author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. MATTHEW BOUTILIER
    (AC 32207)
    Robinson, Bear and Dupont, Js.

      Argued October 20, 2011
    officially released February 14, 2012

      Jodi Zils Gagne, special public defender, for the appellant (defendant).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anne Mahoney, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Matthew Boutilier, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that (1) the trial court’s denial of two motions, which requested the court to “direct the [commissioner of the department of correction] to deliver the defendant into the supervised custody of his attorney,” violated the defendant’s constitutional rights, (2) the trial court abused its discretion in denying the defendant’s motion to allow the jury to view the crime scene and (3) prosecutorial impropriety deprived the defendant of his right to a fair trial. We affirm the judgment of the trial court.

The following evidence was elicited at trial. In January, 2008, the defendant and his girlfriend, Katie Krantz, lived together in a house in Hartford. On the evening of January 11, 2008, Krantz and her friends, Becky Ramos and Yajaira Aponte, went to the home of a neighbor where the women drank alcohol. Ramos and Krantz also smoked marijuana and took ecstasy pills. At approximately 1 a.m., after returning home from a bar, the defendant went to the neighbor’s house to retrieve Krantz. Krantz invited Ramos and Aponte to come to the house she shared with the defendant and their three children, who were not at home that night. Ramos and Aponte arrived at the house, and, subsequently, the three women decided to go out to purchase snacks and cigars. Krantz and Ramos intended to hollow out the cigars and fill them with marijuana so that they could continue to smoke marijuana. Krantz told the defendant of their plans to go out to purchase the cigars, and the defendant became angry, telling Krantz that he did not want her to leave the house. The defendant yelled at Krantz and said that, if she left the house, she should not come back. Krantz left with Ramos and Aponte, leaving her keys to the house on a table.

As the three women walked away from the house, the defendant threw some of Krantz’ clothes outside onto the driveway. Ramos returned to the house to confront the defendant for his behavior. The defendant, who had gone inside and locked the door, unlocked the door and let Ramos into the house. Ramos and the defendant began arguing. Krantz and Aponte returned to the house and went inside. The argument between Ramos and the defendant became physical, and the two struggled in the kitchen in front of a door that led to a basement staircase. The defendant retrieved a .357 caliber revolver from a nearby shelf and shot Ramos in the head, killing her. Aponte ran across the kitchen, toward a telephone on the wall, and the defendant shot her in the chest. Aponte tried to escape through the back door of the house but, finding it locked, ran back toward the kitchen. The defendant met Aponte in the hallway and shot her a second time, at close range. Aponte survived her injuries. At trial, the defendant admitted to shooting Ramos and Aponte, but claimed that he believed they were going to harm him and that he had acted in self-defense.

The defendant was found guilty by a jury of one count of assault in the first degree in violation of § 53a-59 (a) (5) and one count of criminal possession of a firearm in violation of § 53a-217 (a) (1), and was sentenced to a total effective term of twenty-seven years of incarceration. This appeal followed. Additional facts will be set forth as they become necessary.

I

MOTIONS FOR RELEASE FROM CUSTODY

The first portion of the defendant’s appeal concerns the court’s denial of two motions requesting the defendant’s temporary release from the custody of the department of correction so that he could (1) visit the crime scene with his attorney and (2) participate in a mock jury preparation session. The defendant claims that the court’s denial of these motions violated his constitutional rights. We affirm the judgment of the court.

The following additional facts are relevant to our resolution of the defendant’s claim. The defendant was held on a $2 million bond following his arrest. Thereafter, he remained in the custody of the department of correction. On August 31, 2009, the defendant made two oral motions to the court. The first motion sought permission for his temporary release from the custody of the department of correction into the supervised custody of defense counsel so that the defendant could visit the crime scene with his attorney. The second motion sought the defendant’s temporary release for the purpose of attending a mock jury preparation session to be arranged and orchestrated by his attorney. The court reserved judgment on the motions, instructing the defendant to submit them in writing. On September 9, 2009, prior to the start of trial, the defendant filed a “Motion for Nontestimonial Evidence” wherein he moved the court to “direct the [commissioner of the department of correction] to deliver the defendant into the supervised custody of his attorney” so that he could “assist his attorney in his defense by inspecting and photographing the premises of the alleged crime . . . .” On September 10, 2009, the court denied both of the defendant’s motions. The court noted that defense counsel, “by way of oral amendment,” had incorporated the defendant’s request to attend the mock jury preparation session into the defendant’s written “Motion for Nontestimonial Evidence.”

On appeal, the defendant claims that the court’s ruling violated his sixth amendment rights to the effective assistance of counsel, to present a defense and to confront witnesses against him. The defendant argues that his claim presents a mixed question of law and fact and that our review should therefore be plenary. The state urges us to review the trial court’s decision under the abuse of discretion standard.

It is axiomatic that, as an appellate court, the function performed by the trial court in issuing its ruling will dictate the scope of our review. State v. Saucier, 283 Conn. 207, 219, 926 A.2d 633 (2007) (en banc). The scope of appellate review depends on a proper characterization of rulings made by the trial court. If the court has made findings of fact, appellate review concerns whether those findings were clearly erroneous. If the court has made conclusions of law, our review is plenary, and we must decide whether those conclusions are legally and logically correct and supported by the facts in the record. Beneduci v. Valadares, 73 Conn. App. 795, 801, 812 A.2d 41 (2002). The trial court in the present case never reached the question of whether a denial of the defendant’s motions would effectuate a violation of his constitutional rights, but based its denial on security concerns attendant to his release from custody.

The “Motion for Nontestimonial Evidence” at issue is not the usual motion for evidence made by a party to litigation to view premises involved therein. Rather, it is a motion made by an incarcerated defendant to temporarily be released from the custody of the department of correction in order to view a crime scene with his attorney and participate in a mock jury preparation session while in the supervised custody of his attorney, without the existence of any pertinent rule or regulation of the department of correction governing the situation.

The defendant argues that the court’s denial of his motions effectuated a violation of his constitutional rights. However, he has failed to identify any constitutionally protected right directly implicated by the court’s ruling. In its oral decision, the court did not discuss or conclude that any constitutional right or rights of the defendant were involved in its denial of his motions. Furthermore, the defendant has not challenged any regulation of the department of correction as being unconstitutional. The defendant argues that his claim on appeal raises an issue of first impression before the appellate courts of Connecticut. He maintains that his claim is analogous “to the arguments made in many habeas cases . . . that prison officials are impeding on prisoners’ constitutional rights under the guise of safety concerns” and cites Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), in support of his argument. Turner is not analogous to the present case, nor does it control our resolution of the defendant’s claim. In contrast to Turner, the defendant’s appeal does not involve a challenge to any rulings, regulations or procedure set forth by the department of correction. Indeed, the department of correction’s view, if any, on the defendant’s motions for temporary release from its custody was not made known to the court.

The court did not review any regulation or statute in denying the defendant’s motions, and no argument was made to the court citing any regulation or statute. The court did not draw any conclusions of law requiring a plenary review; see Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998); and we do not conclude that the denial of the defendant’s motions interfered with a basic constitutional right. There is no legal conclusion of the court at issue. Accordingly, there exists no “mixed question of law and fact” to be reviewed on appeal. If an incarcerated individual had been accused of committing a crime in subzero weather, his inability to replicate the condition of temperature, via a desired visit to the North Pole in January, could not change a motion for such a visit into a constitutional claim. Without a direct link to a constitutional right, a defendant’s claim is not transformed into a right of constitutional magnitude. In re Lukas K., 120 Conn. App. 465, 472, 992 A.2d 1142 (2010), aff'd, 300 Conn. 463, 14 A.3d 990 (2011); see also State v. Claudio C., 125 Conn. App. 588, 598, 11 A.3d 1086 (2010) (“[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right” [internal quotation marks omitted]), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011).

The function of the trial court in this case was to determine whether the defendant’s temporary release from the custody of the department of correction was warranted, absent any rule or regulation of the department of correction, or statute or Practice Book section governing release for the purpose of allowing an incarcerated defendant to prepare a defense with the help of a mock jury or a visit to the crime scene. The trial court in this case made no ultimate constitutional conclusion, basing its denial of the defendant’s motions on security, rather than an analysis of any rule, regulation or statute. We conclude that the function performed by the court was a discretionary matter and should, therefore, be reviewed under the abuse of discretion standard. State v. Saucier, supra, 283 Conn. 219.

“In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” (Internal quotation marks omitted.) State v. Ortiz, 280 Conn. 686, 703, 911 A.2d 1055 (2006). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 186, 842 A.2d 567 (2004).

In the present case, the court heard argument that addressed the severity of the crimes charged against the defendant, the risk of flight by the defendant and the logistical difficulties attendant to transporting and supervising the defendant if he were temporarily released from custody. The court also considered the fact that the defendant grew up in the home where the shootings took place, lived there at the time of the shootings, and was intimately familiar with the physical characteristics of the crime scene and the neighborhood, and that the defendant’s attorney had ongoing access to the crime scene.

The court explained that its decision to deny the defendant’s motions was made on the basis of numerous security concerns, stating: “[T]his boils down . . . to an issue of security. . . . Based on defense counsel’s own rendition of the allegations, the defense does not contest that the defendant was armed with a deadly weapon and caused the death of Ms. Ramos and caused injury to Ms. Aponte by the discharge of a firearm, and it’s notable that the defendant was a convicted felon at the time. . . . The nature of the charges are such, combined with the defendant’s criminal history, that the primary concern of this court is one of security. The court can contemplate a number of scenarios that would amount to a breach of security that are reasonably foreseeable in the event the court accedes [to] the defense request.” We conclude that the court did not abuse its discretion in denying the defendant’s motions requesting temporary release from the custody of the department of correction.

n

MOTION FOR JURY TO VIEW THE CRIME SCENE

The defendant’s next claim on appeal is that the court abused its discretion in denying his motion to allow the jury to view the crime scene. The defendant argues that it was necessary for the jury to view the crime scene to understand his claim of self-defense; specifically, that he feared for his life as he was attacked by Ramos and Aponte in the small kitchen. We are not persuaded.

“Pursuant to Practice Book [§ 42-6] , a trial court may permit a viewing of the scene of the crime if it is of the opinion that a viewing would be helpful to the jury in determining some material factual issue in the case. . . . The determination as to whether to permit the jury to view the scene of a crime is within the sound discretion of the trial court. . . . Thus, unless the action of the trial court in denying the motion constitutes an abuse of discretion, the decision of the trial court must stand. ... In deciding a motion to view the scene [t]he court should consider whether viewing the scene is necessary or important so that the jury may clearly understand the issues and properly apply the evidence. . . . Although discretionary, the power to authorize a view of the scene should be invoked only after the court is satisfied that the present conditions at the site are the same as those that existed on the date of the underlying incident, and that such a personal inspection is fair to both parties and reasonably necessary to do justice.” (Citations omitted; internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 116, 665 A.2d 95 (1995).

In the present case, the jury had access to photographs of the crime scene and a dimensional drawing of the kitchen where the first two shootings took place. The jury heard testimony by the defendant, Krantz and Aponte, during which they described the physical characteristics of the kitchen. The court found that there was nothing “so unique about the premises that it would require a viewing.” Given the instructional exhibits and witness testimony on the size and layout of the kitchen, we cannot conclude that a view of the crime scene was necessary for the jury to understand the defendant’s claim of self-defense or for it to properly apply the evidence. Accordingly, we conclude that the court did not abuse its discretion when it denied the defendant’s motion to allow the jury to view the crime scene.

Ill

PROSECUTORIAL IMPROPRIETY

The defendant’s final claim on appeal is that the court improperly denied his motions for a mistrial on the ground of prosecutorial impropriety. The defendant claims that the prosecutor improperly made statements that (1) undermined the defendant’s credibility and were prejudicial to his defense, (2) appealed to the emotions of the jury and (3) expressed her personal opinion, thereby prejudicing his ability to receive a fair trial. We disagree.

“The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. ... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Ortiz, supra, 280 Conn. 702. “In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Gibson, 302 Conn. 653, 659, 31 A.3d 346 (2011).

In the interest of adjudicating the defendant’s claim with facility, we rearticulate and divide the defendant’s arguments into two categories: statements that are alleged to be improper because they (1) expressed the prosecutor’s personal opinion and (2) appealed unreasonably to the emotions, passions and prejudices of the jury. “We . . . address each [of the defendant’s claims] in turn to determine whether the particular conduct was improper before determining whether the impropriety, if any, deprived the defendant of a fair trial.” State v. Singh, 259 Conn. 693, 702, 793 A.2d 226 (2002).

A

Personal Opinion

“It is well established that [a] prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. ... It is not, however, improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .” (Internal quotation marks omitted.) State v. Gibson, supra, 302 Conn. 660. “While a prosecutor cannot express his opinion as to the credibility of witnesses, he is permitted to explain that a witness either has or does not have a motive to lie. . . . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The state’s attorney should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows, or the like. . . . [C]ounsel is entitled to considerable leeway in deciding how best to highlight or to underscore the facts, and the reasonable inferences to be drawn therefrom, for which there is adequate support in the record. We therefore never have categorically barred counsel's use of such rhetorical devices ... as long as there is no reasonable likelihood that the particular device employed will confuse the jury or otherwise prejudice the opposing party.” (Citations omitted; internal quotation marks omitted.) State v. Bermudez, 274 Conn. 581, 590-91, 876 A.2d 1162 (2005); see also State v. Gibson, supra, 660-61.

The defendant challenges the following statements, made by the prosecutor during her closing argument: “In order for you to find the defendant guilty, you have to find proven beyond a reasonable doubt with regard to the murder of Becky Ramos that the defendant intended to kill her and that he caused her death. You have the witnesses, both Yajaira Aponte and Katie [Krantz], who told you that the defendant shot [Ramos] in the head. You have the medical examiner’s autopsy report [saying] that [Ramos] was shot by a gunshot wound and [that this was] the cause of her death, and you have the testimony of the defendant, himself, that he shot her in the head. Now, [the defendant] says he didn’t intend to kill her. You ask yourselves whether or not it’s reasonable to shoot somebody in the head at close range with a gun and ask me to believe that. The state submits that the evidence shows you should not and that you should find the defendant guilty of this [charge] based upon the evidence before you.” (Emphasis added.)

The defendant argues that the prosecutor thereby expressed her personal opinion that the defendant was not to be believed. We disagree. The challenged statements were made during the prosecutor’s initial comments to the jury concerning the standard of proof and the elements of the crimes charged. They are couched in terms of the jurors’ obligation to determine, on the basis of the evidence presented at trial, whether they believed the defendant’s claims that he had shot Ramos in self-defense and that he did not intend to kill her. It was not improper for the prosecutor to comment on the evidence presented at trial and to argue the inferences that the jurors may, or may not, have drawn therefrom. See State v. Gibson, supra, 302 Conn. 659.

The defendant next challenges the prosecutor’s statement, “[tjhat’s what you want this jury to believe,” made during her cross-examination of the defendant. The defendant argues that this statement was akin to the prosecutor’s vouching to the jury that the defendant was not being truthful. We disagree. A statement identifying the fact that the defendant was testifying to an alternate theory of events does not rise to the level of prosecutorial impropriety.

The defendant next challenges the propriety of the prosecutor’s argument that, because the defendant had played pickup basketball games without a referee, he should have been able to defend himself against Ramos and Aponte. During her closing argument, the prosecutor stated: “So, you’re going to be asked to look first at what the defendant subjectively believed and then at what an objective or reasonable person would have believed under the circumstances and that’s why all the basketball questions because the state submits to you that a guy who plays pickup basketball all the time against bigger and heavier guys wasn’t really afraid of either [Ramos] or [Aponte] that night, and he was more capable of avoiding them and not having to use deadly physical force. The defendant did not believe either one of these women was going to injure him or cause great bodily injury or use deadly force against him.”

The prosecutor references her cross-examination of the defendant, wherein she questioned his claimed belief that he had to defend himself against Ramos and Aponte by using deadly force. We find no impropriety in this argument, which was made during the prosecutor’s discussion of the elements of self-defense and relates directly to the state’s challenge of the defendant’s claims that he had feared for his life and had acted in self-defense when he shot Ramos and Aponte.

Finally, the defendant challenges the propriety of remarks made by the prosecutor during her rebuttal argument. The prosecutor stated: “The defendant never tells [Aponte] to leave [the house] because she’s not involved in the argument. There was much made by the defense attorney about [Aponte’s] movements after [Ramos] gets shot. [Aponte’s] not involved in the argument, she’s not asked to leave, she’s simply standing by because she’s waiting for [Ramos] so that they can all go. Women sometimes travel in groups. We travel in groups to the bathroom, we travel in groups when we’re going someplace, we wait for each other. That’s how women behave, isn’t it? Isn’t that what your common sense and your life experience tells you? So, [Aponte is] simply waiting for [Ramos]. . . . [Aponte’s] saying nothing to the defendant. She’s got nothing in her hands. She’s not involved at all. [Ramos] gets shot. She reaches toward the phone. She’s not going toward the defendant. She’s going toward the phone . . . .” (Emphasis added.)

The defendant argues that the prosecutor thereby “vouched for the conduct of the women who were attacking the defendant on the night of the incident, explaining to the jury why they did what they did even though she was not there and has no knowledge of their actions.” The defendant argues that the prosecutor “basically told [the jury] that the defendant should not be trusted and explained to [the jury] why the women acted the way they did,” which precluded the defendant from succeeding in his claim of self-defense. We disagree.

“In determining whether [prosecutorial impropriety] has occurred [in the course of closing arguments], the reviewing court must give due deference to the fact that [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case.” (Internal quotation marks omitted.) State v. Gibson, supra, 302 Conn. 659.

In the present case, the challenged statements were made as the prosecutor set forth the state’s theory of the case, which questioned the defendant’s version of events. The prosecutor’s argument, which included an explanation of where Ramos, Aponte and Krantz were located prior to and at the time of the shootings, was based on the facts in evidence and inferences fairly drawn therefrom. We conclude that there was no reasonable likelihood that these statements confused the jury or otherwise prejudiced the defendant.

B

Appeal to Jury’s Emotions

“A prosecutor may not appeal to the emotions, passions and prejudices of the [jury]. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant facts [that] are likely to skew that appraisal.” (Citations omitted; internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 719. Accordingly, “a prosecutor should avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury’s attention from [its] duty to decide the case on the evidence.” State v. Carr, 172 Conn. 458, 470, 374 A.2d 1107 (1977). “An appeal to emotions may arise directly, or indirectly from the use of personal and degrading epithets to describe the defendant.” State v. Williams, 204 Conn. 523, 545, 529 A.2d 653 (1987).

The defendant claims that, during closing argument, the prosecutor improperly “tried to argue that the defendant was a jealous control freak who did not want Krantz to leave the house . . . .” The prosecutor stated: “The defendant unlocks that door [to the house] because he wants this argument to come on. He knows where the gun is in the house, and he’s luring [Ramos] in because he knows if [Ramos] comes in, [Krantz is] coming in. He’ll be able to control [Krantz] once again because he’s going to win this argument because he has the ultimate power. He’s an individual who feels devalued by the fact that [Krantz] is leaving with other people again and instead of finding some way to up his own personal value he reaches for a weapon, a power tool to control [Krantz].”

We disagree with the defendant’s claim of impropriety. The prosecutor was entitled to argue the state’s case forcefully, provided that her argument was fair. See State v. Gibson, supra, 302 Conn. 659. We conclude that the prosecutor permissibly “was attempting to persuade the jury to draw [an] inference from the circumstantial evidence of intent that [the prosecutor] had just recited, and was not giving improper unsworn testimony or attempting to insinuate that [she] had secret knowledge of the defendant’s guilt.” Id., 661.

The defendant next challenges the propriety of the prosecutor’s statements and tone of voice during her cross-examination of the defendant, and an incident wherein the defendant alleges that the prosecutor “threw down her notebook in disgust at the defendant’s answer.” The defendant claims that the prosecutor’s actions were unduly argumentative and were designed improperly to appeal to the jury’s emotions. We disagree.

At trial, the court overruled the defendant’s objection to the prosecutor’s statements and tone of voice, stating: “I don’t see a problem with the [‘you claim’] questions or comments [made by the prosecutor], but it’s not just the word because I don’t disagree with you that any testimony a person gives from the witness stand they want the jury to believe that, but I think there’s a tone. I’m going to agree with — it may not be inappropriate under certain circumstances. It may be inappropriate under others, and I think the tone with what was given at least on the one occasion that I picked up on it, was kind of a disbelief that wants to be communicated to the jury. That’s my sense. I’m not saying that’s your intent. So, I am going to make a comment that, as far as [‘that’s what you want the jury to believe’], it’s the manner in which it was delivered, I think, that conveys a message that the questioner finds that difficult to believe. And that’s the sense that I got— I received from it.”

With respect to the incident wherein the prosecutor is claimed to have thrown her notebook down “in disgust at [the defendant’s] answers,” the court denied the defendant’s motion for a mistrial. Apart from the defendant’s own argument, there exists nothing in the record to support his claims that the prosecutor threw her notebook, that it made “a thud audible throughout the courtroom” or that the jury saw, heard or was aware that the event alleged had taken place.

We conclude that the record does not support a finding of the claimed improprieties. In so doing, we note that “the trial court was in the best position to assess the possible prejudice, if any, that may have resulted from counsel’s comments, and to fashion an appropriate remedy from a range of possible alternatives.” Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 687, 657 A.2d 1087 (1995). We conclude that the defendant has failed to demonstrate that the court abused its discretion in denying his motions for a mistrial.

IV

CONCLUSION

We conclude that the court properly denied the defendant’s motions (1) for temporary release from the custody of the department of correction, (2) to allow the jury to view the crime scene and (3) for a mistrial on the ground of prosecutorial impropriety.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with one count of murder in violation of General Statutes § 53a-54a (a) and one count of attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a) (2). The jury was unable to reach a unanimous verdict as to the murder and attempted murder charges, and the court declared a mistrial as to those charges. The defendant’s subsequent conviction of manslaughter in the first degree in violation of General Statutes § 53a-55, following a retrial for the shooting death of Ramos, has been appealed by the defendant to our Supreme Court. At oral argument, the defendant stated that the present appeal concerns only the assault and criminal possession of a firearm conviction.

       The defendant brought his motions before the trial court in the form of a “Motion for Nontestimonial Evidence,” which requested the defendant’s temporary release from the custody of the department of correction “pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, Article First, § 8 of the Connecticut Constitution, and Practice Book §§ 40-32 [through 40-38].” On appeal, the defendant makes no argument with respect to the state constitution.

       We note that the defendant’s written motion for temporary release from the custody of the department of correction made pursuant to Practice Book §§ 40-32 through 40-38, is labeled by him as a motion for “Nontestimonial Evidence.” Section 40-38 states, in relevant part: “Upon motion of a defendant who has been arrested . . . the judicial authority by order may direct the prosecuting authority to arrange for the defendant’s participation in one or more of the procedures specified in Sections 40-32 through 40-39, if the judicial authority finds that the evidence sought could contribute to an adequate defense. . . .” The forms of participation requested by the defendant — to visit the crime scene with his attorney and to participate in a mock jury preparation session — do not, however, comport with any of the procedures for obtaining nontestimonial evidence set forth in §§ 40-32 through 40-39, nor does the defendant direct our attention to any particular procedure therein.

       The defendant claims that the court’s ruling impliedly violated his rights to effective assistance of counsel, to present a defense and to confront witnesses against him. However, he has failed to articulate the manner in which the court’s denial of his motions for a temporary release from the custody of the department of correction violated those rights as guaranteed by the sixth amendment to the United States constitution. When the court denied the defendant’s motions, the defendant was incarcerated due to his failure or inability to post bail. A defendant’s lawful incarceration necessarily results in the restriction of liberty and “the necessary withdrawal or limitation of many privileges and rights . . . .” (Internal quotation marks omitted.) Bell v. Wolfish, 441 U.S. 520, 546, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); see also id., 533-34; id., 546 (“This principle applies equally to pretrial detainees and convicted prisoners. A [pretrial] detainee simply does not possess the full range of freedoms of an unincarcerated individual.”). The defendant made no challenge to the amount or conditions of his bail, nor did he move for a modification. The defendant’s claim is not, therefore, reviewable by a petition for review pursuant to General Statutes § 54-63g. The court’s decision to deny the defendant’s motions for temporary release from custody imposed no new or additional restrictions on him. Furthermore, the denial of his motions cannot convert the defendant’s appellate arguments into a claim that the amount or conditions of his bail were unconstitutional. See State v. Payne, 121 Conn. App. 308, 31-4-15 and 315 n.3, 996 A.2d 302, cert. denied, 297 Conn. 919, 996 A.2d 1193 (2010).

       As noted in part K of this opinion, the defendant resided in the home in which the crimes took place, and the defendant and his lawyer had access to drawings and photographs of the crime scene, obviating the need to actually go to the scene together in order to prepare a defense.

       During trial, the defendant made an oral motion for the jury to be allowed to view the crime scene, which was denied by the court.

       Practice Book § 42-6, “View by Jury of Place or Thing Involved in Case,” provides in relevant part: “When the judicial authority is of the opinion that a viewing by the jury of the place where the offense being tried was committed . . . will be helpful to the jury in determining any material factual issue, it may in its discretion . . . order that the jury be conducted to such place . . . .”

       The jury did not find the defendant guilty of murder or attempted murder; see footnote 1 of this opinion; it is therefore unlikely that the jury was unduly influenced by the prosecutor’s statements.

       The challenged statement was made during the following colloquy:
      “[The Prosecutor]: You wanted [Krantz] to come back in the house. Right?
      “[The Defendant]: No. . . .
      “[The Prosecutor]: No. You told her you wanted her to stay. Right?
      “[The Defendant]: Yes. That was prior to her leaving.
      “[The Prosecutor]: Uh-huh. But once she left, you threw her clothes out onto the driveway not to get her attention to come back?
      “[The Defendant]: No.
      “[The Prosecutor]: That’s what you want this jury to believe. Now, you were asked . . . .” (Emphasis added.)

       The defendant does not provide a citation to the transcript in support of his claim. We assume that his argument is made in reference to the portion of the transcript quoted in this opinion.

       The defendant does not provide a citation to the transcript in support of his claim. We assume that his argument is made in reference to the portion of the transcript quoted in this opinion.

       Defense counsel argued: “I would ask that the court . . . admonish the state that questions are questions, not opportunities to inject extraneous comments such as, that’s what you want this jury to believe, or sneering asides, you claim, you claim, you claim. The state’s here to ask questions. . . . She is lacing her questions with, you claim, you claim, you claim. . . . Those are argumentative. They’re not questions. . . . You know, when she says, you claim, in a sneering tone of voice . . . .” Defense counsel did not request that any curative instruction be given to the jury, and we note that none was given.

       The following colloquy took place out of the jury’s presence and after the prosecutor had concluded her cross-examination of the defendant:
      “[Defense Counsel]: I’ll raise, Judge, my second motion for a mistrial. This based on a claim of prosecutorial misconduct. We just endured something. Okay. Cross-examination of sorts that ended with an exclamation point in the form of the state’s attorney dramatically throwing her notebook to the table creating athud audible throughout the courtroom. This combined with her castaway remarks like, that’s what you want this jury to believe, may have a place in a bad production of ‘Perry Mason,’ but it has no place in this courtroom. So, I would move for a mistrial. In the alternative, I would ask that the state ... be admonished and that the jury be instructed to disregard such stunts.”
      “The Court: Do you want to be heard?
      “[The Prosecutor]: No.
      “The Court: All right. I don’t think this certainly arises to the level to declaring a mistrial. I have no reason to believe that this gentleman can’t get a fair trial, and the court made every effort to guarantee that he’s accorded a fair trial. So, the motion is denied. Under the circumstances, I don’t think it’s necessary for any kind of admonition.”
      The defendant’s allegation is not made nor is it addressed in any other portion of the trial transcript.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VICTOR LUIS AYALA, SR.
    (AC 32800)
    DiPentima, C. J., and Gruendel and Bishop, Js.

      Argued December 5, 2011
    officially released February 14, 2012

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

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Victor Luis Ayala, Sr., appeals from the judgment of conviction, rendered following a jury trial, of burglary in the second degree with a firearm in violation of General Statutes § 53a-102a (a), burglary in the first degree in violation of General Statutes § 53a-101 (a) (3), kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a (a), threatening in the second degree in violation of General Statutes § 53a-62 (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that (1) there was insufficient evidence from which the jury could have found beyond a reasonable doubt that he demonstrated the requisite intent to commit kidnapping and (2) § 53a-94a is unconstitutionally vague as applied to the present case. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 4,2007, the defendant twice visited the apartment of the victim and her husband. On the first occasion, the defendant knocked on the door and the victim allowed him to enter and search her residence for his girlfriend. Later that night, the defendant returned to the victim’s residence and, unbeknownst to her, waited outside, hidden from the view of the door’s peephole, until the victim opened the door to get some air. When she opened the door, the defendant pushed his way into the apartment and stuck what she described as a black handgun into her stomach, threatened to kill her and inquired about the whereabouts of his girlfriend. The victim informed the defendant that his girlfriend was not at her residence, at which time the defendant pushed her and demanded that she sit on the couch. The defendant then searched the residence for his girlfriend, and when he was unable to find her, he left the residence.

The victim then called the police to report the incident. Special weapons and tactical unit members responded to the call and searched the victim’s residence. Local patrol officers also arrived on the scene and questioned the victim about the defendant. She provided the officers with the defendant’s name and his physical description. The victim also dictated and signed a statement for the police regarding the incident. The police then searched the vicinity for the defendant. After locating him, they conducted a one-on-one identification whereby the victim was asked to look at the defendant and determine if he was the person who committed the alleged crimes at her residence. The victim positively identified the defendant as the individual who had entered her residence that morning.

The defendant subsequently was arrested and charged in a six count information with burglary in the second degree with a firearm in violation of § 53a-102a (a), burglary in the first degree in violation of § 53a-101 (a) (3), kidnapping in the second degree with a firearm in violation of § 53a-94a (a), threatening in the second degree in violation of § 53a-62 (a) (1) and interfering with an officer in violation of § 53a-167a (a). After the defendant’s arrest, the victim and her husband signed statements recanting their allegations against the defendant. When questioned at trial, however, they testified that they signed those statements due to pressure from the defendant’s girlfriend and asserted that the victim’s initial statement to the police and her husband’s testimony at trial were the truthful account of the incident. After trial, the defendant was convicted on all counts and was sentenced to a total effective term of fourteen years of incarceration. This appeal followed.

I

On appeal, the defendant first claims that the evidence failed to demonstrate (1) that he had the requisite intent to prevent any person’s liberation and (2) that he used restraint that was not incidental to the crime of burglary with a firearm. We disagree.

The standard of review for sufficiency of the evidence claims employs a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 517, 782 A.2d 658 (2001). “We do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Nicholson, 71 Conn. App. 585, 590, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002).

A

The defendant first claims that the evidence presented at trial was insufficient to sustain the conviction for kidnapping in the second degree with a firearm. Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt one of the elements of the crime, namely, that he had the specific intent to cause the result of preventing the victim’s liberation. We disagree.

A discussion of the governing statutes and case law is useful to our analysis. Section 53a-94a (a) provides that a person is guilty of kidnapping in the second degree with a firearm when, in the commission of kidnapping in the second degree, that person “uses or is armed with and threatens the use of or uses or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm.” A person is guilty of kidnapping in the second degree when that person “abducts another person.” General Statutes § 53a-94. To “abduct” another person is “to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense [s], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . [I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . [A]n inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Citation omitted; internal quotation marks omitted.) State v. Fagan, 92 Conn. App. 44, 49, 883 A.2d 8, cert. denied, 276 Conn. 924, 888 A.2d 91 (2005).

“It is well established that [t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 605, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999), cert. dismissed, 255 Conn. 953, 772 A.2d 153 (2001).

“[I]ntent may be inferred from the events leading up to, and immediately following, the conduct in question . . . the accused’s physical acts and the general surrounding circumstances. An accused’s own words . . . constitute particularly compelling, direct evidence of his intent.” (Citations omitted.) State v. Winot, 294 Conn. 753, 768, 988 A.2d 188 (2010).

On the basis of a thorough review of the evidence, we conclude that the jury could have found beyond a reasonable doubt that the defendant intended to prevent the victim’s liberation even if only briefly. On the basis of the victim’s testimony, the jury could have found that there was sufficient evidence that the defendant possessed the requisite intent in this regard. The victim testified that as the defendant forced his way into her residence, he stuck a black handgun into her stomach and threatened her life. According to the victim, the defendant then ordered her to sit on the couch so that he could search the residence for his girlfriend. Although the defendant did not physically restrain the victim during her confinement, the jury reasonably could have inferred, in light of the defendant’s immediately prior threat against her life while he allegedly was armed with a deadly weapon, that an implicit threat still existed at the time that he ordered her to sit on the couch. On the basis of this evidence, it was reasonable for the jury to infer from the defendant’s conduct that he possessed the specific intent to prevent the victim’s liberation.

B

The defendant also claims that the evidence failed to demonstrate that his restraint of the victim was not incidental to the crime of burglary with a firearm so as to independently constitute the crime of kidnapping. We disagree.

We begin our analysis with a discussion of the governing statutes and case law. General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.” Section 53a-102a (a) provides in relevant part: “A person is guilty of burglary in the second degree with a firearm when he commits burglary in the second degree as provided in section 53a-102, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, rifle, shotgun, machine gun or other firearm. . . .”

Our Supreme Court has concluded that “a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime.” State v. Salamon, 287 Conn. 509, 547, 949 A.2d 1092 (2008). The “confinement, movement or detention” of another cannot be “merely incidental to the accompanying felony,” but must be “significant enough, in and of itself, to warrant independent prosecution. . . . Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 547-48.

In the case at hand, the jury heard evidence that the defendant forced his way into the victim’s residence, pressed an object, which the victim described as a handgun, into her stomach and threatened to kill her. This conduct alone is sufficient to constitute the crime of burglary. This court has concluded that “the crime of burglary is complete once there has been an unlawful entering or remaining in a building with the intent to commit a crime in that building.” State v. Flowers, 85 Conn. App. 681, 691, 858 A.2d 527 (2004), rev’d on other grounds, 278 Conn. 533, 898 A,2d 789 (2006). Although the long form information in the present case did not specify the crime that the defendant intended to commit within the victim’s residence at the time of his unlawful entry, the state contended dining its closing argument that such crimes were threatening, kidnapping or unlawful restraint.

The jury reasonably could have concluded, therefore, that the burglary had been completed prior to the crime of kidnapping and that the kidnapping, which was initiated when the defendant pushed the victim and ordered her to sit on the couch so that he could search her residence, was not merely incidental to the burglary. Although the defendant did not physically restrain the victim, the jury reasonably could have concluded that the implicit threat against the victim’s life constituted sufficient control over her movement to prevent her liberation. The jury reasonably could have concluded, as well, that such restraint was not necessary for the defendant to commit the burglary, nor was it inherent in the offense itself. In sum, viewing the evidence in a light most favorable to sustaining the conviction, the jury reasonably could have concluded that the defendant’s restraint of the victim was not incidental to any other offense but was, rather, intended to prevent her from interfering while he searched her residence for his girlfriend. We conclude, therefore, in accordance with our Supreme Court’s analysis in State v. Salomon, supra, 287 Conn. 546-50, that the kidnapping was neither incidental to the burglary, nor necessary for the defendant to complete the burglary. Rather, the restraint had its own criminal significance independent of the completed crime of burglary. See State v. Golder, 127 Conn. App. 181, 190-91, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d 180 (2011).

II

The defendant also claims that § 53a-94a is unconstitutionally vague as applied to the present case because it did not put the defendant on notice that any restraint of the victim, even for a very brief time, could constitute the crime of kidnapping. We disagree.

We begin with the applicable standard of review and general governing principles. The determination of whether a statutory provision is unconstitutionally vague is a question of law over which we exercise de novo review. State v. Winot, supra, 294 Conn. 758-59. In undertaking such review, we are mindful that “[a] statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity. ... To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] .the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement.” (Internal quotation marks omitted.) Rocque v. Farricielli, 269 Conn. 187, 204, 848 A.2d 1206 (2004).

“[A] scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the [party] that his conduct is proscribed.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 71 L. Ed. 2d 362, reh. denied, 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982). In short, “where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.” Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); see also Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S. Ct. 329, 96 L. Ed. 367 (1952) (“requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of [a statute] would be so unfair that it must be held invalid”). When a jury evaluates evidence of a defendant’s intent, it properly relies “on its common sense, experience and knowledge of human nature in drawing inferences and reaching conclusions of fact.” State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985).

With respect to the defendant’s claim regarding the relative brevity of the victim’s restraint, we are mindful that our Supreme Court has indicated that there may be factual scenarios in which a kidnapping conviction would constitute an absurd and unconscionable result because of the limited duration of the confinement or the slight degree of restriction in movement. See State v. Luurtsema, 262 Conn. 179, 203-204, 811 A.2d 223 (2002), overruled in part on other grounds by State v. Salamon, 287 Conn. 509, 513-14, 949 A.2d 1092 (2008); accord State v. Tweedy, 219 Conn. 489, 503, 594 A.2d 906 (1991); see also State v. Troupe, 237 Conn. 284, 313-15, 677 A.2d 917 (1996). “As our case law interpreting those statutes has evolved, however, it is apparent that any such limitation on the reach of our kidnapping statutes is reserved for the rare factual scenario in which the restraint is so minimal that the statute would be unconstitutionally vague as applied to that scenario.” State v. Salamon, supra, 528 n.17. On the basis of our review of the evidence, we conclude that the present case is not one of the rare cases where the restraint is so minimal or limited in time as to warrant a finding of unconstitutional vagueness.

Our Supreme Court’s repeated pronouncements that there are no minimum time or distance requirements to establish a restraint within the meaning of the kidnapping statute; see, e.g., State v. Winot, supra, 294 Conn. 761-65; coupled with the statute’s prohibition of the act of restraint only when it is accomplished with the specific intent of preventing a victim’s liberation, defeats the defendant’s claim that § 53a-94a is unconstitutionally vague as applied to his actions on November 4, 2007. Although the defendant’s restraint of the victim was brief, when it is viewed in conjunction with the evidence of his intent to prevent her liberation as discussed in part IB of this opinion, any argument that he was unaware of the criminality of his behavior must fail.

Further, any potential vagueness in § 53a-94a as applied to the defendant’s conduct, standing alone, was counteracted by the evidence that he possessed the requisite specific intent to prevent the victim’s liberation. The defendant’s statements to the victim provided clear manifestations of the prohibited intent. Specifically, the defendant, while allegedly armed with a gun, told the victim that she was the “next to die.” He then ordered her to sit on the couch while he searched her residence for his girlfriend. On the basis of the foregoing, a jury, applying its common sense and knowledge of human nature, reasonably could conclude that the defendant restrained the victim with the intent to prevent her liberation. Consequently, and based on all of the circumstances, the defendant cannot claim surprise that he would be arrested, prosecuted and convicted of the crime of kidnapping.

Finally, we note that our disposition of this matter is informed by the understanding that the fundamental purpose of the void for vagueness doctrine is to ensure fair warning in order to avoid traps for the innocent. The defendant has made no plausible argument, nor can we conceive of one, that on November 4, 2007, he acted in reliance on the belief that his conduct was lawful, or that a person of ordinary intelligence would have no reason to know that he was engaging in prohibited conduct. See State v. Payne, 240 Conn. 766, 779, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004). On the basis of the foregoing analysis, we conclude that § 53a-94a, as applied to the defendant’s conduct, is not unconstitutionally vague.

The judgment is affirmed.

In this opinion the other judges concurred.

       There were also two other individuals in the residence at the time of the defendant’s unlawful entry.

       The defendant denied possessing a gun, and the police never recovered one.

       After being canvassed by the court, the defendant exercised his fifth amendment right not to testily.

         In his brief, the defendant does not challenge the state’s claim regarding the underlying offense in connection with the kidnapping charge.

       Connecticut courts frequently have relied on this reasoning to reject vagueness challenges to statutes with specific intent requirements. See, e.g., State v. Dyson, 238 Conn. 784, 798-99, 680 A.2d 1306 (1996) (first degree kidnapping statute not unconstitutionally vague because it requires specific intent to terrorize); State v. Cavallo, 200 Conn. 664, 667-70, 513 A.2d 646 (1986) (statute disallowing tampering with witness not unconstitutionally vague because it requires specific intent to cause witness to testify falsely or to refrain from testifying at all); State v. Adgers, 101 Conn. App. 123, 132, 921 A.2d 122 (requirement in harassment statute that mailings be sent “ ‘with intent to harass, annoy or alarm’ ” victim buttressed conclusion that statute was not unconstitutionally vague), cert. denied, 283 Conn. 903, 927 A.2d 915 (2007).


author: BEACH, J.

text:
    PATRICIA RAY v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 33064)
    Gruendel, Beach and Peters, Js.

      Argued November 9, 2011
    officially released February 14, 2012

      Krista Dotson O’Brien, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (named defendant).

      Patricia Ray, pro se, the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant administrator of the Unemployment Compensation Act (administrator) appeals from the judgment of the trial court remanding the matter to the employment security board of review (board) after the board dismissed the appeal of the plaintiff, Patricia Ray, for lack of jurisdiction. On appeal, the administrator claims that the court erred in remanding the matter to the board for a review of certain factors. We agree and reverse the judgment of the trial court.

This appeal arises out of the plaintiffs employment with the defendant SNET Information Services, Inc. (employer). The plaintiff applied for unemployment compensation benefits, and in July, 2009, the administrator determined that the plaintiff “voluntarily left suitable work without good cause” and concluded that, effective March, 2009, she was not eligible to receive unemployment compensation benefits. The plaintiff appealed from the administrator’s determination to the employment security appeals division. The appeals referee found that the plaintiff worked full-time for the employer from January 8, 1987, until March 6, 2009. The employer offered the plaintiff an early retirement package, which she accepted on March 6, 2009. The plaintiff, who suffered from high blood pressure, feared that the employer would offer less generous medical benefits to its employees when the contract between the employer’s employees and the union expired in April, 2009. After the plaintiff was no longer employed by the employer, she accepted a full-time job with Masonic Care. The appeals referee noted that the plaintiff testified that the “ ‘main reason’ ” she “ ‘left was to retire under the contract that offered complete medical coverage.’ ” The referee noted that the plaintiff’s fear regarding the terms of any new contract was speculative because at the time she quit her job in March, 2009, the old contract had not yet expired and a new contract had not been negotiated. The referee concluded that the plaintiffs fear that the employer would offer less generous medical insurance benefits in the future did not afford her good cause for leaving her job. The referee affirmed the administrator’s determination.

The referee’s decision was mailed on September 14, 2009. On December 2, 2009, the plaintiff filed an appeal from the referee’s decision to the board. The board dismissed the plaintiff’s appeal for lack of jurisdiction. The board reasoned that the plaintiff’s appeal was not timely because it was not filed within the twenty-one day period after the decision was mailed as required by General Statutes § 31-248. The board concluded that the plaintiff had not demonstrated good cause for filing a late appeal; see General Statutes § 31-248; pursuant to § 31-237g-34 (c) of the Regulations of Connecticut State Agencies. The board determined that the plaintiffs failure to read the notice of appeal rights and failure to seek clarification of her appeal rights constituted a lack of due diligence, thereby preventing a finding of good cause.

The plaintiff filed a timely motion to open the board’s decision. In her motion to open, the plaintiff stated, inter alia, that “[t]he appeal was filed after the twenty-one day time frame because I went back to full-time employment on September 10, 2009, which was before the referee’s decision that was sent out on September 14, 2009.1 did not continue to file claims as scheduled because I was now working forty hours a week making just as much or more than I would have received from unemployment.” The board denied the motion and reasoned that the plaintiffs indecisiveness or “change of heart” about filing an appeal did not constitute good cause for filing a late appeal. The board concluded that the plaintiff failed to show that the ends of justice required it to open its original decision.

Pursuant to General Statutes § 31-249b, the plaintiff appealed to the trial court from the decision of the board. The court found that the plaintiff was acting in good faith. It did not accept the board’s reasoning for its failure to grant the plaintiffs motion to open because it determined that the board had not considered several of the mandatory factors listed in § 31-237g-34 (c) of the regulations. It remanded the matter to the board “to conduct a full review of the good cause factors which might justify waiver of the time to appeal . . . .” This appeal followed.

“In the processing of unemployment compensation claims . . . the administrator, the referee and the employment security board of review decide the facts and then apply the appropriate law. . . . [The administrator] is charged with the initial responsibility of determining whether claimants are entitled to unemployment benefits. [See generally] General Statutes § 31-241. . . . This initial determination becomes final unless the claimant or the employer files an appeal within twenty-one days after notification of the determination is mailed. [General Statutes § 31-241 (a)]. Appeals are taken to the employment security appeals division which consists of a referee section and the board of review. [See] General Statutes §§ 31-237a, 31-237b. . . . The first stage of claims review lies with a referee who hears the claim de novo. The referee’s function in conducting this hearing is to make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the provisions ... of the law. General Statutes § 31-244. This decision is appealable to the board of review. General Statutes § 31-249. Such appeals are heard on the record of the hearing before the referee although the board may take additional evidence or testimony if justice so requires. [General Statutes § 31-249]. Any party, including the administrator, may thereafter continue the appellate process by appealing to the Superior Court and, ultimately, to [the Appellate and Supreme Courts].” (Citations omitted; internal quotation marks omitted.) Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 755-57, 911 A.2d 736 (2006).

The administrator claims that the court erred in remanding the plaintiffs appeal to the board for a full review of the good cause factors. The administrator argues that the court impermissibly exceeded its scope of review when it found facts and when it remanded the matter to the board on the ground that the board failed to “allude to several factors imposed on it by the regulation” because the board had already addressed the plaintiffs contentions in its decision. We agree.

The court provided two grounds for its decision to remand for consideration of the factors listed in § 31-237g-34 (c) of the regulations. First, the court apparently accepted as true the plaintiffs representations: “She said she called to find out whether she could still appeal the original claim and was told that she could. She gave the same reason in her appeal to this court. She took the same position in her argument before this court. She thought that because her new, albeit short-lived, job paid more than she would have gotten from unemployment benefits she was no longer qualified to receive them. She said ‘the paper’ said (apparently referring to documents from unemployment compensation appeals unit) that she did not think she was ‘eligible.’ The court concludes that the plaintiff had an honest, good faith, erroneous opinion about her eligibility for unemployment benefits as a result of her new job.”

Second, the court stated that “none of [the] subsection xi factors were considered by the board.” Subsection xi of § 31-237g-34 (c) of the regulations included factors to be considered in determining whether good faith error in untimely filing constitutes good cause for tardiness. The court remanded the case to the board for a “full review of the good cause factors . . . .”

In an appeal to the court from a decision of the board, the court is not to find facts. See General Statutes § 31-249b; Practice Book § 22-9 (a); Calnan v. Administrator, Unemployment Compensation Act, 43 Conn. App. 779, 784-85, 686 A.2d 134 (1996). In the absence of a motion to correct the finding of the board, the court is bound by the board’s finding. Practice Book § 22-4 et seq.; Johnson v. Administrator, Unemployment Compensation Act, 3 Conn. App. 264, 267-68, 487 A.2d 565 (1985); see generally United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 387, 551 A.2d 724 (1988). The board did not either expressly or implicitly find a good faith error; nor did it find to the contrary.

The board did, however, find that the plaintiff had been indecisive and simply changed her mind “once she was laid off from her new employment” and found that her change of mind did not constitute good cause for untimely filing. The board noted that a failure to read the appeal notice of rights form constituted a lack of due diligence, and that the advisement as to timeliness was set forth in bold capital letters.

The court may not substitute its conclusions for those of the board, but the court does have “the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 385-86. In the present case, the court found facts well in excess of those found by the board; at least in the absence of a motion to correct, it was without authority to do so. The court erred by accepting as true facts that the board did not find and by basing its conclusions on those facts.

Additionally, the court drew conclusions from the board’s silence regarding several of the factors to consider in determining whether the late filing was excused by good cause. The board concluded, pursuant to § 31-248, that the plaintiff did not show good cause. The board specifically stated in its initial ruling dismissing the appeal from the referee that “[u]nless the appealing party, pursuant to Section 31-237g-34 (c) of the Regulations of Connecticut State Agencies, shows good cause for filing the appeal after the twenty-first day, the referee’s decision becomes final.” The court’s conclusion that the board did not consider the factors, especially after the board specifically referred to the very same factors, did not afford proper deference to the board. When a trial court indicates that it has reviewed statutory factors, an appellate court accepts the statement as true, at least in the absence of information to the contrary. See Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 137, 869 A.2d 164 (2005) (although court must consider all statutory criteria in determining alimony or property division, it need not make explicit reference to criteria it considered or make express findings as to each factor). We accord at least as great deference to agencies as to courts; the court is not to substitute its conclusions for those of the board, but it does retain “the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 385-86.

There is no indication in the record that the board improperly applied the regulation. In its initial decision, the board cited the good cause exception in § 31-237g-34 (c) of the regulations. The board expressly examined some of the good cause factors enumerated in the regulation in its initial decision and in its decision on the motion to open. Furthermore, there is nothing in the record to suggest that the board acted unreasonably, arbitrarily, illegally, or in abuse of its discretion in dismissing the plaintiffs appeal or in denying her motion to open. The court erred in remanding the matter to the board to review the good cause factors in § 31-237g-34 (c).

The judgment is reversed and the case is remanded to the court with direction to affirm the decision of the board.

In this opinion the other judges concurred.

       Because we agree with this claim, we need not address the additional grounds for reversal raised by the administrator in its brief.

       Section 31-237g-34 of the Regulations of Connecticut State Agencies provides in relevant part: “(a) A Referee’s decision on an appeal shall become final on the twenty-second (22nd) calendar day after the date on which a copy of such decision was mailed to the parties unless prior to said twenty-second day . . . (c) For purposes of this section, a party has good cause for failing to file an appeal within twenty-one (21) calendar days of the issuance of the Referee’s decision if a reasonably prudent individual under the same or similar circumstances would have been prevented from filing a timely appeal. In determining whether good cause has been shown, the Board shall consider all relevant factors, including but not limited to: (i) The extent to which the party has demonstrated diligence in its previous dealings with the Administrator and the Employment Security Appeals Division; (ii) Whether the party was represented; (iii) The degree of the party’s familiarity with the procedures of the appeals division; (iv) Whether the party received timely and adequate notice of the need to act; (v) Administrative error by the Administrator or Employment Security Appeals Division; or the failure of the Administrator, the Appeals Division, or any other party to discharge its responsibilities; (vi) Factors outside the control of the party which prevented a timely action; (vii) The party’s physical or mental impairment; (vni) Whether the party acted diligently in filing an appeal once the reason for the late filing no longer existed; (ix) Where there is substantial prejudice to an adverse party which prevents such party from adequately presenting its case, the total length of time that the action was untimely; (x) Coercion or intimidation which prevented the party from promptly filing its appeal; (xi) Good faith error, provided that in determining whether good faith error constitutes good cause, the Board shall consider the extent of prejudice to any other party, any prior history of late filing due to such error, whether the appeal is excessively late, and whether the party otherwise acted with due diligence. . . .”

       We note that although the court’s remand order was interlocutory in nature, it is nonetheless a final judgment for purposes of appeal. “A trial court may conclude that an administrative ruling was in error and order further administrative proceedings on that very issue. In such circumstances, we have held the judicial order to be a final judgment, in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue.” Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 410, 521 A.2d 566 (1987). In the present case, the trial court’s remand order to the board was a final judgment for purposes of this appeal; the remand order did not call for an evidentiary inquiry into an issue that the board had not previously addressed, but rather directed the board to undertake a reconsideration of an issue upon which the board previously had ruled. See Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 49, 818 A.2d 14 (2003).

       General Statutes § 31-248 (a) provides in relevantpartthat“[a]ny decision of a referee . . . shall become final on the twenty-second calendar day after the date on which a copy of the decision is mailed to the party, provided (1) any such appeal . . . which is filed after such twenty-one day period may be considered to be timely if the filing party shows good cause, as defined in regulations adopted pursuant to § 31-249h, for the late filing