author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOSE RAMON HEREDIA
    (AC 33130)
    Gruendel, Lavine and Foti, Js.
    Argued September 14
    officially released November 27, 2012

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

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Kevin J. Murphy, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Jose Ramon Heredia, appeals from the judgment of conviction rendered after a jury trial of intentional manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1). On appeal, the defendant claims that (1) the state failed to produce independent corroborating evidence for the defendant’s inculpatory statements, and (2) the trial court committed evidentiary and constitutional error by excluding the testimony of a defense witness. We affirm the judgment of the trial court.

This appeal arises from the death of Jose “Cucho” Pagan. The jury reasonably could have found the following facts. On or about the late evening of August 4, 2006, a fight broke out at a party located in Hartford. The disturbance escalated, and eventually gunshots were fired. Several individuals, including Eric Rodriguez, pulled out their guns and fired gunshots in return. As a result of the exchanged gunfire, Rodriguez died of a gunshot wound. Several of Rodriguez’ friends, including the defendant, believed that Raul “Pookie” Robles killed Rodriguez. The defendant and several others drove to the hospital after the shooting to check on Rodriguez. Edwin Ramos, a passenger in the vehicle, testified that the passengers were distraught during the drive and that he overheard the defendant say, “we’re going to get him,” several times; he further testified that he believed the defendant was referring to Robles when he made these statements.

Meanwhile, Robles had contacted his mother, Josephine Almedina, claiming that he had received threatening telephone calls from individuals who believed he was involved with Rodriguez’ death. Almedina advised Robles to come to her home in New Britain. Almedina lived in an apartment located on the second floor of the home, while the victim, Pagan, and his family lived in an apartment located on the first floor of the same home. Robles arrived at Almedina’s home at approximately 4:30 a.m. on August 5, 2006. Shortly thereafter, Almedina and her neighbors heard banging outside followed by a vehicle alarm and saw three individuals running in the area of Almedina’s home. A vehicle then passed in front of the home and gunshots were fired. Witnesses who heard the gunshots testified that they were fired from different types of guns. Robles and Almedina took cover within her home while the gunshots were fired. After the shooting subsided, Almedina and Robles went downstairs to check on Pagan and his family.

Pagan’s sister called 911, and the police arrived shortly thereafter. Upon arrival, the police completed an assessment of the individuals residing in the house and could not account for Pagan. Upon farther investigation, the police found Pagan in the bedroom on the floor with gunshot wounds. He was later determined to be deceased. The subsequent police investigation revealed a total of twenty bullet strikes from two types of guns — one military type weapon and the other a semiautomatic handgun identified as a 0.9 millimeter Makarov. Bullet strikes were found at the victim’s residence, nearby vehicles and a neighboring residence. One of these bullet strikes penetrated the residence and struck Pagan. The next morning, several of Rodriguez’ friends, including the defendant, gathered to light candles at the scene where Rodriguez was shot. An argument broke out regarding who may have been at fault for Rodriguez’ death, and the defendant was overheard stating, “[d]on’t worry about it because we set an example,” and, “that if [Robles] would have come out when . . . they hit on the truck they would have [given] him the whole clip.”

In a three count substitute information, the state charged the defendant with murder in violation of General Statutes §§ 53a-8 and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (1). The jury found the defendant not guilty of murder and conspiracy to commit murder but guilty of the lesser included offense of intentional manslaughter in the first degree with a firearm in violation of § 53a-55a and conspiracy to commit assault in the first degree as charged. The defendant then filed a motion for a judgment of acquittal, claiming that the state had proffered insufficient evidence to sustain the aforementioned conviction. The court denied the defendant’s motion and sentenced him to a total effective term of fifty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that his conviction must be set aside because the state failed to sufficiently corroborate his confessions with independent evidence and, thus, failed to comply with the rule of corpus delicti. Before we can address the merits of the defendant’s corpus delicti claim we must first determine whether the claim is properly before us. It is undisputed that the defendant did not preserve this claim in the trial court. The defendant, however, seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, alternatively, the plain error doctrine embodied in Practice Book § 60-5.

“In Golding, [our] Supreme Court set forth the conditions under which a defendant can prevail on an unpre-served claim of constitutional violation. ... [A] defendant can prevail . . . only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two [prongs of Golding] involve a determination of a whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Citations omitted; internal quotation marks omitted.) State v. McArthur, 96 Conn. App. 155, 165, 899 A.2d 691, cert. denied, 280 Conn. 908, 907 A.2d 93 (2006).

The defendant argues that his claim invokes a constitutional right and may be reviewed by this court in a manner akin to a sufficiency of the evidence claim. In so arguing, the defendant asserts that our appellate courts have left undecided the issue of whether a corpus delicti claim implicates a constitutional right. We disagree.

“Historically, the corpus delicti rule prohibited a defendant from being convicted of a crime on the basis of his extrajudicial confession unless the confession was corroborated by some evidence of the corpus delicti, or the body of the crime .... In its original form, the corpus delicti doctrine required proof from another source that a crime had in fact occurred. See State v. Tillman, 152 Conn. 15, 18, 202 A.2d 494 (1964).

“Over the last fifty years, however, the nature and extent of the corroboration requirement has evolved. Following the decision of the United States Supreme Court in Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954), a number of jurisdictions have abandoned the traditional rule in favor of the trustworthiness doctrine, which emphasizes the reliability of the defendant’s confession rather than the availability of independent evidence of the corpus delicti. Under the trustworthiness doctrine, direct proof of the corpus delicti independent of the defendant’s statements is not required as long as there is substantial independent evidence which would tend to establish the trustworthiness of the [defendant’s] statement. . . . If . . . there is substantial extrinsic evidence tending to demonstrate that the statements of the accused are true, i.e., trustworthy, the statements are admissible. . . . The corpus delicti of the crime may then be established by the statements of the accused and extrinsic evidence considered together. . . . Our Supreme Court [has] adopted the trustworthiness doctrine.” (Citations omitted; internal quotation marks omitted.) State v. McArthur, supra, 96 Conn. App. 164-65.

Our Supreme Court has held that corpus delicti does not implicate a fundamental constitutional right sufficient to satisfy the standard set forth in Golding. In State v. Uretek, Inc., 207 Conn. 706, 543 A.2d 709 (1988), our Supreme Court “summarily rejected a claim that the lack of extrinsic corroboration of an admission that was vital to proving an element of the offense implicated a fundamental constitutional right and, therefore, concluded that such a claim did not qualify for review . . . .” State v. Oliveras, 210 Conn. 751, 756, 557 A.2d 534 (1989); State v. Uretek, Inc., supra, 713 (holding that the defendant’s “corpus delicti claim does not implicate a fundamental constitutional right”). Although our Supreme Court in Oliveras retreated from the holding in Uretek, Inc., by declining to decide “whether [an unpreserved] claim that there was no proof of the corpus delicti . . . would warrant review ... as implicating a constitutional right”; State v. Oliveras, supra, 757; and this court in State v. McArthur, supra, 96 Conn. App. 166, “assume[d] . . . that the defendant’s [unpreserved corpus delicti] claim [was] constitutional in nature” in order reach its merits, Uretek, Inc., has not been expressly overruled. Moreover, our Supreme Court, in State v. Beverly, 224 Conn. 372, 618 A.2d 1335 (1993), classified corpus delicti as “a rule of evidence,” rather than a standard implicating a fundamental constitutional right. (Emphasis added.) Id., 375. Accordingly, we conclude that the defendant has failed to show that his claim is of constitutional magnitude as required by the second Golding prong.

The defendant argues, in the alternative, that his claim may still be reviewed by this court under the plain error doctrine. We disagree. “[T]he plain error doctrine, which is now codified at Practice Book § 60-6 ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, a] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 521-22, 923 A.2d 638 (2007).

In the present case, the state presented independent evidence to corroborate the defendant’s inculpatory statements. In fact, the state presented testimony from multiple witnesses that the defendant made statements pertaining to his involvement in Pagan’s death and that the defendant possessed a handgun similar to the gun used in the shooting. Accordingly, the defendant cannot prevail on his claim that the failure to grant relief will result in manifest injustice. We therefore conclude that the claim is not reviewable under the plain error doctrine.

II

The defendant’s final claim is that the court improperly excluded testimony of a defense witness. Specifically, the defendant claims that (1) the court abused its discretion by improperly excluding the evidence as inadmissible hearsay resulting in a violation of his right to present a defense under the sixth amendment to the United States constitution and (2) the testimony was admissible as extrinsic evidence of a prior inconsistent statement for impeachment purposes.

The following additional facts are necessary to our resolution of this claim. Jason Ramos initially was charged as an accessory to murder and conspiracy to commit murder in connection with the death of Pagan, but he denied any involvement with the crime. Jason Ramos ultimately pleaded guilty to the lesser charge of hindering prosecution before his murder trial commenced. At the defendant’s trial, Jason Ramos testified on behalf of the state that he overheard the defendant make statements indicating his involvement in the shooting that resulted in Pagan’s death. During his testimony, Jason Ramos denied allegations that he admitted to shooting Pagan and celebrated the fact that he had entered a plea to the much lesser charge of hindering prosecution.

The defense then made an offer of proof to present the testimony of Detective Matthew Kelly. Kelly testified that he interviewed Angel Gonzalez, who was housed in the same correctional facility as Jason Ramos. Gonzalez claimed that he had information pertaining to the investigation of Pagan’s murder. During the interview, Gonzalez told Kelly that he had overheard a conversation between Jason Ramos and his cellmate in which Jason Ramos stated that he got away with killing somebody. Gonzalez also told Kelly that he witnessed Jason Ramos make a shooting gesture with his hand while saying that “he beat the rap.” Gonzalez, however, declined to sign a sworn, written statement recounting the interview. Kelly then interviewed Paul Raymond, another inmate housed within earshot of Jason Ramos’ cell, in order to corroborate the facts provided by Gonzalez. Raymond did provide a signed statement corroborating most of Gonzalez’ statements, except that Raymond stated (contrary to Gonzalez) that Jason Ramos did not admit to killing Pagan.

The defendant argued that Kelly’s proposed testimony, although double hearsay, should be admitted under the residual hearsay exception, as it was corroborated by Raymond. The state objected to the admission of Kelly’s proposed testimony on the ground that such testimony constituted inadmissible hearsay not subject to any exception to the rule against hearsay. In conducting its analysis pursuant to the residual hearsay exception, the court found no reasonable necessity to admit Kelly’s proposed testimony because Raymond’s testimony was “substantially similar” to the statement Gonzalez gave to Kelly. The court further concluded that Kelly’s proposed testimony lacked sufficient guarantees of trustworthiness and reliability because (1) Gonzalez refused to swear under oath and sign his statement, (2) the statement the defendant sought to admit was double hearsay and (3) the corroboration offered as an indicia of reliability was also hearsay. The court sustained the state’s objection and ruled that Kelly’s proposed testimony was inadmissible hearsay that failed to meet the requirements of the residual hearsay exception. The defendant took no exception to the court’s ruling.

The defendant first claims that the court erred in refusing to admit Kelly’s proposed testimony pursuant to the residual hearsay exception. In so doing, the defendant also asserts that this ruling deprived him of his sixth amendment right to present a defense. The defendant, however, failed to advance this sixth amendment argument at trial and therefore seeks review of his claim pursuant to State v. Golding, supra, 213 Conn. 239-40. Because the defendant’s constitutional rights were not violated, we conclude that the defendant cannot prevail under Golding.

We initially note that “[a] defendant is . . . bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the [federal] constitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . State v. Winot, 294 Conn. 753, 775-76, 988 A.2d 188 (2010). . . . Thus [i]f the proffered evidence is not relevant [or constitutes inadmissible hearsay], the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 9-10, 1 A.3d 76 (2010); see also State v. Tinsley, 59 Conn. App. 4, 13, 755 A.2d 368 (“The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses. . . . In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure.” [Internal quotation marks omitted.]), cert. denied, 254 Conn. 938, 761 A.2d 765 (2000).

With the foregoing in mind, we must next consider whether the court properly excluded the testimony. “Our standard of review for evidentiary claims is well settled. To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Internal quotation marks omitted.) State v. Davis, supra, 298 Conn. 10-11. “A court’s conclusion as to whether certain hearsay statements bear the requisite indicia of trustworthiness and reliability necessary for admission under the residual exception to the hearsay rule is reviewed for an abuse of discretion.” (Internal quotation marks omitted.) State v. Myers, 126 Conn. App. 239, 247, 11 A.3d 1100, cert. denied, 300 Conn. 923, 14 A.3d 1006 (2011). “The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. . . . Thus [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling[s] [on these bases] .... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] conclude[d] as it did. ... If, after reviewing the trial court’s evidentiary rulings, we conclude that the trial court properly excluded the proffered evidence, then the defendant’s constitutional claims necessarily fail.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Davis, supra, 11.

In the .present case, the court correctly considered the factors enumerated by § 8-9 of our code of evidence, first concluding that there was no reasonable necessity for the testimony, as it was substantially similar to the testimony given by another witness. The court finally concluded that the offered testimony lacked the necessary indicia of reliability because the offered testimony constituted hearsay within hearsay and was corroborated only by other hearsay statements rather than established facts. Furthermore, our Supreme Court has recognized that “[t]he residual hearsay exceptions [should be] applied in the rarest of cases, and the denial of admission under the exceptions can only be reversed for an abuse of discretion.” (Internal quotation marks omitted.) State v. McClendon, 248 Conn. 572, 585, 730 A.2d 1107 (1999). Based on the foregoing, we conclude that the court did not abuse its discretion by excluding the offered testimony as inadmissible hearsay.

Because we have concluded that the court did not abuse its discretion by excluding Kelly’s proposed testimony, the defendant’s constitutional claim must fail. See State v. Davis, supra, 298 Conn. 11 (“[i]f ... we conclude that the trial court properly excluded the proffered evidence, then the defendant’s constitutional claims necessarily fail”). Moreover, this court has noted that “[a hearsay challenge] is a claim of an erroneous evidentiary ruling and as such does not implicate the constitution.” (Internal quotation marks omitted.) State v. Tinsley, supra, 59 Conn. App. 13. We conclude that the defendant’s sixth amendment right to present a defense was not violated and therefore decline to review the defendant’s claim.

Finally, the defendant seeks Golding review of his claim that the court erred in not admitting Kelly’s proposed testimony as extrinsic evidence of a prior inconsistent statement to impeach Jason Ramos’ testimony. Specifically, the defendant asserts that the exclusion of Kelly’s proposed testimony violated his sixth amendment right to present a defense. We disagree. The defendant is asserting an entirely new claim of error, which the court had no opportunity to address at trial. In the present case, the defendant sought to admit Kelly’s proposed testimony solely for its substance pursuant to the residual hearsay exception, and when the court concluded that the proffered testimony constituted inadmissible hearsay the defendant raised no other arguments or objections. It is well settled that “[assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal quotation marks omitted.) State v. Cabral, 275 Conn. 514, 531, 881 A.2d 247 (2005). Furthermore, we are not persuaded by the defendant’s attempt to classify this unpreserved evidentiary claim as constitutional in nature. This court has held that “[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim .... [Ojnce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” (Internal quotation marks omitted.) State v. Robinson, 129 Conn. App. 331, 336-37, 19 A.3d 259 (2011). We decline to review the defendant’s claim, concluding that it fails to rise to the level of constitutional magnitude required by the second Golding prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       Multiple witnesses testified at trial that they saw the defendant in possession of a small handgun similar in appearance to the 0.9 millimeter Makarov used in the shooting.

       Both Oliveras and Uretek, Inc., discussed the reviewability of an unpre-served claim asserting a lack of proof of corpus delicti under the pre-Golding standard set forth in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

       “It is axiomatic that the Appellate Court is bound by Supreme Court precedent and [is] unable to modify it ... . [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) State v. Thomas, 137 Conn. App. 782, 791, 49 A.3d 1038 (2012).

       The defendant also claims that the court’s ruling excluding Kelly’s proposed testimony violated his constitutional rights of confrontation and due process. We decline to address these claims, however, because they are inadequately briefed. “It is well settled that [w]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs.” (Internal quotation marks omitted.) State v. Koslik, 137 Conn. App. 855, 858-59 n.7, 49 A.3d 1067 (2012). In the present case, the defendant’s appellate brief mentions these claims only once, making conclusory assertions without any legal support or analysis.

       Jason Ramos further testified that by pleading guilty to hindering prosecution he could receive a maximum sentence of ten years imprisonment with the right to argue for less time.

       The defendant sought to admit Kelly’s proposed testimony solely under the residual hearsay exception and not as extrinsic evidence of a prior inconsistent statement.

       Raymond subsequently testified on behalf of the defense that although he witnessed Jason Ramos jumping up and down happily, saying that he beat the murder rap, Jason Ramos did not admit to shooting anyone.

       The court noted that Kelly’s proposed testimony constituted double hearsay because “Kelly [would] be testifying as to what Angel Gonzalez said as to what Jason Ramos said.”

       “A statement that is not admissible under any [other hearsay exception] is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.” Conn. Code Evid. § 8-9.

       We disagree with the defendant that preservation of his constitutional claim was “implicit in his argument that the evidence was ‘very, very significant.’ ”

       “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted. . . .
      “These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 408 n.18, 902 A.2d 1044 (2006).


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JASON SCOTT
    (AC 33943)
    Gruendel, Lavine and Mihalakos, Js.

      Argued September 20
    officially released November 27, 2012

      Jason Scott, pro se, the appellant (defendant).

      Melissa L. Streeto, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Maria Sous, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Jason Scott, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the trial court improperly denied his request for counsel to be provided to him in connection with his motion to correct. The state contests our subject matter jurisdiction to hear the defendant’s appeal. The state concedes, however, that if this court has jurisdiction, the matter warrants a remand to the trial court with direction to appoint counsel for the defendant. We disagree that this court lacks jurisdiction; however, we agree that the matter should be remanded, and, accordingly, we reverse the judgment of the trial court and remand the case for the appointment of counsel.

The following facts and procedural history are relevant to our discussion. On October 7, 2008, the defendant pleaded guilty pursuant to the Alford doctrine to attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). On December 5, 2008, the court sentenced the defendant to a total effective term of twenty years imprisonment, execution suspended after ten years, followed by five years of probation.

On January 21,2011, the defendant, representing himself, filed a motion to correct an illegal sentence pursuant to Practice Book §43-22. In his motion, the defendant asserted that his plea “was determined and agreed upon with co-defendants and States Attorney, which was later determined to be relied on nonfactual evidence,” and he argued that due process requires that he be sentenced “on the basis of accurate information . . . .” The defendant’s filing did not include a request for counsel to be appointed to assist him with the motion.

The court denied the defendant’s motion on March 30, 2011; however, the court subsequently vacated its ruling and scheduled a hearing on the defendant’s motion to correct. The court held the hearing on May 16,2011. At the outset of the hearing, the defendant filed an amended motion to correct. The amended motion set forth the defendant’s factual and legal arguments in further detail and stated in the final paragraph: “Defendant asks the Court to provide counsel during present motion hearing. Defendant also asks Court to be present and/or allowed to make oral argument at hearing. [State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007)].” (Casiano request).

After hearing argument on the motion, the court stated, inter alia: “The sentence that was imposed in [the defendant’s] case, prior to the codefendant’s, on the face of it, is a legal sentence for the charges to which he pleaded guilty. The motion to correct is denied.” The court also stated two more times on the record that “the motion [to correct] is denied.” Similarly, in a May 16, 2011 written order on the motion to correct, the court noted: “The foregoing motion having been heard or otherwise presented to the court, it is hereby ordered: Denied.” The court did not mention the defendant’s Casiano request in either its oral or written decisions on the defendant’s motion.

On May 25, 2011, the defendant filed a “motion for rectification/articulation” in this court asking the court “to have the trial court give . . . the reasons [it] denied [the defendant] counsel pursuant to his written request . . . . ” The same day, the defendant also filed a motion for review asking this court to “review and reverse the trial court’s [o]rder denying [him] counsel.” On August 30, 2011, this court dismissed the defendant’s motion for rectification/articulation and ordered, sua sponte, that the “defendant may file a late appeal on or before October 3, 2011, to raise the issue of whether the trial court improperly denied his request for the appointment of trial counsel pursuant to [Casiano].” This appeal followed. The state filed a motion to dismiss the defendant’s appeal for lack of subject matter jurisdiction, arguing that the trial court never ruled on the defendant’s request for counsel, and therefore, that the defendant was appealing a nonexistent ruling. This court denied the motion to dismiss on December 22, 2011.

We begin by addressing our jurisdiction to consider this appeal. The state asserts that the defendant’s appeal is improper because the trial court never ruled on the defendant’s Casiano request, and the defendant, therefore, was not aggrieved by any decision of the trial court. We view this assertion as a renewed challenge to our subject matter jurisdiction. We reject the state’s argument and conclude that we have jurisdiction over the defendant’s appeal. See State v. Pentland, 296 Conn. 305, 311 n.12, 994 A.2d 147 (2010) (stating that “we must address and decide a challenge to our subject matter jurisdiction whenever the claim is raised”).

It is well settled that “the statutory right to appeal is limited to appeals by aggrieved parties from final judgments.” Id. “Aggiievement, in essence, is appellate standing.” (Internal quotation marks omitted.) Hunt v. Guimond, 69 Conn. App. 711, 714-15, 796 A.2d 588 (2002). “We traditionally have applied the following two part test to determine whether aggiievement exists: (1) does the allegedly aggrieved party have a specific, personal and legal interest in the subject matter of a decision; and (2) has this interest been specially and injuriously affected by the decision. . . . Proof of aggiievement is, therefore, an essential prerequisite to the court’s jurisdiction . . . .” (Internal quotation marks omitted.) Id., 715.

The foundation for the state’s aggiievement claim is its contention that the court never decided the defendant’s Casiano request. This argument, which we read as impheating concerns akin to a final judgment challenge, is belied by this court’s decision in Bowden v. Commissioner of Correction, 93 Conn. App. 333, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

In Bowden, the petitioner filed a one count petition for a writ of habeas corpus alleging ineffective assistance of counsel. In his prayer for relief, but not in a separate count, the petitioner requested that “his sentence [be modified to reflect] correct jail [time] credit . . . .” (Internal quotation marks omitted.) Id., 337. The habeas court issued a memorandum of decision denying the petitioner’s claim of ineffective assistance of counsel, but “did not address the jail time credit issue that was mentioned in the prayer for relief.” Id. On appeal, this court addressed its subject matter jurisdiction over the petitioner’s appeal and stated: “We note that the habeas court did not specifically address the jail time credit issue in its memorandum of decision. A judgment that disposes of only a portion of a complaint is not a final judgment. . . . [W]e are mindful that [t]he lack of a final judgment . . . implicates the subject matter jurisdiction of this court. . . . We are satisfied, however, that in the present case, a final judgment exists and that we have subject matter jurisdiction over the present appeal. First, the court stated in its memorandum of decision that it denied the petition. In denying the petition, the court found in favor of the respondent . . . with respect to all of the issues raised. Second, the judgment file states that ‘[t]he court having heard the parties, finds the issues for the respondent’ and that ‘it is adjudged that the petition for [a] writ of habeas corpus is denied.’ Cognizant that every presumption favoring jurisdiction should be indulged ... we conclude that the habeas court denied the entire petition. ... As such, a final judgment exists.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 337 n.6; see also Madagoski v. Commissioner of Correction, 104 Conn. App. 768, 771 n.1, 936 A.2d 247 (2007) (habeas court’s memorandum of decision denying habeas petition constituted final judgment even though decision did not address three counts of petitioner’s habeas petition), cert. denied, 286 Conn. 905, 944 A.2d 979 (2008).

Here, the defendant’s amended motion to correct included a request for the appointment of counsel pursuant to Casiano. In denying the defendant’s motion to correct in its entirety, the court implicitly rejected all of the claims and arguments therein, including the defendant’s Casiano request. See Bowden v. Commissioner of Correction, supra, 93 Conn. App. 337 n.6. The defendant had a specific personal and legal interest in the court’s decision on his motion to correct, and his interest was injuriously affected by the denial of the motion. See Hunt v. Guimond, supra, 69 Conn. App. 715. We, therefore, reject the state’s contention that the defendant improperly has challenged a nonexistent trial court ruling, and we conclude that this appeal is properly before the court for our consideration of the defendant’s claims.

Having determined that we have jurisdiction over the defendant’s appeal, we turn now to the merits of his argument. The defendant contends that the court improperly denied his request for counsel to represent him in connection with his motion to correct an illegal sentence in violation of State v. Casiano, supra, 282 Conn. 614. He asks that we reverse the judgment of the court, and that counsel be appointed for a new hearing on his motion to correct. The state agrees that we should remand this matter to the trial court with direction to appoint counsel for the defendant.

In Casiano, our Supreme Court held that “a defendant has a right to the appointment of counsel for the purpose of determining whether a defendant who wishes to file [a motion to correct an illegal sentence] has a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the denial of that motion.” Id., 627-28. It is undisputed that the trial court did not grant the defendant’s request for counsel to be provided to him in connection with his motion to correct. We therefore remand this matter to the trial court with direction that the court appoint counsel to the defendant for the purpose of determining whether there is a “sound basis” for filing a motion to correct an illegal sentence, and, if such a basis exists, for the purpose of preparing and filing his motion and thereafter pursuing any direct appeal from a denial of that motion. See id., 627.

The judgment is reversed and the case is remanded for further proceedings consistent with the preceding paragraph.

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).

       In the amended motion, the defendant asserted, inter alia, that the state agreed that the defendant would be offered the same plea agreement as his codefendant. His codefendant pleaded guilty to robbery in the first degree, conspiracy to commit robbery in the first degree and violation of probation, and he agreed to accept a sentence of twenty years imprisonment, execution suspended after thirteen years, followed by five years of probation. After the defendant entered his plea under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), and was sentenced, however, his codefendant’s attorney and the state agreed that the state would drop the charge of robbery in the first degree, and his codefendant was sentenced to a lesser term of imprisonment. The defendant argued that his greater sentence violates the terms of his plea agreement and should be corrected to the same sentence as his codefendant.

       Before accepting the defendant’s amended motion at the hearing, the trial court expressed concern that the state had not had the opportunity to review the amended motion in advance of the hearing. The court gave the assistant state’s attorney the opportunity to review the motion and to inform the court whether it contained “any difference in substance that you wish to respond to,” and whether the state wanted to postpone the hearing to a different date. Neither the defendant nor the assistant state’s attorney mentioned to the court during the hearing that the defendant’s amended motion included a request for counsel.

       In Casiano, our Supreme Court held, inter alia, that an indigent defendant has the right to the assistance of counsel in connection with a motion to correct an illegal sentence. State v. Casiano, supra, 282 Conn. 627-28.

       Although the defendant’s appeal form purports to challenge the denial of his motion to correct in its entirety, the only issue he raises in his brief is the court’s denial of his Casiano request. The defendant has not challenged, and we do not address herein, the court’s ruling on the substance of the defendant’s motion to correct.

       We likewise reject the state’s argument that the defendant’s appeal is improper because his only mechanism for review of a denial of a request for counsel is a motion for review under Practice Book § 63-7. Practice Book § 63-7 concerns the appointment of appellate counsel and the waiver of costs, fees and security for indigent defendants in criminal cases. It provides in relevant part that “[t]he sole remedy of any defendant desiring the court to review an order concerning the waiver of fees, costs and security or the appointment of counsel shall be by motion for review . . . .” Practice Book § 63-7. Section 63-7 does not, by its terms, apply to the situation before us — where an indigent defendant has requested the appointment of counsel to represent him in a trial court proceeding. Indeed, the cases cited by the state in support of this argument all concern the denial of requests for the appointment of appellate counsel, and, therefore, they are inapposite here. See State v. Casiano, supra, 282 Conn. 618; State v. Jimenez, 127 Conn. App. 706, 710, 14 A.3d 1083 (2011); State v. Casiano, 122 Conn. App. 61, 71, 998 A.2d 792, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). Because the defendant is not limited to filing a motion for review to challenge the trial court’s denial of his Casiano request, his claim is properly before this court on appeal.


author: LAVTNE, J.

text:
    STATE OF CONNECTICUT v. KADAFIE FERNANDEZ
    (AC 34319)
    DiPentima, C. J., and Lavine and Bear, Js.

      Argued September 21
    officially released November 27, 2012

      William B. Westcott, for the appellant (defendant).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVTNE, J.

The defendant, Kadafie Fernandez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the court improperly denied his motion for a new trial that was predicated on alleged prosecutorial impropriety. We affirm the judgment of the trial court.

This appeal arises from the death of Blake Moore, who was shot at approximately 3:10 a.m. on January 1, 2008, on Pembroke Street in the city of Bridgeport. The jury reasonably could have found the following facts.

Between 10 and 10:30 p.m. on December 31, 2007, Rogsbert King was walking south on Pembroke Street near its intersection with Ogden Street. At that time, she saw the defendant, who was carrying a shotgun, exit a convenience store on the opposite side of Pembroke Street.

Between 9 and 10 p.m. that evening, Moore and his girlfriend, Thea Robinson, arrived at the apartment of Jonalee Lacend, who lived at the comer of Pembroke and Shelton Streets. Moore, Robinson and Lacend left together to attend a New Year’s Eve party in Stratford and returned together at approximately 1 a.m. on January 1, 2008. Thereafter, the three of them and others congregated on the comer of Pembroke and Shelton Streets until approximately 2:30 a.m. when they went into Lacend’s apartment. During the time they were on the comer, two men walked by and one of them bumped into Robinson. Robinson and the man exchanged unpleasant words.

At approximately 3 a.m., Moore and Robinson prepared to leave Lacend’s apartment. Moore exited Lacend’s apartment and crossed Shelton Street where Robinson’s car was parked. Robinson was standing on Shelton Street when two men walked past her. When they were approximately ten feet away, the men stopped and turned toward Robinson. One of the men took a shotgun from under the long coat he was wearing and fired two shots into the air in Moore’s direction. Robinson heard a pumping action between the shots, indicating to her that it was a pump action shotgun. Moore ran from the scene and turned south on Pembroke Street toward Jane Street. The man who had produced and fired the shotgun handed it to the other man and stated “get him, get him.” The man took the shotgun and pursued Moore. Later, at the police station, Robinson identified the defendant as the man who took the shotgun and pursued Moore onto Pembroke Street.

Marlboro Court is a public housing complex on the west side of Pembroke Street between Shelton and Jane Streets. For a number of hours on the night in question, Elizabeth Campos had been sitting near the interior stairwell of Marlboro Court smoking crack cocaine. When Campos heard a gunshot, she opened the stairwell door and saw Moore running south on Pembroke Street toward Jane Street. She also saw the defendant, whom she knew from the neighborhood and who was facing her, carrying a shotgun and running on the sidewalk behind Moore. More than once, she saw the defendant “click it back,” referring to the shotgun, and shoot Moore. Moore collapsed on the ground, and the defendant turned and headed east on Jane Street. Campos went to a pay telephone and called 911.

Carmelo Rivera was a high school student living with his family on the third floor of Marlboro Court. He spent New Year’s Eve and the early hours of New Year’s Day in his brother’s bedroom talking on a portable telephone to his Mend. He was smoking cigarettes near an open window that faced Jane Street. Rivera had seen a man walking on Jane and Pembroke Streets thirty to sixty minutes prior to the shooting. The man, later identified as the defendant, was carrying something big under his white hoodie. While he was looking out the window, Rivera saw the man, then in the company of another man, turn from Jane Street onto Pembroke Street, as well as Moore walking south in the middle of Pembroke Street. One of the men took out a shotgun and fired three shots at Moore. In his statement to police, Rivera stated that Moore was first shot in the leg. The two men then stood over Moore and shot him twice more. Rivera dialed 911 to report the shooting.

Detective Paul Ortiz secured the crime scene to collect evidence. He recovered three spent shotgun shells on the sidewalk on the east side of Pembroke Street close to its intersection with Jane Street. Moore’s body was found in the roadway on Pembroke Street, on the side of the street close to the walkway where the shells were recovered.

On January 11, 2008, Detective Heitor Teixeira went to the home of Sandi Teixeira. The defendant, who was then incarcerated on an unrelated conviction, had informed department of correction personnel that Sandi Teixeira was his contact person. Sandi Teixeira told the detectives that she had been romantically involved with the defendant on and off for several years, but that she had not seen the defendant on New Year’s Eve. At 4:40 a.m. on January 1, 2008, the defendant, who was standing in Sandi Teixeira’s backyard, called her from a cellular telephone she had lent him. Sandi Teixe-ira and the defendant went to a hotel in Milford where they remained until approximately noon, when Sandi Teixeira then took the defendant to his grandmother’s house on Pembroke Street. That evening, Sandi Teixeira and the defendant checked into a hotel in Fairfield, where they remained for several days.

When Heitor Teixeira first met with Sandi Teixeira, she produced a cellular telephone from which the detective downloaded a photograph of the defendant that had been taken on January 1, 2008. Sandi Teixeira met with Heitor Teixeira again on January 20, 2008, and identified a 551 number that appeared frequently on her cellular telephone as the number of the cellular telephone she had lent to the defendant (551 phone). The United States marshal’s office utilized the records of the 551 phone to plot its location throughout the evening of December 31, 2007, and into the morning of January 1, 2008. The records disclosed that the 551 phone was used during those hours in Trumbull at approximately 10:46 p.m. and in New Haven one and one-half hours later. The records further revealed that the 551 phone was used sequentially in West Haven, Milford and Bridgeport, where it was used at 2:56 a.m.

After the jury found the defendant guilty of murder, the defendant filed an amended motion for a new trial and a motion for a judgment of acquittal. The court issued its decision on the motions in a memorandum of decision on February 4, 2010. The court stated that the “basic claim in both motions is that the jury’s verdict was inconsistent with what the defense asserts to be indisputable physical and ballistic evidence and that the prosecutor engaged in misconduct.” When ruling on the defendant’s amended motion for a new trial, the court made the following findings of fact that are relevant to the issues on appeal.

The court found that Pembroke Street generally runs in a north-south direction. Jane, Shelton and Ogden Streets run in an east-west direction and intersect with Pembroke Street. Proceeding from the south to the north on Pembroke Street, one first crosses Jane Street then Shelton Street and then Ogden Street. The ambulance personnel found Moore lying on Pembroke Street near its intersection with Jane Street. The body was lying next to a Toyota automobile that was parked on the east side of Pembroke Street. The police found three twelve gauge shotgun shells on the sidewalk on the east side of Pembroke Street. A pump action shotgun ejects shells to the right; the murder weapon, however, was never recovered.

The court also found that at approximately 3 a.m., Robinson and Moore left Lacend’s house located at the comer of Pembroke and Shelton Streets. Moore walked ahead of Robinson toward her car that was parked on Shelton Street. Robinson saw two men approach Moore. One man removed a shotgun from under his coat and fired two shots in Moore’s direction, but into the air. Between shots, the man racked the shotgun in a fashion consistent with a pump action shotgun. After firing the shots, the man passed the gun to the second man and told the second man to “get him, get him.” Moore fled down Pembroke Street and was pursued by the second man. Robinson lost sight of them. Initially, she ran to Lacend’s door and, then, across the street to her car. She heard more shots. Robinson identified the defendant as the second man who pursued Moore.

Campos was in a multifamily dwelling known as Marlboro Court when she heard a shot and looked out the front door of the building. She saw Moore running in her direction on Pembroke Street, aad the defendant was chasing him. The defendant was on the sidewalk. After she saw Moore collapse in the street, Campos saw the defendant go to Moore and shoot him again. The defendant then left the scene.

Rivera also was in Marlboro Court at the time of the shooting. He was looking out a window that overlooked the intersection of Pembroke and Jane Streets. He saw the shooter and another person confront Moore near the comer. Rivera saw Moore come down the middle of Pembroke Street and the shooter shoot Moore. At the time of the shooting, the shotgun was facing in a generally northerly direction. When police showed Rivera a photographic array, he picked out two photographs that he said “strongly resembled the shooter.” One of those photographs was of the defendant. At trial, Rivera testified that the other photograph “more strongly resembled” the shooter.

With respect to the defendant’s motion for a new trial, the court analyzed the defendant’s claims regarding prosecutorial impropriety as follows. The defendant claimed that the prosecutor made arguments that were contrary to the evidence and encouraged the jury to speculate, failed to present Rivera as a state’s witness and unfairly challenged Rivera’s testimony on cross-examination.

The court did not find that the prosecutor made arguments that were contrary to the evidence or that encouraged the jury to speculate about facts not in evidence. The court found that, during closing argument, the prosecutor pointed out a time gap between Robinson’s observations regarding Moore’s flight and those of Campos regarding the shooting. The court stated that the prosecutor argued that it was possible that during that period of time, in an effort to escape, Moore could have ran into the backyards of buildings on Pembroke Street and then returned to the street. The court further stated that if Moore had done so, the prosecutor argued that Moore’s maneuvers could have resulted in the shooter’s being in a position south of Moore’s at the time the fatal shots were fired.

With respect to legal precedent, the court distinguished the facts of State v. Therrien, 117 Conn. App. 256, 978 A.2d 556, cert. denied, 294 Com. 913, 983 A.2d 275 (2009), which the defendant relied on for a new trial, from the facts of the present case. In Therrien, this court ordered a new trial because the prosecutor invited the jury to engage in “sheer speculation unconnected to [the] evidence.” Id., 272. In the present case, the court found that the prosecutor did no more than suggest a permissible inference the jury could draw, if the jury chose to draw it. The prosecutor did not refer to any facts outside the record, as was the case in Therrien. The court also concluded that, if the prosecutor’s argument was objectionable, it did not require a new trial, in view of the fact that the defendant did not object and the court had instructed the jury with respect to inferences.

With regard to the defendant’s claim that the state did not call Rivera as a witness, the court found that the defendant offered no authority to support his assertion, and the court was unaware of any authority that requires the state, on penalty of a new trial, to call a particular witness. The court also found that it was not improper for the prosecutor to test Rivera’s observations on cross-examination and to comment on his testimony dining final argument. The defendant did not object to the prosecutor’s final argument; see footnote 11 of this opinion; but attempted to use the introduction of Rivera’s testimony to its tactical advantage by arguing forcefully that it was the defendant, not the state, who presented his testimony. The main point, the court found, was that the jury heard Rivera’s testimony and gave it whatever weight it felt it deserved. In sum, the court found that the prosecutor did not engage in impropriety. Additional facts will be addressed as needed.

On appeal, the defendant claims that the court improperly denied his motion for a new trial because the prosecutor was guilty of prosecutorial impropriety by (1) pursuing a theory of liability that was inapposite to the physical evidence of the crime and (2) arguing facts not in evidence. We disagree.

“Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In our review of the denial of a motion for [a new trial], we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion. . . .

“In determining whether there has been an abuse of discretion, eveiy reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Ouellette, 110 Conn. App. 401, 416-17, 955 A.2d 582 (2008), aff'd, 295 Conn. 173, 989 A.2d 1048 (2010).

“To determine whether the court abused its discretion, we must determine whether prosecutorial impropriety deprived the defendant of a fair trial. [I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. John B., 102 Conn. App. 453, 462-63, 925 A.2d 1235, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). “The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial [impropriety].” (Internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 50, 917 A.2d 978 (2007). In this case, we conclude that the prosecutor did not engage in impropriety.

I

The defendant’s first claim is that the court improperly denied his motion for a new trial in concluding that the prosecutor did not comment on matters not in evidence and did not encourage the jury to speculate on events not supported by the record. We do not agree.

The defendant’s claim is premised on his belief that “[t]he state’s theory of liability against [him] hinged on the testimony of . . . Robinson and . . . Campos, establishing by their testimony that the defendant chased [Moore] in a southerly direction down Pembroke Street and shot him as [the defendant] pursued [Moore] toward the point in the block where Jane Street crosses” Pembroke Street. The defendant claims that the prosecutor’s argument was improper because the state was aware of, but did not call, Rivera who testified that the shooter approached Moore from the south, not the north. The defendant argued that Rivera’s version of the facts was the most likely and plausible interpretation given the location of the shotgun shell casings and Moore’s body.

The prosecutor argued, in part, that Rivera’s testimony does not make sense when evaluated alongside the testimony of other witnesses. The prosecutor stated that Rivera “had the individuals coming around Jane Street and . . . Moore walking down the street, whereas . . . Robinson has . . . Moore rounding the comer of Shelton on to Pembroke Street, running, with the defendant behind him. And as I indicated to you early on, we don’t actually know what took place . . . on Pembroke between Shelton and Jane. Perhaps . . . Moore ran down the street, perhaps he had a lead on the defendant and the defendant decided to go another route — behind the yard — there’s been testimony by the police that there’s ways to get from Jane Street or from some of those homes on Pembroke Street to Shelton, to Jane, and vice versa. . . . Rivera himself indicated that there were ways to get there, that he himself had done that as well. . . .

“I’m not suggesting that . . . Rivera didn’t see individuals in the area of Jane and Shelton, because I think it’s substantially clear here that everybody ran from . . . Shelton down Pembroke toward Jane, and that there was testimony that individuals ran down Jane towards Hallett Street. We have that. As I said to you a moment ago, that we don’t know what happened in between. As I said, perhaps . . . Moore had a lead on the defendant and the defendant took a different route to cut him off on Jane Street, and in fact, at that point in time that . . . Rivera sees those individuals . . . and they get into a point — maybe . . . Moore thinks he’s safe at that point. Who knows what he did. He could’ve run down all the way to Jane Street, run back and thought better of it, and then start walking back down Pembroke — again—towards Jane when he was confronted by the defendant or somebody else that was with the defendant.

“As I said to you in my opening remarks, we don’t exactly know what took place on Pembroke Street between Jane and Shelton. We do have a situation here, ladies and gentlemen, that you have to assess the credibility of all the witnesses here, what they said, what they did at the point in time that they gave statements and they spoke to the police, how they acted, reacted, whether they answered questions, whether they didn’t answer questions, what interest do they have in the outcome of the case while they’re here in court.” (Emphasis added.)

In denying the defendant’s motion for a new trial regarding the alleged improper argument, the court found no impropriety, stating: “It is true that the prosecutor, during argument, pointed out that there was a time gap between the observations of . . . Robinson and those of . . . Campos. The prosecutor further argued that it was possible that during that gap, in an effort to escape, [Moore] could have run into the backyards of the buildings on Pembroke Street and then returned to the street. These maneuvers, the prosecutor asserted, could have resulted in the shooter being in a position south of [Moore] at the time of the fatal shots. . . . [T]he prosecutor’s argument did no more than suggest a permissible inference that the jury could draw if it chose. It did not involve the sort of blatant reference to facts outside the record that was the problem in [State v. Therrien, supra, 117 Conn. 256]. Moreover, even if that argument was objectionable, it does not necessitate a new trial — particularly in light of the lack of objection and the court’s jury instructions on inferences.”

On appeal, the defendant argues that there was no indication that the shooter fell behind in his pursuit of Moore and turned to an alternative route and that “the state must deal with the case it has without turning to guesswork to explain the contradictions presented by [Rivera]. . . . Robinson claimed she saw the defendant chase [Moore] down Pembroke Street; and . . . Campos said she saw [Moore] running down Pembroke when he was shot [by] the defendant who was in pursuit behind him. This was the case [the state] elected to put on and prove. The extended scenarios offered to explain away Rivera’s testimony were completely devoid of support in actual evidence.” In other words, the defendant claims that the prosecutor was not permitted to ask the jury to draw reasonable inferences about what happened during the period of time when Robinson saw Moore ran down Pembroke Street, and Campos and Rivera saw him get shot, even though the testimony of each of those individuals was before the jury. The defendant asserts that State v. Fauci, supra, 282 Conn. 50-54, supports his position.

This case and Fauci are distinguishable. In Fauci, the prosecutor, during rebuttal, used the name of a woman not in evidence, which was improper, and asked the jury to conclude that she was the “mystery woman. ” Id., 48-50. Our Supreme Court concluded that there was no evidence by which the jury could conclude logically that the woman was “the mystery woman.” Id., 50. Here, the prosecutor told the jury on more than one occasion that no one knew what happened between the time Robinson saw Moore run down Pembroke Street and the time that Campos and Rivera saw the defendant shoot him. The prosecutor argued to the jury what it reasonably could infer from the conflicting testimony of Campos and Rivera: Campos testified that Moore was shot from the north and Rivera testified that he was shot from the south. The critical evidence is that both Campos and Rivera saw the defendant shoot Moore.

Officer Roderick Doda, who patrolled the east end of Bridgeport, testified that it was possible to travel by foot from Shelton Street south to Jane Street through backyards. Rivera testified that he and his friends had done so.

The gist of the defendant’s argument seems to be that because the state did not call Rivera as its own witness, the evidence that the defendant elicited from him should not have been used by the prosecutor during his final argument. All of the evidence before the jury, regardless of who presented it, was available for the prosecutor to argue and for defense counsel to dispute. It was for the jury to determine which version of the facts to believe. See State v. Picket, 121 Conn. App. 443, 449 n.7, 998 A.2d 125, cert. denied, 297 Conn. 924, 995 A.2d 169 (2010). It is true that the line separating speculation from the drawing of reasonable inferences is sometimes a wavy one. But in this case, we conclude that it was not improper for the prosecutor to ask the jury to consider logical inferences that could be drawn from all of the evidence.

II

The defendant claims that it was improper for the prosecutor to fail to call Rivera as a witness for the state. We do not agree.

The defendant argues that the prosecutor’s failure to call Rivera under the unique circumstances of this case violates the common law-doctrine of State v. Guilfoyle, 109 Conn. 124, 134, 145 A. 761 (1929), even though he acknowledges that the modem interpretation of the doctrine requires only that the state ensure that the defendant is aware of any witness tending to aid in ascertaining the truth as to the relevant facts.

In Guilfoyle, our Supreme Corut stated “the duty of the representative of the [s]tate dictates that the testimony of every available witness tending to aid in ascertaining the truth as to facts relevant to the inquiry be laid before the trial court, irrespective of whether it be consistent with the contentions of the prosecution.” Id. More recently, our Supreme Court has stated that “the Guilfoyle rule is one of disclosure, akin to that of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) . . . .” (Emphasis added.) State v. Tomas D., 296 Conn. 476, 510, 995 A.2d 583 (2010), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 562-64, 34 A.3d 370 (2012). There is no Guilfoyle violation where the defendant is aware of a witness and the potential substance of the witness’ testimony and could take action to procure the testimony of the witness. See id.

In this case, the prosecutor did not deprive the defendant of a fair trial by not calling Rivera, whose ability or willingness to recall certain facts about Moore’s death had become equivocal prior to trial. Defense counsel knew of Rivera, spoke with him on more than one occasion prior to trial, knew the substance of his testimony and presented him as a defense witness. Our conclusion that the prosecutor did not deprive the defendant of a fair trial by not calling Rivera to testify is consistent with this court’s decision in State v. LaFountain, 127 Conn. App. 819, 835-41, 16 A.3d 761 (state had no obligation to produce LaFountain’s police statements until LaFountain met her burden of production regarding defense of duress; see General Statutes § 53a-12 [a]), cert. denied, 301 Conn. 921, 22 A.3d 1281 (2011). In this case, the defendant knew the substance of Rivera’s testimony and put it before the jury. The role of the jury is to determine what testimony to believe. The defendant therefore was not deprived of a fair trial by the prosecutor’s failure to have Rivera testify during the state’s case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant received a sentence of sixty years in the custody of the commissioner of correction.

       Lacend, who was in bed, heard two shots outside her apartment. She got up, looked out her window and saw two men standing on the comer of Shelton and Pembroke Streets.

       Campos did not report what she saw to the police immediately. Fulgencio Rodriguez, with whom Campos had been smoking crack, told Detective Heitor Teixeira that Campos witnessed the shooting. After Campos had been arrested on an unrelated matter on January 25, 2008, Heitor Teixeira questioned her about the Moore shooting. Campos provided a written statement regarding what she saw and selected the defendant’s photograph from a photographic array, identifying him as the shooter.

       Moore was transported to Bridgeport Hospital, where he died shortly before 4 a.m. An autopsy revealed that he died from three wounds inflicted by a large caliber weapon, later determined to be a shotgun. The medical examiner described Moore’s wounds as (1) a through-and-through wound with an entry at the back of the neck and an exit at the right shoulder, (2) an entry at the right shoulder traveling down and to the rear with the slug resting near the spine and (3) an entry at the lower portion of the right leg traveling upward shattering the tibia with the slug coining to rest in the thigh just under the skin.

       Rivera and his friends knew how to move between Shelton and Jane Streets without traversing Pembroke Street by passing though driveways and backyards. He himself had done so.

       Heitor Teixeira and Sandi Teixeira are not related to one another.

       There was testimony that the defendant had been convicted of operating a motor vehicle while intoxicated and operating with a suspended license. He commenced a forty-five day jail sentence on January 5, 2008.

       The court denied the motion for a judgment of acquittal, but the defendant has not raised any claims in that regard on appeal.

       Marshall Robinson, the state’s firearms examiner, testifying in response to a question about whether a shell casing ejected from a pump action shotgun goes right, stated: “It’s going to come out the right side of the gun. Whether it goes forward, straight to the right or to the rear or up, I don’t know, but it’s going to come out the right side of the gun and go somewhere.” The defendant claims that the only way the ejected shotgun shells could have been found on the sidewalk on the east side of Pembroke Street was if the shotgun had been pointing north toward Shelton Street when fired.

       In its brief on appeal, the state argues that the court misconstrued the prosecutor’s argument. The court found that the prosecutor stated that “the victim could have run into the backyards of the buildings on Pembroke Street and then returned to the street.” The transcript indicates that the prosecutor argued, in part: “Perhaps . . . Moore ran down the street, perhaps he had a lead on the defendant and the defendant decided to go another route — behind the yard — there’s been testimony by the police that there’s ways to get from Jane Street or from some of those homes on Pembroke Street to Shelton, to Jane, and vice versa. . . . Rivera himself indicated that there were ways to get there, that he himself had done that as well.” We see no harm. The important evidence, and the inferences to be drawn from the evidence, is that someone who knew how to do it could move from Shelton Street to Jane Street without traversing Pembroke Street.

       “A failure to object demonstrates that defense counsel presumably [did] not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 51, 917 A.2d 978 (2007).

       In its charge, the court instructed in relevant part: “In reaching your verdict, you should consider all the testimony and exhibits received into evidence. Certain things, though, are not evidence and you may [not] consider them in deciding what the facts are. These include the following: arguments and statements by lawyers. The lawyers are not witnesses. What they have said in their closing arguments and at other times is intended to help you interpret evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. . . .
      “You may draw reasonable inferences from the facts in the case. The inferences which you draw, however, must not be from a guess upon the evidence, but they must be from a fact or facts which the evidence has established. In drawing inferences from established facts, you should use your reason and common sense. The inferences which you draw may be — ■ must be logical and reasonable . . . .”

       See footnote 10 of this opinion.

       To the extent that the defendant claims that the state pitted theories of liability against one another, the state consistently pursued the charges against the defendant as the person who shot Moore. The state never asserted as an alternative legal theory that the defendant had been an accessory. The prosecutor merely argued how the defendant could have shot Moore given the evidence before the jury. The defendant’s legal theory claim therefore fails.

       In Tomas D., the defendant claimed that the prosecutor engaged in prosecutorial impropriety by releasing a witness from a subpoena prior to informing defense counsel. State v. Tomas D., supra, 296 Conn. 490, 494. Defense counsel stated that he was unable to subpoena the witness during trial as the witness had left the jurisdiction for vacation; id., 491; but he acknowledged that the substance of the witness’ testimony already was in evidence. Id., 495. Moreover, our Supreme Court determined that the defendant in Tomas D. had failed to exercise due diligence in “exercising his sixth amendment rights”; id., 500; to compel the presence of the witness. Id.

       On cross-examination by the prosecutor, Rivera testified, in part, as follows:
      “Q. Now did you ever see that individual who was walking up and down Jane Street before?

        “A. Well—
      “Q. Before that day?
      “A. Possibly like he looks like any other common person you would see on the street so I might have, I may have not.
      “Q. Do you recall telling the police that you’ve seen him before?
      “A. Yes.
      “Q. Okay. So did you see him before that day?
      “A. No, I said I could have or may have. Now when I gave that police report, like I — I was pretty sure [that] I had but now I can’t remember.
      “Q. Now you can’t remember?
      “A. Yes.
      “Q. Do you recall telling the police that you had seen him walking up and down the street for about three or four days?
      “A. Yes, I think I did.
      “Q. Okay. But, as you sit here today, you don’t independently remember that, do you?
      “A. No.”


author: PER CURIAM.

text:
    INLAND WETLANDS AND WATERCOURSES COMMISSION OF THE TOWN OF WALLINGFORD ET AL. v. LYNNE COOKE ANDREWS ET AL.
    (AC 34329)
    Gruendel, Beach and Sheldon, Js.
    Submitted on briefs September 21
    officially released November 27, 2012

      Lynne Cooke Andrews, pro se, and Jeffrey P. Andrews, pro se, the appellants (defendants), filed a brief.

      Janis M. Small, corporation counsel, filed a brief for the appellees (plaintiffs).
   Opinion

PER CURIAM.

The defendants, Lynne Cooke Andrews and Jeffrey P. Andrews, appeal from the judgment of the trial court rendered in favor of the plaintiffs, the inland wetlands and watercourses commission of the town of Wallingford (commission) and Erin O’Hare, the town’s environmental planner, issuing a permanent injunction and remediation order. The defendants claim that the court (1) improperly failed to consider their takings claim, (2) improperly determined that they could not challenge the orders of the commission from which they had not appealed, (3) erred in prohibiting certain witnesses from testifying and (4) was biased and thus incapable of issuing an impartial decision. We affirm the judgment of the trial court.

The trial court noted the following facts and procedural history. “The defendants . . . are the owners of property located at 216 Northford Road in Wallingford .... On or about August 7, 2009, the . . . commission . . . issued a cease and desist order to . . . Lynn Cooke Andrews ordering that [she] cease activity in the wetlands on the property without a permit from the commission.Lynn Cooke Andrews received said order by certified mail. The order scheduled a special meeting of the commission to be held on August 12, 2009. On August 12, 2009, [Lynn Cooke Andrews] appeared at the meeting of the commission and the cease and desist order was ordered to remain in effect. No appeal from this order was taken to the Superior Court. . . .

“On October 5, 2009, the defendants . . . formally requested a determination from the [commission] that the activities being performed by the defendants ‘are exempt from the Inland Wetlands & Watercourses Act [act], General Statutes § 22a-36 et seq.’ . . . This request was made pursuant to Section 4.5 of the . . . [i]nland [w]etlands and [w]atercourses [regulations of the [t]own of Wallingford [regulations]. . . . Section 4.5 of the . . . regulations provides in relevant part that: ‘[A]ny person proposing to carry out a permitted or non-regulated operation or use of a wetland or watercourse . . . shall, prior to commencement of such operation or use, notify the [c]ommission . . . and provide the [Commission with sufficient information to enable it to determine that the proposed operation and use is a permitted or non-regulated use of the wetland or watercourse. The [Commission or its designated agent shall rule that the proposed operation or use is a permitted or non-regulated use or operation or that a permit is required.’ . . .

“The [commission] held a meeting on December 2, 2009, and it denied the defendants’ request for exemption, and ‘ordered the cease and desist [to] remain in effect until a (proper) application for a farm pond and other proposed activities is submitted which includes a remediation/restoration plan for the disturbed wetlands and the altered stream and provides a relocation area and a relocation plan for the excavated soils.’ . . . The [commission] also held in its decision that ‘the excavated basin is not a farm pond essential to the farming operation.’ . . . These findings and orders were reaffirmed in a ‘Cease and Desist Order/Determination Relative to Exemption’ dated December 8, 2009, which was also sent by certified mail to [Lynn Cooke Andrews]. ... At [the commission’s] meeting on January 6, 2010, the defendants were ordered to complete remediations on the property by June 1, 2010. . . . The defendants did not appeal [from] any of the . . . orders as required under General Statutes § 22a-43. To date, the defendants have failed to remediate the property in accordance with the [commission’s] order, and have, in fact, continued to violate the [commission’s] cease and desist order and have further engaged in additional violations.

“On July 27, 2010, the [commission] issued a second cease and desist order [ordering the defendants to cease further activity on the wetlands property and immediate surroundings]. . . . Once again, the [commission] held a hearing affording the defendants an opportunity to address the commission and the cease and desist order. The defendants did not attend said hearing, and said cease and desist order was upheld. Once again, the defendants did not appeal [from] this second cease and desist order. Moreover, the undisputed record is that the defendants did not appeal [from] either cease and desist order or the determination denying the exemption pursuant to ... § 22a-43.” (Citations omitted.) The plaintiffs commenced this action seeking injunctive relief, an order permitting the inspection of the property by the plaintiffs, civil penalties, an order requiring the defendants to comply with the order to remediate, costs, fees, expenses, attorney’s fees and any other appropriate relief.

In its memorandum of decision, the court stressed that the defendants did not appeal from the decision of the commission that the activities they were performing were not exempt from the act nor from the commission’s first or second cease and desist orders. The court determined that it was the defendants’ obligation to appeal from those orders if they were dissatisfied rather than wilfully to defy and to ignore the orders. The court determined that the equities weighed heavily in the plaintiffs’ favor — the court found the plaintiffs’ witnesses credible regarding severe and ongoing damage to the wetlands and an immediate need for remediation. The court granted the commission’s request for a permanent injunction. The court ordered the defendants to restore the property and detailed how and in what time frame the defendants were to remediate the violations. The court retained jurisdiction over the matter in order to resolve any issues regarding remediation and to make a final determination regarding compliance. This appeal followed.

I

The defendants first claim that the court improperly failed to consider their claim that their farm property had been subject to a per se taking without just compensation. Although the defendants arguably raised a takings claim in their answer to the plaintiffs’ amended complaint, the court did not address the claim directly. Claims that are not addressed or decided by the trial court are not properly before this court. Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996). If the trial court has overlooked a claim, it was the defendants’ responsibility to take appropriate action requesting the trial court to rule; otherwise, we cannot reach the issue. See Mickey v. Mickey, 292 Conn. 597, 609, 974 A.2d 641 (2009) (it is appellant’s responsibility to ask trial judge to rule on overlooked matter). The trial court did not address the takings claim, and the defendants did not take appropriate action to compel a decision by the trial court. We therefore have no record on which to decide this issue.

IT

The defendants next appear to claim that the court improperly determined that they could not challenge the cease and desist orders of the commission because they had failed to appeal from those orders. They argue that, despite their failure to appeal from the commission’s orders, they may continue with their farming activity on their property because they legally do not need permission or a permit according to General Statutes §§ 22a-40, 22a-38, 22a-471b, 19a-341, 22a-349 and 1-1 (q). We are not persuaded.

The court properly determined that, in the circumstances of this case, the defendants could not challenge the orders of the commission in this action because the orders of the commission had become final. The defendants did not appeal from the commission’s determination denying their request for an exemption from the act, nor did they appeal from either of the commission’s cease and desist orders. The proper way to vindicate a legal position is not to disobey the orders, but rather to challenge them on appeal. See Ammirata v. Zoning Board of Appeals, 81 Conn. App. 193, 202, 838 A.2d 1047 (exclusive remedy to object to cease and desist order is to appeal), cert. denied, 268 Conn. 908, 845 A.2d 410 (2004). Having failed to appeal from the commission’s orders, the defendants rendered themselves unable to contest in the trial court the validity of the commission’s orders. See Masayda v. Pedroncelli, 43 Conn. App. 443, 447, 683 A.2d 23 (1996) (“[w]hen a party has a statutory right of appeal from the decision of an administrative officer or agency, he [or she] may not contest the validity of the order if zoning officials seek its enforcement in the trial court after the alleged violator has failed to appeal”).

III

The defendants next claim that the court erred in prohibiting individual members of the commission from testifying. We do not agree.

On October 13, 2011, the defendants sought to introduce testimony from five members of the commission. When asked by the court what, testimony was sought from these witnesses, Lynn Cooke Andrews responded, “I’d like to know why they ruled. If they are all concerned about water, why they would feel that water is not essential for us.” The court asked Jeffrey Andrews if there were any additional questions he wished to ask of the witnesses, to which he responded in the negative. The court then ruled, in response to an objection made by the plaintiffs’ attorney, that the commission members would not be permitted to testify to such issues because the testimony sought to be admitted was not relevant.

“Evidence is admissible only if it is relevant. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. ... It is well settled that questions of relevance are committed to the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Puchalsky v. Rappahahn, 63 Conn. App. 72, 77, 774 A.2d 1029, cert. denied, 256 Conn. 931, 776 A.2d 1147 (2001).

The court did not abuse its discretion in determining that the proposed testimony regarding the need for water was not relevant. The defendants had, on September 8, 2011, elicited testimony from James Vitale, the chairman of the commission, regarding the need of living things for water and the necessity of water regarding the defendants’ farm. In response to an objection posed by the plaintiffs, the court stated that because the defendants had not appealed from the commission’s orders, they could not now relitigate those issues. On the next day of trial, October 13, 2011, the defendants sought to elicit similar testimony from five additional members of the commission. The testimony regarding the need for water sought to relitigate rulings by the commission from which the defendants had not appealed. The commission concluded, in denying the defendants’ request for an exemption from the act and issuing the second cease and desist order, that the excavated basin on the defendants’ property was not essential to the farming operation. See General Statutes § 22a-40 (a) (1) (permits farm pond of three acres or less in wetlands and watercourses if pond is essential to farming activity). Because the defendants did not appeal from the commission’s orders, they could not contest in the trial court the validity of those orders. See Masayda v. Pedroncelli, supra, 43 Conn. App. 447.

IV

The defendants finally claim that the trial court was biased in favor of the plaintiffs’ attorney and was not capable of issuing an impartial decision. The defendants have not properly preserved their claim and state in their reply brief that they did not raise the issue of bias before the trial court. “Claims alleging judicial bias should be raised at trial by a motion for disqualification or the claim will be deemed to be waived. ... A party’s failure to raise a claim of disqualification at trial has been characterized as the functional equivalent of consenting to the judge’s presence at trial.” (Citation omitted; internal quotation marks omitted.) Wendt v. Wendt, 59 Conn. App. 656, 692, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). Accordingly, the defendants cannot prevail on this claim.

The judgment is affirmed.

       The defendants also appear to claim that the court erred in failing, sua sponte, to order a default when some but not all of the eight members of the commission whom the defendants had subpoenaed appeared in court on September 8, 2011. The court indicated that all of the witnesses subpoenaed by the defendants should have been present and continued the case until October 13, 2011. The court did not abuse its discretion in not issuing sanctions. Most of the subpoenaed witnesses appeared the second day of the hearing, and the court ruled properly that the offer of proof showed that the proposed testimony was irrelevant.