author: SCHALLER, J.

text:
    MARILYN O’DONNELL v. CARMEN FENEQUE ET AL.
    (AC 29718)
    Gruendel, Harper and Schaller, Js.

      Argued October 16, 2009
    officially released March 30, 2010

      Patrick J. Flaherty, with whom was Lorinda S. Coon, for the appellant (defendant Quincy Mutual Fire Insurance Company).

      William F. Gallagher, with whom were Erica W. Todd, and, on the brief, HughD. Hughes, for the appel-lee (plaintiff).
   Opinion

SCHALLER, J.

The defendant Quincy Mutual Fire Insurance Company, the plaintiffs insurance carrier, appeals from the judgment, rendered after a jury trial, in favor of the plaintiff, Marilyn O’Donnell. On appeal, the defendant claims that the trial court (1) abused its discretion in denying its motion to set aside the verdict based on insufficient evidence to support the jury’s verdict and (2) improperly instructed the jury. We affirm the judgment of the trial court.

The following facts and procedural history are not in dispute. On January 3, 2003, the plaintiff left her workplace in Stratford at approximately 4 p.m. and was proceeding to her home in Naugatuck. The plaintiff was operating her vehicle northbound, in the left lane, of Route 8. The weather was rainy, and the road was covered with slush. The plaintiff saw a vehicle, later determined to be operated by Carmen Feneque, coming across the grass median divider toward her from the southbound direction of Route 8. The plaintiff anticipated that the vehicle would “pull off,” but, instead, the vehicle accelerated and continued across the median. The plaintiff had no way to avoid Feneque’s vehicle because there were vehicles in front of her, behind her and next to her. Feneque’s vehicle crossed over the median divider, collided with the plaintiffs vehicle and struck another vehicle traveling in the right northbound lane.

The plaintiff brought an action against Feneque and the defendant seeking damages for the injuries that she sustained in the accident. The plaintiff alleged that Feneque was negligent for (1) failing to keep a reasonable and proper lookout and to pay attention to where she was driving, (2) failing to keep her vehicle under proper control, (3) failing to operate her vehicle at a reasonable rate of speed in violation of General Statutes § 14-218a and (4) failing to operate her vehicle in the proper lane in violation of General Statutes § 14-236. Furthermore, the plaintiff alleged that the defendant was hable for her injuries pursuant to the uninsured motorist provisions of her own automobile policy. See Powell v. Infinity Ins. Co., 282 Conn. 594, 605, 922 A.2d 1073 (2007) (“to recover uninsured motorist benefits, plaintiff must establish: [1] that the other motorist was uninsured; [2] that the other motorist was legally hable under the prevailing law; and [3] the amount of liability” [internal quotation marks omitted]). The court defaulted Feneque for failure to appear, and the case proceeded to trial on the uninsured motorist claim. After trial, the jury returned a verdict in favor of the plaintiff. The defendant filed a motion to set aside the verdict, which the court denied. This appeal followed.

The defendant claims that the evidence was insufficient to support the jury’s verdict on the plaintiffs claim of neghgence. Specifically, the defendant argues that the jury could not reasonably have concluded that Fen-eque neghgently operated her vehicle or that Feneque’s operation could have been the proximate cause of the plaintiffs injuries. The defendant bases its arguments on the assertion that the plaintiff failed to submit evidence that would allow the jury reasonably to infer that Feneque voluntarily crossed the median divider in her vehicle. The defendant’s reliance on the proposition that the plaintiff had to prove affirmatively that Feneque voluntarily crossed the median in her vehicle is mistaken.

In order to resolve the defendant’s claim, we begin by setting forth the standard of review and the relevant legal principles. “The standard of review governing our review of a trial court’s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Greci v. Parks, 117 Conn. App. 658, 667, 980 A.2d 948 (2009).

“Negligence involves the violation of a legal duty [that] one owes to another, in respect to care for the safety of the person or property of that other. . . . The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Citation omitted; internal quotation marks omitted.) Curran v. Kroll, 118 Conn. App. 401, 407, 984 A.2d 763 (2009), cert. granted on other grounds, 295 Conn. 915, 990 A.2d 866 (2010).

“To prove negligence per se, a plaintiff must show that the defendant breached a duty owed to her and that the breach proximately caused the plaintiffs injury.” Pickering v. Aspen Denial Management, Inc., 100 Conn. App. 793, 802, 919 A.2d 520 (2007). “Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law.” (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 860-61 n.16, 905 A.2d 70 (2006).

“[A] plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . . The second component of legal cause is proximate cause. . . . [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants’ conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Internal quotation marks omitted.) Burton v. Stamford, 115 Conn. App. 47, 75 n.18, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).

The following additional facts are relevant for our resolution of the defendant’s claim. The plaintiff alleged in her complaint that Feneque was negligent for failing to operate her vehicle in the proper lane on a multilane highway in violation of § 14-236. The plaintiff, who witnessed the accident, testified at trial as to the underlying facts. State police Trooper Thomas Glowacki, trained in scene reconstruction, investigated the accident and also testified in accordance with the underlying facts. No other witnesses testified as to liability, nor was any evidence introduced at trial concerning the reason for Feneque’s vehicle crossing the median and the resulting accident. Feneque was not called as a witness by either party.

On the basis of the evidence, the juiy reasonably could have found that Feneque was negligent. The plaintiffs claim was based on common-law and statutory negligence. With regard to statutory negligence, which the defendant specifically addresses, the jury had to decide merely whether Feneque had violated § 14-236, and, if she had, Feneque was negligent as a matter of law. Section 14-236 provides in relevant part: “When any highway has been divided into two or more clearly marked lanes for traffic. ... a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety . . . .” The jury reasonably could have found that Feneque violated § 14-236 when her vehicle crossed the median into oncoming traffic. Moreover, it was reasonable for the jury to conclude that Feneque’s violation of § 14-236, that is, her failure to keep her vehicle in the proper lane, proximately caused the plaintiffs injuries.

The defendant first argues that, in order to prove negligence per se, the plaintiff has to prove “an intent to do the act that the statute proscribes.” The defendant has failed to submit any persuasive authority for this proposition. This reasoning, moreover, has been specifically rejected by the Supreme Court in Danzell v. Smith, 150 Conn. 35, 38-39,184 A.2d 53 (1962). In Danzell, the accident occurred when the defendant’s vehicle crossed the center strip and collided with the plaintiffs vehicle, which was traveling properly in the opposite direction. The plaintiff alleged that the defendant violated General Statutes § 14-237 by driving across the dividing space and onto the wrong side of the highway. Id., 37. On appeal, the defendant argued that “the jury should have been instructed that [it] could not find that he was violating the statute without evidence that he took some affirmative action which caused the vehicle to take the course which it did.” Id., 38. The court stated that “[t]here is no merit to this contention. Where the language of the statute concerning the operation of motor vehicles is clear, there is no choice but to apply that language so as to give the effect expressed in it. The violation of a statute designed for the protection of the public is, in itself, negligence. ... To require affirmative proof of an intent to commit the act prohibited by § 14-237 would import a requirement into the statute never contemplated by the legislature. Where . . . the course of a motor vehicle is contrary to the statute, it is usually a permissible inference that the operator of the vehicle was the responsible agent in causing it to take that course.” (Citations omitted.) Id., 38-39.

The defendant tries to distinguish Danzell from the present case by arguing that the voluntariness element of negligence per se can only be found “when sufficient evidence negates any other non-negligent cause such as sudden emergency, sudden illness or sudden mechanical malfunction . . . .’’If any evidence had been put forth that Feneque’s vehicle crossed the median as a result of an emergency, a sudden illness, a mechanical malfunction or because of snow and ice, the jury could have taken that into account in determining whether Feneque violated § 14-236. This is because § 14-236 requires that “a vehicle shall be driven as nearly as practicable entirely within a single lane . . . ,” (Emphasis added.) General Statutes § 14-236 (1); see O’Briskie v. Berry, 95 Conn. App. 300, 312-13, 897 A.2d 605 (2006) (“When his car lost traction, due to the snow and slush on the roadway, the defendant’s vehicle slid. The jury reasonably could have found that although the defendant did not yield half of the roadway, he did yield as much of the roadway as was possible under the conditions presented. The jury could have found, therefore, that the defendant did not voluntarily cross into the oncoming lane of travel, did not breach a duty under the statute and, thus, was not negligent.”). Furthermore, such evidence would also have allowed the jury to consider whether Feneque’s negligence was the proximate cause of the plaintiffs injuries. See O'Briskie v. Berry, supra, 313 n.11 (citing Blancato v. Randino, 33 Conn. App. 44, 48, 632 A.2d 1144, cert. denied, 228 Conn. 916, 636 A.2d 846 [1993], and stating that Blancato held that “jury could have reasonably concluded that conditions of roadway and not defendant’s negligence were proximate cause of accident where defendant was driving vehicle under speed limit, vehicle slid on ice, and defendant’s efforts to brake and maneuver vehicle could not prevent accident”). Based on the evidence submitted, it was reasonable for the jury to conclude that Feneque was negligent. The court, therefore, did not abuse its discretion in denying the motion to set aside the verdict.

The defendant next argues that there was insufficient evidence for the jury reasonably to conclude that Fen-eque’s actions proximately caused the plaintiffs injuries. Specifically, the defendant argues that “[m]any scenarios other than driver negligence can cause a loss of control, including being cut off, sideswiped or struck in the rear by another vehicle, hitting a patch of ice, water, slush or sand, or a medical or mechanical emergency.” In Burton v. Stamford, supra, 115 Conn. App. 68-88, the court discussed in detail the relevant case law on insufficiency of evidence claims on the issue of causation. Similar to Burton, this case most closely resembles Terminal Taxi Co. v. Flynn, 156 Conn. 313, 240 A.2d 881 (1968). “In Terminal Taxi Co., the vehicle of the plaintiff taxicab driver was forcibly struck at the left rear by the right front of an automobile owned and operated by the defendant’s decedent. . . . [A]n eyewitness to the accident testified. . . . That witness was the plaintiff who had been involved in the automobile accident. Significantly, the court noted that [the plaintiff] did not testify that the [decedent’s] vehicle was being driven at a high rate of speed before the accident or that [the decedent] was not looking where he was going or that [the decedent] lost control of his car. The evidence as to these facts was circumstantial. . . . Rather, the plaintiff testified about what he saw .... In addition, evidence of physical facts was introduced through the investigating officer.” (Citations omitted; internal quotation marks omitted.) Burton v. Stamford, supra, 70-71. The court concluded that “[t]he jury could have found from the nature and the extent of the damage to the vehicles that [the decedent] was operating his car at an excessive speed and that he was not driving at a reasonable distance apart from the taxicab.” (Internal quotation marks omitted.) Id., 72. Similarly, in this case, the plaintiff has provided both eyewitness testimony and testimony concerning physical facts by the investigating officer to establish how the accident occurred. The plaintiff, accordingly, has provided a sufficient evidentiary basis for the jury reasonably to conclude that Feneque’s negligence was the proximate cause of the plaintiffs injuries. See Terminal Taxi Co. v. Flynn, supra, 313; Burton v. Stamford, supra, 68-88.

The judgment is affirmed.

In this opinion the other judges concurred.

       Carmen Feneque also was named as a defendant, but she was defaulted for failure to appear and is not a party to this appeal. Accordingly, we refer in this opinion to Quincy Mutual Fire Insurance Company as the defendant.

       The defendant claims that the jury instructions were erroneous because the court instructed the jury on negligence and negligence per se when there was no evidence that Feneque was negligent. In view of our conclusion that there was sufficient evidence for the jury to find that Feneque was negligent, we conclude that the court’s instruction was not improper. See Good-master v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993) (“The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. . . . The court should, however, submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence.” [Citations omitted; internal quotation marks omitted.]).

       In addition, the defendant specifically argues in its brief that there was “no evidence whatsoever in this case that the uninsured driver intended to cross over the median, or did so voluntarily, or even by any negligent act or omission on her part . . . The defendant argues that the voluntariness element of the violation of a statute can be inferred only “when sufficient evidence negates any other non-negligent cause such as sudden emergency, sudden illness or sudden mechanical malfunction . . . .”

       Furthermore, if the jury had been presented with evidence that Feneque’s vehicle crossed the median because of an emergency, the jury would have to decide whether Feneque breached the duty of care. See Brown v. Robishaw, 282 Conn. 628, 638 n.12, 922 A.2d 1086 (2007) (“a defendant faced with a sudden and unexpected circumstance that leaves little or no time for consideration [may] not [be] held to the same duty of care required of a reasonably prudent person under ordinary circumstances” [internal quotation marks omitted]).
      If Feneque had been faced with a sudden emergency the defendant would have been entitled to an instruction concerning the doctrine of sudden emergency. See Puchalsky v. Rappahahn, 63 Conn. App. 72, 80, 774 A.2d 1029 (“Whether a charge on 1he doctrine of sudden emergency was applicable is determined by the claims of proof advanced by the parties. . . . Evidence was required which would be sufficient to support a finding [1] that an emergency actually existed, [2] that the perilous situation was not created by the defendant, and [3] that the defendant, confronted with the emergency, chose a course of action which would or might have been taken by a person of reasonable prudence in the same or a similar situation.” [Citation omitted; internal quotation marks omitted.]), cert. denied, 256 Conn. 931, 776 A.2d 1147 (2001).


source: Caselaw Access Project

author: FLYNN, C. J. HARPER, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. VINCENT V. CORNELIUS
    (AC 29662)
    Flynn, C. X, and Harper and West, Js.
    Argued January 5
    officially released March 30, 2010

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Stacey M. Haupt, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Vincent V. Cornelius, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the court failed to remain impartial and burdened his right to testify in his defense when it gave an improper jury instruction on consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 26, 2006, Kendraya Glasper and Kenia Cates went to the defendant’s house in New Haven in Glasper’s Saturn automobile. Cates and the defendant were dating at the time. The defendant’s friend, James Pearson, came from the defendant’s house to talk to Glasper and Cates, who remained in the Saturn. After a while, the defendant came from the house with his small son and his son’s mother, Tonia Sherman. He wanted Glasper to see his son, and, after getting out of the vehicle, she held him for a short while, expressing to the defendant that she thought the child was cute. The defendant then walked Sherman and their son to Sherman’s vehicle, and she and the child left. Glasper and Cates went back inside the Saturn.

The defendant’s mother, Veronica Crowder, then yelled from the upstairs window of the defendant’s house for the defendant to say hello to Cates for her, and Cates exited the Saturn to speak with her, and the defendant’s mother indicated to Cates that she was coming downstairs. When the defendant’s mother came outside, she hugged Cates and then told her that she was going to go back inside the house to put on some shoes. At about that same time, the defendant was standing near the driver’s side window of the Saturn speaking with Glasper as she sat in the driver’s seat. Pearson was behind the Saturn, and, as he looked over toward the defendant, he saw that the defendant had a revolver in his right hand. This was the same gun that Pearson had seen the defendant with earlier in the day. Shortly thereafter, Pearson heard two gunshots. The defendant immediately and repeatedly cried out to others to telephone 911. The defendant opened the car door and applied pressure to Glasper’s chest, telling her that help was on the way. Cates and Pearson ran over to the Saturn, and the defendant told Pearson to get rid of the gun, which was lying in the street. Pearson grabbed the gun, threw it into some bushes in the defendant’s backyard and went into the defendant’s house.

When police and emergency workers arrived, the defendant told the police that two black males had shot Glasper. He initially relayed this story to Officer Walter Flegler, and he later relayed it to Detective Donald Harrison. Approximately one hour after the defendant went to the police station to be interviewed, he was told that Glasper had died, and he then admitted to Harrison that he had shot her. The defendant explained to Harrison that he had removed the gun from his waistband in order to pull up his pants and that he saw his mother and tried to put the gun in Glasper’s car but that it must have hit the window because it discharged accidentally.

The defendant was arrested and charged with murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of § 29-35. After a jury trial, he was convicted of carrying a pistol without a permit and of the lesser included offense of manslaughter in the second degree in violation of § 53a-56 (a) (1), and he was sentenced to a total effective term of fourteen years imprisonment. This appeal followed.

The defendant claims that the court failed to remain impartial when it gave a jury instruction “indicating that the state believed [the] defendant had lied in his testimony [and that this] violated his constitutional rights.” The defendant argues that this instruction “misled the jurors into rejecting [the] defendant’s defense that the shooting was accidental [because the] instructions singled out [the] defendant’s testimony as being false.” The defendant best sums up this unpreserved claim as follows: “[The] defendant does not complain about the consciousness of guilt instruction itself and does not claim it was improper to instruct the jury to consider [the] defendant’s testimony as evidence of consciousness of guilt. Rather, [the] defendant claims that the court’s statement highlighting the state’s claim that [the] defendant’s testimony was false violated his right to an impartial judge and juiy and burdened his right to testify in his own defense. As such, this claim is of constitutional magnitude and can be reviewed under the [doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. See State v. Hernandez, 218 Conn. 458, 463, 590 A.2d 112 (1991) (defendant has due process right to fair trial before impartial judge and unprejudiced jury in atmosphere of judicial calm) . . . .” (Citations omitted.) We agree that the claim is of constitutional magnitude but conclude that a clear constitutional violation does not exist; therefore, the claim fails under Golding’s third prong. See State v. Golding, supra, 239-40.

Initially, we address the reviewability of the defendant’s claim. “[I]f a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, [supra, 213 Conn. 239-40]. ... A party is obligated . . . affirmatively to request review under these doctrines. . . . Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if the following conditions are satisfied: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Citations omitted; internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 324-25, 977 A.2d 209 (2009).

In this case, the record is adequate for our review of the defendant’s claim, and we are persuaded that a question of constitutional magnitude has been raised, implicating the court’s neutrality and the defendant’s right to testify in his defense. Accordingly, the claim is reviewable. We further conclude, however, that the defendant has failed to demonstrate the existence of a constitutional violation that clearly deprived him of a fair trial.

The defendant claims that the court’s statement in its jury instructions that “the state claims that the defendant made false statements to you during his testimony here in court” highlighted the state’s contention that the defendant falsely had testified in court and that the court, therefore, violated his constitutional due process right to be tried by an impartial judge and unduly burdened his right to testify in his defense by singling out his testimony after he had taken the witness stand in his defense. We do not agree with either contention.

“[A] court must take care to avoid making improper remarks which are indicative of favor or condemnation . . . and must not indulge in an argumentative rehearsal of the claims of one side only. . . . Such proscriptions are of heightened importance in a criminal case, where considerations of due process require that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. . . . The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the state’s accusations. . . . [P] artisan commentary, if fairly established by the record . . . deprives defendants of the very essence of their constitutional right to a fair trial by an impartial jury.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, supra, 218 Conn. 463.

The court’s instructions to the jury on consciousness of guilt were as follows; the portion italicized is the only portion that the defendant claims was improper: “Consciousness of guilt. Let me give you a charge on that rule of law. When a person is on trial for criminal offenses, it is proper to show his conduct as well as any declarations made by him subsequent to the alleged criminal offenses which may fairly have an influence by that act. As the rule applies to this case, the law recognizes that an accused’s statements to police or [his] efforts to conceal or dispose of evidence which a jury can reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime may be admissible against an accused as evidence reflecting that he was conscious of his own guilt. Whatever you find proven in this regard, if anything, must have been influenced by the criminal act and not by any other reason consistent with innocence. The state has presented evidence that after the shooting, the defendant initially told several officers that other black males were responsible for the shooting. The state claims that such statements were intentionally false; that is, knowingly untrue. You’ve heard the defendant’s testimony in this regard. It is, of course, for you alone to determine the credibility of all the witnesses on this point. In the same way, the state offered evidence that after the shooting the defendant gave his gun to James Pearson and told him to get rid of it. Again, it is for you . . . alone to determine the credibility of all the witnesses on this issue. From any proven false statement or effort to dispose of evidence, you may, but are not required to, use what has been proven as evidence tending to show that the defendant was conscious of his own guilt.

“First, however, you must determine whether the state has proven any of such false statement or concealment. If so, and if you then find proven that the defendant did so in connection with these crimes, this does not raise a presumption of guilt. It is circumstantial evidence, and you may or may not infer consciousness of guilt from it. It is to be given the weight, if any, to which you think it is entitled to under the circumstances. It is up to you, as judges of the facts, to decide whether the state has proven any false statement or effort to conceal and, if so, whether or not whatever has been proven reflects a consciousness of guilt by the defendant and to consider such in your deliberations in conformity with these instructions.

“Finally, in accordance with and as limited by the same rule I’ve just given you, the state claims that the defendant made false statements to you during his testimony here in court. This is only a claim by the state. It is for you to determine, based upon all of the evidence, what the truth is. If you conclude, however, that the defendant made any false statements to you here in court concerning the crimes charged and that he did so intentionally, you may conclude that the defendant’s actions show a consciousness of guilt in accordance with these instructions. In other words, from any statements made by the defendant here in court which are shown to be false, you may infer guilty knowledge influenced by the criminal act itself. Again, you are permitted but not required to conclude that such statements may be circumstantial evidence of consciousness of guilt. They are to be given the weight, if any, to which you think they are entitled to under the circumstances in conformity with these instructions.” (Emphasis added.)

Within the entire charge, the defendant complains only of the statement “the state claims that the defendant made false statements to you during his testimony here in court." (Emphasis added.) A review of the state’s closing argument reveals that the prosecutor argued, in part, that the evidence did not support the defendant’s trial testimony. Although we do not necessarily endorse the specific language used by the court in the italicized portion of the charge of which the defendant complains, we do not view it in isolation. It is clear that the court immediately thereafter instructed the jurors that it was up to them to decide whether the defendant gave false statements or testimony, and, if they decided that he did give false statements or testimony, that it solely was within their province to use such testimony as evidence of consciousness of guilt, if they so desired. Clearly, the instruction, when taken as a whole, left fact-finding to the jury, was neutral and did not demonstrate any partiality on the part of the court. See State v. Casanova, 255 Conn. 581, 600, 767 A.2d 1189 (2001) (charge, read as whole, must be neutral in substance and appropriately guide jury to its verdict).

The defendant also argues that the contested portion of the court’s instruction “singled out” his trial testimony, thereby burdening his right to testify on his behalf. The defendant points to State v. Hernandez, supra, 218 Conn. 461-63, arguing that the court must avoid improper comments and that the court in this case “unfairly singled out his testimony as being false,” causing the jury to be influenced, which resulted in an injustice. We are not persuaded.

In Hernandez, our Supreme Court reversed the defendant’s conviction because the trial court, in marshaling evidence, had “extensively detailed the state’s claims and its evidence in support thereof, and little or no reference was made to the defendant’s exculpatory evidence and his theory of defense . . . .” (Emphasis added.) State v. Hernandez, supra, 218 Conn. 465. There is no contention that the trial court in this case marshaled the evidence or extensively detailed the state’s claims; there was but one sentence in an otherwise uncontested charge that summarized a reason why the consciousness of guilt charge was being given. We simply find no similarity between the cases.

The defendant also points to State v. Coleman, 14 Conn. App. 657, 676, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988), and argues that “just as in Coleman, the court’s instruction singled out [the] defendant’s testimony as possibly being false and ‘imposed an arbitrary and disproportionate cost’ on his assertion of his right to testify.” We do not agree.

In Coleman, this court found that the trial court’s instruction that the jury “may properly base its finding of guilt in part on the defendant’s testimony and [its] disbelief in its truth”; id., 674; improperly burdened the defendant’s right to testify because it allowed the jury to infer from its mere disbelief of the defendant’s testimony that the facts denied were true. Id. The court in Coleman also cautioned, however, that its conclusion did not mean “that a trial court may not appropriately instruct the jury regarding the link between a determination that a defendant has testified falsely and consciousness of guilt on his part. Just as the jury may consider a defendant’s lies to the police as consciousness of guilt ... it may under appropriate circumstances also consider a defendant’s false testimony at trial as consciousness of guilt. . . . The jury’s determination that a defendant’s conduct evinces a consciousness of guilt is not the same, however, as a direct inferential step from a disbelief in his testimony to proof of facts on which the state has the burden of persuasion.” (Citations omitted.) Id., 676-77. In the present case, the court did not tell the jury that it could base a finding of guilt on its disbelief of the defendant’s testimony. To the contrary, the court properly instructed the jury that it was to determine, “based upon all of the evidence,” whether the defendant had made false statements and given false testimony, and, that after so determining, it could consider the defendant’s false statements and testimony as evidence of consciousness of guilt. We conclude that the court’s instruction was not improper.

The judgment is affirmed.

In this opinion WEST, J., concurred.

HARPER, J.,

concurring. I concur with the result reached by the majority but respectfully disagree with its analysis of the claim by the defendant, Vincent V. Cornelius. I disagree that the claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The majority opinion accurately states that the defendant, in his principal brief, affirmatively requests review of his unpreserved claim under the Golding doctrine. Also, the majority opinion accurately states that, invoking such level of review, the defendant couches his claim in constitutional terms. The defendant does not challenge the propriety of delivering a consciousness of guilt instruction in this case or argue that the court’s consciousness of guilt instruction was inaccurate as a statement of the law. The defendant takes issue with the fact that the court, in the context of its consciousness of guilt instruction, drew the jury’s attention to the state’s argument that the defendant had testified untruthfully. The defendant argues that the court thereby improperly highlighted the state’s argument that his testimony was false, thus burdening “his right to an impartial judge and jury” and “his right to testily in his own defense.”

A claim is not reviewable under Golding unless it “is of constitutional magnitude alleging the violation of a fundamental right . . . .” State v. Golding, supra, 213 Conn. 239-40; see also State v. Moore, 293 Conn. 781, 805, 981 A.2d 1030 (2009) (“[t]he first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail” [internal quotation marks omitted]). In determining whether a claim is reviewable under Golding, this court is not bound by an appellant’s representation that his claim is constitutional in nature; we must independently determine the true nature of the claim. See State v. Samuels, 273 Conn. 541, 560, 871 A.2d 1005 (2005) (“[m]erely placing a constitutional tag on a nonconstitutional claim does not make it so” [internal quotation marks omitted]); State v. Schiappa, 248 Conn. 132, 164, 728 A.2d 466 (“a nonconstitutional claim cannot be transformed into a constitutional claim simply by virtue of the label placed upon it by a party”), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); State v. Taylor, 239 Conn. 481, 502-503, 687 A.2d 489 (1996) (“it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party” [internal quotation marks omitted]), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

“Although our Supreme Court clearly has recognized that some errors in jury instructions are of constitutional magnitude, it has limited Golding review to instructional errors that so adversely prejudice the defendant that he is effectively deprived of his right to a trial by jury.” State v. Carty, 100 Conn. App. 40, 58, 916 A.2d 852, cert. denied, 282 Conn. 917, 925 A.2d 1100 (2007). Our Supreme Court “repeatedly has held that consciousness of guilt claims [that do not mandate inferences to be drawn from the evidence] are not constitutional and, therefore, are not subject to Golding review.” State v. Luster, 279 Conn. 414, 421-22, 902 A.2d 636 (2006); see also State v. Johnson, 288 Conn. 236, 288, 951 A.2d 1257 (2008); State v. Schmidt, 92 Conn. App. 665, 677, 886 A.2d 854 (2005), cert. denied, 277 Conn. 908, 894 A.2d 989 (2006); State v. Beverly, 72 Conn. App. 91, 104, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002); State v. Turner, 67 Conn. App. 519, 526-27, 787 A.2d 625 (2002); State v. Rodriguez, 61 Conn. App. 700, 712-13, 767 A.2d 756 (2001); State v. Ham, 55 Conn. App. 281, 292-93, 739 A.2d 1268, cert. denied, 252 Conn. 916, 743 A.2d 1128 (1999). With regard to consciousness of guilt instructions, our Supreme Court has recognized that “unpreserved challenges to jury instructions that mandate inferences adverse to a defendant may sufficiently implicate constitutional rights to satisfy the second condition of Golding. ... By contrast, instructions addressing permissive inferences are not of constitutional magnitude.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Alston, 272 Conn. 432, 448, 862 A.2d 817 (2005).

The instruction at issue in the present case did not mandate that the jury draw a particular inference from the evidence presented at trial but merely identified a permissive inference that the jury might draw from the defendant’s testimony. In conformity with the precedent set forth previously, I conclude that that claim fails under Golding’s second prong. Additionally, with regard to the issue of Golding review, I rely on our Supreme Court’s analysis in State v. Coward, 292 Conn. 296, 313-15, 972 A.2d 691 (2009), which is consistent with the precedent set forth previously. In Coward, the defendant, for the first time on appeal, challenged the trial court’s consciousness of guilt instruction that it was permissible for the jury to infer that the events described by a certain witness, Maurice Lawrence, constituted consciousness of guilt. Id., 314. The defendant, seeking Golding review, placed a constitutional tag on his claim; he asserted that the court “improperly put the court’s imprimatur on the state’s version of events, and thereby bolstered the state’s case by supporting Lawrence’s uncorroborated testimony and suggesting that the inference of guilt to be drawn from that testimony is, at least, favored by the law.” Id. Our Supreme Court in Coward declined to afford Golding review to the defendant’s claim because it was not truly constitutional in nature. Id., 315. The court emphasized that it “repeatedly has held that consciousness of guilt claims, including claims involving [instructional error], are not constitutional and, therefore, are not subject to Golding review.” (Internal quotation marks omitted.) Id., 314-15.

In light of my resolution of the Golding issue, I would address the defendant’s affirmative request, made in the alternative, to review the claim for plain error. See Practice Book § 60-5 (“[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court”). “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Jackson, 73 Conn. App. 338, 386, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002).

The defendant has isolated one sentence within the court’s consciousness of guilt instruction. The defendant asserts that the court’s single reference to an argument made by the state warrants a new trial. The defendant does not claim that the court engaged in one-sided commentary in favor of the state’s case during the course of its entire charge. Additionally, the record plainly reflects that the court’s reference to the state’s argument was both relevant to the consciousness of guilt instruction and entirely neutral. Following its reference to the state’s argument, the court immediately stated that “[it was] only a claim by the state.” My careful examination of the defendant’s brief and the record leads me to conclude that the claimed error is not so egregious or obvious that it warrants review under the plain error doctrine. See State v. Houle, 105 Conn. App. 813, 821, 940 A.2d 836 (2008); State v. Beverly, supra, 72 Conn. App. 104-105; State v. Tyson, 43 Conn. App. 61, 66, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996).

For the foregoing reasons, I concur with the majority’s conclusion that the judgment of the trial court should be affirmed.

       The defendant did not except to this charge. He did take an exception, however, to the court’s failure to give his requested instruction on consciousness of innocence. The court’s failure to give the requested instruction is not challenged on appeal, but we do note, nevertheless, that a defendant has no right to a consciousness of innocence instruction. See State v. Holley, 90 Conn. App. 350, 364-66, 877 A.2d 872, cert. denied, 275 Conn. 929, 883 A.2d 1249 (2005); State v. Jennings, 19 Conn. App. 265, 271-73, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989); State v. Timmons, 7 Conn. App. 457, 464, 509 A.2d 64 (1986), appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987).


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. RONALD E. HALL
    (AC 30081)
    Flynn, C. X, and Harper and West, Js.

      Argued January 5
    officially released March 30, 2010

      Kevin Murray Smith, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Matthew A. Crockett, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Ronald E. Hall, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). On appeal, he claims that (1) there was insufficient evidence to support his conviction, (2) the trial court improperly admitted videotape evidence and (3) the prosecutor engaged in impropriety that deprived the defendant of a fair trial. We affirm the judgment of the trial corut.

The jury reasonably could have found the following facts. On the night of June 11, 2007, Shamaila Riaz and Michael Purcell were working in the Best Way gasoline station and convenience store in Moosup. At approximately 9:30 p.m., the defendant, who wore a black covering over his nose and mouth, entered the store, pointed a silver handgun at Riaz with his left hand and demanded money, threatening to kill her if she did not comply. Riaz testified that the man was a Caucasian in his mid-forties with “a big belly” and was approximately five feet, ten inches in height. She described his facial covering as a “black winter mask.” Purcell described the man as an “older” Caucasian with black hair, approximately five feet, nine inches or five feet, ten inches in height, who was “kind of heavyset.” He testified that the covering on the defendant’s face was a black winter-type scarf. After Riaz had given the defendant the approximately $400 that was in the cash register, the defendant ran out of the store. Riaz chased after the defendant, running outside and shouting in an attempt to attract attention.

Outside the gasoline station, six teenage boys in the area heard Riaz’ shouts and saw the defendant running away from the scene. Ryan Tetreault, one of the teenagers outside the store, testified as follows. Tetreault and five friends had just come out of a nearby Cumberland Farms store near the Best Way gasoline station when they encountered Riaz yelling that she had been robbed. Tetreault had known the defendant prior to the evening in question; Tetreault’s grandmother is the sister-in-law of the defendant’s brother, Thomas Hall. Tetreault and his friends chased after the defendant, eventually cornering him in a nearby fenced-in parking lot. The defendant then pointed his gun at the teenagers, and the covering over his face fell down. It was then that Tetreault, who was approximately four to five feet away, recognized the defendant. The defendant subsequently ran to a nearby parking lot, got into a maroon, four door Volkswagen Passat and drove away. Tetreault previously had seen the defendant driving the same car.

Local police arrived at the scene shortly after the defendant had fled. Officers interviewed the witnesses and viewed a video from a surveillance system within the store. On the basis of their investigation, the police suspected the defendant to be the perpetrator. They proceeded to the defendant’s house, where, after a period of surveillance, they announced their presence, and the defendant met them without protest. The defendant spoke willingly to the police, and he provided three different accounts of his whereabouts during the time of the robbery. A search, executed pursuant to a warrant, of the defendant’s home revealed .25 caliber handgun ammunition. Police found a black scarf on the passenger side floor of the defendant’s red Volkswagen automobile. Neither the handgun used in the robbery, nor the stolen proceeds ever were located. The defendant subsequently was arrested and was charged with one count of robbery in the first degree in violation of § 53a-134 (a) (4) and one count of larceny in the second degree in violation of § 53a-123 (a) (3).

The other five teenagers who were with Tetreault— Jeremy Porter, Nicholas Coffey, Timothy Kuuttila, Zachary Holden and Joseph Holden—testified at trial in a substantially similar manner as did Tetreault regarding the events of the evening. Porter, who was Tetreault’s roommate, testified that when the defendant turned around, the covering over his face fell down, and Porter was able to see the defendant’s face. The remaining teenagers testified that they, along with Tetreault and Porter, had chased the man they saw running away from the Best Way but were unable to identify the defendant, and none of them testified that he was able to see the man’s face. Each of the teenagers testified as to the man’s physical characteristics. Coffey testified that the man was a Caucasian of “medium set” build, approximately thirty-seven to forty years old and approximately five feet, ten inches in height. Kuuttila testified that the man was a Caucasian with a “kind of meaty” build, in his thirties, about five feet, eight inches tall, with black hair. Zachary Holden described the man as a Caucasian with a “chunky” build, between thirty-five and forty years old, slightly less than six feet in height, with “brownish . . . darkish” hair. Joseph Holden testified that the man was a Caucasian who was “a little bit heavyset,” about thirty-five to forty years old, approximately five feet, ten inches tall, with “darker hair.” Each of the teenagers stated that the man had a dark colored covering over the lower part of his face and that he carried a pistol. Coffey, Zachary Holden and Joseph Holden described the man’s car as being “red,” “red” and “purple or a dark red” in color, respectively. At the time of trial, the defendant was a heavyset Caucasian male, had dark hair and was approximately five feet, eight inches tall. He also was the registered owner of a red, 2003 Volkswagen Passat.

The state also presented the testimony of Elizabeth Mack. Mack testified that on the evening in question, she and her husband were driving in the area of the Best Way gasoline station when she saw the defendant standing on the side of the store “with something over his face [and] breathing very heavily.” Mack stated that she told her husband, who was driving at the time, of the defendant’s presence and of her impression that the defendant “look[ed] like [he was] pumping himself up to rob the store.” Mack testified that she had known the defendant for approximately seven years and that she had known him through her acquaintance with his wife. She further stated that she had seen the defendant on about four or five occasions in the period since she had known him, that the defendant had been to her house a few times, that he had built a computer for her son and that he had attempted to install memory cards in her computer.

At the close of the state’s case, the defendant moved to dismiss the charges against him on the ground that the state had failed to meet its burden of proof. The court denied the motion. Following the close of evidence, the jury returned a verdict of guilty as to each count. The court sentenced the defendant to a total effective term of fifteen years imprisonment, execution suspended after ten years, to be followed by five years probation. This appeal followed. Additional facts will be provided where necessary.

I

The defendant first claims that the evidence was insufficient to sustain his conviction. Specifically, he argues that the state failed to prove identity, claiming that “[e]ven viewed in the light most favorable to sustaining the verdict, no jury reasonably could have concluded that the evidence established beyond a reasonable doubt that [the defendant] was the perpetrator” of the crimes charged. We disagree.

We initially set forth the applicable standard of review. “The standard governing our review of sufficiency of evidence claims is well established. In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... 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.” (Internal quotation marks omitted.) State v. Cox, 293 Conn. 234, 245, 977 A.2d 614 (2009).

The defendant primarily challenges the eyewitness testimony presented by the state identifying him as the man who demanded money at gunpoint from Riaz and then fled in a red Volkswagen Passat. He characterizes the testimony of Tetreault and Porter as “underwhelming at best,” argues that it was internally inconsistent and contends that inconsistencies between the accounts of Tetreault and Porter and the other teenagers render the identifications by Tetreault and Porter unreliable. The defendant also highlights the fact that Tetreault and Porter were roommates, maintaining that this “further impugns their identification testimony.” The defendant also describes Mack’s testimony identifying him as “equally flawed and unreliable.” The defendant finally claims that the videotape evidence was insufficient to establish his identity as the perpetrator beyond a reasonable doubt.

Following our review of the record, we conclude that the evidence was sufficient to sustain the defendant’s conviction. The state offered three eyewitnesses who positively identified the defendant: Tetreault, Porter and Mack. Significantly, two of these witnesses knew the defendant prior to June 11, 2007. Tetreault’s grandmother was related to the defendant’s brother by marriage, and Tetreault knew the defendant prior to that evening. Mack also previously was acquainted with the defendant. Porter’s account of the relevant events was substantially the same as Tetreault’s. The jury heard evidence that he and Tetreault were roommates and, thus, was able to credit or discount Porter’s identification accordingly as it saw fit. Mack also testified as to the circumstances under which she saw the defendant and the extent of her relationship and knowledge of him prior to the evening of the robbery.

There also was testimony from Riaz and Purcell and Coffey, Kuuttila, Zachary Holden and Joseph Holden, the other teenagers who had chased the defendant. Although these witnesses did not know the defendant and were not able to identify him, each presented testimony as to the physical characteristics of the man they saw. The physical descriptions differed slightly in detail, but they substantially were similar.

The portion of the defendant’s claim pertaining to the videotape evidence also is without merit. The videotape was a portion of the evidence presented by the state to establish the identity of the perpetrator of the crimes charged. The state also put forth substantial additional evidence, as has been detailed previously. Viewing the record evidence as a whole, as we must, it is of no moment that the videotape, considered in artificial isolation, may not have proven the defendant’s identify beyond a reasonable doubt. The entirety of the evidence was sufficient to support the defendant’s conviction.

The flaw in the defendant’s argument is that, in substance, his challenge is to the credibility of the witnesses, rather than the sufficiency of the evidence against him. His claim thus asks this court, in effect, to judge the credibility of the witnesses. This we cannot do. In assessing the evidence at trial, “it is the jury’s role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses. ... It is the right and duty of the jury to determine whether to accept or to rej ect the testimony of a witness . . . and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial.” (Internal quotation marks omitted.) State v. Moye, 112 Conn. App. 605, 610, 963 A.2d 690, cert. denied, 291 Conn. 906, 967 A.2d 1221 (2009). Furthermore, as a court of appellate review, “we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) States v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005).

II

The defendant next claims that the court improperly allowed to be admitted videotape evidence depicting the robbeiy of the Best Way store. He argues that the videotape should not have been admitted due to the circumstances under which the tape had been created. Because the defendant did not preserve this issue at trial and the claim is not of constitutional magnitude, we decline to review the claim.

The following additional facts underlie this claim. The state offered the VHS videotape, which depicted the inside of the Best Way store at the time of the robbery, as an exhibit during Riaz’ testimony. Riaz testified that the videotape fairly and accurately depicted the incident in question. Upon the state’s offer of the videotape as a full exhibit, the defendant offered no objection. Later in the trial, Detective Steven Berthi-aume of the Plainfield police department testified as to how the videotape had been produced. Berthiaume stated that because the in-store surveillance system was digital and did not offer the capability of reproduction, he recorded the images with a handheld camera and later transferred the recording to a VHS tape. He admitted that the images on the videotape were not as clear as the images on the in-store system. The defendant never challenged the videotape and made no motion to strike the evidence on the basis of the facts pertaining to the origin of the videotape, as revealed by Berthiaume.

The defendant asks this court to review his unpre-served claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). He characterizes the claim as one of constitutional dimension, arguing that the manner in which the videotape was created and its admission during Riaz’ testimony implicates his right to confront and to cross-examine adverse witnesses. We do not agree with the defendant’s characterization; his claim is an evidentiary one. As with any item of evidence proffered by the state, the defendant had a right and opportunity to investigate the foundation of the videotape, including its origin, through cross-examination. The defendant did not avail himself of this opportunity when the state offered the videotape through Riaz, and he offered no objection to its being entered as a full exhibit. Furthermore, when the facts concerning the videotape’s origin came to light during Berthiaume’s testimony, the defendant did not challenge the prior admission of the videotape by moving to strike it.

We will not review under Golding evidentiary claims labeled as constitutional claims. See State v. Richard W., 115 Conn. App. 124, 136-37, 971 A.2d 810, cert. denied, 293 Conn. 917, 979 A.2d 493 (2009). We, therefore, decline to review this claim.

m

The defendant’s final claim is that the prosecutor committed impropriety during the course of his cross-examination of the defendant. The defendant argues that “the record reflects that the prosecutor improperly questioned the defendant about prior misdemeanor convictions that ranged from [fifteen to twenty-one] years old and had no bearing whatsoever on his veracity. As such they were improper fodder for impeachment and plainly inadmissible.” We are unable to conclude from the record that the prosecutor committed impropriety during his examination of the defendant.

Defense counsel did not object to any of the questions posed by the prosecutor regarding the defendant’s prior convictions. Where an instance of prosecutorial impropriety is not objected to at trial, we need not conduct the four part analysis of unpreserved claims provided for by State v. Golding, supra, 213 Conn. 239-40, but instead apply the factors enumerated in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), to determine whether the impropriety deprived the defendant of his right to a fair trial. State v. Stevenson, 269 Conn. 563, 572-75, 849 A.2d 626 (2004). However, to reach this level of analysis, we first must conclude that the prosecutor’s actions were improper. “In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Salamon, 287 Conn. 509, 551, 949 A.2d 1092 (2008).

During his cross-examination, the prosecutor asked the defendant: “[W]ould it surprise you if I told you [that] you had a case involving the charge of harassment?” With regard to the harassment charge, which he indicated occurred in 1987, the prosecutor further inquired: “Would it also surprise you that you were convicted for not going to court?” The defendant did not respond directly to these questions. The prosecutor did not state the specific statutory provision under which the defendant had been charged. The prosecutor proceeded to ask the defendant whether he was “surprised” to learn that he also had been convicted of failure to appear in court on a breach of the peace charge in 1993. The defendant answered in the affirmative, and the prosecutor ceased the line of questioning. Again, the prosecutor did not state what degree of the crime of breach of the peace was involved.

A witness may be impeached with evidence of his prior felony convictions. “For the purpose of impeaching the credibility of a witness, evidence that a witness has been convicted of a crime is admissible if the crime was punishable by imprisonment for more than one year.” Conn. Code Evid. § 6-7 (a). Misdemeanor convictions, however, may not be used to impeach a witness; see State v. Ruscoe, 212 Conn. 223, 247, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); unless the defendant has opened the door to the admission of the evidence. See State v. Phillips, 102 Conn. App. 716, 733-36, 927 A.2d 931, cert. denied, 284 Conn. 923, 933 A.2d 727 (2007).

The prosecutor questioned the defendant about two prior convictions of failure to appear relating to charges of harassment and breach of the peace. Neither the defendant nor any of his witnesses testified as to charges or convictions of these crimes prior to the prosecutor’s questions. Both harassment and breach of the peace may be either a felony or a misdemeanor depending on the nature of the underlying conduct. See General Statutes §§ 53a-182b and 53a-183 (harassment); and General Statutes §§ 53a-180aa and 53a-181 (breach of the peace). A conviction of failure to appear also may be either a felony; see General Statutes § 53a-172; or a misdemeanor; see General Statutes § 53a-173; depending on the nature of the underlying charges.

Therefore, for the purposes of the present case, in order to determine whether the defendant’s prior convictions of failure to appear were felonies—and, therefore, properly the subject of impeachment—or misdemeanors—generally not the proper subject of impeachment—we would require knowledge of the nature of the charges underlying those convictions. There is nothing in the record that would allow us to make these determinations. As noted, the prosecutor’s questioning did not include statutory citations, nor did defense counsel object to the questioning or inquire as to the nature of the charges and convictions referenced. Furthermore, at oral argument before this court, counsel for the defendant, when provided the opportunity to show that there was something in the record that could demonstrate that the charges and convictions were misdemeanors, could not do so. The defendant’s claim as to the prosecutor’s questions concerning prior convictions lacks an adequate record to permit review.

The judgment is affirmed.

In this opinion the other judges concurred.

       In order to gain Golding review of a claim not preserved at trial, the defendant’s claim on appeal must be “of constitutional magnitude alleging the violation of a fundamental right . . . .” State v. Golding, supra, 213 Conn. 239-40.

       While we lack an adequate record to review the specific claim the defendant raises, we place no imprimatur on the “would it surprise you” form of question asked of the defendant concerning his prior failures to appear. If they were in fact misdemeanors, they should not have been used for impeachment purposes. If they were felonies, § 6-7 (b) of the Connecticut Code of Evidence provides for the following methods of proof: “(1) examination of the witness as to the conviction, or (2) introduction of a certified copy of the record of conviction into evidence, after the witness has been identified as the person named in the record.”
      We agree with Professor Bennett Gershman that the better procedure in such cases, as followed in the federal courts, is to permit “[i]mpeachment by prior [felony] convictions . . . only when the prosecutor has a certified record of the conviction or the judge rules that the prosecutor has presented sufficiently reliable proof of the conviction to allow examination.” B. Gersh-man, Prosecutorial Misconduct (2d Ed. 2009) § 10:3, p. 398, citing Reed v. United States, 485 A.2d 613 (D.C. 1984).