text:
    STATE OF CONNECTICUT v. AYISHEA DENSON
    (AC 20754)
    Landau, Schaller and Mihalakos, Js.
    Argued September 25, 2001
    officially released January 29, 2002

      Reine C. Boyer, for the appellant (defendant).

      James M. Ralls, supervisory assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Ayishea Denson, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (2). On appeal, the defendant claims that (1) her conviction under subdivisions (1) and (2) of § 53a-59 (a) constitutes double jeopardy in violation of the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut, (2) the prosecutor’s closing argument deprived her of a fair trial, and (3) the court’s instruction to the jury on reasonable doubt improperly diluted the state’s burden of proof and deprived her of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Some years prior to September, 1998, the defendant was romantically involved with Jermaine Monk. In September, 1998, however, Monk married Nateysha Poindexter (victim). The defendant was distraught about the marriage and expressed her unhappiness in emotional outbursts. One night in October, 1998, the victim, her cousin Anitra Payne, and Shanel Highsmith went to a nightclub in New Haven. While the three were standing near the dance floor, the defendant and some of her friends walked by and bumped the victim and Payne. Payne and the defendant exchanged angry words and were separated by club security personnel.

In 1998, the defendant was employed by Yale-New Haven Hospital, as were Dawn Poindexter, the victim’s mother; Tracey Payne, the victim’s cousin; and Theresa Oliver, the defendant’s neighbor and a friend of the victim’s grandmother. At the hospital on a day following the October nightclub incident, the defendant approached Poindexter, a person to whom she had never spoken. The defendant identified herself, referred to the nightclub incident and told Poindexter that she would “get” the victim.

The defendant’s employment required her to deliver supplies and instruments to various floors of the hospital, which provided her with access to rooms where disposable scalpels were stored. Disposable scalpels come in a variety of colors, but most are green. During November, 1998, Oliver observed the defendant examining scalpels kept in a utility room. Oliver instructed the defendant to leave the scalpels alone. Later in the month, however, Oliver observed a disposable scalpel in the defendant’s apartment. On another occasion, Oliver saw a green disposable scalpel in the defendant’s handbag. The defendant told Oliver that she would “cut that bitch,” referring to the victim.

Late in the evening of December 26, 1998, the victim, Highsmith and Anitra Payne again were in a New Haven nightclub where the defendant and her friends happened to be as well. Once more, the defendant and her friends bumped the victim and her friends. The victim telephoned Tracey Payne to come and mediate the situation because Tracey Payne worked with the defendant and knew some of her friends. At approximately 1:30 a.m. on December 27, 1998, the victim and her friends left the club. Tracey Payne was outside waiting for them. The defendant and her friends left through another door and began to yell at the victim’s group of friends. Angry words were exchanged, but Tracey Payne told the victim to keep walking. The defendant taunted and cursed the victim, and followed her as she walked toward her automobile. The defendant’s friends urged the two to fight. When the victim reached the lot where her vehicle was parked, the defendant attacked her by swinging her hand at the victim’s face. A witness noticed that the defendant was holding a green object. The defendant and the victim fell to the ground and continued to fight until a passerby pulled the victim away.

Police arrived on the scene and summoned medical assistance. The victim was bleeding from her face and neck. After the emergency medical personnel examined the victim, they requested that the ambulance that had been summoned arrive as quickly as possible. The victim was taken to the emergency room at Yale-New Haven Hospital, where she was evaluated as having major trauma due to the nature of her injuries, specifically, the lacerations to her neck and chest. The victim suffered two parallel lacerations diagonally from the upper portion of her neck across her chest to the right. Although the parallel lacerations across the victim’s neck and chest varied in length and depth, they both had uniformly straight margins rather than jagged edges. That type of wound typically is made by a razor rather than a knife. Such an injury is consistent with those caused by a scalpel.

Due to the depth of the lacerations, the physicians who attended to the victim were concerned about the integrity of her airway, esophagus, carotid arteiy and jugular vein. The physicians ordered extensive tests to evaluate the extent of the victim’s injuries. The victim also suffered multiple lacerations to her lip, face, wrist and upper thigh. She underwent surgeiy to repair her wounds and was hospitalized for one and one-half days. She underwent a number of subsequent treatments, including cortisone injections and plastic surgery. As a result of the defendant’s attack, the victim is scarred permanently.

When the defendant and the victim were separated, the defendant noticed that she had a cut on her little finger. After she was arrested, she was taken to the Hospital of St. Raphael, where she was treated and released. While she was being treated, Officer Philip McKnight of the New Haven police department interviewed her as part of his investigation. The defendant told McKnight that she was attacked but could not name her attackers. She also denied cutting the victim. The defendant was charged with multiple criminal violations.

During the summer of 1999, while she was in a local drugstore, Poindexter overheard the defendant identify her to a male companion as the mother of the girl “I cut.” In November, 1999, the defendant was tried and convicted of assault in the first degree with intent to cause serious physical injury with a deadly weapon or dangerous instrument in violation of § 53a-59 (a) (1), and assault in the first degree with intent to disfigure another person seriously and permanently in violation of § 53a-59 (a) (2). The defendant appealed to this court.

I

The defendant first claims that her conviction of two counts of assault in the first degree pursuant to subdivisions (1) and (2) of § 53a-59 (a) constitutes double jeopardy in violation of the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. The defendant concedes that she did not preserve her claim at trial. She may prevail on her claim only if she meets all four prongs of the test enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “[I]f double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable . . . .” State v. Chicano, 216 Conn. 699, 705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). The defendant cannot prevail, however, because her claimed constitutional violation clearly did not exist and did not violate her right against double jeopardy. Her claim thus fails to satisfy the third prong of Golding.

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986). The traditional test for determining whether two offenses are the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Id., 304.” (Internal quotation marks omitted.) State v. Barber, 64 Conn. App. 659, 672-73, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001), citing State v. Chicano, supra, 216 Conn. 706-707. “In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” (Internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990).

The state concedes, and we agree, that the defendant’s double jeopardy claim arose out of the same act, the defendant’s attack on the victim on December 27, 1998. Her claim fails the Blockburger test, however, because we conclude that each of the subdivisions of § 53a-59 (a) with which she was charged requires proof of a fact that the other does not.

The defendant argues that § 53a-59 (a) (2) is a lesser included offense of § 53a-59 (a) (1). “[I]f the two counts stand in the relationship of greater and lesser included offense, then [t]he greater offense is ... by definition the same for purposes of double jeopardy as any lesser offense included in it.” (Internal quotation marks omitted.) State v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979). To resolve the defendant’s claim, we examine the language of the statutes. See State v. Greco, supra, 216 Conn. 290 (“issue, though essentially constitutional, becomes one of statutory construction”).

Section 53a-59 (a) provides in relevant part that “[a] person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury ... he causes such injury ... by means of a deadly weapon or a dangerous instrument-, or (2) with intent to disfigure another person seriously and permanently . . . .” (Emphasis added.) The defendant argues that one cannot commit assault with intent to cause serious physical injury with a dangerous instrument without first committing the offense of assault with intent to disfigure another. The defendant bases her argument on the definition of serious physical injury in General Statutes § 53a-3 (4), which provides that “ ‘[sjerious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” She concludes that the element of permanency in § 53a-59 (a) (2) is linguistically identical to the element of serious loss in § 53a-3 (4). We do not agree.

When construing statutes, “we must start with the language employed by the legislature. . . . Generally, when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . . The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed.” (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 371-72, 743 A.2d 653 (2000).

Using those rules of statutory construction, we conclude that subdivisions (1) and (2) of § 53a-59 (a) each set forth elements that the other does not. Only subdivision (1) requires that a person intend to cause serious physical injury by means of a deadly weapon or a dangerous instrument. Only subdivision (2) requires that a person intend to disfigure another permanently. The use of two different words indicates that the legislature intended to differentiate between the types of harm a person can cause. It is entirely possible to cause serious physical injury without causing disfigurement or a permanent injury. The defendant provides no legal authority, and we know of none, for her proposition that the word permanent is linguistically identical to the term serious loss. Furthermore, the defendant’s proposition flies in the face of the language used by the legislature in subdivision (2), which provides that a person must intend to disfigure “seriously and permanently.” (Emphasis added.) General Statutes § 53a-59 (a) (2). By using the conjunction and, the legislature revealed its intention that seriously and permanently are two separate elements of the crime.

“The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them. . . . In addition, the court must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature. . . . Further, we must presume that when the legislature uses different language, the legislature intends a different meaning of one statute from the other.” (Citations omitted; internal quotation marks omitted.) State v. Harris, 32 Conn. App. 831, 840, 632 A.2d 50 (1993), appeal dismissed, 230 Conn. 347, 644 A.2d 911 (1994).

Finally, this court has at least twice before concluded without a Blockburger analysis that serious physical injury does not require that the injury be permanent. State v. Aponte, 50 Conn. App. 114, 121, 718 A.2d 36 (1998), rev’d on other grounds, 249 Conn. 735, 738 A.2d 117 (1999), citing State v. Rumore, 28 Conn. App. 402, 415, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). The legislature is presumed to be aware of the interpretation that courts have placed on existing legislation. We presume that the legislature’s failure to amend the statute in response to our interpretation is acquiescence in our interpretation. See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 300, 777 A.2d 645 (2001) (Zarella, J., concurring in part and dissenting in part). The defendant’s double jeopardy claim therefore must fail.

II

The defendant’s second claim is that the prosecutor’s comments during closing argument deprived her of a fair trial. Specifically, the defendant claims that the prosecutor impermissibly commented on the credibility of the defendant and her witnesses, and on the defendant’s right to remain silent. The defendant did not preserve her claim at trial and seeks to prevail on appeal pursuant to the Golding doctrine. We will review the defendant’s claim because the record is adequate for our review and the claim is of constitutional magnitude. The defendant cannot prevail on her claim, however, because it fails to satisfy the third prong of Golding.

The following facts are relevant to our review of the defendant’s claim. At trial, the defense theory was misidentification. The defendant testified in her defense that she did not slash the victim, but that she had a “pretty good idea” who did it. During cross-examination, the defendant admitted that although she had a “pretty good idea” who cut the victim, she never revealed the identity of that person to the police. The defendant and two defense witnesses also testified that they never gave statements to the police identifying who injured the victim. McKnight, who investigated the incident, testified that the defendant denied cutting the victim, but did not identify the perpetrator. None of the defendant’s friends who were with her at the time of the altercation gave statements to the police, and none of the witnesses who testified on behalf of the defendant identified the person who injured the victim.

During his closing argument to the jury, the prosecutor asked the jury to consider the credibility of the defendant and two of her witnesses by commenting on their testimony. The prosecutor also argued that the defendant testified that she thought she knew who slashed the victim but did not reveal that person’s name at trial.

To determine whether the defendant’s claim of prosecutorial misconduct clearly existed and deprived the defendant of a fair trial, “we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant. ... In doing so, we have focused on several factors, [i]ncluded among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. . . .

“We do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted. . . .

“Prosecutorial misconduct can occur in the course of closing argument. . . . Counsel, in addressing the jury, must be allowed a generous latitude in argument, including the zeal of counsel in the heat of argument. . . . Ultimately, the determination of the proper scope of closing argument lies within the sound discretion of the trial court. . . . We review the allegedly improper comments in the context of the entire trial.” (Citations omitted; internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 90-91, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).

“[A] prosecutor may properly comment on the credibility of a witness where . . . the comment reflects reasonable inferences from the evidence adduced at trial.” (Internal quotation marks omitted.) Id., 93. Defense counsel’s “failure to object to certain arguments at trial often is an indication that counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized.” (Internal quotation marks omitted.) State v. Dillard, 66 Conn. App. 238, 249, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001).

As previously noted, defense counsel did not preserve his claim for appeal by objecting to the prosecutor’s argument or by requesting a curative instruction. The court did not intercede on the defendant’s behalf to caution the prosecutor or to instruct the jury. On the basis of our review of the prosecutor’s closing argument, we conclude that the prosecutor’s remarks at issue were not improper. The prosecutor did not attack the credibility of the defendant, her sister and her friend by expressing his personal opinion. He commented on their testimony in evidence and asked the members of the jury to apply their everyday experience in assessing the credibility of the witnesses, including the defendant. Furthermore, the state’s case was strong, given the eyewitness testimony implicating the defendant in the assault.

The defendant also claimed that the prosecutor’s comment concerning her refusal to identify the perpetrator of the crime violated her right to remain silent. We disagree.

“It is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965).” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 653, 783 A.2d 511 (2001). “When reviewing a claim that the prosecutor’s comments violated a defendant’s fifth amendment right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the

accused to testify? . . . Further, in applying this test, we must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury. . . . Finally, [w]e also recognize that the limits of legitimate argument and fair comment cannot be determined precisely by rule and line . . . .” (Internal quotation marks omitted.) Id., 654.

In the present case, the defendant elected to testify on her behalf. She testified, in part, that she did not cut the victim and that she thought she knew who did. On cross-examination, the defendant admitted that she had an idea who slashed the victim, that she knew she was being arrested for the crime, but that she never told the police who she thought actually committed the crime. The essence of the defendant’s claim is not that the prosecutor commented on her failure to testify, but rather on the fact that once having decided to testify, she failed to reveal the identity of the person whom she believed had committed the crime.

“It is elementary that a defendant who elects to testify in his own behalf is subject to cross-examination and impeachment just as is any witness. . . . [I]t is proper to attack a witness’ credibility by evidence of his materially inconsistent statements.” (Citations omitted; internal quotation marks omitted.) State v. Vega, 163 Conn. 304, 306-307, 306 A.2d 855 (1972). “Having voluntarily taken the [witness] stand, [the defendant] was under an obligation to speak truthfully and accurately, and the prosecution [may] utilize the traditional truth-testing devices of the adversary process.” (Internal quotation marks omitted.) Id., 307.

The United States Supreme Court decided the issue claimed here long ago in the case of Caminetti v. United States, 242 U.S. 470, 493, 37 S. Ct. 192, 61 L. Ed. 442 (1917), which was cited by our own Supreme Court in State v. Fienberg, 105 Conn. 115, 134 A. 228 (1926). It is “the accused’s privilege not to take the [witness] stand at all, in which case, of course, no comments could be made upon his failure or refusal to take the [witness] stand, and also he had the privilege of even taking the [witness] stand and confining his testimony to matters which he desired to testify to, and that he could not be cross-examined as to matters not covered by his direct testimony. ... A defendant is not required under the law to take the witness-stand. He cannot be compelled to testify at all, and if he fails to do so no inference unfavorable to him may be drawn from that fact, nor is the prosecution permitted in that case to comment unfavorably upon the defendant’s silence; but where a defendant elects to go upon the witness-stand and testify, he then subjects himself to the same rule as that applying to any other witness, and if he has failed to deny or explain acts of an incriminating nature that the evidence of the prosecution tends to establish against him, such failure may not only be commented upon, but may be considered by the jury with all the other circumstances in reaching their conclusion as to his guilt or innocence.” (Internal quotation marks omitted.) Id., 120-21.

Here, the prosecutor’s closing argument concerning the defendant’s failure to reveal the name of the individual who she believed had committed the crime after she put the issue into evidence was entirely proper. His remarks constituted fair comment on the evidence and the inferences the jury was entitled to draw from it. His comment amounted to a rhetorical question. He asked the jury to apply its common sense to the situation in which an individual who was under arrest for allegedly having committed a serious crime and who believed that someone else had committed the crime would not identify the alleged criminal to the police. The prosecutor merely challenged the defendant’s credibility, and his comment did not constitute misconduct.

Ill

The defendant’s third claim is that when instructing the jury, the court diluted the state’s burden of proof by improperly defining reasonable doubt. The defendant failed to preserve her claim at trial by submitting a request to charge or by excepting to the court’s charge. We will review the defendant’s claim under Golding because the record is adequate for our review and the claim is of constitutional magnitude. State v. Morant, 242 Conn. 666, 686-87, 701 A.2d 1 (1997); State v. Green, 62 Conn. App. 217, 242, 774 A.2d 157 (unpreserved challenge to jury instruction regarding reasonable doubt satisfies second prong of Golding), cert. granted on other grounds, 256 Conn. 927, 928, 776 A.2d 1147, 1148 (2001). The court’s instruction here, however, did not dilute the state’s burden of proof, and therefore the defendant’s claim does not satisfy the third prong of Golding.

The defendant challenges the following portion of the court’s charge. “Proof beyond a reasonable doubt is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” The defendant claims, citing State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955), that the following language states more accurately the reasonable doubt standard: “It is, of course, true, as the defendants maintain, that any conclusion, reasonably to be drawn from the evidence, which is consistent with innocence of the accused must prevail.” We do not agree.

“In reviewing a constitutionally based challenge to the court’s instruction to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction.” State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993). “It is well settled that a jury instruction is to be examined in its entirety, and that the test to be applied is whether the charge as a whole presents the case to the jury so that no injustice will be done. . . . The jury instruction in this case, viewed as a whole, adequately instructed the jury concerning reasonable doubt. The instruction clearly informed the jury that the burden to prove the defendant’s guilt beyond a reasonable doubt rested entirely on the state at all times. Specifically, the instruction advised the jury that the evidence must be so sufficient that it would leave no room in your minds for any reasonable hypothesis of the innocence of the accused . . . [and it] must exclude every reasonable supposition of innocence .... The instruction described the concept of reasonableness by noting that reasonable doubt is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and more important matters relating to your own affairs. In explaining the concept of proof beyond a reasonable doubt, the instruction directed that it is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion. This language, taken as a whole, was adequate to apprise the jury of the heavy burden on the state and the defendant’s presumption of innocence.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 818-20, 709 A.2d 522 (1998).

Here, the language of the court’s charge is almost identical to the language identified by our Supreme Court in Hines as the language necessary to convey the definition of reasonable doubt to a jury. Taken as a whole, the court’s instructions to the jurors in this case did not mislead them as to the state’s burden of proof and the defendant’s presumption of innocence. The defendant therefore cannot prevail on her claim of instructional impropriety.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical iryury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person . . . .”

       “Although the Connecticut constitution has no specific double jeopardy-provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy.” State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). The defendant failed to provide a separate analysis of her state constitutional claim. See State v. Alvarez, 257 Conn. 782, 785 n.6, 778 A.2d 938 (2001). We therefore deem the claim abandoned. See State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999); State v. Williams, 64 Conn. App. 512, 520-21 n.3, 781 A.2d 325, cert. granted on other grounds, 258 Conn. 911, 782 A.2d 1251 (2001).

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

       “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. . . . Double jeopardy protection against cumulative punishments is only designed to ensure that the sentencing discretion of the courts is confined to the limits established by the legislature.” (Citations omitted; internal quotation marks omitted.) State v. Greco, supra, 216 Conn. 292-93.

       For a discussion of the development of General Statutes § 53a-59 (a) (2) from common-law mayhem, see State v. Woods, 25 Conn. App. 275, 278-80, 594 A.2d 481, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991).

       The prosecutor argued in part: “I want to again comment on the issue of credibility of witnesses because it is important. Later . . . [the court] is going to give you some instructions about credibility of witnesses. Listen to those instructions carefully, particularly concerning the instructions concerning the defendant’s credibility in this case. She is just like any other witness in this case. She’s entitled to your due consideration and fair treatment. But you have to bear in mind she has a direct, very important interest in the outcome of this trial unlike any other witness in this case. And that’s a consideration that you very well should take into consideration when you’re determining what [the defendant] is.
      “How else do you go about determining her credibility? Well, you know one of the things about credibility is ... if the story remains the same, if it is consistent, you can say to yourself, well, she’s being truthful. All of us have had experiences with young children. You ask them what happened, and suddenly they will tell you one thing and then five or ten minutes later, maybe the next day, suddenly they are telling you something else, and you can say to yourself, wait a second, are [they] trying to pull a fast one?
      “Now, the inconsistent stories that she has given to you and the New Haven police are very telling. The night right after the incident, when she was talking with Officer McKnight at St Raphael’s, what does she say about the incident? I was attacked by a number of unknown assailants or unknown people. And yet when she gets on the witness stand, suddenly she’s rattling off names. Oh, it was Anitra Payne, Tracey Payne, Shanel Highsmith, it was the victim, everyone was on me. Suddenly, she has her melee. I don’t know how, but somehow, after eleven months, her memory suddenly has come back to her. And yet when Officer McKnight was at St. Raphael’s Hospital that night and the defendant knew that she was under arrest for some serious assault charges, Officer McKnight asked her, and asked her more than once, ‘Do you know who cut Nateysha Poindexter Monk?’ I have no idea. It wasn’t me. I have no idea. And yet when she got on the witness stand the other day, suddenly she says now, ‘Well, I believe I know who it is.’ We never find out who that was from her.
      “Anyhow, does that make any sense? I mean, you’re in the hospital, arrested for seriously cutting someone up, and the police ask you who did it; believe me, if you had any idea whatsoever who was responsible for that victim’s injuries, that would have been the first thing out of your mouth. You would have said, look, you got the wrong person. I believe it is another person. You tell the police whatever information you had if you thought it was going to get you out of a difficult situation. You give the police that information so they can follow up, so they can investigate. The defendant never did that. No, she comes in here now, gets on the [witness] stand and wants you to believe, well, it is this person but I can’t tell you, can’t tell you who that is. She’s a real stand-up person. She is going to taire the weight for this thing and let this other person who she thinks was involved go.
      “What about the defendant’s sister and her good friend, Melissa Johnson. They both testified here during the course of the trial. You had an opportunity to see them and hear them. What that amounted to is two people, her sister and a good friend, trying to come in and help her out. Obviously, they are biased in her favor because one, as I said, is a sister and the other is a close friend. Ask yourselves, if you were either one of those two women, if you were a friend with the defendant or if you were her sister and you were out there that night in that parking lot, and you were out there while this assault was going on and you were out there after it finished, and you were out there when the New Haven police got there and you saw the police putting either your sister or your good friend in that police car, and you knew that she was under arrest for some serious assault charges, wouldn’t you have said something to the police? Of course you would if you had helpful information and you were there and you knew that she didn’t have anything to do with it; you would have said something immediately.
      “Did either of those people ever go down to the New Haven police department at any point in time? Did they ever talk to any police officer? They didn’t do that, either. What they did, is they come in at the last minute in a last-ditch attempt, here’s our effort to try to help her out. It is kind of curious that they could take the time to come down here to court and be asked questions on the [witness] stand, but they couldn’t take the time the night of the incident to talk to any New Haven police officer or they couldn’t take the time at any point in time to ever go down to the New Haven police station to give a statement.”

       The following cross-examination of the defendant by the prosecutor is relevant to our analysis:
      “Q. Let me ask you this, Miss Denson, did Officer McKnight ask you, the night of this incident, did he ask you who cut Nateysha Poindexter Monk?
      “A. Yes, he asked me because he knows me.
      “Q. He does know you?
      “A. Yes, he does.
      “Q. And what did you tell him when he asked you that question as to who cut Nateysha Poindexter Monk?
      “A. I told him that I didn’t know.
      “Q. But you just told us on the stand today that you have a pretty good idea who did it?
      “A. I think so.
      “Q. Didn’t you give Officer McKnight that information?
      “A. No.
      “Q. You didn’t?
      “A. No.
      “Q. You knew that Nateysha had been seriously cut, didn’t you?
      “A. Yes.
      “Q. You knew that you were being arrested for doing this, right?
      “A. Yes.
      “Q. And you believe that you knew or possibly knew who was responsible, correct?
      “A. I think so.
      “Q. But you didn’t tell him?
      “A. No.

        “Q. You just kept that to yourself, true?
      “A. Yes. I told my lawyer.”

       The court charged the jury on reasonable doubt as follows: “The law says that the state must not only prove her guilty, but must prove her guilty beyond a reasonable doubt. It is not enough for the state to make out a case of probable guilt, but the burden on the state, which never shifts, is to prove the defendant guilty beyond a reasonable doubt.
      “It is not required that the state prove the defendant guilty beyond all possible doubt. The burden of proving her guilty beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the defendant. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your minds for any reasonable explanation of the innocence of the accused.
      “Proof of guilt beyond a reasonable doubt must exclude every reasonable supposition of innocence, but it need not exclude every possible supposition of innocence. A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation or coqjecture or an imaginary doubt. A reasonable doubt is not a captious or frivolous doubt, nor is it a doubt which is raised by the ingenuity of a juror and unwarranted by the evidence, nor is it a doubt prompted by sympathy for the defendant. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence.
      “Absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt. A reasonable doubt is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs. Proof beyond a reasonable doubt is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion.”

         Foord relies on State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761 (1929), in which the standard was defined: "To warrant a judgment of guilty the evidence must be such as to establish the guilt of the accused beyond a reasonable doubt, and any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused, must prevail.”

        State v. Hines, supra, 243 Conn. 796, concerned a claim of instructional impropriety related to the state’s burden of proof. In State v. Hines, supra, 817, our Supreme Court quoted State v. Dash, 242 Conn. 143, 698 A.2d 297 (1997), for the proposition that not every claim of instructional impropriety is of constitutional magnitude and, thus, such nonconstitutional claims fail to meet the second prong of Golding. Unlike Hines, however, Dash concerned a claim of instructional impropriety related to credibility. State v. Dash, supra, 150-51. Our Supreme Court distinguished constitutional from nonconstitutional claims of improper jury instructions in State v. Dash, supra, 152.

       “In explaining the concept of proof beyond a reasonable doubt, the instruction directed that it ‘is proof wholly consistent with the defendant’s guilt and inconsistent with any other rational conclusion.’ This language, taken as a whole, was adequate to apprise the jury of the heavy burden on the state and the defendant’s presumption of innocence.” State v. Hines, supra, 243 Conn. 820.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL RUSSELL
    (AC 20627)
    Lavery, C. J., and Schaller and O’Connell, Js.

      Argued December 3, 2001
    officially released January 29, 2002

      William B. Westcott, special public defender, for the appellant (defendant).

      Joseph T. Corradino, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Paul Russell, appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1) and (2). The defendant claims that the court improperly admitted prior consistent statements made by the minor victim through the testimony of Melanie Kmetz, an employee of the state department of children and families. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the summer of 1998, the defendant engaged in sexual misconduct with the victim, who was eight and one-half years old, while baby-sitting for the victim in the defendant’s home. On October 15, 1998, the victim told her mother that the defendant had kissed her on the mouth. The following morning, the victim’s mother questioned the victim further, and the victim revealed that the defendant had “touched her front.” After school, the victim’s mother took the victim to the defendant’s home, where the victim spoke privately with the defendant’s wife regarding her allegations. Later that day, the victim’s mother took the victim to the hospital, where Jeffrey Moorman, a physician, examined the victim and, as part of his diagnostic assessment, discussed with her the defendant’s alleged misconduct. On October 22, 1998, the victim was interviewed by Kmetz.

During his cross-examination of the victim, defense counsel asked the victim if she understood what a he was, if she ever had lied and if she had spoken to the prosecutor about the case before her direct testimony and after her initial testimony on cross-examination. The prosecutor objected to counsel’s line of questioning, and the court excused the jury.

Outside the presence of the jury, defense counsel acknowledged that he intended to explore the issue of pretrial preparation and the extent to which it might have affected the victim’s recollection. The prosecutor responded that he did not object to such questions, but would ask the court at some future time to admit prior consistent statements that the victim had made to Kmetz for the purpose of rehabilitation. The prosecutor argued that this was necessary because defense counsel’s questions as to the victim’s preparation for her courtroom testimony constituted an attack on the victim’s credibility, and he wanted to show through the prior consistent statements that her story had not changed following her discussions with the prosecutor. The defense demurred, arguing that questions relating to how a child witness was prepared, how many times the child met with the prosecutor and how many times the child talked with the prosecutor about the case do not constitute an attack on the child’s credibility, and that his questions were not intended to establish the victim’s bias or prejudice. Rather, the questions would show whether pretrial preparation requiring the victim to “hash and rehash” her story “a bunch of times” had affected the “clarity” of her memory about the incident. After hearing the arguments of counsel, the court stated that it was “inclined to rule in favor of the state,” and the jury returned.

Defense counsel then queried the victim regarding her pretrial preparation with the prosecutor, including whether the prosecutor had asked her questions and had showed her any papers, written material or pictures to remind her “what the answers should be.” Counsel also elicited testimony from the victim that the prosecutor had told her that defense counsel believed that she was lying.

Later in the trial, Kmetz took the stand to give detailed testimony regarding the victim’s description of her encounters with the defendant and where in his home the encounters occurred. Defense counsel objected to the admission of this testimony, and the court excused the jury. Defense counsel argued that he had not attacked the victim’s credibility and that cases where the court had permitted the admission of prior consistent statements were distinguishable on their facts from the present case. The prosecutor disagreed. After a lengthy colloquy, the court ruled in favor of the state, and defense counsel requested a limiting instruction. The court then permitted the testimony of Kmetz as a prior consistent statement for rehabilitation purposes.

Thereafter, the jury returned a verdict of guilty on the two counts of risk of injury to a child, and the court sentenced the defendant to a total effective sentence of ten years, execution suspended after six years, followed by fifteen years of probation. This appeal followed.

The defendant now concedes that “it is indeed true that [defense counsel] painted preparation with the prosecutor as a discrediting influence” at trial. He claims, however, that “[t]he entire process [the victim] was subject to — and not just the small piece in preparation of trial — formed the theory of memory taint presented by the defendant.” According to the defendant, this process began “long before the state prepared [the victim] for trial” and included undue influence by family members prior to the victim’s interview with Kmetz. He argues that counsel’s cross-examination of the victim was merely “part of a larger theme going to the entire history of [the victim’s] disclosures against the defendant,” and he now contends that the purported consistent statements should not have been admitted because they were “part of the taint process . . . [and] not part of the rehabilitation of such a claim.”

“Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. ... To permit a party to raise a different ground on appeal than was raised during trial would amount to trial by ambuscade, unfair both to the trial court and to the opposing party. . . . We have consistently refused to consider evidentiary rulings not properly preserved. Where the issue raised for the first time on appeal is a matter of state evidentiary law, rather than of constitutional significance, this court will deny the defendant appellate review.” (Citation omitted; internal quotation marks omitted.) State v. Romero, 59 Conn. App. 469, 477, 757 A.2d 643, cert. denied, 255 Conn. 919, 763 A.2d 1043 (2000).

In the present case, the prosecutor argued at trial that the purpose of admitting the prior consistent statements was to rehabilitate the victim following defense counsel’s attack on the victim’s credibility through questions regarding the victim’s pretrial preparation with the prosecutor. Defense counsel’s objection to the admission of the testimony of Kmetz was premised solely on the ground that the questions that he had asked the victim did not raise doubts about her credibility. Counsel never argued that the disputed testimony should not be admitted because it might have been tainted by the victim’s prior discussions of the incident with family members or others. This claim is, therefore, raised for the first time on appeal. Accordingly, we decline to review this unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”


text:
    STATE OF CONNECTICUT v. CAESAR O’NEIL
    (AC 21590)
    Lavery, C. J., and Schaller and O’Connell, Js.

      Argued December 3, 2001
    officially released January 29, 2002

      Glenn W. Falk, special public defender, with whom, on the brief, was Laura G. Holland, law student intern, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Stephen J. Sedensky III, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Caesar O’Neil, appeals from the judgments of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), attempt to commit murder in violation of General Statutes § 53a-49 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (l), and criminal attempt to tamper with a witness in violation of General Statutes §§ 53a-49 (a) (2) and 53a-151 (a). On appeal, the defendant claims that the trial court improperly (1) admitted evidence of his flight as consciousness of guilt and (2) instructed the jury on reasonable doubt. We affirm the judgments of the trial court.

The following facts are necessary for our disposition of the defendant’s appeal. During the early morning hours of June 25, 1993, two shootings involving the same weapon occurred in Bridgeport within a brief period of time. One of four individuals occupying a car fired a gun from the rear passenger seat, hitting two men, Rafael Rodriguez and Juan Miles. Rodriguez died from the injuries he sustained, and Miles was injured by a bullet that went through his leg. Shortly thereafter, a second shooting occurred. Donald Vernon, while attempting to use a pay telephone, was hit by a bullet that came from the rear passenger seat of a car that was identical to the one involved in the earlier shooting.

The investigation that followed led the police to suspect the defendant as the shooter in both incidents. From 1993 through 1997, the Bridgeport police department, including its fugitive task force, attempted to locate the defendant, without success. On March 14, 1997, the defendant was arrested in connection with the June 25,1993 shootings. He was charged with murder as a result of the first shooting, and attempt to commit murder and assault in the first degree as a result of the second shooting.

While the defendant was incarcerated and awaiting trial, officials at the Walker Reception Center intercepted a coded letter that he had sent to his mother. The letter, when deciphered, informed the defendant’s mother to get a message to one of the defendant’s associates. The defendant attempted to establish an alibi for the time of the shooting and to make sure that Vernon did not testify. Subsequently, the defendant was charged with criminal attempt to tamper with a witness. The state filed a motion to consolidate all the charges against the defendant, and he was tried and convicted on each count. Additional facts will be discussed as relevant to the issues on appeal.

I

The defendant first claims that the court improperly admitted evidence of flight that was irrelevant and more prejudicial than probative. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. For the three years after suspecting the defendant as the shooter in the June 25, 1993 incidents, the police attempted to apprehend the defendant. In addition to utilizing their fugitive task force, the police went to the defendant’s mother’s house in an attempt to locate him.

During the trial, the state attempted to introduce the testimony of inspector John Donovan. The state intended to use Donovan’s testimony to show the efforts he made while searching for the defendant from 1994 through 1997. Those efforts, the state argued, supported the issue of flight and showed that the defendant was conscious of his guilt. The court did not permit Donovan to testify, holding that at that point in the trial, the proposed testimony’s prejudicial effect outweighed its probative value.

Later in the trial, the court permitted the state to call Officer Juan Gonzalez to testily that he was a member of the fugitive task force and that he executed a search warrant at the defendant’s mother’s house in 1996 in an attempt to apprehend the defendant. It is the defendant’s contention that it was improper for the court to permit the introduction of that testimony when there was no evidence introduced at trial to establish that he knew that he was being sought by the police.

A

“Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Eveiy reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 85, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).

“[R]elevant 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 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.” (Internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 54, 770 A.2d 908 (2001).

“Flight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Internal quotation marks omitted.) State v. Holmes, supra, 64 Conn. App. 86.

In this case, evidence of the defendant’s flight was relevant. “It is relevant to show the conduct of an accused . . . which may be inferred to have been influenced by the criminal act.” (Internal quotation marks omitted.) Id. It can easily be inferred that the defendant’s absence from his home for a period of three years could have been influenced by his criminal acts. Hence, the court did not abuse its discretion in admitting the evidence of the defendant’s flight.

B

The defendant’s claim that the evidence should have been excluded because it was more prejudicial than probative is without merit.

“The court must weigh the probative value against any prejudicial effect on the defendant. . . . Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) Id.

The defendant’s claim that the evidence should have been excluded because the state failed to establish that he knew the police wanted to speak to him is without merit. We recently rejected a similar argument in State v. Holmes, supra, 64 Conn. App. 80. In Holmes, the defendant claimed that the trial court incorrectly permitted an inference of flight when the state did not offer any evidence to show that he was aware that the police were looking for him. Id., 86-87. In that case, the trial court, relying on State v. Hyslop, 10 Conn. App. 457, 523 A.2d 1350 (1987), and State v. Nemeth, 182 Conn. 403, 438 A.2d 120 (1980), permitted the state to introduce the testimony of a police sergeant who testified that on several occasions he left his business card at a location where the defendant was thought to have resided with instructions to call the police department because he was wanted for questioning. State v. Holmes, supra, 83-84.

In upholding the court’s decision, we stated that “Nemeth and Hyslop articulate the principle that the state is not required, as a matter of law, to establish that the defendant had actual knowledge that he was being charged with a criminal offense before introducing evidence of his flight. . . . The court properly relied on Nemelh and Hyslop in allowing the state to present evidence of the defendant’s flight even if the state failed to introduce direct or inferential evidence that the defendant knew that he was wanted by the police.” (Internal quotation marks omitted.) Id., 87.

On the basis of our review of the transcripts and evidence, we cannot reason that the court abused its discretion in determining that the evidence of flight was more probative than prejudicial, nor can we conclude that an injustice was done.

II

The defendant’s second claim is that the court committed plain error in using the phrase “[n]or is it a doubt suggested by the ingenuity of counsel” in response to a jury question on the definition of reasonable doubt. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. During its initial charge to the jury, the court defined reasonable doubt. While deliberating, the jury asked for “[t]he judge’s legal definition of reasonable doubt.” In response to the jury’s inquiry, the court read a different explanation to the jury, which was agreed on by both parties’ counsel. In defining reasonable doubt, the court stated that reasonable doubt is not “doubt suggested by the ingenuity of counsel.” The defendant claims that the use of that phrase constituted plain error.

The defendant did not raise his claim at trial and now seeks to have us review it under the plain error doctrine. “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . Moreover, because the claim raised here is nonconstitutional, the defendant must demonstrate that the trial court’s improper action likely affected the result of his trial.” (Citation omitted; internal quotation marks omitted.) State v. Solman, 67 Conn. App. 235, 239-40, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002). In this case, the instructions, when read in their entirety, did not result in an unreliable verdict or a miscarriage of justice.

Our Supreme Court has consistently rejected constitutional challenges to the “ingenuity of counsel” instruction. See State v. Delvalle, 250 Conn. 466, 475, 736 A.2d 125 (1999); State v. Edwards, 247 Conn. 318, 330, 721 A.2d 519 (1998); State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). In Delvalle, our Supreme Court rejected the claim that the use of the “ingenuity of counsel” language constituted plain error, stating that “[w]e see no reasonable possibility that the challenged language, when viewed in the context of the charge as a whole . . . resulted in juror misunderstanding regarding the state’s burden of proving the defendant’s guilt beyond a reasonable doubt.” (Citation omitted.) State v. Delvalle, supra, 474-75. Our Supreme Court noted, however, that the phrase, when “taken in isolation, conceivably could misdirect the jury’s attention . . . .” (Internal quotation marks omitted.) Id., 475. To avoid the possibility of juror confusion, our Supreme Court has invoked its supervisory authority over the administration of justice to direct our trial courts to refrain from using the “ingenuity of counsel” language in the future. Id., 475-76.

In this case, the court did not use the contested phrase in isolation. The instruction clearly stated that whether reasonable doubt existed or not must be justified by the evidence. The phrase “ingenuity of counsel,” when modified by the phrase “or any of the jurors which is not justified by the evidence,” indicated to the jury that “doubt may not be created by an argument of counsel or other jurors that is ingenious, but has no basis in the evidence.” (Internal quotation marks omitted.) Id., 475, quoting State v. Hines, 243 Conn. 796, 819 n.18, 709 A.2d 522 (1998).

Although we do not condone the trial court’s use of the “ingenuity of counsel” language in its explanation to the jury, which occurred after the Delvalle decision was published, the defendant failed to raise that issue at trial. Furthermore, the defendant’s attorney specifically agreed to the language that was read to the jury. In light of the defendant’s acquiescence at trial and a long line of decisions by our Supreme Court stating that use of the phrase “ingenuity of counsel” does not give rise to constitutional claims, plain error review is not warranted in this case. Although the court should have avoided the language in question, we conclude that the instructions did not affect the fairness or integrity of the proceedings, nor did they result in a manifest injustice to the defendant.

The judgments are affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does . . . anything which, under the circumstances as he believes them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-59 (a) (1) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon . . .

       General Statutes § 53a-151 provides in relevant part: “A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to . . . withhold testimony ... or absent himself from any official proceeding.”

       The defendant was sentenced to a total effective term of seventy-five years in prison. He received fifty years for murder, twenty years each for assault in the first degree and attempt to commit murder, to run concurrently to each other and consecutively to the murder sentence, and five years for criminal attempt to tamper with a witness, to run consecutively to the murder sentence and the concurrent sentences for attempt to commit murder and assault in the first degree. The entire seventy-five year sentence is to run consecutively to a seventy-year sentence he presently is serving for another murder and for attempt to commit murder.

       The court’s initial charge to the jury stated: “Reasonable doubt. It’s not doubt raised by one questioning simply for the sake of doubt. It’s not surmise. It’s not guess. It’s not speculation or doubt that is not founded upon the evidence or lack of evidence in the case. It’s not a hesitation that arises from feelings of sympathy or pity for anybody who’s involved in the case. Reasonable doubt is one that is reasonable in light of all the evidence. It’s a real doubt. It’s an honest doubt, and it’s entertained by you only after a thorough examination of all of the evidence that’s produced during the trial. An absolute demonstration of guilt is not required to convict. The demonstration need only be beyond a reasonable doubt. The state doesn’t have to prove every issue or every fact that comes into issue in the case. It’s only the essential elements of the crimes that I will go over with you a little bit later that must be proven beyond a reasonable doubt.”

       The following colloquy took place between the court and counsel:
      “The Court: For that, I’m going to read from our textbook prepared by Borden and Orland, which is different from the explanation initially given. I understand that it’s acceptable to both of you gentlemen; is that not correct?
      “[Defendant’s Counsel]: Yes, Your Honor.
      “[Prosecutor]: Yes, Your Honor.”

       The complete definition of reasonable doubt given to the jury stated: “I gave you an explanation in my original charge. I’m going to give you a little bit different form of an explanation that is a prepared explanation in a textbook prepared by judges that are far more accomplished than I am. . . . Reasonable doubt has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word reasonable. Reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or surmise. It is not conjecture or fanciful doubt. A reasonable doubt is not doubt which is raised by someone simply for the sake of raising doubt. Nor is it a doubt suggested by the ingenuity of counsel or any of the jurors, which is not justified by the evidence or lack of evidence in the case. Reasonable doubt is a doubt based upon reason and not on the mere possibility of innocence. It is a doubt for which you can in your own mind consciously give a reason. Reasonable doubt, in other words, is a real doubt. It’s honest doubt. A doubt which has its foundation in the evidence or lack of evidence. It is the kind of doubt which in the serious affairs which concern you in everyday life you would pay heed and attention to. Of course, absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you can return a verdict of guilty. The state does not have to prove guilt beyond all doubt or to a mathematical or absolute certainty. What the law does require, however, is that after hearing all of the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of the jury a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of the doubt and acquitted. If there is no reasonable doubt, then the accused must be found guilty. Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt; is consistent with guilt and is inconsistent with any other reasonable conclusion. If you can in reason reconcile all of the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty. That is the explanation which is a textbook explanation given on reasonable doubt.” (Emphasis added.)

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       See footnote 7.


author: Per Curiam.

text:
    IN RE DIANIS M.

    (AC 20593)
    Lavery, C. J., and Schaller and Flynn, Js.
    Argued October 29
    officially released November 27, 2001

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

   Per Curiam.

The judgments are affirmed.


text:
    STATE OF CONNECTICUT v. CHARISSA WILLETTE
    (AC 20532)
    Lavery, C. J., and Mihalakos and Shea, Js.
    Argued October 15
    officially released November 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    DAMIAN I. IRIZARRY, JR. v. COMMISSIONER OF CORRECTION
    (AC 20422)
    Schaller, Mihalakos and Daly, Js.
    Argued October 16
    officially released November 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. STEPHEN FREEMAN
    (AC 20326)
    Lavery, C. J., and Flynn and Daly, Js.
    Argued October 25
    officially released November 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    DARRELL ATKINSON v. COMMISSIONER OF CORRECTION
    (AC 20163)
    Foti, Dranginis and Flynn, Js.
    Argued October 23
    officially released November 27, 2001
   Per Curiam.

The appeal is dismissed.


text:
    JOHN BAIRD v. MATTHEW LUDWIG
    (AC 21238)
    Foti, Schaller and Mihalakos, Js.
    Argued October 25
    officially released November 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    VICTOR MERCIER v. DEPARTMENT OF MOTOR VEHICLES
    (AC 21034)
    Lavery, C. J., and Schaller and Daly, Js.
    Submitted on briefs November 1
    officially released November 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    DESMOND WHYTE v. COMMISSIONER OF CORRECTION
    (AC 20658)
    Lavery, C. J., and Schaller and Daly, Js.
    Submitted on briefs November 1
    officially released November 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RICHARD LANGSTON
    (AC 19960)
    Foti, Flynn and O’Connell, Js.
    Argued October 30
    officially released November 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    SANDY BROOK APARTMENTS, LLC v. PETER HASIK
    (AC 21703)
    Dranginis, Flynn and O’Connell, Js.
    Submitted on briefs November 1
    officially released November 27, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DONALD MOODY
    (AC 21050)
    Foti, Mihalakos and Flynn, Js.
    Argued November 27, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MATTHEW GAYESKI
    (AC 21276)
    Schaller, Mihalakos and Shea, Js.
    Argued November 28, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. WILLIAM WARREN
    (AC 21157)
    Foti, Mihalakos and Daly, Js.
    Argued December 6, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    MICHAEL C. REDDICK v. COMMISSIONER OF CORRECTION
    (AC 20777)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs December 13, 2001
    officially released January 8, 2002
   Per Curiam.

The appeal is dismissed.


text:
    KAREN HARPIE v. P. JOSEPH HARPIE
    (AC 20956)
    Lavery, C. J., and Landau and Freedman, Js.
    Argued December 12, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. VICTOR DOS SANTOS
    (AC 20984)
    Lavery, C. J., and Foti and O’Connell, Js.
    Argued December 10, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    ROBERTA GERARDI v. ROBIN YORK
    (AC 21173)
    Landau, Schaller and Hennessy, Js.
    Argued December 7, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    INDUSTRIAL MOLD AND TOOL, INC. v. ZALESKI SNOW-GUARDS AND ROOFING SPECIALISTS, INC., ET AL.
    (AC 21678)
    Schaller, Dranginis and Flynn, Js.
    Submitted on briefs December 13, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT LEE, JR. v. EVA RUSSO
    (AC 21866)
    Schaller, Dranginis and Flynn, Js.
    Submitted on briefs December 13, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    STANLEY DABROWSKI v. STARCO OF NEW BRITAIN, INC.
    (AC 21625)
    Schaller, Dranginis and Flynn, Js.
    Submitted on briefs December 13, 2001
    officially released January 8, 2002
   Per Curiam.

The judgment is affirmed.


text:
    WILFREDO M. RAMOS v. COMMISSIONER OF CORRECTION
    (AC 21012)
    Dranginis, Flynn and Daly, Js.
    Argued December 13, 2001
    officially released January 15, 2002
   Per Curiam.

The judgment is affirmed.


text:
    LANTERN PARK CONDOMINIUM ASSOCIATION v. MARY R. HUMPHREY ET AL.
    (AC 21485)
    Landau, Mihalakos and Dupont, Js.
    Submitted on briefs December 13, 2001
    officially released January 15, 2002
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    HOWARD ODOM v. HELEN ODOM
    (AC 20989)
    Landau, Mihalakos and Dupont, Js.
    Submitted on briefs December 13, 2001
    officially released January 15, 2002
   Per Curiam.

The judgment is affirmed.


text:
    JONATHAN STONE v. LAUREN H. WINER ET AL.
    (AC 14314)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs December 13, 2001
    officially released January 15, 2002
   Per Curiam.

The judgment is affirmed.


text:
    TERRANCE STEVENSON v. COMMISSIONER OF CORRECTION
    (AC 20860)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs December 13, 2001
    officially released January 15, 2002
   Per Curiam.

The trial court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. EDWIN ADAMES
    (AC 21072)
    Lavery, C. J., and Foti and O’Connell, Js.
    Argued December 10, 2001
    officially released January 15, 2002
   Per Curiam.

This case is controlled by State v. Davis, 190 Conn. 327, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983).

The judgment is affirmed.


text:
    FLOYD WILLIAMS v. COMMISSIONER OF CORRECTION
    (AC 21334)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs December 13, 2001
    officially released January 15, 2002
   Per Curiam.

The trial court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.


text:
    BRUCE E. WOODS v. SONSECHORAY WOODS
    (AC 21634)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs December 13, 2001
    officially released January 15, 2002
   Per Curiam.

The judgment is affirmed.


text:
    KATHY STEWART v. KENNETH TERSAVICH ET AL.
    (AC 21268)
    Lavery, C. J., and Foti and O’Connell, Js.
    Submitted on briefs December 10, 2001
    officially released January 15, 2002
   Per Curiam.

The judgment is affirmed.


author: FLYNN, J.

text:
    MELVIN MITCHELL v. COMMISSIONER OF CORRECTION
    (AC 19689)
    Schaller, Flynn and O’Connell, Js.
    Argued September 17, 2001
    officially released January 25, 2002

      Lisa J. Steele, special public defender, for the appellant (petitioner).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, George Ferko, assistant state’s attorney, and JoanK. Alexander, former supervisory assistant state’s attorney, for the appellee (respondent).

       January 25, 2002, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FLYNN, J.

The petitioner, Melvin Mitchell, appeals following the denial by the habeas court of his petition for certification to appeal, filed pursuant to General Statutes § 52-470 (b), from the denial of his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal because the habeas court denied him his statutory right to counsel and his constitutional right to self-representation by its handling of his oral request to represent himself at the habeas proceeding, (2) failed to determine that trial counsel's failure to investigate an element of the victim’s statement made the petitioner’s trial less reliable and fundamentally unfair and constituted ineffective assistance, and (3) failed to determine that trial counsel’s failure to challenge the starting point of the trial court’s excludable time calculations deprived the petitioner of a dismissal for violation of his federal constitutional right to a speedy trial and constituted ineffective assistance. We dismiss the appeal.

The following facts and procedural history are relevant to this appeal. In 1995, after a trial to a jury, the petitioner was convicted of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) and three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). He was sentenced to a total effective term of twenty-five years in prison. This court affirmed his conviction. State v. Mitchell, 54 Conn. App. 361, 738 A.2d 188, cert. denied, 251 Conn. 910, 739 A.2d 1250 (1999), cert. denied, 528 U.S. 1171, 120 S. Ct. 1197, 145 L. Ed. 2d 1101 (2000).

The petitioner filed an amended petition for a writ of habeas corpus alleging ineffective assistance of trial counsel. After an evidentiary hearing, the court denied the petition by memorandum of decision. Thereafter, the petitioner requested certification to appeal. The court denied that petition as frivolous. This appeal followed.

We first set forth certain legal principles that guide us in our review. “Faced with a habeas court’s denial of a petition for certification to appeal [under § 52-470 (b)], a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Whyte v. Commissioner of Correction, 53 Conn. App. 678, 682, 736 A.2d 145, cert. denied, 250 Conn. 920, 738 A.2d 663 (1999).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis added; internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999).

The petitioner claims that the habeas court abused its discretion in denying certification to appeal because of the manner in which it had handled his oral request to represent himself at the habeas proceeding. We decline to review that claim because it is not predicated on the underlying claim raised in the petition for habeas corpus and, accordingly, it is not properly before this court.

In the present case, the only underlying claim advanced by the petitioner in his petition for a writ of habeas corpus was that of ineffective assistance of counsel. The petitioner does not now claim that the court abused its discretion in denying certification to appeal from the denial of his habeas petition based on ineffective assistance of counsel on the ground that the resolution of that claim is debatable among jurists of reason or could be resolved differently by another court. Instead, the petitioner argues that the court abused its discretion in its handling of his oral request to represent himself at the habeas hearing, an issue that was not presented to the habeas court in the petition, but is raised for the first time on appeal to this court.

Specifically, the petitioner argues that the issue of whether a habeas court is required to canvass a petitioner before allowing him or her to waive the right to counsel at a habeas proceeding is an issue of first impression in Connecticut. He further argues that because issues of first impression are debatable among jurists of reason and a court could resolve such issues in a different manner, the failure to grant certification to raise such issues constitutes an abuse of discretion. See, e.g., Graham v. Commissioner of Correction, 39 Conn. App. 473, 476, 664 A.2d 1207, cert. denied, 235 Conn. 930, 667 A.2d 800 (1995). Accordingly, he argues that the court in the present case abused its discretion in denying his petition for certification to appeal to challenge its alleged mishandling of his request to represent himself because the issue of whether a canvass is required under such circumstances is an issue of first impression that is debatable among jurists of reason and a court could resolve this issue in a different manner. We disagree that the habeas court abused its discretion by failing to grant the petition for certification to appeal on the basis of that issue.

The petitioner’s claim fails even if we assume that the issue of whether and to what extent a habeas court must canvass a petitioner before allowing him to proceed without counsel is an issue of first impression that is debatable among jurists. It fails because it was not an underlying claim in the habeas petition before the habeas court. It is not, therefore, within our scope of review of the habeas court’s decision to deny permission to appeal under § 52-470 (b). Simms v. Warden, supra, 230 Conn. 612, limits our review to the question of whether the court abused its discretion in denying certification to appeal to challenge the issues raised before the habeas court concerning what occurred at the underlying criminal trial. In other words, a petitioner’s claim that the court abused its discretion must be founded on whether the court abused its discretion in denying certification to appeal from its decision with respect to the issues that were the subject of the petition for the writ. See, e.g., Robinson v. Commissioner of Correction, 62 Conn. App. 429, 435-36, 771 A.2d 952 (court abused discretion in denying petition for certification to appeal from denial of petition for writ based on ineffective assistance of counsel because whether counsel should have applied for youthful offender treatment was debatable among reasonable jurists), cert. denied, 257 Conn. 902, 777 A.2d 194 (2002). Here, the petitioner’s claim that the habeas court abused its discretion in failing to grant certification on the basis of its alleged mishandling of his request to proceed pro se at the habeas proceeding was not one of the underlying claims raised in the petition as a ground for granting the writ. Accordingly, we conclude that the petitioner’s claim is outside of our scope of review for purposes of an appeal brought pursuant to § 52-470 (b) because certification to appeal has been denied and the petitioner has failed to satisfy the first prong of Simms v. Warden, supra, 230 Conn. 612.

Furthermore, we fail to see how a court could abuse its discretion in failing to grant a petitioner certification to appeal to challenge an issue that was not first presented to the court and then ruled on by it. “This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993). At the habeas proceeding, counsel for the petitioner did not object to the manner in which the court handled the petitioner’s request to represent himself. Consequently, the habeas court made no ruling on that issue. In addition, the ground alleged in the petition for certification to appeal was simply that “[t]he court erred in denying the petition.” This allegation could in no way apprise the court of the fact that the petitioner was seeking certification to appeal on the basis of the court’s treatment of his self-representation request. Furthermore, although this court granted the petitioner’s motion for review of the habeas court’s denial of his motion for articulation on issues related to the self-representation claim, we denied the relief requested and declined to order an articulation on those issues. We conclude that to review the petitioner’s claims now would amount to an “ambuscade of the [habeas] judge.” (Internal quotation marks omitted.) Id., 14. We decline to engage in such a review.

The petitioner’s final two claims allege ineffective assistance of counsel. We also decline to review those claims because the petitioner has failed to prove, or even to allege, that the court abused its discretion in failing to certify for appeal the denial of his petition for a writ on the basis of these claims. In Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77-78, 712 A.2d 992 (1998), and, subsequently, in Reddick v. Commissioner of Correction, supra, 51 Conn. App. 477, this court refused to review the petitioners’ ineffective assistance of counsel claims. In each of those cases, the petitioner raised the claim of ineffective assistance of counsel but failed to brief the threshold issue, set out as the first prong of Simms, of how the court had abused its discretion in failing to grant certification to appeal as to that underlying claim. We explained that “the mere allegation of a violation of a constitutional right [such as effective assistance of counsel] is insufficient to meet the initial hurdle of proving an abuse of discretion when the habeas court has denied certification to appeal.” (Internal quotation marks omitted.) Reddick v. Commissioner of Correction, supra, 477. The petitioner was required to brief and demonstrate to the appellate tribunal that the denial of certification to appeal to raise one or more issues argued to the habeas tribunal was an abuse of discretion. See id.

The petitioner in the present case, like the petitioners in Petaway v. Commissioner of Correction, supra, 49 Conn. App. 77-78, and Reddick v. Commissioner of Correction, supra, 51 Conn. App. 477, merely alleged that his constitutional right to effective assistance of counsel was violated. He did not allege that the court’s failure to grant certification to review the denial of the habeas petition with respect to that issue constituted an abuse of discretion. We, therefore, decline to review the petitioner’s ineffective assistance of counsel claims because we conclude that they were not properly presented to this court.

Even if we were to conclude that the petitioner had adequately briefed his claim that the court abused its discretion in refusing to grant certification to appeal from the denial of the habeas petition on the basis of his claims of ineffective assistance of counsel, we would nonetheless conclude that the court did not abuse its discretion in denying certification.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000).

In the present case, the underlying claims involve the issue of whether the petitioner was deprived of his sixth amendment right to effective assistance of trial counsel. “For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” Id., citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992).

After reviewing the record, we would conclude that the court had sufficient evidence before it to support its determination that the petitioner failed to prove that trial counsel’s performance fell below an objective standard of reasonableness or that there was a reasonable probability that but for counsel’s allegedly deficient performance, the result would have been different.

The petitioner cannot obtain appellate review under § 52-470 (b) because certification to appeal has been denied and he has failed to meet the first prong of Simms by demonstrating that the habeas court abused its discretion in denying certification to appeal to challenge the issues raised in the habeas corpus petition.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of a crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       An indigent habeas petitioner has a right to counsel pursuant to General Statutes § 51-296 (a).

       As to claims two and three, the habeas court did not find trial counsel to be ineffective in either respect. On appeal, the petitioner has failed to brief how or why the habeas court’s denial of certification to appeal as to these claims constituted an abuse of discretion. Accordingly, we address 1hem only so far as to say that if the petitioner had briefed the issue of how the denial constituted an abuse of discretion, we would not have come to a conclusion different from the one reached by the habeas court.

       Specifically, he claimed that counsel’s performance was deficient in that he failed (1) to cross-examine the victim as to the authenticity of her signature on the statement that she had given to the police despite alleged discrepancies between the signature on that document and other exemplars of her handwriting, (2) to consult with the petitioner on trial tactics and strategy, (3) to argue to the jury that the semen that was found could have been from a person other than the petitioner, (4) to move for a dismissal for lack of a speedy trial, (5) to inform the petitioner of the charges against him, (6) to subpoena defense witnesses that the petitioner believed would provide relevant testimony, (7) to cross-examine the physician who testified at trial adequately concerning the condition and treatment of the victim after the alleged assault, (8) to discuss the advantages and disadvantages of the petitioner taking the witness stand at trial and (9) to subpoena Officer Paul Zoda, who would have provided testimony that was favorable to the petitioner.