author: SCHALLER, J.

text:
    SAMUEL DAVIS v. COMMISSIONER OF CORRECTION
    (AC 30572)
    Harper, Beach and Schaller, Js.

      Argued October 18
    officially released December 7, 2010

      Michael D. Day, special public defender, for the appellant (petitioner).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

SCHALLER, J.

The petitioner, Samuel Davis, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance, thereby denying the petitioner due process of law. More specifically, the petitioner argues that there was merit to his claim of ineffective assistance of trial counsel in that his counsel failed to present properly and to argue (1) a motion to suppress statements that the petitioner made to the police while he was under the influence of a significant amount of medication that he received while recovering from surgery for gunshot wounds and (2) a motion to suppress two identifications made of him while he was a patient in a hospital. We conclude that the petitioner failed to prove that, but for the alleged unprofessional errors of counsel, the result of the criminal trial would have been different. Accordingly, we conclude that the habeas court did not abuse its discretion when it denied the petition for certification to appeal, and we dismiss the appeal.

The relevant facts are set forth in the decision rendered in the petitioner’s direct appeal, State v. Davis, 69 Conn. App. 717, 796 A.2d 596 (2002), aff'd, 263 Conn. 136, 818 A.2d 777 (2003). “The jury reasonably could have found the following facts. In the early morning hours of August 17,1997, the [petitioner] was a passenger in a vehicle in Hartford with two other individuals. The three men decided to rob a drug dealer and the [petitioner] drove one of the occupants to his car so that he could retrieve his gun. The three men drove around Hartford but could not find a drug dealer to rob. . . . Eventually, the [petitioner] and one of the other men exited the car and came upon the victim, James Boland, who had just been dropped off in front of his house. Boland, a member of the neighborhood block watch program, was armed and proficient in the use of firearms. As the [petitioner] and one of the other men approached Boland, a gunfight ensued in which Boland returned fire. Boland and the [petitioner] both suffered gunshot wounds.” Id., 719-20. Boland died as a result of his wounds. Id., 720.

“[A] neighbor, Nicholas Couloute, heard the gunshots from his third floor window. He saw the [petitioner] lying in the driveway apron next to Boland’s home. Couloute went outside and approached the [petitioner]. As Couloute approached, the [petitioner] propped up on his elbow, pointed a gun at him and said ‘get the f— out of here.’ Couloute retreated to his house and saw a motorcycle with two men on it approach the [petitioner], The [petitioner] pointed a gun at the driver and said ‘get the f— out of here.’ Couloute returned to his house and both he and his wife saw that the [petitioner] was wounded in the leg. Both Couloutes watched as a red, four door Buick pulled up to the [petitioner]. Two individuals helped the [petitioner] into the backseat and drove away.

“Hartford police arrived at the scene and Boland was pronounced dead at 1:32 a.m. from a gunshot wound to the chest. Hartford police informed other local police departments that a suspect in a homicide had sustained a gunshot injury and had left the scene in a red vehicle. At about 4 a.m. Middletown police informed Hartford police that an individual had arrived at Middlesex Hospital with gunshot wounds to his leg and arm. The [petitioner] was subsequently transported to Hartford Hospital by the Life Star helicopter.

“Nicolas Couloute and Thomas Staunton, the passenger on the motorcycle, were taken to Hartford Hospital to identify the [petitioner]. Both Couloute and Staunton positively identified the [petitioner] as the man they saw lying in the driveway area. Couloute also identified the red Buick, owned by the [petitioner’s] brother, as the vehicle that drove the [petitioner] from the scene of the shooting. Based on the hospital identification, an arrest warrant was issued for the [petitioner].

“The [petitioner] was admitted to Hartford Hospital after undergoing surgery for bullet wounds to his left leg and arm. Two uniformed Hartford police officers guarded the [petitioner’s] hospital room and he was restrained to his bed by a leg shackle. After his surgery, the [petitioner] requested to speak with the officers who had applied for the warrant for his arrest. Two detectives interviewed the [petitioner] and he gave an oral statement inculpating himself in the victim’s death. The [petitioner] was discharged from the hospital and transported to the Hartford police station and placed under arrest. While at the police station, the [petitioner] also gave a written statement inculpating himself.

“At trial, Benjamin Brown, one of the occupants of the vehicle on the day of the murder, testified for the state. He confirmed that the [petitioner] and the other individual left the vehicle and confronted the victim, and that the [petitioner] was wounded in the confrontation. Brown further testified that when he helped rescue the [petitioner] from the victim’s driveway, the [petitioner] stated that he thought he shot the victim.” Id., 720-21. Additional facts will be set forth as necessary.

We set forth our standard of review and applicable principles of law. “A petitioner whose petition for certification to appeal has been denied can seek appellate review of the denial by satisfying the two-pronged test enunciated in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994), which requires the petitioner to show that the denial constituted an abuse of discretion and then prove that the decision should be reversed on its merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Walker v. Commissioner of Correction, 110 Conn. App. 816, 818, 956 A.2d 600, cert. denied, 289 Conn. 949, 960 A.2d 1039 (2008).

“We examine the underlying claims of ineffective assistance of counsel to determine whether the court abused its discretion in denying certification to appeal. This court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether those facts as found constituted a violation of the constitutional right to effective assistance of counsel is plenary.” Moody v. Commissioner of Correction, 108 Conn. App. 96, 100, 946 A.2d 1268, cert. denied, 288 Conn. 906, 953 A.2d 649 (2008).

“To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense.” Morant v. Commissioner of Correction, 117 Conn. App. 279, 301, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong.” (Emphasis added; internal quotation marks omitted.) Morant v. Commissioner of Correction, supra, 301. “The second component requires that the petitioner show that there is a reasonable probability that, but for the alleged unprofessional errors of counsel, the result of the criminal trial would have been different.” Moody v. Commissioner of Correction, supra, 108 Conn. App. 100-101.

The habeas court concluded that there was nothing surrounding the suppression attempts to suggest ineffective assistance of counsel and that the petitioner failed to show that he was prejudiced by the failure of his counsel’s efforts. We will examine in detail the two underlying claims of ineffective assistance of counsel to determine whether the court abused its discretion in denying certification to appeal. The petitioner claims prejudice in that, but for the admission of the evidence concerning his statements to the police and the evidence of the two identifying witnesses, the petitioner could have pursued a self-defense theory at his criminal trial. We are not persuaded that any of the claimed errors of counsel would have resulted in different rulings on either motion to suppress. On the basis of this review, we conclude that the petitioner has failed to demonstrate that the claimed errors of his counsel prejudiced him such that the result of the criminal trial would have been different. Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

I

The petitioner first claims that his trial counsel provided ineffective assistance because he failed to obtain the petitioner’s complete medical records from Hartford Hospital such that the trial court never had an accurate understanding of the significant amount of medication that the petitioner had been prescribed. Accordingly, he maintains that his counsel failed to collect the facts necessary to prosecute adequately his motion to suppress the statements that the petitioner made to the police while he was in the hospital on the evening of August 18, 1997, and the written statement he made at the police station on the afternoon of August 19, 1997.

The following additional facts are relevant to the petitioner’s claim. “After his surgery, the [petitioner] told the Hartford police officer guarding his door that he wanted to speak with the officers who had obtained the warrant for his arrest. The police officer called the Hartford police station twice to inform detectives that the [petitioner] wanted to speak with them. During the second call, the [petitioner] got on the phone and Detective James Rovella asked him if he felt well enough to talk to the police. The [petitioner] responded that although he thought he was under medicated, he wanted Rovella to come to the hospital to speak with him.

“When Rovella and another detective arrived at the hospital, they read the [petitioner] his rights, provided him with a waiver of rights form and asked the [petitioner] to read it aloud. The [petitioner] initialed each section of the waiver form and signed on the bottom. The [petitioner] also stated that he understood his rights because he had been arrested before. At the [petitioner’s] request the detectives loosened his leg shackle to make him more comfortable. After signing the waiver form, the [petitioner] asked, ‘How would somebody catch a warrant for murder if he was shot in Middle-town, Connecticut?’ Rovella told the [petitioner] that he would terminate the interview if that is all the [petitioner] wanted to ask him. The [petitioner] indicated that he wanted to continue and proceeded to give his statement to the detectives.” State v. Davis, supra, 69 Conn. App. 722-23.

In his appeal from his criminal conviction, the petitioner challenged the trial court’s conclusion that he had voluntarily waived his Miranda rights because of his heavily medicated state. “With regard to the medicated state that the [petitioner] was in, the [trial] court stated: ‘It does not, in and of itself, render a subsequent admission inadmissible. It may be one factor in determining the voluntariness. ... It appears he was not in pain. There was no slurring of speech. He seemed to be alert. No drowsiness. He was breathing normally. [He] appeared to be extremely rational. Showed no confusion. Appeared to understand all the detective’s questions and the procedure that was going on.’ The court further found that there was no evidence of police coercion. The detectives made no threats or promises and the [petitioner] was not deprived of any personal comforts. The court ultimately found that ‘[t]he state has demonstrated that . . . the [petitioner] understood his rights and the waiver of those rights. [He] understood and voluntarily waived his Miranda rights.’ ” Id., 724-25.

This court noted: “Furthermore, the [petitioner] initiated the interview with the detectives and seemed coherent and lucid despite his medications. In fact, the [petitioner] made a series of statements in which the common thread was his desire to shift responsibility to others. These statements were a positive indication of the [petitioner’s] coherence. Our scrupulous review of the record leads us to conclude, as did the court, that the [petitioner’s] statements were voluntarily made, and that he voluntarily, knowingly and intelligently waived his Miranda rights.” Id., 725. This court concluded that “because we already determined that the [petitioner’s] oral statement given at the hospital did not violate his Miranda rights, it did not taint his subsequent statement at the police station.” Id., 726.

At the trial on the petition for habeas corpus, the petitioner’s complete medical file from Hartford Hospital was entered into evidence, as were transcripts of the suppression hearing and his criminal trial. The petitioner testified and presented four witnesses, including Mitchell Sauerhoff, an industrial toxicologist, and Lori Welch-Rubin, an attorney expert on criminal defense work.

Sauerhoff testified that, on the basis of his review of the hospital medical records, the petitioner underwent surgery for his gunshot injuries at 5 a.m. on August 17, 1997. He was administered morphine sulfate, Demerol, and meperidine, each of which are opioid drugs used for the treatment of pain. He also was prescribed Ativan for anxiety, Dramamine for nausea and Tylenol for pain. Sauerhoff could not testify as to precisely which medications were administered when because, for the pain medications for example, “the hospital records say every three to four hours PRN, which means essentially as needed.” In Sauerhoff s opinion, the petitioner’s cognition had been impaired by a variety of drugs prescribed at the hospital.

The habeas court found the following facts regarding Sauerhoffs testimony: “When questioned further, [Sauerhoff] defined this ‘impaired cognition’ to be a ‘thinking and perception’ alteration. He made no connection between the ingestion of any medication and [the petitioner’s] statements to the police and in fact appeared to assume that all the medication ordered was also administered to the petitioner. The hospital record does not indicate this to be so. Of significance was [Sauerhoff s] statement that this cognitive impairment would last from twelve to twenty-four hours after [the medications] were stopped. The last medication received by the petitioner was at 7:15 p.m. on August 18, 1997. His second statement was given on August 19 after 1:30 p.m. In that statement, the petitioner related names, times and places and activities in great detail. That the police could have collected such material without his input defies belief.”

The habeas court concluded, on the basis of the testimony and evidence, that the petitioner’s claim that he was so mentally impaired that he remembered nothing was simply not credible. “Totally rebutting the petitioner’s claim is the evidence contained in the hospital record. Nurses’ notes keep referring to his conditions as active and alert. He is described as asking appropriate questions and as aware of his situation. In one fascinating conversation, he acknowledges that he’s ‘up for murder’ and that he’s ‘tired of running.’ This appears in the nursing notes, which the petitioner’s legal expert [Welch-Rubin] said she would have read because ‘it’s the little details that everything shows itself. It’s in the nursing notes.’ ” On the basis of its review of the testimony and evidence, the habeas court concluded that the petitioner’s statements at the hospital and at the police station were voluntary and that he understood his Miranda rights and the consequences of waiving them.

The trial court in the petitioner’s criminal case considered the effect of pain medications generally when determining whether the petitioner’s statements were knowing and voluntary. This determination was upheld on appeal. In the habeas proceeding, the petitioner presented a more complete picture of his medical records and elicited expert testimony as to the general effect of the particular drugs that he was prescribed. This does not change the analysis under the facts presented here. As noted by the habeas court, the toxicologist did not connect any claimed “ ‘thinking and perception’ ” alteration with the petitioner’s statements to the police, the hospital record does not indicate that all the medication ordered was also administered and the petitioner’s testimony that he was so impaired that he remembered nothing was not credible when viewed in light of the record. Other factors, considered in his criminal trial and appeal, all serve as positive indications of the petitioner’s coherence at the time he made the challenged statements, including that the petitioner stated that he understood his rights because he had been arrested before, he initiated the hospital interview with the detectives, he attempted to shift responsibility to others, he seemed lucid during the interviews and there was no evidence of police coercion.

On the basis of our thorough review of the record, we cannot say that there is a reasonable probability that, but for the alleged unprofessional errors of counsel, namely, counsel’s failure to present the petitioner’s entire medical record from the hospital and counsel’s failure to solicit expert testimony about the effect of the medications prescribed to the petitioner, it is likely that the trial court would have ruled differently on the motion to suppress the petitioner’s statements such that the result of the criminal trial would have been different. Accordingly, the habeas court did not abuse its discretion in denying the petitioner’s request for certification to appeal.

II

The petitioner next claims that his trial counsel provided ineffective assistance because he failed to present properly and to argue a motion to suppress two identifications made of the petitioner while he was hospitalized. He argues that such a “hospital show-up” is unnecessarily suggestive, unreliable and violated his due process rights. Specifically, as to the claimed deficiency of his counsel, he maintains that counsel did not ask sufficient follow-up questions of Rovella as to why he or other officers did not obtain a photographic array rather than the identification procedure employed.

The following additional facts are relevant to our resolution of the petitioner’s claim. “Rovella drove [the two witnesses] Couloute and Staunton to the hospital to identify the [petitioner]. At the hospital, Rovella took each witness in separately to look at the [petitioner]. The [petitioner] was lying in a bed with a sheet pulled up to his neck so that the witnesses could not see the nature and location of his injuries. Both Couloute and Staunton identified the [petitioner] as the man they saw lying on the ground at the scene of the shooting. At the suppression hearing, both men testified that, despite the sheet that was covering the [petitioner], they could see that he had an injury to his leg. Rovella testified that he did not make up an array of photographs because he believed that it would have taken too long to obtain a photograph of the [petitioner].” State v. Davis, supra, 69 Conn. App. 727.

In the appeal from the conviction, this court noted that “the police were looking for a murder suspect and it was crucial to ascertain quickly whether the [petitioner] was the man responsible so that, if he were not, the search to find and apprehend the responsible person could resume with a minimum of delay. Under the circumstances, we conclude that although the hospital identifications were suggestive, they were not unnecessarily so because of the exigent circumstances. Even if we were to assume that the identifications were unnecessarily suggestive, we would conclude that under the totality of the circumstances, the identifications were sufficiently reliable.” Id., 729.

On appeal from the habeas court’s decision, the petitioner largely attempts to relitigate the claims made in his criminal appeal as to whether the identification was unnecessarily suggestive, whether there was sufficient exigency to justify the identification procedure used, whether the fact that his injuries were not life threatening factored into the exigency of the situation and whether it was preferable for him to have stood in a lineup the next day if a photographic array was impossible. We do not address these claims, as this court has already decided these issues adversely to the petitioner in the appeal from his criminal conviction. See id., 728-30.

We will focus instead on the specific claims as to the effectiveness of the petitioner’s trial counsel. At the criminal trial, on direct examination, Rovella testified that he considered having identification conducted via photographic array but did not do so because “[i]f there was a photo [graph] available in the evidentiary services division, I believe it [would have] been at least horns before I could get my hands on it. . . . They were still at the scene, processing.” He testified that in then-absence, the evidentiary services division room would have been locked. On cross-examination by the petitioner’s counsel, Rovella testified that before he went to the hospital, he did not know for certain whether the Hartford police department was in possession of a photograph of the petitioner, but he did learn at some point thereafter that the department did possess such a photograph.

The ineffective assistance of counsel claim arises out of the failure of the petitioner’s counsel to determine who, precisely, was “still at the scene, processing” and whether anyone was, in fact, available to obtain a photographic array. At the habeas hearing, the petitioner’s legal expert, Welch-Rubin, opined that testimony from a detective in charge of the evidence room should have been introduced at the suppression hearing. According to her testimony, there was conflicting testimony presented at trial as to whether Rovella could, in fact, have obtained a timely photographic array. Moreover, she opined that counsel was ineffective at marshaling the facts and the law at the suppression hearing so that the trial court would conclude that the exigencies did not warrant the identification procedure employed such that the two identifications should have been suppressed.

The habeas court concluded: “[T]he petitioner’s argument here is that there was a police officer available who could have compiled a photo [graphic] array. The investigating detective may have been mistaken, but [he believed that] no access to the photo [graph] files was available [until] the next day when an employee would open the office.” The question regarding counsel’s failure to present evidence at the suppression hearing that the investigating detective may have been in error such that a timely photographic array may have been possible goes to the issue of exigency and whether the identifications were unnecessarily suggestive.

This court concluded in the direct appeal from the criminal conviction that even if the hospital identifications were unnecessarily suggestive, “under the totality of the circumstances, the identifications were sufficiently reliable.” State v. Davis, supra, 69 Conn. App. 729. “[Reliability is the linchpin in determining the admissibility of the identification testimony . . . .” (Internal quotation marks omitted.) Id. Here, indicia of reliability included “the accuracy of the witnesses’ prior description of the [petitioner], the level of certainty of the witnesses at the confrontation and the length of time between the crime and the confrontation.” Id., 730. Accordingly, we cannot conclude that there is a reasonable probability that, but for the alleged unprofessional errors of counsel, the trial court would have ruled differently on the suppression of the hospital identifications such that the outcome of the trial would have been different.

Considering the record in light of Strickland, we are not convinced that the issues presented in this appeal are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions raised deserve encouragement to proceed farther. See Farnum v. Commissioner of Correction, 118 Conn. App. 670, 680, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). Consequently, we conclude that the petitioner failed to establish that the habeas court abused its discretion in denying the petition for certification to appeal. See id.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner was convicted of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). State v. Davis, supra, 69 Conn. App. 719. He was sentenced to a total effective term of 100 years incarceration. Id., 722. Upon our Supreme Court’s grant of certification solely on the questions of sentence enhancements, the petitioner’s enhanced sentences were affirmed in State v. Davis, 263 Conn. 136, 818 A.2d 777 (2003), in a per curiam decision.

       It is unclear whether “under medicated” means that the petitioner believed he was not receiving enough medication or if he meant to indicate that, although he was receiving medication, he wanted to speak to Rovella anyway. In context, the latter seems more likely.

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

       A more detailed examination of those records occurred on cross-examination of Sauerhoff where it was made clear that, for example, the petitioner received his last dose of morphine at 7:15 p.m. on August 18, 1997.

       We note that according to the testimony at his habeas trial, the petitioner’s first statement was given at the hospital on August 18 at 9:20 p.m.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    OXFORD HOUSE AT YALE v. VINCENT GILLIGAN
    (AC 31254)
    DiPentima, C. X, and Lavine and Hennessy, Js.

      Argued September 3
    officially released December 14, 2010

      Kirk W. Lowry, with whom, on the brief, was Micheala L. Mitchell, for the appellant (defendant).

      Ori D. Spiegel, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

In this procedurally unusual case, the defendant, Vincent Gilligan, appeals from the judgment of the trial court rendered in his favor dismissing the plaintiffs summary process action. On appeal, the defendant claims that the court improperly (1) permitted the plaintiff to prevail on a claim that was not pleaded and that was introduced after the close of evidence, and (2) concluded that the plaintiff is exempt from the summary process statutes as a service providing institution pursuant to the exception enumerated in General Statutes § 47a-2 (a) (1). Because we agree with the defendant’s first claim, we do not reach the second claim, and we vacate the judgment of the trial court and remand the case for further proceedings.

The following undisputed facts and procedural history guide our analysis. The plaintiff, Oxford House at Yale, is an independent, seh-governing residential community for people recovering from alcohol and drug addictions, commonly referred to as a “sober house.” In a large house it leases in New Haven, the plaintiff provides a communal drug and alcohol free living environment for as many as fifteen member-residents at one time. The day-to-day affairs of the house, including the expulsion of member-residents, are determined by a vote of the majority of the member-residents. The defendant is a member-resident of the plaintiff.

On April 20, 2008, the plaintiffs other member-residents voted to expel the defendant after he refused to comply with a required room inspection. Despite being served with a notice to quit possession on July 30,2008, the defendant refused to vacate the premises voluntarily. On August 12, 2008, the plaintiff commenced the underlying summary process action seeking possession of the defendant’s room.

In its operative complaint, the plaintiff alleged that the defendant’s right or privilege to occupy had terminated “by a vote by the members of [the plaintiff] in accordance with its established rules and procedures.” In reply, the defendant filed an answer with special defenses, denying that his right or privilege of occupancy had terminated and asserting four defenses to the eviction.

The court conducted a trial on February 5 and 10, 2009. The plaintiffs witness, longtime member-resident Craig Cairone, testified regarding the plaintiffs rules, including the voting procedures used to expel member-residents and the policy toward disruptive behavior. He also testified to the defendant’s history of disruptive behavior in the house, the defendant’s behavior on April 20,2008, which led to the expulsion vote, and the details of that vote.

In his defense, the defendant testified that on April 20, 2008, he was suffering from a panic attack that prevented him from opening his door for the room inspection. The defendant further testified that the April 20, 2008 vote held to expel him was deficient procedurally because (1) he was not present at the vote and (2) it lacked the requisite number of members to effectuate an expulsion.

At the close of evidence, the court ordered the parties to submit simultaneous posttrial briefs. In his posttrial brief, the defendant argued that the evidence demonstrated that his right or privilege to occupy his room had not terminated because the vote held to expel him on April 20, 2008, was deficient procedurally. Additionally, the defendant reasserted and argued his four defenses.

In its posttrial brief, the plaintiff claimed that the April 20, 2008 vote was valid and effectively terminated the defendant’s right or privilege to occupy his room. Additionally, the plaintiff addressed the defenses that the defendant had set forth in his answer, asserting that it had standing and authority to bring the present suit and that the defendant was not entitled to a Kapa notice or a reasonable accommodation. In the alternative, however, the plaintiff argued, for the first time, that the court was without subject matter jurisdiction to entertain the action because the plaintiff was exempt from having to comply with the summary process statutes pursuant to two provisions of § 47a-2 (a).

The court issued its memorandum of decision on June 30, 2009. In its decision, the court made findings of fact relevant to whether the defendant’s right or privilege to occupy had terminated. Those findings established that the plaintiff was a self-governing, therapeutic community that leased the home it occupied and that the April 20, 2008 vote was valid. The court, however, identified the threshold issue as whether sober houses in Connecticut needed to comply with our summary process statutes in order to expel a resident. The court then concluded that the plaintiff satisfied the statutory elements set forth in § 47a-2 (a) (1), determining specifically that the plaintiff was not created to avoid the summary process procedure and was an institution that provided residence incidental to the provision of a service similar to those enumerated in the statute. As a result, the court found that the relationship between the plaintiff and the defendant was not governed by the summary process statutes and rendered judgment in favor of the defendant on that basis. This appeal followed.

The defendant first claims that the basis of the judgment was a statutory exemption that was neither pleaded nor raised in the evidentiary portion of the trial. The defendant asserts that under such circumstances he was prejudiced and unable to develop an adequate record for review by this court. We agree.

We begin by setting forth our standard of review. “The [defendant’s] claim requires us to interpret the allegations of the plaintiffs complaint to determine what it fairly alleges and to compare those allegations with the court’s judgment, as informed by the trial record. The interpretation of pleadings presents a question of law over which our review is plenary.” Landry v. Spitz, 102 Conn. App. 34, 41, 925 A.2d 334 (2007).

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. ... A complaint should fairly put the defendant on notice of the claims against him. . . . Thus, a plaintiff during trial cannot vary the factual aspect of his case in such a way that it alters the basic nature of the cause of action alleged in his complaint. . . . In other words, [a] plaintiff may not allege one cause of action and recover upon another.” (Citations omitted; internal quotation marks omitted.) Id.

“The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citations omitted; internal quotation marks omitted.) Lyons v. Nichols, 63 Conn. App. 761, 765, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). “Whether a complaint gives sufficient notice is determined in each case with reference to the character of the wrong complained of and the underlying purpose of the rule which is to prevent surprise upon the defendant.” (Internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990).

The plaintiffs revised complaint alleged that the defendant previously held possession of his room with the “knowledge and/or acquiescence” of the plaintiff, that the defendant’s “right or privilege to occupy the premises has terminated by a vote by the members of [the plaintiff] in accordance with its established rules and procedures” and that the defendant has continued in possession of his room.

After reviewing the operative complaint, we conclude that it did not provide the defendant with adequate notice of the plaintiffs claim that it was exempt from having to comply with the summary process statutes. “Summary process is aimed at deciding the simple question of who is entitled to possession.” (Internal quotation marks omitted.) Altomari v. Altomari, 121 Conn. App. 235, 239, 994 A.2d 348 (2010). Thus, as framed by the plaintiffs revised complaint, the issue at trial was the termination of the defendant’s right or privilege to occupy. Nowhere does the plaintiffs revised complaint provide notice that an exemption is claimed to the rules and procedures the plaintiff invoked to obtain possession.

Our analysis, however, does not end here. We previously have stated that “in the context of a postjudgment appeal, if a review of the record demonstrates that an unpleaded cause of action actually was litigated at trial without objection such that the opposing party cannot claim surprise or prejudice, the judgment will not be disturbed on the basis of a pleading irregularity.” Landry v. Spitz, supra, 102 Conn. App. 43-44. In doing so, we recognized our Supreme Court’s determination that whether a complaint provides sufficient notice of the facts claimed and issues to be tried presents “a fundamentally different question from whether [the complaint] fails to state a cause of action because of the omission of an essential allegation, a deficiency that should be raised before trial.” Tedesco v. Stamford, supra, 215 Conn. 459.

After a careful review of the pleadings and trial record, we conclude that the present case does not involve the type of pleading irregularity found in Landry and Tedesco. In Landry, this court determined that the defendant was not prejudiced by a pleading defect where the plaintiff simply had failed to include in its complaint an essential factual allegation that was both consistent with the stated cause of action and sufficiently put in issue at trial. Landry v. Spitz, supra, 102 Conn. App. 44-45. In the present case, however, the plaintiff pleaded and litigated a claim that the defendant’s right or privilege to possession of his room had terminated pursuant to our summary process statutes, and then prevailed on a claim that it was not subject to the requirements of the summary process statutes, an assertion inconsistent with the claim set forth in the complaint and premised on facts never put in issue at trial.

At trial, the plaintiff submitted evidence and elicited testimony to show that the defendant had engaged in proscribed conduct and that a procedurally valid vote had stripped him of his right or privilege to occupy the plaintiffs premises. The defendant, likewise, focused on his conduct and the validity of the vote. The court, however, resolved the case on a determination that the plaintiff, pursuant to § 47a-2 (a) (1), was not created to avoid the summary process statutes and was an institution that provided residence incidental to the provision of a service similar to those enumerated in the statute. Whether the plaintiff satisfied these statutory elements required an analysis of facts that had never been put in issue at trial.

The case cited by the court in its memorandum of decision, Burke v. Oxford House of Oregon Chapter V, 196 Or. App. 726, 103 P.3d 1184 (2004), rev’d, 341 Or. 82,137 P.3d 1278 (2006), sets out the factual framework needed for the exemption determination, which is not present here. In Burke, the record on appeal contained significant details of the defendant’s structure, operation and living environment, including testimony from multiple Oxford House of Oregon Chapter V members pertaining to the alleged “services” it offered. Id., 739-41. Furthermore, evidence was proffered of a memorandum written by Oxford House, Inc., explicitly advising Oxford House of Oregon Chapter V to structure its lease agreements in a manner that allowed them to avoid local landlord tenant law: evidence that the arrangement was “created to avoid” Oregon’s summary process statutes. Burke v. Oxford House of Oregon Chapter V, 341 Or. 82, 90-91, 137 P.3d 1278 (2006). Here, not only were there insufficient factual findings on these details, but also the defendant was deprived of the opportunity to engage in pertinent discovery and to proffer evidence on such critical facts. Under such circumstances, the defendant was both surprised and prejudiced.

To the extent that the plaintiff casts its exemption argument as a challenge to the court’s subject matter jurisdiction, our reasoning and conclusion remain unchanged. We are mindful that a challenge to a court’s subject matter jurisdiction may be raised at any time and by any party; see Vanwhy v. Commissioner of Correction, 121 Conn. App. 1, 7, 993 A.2d 478 (2010); and that “[o]nce . . . raised, [the challenge] must be disposed of no matter in what form it is presented.” (Internal quotation marks omitted.) In re DeLeon J., 290 Conn. 371, 376, 963 A.2d 53 (2009). However, “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. . . . When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Citations omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). Accordingly, we conclude that the court improperly determined this case on a basis neither pleaded nor litigated.

The judgment is vacated and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Although judgment was rendered in his favor, the defendant is aggrieved by the court’s holding that the plaintiff, Oxford House at Yale, may expel the defendant from his residence without having to comply with the requirements of our summary process statutes. “Aggrievement, in essence, is appellate standing. ... In the appellate context, [ajggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Citation omitted; internal quotation marks omitted.) Nanni v. Dino Corp., 117 Conn. App. 61, 70, 978 A.2d 531 (2009).

       We note that the defendant’s second claim presents an issue of first impression that we do not reach in light of the factual record before us.

       The following four defenses are asserted in the defendant’s second amended answer: (1) the plaintiff, as a voluntary, unincorporated association, could not acquire a leasehold in property and was, therefore, void of authority to bring the underlying action, (2) the plaintiffs failure to serve a “Kapa” notice on the defendant pursuant to General Statutes § 47a-15 deprived the court of subject matter jurisdiction over the plaintiffs claim, (3) pursuant to the Fair Housing Act, 42 U.S.C. § 3601 et seq., the defendant’s disability entitled him to a reasonable accommodation with respect to the plaintiffs rules and procedures, and (4) eviction would cause great hardship for the defendant.

       See footnote 3 of this opinion.

       General Statutes § 47a-15 requires landlords to first issue written notice of alleged noncompliance to tenants. Landlords must then provide time for the “errant tenants to remedy their first miscue” prior to commencing a summary process action based upon noncompliance with the rental agreement. Kapa Associates v. Flores, 35 Conn. Sup. 274, 278, 408 A.2d 22 (1979).

       General Statutes § 47a-2 (a) provides in relevant part: “Unless created to avoid the application of this chapter and sections . . . the following arrangements are not governed by this chapter and sections ... (1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling or religious service, or any similar service ... (3) occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of such organization . . . .”


author: BEAR, J.

text:
    MARIA SZCZYCINSKA v. DANIELLE B. ACAMPORA ET AL.
    (AC 31195)
    DiPentima, C. J., and Bear and Foti, Js.
    Argued October 12
    officially released December 14, 2010

      J. Xavier Pryor, for the appellant-appellee (plaintiff).

      James A. Armentano, with whom, on the brief, was Christian A. Sterling, for the appellee-appellant (named defendant).
   Opinion

BEAR, J.

The plaintiff, Maria Szczycinska, appeals from the judgment of the trial court rendered in accordance with the jury’s verdict awarding her $3109.01 in economic damages and $2000 in noneconomic damages in this negligence action. The defendant Danielle B. Acampora cross appeals from the judgment rendered against her. On appeal, the plaintiff claims that the court improperly permitted the defendant’s medical expert to testify regarding the alleged impairment to the plaintiffs dorsal spine. On cross appeal, the defendant claims that the court improperly ordered the jury to reconsider its verdict awarding only economic damages to the plaintiff. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the issues on appeal. The plaintiff and the defendant were involved in a motor vehicle accident in which the plaintiff sustained injuries. As a result, the plaintiff brought this negligence action against the defendant. During trial, the defendant’s medical expert, Anthony J. Spinella, an orthopedic surgeon, who had conducted a medical examination of the plaintiff at the request of the defendant, testified about, among other things, the plaintiffs dorsal spine and its alleged impairment. The plaintiff objected to Spinella’s testimony on this subject, which objection the court overruled. Following the close of evidence, the jury returned a verdict in favor of the plaintiff and awarded her $3109.01 in economic damages and nothing in noneconomic damages. The court directed the jury to reconsider its verdict and damages award. After reconsideration, the jury returned a plaintiffs verdict of $3109.01 in economic damages and $2000 in noneconomic damages for a total award of $5109.01. The defendant thereafter filed a motion to reduce the verdict, which the court denied. The court then rendered judgment in accordance with the verdict. This appeal and cross appeal followed.

I

On appeal, the plaintiff claims that “the court erred in permitting the testimony of . . . Spinella with regard to testing allegedly performed on [the] [p]laintiff and with regard to the impairment rating to [the] [plaintiffs dorsal spine.” In support of this claim, the plaintiff argues that the testimony of Spinella violated Practice Book § 13-4 (b) (1) because the defendant’s counsel did not disclose adequately the substance and grounds for Spinella’s testimony, Spinella’s medical report failed to disclose the diagnostic procedures that he used, the defendant acted in bad faith and the court abused its discretion by not imposing sanctions on the defendant, including the sanction of precluding Spinella’s testimony because of the defendant’s failure to disclose her expert in accordance with Practice Book § 13-4 (b) (1). We are not persuaded by the plaintiffs arguments.

Before reviewing the plaintiffs claim, we set forth the appropriate standard of review. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm.” (Internal quotation marks omitted.) Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 119 Conn. App. 703, 719-20, 989 A.2d 1075 (2010).

The plaintiff argues that the court should not have permitted Spinella to testify because the defendant’s expert disclosure did not comply with our rules of practice. Initially, we note that the plaintiff argues that the defendant specifically did not follow Practice Book § 13-4 (b) (1) when disclosing her expert. The defendant filed her disclosure of expert testimony on October 22, 2008. At that time, Practice Book § 13-4 did not contain a subsection (b) (l). On October 22, 2008, Practice Book (2008) § 13-4 provided in relevant part: “(4) . . . [A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ...”

The following additional facts are relevant to the plaintiffs claim. On October 22, 2008, the defendant filed her disclosure of expert witness. The disclosure stated that Spinella was a board certified orthopedic surgeon who would testify “regarding his assessment of the past and present medical condition, diagnosis, treatment, prognosis, and permanency, if any, of the plaintiff . . . as it is causally related to the subject motor vehicle accident.” The “substance of facts and opinions” set forth in the disclosure stated: “Spinella is expected to testify that the plaintiff exhibits no objective traumatic orthopaedic pathology . . . [and that] the plaintiffs November 28, 2005 cervical spine x-rays showed degenerative changes consistent with age and the dorsal/lumbar x-rays are normal for her age. . . . Spinella is expected to testify that the plaintiff has no permanent impairment to any part of her body as a result of the subject accident. . . . Spinella is expected to testify according to his October [14], 2008 report, which is attached and fully incorporated herein.” The disclosure also stated that “Spinella’s opinion is based on his background, education, training, and experience, his examination of the plaintiff, and his review of the plaintiffs medical records.”

Spinella’s October 14, 2008 report, which was incorporated by reference into the disclosure, stated that the plaintiff was reporting mid-back pain, that she had no previous back problems and that she “does all her usual activities.” It further stated that Spinella had conducted a written record review, which revealed cervical-lumbar strain and pain, normal motion in the neck with some pain at the extremes, normal neurological examination, pain over the dorsal kyphosis, normal X rays of the cervical, dorsal and lumbar spines, and neck-dorsal spine pain with motion. One of the records that Spinella noted reviewing in his report was a September 7, 2006 report by Jeffrey Steckler, a physician, which gave the plaintiff a rating of 14 percent impairment to her cervical spine and 25 percent impairment to her dorsal spine. Spinella’s report also set forth the results of his examination of the plaintiff, stating, among other things, that her cervical motion was normal and that she had full motion of her lumbosacral spine and tenderness in the upper lumbar spine, with no abnormal curvature of the spine. Spinella’s report also stated that he had reviewed X ray films, which revealed a minimal C5-7 uncovertebral degeneration that was consistent with the plaintiffs age and that her dorsal and lumbar spines were normal for her age, with some calcification on the left side at the cervical dorsal junction, with normal physiologic dorsal kyphosis. In his report, Spinella diagnosed the plaintiff with “[cjervical and dorsal arthralgia [and] [o]steopenia.” He summarized his findings, opining that the plaintiffs initial complaints likely were due to a strain or sprain, that no objective traumatic orthopedic pathology was found, that there may be some age-related mild degeneration and that “[b]ased upon medical probability, there is no permanent impairment from the 2005 accident.” Spinella also opined that the plaintiffs “dorsal spine kyphosis [was] normal physiologic kyphosis [but that there was] age related ‘degeneration.’ ”

Practice Book (2008) § 13-4 (4) required the defendant to disclose the name of her expert, the subject matter on which he would testify, the substance of the facts and opinions to which he would testify and a summary of the grounds for each of his opinions. The plaintiff argues that the defendant’s “disclosure does not state or otherwise indicate that . . . Spinella examined [the] plaintiffs dorsal spine, or that he would give an opinion regarding any permanency, or lack thereof, to [the] plaintiffs dorsal spine, as it related to the automobile accident of November 1, 2005.” She argues that because of this failure, the court should have sanctioned the defendant by precluding Spinella’s testimony or by limiting his testimony. We do not agree that the disclosure failed to comply with our rules of practice.

With regard to Spinella’s testimony concerning the plaintiffs dorsal spine and whether there was a permanent impairment thereto, the defendant’s disclosure stated that Spinella would testify that the plaintiffs dorsal-lumbar spine X rays were normal for a person her age and that she had no permanent impairment to any part of her body as a result of the motor vehicle accident. Spinella’s report, which was incorporated fully into the disclosure, further stated that his opinion was based on his examination of the plaintiff and his review of her medical records. That report further stated that he had conducted a written record review, which revealed, in relevant part, normal X rays of the cervical, dorsal and lumbar spines. The report also stated that Spinella’s examination of the plaintiff revealed that her cervical motion was normal and that she had full motion of her lumbosacral spine and tenderness in the upper lumbar spine, with no abnormal curvature of the spine. Another portion of the report further stated that X ray films revealed a minimal cervical spine C5-7 uncovertebrai degeneration that was consistent with the plaintiffs age, that her dorsal and lumbar spines were normal for her age, with some calcification on the left side at the cervical dorsal junction, with normal physiologic dorsal kyphosis. Spinella concluded that “[bjased upon medical probability,” the plaintiff had suffered “no permanent impairment” from the motor vehicle accident.

After reviewing the defendant’s disclosure of expert witness and Spinella’s trial testimony, we conclude that the disclosure was in compliance with Practice Book (2008) § 13-4 (4) and that the court, therefore, properly permitted Spinella’s testimony as to the plaintiffs dorsal spine.

II

On cross appeal, the defendant claims that the court improperly ordered the jury to reconsider its verdict awarding only economic damages to the plaintiff. She argues that the court returned the jury for a second consideration of its verdict because the court adopted, “almost per se,” a rule that a jury is precluded from awarding only economic damages. In her main brief, the defendant argues that our standard of review for this claim is abuse of discretion; in her reply brief, she asks us to employ a plenary standard of review. The plaintiff argues that the court acted properly in asking the jury to reconsider its verdict. She further argues that we should decline to review the defendant’s claim, however, because the defendant on appeal does not challenge the instructions given by the court when it returned the jury for a second consideration. We agree with the plaintiff that the claim is not reviewable.

Pursuant to General Statutes § 52-223, “[t]he court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.” See also Practice Book § 16-17. “This statute [formerly General Statutes § 1104] does not limit the power of the trial court to return the jury to a second or third consideration, to cases in which the verdict is, in the opinion of the court, in favor of or against a wrong party. A verdict in other respects correct may be contrary to the evidence, or to the direction of the court in a matter of law, because [it is] for too large or too small a sum, and the provisions of this section are applicable to such cases.” Black v. Griggs, 74 Conn. 582, 584, 51 A. 523 (1902).

“While the remarks of the court to the jury in so returning [it], either regarding the evidence or regarding matters of law, are subject to review on appeal as a part of the charge . . . the power given by the statute to the court to so return the jury is largely a discretionary one, the reasonable exercise of which, in the absence of erroneous instructions to the jury in returning [it], will not be reviewed by this court, especially when it appears that the verdict finally accepted is not, by reason of the change made, contrary to the law or the evidence.” (Citations omitted.) Id., 584-85; see also Ryan v. Scanlon, 117 Conn. 428, 436, 168 A. 17 (1933).

The defendant in this case does not allege that the court’s instructions to the jury, upon returning it to reconsider its verdict, were improper. Accordingly, we will not undertake a review of the court’s exercise of its discretion in returning the jury for a second consideration as permitted by § 52-223.

The judgment is affirmed.

In this opinion the other judges concurred.

       VW Credit Leasing, Ltd., also was a defendant in the trial court. Its motion for summary judgment, however, was granted by the trial court in February, 2008, without opposition. Accordingly, it is not a party to this appeal. We therefore refer in this opinion to Acampora as the defendant.

       In her reply brief, the plaintiff raises an issue concerning the absence of the defendant’s “request for independent medical examination” from the record. She argues that the “defendant’s request for independent medical examination is not part of the record [on appeal] . . . [because the] defendant, in abrogation of the rules of practice, never filed the request with the [trial] court, in spite [of] making representations to [the] plaintiff, via certification, that she had complied with the Practice Book § 13-11 (b) requirements governing independent medical examinations, and filed it with the court.” She argues, therefore, that “the court never had jurisdiction over the examination” and that Spinella’s opinion is “fruit from the poisonous tree and inadmissible ab initio.” She further explains that she is raising this issue for the first time on appeal because she did not become aware that the defendant had not filed the request with the trial court until the defendant filed a motion to supplement the appellate record, which we denied. The plaintiff asks that we not “consider any arguments that reference [the defendant’s] request for independent medical examination due to the absence of that document [from] the record.”
      Although the plaintiff raises a question concerning the trial court’s “jurisdiction” over the medical examination, she does not provide any meaningful analysis or citation to authority to support her contention that the defendant’s alleged failure to certify to the trial court the request for an independent medical examination somehow affects the court’s jurisdiction and the expert’s ability to testify in accordance with his medical examination of the plaintiff and with the defendant’s disclosure of expert witness. Accordingly, we decline to reach this issue due to inadequate briefing. See Keeney v. Old Saybrook, 237 Conn. 135, 142 n.7, 676 A2d 795 (1996) (declining to address inadequately briefed claim that court deprived of jurisdiction).
      We further note that, although the plaintiff objected to the defendant’s request that she undergo a physical examination by Aris Yannopoulos, an orthopedic surgeon, which objection the court sustained, the record does not suggest that the plaintiff objected, as permitted by General Statutes § 52-178a and Practice Book § 13-11 (b), to the defendant’s request that she undergo a medical examination by Spinella. See General Statutes § 52-178a, which provides: “In any action to recover damages for personal injuries, the court or judge may order the plaintiff to submit to a physical examination by one or more physicians or surgeons. No party may be compelled to undergo a physical examination by any physician to whom he objects in writing submitted to the court or judge.” See also Practice Book § 13-11 (b), which provides: “In the case of an action to recover damages for personal injuries, any party adverse to the plaintiff may file and serve in accordance with Sections 10-12 through 10-17 a request that the plaintiff submit to a physical or mental examination at the expense of the requesting party. That request shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. Any such request shall be complied with by the plaintiff unless, within ten days from the filing of the request, the plaintiff files in writing an objection thereto specifying to which portions of said request objection is made and the reasons for said objection. The objection shall be placed on the short calendar list upon the filing thereof. The judicial authority may make such order as is just in connection with the request. No plaintiff shall be compelled to undergo a physical examination by any physician to whom he or she objects in writing.”

       Practice Book (2008) § 13-4 was amended effective January 1, 2009, at which time several subsections, including subsection (b) (1), were added. It then was amended again in June, 2009. The current version of Practice Book § 13-4 (b) provides in relevant part: “A party shall file with the court and serve upon counsel a disclosure of expert witnesses which identifies the name, address and employer of each person who may be called by that party to testify as an expert witness at trial, whether through live testimony or by deposition. In addition, the disclosure shall include the following information: (1) Except as provided in subdivision (2) of this subsection, the field of expertise and the subject matter on which the witness is expected to offer expert testimony; the expert opinions to which the witness is expected to testily; and the substance of the grounds for each such expert opinion. Disclosure of the information required under this subsection may be made by making reference in the disclosure to, and contemporaneously producing to all parties, a written report of the expert witness containing such information. . . .”

       Stedman’s Medical Dictionary defines “kyphosis” as “1. An anteriorly concave curvature of the vertebral column; the normal kyphoses of the thoracic and sacral regions are retained portions of the primary curvature (kyphosis) of the vertebral column. 2. A forward (flexion) curvature of the spine; the thoracic spine normally has a mild k[yphosis]; excessive forward curvature of the thoracic spine may indicate a pathologic condition.” Stedman’s Medical Dictionary (28th Ed. 2006) p. 1036.

       “Uncovertebral” is defined as: “Pertaining to or affecting the uncinate process of a vertebra.” Stedman’s Medical Dictionary (28th Ed. 2006) p. 2065. “Uncinate” is defined as: “Hooklike or hook-shaped.” Id., p. 2064.

       “Arthralgia” is defined as: “Pain in ajoint.” Stedman’s Medical Dictionary (28th Ed. 2006) p. 159.
      “Osteopenia” is defined as: “Decreased calcification or density of bone; a descriptive term applicable to all skeletal systems in which such a condition is noted; carries no implication about causality.” Id., p. 1391.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. TYRONE ROBINSON
    (AC 32057)
    Lavine, Alvord and Peters, Js.
    Argued October 20
    officially released December 14, 2010

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy 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

PER CURIAM.

“To establish a violation of [General Statutes] § SSa-Sda . . . the state must prove beyond a reasonable doubt that the defendant, with intent to cause the death of another person . . . cause [d] the death of such person .... [T]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.” (Citation omitted; 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). The sole issue in this appeal from a conviction of a violation of § 53a-54a is whether the state met its burden of proving that the defendant had the requisite intent to cause the death of the victim. The defendant appeals from the judgment of the trial court accepting a juiy verdict finding him guilty as charged. We affirm the judgment of the court.

In a two count substitute information filed May 8, 2008, the state charged the defendant, Tyrone Robinson, with murder in violation of § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (l). The defendant elected to have the first count tried by a jury and the second count tried by the court. After the defendant was found guilty on both counts, the court sentenced him to a total effective term of fifty years incarceration, two years mandatory minimum. The defendant’s appeal challenges only his conviction for murder.

The jury reasonably could have found the following facts. At the time that the victim, Leonard Lindsay, was shot, the defendant was living with his girlfriend, Lashonda Bamo. On occasion, the defendant exhibited jealousy and controlling behavior toward Bamo, particularly with regard to the victim.

Sometime in the spring of 2001, the victim, who had known Bamo for fifteen years because they had gone to school together, manhandled her at a dance club. When the defendant learned about this incident, he became upset and confronted the victim. Following the incident at the dance club, rumors of a sexual relationship between Bamo and the victim began to circulate in the neighborhood.

In the early morning of October 6, 2002, the victim drove into a gasoline station on Albany Avenue in Hartford and parked his car so that the driver’s side window faced the street. Following a report of gunshots fired at the station, the police found the victim in his car with a gunshot wound to the head and a bullet hole in the driver’s side window of the car. The victim was transported to a hospital, where he died later that day. The defendant was not immediately identified as having committed the crime.

At trial, the state presented evidence that the defendant had admitted to four individuals that he had killed the victim. Immediately after having shot the victim, he confessed the killing to Bamo and to her cousin. In September, 2004, he similarly confessed to Eric Smith, a longtime friend, who so informed the police in 2005, when Smith was incarcerated. In April, 2008, the defendant confessed to Larry Raifsnider, a fellow inmate in a federal prison in Pennsylvania. Although the defendant’s earlier confessions were consistent with his claim, at trial, that he had intended only to frighten the victim, his confession to Raifsnider described a planned killing.

In this appeal, the defendant’s only claim is that the state failed to prove beyond a reasonable doubt that he intended to cause the death of the victim when he shot him. Our review of the defendant’s claim is governed by the well established standard for appellate appraisal of claims of evidentiary insufficiency. “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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the 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. . . .

“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. Allen, 289 Conn. 550, 555-56, 958 A.2d 1214 (2008).

Although the defendant’s brief highlights evidence that he presented at trial to show that he intended only to frighten the victim, rather than to kill him, that recital does not establish that the state failed to prove the requisite intent for a conviction of murder. We cannot ignore the contrary evidence that the state presented to prove that the defendant had indeed intended to kill the victim. That evidence included testimony describing the defendant’s jealousy of the victim due to his belief that the victim had engaged in a sexual relationship with Bamo. It also included evidence of the defendant’s intentional conduct in luring the victim to the gasoline station and lying in wait prior to shooting him. Finally, intent also could have been reasonably inferred from the fact that the defendant shot the victim in the head. See, e.g., State v. Melendez, 74 Conn. App. 215, 222, 811 A.2d 261 (2002) (“[i]t is axiomatic that a factfinder may infer an intent to kill 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” [internal quotation marks omitted]), cert. denied, 262 Conn. 951, 817 A.2d 111 (2003).

Although the defendant has raised questions about the credibility of the state’s witnesses whose testimony incriminated him, we do not have the authority to review any such assessments made by the jury. “[Bjecause the jury has the occasion to scrutinize the behavior, deportment and attitude of the witnesses and to measure their credibility, [i]t is axiomatic that evidentiary inconsistencies are for the jury to resolve, and it is within the province of the jury to believe all or only part of a witness’ testimony. . . . [T]he jury is the final arbiter as to the credibility of any witness.” (Citation omitted; internal quotation marks omitted.) State v. Fleming, 111 Conn. App. 337, 345, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009). On appeal, we cannot revisit the jury’s decision to believe the witnesses. No claim has been presented that the defendant lacked the opportunity to impeach the state’s witnesses at trial.

After careful review of the record, we conclude that the state presented sufficient evidence to sustain the defendant’s conviction. The jury reasonably found, beyond a reasonable doubt, that the defendant intended to bring about the death of the victim.

The judgment is affirmed.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       General Statutes § 53a-217 (a) (1) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and . . . has been convicted of a felony . . . .”