text:
    DISCOVER BANK v. RUDOLF MAYER
    (AC 32031)
    DiPentima, C. J., and Bishop and Robinson, Js.

      Argued January 6
    officially released April 12, 2011

      Jeanine M. Dumont, with whom was Heath A. Tib-erio, for the appellant (plaintiff).
   Opinion

ROBINSON, J.

This is an appeal from the judgment of the trial court rendered in favor of the plaintiff, Discover Bank, in its action for damages claimed to be due under a credit card agreement. The plaintiff appeals from the part of the judgment denying its request for postjudgment interest. On appeal, the plaintiff claims that the court improperly denied its request for postjudgment interest because General Statutes § 52-356d (e) requires that interest accrue automatically on any unpaid portion of a judgment when installment payments have been ordered by the court. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The defendant, Rudolf Mayer, entered into an agreement with the plaintiff for a credit card account. The defendant subsequently incurred a balance of $13,334.05 on the account. The defendant failed to pay any part of the account balance, and, consequently, on November 4, 2009, the plaintiff commenced this action against the defendant to collect the account balance. In its complaint, the plaintiff sought money damages, attorney’s fees, costs, contractual interest and postjudgment interest pursuant to General Statutes § 37-3a. On December 22, 2009, the plaintiff filed a motion for default for failure to appear and for an order of weekly payments. On February 23, 2010, the court rendered a judgment of default against the defendant and ordered him to pay the account balance of $13,334.05 in weekly installments of $35, in addition to $352 in costs. The court denied the plaintiffs requests for attorney’s fees, contractual interest and postjudgment interest. The plaintiff appealed from that decision on March 9, 2010.

On March 15, 2010, the plaintiff filed a motion for articulation of the court’s decision denying its request for postjudgment interest. The court denied the motion, and the plaintiff filed a motion for review of the court’s denial of its motion for articulation. On June 16, 2010, this court granted review and ordered the trial court to articulate the legal and factual basis for denying the plaintiffs request for postjudgment interest. In its articulation, the court explained that its decision to deny the plaintiffs request for postjudgment interest was based on three separate grounds: (1) interest awards under § 37-3a are discretionary, and not mandatory; (2) O'Hara v. State, 218 Conn. 628, 590 A.2d 948 (1991), supported the discretionary nature of the decision to award postjudgment interest; and (3) principles of equity counseled against awarding postjudgment interest in view of the circumstances of the case.

On appeal, the plaintiff claims that the court improperly denied its request for postjudgment interest. In support of its claim, the plaintiff argues that the plain language of § 52-356d (e) requires that interest accrue automatically on any unpaid portion of a judgment when installment payments have been ordered by the court. We disagree.

The plaintiffs claim raises an issue of statutory interpretation to which we afford plenary review. See American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 202, 937 A.2d 1184 (2008). “Our standard of review for issues of statutory interpretation is well settled. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Citation omitted; internal quotation marks omitted.) Urich v. Fish, 112 Conn. App. 837, 840-41, 965 A. 2d 567, cert, denied, 292 Conn. 909, 973 A. 2d 109 (2009).

With these principles in mind, we begin our analysis by examining the language of the relevant statute. Section 52-356d (e) provides that “[(Interest on a money judgment shall continue to accrue under any installment payment order on such portion of the judgment as remains unpaid.” The plaintiff contends that the legislature’s use of the word “shall” makes the accrual of interest in installment payment order cases mandatory. The plaintiff, however, ignores that the word “shall” is juxtaposed with the word “continue,” and not with the word “accrue.” The plaintiffs reading would have the effect of rendering the word “continue” inoperative. The word “continue” means to “keep up or maintain, especially without interruption, a particular condition, course, or series of actions.” See Webster’s Third New International Dictionary 493 (2002). The definition of the word “continue” reveals that it presupposes, and relates in its operation, to an existing thing or condition, which in the case of § 52-356d (e), is the existence of an award of interest on a money judgment. Section 52-356d, however, does not indicate the derivation of the interest that shall continue to accrue on a money judgment. In order to determine the source of the interest that § 52-356d (e) refers to, we look to the statute’s relationship with other statutes.

Section 52-356d (e) is located within chapter 906 of the General Statutes, which is titled “Postjudgment Procedures.” In General Statutes § 52-350a (15), “postjudgment procedure” is defined in relevant part as “any procedure commenced after rendition of a money judgment . . . .” “Money judgment” is defined in relevant part as “a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money . . . .” General Statutes § 52-350a (13). Section 52-356d (a) provides in relevant part that “[w]hen a judgment is rendered against a natural person, the judgment creditor or judgment debtor may move the court for an order for installment payments in accordance with a money judgment. . . .” If a judgment debtor defaults on an installment payment order, the judgment creditor may apply for a wage execution. General Statutes § 52-356d (d). A “money judgment may be enforced, by execution ... to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorney’s fees allowed pursu-antto section 52-400c.” (Emphasis added.) General Statutes § 52-350L The relevant statute in chapter 673 is § 37-3a. Section 37-3a (a) provides in relevant part: “[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .” (Emphasis added.)

It is apparent, therefore, that the interest referred to in § 52-356d (e) is derived from an award of interest pursuant to § 37-3a. This court previously has determined that “an award of postjudgment interest is authorized by § 37-3a”; Urich v. Fish, supra, 112 Conn. App. 843; and “[a] decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court.” (Internal quotation marks omitted.) TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn. App. 492, 511, 808 A.2d 726, cert, denied, 262 Conn. 925, 814 A.2d 379 (2002). Contrary to the plaintiffs contention, this exercise of discretion is not, in any way, circumscribed in cases where installment payments have been ordered by the court. The plain language of § 52-356d (e), as well as its relationship with other statutes, makes clear that a judgment creditor may request postjudgment interest to accrue on a money judgment pursuant to § 37-3a, and that such interest, if awarded, shall continue to accrue on the unpaid portion of a money judgment in cases where installment payments have been ordered by the court. Accordingly, because the award of postjudgment interest is discretionary, and the plaintiff does not claim that the court’s denial of its request for postjudgment interest constituted an abuse of discretion, we affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 37-3a (a) provides in relevant part: “[I]nterest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .”

       The plaintiff also claims that the court’s decision to deny its request for postjudgment interest on principles of equity was improper. Because we affirm the decision on the first ground articulated by the court, we do not address the merits of the plaintiffs argument challenging the third ground. Additionally, we note that the plaintiff does not claim that the court’s denial of its request for posijudgment interest constituted an abuse of discretion, and, therefore, we decline to review the court’s denial for an abuse of discretion. See Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121 Conn. App. 31, 62-64, 994 A.2d 262 (appellate court reviews trial court’s denial of pos(judgment interest for abuse of discretion), cert, denied, 297 Conn. 918, 996 A.2d 277 (2010).


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KRISTA LAFOUNTAIN
    (AC 31549)
    DiPentima, C. J., and Bear and Peters, Js.

      Argued December 7, 2010
    officially released April 12, 2011

      Adele V. Patterson, senior assistant public defender, with whom, on the brief, was Kent Drager, former senior assistant public defender, for the appellant (defendant).

      Harry WeUer, senior assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Krista LaFountain, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), felony murder in violation of General Statutes § 53a-54c and assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that (1) there was insufficient evidence adduced at trial to sustain her conviction of (a) first degree assault on a theory of Pinkerton liability and (b) felony murder, and (2) the prosecutor committed reversible impropriety by (a) failing to enter into evidence statements that she had given to police upon her arrest, and (b) vouching for the credibility of the state’s two key witnesses and stating during final argument to the jury that their incarceration at the time of trial was punishment for their role in the alleged crimes. We disagree, and, accordingly, affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the night of November 30, 2006, Walter Smykla, his good friend, Jonathan Martin, and an acquaintance, Sean Bodamer, from whom the two friends had purchased cocaine, met the defendant at an E-Z Mart Gulf gasoline station in Bristol. After socializing for a while, the defendant accompanied Smykla, Martin and Bodamer to Smykla’s apartment. At Smykla’s apartment, the four listened to music, ingested cocaine and drank beer and brandy. The defendant generally appeared to be happy and intoxicated and was seen laughing, joking, flirting, touching, kissing and being affectionate with Bodamer.

When the cocaine had been consumed entirely, Bodamer, Smykla, Martin and the defendant sought to acquire more. The defendant proposed that they steal cocaine from some teenagers at the home of her friend, Brandy Davis, in Plymouth. The idea appealed to Bodamer, who told the defendant that he had an AK-47 at home that he wanted to get. The defendant and Bodamer eventually persuaded Martin, the only one at Smykla’s apartment with a car, to drive them to Plymouth. Smykla, not wanting to let his good friend go alone, also agreed to go to Plymouth.

After exiting Smykla’s apartment and on the way to Martin’s car, the defendant told Smykla that she sought to exact revenge for having been raped the previous night at Davis’ apartment. Smykla, Martin, Bodamer and the defendant then got into Martin’s vehicle and went to Bodamer’s residence where Bodamer retrieved an AK-47 that he put in the trunk of Martin’s car. Martin then drove, while Bodamer provided him with directions to Plymouth, and the defendant provided directions to Davis’ home at 2 Benedict Street in Terryville.

Once on Benedict Street, the defendant instructed Martin to stop the car1, and turn off the engine and lights. Bodamer and the defendant exited the vehicle, and Bodamer retrieved his AK-47 from the trunk of the car. The defendant instructed Martin to turn his car around and wait for them. Bodamer was wearing gloves, a dark coat or hoodie and made a further attempt to conceal his identity by putting a bandana around his forehead. The defendant asked Martin for a mask, which Martin did not have, and she then asked for Martin’s hat, which Martin refused to provide. Thereafter, Bodamer and the defendant walked up Benedict Street and climbed the back stairs at 2 Benedict Street to Davis’ apartment door located on the third floor landing. Their presence outside Darts’ back door activated the outside lights that were on a motion sensor.

Hearing a knock at the back door, Darts’ brother, Daniel Darts, Jr., who was visiting his sister, went to the door and asked who was there. The defendant replied: “It’s the bitch.” Having sold drugs to the defendant previously, Daniel Darts, Jr., recognized her voice and opened the door halfway. Daniel Darts, Jr., saw the defendant standing approximately three feet away with Bodamer standing behind her. Bodamer then jumped out from behind the defendant with the AK-47, and Daniel Davis, Jr., kicked the door closed and locked it. Bodamer shouted, “open the door, motherfucker,” before smashing out one of the kitchen windows, located beside the back door, with the butt of the AK-47. At this time, directly on the other side of the kitchen window, the siblings’ father, Daniel Davis, Sr., and Timothy Dunn were seated at the kitchen table playing cards. Bodamer then stuck his AK-47 through the broken window into the apartment and fired two gunshots.

One of the gunshots struck and killed Daniel Davis, Sr. The other gunshot struck and injured Todd Hall, a friend of Daniel Davis, Sr., who had arrived moments earlier and was passing through the kitchen. Upon hearing the gunshots, Smykla and Martin decided to leave before Bodamer and the defendant could return to the vehicle; however, after driving away and taking two successive left turns, they encountered Bodamer in the middle of the street signaling them to stop. Bodamer and the defendant got into the backseat of Martin’s car, and the four drove back toward Bristol.

The four drove past a police car heading the opposite direction back toward Benedict Street at a high rate of speed with its police lights activated. Bodamer stated that he had shot someone with his “infamous [AK-47]” and that the police car that had passed was because of him. Bodamer also said that he could not wait to read the morning newspaper. The defendant asked Bodamer who was shot and stated that if it was the person who had raped her, he deserved to be shot. Bodamer replied that he did not know who he had shot, and the defendant told him that no one had ever done anything like that for her. During the drive back to Bristol, the defendant was laughing, kissing and talking with Bodamer in the backseat.

Bodamer instructed Martin to drive to Bodamer’s residence in Bristol, and once there, Bodamer dropped off the AK-47. Martin then dropped Smykla, Bodamer and the defendant at Smykla’s apartment before he drove home. Back at Smykla’s apartment, Bodamer and the defendant continued kissing and being intimate until Bodamer left sometime between 3 and 4 a.m. The defendant then began to cry and told Smykla that although what Bodamer did was the nicest thing anyone had ever done for her, she was unsure if the right person had died at the apartment. When Smykla woke up at noon the next day, he made the defendant leave his apartment.

That day, December 1, 2006, the defendant was arrested and later charged with conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134 (a) (2), attempt to commit robbery in the first degree in violation of §§ 53a-49 (a) (2) and 53a-134 (a) (2), felony murder in violation of § 53a-54c and assault in the first degree in violation of § 53a-59 (a) (5). After a jury trial, the defendant was found guilty of all charges and sentenced to a total effective term of fifty-five years incarceration. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the evidence adduced at trial was insufficient to support her conviction of (a) assault in the first degree in violation of § 53a-59 (a) (5) under a theory of Pinkerton liability and (b) felony murder in violation of § 53a-54c. Specifically, the defendant asserts that the evidence was insufficient to support her conviction of (1) assault in the first degree because the state failed to prove, beyond a reasonable doubt, that Bodamer committed the crime of assault in the first degree, and (2) assault in the first degree and felony murder because there was no evidence that the gunshots fired by Bodamer were “in furtherance of’ either the conspiracy or attempt to commit robbery in the first degree. We disagree.

We first set forth the well settled principles that govern our review. “Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it 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 therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilt. . . . 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. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Monahan, 125 Conn. App. 113, 118-19, 7 A.3d 404 (2010), cert, denied, 299 Conn. 926, 11 A.3d 152 (2011). With these principles in mind, we turn to the defendant’s conviction.

A

The defendant argues that the evidence adduced at trial was insufficient to sustain her conviction of assault in the first degree in violation of § 53a-59 (a) (5) under the Pinkerton theory of vicarious liability because the state failed to prove, beyond a reasonable doubt, that Bodamer committed the crime of assault in the first degree. Pursuant to the Pinkerton doctrine of vicarious liability, articulated by the United States Supreme Court in Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), and expressly adopted by our Supreme Court in State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993), “a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” (Internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 491, 820 A.2d 1024 (2003). Accordingly, for the defendant to be convicted of the crime of assault in the first degree under the Pinkerton doctrine of vicarious liability, the state was required to prove, beyond a reasonable doubt, that the crime of assault in the first degree was committed by the defendant’s coconspirator, Bodamer. See State v. Martinez, 278 Conn. 598, 618, 900 A.2d 485 (2006) (“under the Pinkerton doctrine, a conspirator may be found guilty of a crime that he or she did not commit if the state can establish that a coconspirator did commit the crime” [internal quotation marks omitted]).

Section 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.” “Assault in the first degree is a specific intent crime.” State v. Holmes, 75 Conn. App. 721, 736, 817 A.2d 689, cert, denied, 264 Conn. 903, 823 A.2d 1222 (2003). It requires that the criminal actor possess the specific intent to cause physical injury to another person. See id., 736-37; see also Moore v. Commissioner of Correction, 119 Conn. App. 530, 538 n.4, 988 A.2d 881, cert, denied, 296 Conn. 902, 991 A.2d 1103 (2010). The defendant argues that evidence of the requisite intent was lacking because the evidence established only that Bodamer fired “two wild shots” into the apartment having no idea who, if anyone, might be shot. We are not persuaded.

“Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Internal quotation marks omitted.) State v. Serrano, 123 Conn. App. 530, 544, 1 A.3d 1277 (2010), cert, denied, 300 Conn. 909, 12 A.3d 1005 (2011).

After an examination of the record, we conclude that the state adduced sufficient evidence for the jury reasonably to conclude that Bodamer fired the gunshot, which hit Hall, with the intent to cause physical injury. At Smykla’s apartment prior to the incident, Bodamer was overheard telling the defendant that he had an AK-47 that could be used to “get them” and that “it wouldn’t be funny” once they got to Plymouth. Once in Plymouth, Bodamer concealed his identity and brought an AK-47 loaded with at least twelve bullets to the Davis apartment. See, e.g., State v. Virgo, 115 Conn. App. 786, 805, 974 A.2d 752 (intent to cause physical injury reasonably inferred from defendant’s use of large caliber handgun capable of inflicting serious physical injury), cert, denied, 293 Conn. 923, 980 A.2d 914 (2009).

After having the door slammed on him, Bodamer yelled, “open the door, motherfucker,” smashed the kitchen window and then thrust the gun into the kitchen. Thereafter, Bodamer fired two gunshots into the kitchen; one struck Hall in the chest causing significant physical injury, and the other struck Daniel Davis, Sr., in the abdomen causing death. See State v. Aviles, 107 Conn. App. 209, 218, 944 A.2d 994 (intent to kill reasonably inferred where victim slammed door on defendant and defendant fired two gunshots into wooden door below peephole hitting victim in chest with one gunshot), cert, denied, 287 Conn. 922, 951 A.2d 570 (2008). Both victims were a short distance from the kitchen window. See State v. Santos, 41 Conn. App. 361, 371, 675 A.2d 930 (intent to kill reasonably inferred where deadly weapon used at close range and gunshot struck vital part of victim), cert, denied, 237 Conn. 932, 677 A.2d 1374 (1996).

Bodamer then immediately fled from the scene, and, in Martin’s car after the incident, referenced having shot someone with his “infamous [AK-47]” and said that he “couldn’t wait to read the morning [newspaper].” Even if we deem reasonable the defendant’s assertion that the two gunshots Bodamer fired into the Davis kitchen were “random” or “wild,” such an interpretation of the evidence was not the only reasonable one. See State v. Monahan, supra, 125 Conn. App. 119 (“[o]n appeal . . . [w]e ask ... [if] there is a reasonable view of the evidence that supports the jury’s verdict of guilt” [internal quotation marks omitted]). In sum, on the basis of the above evidence, the jury reasonably could have concluded that the gunshots fired were not wild or random, and Bodamer, with intent to cause physical injury, caused such injury by the discharge of a firearm.

B

The defendant next challenges her conviction of assault in the first degree in violation of § 53a-59 (a) (5) and felony murder in violation of § 53a-54c on the ground that the evidence was insufficient to show that the assault of Hall was committed “in furtherance of’ the conspiracy to commit robbery, and that the fatal shooting of Daniel Davis, Sr., occurred “in furtherance of’ the attempt to commit robbery. Specifically, the defendant argues that Bodamer fired the gunshots into the kitchen before the robbery actually had commenced and, therefore, the shootings did not advance the crime of conspiracy or attempt to commit robbery. We disagree.

As discussed previously, the defendant was convicted of assault in the first degree in violation of § 53a-59 (a) (5) on the Pinkerton theory of vicarious liability, which dictates that “a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” (Emphasis added; internal quotation marks omitted.) State v. Col-therst, supra, 263 Conn. 491. Additionally, the defendant was convicted of felony murder pursuant to § 53a-54c, which provides, in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, [she] . . . attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, [she], or another participant, if any, causes the death of a person other than one of the participants . . . ,” (Emphasis added.) General Statutes § 53a-54c.

The defendant first argues that the gunshots fired by Bodamer did not “aid” or “advance” the conspiracy or the attempt to commit robbery, and, thus, could not have been “in furtherance of’ either because the gunshots “did nothing to get the perpetrator(s) into the apartment . . . .” We are not persuaded by the defendant’s favorable interpretation of the evidence, and we reject her constricted reading of “in furtherance of.” “The case of State v. Young, [191 Conn. 636, 640-41, 469 A.2d 1189 (1983)], summarizes the history and purpose of the in furtherance phrase of § 53a-54c. . . . The defendant in Young argued that furtherance meant promotion or advancement and did not imply merely a causal relationship between the underlying felony and the death. . . .

“In rejecting this argument, the Young court noted that Connecticut’s penal code was taken from the New York code and deviates substantially from the recommended felony murder provisions of the Model Penal Code. . . . New York courts have construed the phrase in furtherance of to impose the requirement of a logical nexus between the felony and the homicide. Specifically, [m]ore than the mere coincidence to time and place . . . the nexus must be one of logic or plan. Excluded are those deaths which are so far outside the ambit of the plan of the felony and its execution as to be unrelated to them. . . . Our Supreme Court agreed with the New York courts that the phrase in the furtherance of is intended to impose the requirement of a relationship between the underlying felony and the homicide beyond that of mere causation in fact . . . [and] serves to exclude those murders that are committed during the course of an underlying felony but that are wholly unrelated . . . .” (Citations omitted; internal quotation marks omitted.) In re Michael B., 36 Conn. App. 364, 374-75, 650 A.2d 1251 (1994). “Primarily its purpose was to limit the liability of a person whose accomplice in one of the specified felonies has performed the homicidal act to those circumstances which were within the contemplation of the confederates to the undertaking . . . .” State v. Young, supra, 191 Conn. 642.

Thus, in State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000), our Supreme Court rejected the defendant’s interpretation of “in furtherance of’ in § 53a-54c to require the “promotion” or “advancement” of the underlying felony. In Montgomery, the defendant was charged with felony murder in relation to the death of the victim he had attempted to kidnap. Id. The defendant argued that the death of the victim could not have been “in furtherance of’ the attempted kidnapping because the victim was killed intentionally, and, therefore, any attempt to kidnap must have necessarily been abandoned prior to the killing. Id. Our Supreme Court rejected this argument, concluding that when a “defendant attempts to kidnap the victim at gunpoint, the jury reasonably may find that it was within his contemplation that the victim might be shot and killed . . . [and thus] the jury reasonably could have concluded that the murder occurred in furtherance of the attempted kidnapping.” (Emphasis altered.) Id., 734.

In the present case, the jury was presented with sufficient evidence to find that it was within the defendant’s contemplation that one or more of the people she intended to rob at gunpoint would be shot and injured or killed. The state presented evidence that on the evening of the incident, Brandy Davis had told the defendant over the telephone that if the defendant came to her apartment again she would kill the defendant. Brandy Davis testified that the defendant had been in her apartment the night prior to the incident and was in a position to see that there was a gun in the apartment. Thus, the jury reasonably could have concluded that the defendant was aware that she was likely to encounter armed resistance at the Davis apartment. Smykla testified that the defendant proposed a plan to go to the Davis apartment and rob the occupants of cocaine, and stated that it was revenge for her having been raped at the Davis apartment the night before. Bodamer was overheard telling the defendant that he had an AK-47 and “we can get them.” In the aftermath of the shooting, the defendant twice said that what Bodamer did was the nicest thing anyone had ever done for her. On the basis of this evidence, the jury reasonably could have concluded that the crime of assault in the first degree was committed “in furtherance of’ the conspiracy to commit robbery and that the death of Daniel Davis, Sr., occurred “in furtherance of’ the attempt to commit robbery.

Additionally, we are not persuaded by the defendant’s argument that the crime of attempted robbery had yet to commence when Bodamer fired the gunshots into the kitchen because he and the defendant had not yet entered the apartment. In State v. Gayle, 64 Conn. App. 596, 611, 781 A.2d 383, cert, denied, 258 Conn. 920, 782 A.2d 1248 (2001), we emphatically rejected the defendant’s claim that the victim of an attempted armed robbery was not shot “in the course of and in furtherance of’ the attempted robbery because the victim had declined to relinquish his valuables, and, thus, the attempted robbery was completed by the time the victim was shot. We concluded that “[t]he defendant, in making his claim, ignores common sense and attempts to slice finely the series of events that transpired . . . characterizing them as distinct and wholly unrelated incidents.” Id., 612.

Similarly, we reject the defendant’s efforts to compartmentalize the series of events that transpired on the night of the incident into discrete and independent acts. The defendant and her coconspirators drove to Bodamer’s residence to retrieve his AK-47, then drove to Plymouth. Bodamer then attempted to conceal his identity and, with the defendant, climbed up three flights of stairs to the Davis apartment door. The defendant then knocked on the door and responded to the occupant’s question with her familiar nickname. When the door was opened, Bodamer jumped out from behind the defendant with the AK-47, and the door quickly was slammed shut. We need not decide precisely at which point in this series of events the attempted robbery commenced because we conclude that the jury was presented with sufficient evidence to determine that it was well under way by the time Bodamer fired the gunshots into the kitchen.

II

The defendant next claims that the state committed reversible prosecutorial impropriety by (1) failing to enter into evidence written statements that the defendant had given to police upon her arrest, and (2) vouching for the credibility of the state’s two key witnesses and stating during final argument to the jury that their incarceration was punishment for their role in the alleged crimes. We conclude that there was no prosecu-torial impropriety.

We first set forth the legal principles that guide our analysis. “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. . . . [T]he touchstone of due process analysis in cases of alleged[ly] [harmful] prosecu-torial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process. ... In determining whether the defendant was denied a fair trial . . . we must view the prosecutor’s [actions] in the context of the entire trial.” (Internal quotation marks omitted.) State v. Souza, 125 Conn. App. 529, 534, 8 A.3d 1131 (2010). With these principles in mind we turn to the defendant’s claims of prosecutorial impropriety.

A

The defendant first contends that the state committed reversible impropriety when the prosecutor failed to enter into evidence two statements she had given to police shortly after her arrest. Invoking the venerable rule that a prosecutor “is under a duty not solely to obtain, convictions but, more importantly ... to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court”; (citations omitted; internal quotation marks omitted) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 556-57, 663 A.2d 317 (1995); the defendant argues that the failure to enter into evidence her statements was an act of prosecutorial impropriety. The defendant concedes that she did not raise this objection at trial. We review this claim pursuant to State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). Because we conclude that the duty identified by the defendant did not require the prosecutor to introduce the statements into evidence, we hold that the contested omission was not an act of prosecutorial impropriety.

The following additional facts are pertinent to our review of the defendant’s claim. While investigating the shooting incident at 2 Benedict Street, Trooper William Arbour and Detective Walter Melfi of the state police determined the defendant to be a person of interest. Arbour and Melfi located the defendant on December 1, 2006, and promptly arrested her on two outstanding arrest warrants. After being read her Miranda rights, the defendant agreed to waive them and orally responded to several questions dining the ride to the Plymouth police department. The defendant told Arbour and Melfi that “she had met three men, one named Shawn. They drove around and went to a trailer park where Shawn got out of the car, went to a vehicle and removed something. They all then drove to an apartment where Shawn fired two . . . [gun] shots into a window.”

At the police station, the defendant provided a written statement. In that statement the defendant admitted to being at the scene of the shooting but claimed that she had participated in the failed robbery under duress. The defendant stated that Bodamer had assaulted her in the back of Martin’s car after she had refused his demand for oral sex and then, once they arrived at the Davis apartment, he dragged her up the stairs to the back door while pointing the AK-47 into her back. The defendant also stated that Bodamer made her knock on the door and that once it was slammed in her face, Bodamer pinned her against the door and then fired two gunshots into the apartment before he pushed her down the stairs and back into Martin’s car.

Prior to trial, the defendant filed a motion to suppress from evidence all statements, whether oral or written, made by the defendant to the police, which the court denied. Thereafter, the defendant filed a request to charge on the defense of duress pursuant to General Statutes § 53a-14. Consequently, at trial, the state elicited testimony from Smykla, Martin, Samantha Morgan and Tiffany Labombard to establish that the defendant was in the company of Smykla, Martin and Bodamer of her own volition, was not threatened and did not appear scared on the night of November 30, 2006. The defendant cross-examined Smykla and Martin and unsuccessfully tried to elicit evidence that she had been coerced into participating in the failed robbery. The state did not introduce the defendant’s statements into evidence, and after the state rested its case, the defendant rested without presenting any evidence.

As a preliminary matter, we note that the defendant does not claim, nor could she, that the state failed to disclose exculpatory evidence to her in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Rather, the defendant begins with the premise that a prosecutor is under an ethical duty “to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty.” State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert, denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973). The defendant next posits that both the oral and written statements she gave to police shortly after her arrest revealed that the “true issue” in the case was whether her participation in the failed robbery was caused by duress. Thus, the defendant argues, because she was unable to introduce the statements herself, the state’s failure to do so was a violation of its ethical duty, and, consequently, an act of reversible impropriety. We disagree.

Resolution of the defendant’s claim is controlled by State v. Tomas D., 296 Conn. 476, 509-10, 995 A.2d 583 (2010). In Tomas D., the defendant appealed his conviction and claimed that the prosecutor committed prosecutorial impropriety at trial by failing to inform him that she had released a key state’s witness from his subpoena, causing the witness to become unavailable to testify to potentially exculpatory evidence and thereby failing in the prosecutor’s duty to place “ ‘the truth before the jury.’ ” Id., 510. To support her argument, the defendant cited to State v. Guilfoyle, 109 Conn. 124, 134, 145 A. 761 (1929), for the proposition that “the duty of the representative of the [s]tate dictates that the testimony of every available witness tending to aid in ascertaining the truth as to facts relevant to the inquiry be laid before the trial court . . . .’’Id.

Our Supreme Court concluded that “subsequent case law has made clear that the Guilfoyle rule is one of disclosure, akin to that of Brady v. Maryland, [supra, 373 U.S. 83], and that there was no Guilfoyle violation because the defendant was aware of [the key witness] and the potential substance of his testimony, and could have taken action to procure his testimony.” (Emphasis added.) State v. Tomas D., supra, 296 Conn. 510; see also State v. Johnson, 57 Conn. App. 156, 162, 748 A.2d 334 (state fully complied with Guilfoyle rule where information disclosed to defendant without being offered into evidence), cert, denied, 253 Conn. 912, 754 A.2d 162 (2000).

The defendant attempts to distinguish this line of precedent by arguing that the statements, which revealed that the true issue in the case was whether she was under duress, could only have been introduced into evidence by the state. See State v. Jackson, 257 Conn. 198, 211-12, 777 A.2d 591 (2001) (balance of written statement defendant gave to police was inadmissible hearsay when defendant sought to offer it into evidence). The defendant, however, seeks to shift the initial burden of production in the defense of duress. General Statutes § 53a-12 (a) provides that “[w]hen a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.” Thus, the state’s burden of persuasion — to disprove duress beyond a reasonable doubt — does not attach until duress is first “raised at trial” by the defendant. See State v. Cassino, 188 Conn. 237, 241-44, 449 A.2d 154 (1982); see also State v. Pierson, 201 Conn. 211, 217, 514 A.2d 724 (1986) (“[t]houghthe state bears the burden of disproving the [defense of duress] once . . . raised by the presentation of some evidence supporting [it], there is no requirement that evidence negating [it] be produced as part of the state’s prima facie case” [emphasis added]), on appeal after remand, 208 Conn. 683, 546 A.2d 268 (1988), cert, denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989).

Moreover, in our system of criminal justice, “built upon a truly equal and adverse presentation of the case,” a criminal defendant is granted effective control over the conduct of her defense because it is she who must suffer the consequences of its failure. State v. Peeler, 265 Conn. 460, 470-72, 828 A.2d 1216 (2003), cert, denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710 (2004). At trial, the defendant unsuccessfully attempted to produce evidence of duress through cross-examination of the state’s witnesses. After the state had rested, the defendant could have taken the witness stand and testified to the circumstances she had recounted in her statements to the police, but, presumably, she made a strategic decision not to do so. “The criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow.” (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 233, 856 A.2d 917 (2004). To impose a duty on the prosecutor to offer the defendant’s statements into evidence to establish the defense of duress would be inconsistent with the defendant’s constitutionally guaranteed right to devise and control the manner of her own defense and the attendant burden of production as to the defense of duress. Accordingly, we conclude that the state’s failure to introduce the defendant’s statements into evidence was not an act of prosecutorial impropriety.

B

We turn to the defendant’s final claim that the state committed prosecutorial impropriety during final argument to the jury. Specifically, the defendant first argues that it was improper for the prosecutor to state to the jury that Smykla and Martin would benefit from giving their testimony only if they told the truth. The defendant also argues that a second act of prosecutorial impropriety occurred when the prosecutor told the jury that Smykla and Martin were in prison and being punished for what they had done, when, in actuality, the two had not yet been convicted for their role in the failed robbery. The defendant asserts that these two acts of impropriety so infected the juiy with prejudice that a new trial is required. We conclude that the prosecutor’s remarks were not improper.

The following additional facts are germane to our analysis of the defendant’s claim. During final argument to the jury, the prosecutor stated: “Now, the state called a number of witnesses to the [witness] stand, not just Mr. Smykla and Mr. Martin, but obviously they were significant witnesses, and I want to talk about their testimony. As you heard, they’ve been arrested and they’re in prison and they’re facing a number of charges, and there have been no promises made to them as to what’s going to happen to their cases and they were candid with you when they said it was their hope by coming and testifying and telling you about what happened that night that they would get favorable treatment but that no promises had been made. And if that was their intent, let me ask you this: What was more likely to get them what they wanted? Was it to take the stand, raise their right hand and lie to you, lie in a court of law under oath, or was it to come in court and tell you what happened, to tell you the truth?

“And let’s take a moment [and look] at what they did tell you during the course of their testimony. They testified that they were in a plan to commit a robbery. . . . They didn’t tell you, I’m innocent. They didn’t say to you, I had nothing to do with it. They didn’t say, I thought we were there just to buy drugs. They didn’t say, I was forced into doing this. They said, we wanted cocaine. We wanted cocaine, and this was a way for us to get it. And I submit to you [that] by testifying as they did, they, in effect, admitted that they were part of this conspiracy to commit a robbery, by their testimony they admitted that they were part of this attempt to commit a robbery, and they were involved in a felony that turned out to be felony murder and also assault in the first degree.” (Emphasis added.) Then, in concluding, the prosecutor stated: “Ladies and gentlemen, all four of these individuals, in one degree or another, are responsible for what happened. As you’ve heard, Mr. Martin and Mr. Smykla are in prison. They’re paying for what their responsibility was in this case.” (Emphasis added.)

“In determining whether an impropriety has occurred in closing arguments, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper.” (Internal quotation marks omitted.) State v. Felix, 111 Conn. App. 801, 807, 961 A.2d 458 (2008).

With respect to the state’s first remark, our Supreme Court “previously has concluded that the state may argue that its witnesses testified credibly, if such an argument is based on reasonable inferences drawn from the evidence. . . . Specifically, the state may argue that a witness has no motive to lie.” (Citation omitted.) State v. Warholic, 278 Conn. 354, 365, 897 A.2d 569 (2006). “A prosecutor may urge the jury to find for stated reasons that a witness was truthful or untruthful. ... A prosecutor may also remark on the motives that a witness may have to lie, or not to lie, as the case may be. . . . The distinguishing characteristic of impropriety in this circumstance is whether the prosecutor asks the jury to believe the testimony of the state’s witnesses because the state thinks it is true, on the one hand, or whether the prosecutor asks the jury to believe it because logic reasonably thus dictates.” (Citations omitted; internal quotation marks omitted.) State v. Felix, supra, 111 Conn. App. 811-12.

In the present case, the prosecutor pointed out that the witnesses were themselves facing charges in connection with the shooting and that they were testifying in the hopes of receiving more favorable treatment by the state in their respective cases. By rhetorical device, the prosecutor, without vouching for the veracity of the witnesses, then asked the jury to use its common sense and decide whether it was “more likely” that the witnesses were being truthful or lying. We previously have found no impropriety under similar circumstances. See, e.g., State v. Jose G., 102 Conn. App. 748, 761-62, 929 A.2d 324 (2007) (not improper for prosecution to ask: “ ‘What motive did [they] have to come in here and make that up?’ ” and, “ ‘What possible bias or motive did the police have for fabricating this?’ ”), affd, 290 Conn. 331, 963 A.2d 42 (2009); State v. Felix, supra, 111 Conn. App. 811 n.8 (not improper for state to tell jury that cooperation agreements were not motive for witnesses’ statements).

With respect to the state’s second contested remark, the defendant’s claim is without merit. The defendant argues that by stating, “I submit to you [that] by testifying as they did, they, in effect, admitted that they were part of this conspiracy to commit a robbery, by their testimony they admitted that they were part of this attempt to commit a robbery, and they were involved in a felony that turned out to be felony murder and also assault in the first degree,” the prosecutor intended to mislead the jury into believing that Smykla and Martin had admitted guilt to the same four crimes with which the defendant had been charged. Furthermore, the defendant argues that the prosecutor’s remark that Smykla and Martin were “paying for what their responsibility was in this case” was designed to mislead the jury into believing that they already were being punished by their incarceration at the time of trial. After reviewing the prosecutor’s statement in context, however, we disagree.

Initially, we note the lack of any evidence of “intent to mislead” on the part of the prosecutor. The prosecutor first informed the jury that Smykla and Martin were “in prison and they’re facing a number of charges,” and had testified in the hope of getting favorable treatment but that no promises had been made with respect to what would happen to their respective cases. Then, the prosecutor summarized the testimony given by Smykla and Martin and remarked that they, by virtue of the substance of their testimony, had admitted that they were “part of’ and “involved in,” rather than admitting guilt to, the same crimes charged against the defendant. This point was enforced by the prosecutor’s statement that “all four of these individuals [Smykla, Martin, Bodamer and the defendant], in one degree or another, are responsible for what happened.” (Emphasis added.) Finally, the prosecutor stated that Smykla and Martin were in prison and “paying for what their responsibility was in this case.” The prosecutor did not imply that Smykla and Martin had admitted guilt to the same four crimes the defendant faced; rather, he explicitly stated that the individuals involved had differing degrees of culpability for what happened and that Smykla and Martin had admitted to actively participating in the crimes with which the defendant had been charged. Nor did the prosecutor’s remarks imply that Smykla’s and Martin’s incarceration at the time of trial was punishment for the same four crimes with which the defendant had been charged; rather, the prosecutor told the jury that the two were incarcerated while facing charges, and, by admitting to having participated in the crimes with which the defendant had been charged, they were taking responsibility.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). “In Pinkerton v. United States, supra, [647-48], the United States Supreme Court concluded that a conspirator may be held vicariously liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it and are reasonably foreseeable as a necessary or natural consequence of the conspiracy. We consistently have recognized Pinkerton liability as an established aspect of our criminal conspiracy jurisprudence.” State v. Coward, 292 Conn. 296, 299 n.6, 972 A.2d 691 (2009).

       At trial, all of the witnesses testified that they either heard talk of or saw an “AK-47” assault rifle; however, forensic analysis later revealed the weapon in question to be a Romanian manufactured Romarm 7.62 by 39 millimeter caliber semiautomatic rifle whose design was based on the AK-47 patent. To avoid any confusion, we refer to the weapon in question as an AK-47.

       The defendant does not challenge the sufficiency of the evidence in establishing that she and Bodamer were coconspirators.

       Daniel Davis, Jr., and Hall both heard gunshots before Daniel Davis, Sr., and Hall, who were both located in the kitchen, were struck by bullets. Medical examiner Ira Kanfer testified that the bullet that struck and killed Daniel Davis, Sr., entered the right side of his abdomen and exited the left side of his chest. Hall testified that the bullet that struck and injured him entered and exited the right side of his chest. Detective Peter Valentin of the state police testified that two fired bullets were recovered from inside the Davis apartment.

       We note that to obtain a conviction of felony murder, “[t]he state must simply prove all the elements of the underlying felony and then prove that the deaths were in the course of and in the furtherance of that felony, or that the deaths were caused in flight from the commission of the felony. . . . The killing of a nonparticipant in the course of and in furtherance of [a felony] or of flight therefrom are two methods of committing the same crime.” (Citation omitted; internal quotation marks omitted.) In re Michael B., 36 Conn. App. 364, 372, 650 A.2d 1251 (1994).

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       At the hearing on the defendant’s motion and in response to a question posed by the court, the state informed the court that it did not intend to introduce into evidence either the oral or written statements as part of its case-in-chief.

       General Statutes § 53a-14 provides: “In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”

       On direct examination, Smykla testified that the defendant and Bodamer, who were kissing, touching and being intimate with one another, both tried to convince Martin to drive them to Plymouth while at Smykla’s apartment. Smykla further testified that the defendant and Bodamer were “making out” in the back of Martin’s car on the way to Plymouth and that there was no arguing or fighting. Similarly, Martin testified that at Smykla’s apartment the defendant sat on Bodamer’s lap kissing and hugging him, and that they both pressured him into driving them to Plymouth. Martin further testified that on the way back from Plymouth after the shooting the defendant sat in the backseat laughing with Bodamer. Labombard testified that she saw the defendant laughing, joking and flirting while at Smykla’s apartment and that the defendant did not appear afraid. Finally, Morgan testified that while at Smykla’s apartment that evening, she saw the defendant petting Bodamer’s arm and that the defendant did not appear to be struggling with anyone.

       It is notable that after his conviction, the defendant’s motion for a judgment of acquittal was denied, in which he alleged that “the state improperly had failed to . . . introduce the defendant’s oral and written statements made during the course of the police investigation, thus forcing him either to testify or keep the jury from receiving those potentially material statements . . . State v. Tomas D., supra, 296 Conn. 483 n.13. This claim, however, was not presented on appeal. Id.

       Duress is not an affirmative defense. State v. Rouleau, 204 Conn. 240, 242, 528 A.2d 343 (1987).


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. SOLOMON WHITE
    (AC 32056)
    DiPentima, C. X, and Bear and SchaUer, Js.
    Argued November 30, 2010
    officially released April 12, 2011

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Donna Mambrino, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Solomon White, appeals from the judgment of conviction, rendered after a trial by jury, of murder in violation of General Statutes § 53a-54a, criminal use of a firearm in violation of General Statutes § 53a-216 (a), tampering with a witness in violation of General Statutes § 53a-151 (a), conspiracy to commit tampering with a witness in violation of General Statutes §§ 53a-48 and 53a-151 (a), bribery of a witness in violation of General Statutes § 53a-149 (a), and conspiracy to commit bribery of a witness in violation of General Statutes §§ 53a-48 and 53a-149 (a). On appeal, the defendant claims that (1) the evidence was insufficient to sustain a conviction for an intentional homicide and (2) a jury instruction that referenced the defendant’s interest in the outcome of the case was improper. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Saturday, August 27, 2005, a local church sponsored a “Stop the Violence” block party on Vine Street in Hartford. Both the defendant and Keith Carter, the victim, attended the block party, where they argued. After the block party, several people went to an apartment building located at 46-48 Vine Street. The defendant lived in an apartment on the first floor of 46-48 Vine Street with his girlfriend, Latasha Drummond.

Shortly after 9:15 p.m. that evening, several people were gathered in the common hallway on the first floor of 46-48 Vine Street. Drummond was in the apartment she shared with the defendant. Drummond heard someone tell the victim to “get out of [the defendant’s] face.” A neighbor, Dela Tindal, was in her apartment located across the hall from the apartment shared by the defendant and Drummond. Tindal heard the defendant and the victim arguing in the hallway. Tindal then heard the defendant say, “are you still talkin’ shit? Don’t make me go get my pistol,” and then Tindal heard the defendant’s apartment door open and close. Shortly thereafter, Tin-dal heard the defendant say: “You still talking shit.” Tindal then looked out of her apartment and saw the two men arguing, standing face to face. Tindal then saw the defendant extend his hand and shoot the victim. Tindal could see sparks coming from the barrel of the gun, and the sound was “like a . . . loud firecracker.” Upon hearing the gunshot, Drummond looked out into the hallway where she saw the victim fall to the floor and the defendant with a gun in his hand. The defendant then ran out of the building. Drummond went back inside her apartment to get her keys and then ran out of the building.

Outside of the building, Drummond encountered her neighbor, Courtney Croome. Drummond was crying and shaking and told Croome, “He killed him. He killed him.”

Following the incident, Drummond visited the defendant at an abandoned apartment where he was hiding from the police. Drummond saw the defendant wrap the gun he had used to shoot the victim in a diaper and throw it in the trash, claiming that the police could not charge him if they did not have the murder weapon. Drummond described the weapon as a “black, old, rusty gun.”

The defendant was located and arrested approximately one month following the incident. While in prison, the defendant wrote three letters to Tindai, asking that she not appear at his probable cause hearing, that she lie to the police and that she ask others to lie for him.

Following a jury trial, the defendant was convicted of all the charges against him and sentenced to serve a term of sixty years imprisonment. Additional facts will be set forth as necessary.

I

On appeal, the defendant claims that the state presented insufficient evidence regarding his intent to cause death, and, therefore, the evidence was insufficient to support a conviction for murder pursuant to § 53a-54a. We disagree.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 542, 881 A.2d 290 (2005), cert, denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted.) State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992).

Moreover, “it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citation omitted; internal quotation marks omitted.) State v. McMahon, 257 Conn. 544, 566-67, 778 A.2d 847 (2001), cert, denied, 534 U.S. 1130,122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002).

Furthermore, “proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.” (Citations omitted.) State v. DeJesus, 236 Conn. 189, 196, 672 A.2d 488 (1996). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994). “We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). “Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand obseivation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514-15, 861 A.2d 1207 (2004), cert, denied, 273 Conn. 910, 870 A.2d 1082 (2005). “The process of inference is peculiarly a jury function, the raison d’etre of the jury system.” (Internal quotation marks omitted.) State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984).

Section 53a-54a (a) provides in relevant part that “[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .” “The specific intent to kill is an essential element of the crime of murder.” State v. Sivri, supra, 231 Conn. 126. “To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. ” (Internal quotation marks omitted.) State v. Aviles, 107 Conn. App. 209, 217, 944 A.2d 994, cert, denied, 287 Conn. 922, 951 A.2d 570 (2008); see also General Statutes § 53a-3 (11). “Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . This does not require that each subordinate conclusion established by or inferred from evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, supra, 126. “Nevertheless, because intent to cause the death of a person is an element of the crime . . . that intent must be proven beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 258, 681 A.2d 922 (1996). “An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert, denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981).

The defendant’s contention on appeal is that, on the basis of the evidence presented, it is equally likely that the victim’s death resulted from an accidental shooting when the defendant attempted to “pistol-whip” the victim. We conclude that there was sufficient evidence for the jury to have found beyond a reasonable doubt that the defendant had the specific intent to cause the victim’s death.

To support the theory of an accidental discharge, the defendant first cites the testimony of Drummond, who stated that (1) the defendant told her the shooting was an accident and that he was going to strike the victim with the gun when it accidentally discharged, and (2) the gun was “rusty.” The defendant argues that a rusty firearm may not shoot properly and cites newspaper articles and case law from other jurisdictions to support the theory that pistol-whipping incidents are notorious for accidental discharges. The defendant also argues that the testimony of the medical examiner who performed the autopsy of the victim supports an accidental discharge theory, noting that the victim died of a single bullet wound and that there was stippling on the victim’s left shoulder. The defendant argues that the presence of stippling suggests that that the gunshot was fired from close range. The victim also had a laceration on the inner lip and a missing tooth, which the defendant hypothesizes could have been caused by a punch.

We conclude that there was sufficient evidence presented to the jury that the defendant had the specific intent necessary to support a conviction for murder pursuant to § 53a-54a. There was testimony, which the jury could have credited, to support the conclusion that the defendant intended to cause the victim’s death. The jury could have inferred from the evidence that, because the defendant and the victim were arguing during most of the day prior to the shooting, the defendant had the requisite intent to cause the victim’s death. See State v. Edwards, 247 Conn. 318, 322, 721 A.2d 519 (1998) (arguments between a defendant and a victim can be evidence that defendant intended to cause victim’s death). Furthermore, during the continuing argument, and shortly before the shooting, the defendant stated that he was going to get his gun. The defendant went to his apartment, obtained the gun, returned to the hallway and confronted the victim with his gun. The jury also could have inferred from this evidence that the defendant intended to cause the victim’s death. See State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993) (defendant carrying deadly weapon prior to homicide can be evidence that defendant intended to cause victim’s death). There was testimony that the defendant remarked, “You still talking shit,” then extended his hand and shot the victim in the neck from close range. One who “uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.” (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. 259.

The jury also was free to infer that the defendant’s flight from the scene after the shooting and subsequent evasion of the police demonstrated consciousness of guilt and supported the conclusion that he intended to cause the death of the victim. See State v. Booth, 250 Conn. 611, 653, 737 A.2d 404 (1999) (“when a person flees the crime scene with other participants in a crime, it is reasonable to infer that that person had the intent to murder”), cert, denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). Additionally, the jury could reasonably have found from the evidence that the defendant disposed of the murder weapon and sought to influence the testimony of witnesses in the case.

Mindful of our standard of review, which requires us to view the evidence in the light most favorable to sustaining the jury’s verdict, we reject the defendant’s claim and conclude that the evidence was sufficient to sustain a conviction for murder.

II

The defendant also claims that the court erred in instructing the jury on the credibility of witnesses by indicating that the defendant’s interest in the outcome of the case could be considered in evaluating his testimony. The defendant claims that the instruction undermined the presumption of innocence and his rights under the federal and state constitutions to a fair trial and to testify in his own defense. The defendant seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s claim is reviewable under Golding because the record is adequate for review and the claim is of constitutional magnitude. See State v. Polanco, 126 Conn. App. 323, 331, 11 A.3d 188 (2011).

“[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.) State v. Arroyo, 292 Conn. 558, 566, 973 A.2d 1254 (2009), cert, denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).

In the present case, the court’s charge to the jury was as follows: “Now, the accused, [the defendant], took the [witness] stand in this case and testified. In weighing the testimony of an accused person, you should apply the same principles by which the testimony of other witnesses is tested. And that necessarily involves a consideration of [the defendant’s] interest in the outcome of the case. You will consider the importance to him of the outcome of the trial. An accused person, having taken the witness stand, stands before you, then, just like any other witness and is entitled [to] the same consideration and must have his testimony measured in the same way as any other witness, including his interest in the verdict, which you’re about to render.”

The instruction in the present case substantively is identical to the instruction in State v. Mann, 119 Conn. App. 626, 634, 988 A.2d 918, cert, denied, 297 Conn. 922, 998 A.2d 168 (2010). In Mann, this court relied on the precedent in State v. Williams, 220 Conn. 385, 397, 599 A.2d 1053 (1991), as it was required to do under our law, and concluded that the challenged portion of the court’s instruction was not improper for mentioning the defendant’s interest in the outcome of the case and that the instruction was “in harmony with those that consistently have been held proper by our courts. ” State v. Mann, supra, 637; see also State v. Kendall, 123 Conn. App. 625, 670, 2 A.3d 990, cert, denied, 299 Conn. 902, 10 A.3d 521 (2010); State v. Smith, 65 Conn. App. 126, 143-44, 782 A.2d 175 (2001), rev’d on other grounds, 262 Conn. 453, 815 A.2d 1216 (2003).

As an intermediate appellate court, we are bound by the Supreme Court precedent in Williams and are unable to modify it. See State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert, denied, 288 Conn. 902, 952 A.2d 811 (2008). “[W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) Id. Because the challenged instruction in this case virtually is the same as the challenged instruction in Mann, we conclude that it was not improper for the court to mention in its charge the defendant’s interest in the outcome of the case. Accordingly, the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       When Croome encountered Drummond running away from 46-48 Vine Street, Drummond was crying and screaming. Croome asked Drummond what was wrong, and Drummond replied, “oh, my God, oh, my God. I can’t believe he did it. I can’t believe he did. He shot him. He shot him.” Croome then asked Drummond who she was talking about, and Drummond replied, “Solomon.”

       The defendant argues that we should consider both countervailing evidence and evidence that supports the verdict in assessing a sufficiency of the evidence claim. With respect to this issue, this court previously has stated: “Our Supreme Court has been very clear concerning the standard to be employed in assessing a sufficiency of the evidence claim on appeal. . . . Should the defendant believe that this standard is improper, her redress is with our Supreme Court, as we are bound by the precedent it sets.” (Citations omitted.) State v. Varela, 115 Conn. App. 531, 540 n.3, 973 A.2d 156, cert, denied, 294 Conn. 913, 983 A.2d 852 (2009).

       Drummond testified that the defendant told her that he did not mean to shoot the victim but that he had attempted to hit the victim with the gun and the gun discharged.

       The defendant, against the advice of counsel, testified at trial. He stated the following. He was at 46-48 Vine Street when the victim was shot but not in the vicinity of the shooting. The defendant said that, after hearing a gunshot, he ran out of the building with several other people. He did not learn the identity of the victim until Drummond told him. The defendant said that he learned he was wanted in connection with the shooting when he saw a news story on television several days later. The defendant also denied owning a gun at that particular period in time. His testimony at trial did not include his “accidental discharge” theory.

       The medical examiner testified that such an injury also could be caused by an endotracheal tube.

       Although the defendant on appeal advances his accidental discharge theory, there was no evidence that after the shooting occurred he remained at the scene to aid the victim or called for or asked others to call for medical assistance. See State v. Tomasko, supra, 238 Conn. 259.

       The court instructed the jury, in relevant part: “Now, the accused, [the defendant], took the [witness] stand in this case and testified. In weighing the testimony of an accused person, you should apply the same principles by which the testimony of other witnesses is tested. And that necessarily involves a consideration of [the defendant’s] interest in the outcome of the case. You will consider the importance to him of the outcome of the trial. An accused person, having taken the witness stand, stands before you, then, just like any other witness and is entitled [to] the same consideration and must have his testimony measured in the same way as any other witness, including his interest in the verdict, which you’re about to render.”

        Golding holds that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The state argues that the defendant has waived review of this claim because he failed to object to the instruction at trial. We note that the present case was briefed and argued prior to our Supreme Court’s decision in State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), in which it reversed in part State v. Ebron, 292 Conn. 656, 681-82, 975 A.2d 17 (2009), and concluded that claims of instructional error impliedly are waived “when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given . . . .” State v. Kitchens, supra, 482-83. In the present case, we assume without deciding that waiver does not apply because there were no written instructions provided to counsel by the court as required by Kitchens. We note, however, that the court did state to counsel that the instruction that it intended to use was set forth in D. Borden & L. Orland, 5 Connecticut Practice Series: Criminal Jury Instructions (4th Ed. 2007) § 3.8.

       This court’s opinion in Mann was released on March 2, 2010, after the filing of the defendant’s brief but prior to the filing of the state’s brief. The instruction in Mann was as follows: “And in this case, the defendant testified. An accused person, having taken the [witness] stand, stands before you just like any other witness. He is entitled to the same considerations and must have his testimony tested and measured by you by the same factors and standards as you would judge the testimony of any other witness. That necessarily involves a consideration of his interest in the verdict that you will render. You have no right to disregard his testimony or to disbelieve his testimony merely because he is accused of a crime. You will consider my earlier instructions on the general subject matter of creditability that obviously pertain to the defendant’s testimony as well as the testimony of any other witness. ” (Internal quotation marks omitted.) State v. Mann, supra, 119 Conn. App. 634.
      At oral argument, appellate counsel for the defendant, who was also appellate counsel for the defendant in Mann, attempted to distinguish the present case from Mann in that the court also gave an accomplice witness instruction as to Drummond. Counsel argues that the purpose of an “accomplice witness” instruction is to signal to the jury that such testimony is potentially untrustworthy and that coupling an “accomplice witness” instruction with a “testimony of the defendant” instruction invites the jury to view the testimony of the defendant with the same suspicion. We are not persuaded.

       “We note that this court’s policy dictates that one panel should not, on its own, [overrule] the ruling of a previous panel. The [overruling] may be accomplished only if the appeal is heard en banc.” (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57, 67 n.9, 6 A.3d 213 (2010), cert, denied, 299 Conn. 926, 11 A.3d 150 (2011).


author: PER CURIAM.

text:
    IN RE KYLE L.

    (AC 32528)
    DiPentima, C. J., and Bear and Borden, Js.
    Argued March 8
    officially released April 12, 2011

      Sandra T., pro se, the appellant (respondent mother).

      Michael J. Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Nancy Owens McMahon, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The respondent, Sandee B., the mother of Kyle L., appeals from the judgment of the trial court terminating her parental rights as to the minor child. The respondent claims that the court’s critical finding, namely, that she had failed to achieve such a degree of personal rehabilitation as would encourage the belief that she could, within a reasonable time, assume a responsible position in the life of the child, was not supported by sufficient evidence. We affirm the judgment of the trial court.

Certain facts and the procedural history are not in dispute. The child was bom on August 17, 2004. In October, 2005, the department of children and families first became involved with the family, regarding issues of substance abuse and domestic violence. On November 30, 2005, the petitioner, the commissioner of children and families, filed a neglect petition pursuant to General Statutes § 46b-129, and on January 26, 2006, the petitioner assumed custody of the child pursuant to an order of temporary custody. The neglect petition ultimately was granted on September 13, 2006, and the child was committed to the petitioner’s custody and guardianship.

On October 8, 2009, the petitioner filed this petition for termination of parental rights, on the ground that the child previously had been adjudicated neglected and that the respondent had “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” General Statutes § 17a-112 (j) (3) (B). The court, Benti-vegna, J., held a three day trial in May, 2010, and, on July 1, 2010, issued a lengthy memorandum of decision and rendered judgment granting the petition. This appeal followed.

The respondent’s sole claim is that the evidence does not support the court’s finding that she had failed to achieve the degree of personal rehabilitation specified in the statute. We disagree.

We have reviewed fully the claims of the respondent, both in her brief and in oral argument to this court, the court’s memorandum of decision, and the record of the case. The court’s findings are detailed, carefully and thoroughly stated, and cover all of the statutory requirements. The evidence supporting each is, as well, thoroughly summarized by the court, and amply supports the critical challenged finding. We cannot agree with the respondent that the finding is not supported by the evidence.

The judgment is affirmed.

       The trial court terminated the parental rights of both parents of the child. Only the respondent mother appealed. We therefore refer to the mother as the respondent. The court-appointed attorney for the child supports the position of the petitioner, the commissioner of children and families, that the judgment should be affirmed.

       The petitioner had filed an earlier petition for termination of parental rights that the court, Hon. Samuel S. Goldstein, judge trial referee, denied on March 4, 2008.


author: Per Curiam.

text:
    SALVATORE CARACOGLIA, CONSERVATOR (PERSON AND ESTATE OF GIUSEPPA ALBINA CARACOGLIA) v. SERGIO CARACOGLIA
    (AC 31794)
    Lavine, Robinson and Sullivan, Js.
    Argued January 20
    officially released March 8, 2011
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DAVID ONG JUDD
    (AC 32050)
    Harper, Bear and Schaller, Js.
    Argued February 18
    officially released March 8, 2011
   Per Curiam.

The judgment is affirmed.


text:
    DEBRA L. PAPAPIETRO v. KIMBERLY R. CHARLES ET AL.
    (AC 32419)
    Harper, Bear and Schaller, Js.
    Argued February 18
    officially released March 8, 2011
   Per Curiam.

The judgment is affirmed.


text:
    TOWN OF WATERFORD v. STEPHEN J. KRIJGER
    (AC 30949)
    Bishop, Gruendel and Harper, Js.
    Argued February 15
    officially released March 15, 2011
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM LAWLER v. WESLEY HATCH
    (AC 31858)
    Harper, Lavine and Flynn, Js.
    Submitted on briefs December 1, 2010
    officially released March 15, 2011
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MARCO RODRIGUEZ
    (AC 32162)
    Gruendel, Lavine and Dupont, Js.
    Argued March 9
    officially released April 5, 2011
   Per Curiam.

The judgments are affirmed.


text:
    DONNA AROSE v. COMMISSIONER OF MOTOR VEHICLES
    (AC 32437)
    Bishop, Bear and Peters, Js.
    Argued March 9
    officially released April 5, 2011
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES MILLER v. WILLIAM J. CASEY
    (AC 32308)
    Gruendel, Robinson and Bear, Js.
    Argued March 10
    officially released April 5, 2011
   Per Curiam.

The judgment is affirmed.


text:
    ARIEL CRUZ v. 31 CATHERINE AVENUE, LLC, ET AL.
    (AC 32064)
    Gruendel, Beach and Alvord, Js.
    Submitted on briefs March 11
    officially released April 5, 2011
   Per Curiam.

The decision is affirmed.


text:
    MICHAEL PARROTT v. COMMISSIONER OF CORRECTION
    (AC 31807)
    DiPentima, C. J., and Alvord and Borden, Js.
    Argued March 14
    officially released April 5, 2011
   Per Curiam.

The appeal is dismissed.


text:
    CECELIA LEBBY v. BRUCE GELSTON ET AL.
    (AC 32446)
    Bishop, Alvord and Pellegrino, Js.
    Submitted on briefs March 16
    officially released April 12, 2011
   Per Curiam.

The judgment is affirmed.


text:
    DENNIS NASH v. COMMISSIONER OF CORRECTION
    (AC 31640)
    Beach, Robinson and Alvord, Js.
    Argued March 18
    officially released April 12, 2011
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. LOUIS CAMPBELL
    (AC 31950)
    DiPentima, C. J., and Bishop and Gruendel, Js.
    Argued March 21
    officially released April 12, 2011
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MANION JORDAN
    (AC 32024)
    Lavine, Robinson and West, Js.
    Argued March 23
    officially released April 12, 2011
   Per Curiam.

The judgment is affirmed.


text:
    DARIO GUZMAN v. COMMISSIONER OF CORRECTION
    (AC 31371)
    Bishop, Beach and Bear, Js.
    Argued March 23
    officially released April 12, 2011
   Per Curiam.

The appeal is dismissed.