he believed such review would have yielded information that would have been helpful to the defense in its “confrontation” and “cross-examination” of Hutchings at the criminal trial. Assuming that the specific information sought appeared in the records, we, as did the habeas court, conclude that the petitioner did not make a showing that the information would have been useful in impeaching Hutchings or that it would have been material evidence for the defense. For these reasons, the petitioner has failed to demonstrate that the court’s refusal to conduct an in camera review reflected an abuse of discretion or that an injustice occurred.

II

Next, the petitioner claims that the habeas court improperly excluded from the evidence a police report concerning Hutchings. At the habeas trial, the petitioner presented testimony from Salvatore Viglione, a retired New Haven police officer. Viglione testified that, while an officer, he had responded to a breach of the peace complaint against Hutchings. During his examination of Viglione, the petitioner’s attorney asked Viglione to review his police report concerning that incident. The respondent objected to the admission of the report, primarily on the ground of relevance. The respondent argued that the report contained hearsay and that the report would not have been admissible for the purpose of impeaching Hutchings at the criminal trial and, thus, was irrelevant to the claims raised in the petition for a writ of habeas corpus.

The petitioner’s attorney represented that the report described an incident in which the police responded to a complaint, at which time they encountered Hutchings, who was behaving in a violent and threatening manner. At the time, Hutchings stated to Viglione that she could not be arrested because she was a confidential informant. The petitioner’s attorney argued: “It is our position that this document is relevant to this case because it . . . contains information that a witness . . . believes that she is a confidential informant, and her belief is something . . . that . . . should have been disclosed to the defense.” The court sustained the respondent’s objection on the ground that Hutchings’ state of mind was irrelevant to the claims raised in the petition.

Part I of this opinion sets forth our standard of review for evidentiary matters. In his brief to this court, the petitioner argues that the ruling was improper because this information concerning Hutchings’ state of mind, her belief that she was a confidential informant, “was favorable to the petitioner’s defense because it shows that Hutchings was biased in favor of the police. Importantly, the date of the report is after the shooting [underlying the petitioner’s conviction], but before the petitioner’s criminal trial.”

Evidence is relevant if it has “any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. The petitioner’s attorney made clear that he sought the admission of the report not as proof that Hutchings was a confidential informant, but as evidence of her state of mind. The petitioner, however, has not presented this court with any logical argument bolstered by relevant facts that Hutchings’ state of mind at the time of this incident, apart from the ample evidence already before the court that Hutchings was a confidential informant, was favorable to the defense and thus relevant for impeachment purposes at his criminal trial. Consequently, he has not demonstrated that the excluded evidence was relevant to the claims in his petition. On this ground, we readily conclude that the court’s ruling reflects a sound exercise of discretion.

Ill

Next, the petitioner claims that the habeas court improperly concluded that he had not demonstrated that a Brady violation occurred in that the state during his criminal trial failed to disclose that Hutchings was a paid confidential informant. As set forth previously, “[t]o establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material.” State v. Esposito, supra, 235 Conn. 813. “Whether the petitioner was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review.” (Internal quotation marks omitted.) Morant v. Commissioner of Correction, 117 Conn. App. 279, 284, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

The undisclosed evidence at issue in the present case, related solely to Hutchings’ identity as a confidential informant, is not exculpatory in nature, but is claimed to be favorable impeachment evidence. “The rule laid out in Brady requiring disclosure of exculpatory evidence applies to materials that may weU alter . . . the credibility of a crucial prosecution witness. ... In determining whether impeachment evidence is material, the question is not whether the verdict might have been different without any of [the witness’] testimony, but whether the verdict might have been different if [the witness’] testimony [was] further impeached by disclosure of the [undisclosed impeachment evidence].” (Citation omitted; internal quotation marks omitted.) Elsey v. Commissioner of Correction, 126 Conn. App. 144, 158-59, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).

At the habeas trial, the petitioner presented evidence that Hutchings was a paid informant for the New Haven police department prior to the shooting incident underlying his conviction. The petitioner argues that Hutch-ings’ identity as a paid informant tended to demonstrate her general bias in favor of that department, which investigated the shooting incident, or that she had an interest in testifying for the state. The petitioner argues that the undisclosed evidence was favorable to the defense because it would have suggested that a quid pro quo relationship existed between the police and Hutchings, that her status as an informant gave her an incentive to provide useful information to the police department.

First, we assess whether the evidence was favorable to the petitioner’s defense. We fail to see how the fact that Hutchings acted as a paid informant in unrelated cases tended to show that she had a bias in the state’s favor or a motive to testify falsely on the state’s behalf. It was not disputed that Hutchings provided information to the police concerning the shooting. The evidence showed that she did so as an eyewitness to the shooting. There was no evidence presented at the habeas trial that she was financially compensated for the information that she provided in connection with this case or that she obtained any other type of consideration for her cooperation with the police in relation to the shooting incident. Insofar as the petitioner claims that the undisclosed evidence would have supported an argument that it was in Hutchings interest to provide helpful information to the police, we conclude that such an argument was, at best, marginally favorable to the petitioner. Accord United States v. Hamaker, 455 F.3d 1316, 1328 (11th Cir. 2006) (holding in Brady context that information that government witness in criminal prosecution was confidential criminal informant in unrelated criminal investigation was at best marginal impeachment evidence).

In light of our determination that the evidence was, at best, marginally favorable to the petitioner, it follows that the evidence is not material under Brady. The record reflects that at the criminal trial the state presented very strong evidence against the petitioner, evidence that placed the petitioner at the scene of the shooting, corroborated the evidence that he was the initial aggressor and demonstrated that he took steps after the shooting to evade police apprehension, steps that included fleeing to South Carolina. The evidence included the petitioner’s statement to the police, as well as his testimony at trial, in which he claimed that he shot the victim in self-defense. Hutchings’ eyewitness testimony corroborated other evidence that the petitioner was the initial shooter, and she was thoroughly cross-examined by the petitioner’s trial attorney, Dak-ers. On this record, and in light of the marginal impeachment value of the evidence at issue, we conclude that the undisclosed evidence would not likely have had any impact on the jury in its evaluation of Hutchings and, thus, its guilty verdict.

IV

Finally, the petitioner claims that the court improperly rejected his claim that his prior habeas counsel, McKay, rendered ineffective assistance by failing to raise the Brady claim addressed in part III of this opinion. “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. . . . The claim will succeed only if both prongs are satisfied. ... As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. Thus . . . the petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . .” (Citation omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 133 Conn. App. 96, 101-102, 33 A.3d 883 (2012).

Like the trial court, we reject this claim under the prejudice prong. Our conclusion in part III of this opinion, in which we reject the petitioner’s Brady claim, necessarily leads us to conclude that there is no reasonable probability that, if McKay had raised such claim in a prior habeas proceeding, the court would have found that the petitioner was entitled to relief.

In conclusion, having evaluated each of the claims advanced by the petitioner, we conclude that he has not demonstrated that resolution of the underlying claims are debatable among jurists of reason, that a court could resolve the claims in a different manner or that the questions involved are of such a nature that they deserve encouragement to proceed further. Accordingly, we conclude that the denial of the petitioner’s petition for certification to appeal reflected a sound exercise of the court’s discretion.

The appeal is dismissed.

In this opinion the other judges concurred.

       It bears reiterating that there was ample evidence presented at the habeas trial, including testimony from Hutchings, that Hutchings was a confidential informant for the New Haven police department.

       In the return to the petitioner’s amended petition, the respondent pleaded that the petitioner had raised “a claim via his petition that could have been raised on direct appeal” and that he was procedurally defaulted from doing so under Practice Book § 23-30 (b). In his reply, the petitioner pleaded that the respondent did not sufficiently plead procedural default, no claim was procedurally defaulted and that any procedural default was cured by a showing of cause and prejudice. The habeas court did not address the issue of procedural default in its memorandum of decision. It does not appear that the respondent asked the court to rule on the issue of procedural default or otherwise brought the matter to the court’s attention.
      In his brief, the respondent argues that this court should decline to review the petitioner’s Brady claim because the petitioner was procedurally defaulted from raising it in the present habeas proceeding (because he could have raised the claim on direct appeal), and the petitioner is unable to satisfy the cause and prejudice standard. See, e.g., Guadalupe v. Commissioner of Correction, 68 Conn. App. 376, 385, 791 A.2d 640, cert. denied, 260 Conn. 913, 796 A.2d 557 (2002). For the following reasons, we need not reach the procedural default issue. First, the court did not rule on this affirmative defense. See, e.g., Crawford v. Commissioner of Correction, 285 Conn. 585, 600 n.8, 940 A.2d 789 (2008) (reviewing court not bound to consider issue of procedural default when affirmative defense not ruled on by trial court). Second, irrespective of whether cause and prejudice existed to cure a procedural default, the issue before this court is whether the petitioner established that the habeas court abused its discretion in denying the petition for certification to appeal. We must affirm that judgment based solely on our consideration of the petitioner’s underlying claims. See Taylor v. Commissioner of Correction, 284 Conn. 433, 449, 936 A.2d 611 (2007) (unresolved issue of procedural default not relevant to determination of whether court properly denied petition for certification to appeal).


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    GLADYS KRONOVITTER ET AL. v. RICHARD DOYLE ET AL.
    (AC 31799)
    Robinson, Bishop and Schaller, Js.

      Argued November 17, 2011
    officially released May 1, 2012

      William S. Palmieri, for the appellant (named plaintiff).

      Catherines. Nietzel, with whom was Peter E. DeMar-tini, for the appellees (defendants).
   Opinion

SCHALLER, J.

In this action for malicious prosecution, the plaintiff Gladys Kronovitter appeals from the judgment of the trial court, rendered after a trial by jury, in favor of the defendants, Richard Doyle and Kelly Fitch. On appeal, the plaintiff claims that the court improperly (1) instructed the jury to consider the elements of certain statutory infractions in relation to the element of probable cause, (2) admitted testimony from an expert witness without prior disclosure or a proper foundation and (3) admitted evidence pertaining to an in rem proceeding. We affirm the judgment of the trial court.

The jury found, or reasonably could have found, the following facts. At all times relevant to the present action, the plaintiff resided at 52 Flat Rock Road in the town of Easton with her brother, Edward Kronovitter. On June 26, 2000, Doyle, a municipal police officer, and Fitch, the town’s animal control officer, went to the plaintiffs home to check on her health and well-being. The condition of the plaintiffs property was poor. The vegetation was overgrown and the yard was covered with debris. The residential structure was in a state of disrepair. When the defendants located the plaintiff, she immediately requested that they leave the property. The defendants complied with this request.

On February 25, 2002, the defendants returned to the plaintiffs property to investigate complaints of dogs barking excessively during the night. On this date, the defendants observed two “ ‘makeshift pens’ ” constructed out of wooden pallets. These enclosures contained a total of approximately ten dogs and were “Uttered with dog feces.” The defendants also observed another five dogs through a window in the plaintiffs home. Edward Kronovitter informed the defendants that he had approximately eighteen dogs on his property at that time. None of these dogs were Ucensed with the town or vaccinated against rabies.

Based on this information, the defendants applied for a warrant authorizing the seizure of the plaintiffs animals. The warrant was issued by the court, Upson, J., on March 1, 2002, and executed by the defendants on March 4, 2002. On that date, the following facts were observed regarding the health of the animals. The dogs had overgrown nails and were covered in feces and urine. Their coats were dull and lacked grooming. Some of the dogs were thin, while others were obese. Two of the dogs had bloody stools. One dog had a sore on its hind leg, and another was missing an eye.

On April 4,2002, Doyle applied for a warrant authorizing the arrest of the plaintiff for animal cruelty. In support of this application, Doyle made a sworn statement detailing both the condition of the plaintiffs property and the health of the animals seized on March 4, 2002. A warrant was issued by the court, D. Brennan, J., on April 5, 2002. The plaintiff was arrested on April 12, 2002. The charges against the plaintiff were subsequently nolled on December 3, 2002.

The plaintiff commenced the present action against the defendants on December 1, 2006. The plaintiff filed a second revised complaint on October 3,2007, alleging, inter alia, malicious prosecution. On December 8,2009, the jury returned a verdict in favor of the defendants. This appeal followed. Additional facts will be set forth below as necessary.

I

The plaintiffs first claim is that the court improperly instructed the jury to consider the elements of certain statutory infractions when determining whether the defendants possessed probable cause. We are not persuaded.

The following additional facts are relevant to our resolution of this claim. The court issued the following instructions to the jury regarding the issue of probable cause. “The plaintiff was arrested for violating General Statutes §§ 53-247, 22-349, 22-338 and 22-363. However, your determination as to whether there was probable cause to arrest the plaintiff is limited to whether there was probable cause for the charge of violating § 53-247 . . . .” The court continued: “You may, however, consider the circumstances giving rise to the other charges . . . such as whether the dogs had been vaccinated against rabies, and whether they were barking during . . . the night, in determining whether or not there was probable cause that the plaintiff violated General Statutes [§] 53-247.” The court then proceeded to read the text of §§ 53-247, 22-349, 22-338 and 22-363. Despite explicitly restricting the question of probable cause to § 53-247, the court subsequently gave the following instruction: “the question before you was not whether the plaintiff was guilty or not guilty of the charges, but whether the defendants had probable cause to initiate criminal proceedings against her.” (Emphasis added.) '

We begin our analysis by setting forth the well established standard of review. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 142-43, 757 A.2d 516 (2000).

In order to establish a cause of action for malicious prosecution, one must “prove want of probable cause, malice and a termination of suit in the plaintiffs favor.” (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 330, 994 A.2d 153 (2010). In the present case, the plaintiff seeks to recover for the defendants’ pursuit of the animal cruelty charge against her. Consequently, the element of probable cause for the plaintiffs claim of malicious prosecution must be evaluated in relation to the elements of § 53-247.

The plaintiff argues that the court’s various references to §§ 22-349, 22-338 and 22-363 in its instruction caused the jury to believe that a violation of those statutes would require a verdict in favor of the defendants. Although the court’s reading of §§ 22-349, 22-338 and 22-363 and its use of the plural nouns “charges” and “proceedings” could be confusing if read in isolation, when read as a whole, the court’s instructions clearly informed the jury that the elements of these infractions were not relevant to the question of probable cause. Indeed, the court explicitly stated in its instruction that “determination as to whether there was probable cause to arrest the plaintiff is limited to whether there was probable cause for the charge of violating [§] 53-247 . . . .” Given the presence of this specific charge, we conclude that the instructions given by the court were not improper.

II

The plaintiffs second claim is that the court improperly allowed Fitch to offer expert testimony without complying with the disclosure requirements of Practice Book § 13-4 or laying a proper foundation. We are not persuaded.

The following additional facts are relevant to our resolution of this claim. After the seizure of the plaintiffs dogs, Fitch fed and cleaned the animals on multiple occasions. Fitch testified that the dogs “all had feces on their feet [and] bellies” and often lost control of their bladder and bowels when approached by people. Fitch also testified that some of the dogs had an aggressive nature. Fitch also stated that some of the dogs were overweight, while others were thin. Finally, Fitch testified that two of the dogs had bloody stools.

We begin by setting forth the applicable standard of review. “Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 489, 958 A.2d 1195 (2008).

The principal distinction between lay and expert witnesses is that the former is restricted, with limited exceptions, to providing factual testimony, while the latter is permitted to testify as to his or her opinion. See Arnone v. Enfield, 79 Conn. App. 501, 527, 831 A.2d 260 (“A lay witness provides facts that are within his personal knowledge without providing his opinion concerning such facts. The test for determining whether a witness is an expert is whether the witness has any peculiar knowledge or experience, not common to the world, that renders his opinion of assistance to the trier of fact.” [Emphasis in original.]), cert. denied, 266 Conn. 932, 837 A.2d 804 (2003); Conn. Code Evid. § 7-1 (“[i]f a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue”); Conn. Code Evid. § 7-2 (“[a] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue”).

The plaintiffs claims are predicated on the assumption that Fitch was testifying as an expert witness. In the present case, Fitch offered testimony regarding the presence of bloody stools, the absence of basic grooming or hygiene, variations in weight and the general appearance of the animals owned by the plaintiff. While Fitch undoubtedly has special knowledge of and experience with animals, such knowledge and experience was not required for the factual statements contained in her testimony. Consequently, we conclude that Fitch was not testifying as an expert and that the trial court did not abuse its discretion by permitting her to testify.

Ill

The plaintiffs third claim is that the court abused its discretion by admitting evidence of an in rem proceeding that resulted in an order transferring ownership of the dogs to the town of Easton. We are not persuaded.

The following additional facts are relevant to our resolution of this claim. The plaintiffs second revised complaint asserted a cause of action against the defendants for breach of contract. Specifically, the plaintiff alleged that the defendants “[led her] to believe that [the] pets were being temporarily taken for vaccination, spaying or neutering, and subsequently would be returned,” that “[t]he defendants created a document stating this, signed it, caused [Edward Kronovitter] to sign it” and also that the “defendants refused to return, and continue to refuse to return the seized pets to [the plaintiff].” On December 2, 2009, the plaintiff offered testimony supporting these allegations. In response, Doyle testified the following day that the dogs were not returned to the plaintiff because of an in rem proceeding that transferred ownership of the dogs to the town of Easton. The plaintiff subsequently abandoned her breach of contract claim against the defendants.

“[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. . . . The purpose of allowing the introduction of such evidence is not to give the opposing party a license to introduce unreliable or irrelevant evidence but to allow the opposing party to put the initial offer of evidence into its proper context. . . . Thus, the trial court must consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit [the evidence] . . . to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. . . . Such a decision, of course, rests within the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Somers v. LeVasseur, 230 Conn. 560, 566-66, 645 A.2d 993 (1994).

The plaintiff offered testimony tending to show that the defendants had wrongfully refused to return the animals to her possession. Evidence regarding the in rem proceeding, and the order which issued as a result, was necessary to place this testimony into its proper context. Consequently, we conclude that the admission of this evidence did not constitute an abuse of the trial court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although Edward Kronovitter was originally a plaintiff in the underlying action, he died before this case was brought to trial. The various causes of action asserted on his behalf were dismissed and are not relevant to this appeal. We therefore refer in this opinion to Gladys Kronovitter as the plaintiff.

       We note that the jury in the present case made several explicit findings of fact through the use of interrogatories. To the extent that those findings are relevant to the present appeal, they are set forth in footnote 6 of this opinion.

       Specifically, the yard contained “old wood stoves, approximately one hundred plastic gallon milk containers filled with a rusty colored liquid, thousands of newspapers piled on top of each other at various locations in the yard, several large plastic tubs filled with stagnant water . . . [hundreds of plastic bags containing household garbage, wood pallets, [and] hundreds of cat and dog food cans ...”

       Doyle described the plaintiffs residence as follows: “I could not get on the porch due to piles of newspapers, boxes and household garbage. . . . I then went to the back of the house and observed a porch which was falling down and had [three foot to four foot high] piles of newspapers, boxes and household garbage on it. ... I could not see in the window due to dirt, mold and mildew on the inside of the glass. ... On the floor was a path on top of household garbage approximately [one and a half feet to two feet high]. This path led to an ac[joining room. The rest of [the kitchen] was covered with approximately [three feet to five feet] of household garbage and newspapers. Several boards from the ceiling [were] broken and hanging down.”

       The plaintiff also alleged false arrest, intentional infliction of emotional distress, breach of contract and various constitutional violations. Those counts were not presented to the jury and are not at issue in the present appeal.

       The jury returned interrogatories finding that the plaintiff had failed to prove that either defendant had “submitted an affidavit for an arrest warrant that contained misstatements of facts or omissions of fact that were material” or “acted without probable cause in initiating criminal proceedings against the plaintiff.”

       General Statutes § 53-247 (a) provides in relevant part: “Any person who . . . deprives of necessary sustenance . . . any animal, or who, having impounded or confined any animal, fails to give such animal proper care ... or fails to supply any such animal with wholesome air, food and water ... or, having charge or custody of any animal . . . fails to provide it with proper food, drink or protection from the weather . . . shall be fined not more than one thousand dollars or imprisoned not more than one year or both.”

       General Statutes § 22-349 provides in relevant part: “The owning or keeping of an unlicensed . . . dog and the failure to purchase a license and pay the advertising and redemption fee within one hundred and twenty hours from the time the dog was impounded shall be an infraction.”

       General Statutes § 22-338 provides in relevant part: “(a) Each owner or keeper of a dog of the age of six months or older . . . shall cause such dog to be licensed in the town clerk’s office in the town where such dog is kept ...(b) Any owner or keeper applying for a license for a dog under subsection (a) of this section . . . shall submit to the town clerk a rabies certificate signed by a licensed veterinarian, or a copy thereof, stating that such dog has been vaccinated against rabies

       General Statutes § 22-363 provides in relevant part: “No person shall own or harbor a dog or dogs which is or are a nuisance by reason of vicious disposition or excessive barking or other disturbance . . .

       Practice Book § 13-4 (a) provides in relevant part: “A party shall disclose each person who may be called by that party to testify as an expert witness at trial, and all documents that may be offered in evidence in lieu of such expert testimony, in accordance with this section. . .

       Fitch also testified at trial that a veterinary doctor had performed tests on various samples of fecal matter and informed her that the cause of these bloody stools was parasites. This testimony was permitted by the court, over a hearsay objection by the plaintiff, for the limited purpose of demonstrating its effect on Fitch. See Dinan v. Marchand, 279 Conn. 558, 572, 903 A.2d 201 (2006) (“[s]tatements of declarants offered to show their effect on the listener, not for the truth of the contents of the statements, are not hearsay and are admissible”). Because this testimony was not admitted to establish the presence of parasites, we need not consider it for the purpose of the present claim.

       In her brief, the plaintiff has also suggested that we disregard Fitch’s testimony because she, in fact, had not cared for the animals. In support of this request, the plaintiff notes that Fitch’s testimony as to the dates and frequency of this care “expanded and contracted wildly.” Such testimonial inconsistencies, however, go to the weight rather than the admissibility of evidence. See Gil v. Gil, 94 Conn. App. 306, 318, 892 A.2d 318 (2006) (“[t]he fact that evidence may be subject to several interpretations does not affect its admissibility as long as it can be construed as relevant”).

       We again apply the standard of review governing claims of evidentiary error set forth by our Supreme Court in Stokes v. Norwich Taxi, LLC, supra, 289 Conn. 489.

       The written agreement, which was admitted by the plaintiff as a full exhibit at trial, reads in relevant part: “I Edward Kronovitter . . . consent and authorize Easton animal control officer Kelly Fitch to have all my dogs vaccinated for rabies and spayed. . . .” This agreement is signed by Kelly Fitch and Edward Kronovitter and is dated March 1, 2002.

       Although the plaintiff did not file a formal withdrawal of the breach of contract claim, her attorney represented to the court on at least two occasions that the claim would not be pursued.

       Moreover, we note that, at the conclusion of trial, the court issued the following instruction to the jury: “[T]he fact that the dogs were ordered taken by a court in the ... in rem proceeding is not to be taken by you as evidence that the defendants had probable cause to arrest the plaintiff. That evidence was admitted solely for the purpose of establishing that the . . . dogs were ordered held by a court and not by the defendants.” Absent evidence to the contrary, this court assumes that this instruction was followed by the jury. See Mulligan v. Rioux, 229 Conn. 716, 732, 643 A.2d 1226 (1994).