text:
    MELVIN C. WASHINGTON v. DANIEL IVANCIC ET AL.
    (AC 28181)
    Flynn, C. J., and Lavine and Pellegrino, Js.
    Argued September 17, 2008
    officially released March 17, 2009

      Melvin C. Washington, pro se, the appellant (plaintiff).

      Irena J. Urbaniak, city attorney, for the appellees (defendants).
   Opinion

PELLEGRINO, J.

The plaintiff, Melvin C. Washington, appeals from the judgment of the trial court rendered upon the granting of the defendants’ cross motion for summary judgment on the ground that the plaintiffs complaint was barred by a statute of limitations. The court also denied the plaintiffs motion for summary judgment seeking judgment as to liability. We conclude that the statute of limitations does not bar the plaintiffs malicious prosecution claim, and, therefore, we reverse in part the judgment of the trial court.

The plaintiff alleges that on January 4, 2003, as he was leaving a fast food restaurant, he was approached by a police officer who inquired as to whether he had had any alcoholic beverages to drink. The plaintiff responded that the question “was an invasion of privacy.” Another officer drove into the parking lot, and one of the officers ordered the plaintiff out of his car. The plaintiff was ordered to perform a field sobriety exercise and was, subsequently, transported to the New Britain police department where he was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a.

On September 9, 2004, the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs was nolled by the state and then dismissed on September 9, 2005. The plaintiff, on March 21, 2006, instituted this action against the defendants. In his complaint and subsequent amended complaints, the plaintiff alleged infringement of his freedom of speech and an illegal seizure, conspiracy and civil rights violations, false arrest, infliction of both intentional and negligent emotional distress, malicious prosecution and municipal liability.

The plaintiff filed a motion for summary judgment solely as to liability. The defendants filed an objection to the plaintiffs motion for summary judgment as well as a cross motion for summary judgment as to all counts of the complaint, claiming that the plaintiffs action was barred by the statute of limitations, General Statutes § 52-577. The corut denied the plaintiffs motion for summary judgment on the ground that the supporting material submitted by the plaintiff was conclusory and that he failed to meet his burden of proof to show that there were no genuine issues of material fact. As to the defendants’ cross motion for summary judgment, the court granted that motion, agreeing that the three year time period set forth in § 52-577 barred the plaintiffs claims because the action was not instituted until March 21, 2006, more than three years after January 4, 2003, the date of the incident that formed the basis of the plaintiffs complaint. This appeal followed.

The plaintiff claims that the court improperly granted the defendants’ cross motion for summary judgment on the malicious prosecution count. The court, in granting the defendants’ cross motion for summary judgment on the ground that the three year limitation period pursuant to § 52-577 barred the plaintiffs claim, used the date of the arrest, January 4, 2003, as the starting date of the limitations period. Therefore, it found that more than three years had passed by the time the complaint was served on March 21, 2006. On appeal, the plaintiff argues that the court should have used the date the charges were dismissed, September 9,2005, to calculate the running of the statute of limitations. We agree.

Our Supreme Court recently decided this issue in Lopes v. Farmer, 286 Conn. 384, 944 A.2d 921 (2008), and held that the statute of limitations in a malicious prosecution claim commences to toll from the date the criminal matter is dismissed. The defendants now agree, as does this court, that on the basis of Lopes, the malicious prosecution claim was timely filed. In Lopes, the plaintiff filed an action, pursuant to 42 U.S.C. § 1983, for malicious prosecution against two police officers employed by the town of Stratford. The plaintiff was arrested on November 9, 2000, and on July 22, 2002, all of the charges against him were dismissed. Lopes v. Farmer, supra, 386-87. He filed suit against the defendants, serving them with the complaint on May 15,2005. Id., 387. The court found that the claim was barred by § 52-577 using the date of the plaintiffs arrest as the date to start the limitations period. Id. Our Supreme Court reversed the judgment, holding that the limitations period started as of the date the charges were dismissed, not as of the date of the arrest. Id., 390.

In the present matter, the charges against the plaintiff were dismissed on September 9, 2005, and he instituted this action on March 21, 2006, within the three year statute of limitations. Therefore, on the basis of the Lopes decision, we reverse the judgment of the court granting the defendants’ motion for summary judgment as to the malicious prosecution claim.

The judgment is reversed in part and the case is remanded for further proceedings on the plaintiffs malicious prosecution claim.

In this opinion the other judges concurred.

       The defendants are police Officer Daniel Ivancic, police Officer Robert Paciotti, acting chief of police William Gagliardi and the city of New Britain.

       Because we remand this case for further proceedings on the plaintiffs malicious prosecution claim, we do not address his additional claim that the trial court should have granted his motion for partial summary judgment as to liability. Even if we were to address this claim and agree with the plaintiff on its merits, a further hearing in damages would be required before a final judgment could be rendered.

       The defendants had raised two additional defenses, res judicata and governmental immunity, in their cross motion for summary judgment. The court, however, granted the defendants’ motion solely on the basis of the statute of limitations and did not address the defendants’ other two grounds.

       The plaintiff does not challenge the trial court’s ruling with respect to his other allegations.


source: Caselaw Access Project

author: LAVINE, J. MCDONALD, J.,

license: Public Domain

text:
    WILLIAM PAGAN v. OSVALDO GONZALEZ
    (AC 28841)
    McLachlan, Lavine and McDonald, Js.
    Submitted on briefs October 29, 2008
    officially released March 17, 2009

      William Pagan, pro se, the appellant (plaintiff), filed a brief.
   Opinion

LAVINE, J.

The pro se plaintiff, William Pagan, appeals from the summary judgment rendered by the trial court in favor of the defendant, Osvaldo Gonzalez, an attorney admitted pro hac vice to the bar of the state of Connecticut for the purpose of representing the plaintiff in an underlying criminal matter. On appeal, the plaintiff claims that the court improperly granted the motion for summary judgment with respect to whether (1) the action was barred by the applicable statute of limitations, General Statutes § 52-577, and (2) the plaintiff was required to present expert witness testimony to prevail. We affirm the judgment of the trial court.

The following procedural history is relevant to our resolution of the issues on appeal. The plaintiff commenced a one count cause of action against the defendant on August 16, 2004, by causing a marshal to serve process on the secretary of the state pursuant to General Statutes § 52-59b (c). The plaintiff thereafter filed a four count revised complaint on October 24, 2005. In his revised complaint, the plaintiff alleged that in November, 1999, he retained the defendant to represent him with respect to criminal charges pending against him in the judicial district of Ansonia-Milford. He further alleged that the defendant retained attorney Joseph Colarusso to sponsor his application for pro hac vice admission to the Connecticut bar. The plaintiff alleged in two counts that the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff also alleged in two counts that the defendant committed legal malpractice at the time the plaintiff was sentenced on July 12, 2000.

The defendant filed a motion to strike the CUTPA counts, which the court, Pittman, J., granted. Thereafter, the defendant filed a motion for summary judgment, claiming that he was entitled to summary judgment in his favor because (1) there was no genuine issue of material fact that the plaintiff did not commence the action within the time permitted by § 52-577 and (2) the plaintiff did not intend to present expert testimony with regard to the allegations of legal malpractice. The court, Holden, J., granted the motion for summary judgment. The plaintiff appealed.

“Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... A material fact . . . [is] a fact which will make a difference in the result of the case. . . . Finally, the scope of our review of the trial court’s decision to grant the [defendant’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).

I

The plaintiffs first claim is that the court’s ruling that his malpractice claims were time barred by § 52-577 constitutes plain error. We disagree.

In its memorandum of decision, the court noted that the plaintiffs legal malpractice action raised claims of negligence subject to § 52-577. See Farnsworth v. O’Doherty, 85 Conn. App. 145, 148-51, 856 A.2d 518 (2004). The court found that there was no dispute that the date of the defendant’s alleged misconduct was the date of the plaintiffs sentencing, July 12, 2000. The critical fact, therefore, is the date the present action was commenced. The officer’s return in this matter indicates that on August 16, 2004, he “made due and legal service upon the within named nonresident defendant . . . Osvaldo Gonzales ... by leaving a true and attested verified copy of the original [process] ... at the office of the Secretary of State, Agent for Service pursuant to [§] 52-59b (c) [of the General Statutes] . . . .” (Emphasis added.) The court concluded that the defendant was entitled to summary judgment because there was no genuine issue of material fact that the plaintiff had failed to commence the action within the three year statute of limitations.

General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” “Section 52-577 is a statute of repose that sets a fixed limit after which the tortfeasor will not be held liable . . . .” (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn. App. 454, 468, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). “[S]ection 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.” (Internal quotation marks omitted.) Id. “When conducting an analysis under § 52-577, the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.” (Internal quotation marks omitted.) Farnsworth v. O’Doherty, supra, 85 Conn. App. 149-50.

“Legal actions in Connecticut are commenced by service of process.” (Internal quotation marks omitted.) Rios v. CCMC Corp., 106 Conn. App. 810, 820, 943 A.2d 544 (2008). There is a presumption of truth in matters asserted in the officer’s return. See, e.g., Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). General Statutes § 52-59b (c) provides in relevant part that “[a]ny nonresident individual . . . over whom a court may exercise personal jurisdiction . . . shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual . . . .” The court therefore properly concluded that the plaintiffs action was barred by § 52-577 because the action was commenced more than three years following the alleged malpractice.

II

The plaintiffs second claim is that the court improperly granted summary judgment by concluding that he could not prevail without expert testimony concerning the defendant’s legal representation. We are not persuaded.

The defendant’s motion for summary judgment asserted that summary judgment should be granted because the plaintiff failed to disclose an expert witness and had taken the position that expert testimony was not necessary. The court granted summary judgment on the basis of this court’s decision in Dixon v. Bromson & Reiner, 95 Conn. App. 294, 300, 898 A.2d 193 (2006) (when plaintiff alleging legal malpractice fails to establish claim by expert testimony, summary judgment proper). The court also concluded that the exception articulated in Paul v. Gordon, 58 Conn. App. 724, 728, 754 A.2d 851 (2000), was inapplicable to the facts of this case.

On appeal, the plaintiff argues that the court misconstrued the holdings of Dixon and Paul by failing to apply them to the facts of this case. “[U]nless [a] defendant’s performance constituted such an obvious and gross want of care and skill as to fall within the exception to the expert witness requirement, [a] plaintiff [is] required to present expert testimony to establish the proper standard of professional skill and care and to assist the court in evaluating the defendant’s performance in light of that standard.” Dixon v. Bromson & Reiner, supra, 95 Conn. App. 298. The exception to the need for expert testimony is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her client’s interests, resulting in such “an obvious and gross want of care and skill that the neglect would be clear even to a layperson.” Paul v. Gordon, supra, 58 Conn. App. 728. On the basis of our plenary review of the allegations of the revised complaint, we conclude that the court properly granted summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion McLACHLAN, J., concurred.

MCDONALD, J.,

concurring. I concur in the result of the majority opinion.

There was no genuine issue before the trial court that on March 15,2000, the defendant attorney, Osvaldo Gonzalez, negotiated a plea bargain on behalf of the plaintiff, William Pagan, that provided that the plaintiff could not argue for a lesser sentence in the underlying criminal matter. At that time, Gonzalez, who was acting pro hac vice, was accompanied by the plaintiffs Connecticut attorney. At sentencing on July 12,2000, Gonzalez was present without the Connecticut attorney, and the court sentenced the plaintiff exactly in accordance with the plea bargain.

I would conclude that the plaintiff was required to establish through expert testimony how he suffered any damage from the failure of Connecticut counsel to be present at sentencing, that is, evidence of proximate causation.

       “William Pagan is an apparent alias, as the defendant’s legal name is Jose Rosario.” State v. Pagan, 75 Conn. App. 423, 424 n.2, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003).

       The defendant did not file a brief. We therefore resolve this appeal on the basis of the record and the plaintiffs brief.

       Pursuant to North Carolina v. Alford,, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), the plaintiff pleaded guilty to possession with intent to sell heroin in violation of General Statutes § 21a-278 (b). The plaintiff was sentenced to eighteen years in prison, with a mandatory minimum of five years, a sentence that was in accord with his plea agreement that had been negotiated by the defendant. See Pagan v. Commissioner of Correction, 104 Conn. App. 531, 532, 935 A.2d 175 (2007).

       The plaintiff claims that the defendant’s legal representation of him was negligent because Colarusso was absent at sentencing and the defendant failed to object to a representation made by the prosecutor as to the amount of heroin in the plaintiff’s possession at the time he was arrested. See State v. Pagan, 75 Conn. App. 423, 430-31, 816 A.2d 635 (amount of heroin not element of crime), cert. denied, 265 Conn. 901, 829 A.2d 420 (2003); see also footnote 3.

       The officer’s return of service also indicates that on August 17, 2004, he deposited a true and attested verified copy of the original process in the post office at New Britain addressed to the defendant at his last known address.

       The court also concluded that the running of the statute of limitations was not tolled pursuant to the defendant’s absence from the state as provided for by General Statutes § 52-590.

       On appeal, the plaintiff argues that the action is not time barred by § 52-577, stating that this is a contract action and that Colarusso’s being served in another action in 2002 is binding on the defendant because he and Colarusso were partners. Not only was this claim not raised in the trial court, but it also is without legal foundation. We decline to consider it further.


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. COREY CHRISTOPHER MCCLELLAND
    (AC 28268)
    Flynn, C. J., and DiPentima and Mihalakos, Js.

      Argued October 27, 2008
    officially released March 17, 2009

      Katherine C. Essington, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior 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

DiPENTIMA, J.

On March 9, 2006, the state filed an amended long form information charging the defendant, Corey Christopher McClelland, with crimes relating to the death of his two month old son. Specifically, the state charged the defendant with one count of assault in the first degree under circumstances evincing an extreme indifference to human life in violation of General Statutes § 53a-59 (a) (3), three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and one count of manslaughter in the first degree in violation of General Statutes § 53a-55. Following a jury trial, the defendant was convicted of all charges with the exception of one count of risk of injury to a child. On appeal, the defendant claims that the trial court improperly (1) admitted evidence of his prior misconduct, (2) denied his motion to strike testimony concerning his prior misconduct and (3) found that he was not entitled to an in camera review of records from the department of children and families (department). We disagree, and accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In September, 2001, the defendant and his wife, M, lived with their two sons, K and the victim. At the time, K was approximately three and a half years old and the victim was approximately two months old. The victim was an overall healthy baby but cried frequently. Following M’s maternity leave, she returned to work full-time while the defendant was unemployed. Four days a week both children were in the care of Paula Mayo, a day care provider. The defendant cared for the children during the remaining weekday. Although M and the defendant were happy with Mayo’s care, they decided that beginning on September 17, 2001, the defendant would care for the children three days a week to save money.

The defendant was at home with the children on September 17, 2001, the first day of the new day care schedule. At approximately 10:30 a.m., the defendant called M at work and told her that the victim was crying. He stated that he was not sure what was wrong with the victim and asked if M would be coming home from work during lunch. M responded that she was not coming home from work during lunch but suggested that the victim might be hungry, as he had not eaten since 6 o’clock that morning.

The defendant called again at 1:30 p.m. and told M that the victim was not breathing. He explained that he had put the victim to bed earlier and discovered that the victim was not breathing when he went to wake him up. When M asked if the victim still was not breathing, the defendant responded that the victim was not and that the victim felt cold. M stated she would be home right away and hung up. She began to drive home but turned around and went back to work because she was unable to recall if the defendant had called 911. She called the defendant, who stated that he had not called 911, and she yelled at him to do so.

The police received a 911 call from the defendant at 1:39 p.m. The defendant calmly stated that his son was not breathing. In response to the call, Officer Louis Cinque drove to the defendant’s home. The defendant answered the door while holding the victim and told Cinque that the victim was not breathing and was cold. The defendant handed the victim to Cinque, who placed the victim on the floor and observed that the victim did not have a pulse and was not breathing. The defendant stated that he had bruised the victim when he had attempted cardiopulmonary resuscitation, and Cinque noticed some bruising near the victim’s rib cage, chest and abdomen. Emergency personnel arrived and took control of treating the victim. Despite their efforts, the victim remained unresponsive and exhibited no signs of life. He was taken to a hospital by ambulance where he was pronounced dead.

Later that evening, the police interviewed M at her home and the defendant at police headquarters. The next day, September 18, 2001, the police again interviewed the defendant and M separately. Earlier that day, the police had learned from the victim’s autopsy that he had died from suffocation and that his bones, which had been broken and rebroken, were in various stages of healing. The police asked the defendant about those injuries, and the defendant responded that he was a big man and had been “heavy handed” with the victim. He stated that the bones could have broken when he was feeding or burping the victim. The defendant stated that neither Mayo nor M would ever hurt the victim.

Harold Wayne Carver II, a forensic pathologist and the state’s chief medical examiner, testified regarding the autopsy of the victim. He stated that the cause of death was asphyxia with multiple healing blunt trauma injuries, which he explained meant that the victim’s oxygen supply had been cut off by physical means and that the victim had multiple injuries to his ribs and bones in various stages of healing. He testified that the victim’s injuries were not consistent with resuscitation efforts but were consistent with inflicted injuries.

The state called Eli Newberger, a physician, who testified as an expert in pediatrics. Newberger opined that on the basis of his review of the medical records, photographs and interview transcripts, the victim was suffocated when an adult hand obstructed the victim’s airway. He testified that the bruises around the mouth and nose occurred within close proximity to the victim’s death and were not the result of resuscitation efforts.

The police interviewed the defendant again in September, 2002, but did not seek an arrest warrant until September 5, 2003. The defendant pleaded not guilty to all charges, and a jury trial commenced on April 18, 2006. On May 2, 2006, the jury found the defendant guilty of count one, assault in the first degree under circumstances evincing an extreme indifference to human life in violation of § 53a-59 (a) (3), counts two and four, risk of injury to a child in violation of § 53-21 (a) (1) and count five, manslaughter in the first degree in violation of § 53a-55. On July 11, 2006, the defendant was sentenced to ten years incarceration on count one. He was also sentenced to ten years incarceration on count two and ten years incarceration on count four, both to run concurrently with count one. On count five, the defendant was sentenced to twenty years incarceration, execution suspended after fifteen years, with five years probation, to run consecutively to count one. Thus, the defendant received a total effective sentence of thirty years incarceration, execution suspended after fifteen years, and five years probation with the condition of no contact with children younger than age sixteen. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly admitted evidence of his prior misconduct. Specifically, the defendant argues that the court abused its discretion by admitting evidence of an incident in which he harmed his older son, K, because the incident was not material to the issue of whether the defendant intentionally harmed the victim. The defendant further argues that the prejudicial nature of the evidence outweighed its limited probative value.

Additional facts inform our resolution of the defendant’s claim. Prior to trial, the state filed a notice of intent to introduce evidence of other crimes, wrongs or acts. In response, the defendant filed a motion in limine to preclude testimony of his prior bad acts. At trial, following a voir dire examination of M and argument by counsel, the court overruled the defendant’s objection to the admission of the prior uncharged misconduct evidence. The court concluded that the evidence was not unduly prejudicial and was relevant and probative as to the issue of intent. The court rejected the defendant’s argument that the location of an injury to K’s penis, made the evidence unduly prejudicial. The court overruled the defendant’s renewed objection and allowed M to testify about the following incident. She stated that in 1998 while they were living in another state, the defendant was watching K while she was at work. K was ten months old at the time. The defendant called M at work and told her that he had injured K. He explained that he had been changing K’s diaper when K began touching his penis. The defendant did not believe this was appropriate behavior and pulled K’s hand away. When K reached for his penis again, the defendant swatted K’s hand away, hitting K’s hand as well as his penis. The defendant told M that K’s penis was a little swollen, but when M returned home she discovered that K’s penis and groin area were extremely swollen. She also noticed that there was a cut on K’s penis and blood on the diaper. After M took K to the hospital, child protective services insisted that the defendant leave the house but eventually allowed him to return. M also testified that this incident caused her to be concerned about the defendant’s interactions with the victim. During his testimony, the defendant testified that he had mistakenly believed that it was inappropriate for K to touch his penis but has since learned that it is normal for babies to touch themselves. He explained that he swatted away K’s hand twice but accidentally hit his penis the second time.

The court, prior to constructing a limiting instruction regarding the prior misconduct evidence, stated: “[IJt’s my understanding that the state has offered the prior misconduct with respect to the element of intent; is that correct?” The state responded that it cited intent, malice and common plan in its brief on the issue but that intent was the strongest basis for admission of the evidence. The court responded that it would give the instruction on the element of intent. The defendant did not object.

Two days after M’s testimony regarding the injury to K, the court read its limiting instruction to counsel. Both the state and the defendant had no objection to the instruction. Addressing the jury later that day, the court stated: “[I]n particular, I want to draw your attention to the evidence initially testified to by [M] and then mentioned also in the tape where [an officer] was interviewing [the defendant]. And that is reference to an issue which took place in [another state] with . . . the party’s older child.” The court explained that this evidence is referred to as a prior act of misconduct and may only be considered in a limited way. The court then instructed the jury that “[t]he evidence offered by the state of prior acts of misconduct of the defendant is not being admitted to prove the bad character of the defendant or the defendant’s tendency to commit criminal acts. Such evidence is being admitted solely to show or establish the existence of intent, which is a necessary element of some of the crimes charged. You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you believe it and further find that [it] logically, rationally and conclusively supports the issue for which it is being offered by the state, but only as it may bear here on the issue of intent.” The court repeated this limiting instruction in its final charge to the jury.

Our standard of review for this issue is well established. “The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Peloso, 109 Conn. App. 477, 506-507, 952 A.2d 825 (2008).

There are familiar principles restricting the admissibility of evidence of uncharged prior misconduct. “As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior.” (Citation omitted; internal quotation marks omitted.) State v. Aaron L., 272 Conn. 798, 820, 865 A.2d 1135 (2005); see Conn. Code Evid. § 4-5 (a). There are exceptions, however, to this general rule. “Evidence may be admissible . . . for other purposes, such as to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency.” (Internal quotation marks omitted.) State v. George B., 258 Conn. 779, 790, 785 A.2d 573 (2001); see Conn. Code Evid. § 4-5(b).

We use a two-pronged test to determine whether uncharged prior misconduct evidence is admissible. “First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the [prior misconduct] evidence.” (Internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 685, 800 A.2d 1160 (2002). The first prong requires the trial court to determine if an exception applies to the evidence at issue. State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994). Here, the court admitted evidence of the injury to K on the issue of the defendant’s intent with regard to the victim. On appeal, the defendant argues that the evidence was not relevant or material to the issue of intent on the charges against him involving the victim’s death. We disagree.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . State v. Prioleau, 235 Conn. 274, 305, 664 A.2d 743 (1995).” (Internal quotation marks omitted.) State v. Nunes, supra, 260 Conn. 685-86.

The evidence of the injury to K was relevant to the issue of intent. With it, the jury reasonably could infer the defendant’s intent with regard to the physical force used on bis son, K. The jury reasonably could then use this evidence to determine the defendant’s intent regarding his actions toward the victim. Such evidence was relevant when the defendant testified that he merely discovered that the victim was not breathing when he went to check on him and denied hurting the victim or having knowledge of what caused his death. Thus, the prior misconduct evidence was relevant to rebut the defendant’s suggestion that the victim’s death was caused by factors other than his intentional conduct. See State v. Nunes, supra, 260 Conn. 686-87 (evidence of prior incident in which defendant used substance to impair victim relevant where defendant denied causing victim’s symptoms of impairment); State v. Orellana, 89 Conn. App. 71, 87-88, 872 A.2d 506 (evidence of prior misconduct admissible to rebut defendant’s contention he was unaware of heroin in vehicle), cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005).

Having determined that the evidence was relevant to the issue of intent, we turn to the second prong, which provides that the prior misconduct evidence must be excluded if the prejudicial effect of the evidence outweighs its probative value. See State v. Zubrowski, 101 Conn. App. 379, 394-95, 921 A.2d 667 (2007), appeal dismissed, 289 Conn. 55, 956 A.2d 578 (2008), cert. denied, 555 U.S. 1216, 129 S. Ct. 1533, 173 L. Ed. 2d 663 (2009). “Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 218, 881 A.2d 160 (2005).

Although the evidence of the injury to K was prejudicial to the defendant, its prejudicial effect did not outweigh its probative value. Evidence of dissimilar acts is less likely to be prejudicial than evidence of similar acts. State v. Cator, 256 Conn. 785, 800, 781 A.2d 285 (2001); State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986) (“[w]here the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility” [internal quotation marks omitted]). Here, the injuries to the victim were significantly more severe in their force and brutality than the prior misconduct acts against K. The prior misconduct evidence, therefore, was not sufficiently similar to create undue prejudice and was not evidence likely to shock the jury or inflame its passions given the acts alleged in the crimes at issue. See State v. Zubrowski, supra, 101 Conn. App. 395-96 (evidence of prior misconduct not unduly prejudicial or likely to inflame passions of jury when prior acts alleged were less brutal and severe than crime charged); State v. Vega, 259 Conn. 374, 398-99, 788 A.2d 1221 (evidence of prior assaults on victim admissible when such assaults not on par with unique brutality alleged in crime at issue), cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).

Moreover, the probative value of the prior misconduct evidence was significant. The nature of the case forced the state to rely on circumstantial evidence and other inferences of intent to meet its burden. See State v. Tucker, 181 Conn. 406, 416-17, 435 A.2d 986 (1980) (evidence of prior child abuse probative on issue of intent in child homicide); see also State v. Smith, 110 Conn. App. 70, 79, 954 A.2d 202 (intent generally inferred from conduct or proven by circumstantial evidence because direct evidence of defendant’s state of mind rarely available), cert. denied, 289 Conn. 954, 961 A.2d 422 (2008). Particularly in the absence of direct evidence of intent, testimony regarding the injury to K was highly probative. In addition, the court twice issued a limiting instruction to the jury, which minimized the potential prejudice to the defendant. See State v. Orellana, supra, 89 Conn. App. 89 (“[p]roper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct” [internal quotation marks omitted]). Absent evidence to the contrary, a jury is presumed to have followed the court’s instructions. State v. Fields, 265 Conn. 184, 207, 827 A.2d 690 (2003). Thus, we conclude that the court properly balanced the potential prejudicial impact of the testimony with its probative value and, having instructed the jury on the limited use of the evidence, did not abuse its discretion in admitting evidence of the defendant’s prior uncharged misconduct.

n

The defendant next claims that the court improperly denied his motion to strike testimony that violated the prohibition on using prior misconduct as evidence of a defendant’s propensity to commit criminal acts. We disagree.

At trial, Newberger testified that he reviewed information regarding an incident in another state in which the defendant had injured K. Newberger stated that although he did not rely on the incident in forming his opinion as to the victim’s injuries, it was “of significance because it showed a prior capacity to assault a young child.” Defense counsel did not object immediately to this testimony.

Two days later, on April 28,2006, the defendant filed a motion to strike and for a curative instruction regarding specific portions of Newberger’s testimony. Defense counsel argued that Newberger’s testimony regarding the injury to K, specifically remarks that were in response to questions on cross-examination, should be stricken through the court’s supervisory authority. The court denied the motion, noting that it already had given an instruction relating to the evidence of prior misconduct and would repeat that instruction in its final charge to the jury. The court also stated that it was no longer the appropriate time for such a motion and that counsel could have made a motion to strike Newberger’s testimony as unresponsive at the time it was given.

We first set forth our standard of review of a trial court’s denial of a defendant’s motion to strike. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 454, 832 A.2d 626 (2003).

Here, the defendant’s motion came two days after the testimony. In general, objections to the answer to a question should be made before the next question. C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 1.30.2, p. 79; see also Zullo v. Zullo, 138 Conn. 712, 716, 89 A.2d 216 (1952) (denial of motion to strike not abuse of discretion when motion untimely). Moreover, the court issued a limiting instruction regarding evidence of prior misconduct, specifically, the injury to Kto which Newberger referred, during trial and again as part of the final instructions. As our Supreme Court has stated repeatedly, “[t]he jury [is] presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Flowers, 278 Conn. 533, 547, 898 A.2d 789 (2006). Given the untimely nature of the motion and the court’s multiple limiting instructions on the very subject of the testimony at issue, we cannot conclude that the court’s denial of the motion to strike was an abuse of discretion.

m

Finally, the defendant claims that the court improperly found that he was not entitled to an in camera review of records from the department. Specifically, the defendant argues that by declining to conduct an. in camera review of the records, the court violated his sixth amendment right to confrontation as well as his fourteenth amendment right to due process. We disagree.

On September 18, 2001, the day after the victim’s death, representatives from the department removed K from his parents’ care and placed him in a foster home. K was sent subsequently to live with M’s parents in another state. M and the defendant separated in January, 2002, and eventually divorced. M moved to another state in September, 2002, and, in September, 2003, K resumed living with her. The defendant was arrested on September 5, 2003.

Prior to trial, the defendant filed a motion for discovery that included a request for the department’s records relating to K. At the hearing on the motion dining trial, the defendant argued that the department’s records should be provided to the defense or, in the alternative, that the court should conduct an in camera review of the records. Defense counsel stated: “We’ve asked through our discovery process . . . for exculpatory information with regard to my client. Exculpatory information includes the information that can be used to impeach for interest, prejudice and bias. We have been informed by the state’s attorney, and we accept her representation in good faith, that the information provided to her from [the department] includes no exculpatory information with regard to [the defendant], and, obviously, since we don’t have it, we’d have to take it at their word.” Defense counsel claimed that the department “routinely tells parents that they must cooperate with [the department] to get their children back” and that because M was reunited with K just before the defendant’s arrest, there was a “reasonable inference that the [department] told [M] that she could get [K] back if she testified.” Specifically, defense counsel argued that the records contained evidence of this agreement, which could be used “for confrontational purposes, for impeachment purposes,” and, therefore, the defendant was entitled to the records under the sixth amendment’s confrontation clause and the fourteenth amendment’s due process clause.

The court denied the defendant’s motion, noting that it was not aware of any authorization or permission granted by the appropriate parties to release the records and that in the absence of such authorization, the defendant was required to make a showing, under State v. Kulmac, supra, 230 Conn. 43, for the court to undertake an in camera review of the materials. The court concluded that the defendant had not made the requisite showing and that “a suspicion that there might be something exculpatoiy in the records” is insufficient. The court noted that both M and the department worker testified and that the defendant had the opportunity to cross-examine both witnesses.

The defendant argues that the sixth amendment’s confrontation clause provides a right to have the court conduct an in camera review of confidential records. He claims that the court’s failure to do so resulted in the denial of his sixth amendment right to effectively cross-examine M regarding her motive for testifying. He maintains that defense counsel’s assertion at trial that the records might contain information that the department told M she could “get her child back” if she testified constituted a preliminary showing sufficient to overcome the confidentiality of the records, and, thus, the court abused its discretion when it did not conduct an in camera review. We disagree with the defendant.

This court will review a trial court’s denial of a defendant’s request to conduct an in camera review of confidential records pursuant to our standard of review for evidentiary rulings. State v. Betances, 265 Conn. 493, 506, 828 A.2d 1248 (2003). Therefore, “[w]e review a court’s conclusion that a defendant has failed to make a threshold showing of entitlement to an in camera review of statutorily protected records . . . under the abuse of discretion standard. . . . We must make every reasonable presumption in favor of the trial court’s action. . . . The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. George J., 280 Conn. 551, 599-600, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007).

General Statutes § 17a-28 (b) provides that department records are privileged and may not be released without the consent of the person involved or that person’s authorized representative. A defendant’s sixth amendment right to confrontation, however, prevents department records from being privileged unconditionally. State v. Januszewski, 182 Conn. 142, 170-71, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). “It is well established that [a] criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 379, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005); see State v. Slimskey, 257 Conn. 842, 853, 779 A.2d 723 (2001). “We are mindful, however, that the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” (Internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 175, 777 A.2d 604 (2001).

In light of these competing interests, our Supreme Court has established that to compel an in camera review of confidential records, a defendant must make a preliminary showing that there is a reasonable ground to believe that failure to review the records likely would impair the defendant’s right to confrontation. State v. Kulmac, supra, 230 Conn. 58-59. To meet this burden, the defendant must do more than assert that the privileged records may contain information that would be useful for the purposes of impeaching a witness’ credibility. Id., 56-57; accord State v. Colon, 272 Conn. 106, 264-65, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). As explained by our Supreme Court: “[T]he defendant’s offer of proof should be specific and should set forth the issue in the case to which the [confidential] information sought will relate.” (Internal quotation marks omitted.) State v. George J., supra, 280 Conn. 599.

Here, defense counsel simply asserted that the department “routinely tells parents that they must cooperate with [the department] to get their children back.” He concluded that because M was reunited with K, “just before” the defendant’s arrest, it was reasonable to infer that she was told that she must testify against the defendant to be allowed to live with K. The defendant did not provide any support for this assertion or offer any indication that the department records would contain evidence of this arrangement, but merely argued that the records may contain information that would be useful for impeachment purposes. This simply was insufficient under our case law. See State v. Kulmac, supra, 230 Conn. 56-57. We cannot conclude, therefore, that the court abused its discretion in concluding that the defendant had not made a sufficient showing to compel an in camera inspection of the records.

Moreover, the record indicates that defense counsel was afforded an opportunity to cross-examine both M and the representative from the department. Defense counsel conducted an extensive cross-examination of M and, although given the opportunity to do so, declined to cross-examine the representative from the department. “[T]he confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish . . . .” (Citations omitted; internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn. 854. We note, as did the trial court, that defense counsel could have used these opportunities for cross-examination to question the witnesses as to any arrangement between M and the department. Such an examination could have established a showing sufficient to compel an in camera review. Although defense counsel did question M regarding whether she had made any deals of cooperation with the police or the prosecution, when she responded that she had not, he did not inquire farther. Significantly, the court did not limit defense counsel’s questions on cross-examination. Thus, we conclude that the court did not impair the defendant’s right to confrontation when it declined to conduct an in camera review of the department records. See State v. Gonzalez, 75 Conn. App. 364, 384, 815 A.2d 1261 (2003) (court’s denial of motion to conduct in camera review did not infringe on defendant’s confrontation rights where defendant afforded wide latitude in cross-examination of witnesses), rev’d on other grounds, 272 Conn. 515, 864 A.2d 847 (2005).

Through our review of the record, specifically, defense counsel's colloquy on this issue at trial, it appears that the defendant argued for an in camera review of the department records solely on the basis of his sixth amendment right to confrontation. To the extent that the defendant has preserved any due process claim, which relates to the right to exculpatory evidence, we consider that claim here.

On appeal, the defendant also argues that he had a right to an in camera review of the department records under the due process clause of the fourteenth amendment. He maintains that he made a showing sufficient to compel an in camera review pursuant to the standard set forth in State v. Leduc, 40 Conn. App. 233, 670 A.2d 1309 (1996), on appeal after remand, 44 Conn. App. 744, 690 A.2d 1390, cert. denied, 241 Conn. 909, 695 A.2d 541 (1997). We disagree.

In Pennsylvania v. Ritchie, 480 U.S. 39, 58, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987), the United States Supreme Court held that the fourteenth amendment’s due process clause provides a right to exculpatory information contained in confidential materials. This court, in State v. Leduc, supra, 40 Conn. App. 233, established that to compel an in camera review under the due process clause, the defendant “must at least make some plausible statement of how the information would be both material and favorable to his defense.” Id., 248. The court went on to explain that “[f]avorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist. . . . On the other hand, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Rasmussen, [225 Conn. 55, 92, 621 A.2d 728 (1993)]; State v. Pollitt, 205 Conn. 132, 142-43, 531 A.2d 125 (1987).” (Internal quotation marks omitted.) State v. Leduc, supra, 249-50.

In Ritchie, the defendant was charged with the rape and sexual assault of his thirteen year old daughter. Pennsylvania v. Ritchie, supra, 480 U.S. 43. The victim reported the incidents to the police, who, in turn, contacted the state children and youth services agency (agency). Id. The defendant argued that he was entitled to the agency file because it “might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence.” Id., 44. Analyzing the defendant’s due process rights rather than his constitutional confrontation claim, the Supreme Court concluded that the defendant was “entitled to have the [agency] file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of [the] trial.” Id., 58.

Similarly, in Leduc, the defendant was charged with sexually assaulting his four year old daughter. State v. Leduc, supra, 40 Conn. App. 234-35. The victim described her abuse to her mother, who took her to a counselor at a private counseling agency. Id., 236. The victim disclosed the incidents to the counselor, who reported the case to the department. Id. The department investigated the allegations and subsequently closed its file. Id. The department later opened its investigation after the counselor, concerned that the initial investigation had been inadequate, again reported the case to the department. Id. The department again closed its file. Id., 248. In his request for the department file, the defendant had stated that it “may contain exculpatory information because after speaking to the victim, [the department] closed the file and did not pursue the charges.” Id. This court, noting that the department twice closed its file after investigating the victim’s allegations of abuse, concluded that the defendant had made a showing sufficient to compel an in camera review of the department records. Id.

The defendant’s argument at trial in the present case compels a conclusion different from that in Ritchie and Leduc. Here, the defendant simply asserted his belief that the department had compelled M to testify against him and that the files might contain information to this effect, which he could use to impeach M. He did not argue, as did the defendants in Ritchie and Leduc, that the department records would reveal information that would address the defendant’s culpability or otherwise tend to exculpate him. Although we recognize that “the obligation to disclose exculpatory material does not depend on the presence of a specific request”; id.; the defendant’s argument essentially constituted “a suspicion that there might be something exculpatory in the records.” See State v. Berube, 256 Conn. 742, 758, 775 A.2d 966 (2001) (“[t]he defendant, of course, may not require the trial court to search through the [department] file without first establishing a basis for his claim that it contains material evidence” [internal quotation marks omitted]). Accordingly, we cannot conclude that the court abused its discretion in determining that the defendant had not met his burden of showing that an in camera review would have revealed information material and favorable to his defense.

The judgment is affirmed.

In this opinion the other judges concurred.

       Dean Uphoff, a pathologist, examined the victim’s brain as part of the autopsy. He testified that his examination revealed that the victim’s brain was deprived of oxygen shortly before death. The state also called Christopher Foley, a pediatric radiologist, who testified as an expert in radiology. He stated that the victim’s injuries were not attributable to birthing, resuscitation efforts or picking up the victim from under the arms or around the rib cage and opined that the injuries were consistent with child abuse.

       Newberger also testified that he observed multiple rib and bone fractures in various stages of healing, which he stated evidenced a “truly chronic process of injuring [the] child.” He opined that the victim would have been in significant pain from these injuries and would have cried often.

       The defendant was found not guilty of count three, risk of injury to a child in violation of General Statutes § 53-21 (a) (1).

       The court further explained: “[T]his is call[ed] a limiting instruction, and it’s kind of a self-defining term, if you will. It instructs you that the evidence can only be used for a limited purpose, and the purpose is essentially to show — the state would offer that it shows intent.”

       Specifically, the court stated: “There was evidence offered and admitted by the state of prior misconduct of the defendant. And when I give this instruction, I refer specifically to the incidents that were alleged to have happened in [another state] some time prior to the defendant’s residence in the state of Connecticut.
      “The evidence offered by the state of prior acts of misconduct of the defendant is not being admitted to prove the bad character of the defendant or the defendant’s tendency to commit a criminal act. Such evidence is being admitted solely to show or establish the existence of intent, which is a necessary element of a crime charged.
      “You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you believe it and, further, find that [it] logically, rationally and conclusively supports the issue for which it is being offered by the state, but only as it may bear here on the issue of intent.
      “On the other hand, if you do not believe such evidence or even if you do ... if you find that it does not logically, rationally and conclusively support the issues for which it is being offered by the state, then you may not consider that testimony for any purpose.
      “You may not consider evidence of prior misconduct for any reason other than those stated in these instructions because it may predispose your mind to believe that the defendant may be guilty of the offense charged here merely because of the prior misconduct. For this reason, you may consider this evidence only on the issue of intent and for no other purpose.”

       To the extent that the defendant challenges the sufficiency of the limiting instruction, we decline to review his claim. Specifically, the defendant argues that the jury instruction was flawed because it failed to instruct the jury that the prior misconduct evidence was relevant only to the charges of risk of injury to a child. The defendant did not object to the jury instruction at trial and, thus, did not preserve this claim for appellate review. On appeal, the defendant failed to request review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. “Where a defendant fails to seek review of an unpreserved claim under either Golding or the plain error doctrine, this court will not examine such a claim.” (Internal quotation marks omitted.) State v. Parham, 70 Conn. App. 223, 231 n.9, 797 A.2d 599 (2002). We note that this court has previously held that Golding review is not available for this claim. State v. Rosario, 99 Conn. App. 92, 105 n.8, 912 A.2d 1064 (“failure of the trial court to give a limiting instruction concerning the use of evidence of prior misconduct is not a matter of constitutional magnitude” [internal quotation marks omitted]), cert. denied, 281 Conn. 925, 918 A.2d 276 (2007). Accordingly, we decline to address the defendant’s claim.

       The defendant also argues that the court improperly failed to inquire of the prosecutor whether consent had been given to release the department records. The defendant asserts that the court was required to make this inquiry before turning to the issue of whether he had made the showing necessary to overcome lack of consent. The defendant did not make this argument at trial and does not request plain error review on appeal. See Practice Book § 60-5 (court not bound to consider claim unless raised at trial but may notice plain error not brought to attention of trial court). Thus, we decline to review the claim because it was not raised at trial or properly preserved for appeal. See State v. Klinger, 103 Conn. App. 163, 168-69, 927 A.2d 373 (2007) (inappropriate to engage in level of review, such as plain error, when not requested).

       The defendant in Leduc was arrested only after the victim’s mother reported the abuse to the police. See State v. Leduc, supra, 40 Conn. App. 236.


author: BORDEN, J.

text:
    JOEL CABAN v. COMMISSIONER OF CORRECTION
    (AC 28095)
    Bishop, Gruendel and Borden, Js.

      Argued November 20, 2008
    officially released March 17, 2009

      Deborah G. Stevenson, special public defender, for the appellant (petitioner).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BORDEN, J.

The petitioner, Joel Caban, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying the petition for certification and improperly concluded that the claim that his guilty plea was involuntary, due to the ineffective assistance of counsel and a defective plea canvass, was procedurally defaulted. We affirm the judgment of the habeas court.

The petitioner was charged in a nine count information with four counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (1) (B) and (2) (C), two counts of conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 (a), and 53a-92 (a) (1) (B) and (2) (C), two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and one count of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1). Initially, the petitioner entered a not guilty plea and elected a jury trial, which commenced before the court, Thompson, J. Prior to the state’s finishing the presentation of its case-in-chief, the petitioner withdrew his not guilty plea and pleaded guilty before the court, Fasano, J., under the Alford doctrine to one count of kidnapping in the first degree and one count of criminal possession of a pistol. No sentencing recommendation was agreed on by the parties; the parties, however, agreed that the remaining charges would be eliminated and that Judge Thompson would impose the sentence. On May 10, 2002, Judge Thompson sentenced the petitioner to nine years incarceration and eight years special parole. The petitioner did not move to withdraw his plea or challenge it in a direct appeal.

As disclosed in the plea and sentencing proceedings, the following facts underlie the crimes of which the petitioner was convicted. Approximately one week prior to November 14, 2000, the petitioner learned that he had contracted a sexually transmitted disease. Angered by this news, the petitioner decided to confront the two women he believed were responsible for giving him the disease and to make them pay for what they had done to him. On November 14, 2000, the petitioner telephoned one woman, who voluntarily went to the petitioner’s apartment on Lombard Street in New Haven later that night. The petitioner, along with his friends, tracked down the second victim and forcibly brought her back to the petitioner’s apartment.

The petitioner held both victims against their will in his apartment, demanding to know which one of them had given him the disease. He threatened the victims with bodily harm and displayed brass knuckles, a baseball bat, a knife and a loaded gun, which the petitioner told the victims he specifically had purchased for the individual who gave him the disease. When neither victim provided the petitioner with the information he was seeking, he decided to hold the victims overnight and to bring them to the Fair Haven Health Clinic (clinic) the next day to undergo testing for sexually transmitted diseases.

On the morning of November 15, 2000, the petitioner brought the two victims to the clinic. The intake nurse at the clinic noticed that the victims were crying, visibly upset and appeared afraid for their safety. While at the clinic, one of the victims devised a plan to alert the staff at the clinic of the victims’ peril. She went to the restroom and wrote a note on a paper towel, indicating that she feared for her life, hid the note in her sock and then slipped it to one of the clinic’s workers, who immediately contacted the police. Upon the realization that the police had been notified, the petitioner fled the scene. The petitioner subsequently was arrested.

The petitioner filed this amended petition for a writ of habeas corpus, claiming, in count one, that his trial counsel had rendered ineffective assistance and, in count two, that his guilty plea was not made knowingly, intelligently and voluntarily because he was deprived of the effective assistance of counsel and the trial court failed to conduct a proper plea canvass. The respondent, the commissioner of correction, in her return, raised the affirmative defense of procedural default pursuant to Practice Book § 23-30 (b) as to count two. The petitioner did not file a reply to the respondent’s return, pursuant to Practice Book § 23-31.

After a two day trial, in which the petitioner, his trial counsel, the prosecutor in the underlying criminal case and the petitioner’s father testified, the habeas court issued a memorandum of decision. In its memorandum of decision, the court concluded, as to the first count, that the petitioner’s claims that trial counsel’s performance was deficient; see footnote 3; failed pursuant to the principles of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). More specifically, the court determined that as to the petitioner’s claim that trial counsel’s performance was deficient because he failed to apprise the petitioner of the possibility of special parole, “[e]ven if this is true, there was no evidence presented at the habeas trial to support a finding that the petitioner was prejudiced by such representation. . . . Nothing was offered by way of testimony or any other evidence that the petitioner would have abandoned his guilty plea and continued with his trial had he been told that his sentence could include a term of special parole. Additionally, the record before this court is devoid of any evidence that potentially could have changed the outcome of a trial, nor has the petitioner identified an affirmative defense which likely would have succeeded at trial. . . . [Therefore], the petitioner has failed to prove prejudice . . . .” (Citation omitted.)

The court next considered the petitioner’s claim, under the second count, that his guilty plea was involuntary due to a defective plea canvass and the ineffective assistance of counsel, in that neither the trial court nor the petitioner’s trial counsel advised him of the special parole consequence of his guilty plea. The court determined that this claim was procedurally defaulted. The court stated: “[T]he petitioner failed to raise on direct appeal any issues concerning the validity of the plea canvass or the effectiveness of trial counsel with respect to his guilty plea. There is also no evidence in the record that the petitioner made any attempt to withdraw his guilty plea prior to sentencing. This claim has therefore been raised for the first time in the amended habeas petition. Nothing is alleged in the pleadings, nor was offered as evidence at the habeas trial, indicating the cause for the petitioner’s failure to avail himself of these procedural vehicles. Consequently, the petitioner has failed to carry his burden of proving cause and prejudice. This court therefore finds the petitioner’s claim regarding the voluntariness of his guilty plea to be procedurally defaulted.” Accordingly, the court rendered judgment denying the petition for a writ of habeas corpus.

The petitioner filed a petition for certification to appeal from the denial of the petition for a writ of habeas coipus, which the court denied. This appeal followed.

As we read his brief, the petitioner does not challenge the court’s conclusion on the first count, namely, that he failed to provide any evidence that he was prejudiced by his counsel’s alleged deficient performance. We therefore do not consider this determination and confine ourselves to the petitioner’s claim regarding the court’s conclusion as to the second count.

As to the second count, the petitioner claims that the court abused its discretion in denying the petition for certification and improperly concluded that his claim relating to the voluntariness of his plea and ineffective assistance of counsel as to that count was procedurally defaulted. Specifically, the petitioner contends that assistance of counsel and the plea canvass were inadequate in that neither his trial counsel nor Judge Fasano advised him of the possible consequences of his sentence including a term of special parole. We conclude that because the petitioner’s claim under the second count of his petition rested, in part at least, on a claim of ineffective assistance of counsel; see footnote 3; the court improperly denied certification to appeal. We also conclude, however, that on the merits of the petitioner’s claims, as to the second count, the court’s rejection of those claims, on the basis of procedural default, should be affirmed partly on that ground and partly on an alternate ground.

We begin by setting forth the appropriate standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate “that the issues 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.) Id., 616. “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Id., 612.

Furthermore, generally, “[t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .” (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). With this standard of review in mind, we first address the question of whether the court abused its discretion in denying certification to appeal. We conclude that it did abuse its discretion because it improperly determined, at least in part, that the petitioner’s claims were procedurally defaulted.

Recently, our Supreme Court in Johnson v. Commissioner of Correction, 285 Conn. 556, 558, 941 A.2d 248 (2008), addressed the issue of “whether a petitioner seeking a writ of habeas corpus who has not moved to withdraw his guilty plea ... or challenged his plea on direct appeal, is procedurally defaulted from prevailing in a habeas action in which he claims that his trial counsel provided ineffective representation in connection with his plea.” In holding that a claim of ineffective assistance of counsel relating to a guilty plea raised for the first time in a habeas petition is not barred by procedural default, the court reasoned that “[i]f a petitioner can prove that his attorney’s performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for ‘cause’ and will invariably have demonstrated ‘prejudice.’ ” Id., 570. Thus, the habeas court “need not apply the cause and prejudice test ... in determining whether to grant the habeas petition because application of the two-pronged test in Strickland, as modified for guilty plea cases by Hill v. Lockhart, [supra, 474 U.S. 59], accomplishes the same result.” Johnson v. Commissioner of Correction, supra, 571. Under Johnson, therefore, when a habeas petitioner alleges ineffective assistance of trial counsel in connection with his plea of guilty, his failure to move to withdraw his plea or to challenge his plea on direct appeal will not constitute procedural default. Consequently, the habeas court’s conclusion, rendered prior to Johnson, that the second count was procedurally defaulted constituted an abuse of discretion, and, therefore, the petitioner has cleared the initial appellate hurdle under Simms v. Warden, supra, 230 Conn. 616. We therefore turn to the merits of the petitioner’s claim.

The second count of the petition rests on two bases, namely, (1) the trial court’s plea canvass was defective because it did not advise the petitioner of the possibility of special parole and (2) his trial counsel was ineffective because he did not advise the petitioner of that same possibility. Thus, the only thing that this count appears to add to the claim under the first count is the additional claim that the plea canvass was defective. Although, as we have explained, the habeas court improperly concluded that this claim was procedurally defaulted, we nonetheless affirm the habeas court’s judgment in this regard on an alternate basis, namely, that the petitioner did not establish that he was prejudiced by the alleged ineffectiveness of counsel.

“The standard of appellate review of habeas corpus proceedings is well settled. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 597-98, 940 A.2d 789 (2008).

To the extent that the petitioner relies on the claim of a defective plea canvass in the trial court, untethered to his claim of ineffective assistance, the habeas court was correct in its conclusion that the claim is subject to procedural default. A claim of a defective plea canvass is precisely the type of claim that could have been, and should have been, raised either by way of a motion to withdraw the plea before sentencing or by way of a direct appeal. See, e.g., Cobham v. Commissioner of Correction, supra, 258 Conn. 39-40. The petitioner did neither and offers no evidence of cause for this procedural default.

To the extent that the petitioner relies on the claim that his trial counsel was ineffective because he did not advise the petitioner of the possibility of special parole, the claim is no more than a repetition of the claim under the first count, and it fails for the same reason that his identical claim failed under that count of the petition. “ [T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland and Hill. In Strickland . . . the United States Supreme Court determined that [a claim of ineffective assistance of trial counsel] must be supported by evidence estabhshing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. Strickland v. Washington, supra, 466 U.S. 688, 694. The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. Id., 687. Under the test in Hill, in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, supra, 474 U.S. 59.” (Emphasis in original; internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, 285 Conn. 598.

The habeas court determined that the petitioner’s claim that trial counsel’s performance was deficient because he failed to apprise the petitioner of the possibility of special parole failed on the prejudice prong of the Strickland-Hill analysis, namely, that the petitioner failed to show that but for counsel’s errors, he would have chosen to go to trial rather than accept the offered plea agreement. See Hill v. Lockhart, supra, 474 U.S. 59. After a thorough review of the record and transcripts, we conclude that the petitioner has not met this burden. The petitioner did not offer any evidence that he would have continued with his trial and not pleaded guilty had he been informed by trial counsel that his sentence could include a term of special parole. Thus, the petitioner’s claim fails.

The petitioner’s claim under the second count, therefore, consists of two meritless claims. He gains nothing by combining them.

The judgment is affirmed.

In this opinion the other judges concurred.

        “North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), holds that a criminal defendant need not admit guilt, but may consent to being punished as if he is guilty to avoid the risk of proceeding at trial.” State v. Sutton, 95 Conn. App. 139, 140 n.l, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

       More specifically, the petitioner claimed that his trial counsel’s representation was ineffective because: (1) counsel’s advice to accept a plea agreement with no recommended sentence, instead of accepting a plea offer of seven years incarceration, resulted in the imposition of a longer sentence, (2) counsel failed to secure a cap on the sentence to be imposed and (3) counsel failed to apprise him of the possibility that he could be sentenced to a term of special parole. The habeas court rejected the first two claims on both factual and legal grounds, and the petitioner has not challenged those determinations in this appeal. The habeas court also rejected the third claim, which the petitioner does challenge on appeal. We will discuss that claim in this opinion.

       The respondent, the commissioner of correction, asserts that the petitioner did not plead ineffective assistance of counsel in the second count of his amended petition and that therefore, the count contained only a standalone claim of a defective plea canvass. The petitioner contends, to the contrary, that his claim of ineffectiveness of counsel was included in count two. Our examination of the petitioner’s pretrial and posttrial briefs in the habeas court discloses that the respondent is correct, the petitioner presented count two as a stand-alone count alleging a defective plea canvass. Nonetheless, the court considered the petitioner’s involuntary plea claim under count two to include both a claim of ineffective assistance of counsel and a claim that the trial court had provided an inadequate plea canvass. Because we ordinarily “ ‘review a case on the theory upon which it was decided in the trial court’ Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 320, 714 A.2d 1230 (1998); and because the habeas court read the petitioner’s claim under count two to include an ineffective assistance of counsel claim, we do so as well.

       Practice Book § 23-30 (b) provides in relevant part: “The return shall respond to the allegations of the petition and shall allege any facts in support of any claim of procedural default . . . .”

       Practice Book § 23-31 provides: “(a) If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply.

        “(b) The reply shall admit or deny any allegations that the petitioner is not entitled to relief.
      “(c) The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issues despite any claimed procedural default. The replay shall not restate the claims of the petition.”

        Johnson v. Commissioner of Correction, supra, 285 Conn. 556, was decided after both parties filed their briefs in this appeal. Prior to oral argument, the attorneys for both parties were asked to be prepared to address the impact that Johnson might have on this court’s review of the petitioner’s involuntary plea claim. We therefore apply the holding of Johnson to the facts of this case.

       The respondent argues that we should not even consider the merits of this claim because the petitioner did not file a response to the respondent’s pleading alleging procedural default, as required by our rules of practice. See Practice Book § 23-31. The respondent also argues that on the merits, the plea canvass was constitutionally adequate. We need not consider these claims of the respondent because we affirm the habeas court’s judgment on other grounds.