author: DiPENTIMA, C. J.

text:
    TERRANCE CORBETT v. COMMISSIONER OF CORRECTION
    (AC 32321)
    DiPentima, C. J., and Gruendel and Bear, Js.

      Argued November 8, 2011-
    officially released January 31, 2012

      W. Theodore Koch III, special public defender, for the appellant (petitioner).

      AdamE. Mattel, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

The petitioner, Terrance Corbett, appeals from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) found that he had failed to prove that he is actually innocent and (2) precluded the testimony of Jamelle Byrd. We affirm the judgment of the habeas court.

The habeas court set forth the following relevant factual background in its memorandum of decision. “Early in the morning on June 20, 2004, gunshots were fired into [the victim’s] apartment, which is located in building twelve in the P.T. Bamum apartment complex in Bridgeport .... [The victim] told the police that she saw the petitioner and Phillip Scott outside her apartment building around 11 p.m. on June 19, 2004. Later in the day on June 20, 2004, the police arrested Scott, who was in possession of a gun. The police linked the gun to the shooting incident at [the victim’s] apartment. Scott told the police that he saw the petitioner around 4:30 a.m. on June 20, 2004, and that the petitioner gave him the gun and told him to get rid of it, after stating that he had just shot at [the victim].”

In September, 2006, the petitioner entered guilty pleas in three cases, pursuant to the Alford doctrine, to possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), two counts of criminal possession of a firearm in violation of General Statutes § 53a-217 (a), two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63 and threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). In October, 2006, the petitioner filed several self-represented motions to withdraw his guilty pleas, which were denied. The trial court sentenced the petitioner, in accordance with his plea agreement, to a total effective sentence of sixteen years in prison, suspended after seven years, followed by three years of probation. The petitioner did not file a direct appeal.

In April, 2009, the petitioner filed his third amended petition for a writ of habeas corpus, alleging actual innocence with respect to all but the possession of narcotics conviction, ineffective assistance of counsel with respect to the possession of narcotics conviction and ineffective assistance of counsel at the hearing on the motion to withdraw his guilty pleas. The respondent, the commissioner of correction, filed a return denying the material allegations of the petition and raising two special defenses. First, the respondent asserted that the petitioner’s claims were barred under the doctrine of res judicata because he had raised similar claims during a hearing on his motion to withdraw his pleas. Second, the respondent asserted that the petitioner was procedurally defaulted as to the claims in count two of his petition by failing to present any further evidence at the hearing on the motion to withdraw his pleas and by failing to appeal the court’s decision denying this motion. After a trial, the court denied the petition for a writ of habeas coxpus. The petitioner then filed a petition for certification to appeal, which was granted. This appeal followed.

I

The petitioner first claims that the court improperly found that he had failed to prove that he is actually innocent. We disagree.

We first set forth the applicable standard of review. “Even without an underlying constitutional violation that affected the result of his criminal trial, a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus .... To prevail, a petitioner must satisfy two criteria. First, [he] must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” (Citation omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 733, 789 A.2d 1046 (2002) (concluding that petitioner who had entered Alford plea failed to establish actual innocence during habeas proceeding).

“With respect to the first component of the petitioner’s burden, namely, the factual finding of actual innocence by clear and convincing evidence . . . [t]he appropriate scope of review is whether, after an independent and scrupulous examination of the entire record, we are convinced that the finding of the habeas court that the petitioner is [not] actually innocent is supported by substantial evidence.” Miller v. Commissioner of Correction, 242 Conn. 745, 803, 700 A.2d 1108 (1997). “[T]he clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . We have stated that the clear and convincing standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 444-45, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

“[0]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence. . . . This court, nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence. ... [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered. . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.” (Internal quotation marks omitted.) Id., 444.

Here, the petitioner argues that his claim of actual innocence, upon an independent review of the entire record, is supported by substantial evidence, despite the court’s determination that the testimony of three witnesses who provided newly discovered evidence was not credible. We are not persuaded.

The court, after reviewing the evidence before it, concluded that the petitioner “has not established by clear and convincing evidence that he is actually innocent of the charges to which he pleaded guilty in CR-04-200589 and that no reasonable fact finder would find him guilty of the charges.” The court, in drawing this conclusion, discredited the testimony of Travon Jones, Tamica Porter, Scott and the petitioner. In support of its credibility determination, the court explained that there were a number of inconsistencies in their accounts. The court noted that although “both Travon Jones and Porter testified that they told several people, including the public defender’s investigator, that the petitioner could not have fired a gun into [the victim’s] apartment that morning,” attorney Joseph Bruckmann, counsel for the petitioner on his motion to withdraw his guilty pleas, “testified to the contrary that his investigator could not contact Travon Jones and that his file does not contain any helpful information obtained from Porter.” The court also noted that although the petitioner’s testimony “attempted to reconcile these inconsistencies, he had the benefit of testifying after having heard the testimony of Travon Jones, Porter and Scott.” As we have noted, the clear and convincing standard of proof “should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory. ” (Emphasis added; internal quotation marks omitted.) Charlton v. Commissioner of Correction, 51 Conn. App. 87, 90, 719 A.2d 1205 (1998) (petitioner did not establish actual innocence where court discredited testimony of petitioner’s witnesses), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999); see also Vazquez v. Commissioner of Correction, supra, 128 Conn. App. 446 (same).

With regard to Scott’s testimony, the corut explained that, among other things, his recantation and own confession at the habeas trial most likely were motivated by his friendship with the petitioner. “As an appellate court, we do not reevaluate the credibility of testimony, nor will we do so in this case. The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn. App. 725, 736, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010). “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... This court does not retry the case or evaluate the credibility of witnesses. Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) Doehrer v. Commissioner of Correction, 68 Conn. App. 774, 784, 795 A.2d 548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002).

On the basis of the record before us, we agree with the habeas court that the petitioner has failed to establish by clear and convincing evidence that he is actually innocent and that no reasonable fact finder would find him guilty.

II

The petitioner next claims that the court improperly precluded the testimony of Jamelle Byrd. Specifically, the petitioner argues that the proffered testimony should have been admitted into evidence under the residual exception to the hearsay rule. We disagree.

Our standard of review is well established. “Unless an evidentiary ruling involves a clear misconception of the law, the [t]rial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 602-603, 940 A.2d 789 (2008). “Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Walker v. Commissioner of Correction, 103 Conn. App. 485, 501, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

At trial, the petitioner attempted to elicit testimony from Byrd that Scott had told him that it was Scott himself, and not the petitioner, who had committed the shootings. The respondent objected to the proffered testimony on hearsay grounds. The petitioner countered that the statement constituted a declaration against penal interest. The court sustained the respondent’s objection. The petitioner then made an offer of proof indicating that Byrd would have testified that Scott told him that Scott shot at the victim’s house because she had been “talking trash to [him]” and that he lied to police when he told them that the petitioner was responsible for the shooting.

In May, 2009, the petitioner filed a renewed offer of Byrd’s testimony, claiming that it should have been admitted into evidence under the residual exception to the hearsay rule. This motion was denied. Following the filing of his appeal, the petitioner filed a motion for articulation, requesting that the court articulate why it did not admit Byrd’s testimony into evidence. The court denied this motion. The petitioner then filed a motion for review with this court. We granted the motion in part and ordered the court to articulate why it denied the petitioner’s request to admit the testimony into evidence under the residual exception to the hearsay rule. In February, 2011, the court issued an articulation in which it concluded that Byrd’s testimony did not fall under the residual exception to the hearsay rule. First, the court found that the proffered testimony was not reasonably necessary because Scott was available as a witness, as he had testified at the habeas trial. The court also determined that the proffered testimony did not bear the requisite indicia of reliability and trustworthiness for admission into evidence under the residual exception to the hearsay rule.

“[A]n out-of-court statement offered to establish the truth of the matter asserted is hearsay. ... As a general rule, such hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule. ... A hearsay statement that does not fall within one of the traditional exceptions to the hearsay rule nevertheless may be admissible under the residual exception to the hearsay rule provided that the proponent’s use of the statement is reasonably necessary and the statement itself is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.” (Internal quotation marks omitted.) State v. Faison, 112 Conn. App. 373, 383-84, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009); see also Conn. Code Evid. § 8-9.

The proffered testimony was not reasonably necessary. “Reasonable necessity may be established by showing that unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.” (Internal quotation marks omitted.) Skakel v. State, 295 Conn. 447, 623, 991 A.2d 414 (2010) (Palmer, J., dissenting). As we have noted, the declarant, Scott, was available as a witness, as he had already testified at trial. The petitioner argues that although Scott was available, there was no “equally probative” alternative source for the statement because the statement would have corroborated Scott’s testimony, thereby bolstering the credibility of Scott, Jones, Porter and the petitioner. The petitioner’s argument misses the point. Scott testified at trial and confessed to the shootings. Scott’s testimony does not fall under any elements of the definition of unavailability found in rule 804 (a) of the Federal Rules of Evidence. See State v. Colon, 272 Conn. 106, 213, 864 A.2d 666 (2004) (affirming exclusion of hearsay statement where similar statement already was before jury), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Adams, 52 Conn. App. 643, 658, 727 A.2d 780 (1999) (hearsay statements properly precluded where declarant was available to testify), aff'd, 252 Conn. 752, 748 A.2d 872, cert. denied, 531 U.S. 876, 121 S. Ct. 182, 148 L. Ed. 2d 126 (2000); State v. Middlebrook, 51 Conn. App. 711, 726-27, 725 A.2d 351 (affirming exclusion of testimony that third party confessed to crime where declarant was available and able to testify), cert. denied, 248 Conn. 910, 731 A.2d 310 (1999). Moreover, “[m]erely because a greater number of witnesses testify as to a particular version of the facts does not make that version binding on the trier.” Charlton v. Commissioner of Correction, supra, 51 Conn. App. 91; see id., 89-90 (court properly discredited testimony of two convicted felons who corroborated petitioner’s account of events). Accordingly, we conclude that the court properly determined that Byrd’s testimony was not admissible into evidence under the residual exception to the hearsay rule.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       In the petitioner’s third amended petition, he claimed that he also was actually innocent of the charges to which he had pleaded guilty in docket number CR-04-200588, which included one count each of criminal possession of a firearm, reckless endangerment and threatening. The petitioner, however, does not raise this claim on appeal. Therefore, our review is confined to the petitioner’s claim that he is actually innocent of the charges to which he pleaded guilty in docket number CR-04-200589, which included one count each of criminal possession of a firearm and reckless endangerment.

       The respondent argues that the petitioner’s claim is not renewable because “a petitioner who relinquished his right to a trial cannot claim actual innocence in a collateral habeas proceeding.” This court has reviewed claims of actual innocence, however, even where the petitioner had entered an Alford plea. See, e.g., Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 718, 732-33, 789 A.2d 1046 (2002). We therefore will review the petitioner’s claim.

       The respondent argues that the court improperly determined that the proffered evidence was “newly discovered.” Because we agree with the habeas court that the petitioner has not established by clear and convincing evidence that he is actually innocent and that no reasonable fact finder would find him guilty, we need not address this argument.

       The petitioner also claims that Byrd’s testimony should have been admitted into evidence as a prior consistent statement to rebut a claim of recent falsification. The respondent counters that this claim should not be reviewed because it was not preserved. The petitioner, in his second renewed offer of Byrd’s testimony, only cited to rule 801 (d) (1) (B) of the Federal Rules of Evidence in making this claim, and did not cite to the Connecticut Code of Evidence. The court denied the motion, noting the “absence of any showing or indication that Federal Rule of Evidence 801 (d) (1) (B) has been adopted by the Supreme Court of Connecticut or otherwise is applicable in state court proceedings.”
      “Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection.” (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 739, 631 A.2d 288 (1993). Moreover, “[ajlthough the [c]ode follows the general format and sometimes the language of the Federal Rules of Evidence, the [c]ode does not adopt the Federal Rules of Evidence or cases interpreting those rules.” (Internal quotation marks omitted.) State v. DeJesus, 288 Conn. 418, 500 n.7, 953 A.2d 45 (2008). We therefore decline to review this claim.

       The petitioner’s motion for review also requested that we order the court to articulate why the proffered testimony was not admissible into evidence as a prior consistent statement to rebut a charge of recent fabrication. We denied this portion of the petitioner’s motion.

       “Our Supreme Court adopted the definition of unavailability found in rule 804 (a) of the Federal Rules of Evidence. State v. Bryant, 202 Conn. 676, 694, 523 A.2d 451 (1987) (specifically adopting rule 804 [a] [1]); State v. Munoz, 233 Conn. 106, 140, 659 A.2d 683 (1995) (implicitly adopting rule 804 [a] [1] through [5]).” State v. Middlebrook, 51 Conn. App. 711, 726, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999). Rule 804 of the Federal Rules of Evidence provides in relevant part: “(a) Definition of unavailability. ‘Unavailability of a witness’ includes situations in which the declarant ... (2) persists in refusing to testily concerning the subject matter of the declarant’s statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant’s statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity . . . .”

       Because we conclude that the proffered testimony was not necessary, we need not address whether the petitioner satisfied the reliability prong of the residual exception to the hearsay rule.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    KATARI HASLAM-JAMES v. KIMBERLY LAWRENCE
    (AC 32761)
    Lavine, Bear and Mihalakos, Js.

      Argued October 25, 2011
    officially released January 31, 2012

      Cecil J. Thomas, for the appellant (plaintiff).

      Doris B. D Ambrosio, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Katari Haslam-James, appeals from the trial court’s judgment in favor of the defendant, Kimberly Lawrence, on two counts of her revised entry and detainer complaint. The plaintiff claims that the court erred in (1) concluding that the defendant’s actions did not constitute an unlawful entry in violation of General Statutes § 47a-16 and thereby entitle her to damages under General Statutes § 47a-18a and (2) concluding that the defendant’s actions did not violate the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On June 17, 2010, the defendant filed a summary process action against the plaintiff in the Housing Session of the Hartford Superior Court. On August 2, 2010, the court rendered judgment pursuant to a stipulated agreement reached by the parties through court-ordered mediation. In the stipulation, the parties agreed to a final stay of execution through August 10, 2010. The defendant agreed to return $800 of the plaintiffs $1200 security deposit no later than August 6, 2010, and the plaintiff agreed to leave the premises in “broom-clean condition” and return her keys to the defendant upon vacating.

On August 16, 2010, the plaintiff filed a three count amended complaint. In the first count, the plaintiff alleged that on August 6, 2010, the defendant entered her dwelling unit, changed the locks and removed, damaged or took possession of certain personal property belonging to her in violation of General Statutes § 47a-43. In the second count, the plaintiff alleged that the defendant’s actions constituted a violation of § 47a-16 and she sought damages pursuant to § 47a-18a. In the third count, the plaintiff alleged that the defendant’s actions on August 6 in changing the locks to her apartment and refusing her access through the end of the period staying execution violated both the terms of the parties’ stipulation and CUTPA.

On August 31, 2010, the court heard evidence and oral argument on the present matter. Later that day, the court filed a memorandum of decision, rendering judgment in favor of the plaintiff on the first count of the amended complaint and for the defendant on the two remaining counts. Pursuant to General Statutes § 47a-45a, the comí awarded the plaintiff $ 139 as restitution for property the defendant removed in violation of § 47a-43. On September 17, 2010, the plaintiff filed a motion to reargue and, on September 20, 2010, the court denied that motion. This appeal followed. On November 5,2010, after the filing of the present appeal, the plaintiff filed a motion for articulation pursuant to Practice Book § 66-5 and, on December 2, 2010, the court issued an articulation of its decision.

The court articulated, as to the first count of the amended complaint, that the defendant entered the apartment and changed the locks at a time when the plaintiff was still the actual possessor of the property. The court further found that “[a]fter being made aware that the plaintiff was still in possession of the premises, there was a delay by the defendant in providing the plaintiff with access to the premises to remove her belongings.”

As to the second count, the court articulated that the defendant, “having been informed by Valeria Calloway, an employee of the Hartford Housing Authority, that the plaintiff had vacated the premises, did enter those premises and begin the process of cleaning the dwelling unit. The sworn testimony established that the plaintiff told Ms. Calloway that she had moved from the premises.” The court further articulated that “the defendant’s entry was not an abuse of her right of entry based on the [defendant’s] reliance on information from the Hartford Housing Authority. ... In the context of the evidence presented as to the time frame for the plaintiff to vacate the premises pursuant to a stipulation between the parties, the court [found] the defendant’s reliance on information from the plaintiff transmitted through a representative from the Hartford Housing Authority, to be reasonable.”

As to the third count, the court articulated that the actions of the defendant, “given the nature of the stipulated agreement and the evidence adduced at trial,” did not constitute a practice prohibited under CUTPA. The court further articulated that “the defendant’s actions, in their totality, including returning the plaintiffs security deposit related to the underlying tenancy, were undertaken in good faith and not to perpetrate an unfair or deceptive trade or practice.”

I

On appeal, the plaintiff first claims that, having found her in actual possession of the premises, the court erred in concluding that the defendant’s conduct did not violate § 47a-16. Specifically, the plaintiff argues that by finding the defendant’s actions justified due to her reliance on information provided by Calloway, the court improperly created an exception not found in the plain language of § 47a-16 (d). The plaintiff contends that permitting a landlord “to rely upon the representations of a third party with no possessory interest in the subject premises and without making any effort to contact the tenant prior to entry, creates an absurd and unworkable result. Such a holding creates precedent for potentially limitless exceptions to a rule that has ancient public policy considerations.” We disagree.

The plaintiffs claim raises a question of statutory interpretation, over which our review is plenary. See Bengtson v. Commissioner of Motor Vehicles, 86 Conn. App. 51, 56, 859 A.2d 967 (2004), cert. denied, 272 Conn. 922, 867A.2d837 (2005). “Relevant legislation and precedent guide the process of statutory interpretation. [General Statutes § l-2z] provides that, [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Rodriguez v. Ancona, 88 Conn. App. 193, 197, 868 A.2d 807 (2005).

Generally, a landlord may not enter a dwelling unit without the consent of the unit’s tenant. Section 47a-16 (d) codifies four exceptions to that general rule, including, inter alia, allowing a landlord to enter a dwelling unit without consent “in case of emergency” and where “the tenant has abandoned or surrendered the premises.” General Statutes § 47a-16 (d) (1) and (4). The plaintiff asks this court to adopt a narrow reading of § 47a-16 (d), essentially requiring a court to award damages pursuant to § 47a-18a whenever a landlord enters a tenant’s apartment without consent while the tenant remains in actual possession of the premises, regardless of the reasonableness of the landlord’s conduct.

Although § 47a-16 (d) does not provide explicitly for consideration of the reasonableness of a landlord’s belief that a tenant has vacated or abandoned a dwelling unit, such legislative silence does not necessarily create an ambiguity in whether to apply a reasonableness standard. See, e.g., Manifold v. Ragaglia, 272 Conn. 410, 419, 862 A.2d 292 (2004) (silence in statute does not necessarily equate to ambiguity). Considering the text of § 47a-16 and its relationship to other statutes, we conclude that a proper reading of the statute permits consideration of the reasonableness of a landlord’s conduct.

In support of our conclusion, we note the language of General Statutes § 47a-11b (c), which provides in relevant part: “The landlord shall not be required to serve a notice to quit . . . and bring a summary process action ... to obtain possession or occupancy of a dwelling unit which has been abandoned. Nothing in this section shall relieve a landlord from complying with the provisions of sections 47a-1 to 47a-20a, inclusive ... if the landlord knows, or reasonably should know, that the occupant has not abandoned the dwelling unit.” (Emphasis added.) Thus, the foregoing sentence in § 47a-11b (c) requires an examination of the reasonableness of a landlord’s knowledge in circumstances where an abandonment of a dwelling unit has not occurred. Although this statute is of limited applicability under the facts of this case, in which the defendant already has resorted to the dispossession procedure provided by the summary process statutes, we find its reference to a reasonableness standard to be instructive.

Moreover, practical realities counsel against finding a landlord liable for entry into a tenant’s apartment when such entry is predicated on facts creating a reasonable belief that an exception to the notice requirement of § 47a-16 applies. For example, it could be a disproportionate result for a landlord to pay at least one month’s rent and attorney’s fees to a tenant in a situation where the landlord, at the time of entry into a dwelling unit, acted pursuant to a reasonable, good faith belief that an emergency existed, even if the landlord, ultimately, was mistaken, hi light of the specific exception for emergency action, we do not think the legislature intended to discourage a landlord’s action under such circumstances. See, e.g., Shortell v. Cavanagh, 300 Conn. 383, 388-89, 15 A.3d 1042 (2011) (recognizing that “those who promulgate statutes ... do not intend to promulgate statutes . . . that lead to absurd consequences or bizarre results” [internal quotation marks omitted]). The landlord’s good faith factually based belief that the tenant has abandoned or surrendered the premises should result in the same conclusion.

We perceive no clear error in the court’s finding that the defendant’s reliance on information conveyed by Calloway was reasonable under the circumstances, and we note that the plaintiff does not challenge this finding. Here, the defendant abided by the statutes governing summary process and entered into a stipulated agreement accepted by the court for judgment and delaying the initiation of her right to obtain possession of the unit by execution against the plaintiff. Under the facts of this case, as found by the court, it was not unreasonable for the defendant, on the basis of the information provided by Calloway that the plaintiff had abandoned or vacated the premises, to act earlier than the parties’ stipulation had required. Accordingly, we determine that the court did not err in concluding that the defendant did not violate § 47a-16 when she acted in reliance on representations of the plaintiff conveyed through Calloway, an employee of the Hartford housing authority, that the plaintiff had abandoned or surrendered the subject premises.

II

The plaintiff next claims that the trial court erred in concluding that the defendant’s actions did not violate CUTPA. The plaintiff argues that the trial court should have found a violation of CUTPA under that statute’s public policy prong based on the court’s finding that the defendant violated § 47a-43 (a). In addition, the plaintiff argues that the court erred in “finding that the defendant acted in good faith, and in finding that such good faith constituted a defense to a finding of a CUTPA violation.” We disagree.

“Whether the defendant is subject to CUTPA is a question of law, not fact. . . . [W]hether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Szekeres v. Szekeres, 126 Conn. App. 829, 841, 16 A.3d 713, cert. denied, 300 Conn. 939, 17 A.3d 475 (2011).

“CUTPA was designed to protect the public from unfair practices, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy. Certainly, therefore, a violation of CUTPA can be found . . . where the defendant’s actions violate the public policy found in two subdivisions of . . . § 47a-43 (a). Subdivisions (3) and (4) of § 47a-43 (a) establish causes of action ‘[w]hen any . . . person enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor’ or ‘when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession

“These provisions of § 47a-43 uphold the long-standing public policy against proceeding by way of self-help remedies when evicting a tenant, especially when a landlord has available the summary process procedures found in chapter 832 of the General Statutes. This public policy dictates that landlords proceed . . . according to those statutes put in place to enable them to enforce their legal rights.” Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257-58, 550 A.2d 1061 (1988).

Here, the defendant’s conduct, although ultimately determined to be in violation of § 47a-43, did not violate the public policy that our entry and detainer statutes seek to uphold. The defendant was not attempting to exercise a self-help remedy, as she previously had availed herself of the statutory summary process procedures to initiate and pursue proceedings in court to recover possession of the unit occupied by the plaintiff. Rather, the court found that the defendant was acting pursuant to a reasonable, albeit mistaken, belief that the plaintiff had vacated fully the premises approximately five days earlier than the parties’ stipulation required.

Although the plaintiff makes much of the language in Daddona that “the subjective good faith of one who has in fact performed an unfair or deceptive act is not a defense to a CUTPA violation”; (internal quotation marks omitted) id., 255; we defer to the court’s finding that the defendant’s actions, “given the nature of the stipulated agreement and the evidence adduced at trial,” were neither unfair nor deceptive.

The judgment is affirmed.

In this opinion the other judges concurred.

       On August 9, 2010, the plaintiff filed a verified lockout complaint with the Housing Session of the Hartford Superior Court. The amended complaint incorporated the allegations of the verified lockout complaint.

       The plaintiff testified that she received a rent subsidy through the “Hartford section eight [program],” which is the Section 8 Housing Assistance Payments program of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974, codified at 42 U.S.C. § 1437f (Section 8). The Hartford Housing Authority administered the local section 8 program in which the plaintiff participated, and the record reflects that Calloway’s contact with the plaintiff was to assist her concerning her housing needs. “Section 8 . . . provides for low-income housing assistance. The purpose of Section 8 is to [aid]‘low-income families in obtaining a decent place to live’ and to promote ‘economically mixed housing’ by providing assistance payments. 42 U.S.C. § 1437f (a). Section 8 also authorizes the [United States Department of Housing and Urban Development] Secretary ‘to enter into annual contribution contracts with public housing agencies pursuant to which such agencies may enter into contracts to make assistance payments to owners of existing dwelling units in accordance with this section.’ 42 U.S.C. § 1437f (b).” Diaz v. Tucwmcari, United States District Court, Docket No. CV 11-0090 (JOB) (D.N.M. December 19, 2011).

       In addition, the court credited testimony of the defendant’s agent as to the items left by the plaintiff in the apartment. The removed property included cleaning supplies, curtains, painting supplies and paint.

       General Statutes § 47a-16 provides: “(a) A tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed to repairs, alterations or improvements, supply necessary or agreed to services or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.
      “(b) A landlord may enter the dwelling unit without consent of the tenant in case of emergency.
      “(c) A landlord shall not abuse the right of entry or use such right of entry to harass the tenant. The landlord shall give the tenant reasonable written or oral notice of his intent to enter and may enter only at reasonable times, except in case of emergency.
      “(d) A landlord may not enter the dwelling unit without the consent of the tenant except (1) in case of emergency, (2) as permitted by section 47a-16a, (3) pursuant to a court order, or (4) if the tenant has abandoned or surrendered the premises.”

       General Statutes § 47a-18a provides: “If the landlord makes an entry prohibited by section 47a-16 or 47a-16a, or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may recover actual damages not less than an amount equal to one month’s rent and reasonable attorney’s fees. The tenant may also obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement.”

       Additionally, we also note that in contrast to the present facts, § 47a-11b applies in circumstances in which the occupants of a dwelling unit “have vacated the premises without notice to the landlord . . . .” General Statutes § 47a-11b (a). Here, the court found that the plaintiff conveyed notice to the defendant through Calloway that she had vacated the premises.

       General Statutes § 47a-43 (a) provides: “When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.”

       To the extent that the plaintiff challenges the court’s finding that the defendant acted in good faith, we are not persuaded. The court was in the best position to judge the testimony adduced, and our review of the record reveals evidence in support of its finding. See Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 708, 590 A.2d 968 (1991) (“[b]ecause it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings”). Accordingly, we conclude that the court’s finding that the defendant acted in good faith was not clearly erroneous.


text:
    STATE OF CONNECTICUT v. ROBERT DEARING
    (AC 33015)
    Lavine, Bear and Bishop, Js.

      Argued October 27, 2011
    officially released January 31, 2012

      Auden Grogins, special public defender, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Amy Sedensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Robert Dealing, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the court abused its discretion and violated his constitutional rights by finding that the victim was competent to testify, (2) the court abused its discretion in allowing the state to pose a hypothetical question to its expert witness because the question went to the ultimate issue in the case and (3) the prosecutor committed improprieties during trial and closing argument. We affirm the judgment of conviction.

The following facts, which reasonably could have been found by the jury, and procedural history are relevant to our analysis. The defendant was bom in 1978. The victim was bom in 2000; she suffers from pervasive developmental disorder not otherwise specified. The parents of the victim, who have lived together for between eleven and thirteen years but who are not married, and the defendant were longtime intimate friends, and the victim’s father frequently went to the defendant’s home on weekends to work on automobiles with the defendant. The victim referred to the defendant as Uncle Rob, although there was no familial relationship between them. Often, the victim accompanied her father to the home of the defendant, where she sat in the living room watching television while her father and the defendant worked on automobiles in the garage, which adjoined the living room. The father frequently would go to an auto parts store or to a convenience store while the defendant ostensibly remained in the garage working on the automobiles, and the father would leave the victim at the defendant’s home while he drove to either store, which sometimes took more than one-half hour.

On a weekend day, early in November, 2008, the victim and her father again were at the defendant’s home, and the father left to go to a convenience store to purchase drinks. When the father returned, the defendant was in the living room sitting on the couch with the victim. The defendant proceeded to tell the father that the victim had had “an accident” and that he had taken care of it. The victim appeared to be somewhat upset. The father recalled that the victim had not soiled herself since she was three or four years old and that she only needed help on occasion with her belt or her buttons when using the bathroom.

On Friday, November 14, 2008, the victim’s mother was preparing the victim for a nap when the mother discovered the victim touching her genitals. After asking the victim some questions, the mother became concerned. On Monday, the mother contacted the victim’s clinician, Natasha Jackson, who met with the mother on Tuesday and urged her to tell the father about her conversation with the victim. Later that night, the mother told the father that the victim had made allegations of sexual abuse against the defendant. On Thursday, November 20, 2008, the father and the mother took the victim to the Waterbury police department to file a complaint. The family spoke with a police officer, who gave them a card containing the names of two detectives and said that one of those detectives would contact them. After being contacted via telephone by Officer Cathleen Knapp, the mother and Knapp met at the family home on the day before Thanksgiving. An employee from the department of children and families (department), Sheila Negron, accompanied Knapp to that meeting. Knapp learned that when the mother was putting the victim down for a nap, the victim revealed that the defendant had told the victim that her private parts were dirty and needed to be cleaned and that the defendant then “cleaned” her private parts using his private parts. The mother told Knapp that the victim pointed to her vaginal and anal areas when explaining what the defendant had done. After speaking with the mother, Knapp and Negron also spoke with the victim, who reported to them that the defendant had done a “no-no” and that after telling her that she was dirty and that he had to clean her, the defendant then “cleaned” her private parts using his private parts.

Approximately one week later, on December 1, 2008, the victim was taken to Wellpath, Inc., where Jessica Alejandro, a clinical child interview specialist, conducted a forensic interview. The interview was observed by Knapp and Negron. During the interview, the victim stated that the defendant pulls her pants down and always cleans her privates with his privates. Further, using anatomical dolls, the victim demonstrated that the defendant cleans her by putting his penis into her vagina and into her anus. She also stated that he cleans her on the inside of her private not the outside. The victim commented, while looking at a drawing of a male, that the defendant’s private looks different from the drawing in that his private is big. She told Alejandro that the defendant did these things in the bathroom and while she was lying on the couch. She also stated that the defendant “didn’t want [her] to look at his privates.” When asked how it felt when the defendant cleaned her privates, the victim stated that when he cleaned the front of her private it felt okay, but when he cleaned her butt, it hurt. She also described that “pee” comes out of the defendant’s penis when he cleans her and that he wipes up the “pee” with a sponge. The victim further stated that no one else has ever tried to clean her privates in the same manner as the defendant.

On December 3, 2008, the police interviewed the defendant, advised him of his rights, applied for and were issued an arrest warrant, and ultimately arrested the defendant that same night. The defendant was charged with sexual assault in the first degree and risk of injury to a child. He was tried before a jury, found guilty on both counts and sentenced to a total effective term of thirty years incarceration, execution suspended after twenty years, with fifteen years the mandatory minimum, and twenty years probation. This appeal followed. Additional facts will be set forth where necessary.

I

On appeal, the defendant first claims that the court abused its discretion in finding that the victim was competent to testify. He further claims that the court, by refusing to find that the victim was not competent to testify, violated his due process right to confront the witness against him and his sixth amendment right to present a defense. He argues that the victim largely was unable to respond during both direct and cross-examination and that she was “unable to narrate the facts of her complaint or [to] distinguish between telling the truth and telling a he.” He contends that her inability to narrate and comprehend the facts is demonstrated by her repeated contradictory testimony, her repeated failure to give verbal responses to questions and her inability to make an in-court identification of the defendant after three attempts. The defendant further contends that the victim’s inability to distinguish between telling the truth and telling a lie is evinced, in part, by her specific answer to the question “what happens if you tell a lie?” to which she responded, “[i]t will be— it I’ll be true.” We are not persuaded.

General Statutes § 54-86h provides: “No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.” (Emphasis added.) Because “[o]ur courts have . . . [the] authority to exclude evidence that may be more prejudicial than probative [however] ... if a child sexual assault victim could only babble or could present no useful evidence, [his or her] testimony could hardly be deemed relevant or probative.” (Citations omitted.) State v. James, 211 Conn. 555, 564-65, 560 A.2d 426 (1989); see also State v. Bronson, 258 Conn. 42, 53-54, 779 A.2d 95 (2001). New people, however, inherently are incapable of testifying in some useful manner. State v. James, supra, 563. “Many witnesses, not only children, have difficulty in remembering events, understanding questions, and expressing themselves clearly, disabilities that often raise problems for the cross-examiner. . . . Inconsistencies in testimony and witness credibility [however] are matters that are wdthin the exclusive purview of the jury to resolve at trial.” (Citation omitted; internal quotation marks omitted.) State v. Aponte, 249 Conn. 735, 756, 738 A.2d 117 (1999), citing State v. James, supra, 564-65, and State v. Smith, 46 Conn. App. 600, 608, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997).

In James, “[o]ur Supreme Court, rejected] a challenge to the constitutionality of § 54-86h [and] discussed with approval ‘the modem trend [toward] the treatment of competency as simply one aspect of the credibility of a witness.’ State v. James, [supra, 211 Conn. 563]. The court found favorable similarities between § 54-86h and evidentiary provisions in federal law [specifically rule 601 of the Federal Rules of Evidence] as well as ‘the philosophy that few persons are inherently incapable of testifying in a useful manner.’ . . . The court also emphasized that admitting such evidence did not necessarily require the trier of fact to accept it as compelling evidence of any disputed material fact.” (Citation omitted.) State v. Stephen O., 106 Conn. App. 717, 727, 943 A.2d 477, cert. denied, 287 Conn. 916, 951 A.2d 568 (2008).

In State v. Aponte, supra, 249 Conn. 757-58, quoting in part State v. Weinberg, 215 Conn. 231, 242-44, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990), our Supreme Court later explained that “[i]n determining the competency of a proposed witness the trial court should consider the capacity of the witness to receive correct sense impressions, to comprehend the facts to be developed, to recollect and narrate facts intelligently, and to appreciate the moral duty to tell the truth. . . . The court . . . looked to the federal courts for guidance in how to measure the capacity required for a determination of competency. Relying on rule 601 of the Federal Rules of Evidence, we concluded that a trial court maintains the obligation to ensure that a witness’ testimony meets the minimum standard of credibility necessary to permit a reasonable person to put any credence in that testimony. ... In making this determination the court will still be deciding competency. It would, however ... be more accurate to say that the court will decide . . . minimum credibility. This requirement of minimum credibility is just one aspect of the requirement of minimum probative force — i.e., relevancy. Regardless of terminology, the trial judge may exclude all or a part of the witness’ testimony on the ground that no one could reasonably believe the witness could have observed, remembered, communicated or told the truth with respect to the event in question. . . . Finally . . . rule 601, as applied by the federal courts, establishes a reasoned approach to determining the admissibility of a witness’ testimony and adopted the rule that where the competency of a witness is challenged, the threshold question to be answered by the court is whether the testimony of that witness is minimally credible. If the testimony of a witness passes the test of minimum credibility, and is otherwise relevant, the testimony is admissible and the weight to be accorded it, in light of the witness’ incapacity, is a question for the trier of fact. . . . [T]he competency of a witness is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law.” (Citation omitted; internal quotation marks omitted.)

Reviewing the testimony of the victim within this framework, we conclude that the trial court did not abuse its discretion in concluding that the defendant had faded to prove that the victim was not competent to testify at trial. The defendant raises as an issue on appeal the victim’s lack of verbal responses, inconsistent testimony and inability to identify the defendant at trial. The jury, however, was present during her testimony and observed her responses including, but not limited to, her inability, three times during trial, to identify the defendant. We do not agree that the victim’s responses, or lack thereof at times, indicate an inability to comprehend the situation or to offer meaningful or relevant testimony. In this case, the victim was a nine year old child with developmental delays, whom the court recognized as nervous while she was in the courtroom. A review of her trial testimony reveals considerable relevant testimony. She testified that she knew she was there to talk about the defendant. She testified that the defendant did a “no-no” to her, that she often went to the defendant’s home with her father, that she watched television when she went to the defendant’s home, and that she no longer goes to the defendant’s home because he “cleaned this part and this part,” while pointing to her vaginal and buttocks areas. When presented with male and female anatomical dolls, the victim correctly demonstrated that she knew the difference between the two. When asked to demonstrate on the dolls the positioning of her clothes and the defendant’s clothes at the time the defendant touched her, the victim pulled down the undergarments of each doll to expose their genitals. She then demonstrated with the dolls how the defendant placed his penis inside her vagina and moved back and forth. She likewise demonstrated the penis of the male doll touching the buttocks of the female doll. The victim also stated that the defendant touched the inside of her vagina and her buttocks. Although the defendant makes much of the fact that some of the victim’s testimony was inconsistent and that she was unable or very hesitant to answer many of the questions posed, such facts do not equate to an inability to understand the proceedings or to offer relevant testimony; rather, such facts provide fodder for cross-examination and are appropriate for the consideration of the jury when assessing credibility. See State v. Aponte, supra, 249 Conn. 756; State v. James, supra, 211 Conn. 564-65.

The defendant also argues that the victim was “incapable of understanding the distinction between telling the truth and a he and did not comprehend the moral duty to tell the truth.” As support for this argument, the defendant points to the victim’s answer when asked what happens when you tell a he, to which, the defendant states, she responded that it “would make it true.” He also points to the victim’s response to a follow-up question that the defendant argues indicates that she did not know that she could not he. We are not persuaded.

In this case, the victim twice was administered an oath, and she agreed to teh the truth. See Practice Book § 32a-4 (a). Although the defendant argues that the victim stated that if she told a he, it would make it true, a review of the transcript reveals something different. The court specifically asked the victim: “Okay. Now, do you know the difference between telling a he and telling the truth?” To which the victim responded: “Yes.” The court quickly fohowed up by asking: “Ah right. And what happens if you teh a he?” To which the victim responded: “It will be — it I’ll be true.” (Emphasis added.) A short time later, the court asked the victim if she understood that she could not he, to which she responded: “No.” The court then found: “Given her responses and her expressions, if you will, accompany[ing] the responses, which obviously the record doesn’t pick up, but in particular the emphasis when I inquired if she understands that she cannot he,” she understood the obhgation to be truthful.

After closely reviewing the victim’s testimony and the findings of the court, which were made after its observation of the victim and which specifically discussed the victim’s demeanor during questioning, we conclude that the court did not abuse its discretion in denying the defendant’s oral motions to find the victim incompetent to testify.

II

The defendant next claims that the court abused its discretion in overruling his objection and in allowing the prosecutor to pose a hypothetical question to the state’s expert witness, Diane EdeU, a forensic interviewer, on redirect because it ehcited an answer that went to the ultimate issue in the case, namely, the credibility of the victim. He contends that this issue raises a question of constitutional dimension. The state argues that this claim is not of constitutional dimension and that the court properly permitted the hypothetical question because the question itself did not seek to elicit an opinion on the ultimate issue in the case. The state also argues that insofar as the defendant raises an issue regarding the propriety of Edell’s answer, that issue was not preserved at trial because the defendant objected only to the question posed and not to the answer it elicited, which, arguably may have gone beyond the scope of the question. Additionally, the state argues that, even if we review this evidentiary issue regarding Edell’s answer, her answer cannot be read as a comment on the ultimate issue in the case. We conclude that the defendant’s claim is not of constitutional dimension, that the issue regarding the propriety of the question was preserved properly and that the court did not abuse its discretion in overruling the defendant’s objection to the question. We further conclude that any issue regarding the propriety of Edell’s answer to the hypothetical question was not preserved and thus is not properly before us for review in the defendant’s appeal.

“Generally, the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). In Vilalastra, the court noted that the defendant had not cited “a single case from any jurisdiction in which a court has held that the erroneous admission of expert testimony concerning an ultimate fact implicates fundamental fairness or constitutes the violation of a specific constitutional right.” Id., 46-47. It explained that “[c]ourts in other jurisdictions have not attached constitutional significance to this type of evidentiary error.” Id., 47; see also State v. Grenier, 257 Conn. 797, 806-807, 778 A.2d 159 (2001) (expert’s comment on victim’s credibility is evidentiary impropriety, not constitutional in nature). It is a “well established evidentiary rule that it is improper to ask a witness to comment on another witness’ veracity . . . [and that] [a]s a matter of law, [t]he credibility of witnesses is exclusively for the determination by the jury . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 706-707, 793 A.2d 226 (2002). Accordingly, we conclude that the defendant’s claim is evidentiary in nature.

The defendant claims that the court abused its discretion in overruling his objection and in allowing the prosecutor to pose a hypothetical question to Edell. The following additional facts are relevant. During the state’s redirect examination of Edell, the following colloquy occurred:

“[The Prosecutor]: Now, I’d like to give you a hypothetical. I’m going to ask you a hypothetical question. If you could please assume the following facts, that a child is present in a forensic interview, that she is eight years of age and does have developmental delays, and through the course of the interview the child does disclose that a family friend had sexually abused her. And the abuse was penile/vaginal and penile/anal intercourse. And that that child during the interview when asked by the interviewer how it felt indicates that the vaginal intercourse felt okay. When asked about anal intercourse the child indicates, oh, no it hurt. And, actually, the child then goes and holds her bottom as she’s saying that. And further on in the interview when asked if anything came out of the family friend’s, the male’s penis, the child indicated pee-pee and that the family friend had to wipe it out with a sponge.

“Can you tell us based on your training and experience if there’s any significance to any of those factors?

“[Defense Counsel]: Objection, Your Honor. That question sounds like it’s going to elicit an opinion as to the ultimate issues in this case.

“[The Prosecutor]: Your Honor, it’s a hypothetical question. She’s already — Ms. Edell has already talked about the sensory details and counsel repeatedly asked her about the reliability of interviewers and whether or not just based on a child’s interview if one could tell if they’re telling the truth, and Ms. Edell answered— her answer was, you have to look at these factors.

“[The Court]: The objection is overruled to the extent that the question pending was whether or not it had any significance and I think everyone is aware of what’s allowed and what is not allowed. So to the extent that that was the question, did it have any significance, the objection is overruled.

“[Edell]: The things that stand out for me from that are that the child was — if the child was eight years old, the child should not be expected to know about either intercourse or anal penetration, so there is inappropriate sexual knowledge. The fact that she made a distinction between the front and the back . . . also goes to reliability and that it just gives a little more credibility to the fact that their — that she experienced them rather than somebody told her to say that that happened.

“The, again, the level of detail in terms of something coming out of the penis, again, is inappropriate sexual knowledge for a child, not something necessarily that somebody would know we were going to ask about. Having the detail of what the person did with whatever came out is, again, just detail of the sexual act that we do look for.”

Our Supreme Court has recognized that “when credibility is in issue, the risk that jurors will abdicate their responsibility to assess the victim’s credibility by inferring that an examining psychologist believed the patient is too apparent to pass off as minimal. ... It, therefore, is especially important in child sexual abuse cases that the trial court remain committed to ensuring that the jury is not tainted by improper expert testimony regarding the credibility of the child victim.” (Citation omitted; internal quotation marks omitted.) State v. Grenier, supra, 257 Conn. 809-10 n.14. “In cases that involve allegations of sexual abuse of children, our Supreme Court has held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. . . . Such evidence assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma of sexual abuse on a child. ... It is not permissible, however, for an expert to testify further to her opinion of whether a victim in a particular case is credible or that a particular victim’s claims are truthful.” (Citations omitted; internal quotation marks omitted.) State v. Grenier, 55 Conn. App. 630, 640, 739 A.2d 751 (1999), rev’d on other grounds, 257 Conn. 797, 778 A.2d 159 (2001).

The defendant argues that Edell’s testimony went to the ultimate issue in this case, namely, the victim’s credibility, and that it amounted to a constitutional violation. He alleges that the court improperly overruled his objection to the state’s purported hypothetical because it sought to elicit this improper response. The state, on the other hand, argues that the question posed was not improper and that the defendant never objected to the answer given by Edell, which, arguably, may have gone beyond the scope of the question. The state further contends that because the defendant failed to object to the answer given, the claim is not preserved. We agree that the question posed, in and of itself, did not seek to elicit an opinion of the victim’s credibility. We also agree that any claim regarding the propriety of Edell’s answer was not preserved and, therefore, is not reviewable.

A thorough review of the hypothetical posed by the prosecutor reveals that an appropriate response to the question would have been a yes or no answer. Although setting forth “hypothetical” facts that tracked the facts of this case, the prosecutor asked only whether there was any significance to any of those facts. He did not ask Edell to explain what was significant or whether there were facts that would make it more likely than not that the victim was being truthful. On the basis of the objection offered by the defendant, i.e., that the question might elicit an opinion on the ultimate issue, the court properly overruled the objection and allowed Edell to answer the specific question that was posed.

Insofar as the defendant for the first time on appeal takes issue with Edell’s answer to the question, the record reveals that, although the answer may not have been directly responsive to the specific question posed by the prosecutor, the defendant failed either to object to it or move to strike it. See 1 J. Wigmore, Evidence (Rev. Ed. 1983) § 18, p. 790 (“The initiative in excluding improper evidence is left entirely to the opponent . ... A rule of evidence not invoked is waived.”). “Where a question is objected to and the objection is properly overruled but the answer that follows contains improper evidence, the objection to the question is of no avail; a new objection must be made specifically to the answer . . . .” Id., p. 835. Accordingly, we conclude that the defendant has failed to preserve this issue for review.

The defendant also asks that, if we conclude that this issue is unpreserved, we review this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

As set forth previously in this opinion, however, we conclude that the issue is evidentiary in nature. See State v. Grenier, supra, 55 Conn. App. 637-38. Therefore, it fails Golding's second prong and is not subject to review by this court. “[T]he admissibility of expert testimony is a matter of state evidentiary law that, in the absence of timely objection, does not warrant appellate review under [Golding] . . . because it does not, per se, raise a question of constitutional significance. . . . Moreover, we have declined to attach constitutional significance to the erroneous admission of expert testimony concerning an ultimate fact.” (Citations omitted; internal quotation marks omitted.) Id.

Ill

The defendant’s final claim is that the prosecutor committed improprieties during trial and during closing argument, which affected the defendant’s ability to receive a fair trial. He explicitly points to three instances wherein he alleges that the prosecutor committed improprieties: (1) by posing an improper hypothetical question to Edell, (2) by denigrating defense counsel by suggesting that the defendant’s case was just “ ‘smoke and mirrors’ ” via the use of an octopus analogy and (3) by mischaracterizing the evidence. We are not persuaded.

Before addressing the merits of the defendant’s claim, we set forth the applicable legal principles and standard of review. “[A] claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987).” State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009). “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.) Id.

“[P]rosecutoriai [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel 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 [on] 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.) Id., 78-79.

If we conclude that prosecutorial impropriety has occurred, we then must apply the six factors enumerated in State v. Williams, supra, 204 Conn. 540, to determine whether the entire trial was so infected with unfairness that it deprived the defendant of his due process right to a fair trial. “These factors include the extent to which the [impropriety] was invited by defense conduct or argument, the severity of the [impropriety], the frequency of the [impropriety], the centrality of the [impropriety] to the critical issues in the case, the strength of the curative measures adopted, and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 80, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011). We address each of the alleged improprieties in turn.

The defendant first argues that the prosecutor’s use of a hypothetical question to Edell, as discussed in part II of this opinion, amounted to impropriety because the prosecutor knew or should have known that it would produce a response that went to the victim’s credibility. We are not persuaded. The question posed by the prosecutor, as fully explained in part II of this opinion, called for a yes or no answer, and, although Edell gave an answer that was more expansive than the question required, the defendant has pointed to nothing in the record that demonstrates that the prosecutor asked the question with the intent to elicit an improper response. Accordingly, we conclude that this argument is without merit.

The defendant next argues that the prosecutor committed impropriety when she denigrated defense counsel by suggesting that the defendant’s case was just “ ‘smoke and mirrors’ ” via the use of an octopus analogy. First, we find it necessary to clarify that the prosecutor did not use the words “smoke and mirrors” in her argument, but, rather, she set forth an octopus analogy that the defendant alleges is similar to a smoke and mirrors argument.

Relying on State v. Orellana, 89 Conn. App. 71, 103, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005), the defendant argues that the prosecutor’s octopus analogy is tantamount to an improper smoke and mirrors argument wherein the prosecutor tells the jurors that the defendant is trying to mislead and confuse them by the use of irrelevant evidence. The state responds that the use of this analogy in this case was not improper because it focused only on defense evidence and strategy, which is permissible. We conclude that the use of the analogy in this case was not improper.

“[T]he prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel. . . . State v. Orellana, [supra, 89 Conn. App. 101]. [I]t is improper for a prosecutor to tell a jury, explicitly or implicitly, that defense counsel is employing standard tactics used in all trials, because such argument relies on facts not in evidence and has no bearing on the issue before the jury, namely, the guilt or innocence of the defendant. . . . Id., 102. There is a distinction [however] between argument that disparages the integrity or role of defense counsel and argument that disparages a theory of defense. . . . Moreover, not every use of rhetorical language is improper. . . . State v. Salamon, 287 Conn. 509, 558, 949 A.2d 1092 (2008); State v. Warholic, [278 Conn. 354, 363, 897 A.2d 569 (2006)]. There is ample room, in the heat of argument, for the prosecutor to challenge vigorously the arguments made by defense counsel. State v. Orellana, supra, 103.” (Internal quotation marks omitted.) State v. Outing, supra, 298 Conn. 82-83.

The defendant argues that the following portions of the prosecutor’s closing argument were improperly similar to a smoke and mirrors argument: “Now, counsel gave you a couple of stories and he talked about a bird and an elephant. I’m going to talk about an octopus for [a] moment. And just give you an analogy. [An] octopus, one of the defense mechanisms of an octopus is that it squirts out ink and clouds the water when a predator or someone comes by and then it escapes. And I’m going to ask you to, you know, kind of do an analogy here and ask yourself what evidence in this case was interjected into the case and that clouds the water, but when you really look at it, it has nothing to do with this case. It has nothing to do with judging the credibility of witnesses or is it just an attempt to [deflect] the attention away from the child, to [deflect] the attention away from what she told Officer Knapp, what she told Ms. Negron when she was present with Officer Knapp, what she told her mother, what she told Jessica Alejandro, what she told you all here in court. Is it just an attempt to have you not consider the child and to be overwhelmed and shocked by the other evidence and perhaps you’ll forget about what it was that the child told everybody?”

After reviewing the closing argument in its entirety, we are not persuaded that this argument was improper. Immediately before setting forth this octopus analogy, the prosecutor specifically tied the analogy to the evidence of the sexual relationship between the defendant, the father and the mother. She told the jury: “Now, we know there was evidence here of the consensual, sexual relationship amongst the three adults .... And we know that we heard evidence that the defendant and the child’s mother had sexual relations, we know that the child’s father was present on many occasions and actually participated as well. That type of evidence perhaps you didn’t expect to hear, you didn’t think you would hear, but you heard it, and, again, those are the facts in this case. But what relevance, if any, does that have in a case where an eight year old child is telling you that this defendant sexually assaulted her and she’s able to give you the details of what acts this defendant perpetrated upon her?” Furthermore, immediately after setting forth the octopus analogy, the prosecutor asked the jury: “What really does this particular consensual, adult relationship have to do with the credibility of [the victim]? How does that affect her credibility? ... So I ask you not to lose sight of why we’re here and not allow this type of evidence that is used to put a cloud over the parents’ head, not allow this evidence at all to play a part in your decision-making, if you think after you all talk that it has nothing to do with the particular case. There is absolutely no evidence whatsoever that on those few occasions that the child observed anything that was going on and you’re not allowed to speculate. There’s absolutely no evidence whatsoever.”

Here, it is clear that the prosecutor was telling the jury not to be confused by the evidence of the sexual relationship between the adults — that it had no bearing on whether the victim had been abused by the defendant. We conclude that such argument, in this context, was not improper.

The defendant also points to two other instances wherein he alleges that the prosecutor made an improper analogy during closing argument. The prosecutor argued: “I’m just going to go back a moment to that octopus and the ink and the cloudy water, and ask you, again, all this other stuff that’s interjected into this case. Is it reasonable to infer it’s just to get you all off the track of [the victim], to get you to deflect the attention from the fact that she can tell you that the child— excuse me — that the defendant ejaculated, that he had to wipe the semen from her body so there would be no evidence of it? To take away from the fact that the child said, anal sex hurt, to take away from the fact that this child knew what vaginal intercourse was, what anal intercourse was.”

A review of the transcript reveals that immediately after this argument, the prosecutor stated: “There was some talk at some point about marijuana and the mother and the father, what does that have to do with the case? [The department] . . . Ms. Negron said there was no neglect. Why are we asking — why is the attorney asking about that? So all of these clouds that have been interjected into this case are injected to sort of cloud up what you all are seeing. You all go through it all and decide whether or not you think that it has anything to do with the case.” Again, we conclude that the prosecutor properly tied this analogy to the evidence and argued that some of the evidence had nothing to do with the defendant’s assault of the victim and that the jury should not be confused by the evidence. Such argument, in this context, was not improper.

The defendant also points to the following portion of the prosecutor’s closing argument: “So, all of these clouds that have been interjected into this case are injected to sort of cloud up what you all are seeing. You all go through it all and decide whether or not you think that it has anything to do with the case. And I submit to you, once all those clouds settle and you take a look at the case, this is what you’re going to see.” The prosecutor then played the video recording of the victim’s forensic interview for the jury. Again, there is nothing improper in this argument. The prosecutor clearly told the jury that it had to look at the evidence presented, decide what was important and return a verdict after so doing. This was not improper.

The defendant’s final claim of prosecutorial impropriety alleges that the prosecutor improperly mischaracterized the evidence in the case. He argues that “[d]uring closing argument, the prosecutor improperly argued to the jury, that [the victim’s] late . . . reporting of this incident was due to the fact that she had been threatened [by the] defendant. This mischaracterization of the evidence was not supported by the facts produced at trial.” We disagree.

“While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.” (Internal quotation marks omitted.) State v. Rowe, 279 Conn. 139, 159, 900 A.2d 1276 (2006). “It is well settled that a prosecutor must not comment on evidence that is not part of the record, nor is he to comment unfairly on the evidence adduced at trial so as to mislead the jury.” (Internal quotation marks omitted.) State v. Johnson, 82 Conn. App. 777, 793, 848 A.2d 526 (2004).

The defendant argues that the prosecutor’s statement to the jury that “[tjhis defendant threatened [the victim], told her if you tell your daddy he’s going to get mad at you” was not based in evidence and was improper. We disagree.

During trial, the father testified that he asked the victim what had happened with the defendant and that the victim told him that the defendant instructed her “not to say anything to her father because her father would get mad if he found out.” During her forensic interview with Alejandro, the victim also told Alejandro that her father would “get really mad.” Although the victim’s statement to Alejandro was spontaneous and not related to any question posed by Alejandro regarding whether she had been threatened by the defendant, the victim’s statement bolsters the father’s testimony regarding what the victim had told him. Furthermore, although the defendant argues on appeal that the father’s testimony was hearsay, this issue is not before us. The father’s testimony was evidence that was before the jury, and it was proper for the prosecutor to comment on it.

Additionally, we also disagree with the defendant’s argument that this could not be considered a threat. “A threat is 1. an indication of something impending and usually undesirable or unpleasant ... 2. something that by its very nature or relation to another threatens the welfare of the latter. ... A threat has also been defined as any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action [which] alone constitutes consent.” (Internal quotation marks omitted.) State v. Skidd, 104 Conn. App. 46, 58-59, 932 A.2d 416 (2007); see State v. Cook, 287 Conn. 237, 257 n.14, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). When an adult abuser warns his eight year old victim not to tell her father that he is sexually abusing her because her father will get mad, we conclude that such a warning constitutes a threat. In this case, the defendant’s statements were meant to deter the victim from voluntarily revealing his continuing abuse of her by producing fear in her that her father would become angry if she revealed such information to him.

On the basis of our review of the record, we conclude that the prosecutor’s remarks constituted fair comment, asking the jury to draw a reasonable inference from the evidence presented at trial. We therefore conclude that the defendant’s claim that the prosecutor mischaracterized the evidence lacks merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       “Pervasive developmental disorder” is defined as “[a]ny of a group of disorders of infancy, childhood, or adolescence that are characterized by distortions in the development of the basic psychological functions such as language, social skills, attention, perception, reality testing, and movement.” American Heritage Stedman’s Medical Dictionary (2001) p. 627.
      According to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Ed. Text Rev. 2000): “[The] category [‘pervasive developmental disorder not otherwise specified’] should be used when there is a severe and pervasive impairment in the development of reciprocal social interaction associated with impairment in either verbal or nonverbal communication skills or with the presence of stereotyped behavior, interests, and activities, but the criteria are not met for a specific Pervasive Developmental Disorder, Schizophrenia, Schizotypal Personality Disorder, or Avoidant Personality Disorder. For example, this category includes ‘atypical autism’ — presentations that do not meet the criteria for Autistic Disorder because of late age at onset, atypical symptomatology, or subthreshold symptomatology, or all of these.” (Emphasis omitted.) Id., p. 84.

       The victim’s mother specifically testified that she had known the defendant for approximately twelve years and that they had maintained a sexual relationship for ten of those twelve years. She also testified that the father was aware of the relationship, that he also was involved in it and that the three of them had sexual relations in the garage at the defendant’s home, sometimes while the victim was in the adjoining living room. The mother admitted that she did not tell the police or anyone involved in the investigation about this relationship, which she said ended when the victim made allegations against the defendant.

       In 2011, Wellpath, Inc., merged with Morris Foundation. The new organization is known as Wellmore Behavioral Health.

       On January 2, 2009, the victim was taken to Yale-New Haven Hospital, where pediatric nurse practitioner Janet Murphy, who also is the associate medical director of the Child Sexual Abuse Evaluation Clinic, performed a medical examination of the victim. Murphy reported that the victim’s medical examination was normal and that her examination neither confirmed nor refuted the allegations of sexual abuse. She further explained that a lack of physical ipjury did not mean that something did not happen to the victim.

       The defendant, in at least one portion of his brief, misquotes the victim as saying “ ‘It will be — It ill be true.’ ” He also used this language during oral argument before this court, attempting to emphasize that it appeared that the victim was saying it will be true. We note, however, that the actual response, as reflected in the transcript, was “[i]t will be — it I’ll be true.” (Emphasis added.) The state argued during oral argument that, in its opinion, the victim was saying she would be true, i.e., truthful.

       Rule 601 of the Federal Rules of Evidence provides in relevant part: “Every person is competent to be a witness except as otherwise provided in these rules. ...”

       See footnote 6 of this opinion.


author: PER CURIAM.

text:
    CITIBANK (SOUTH DAKOTA) N.A. v. RICHARD M. FARINA
    (AC 32670)
    Gruendel, Lavine and Espinosa, Js.

      Argued January 10
    officially released January 31, 2012

      RichardM. Farina, pro se, the appellant (defendant).

      Julie B. Solomon, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this action to collect on an unpaid credit card debt of approximately $15,000, the self-represented defendant, Richard M. Farina, appeals from the trial court’s denial of his motion to open and to vacate the judgment. We affirm the judgment of the trial court.

On May 12, 2009, the plaintiff, Citibank (South Dakota) N.A., filed its complaint. On October 21, 2009, the court granted the plaintiffs motion for summary judgment. The defendant timely filed an appeal in this court, which affirmed the judgment of the trial court. Citibank (South Dakota) N.A. v. Farina, 122 Conn. App. 901, 995 A.2d 649, cert. denied, 299 Conn. 901, 10 A.3d 519 (2010).

Less than two months after this court’s decision was issued, the defendant filed a motion to open and to vacate the judgment. On September 2, 2010, the trial court denied the defendant’s motion and sustained the plaintiffs objection to it. In its articulation of its ruling, the trial court made a finding that the issues raised by the defendant in his motion were frivolous.

Although the issues framed in the defendant’s statement of issues are, on their face, cogent, his analysis of them is not. Like the trial court, we conclude that the issues raised by the defendant are frivolous. Accordingly, we affirm the judgment of the trial court.

The judgment is affirmed.