author: PER CURIAM.

text:
    AJMAL MEHDI v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 34501)
    DiPentima, C. J., and Sheldon and Schaller, Js.

      Argued March 18
    —officially released August 13, 2013

      Ajmal Mehdi, self-represented, the appellant (plaintiff).

      David L. Kent, human rights attorney, for the appel-lee (named defendant).
   Opinion

PER CURIAM.

The self-represented plaintiff, Ajmal Mehdi, appeals from the judgment of the Superior Court dismissing his administrative appeal of the decision of the defendant Commission on Human Rights and Opportunities to dismiss his discrimination complaint. We conclude that the court properly dismissed the plaintiffs appeal, and therefore affirm the judgment of the Superior Court.

The following facts and procedural history are relevant to our discussion. On August 19, 2010, the plaintiff filed a discrimination complaint against Thomas Curly/Associated Press, alleging that he had been denied services based, in part, on his religious beliefs in violation of General Statutes § 46a-64 (a) (1). Specifically, the plaintiff claimed that the Associated Press had discriminated against him by refusing to publish articles written by the plaintiff regarding his religious beliefs. In response, counsel for the Associated Press submitted a letter stating that the conduct alleged in the plaintiffs complaint was outside of the statutory mandate of the defendant and was protected under the federal and state constitutions and federal and state laws.

Pursuant to General Statutes § 46a-83 (b), the defendant conducted a merit assessment review of the plaintiffs complaint. The defendant concluded that the Associated Press was exempt from its jurisdiction, and therefore dismissed the plaintiffs complaint. The defendant also denied the plaintiffs request for reconsideration, noting that the first amendment to the United States constitution conferred upon the Associated Press the right to determine what articles to publish.

The plaintiff then filed an administrative appeal in the Superior Court. The court held a hearing on March 28,2012, and issued a memorandum of decision dismissing the appeal on April 2, 2012. The court conducted a de novo review of the defendant’s determination to dismiss the plaintiffs complaint. It concluded that a state agency cannot “tell a newspaper what it can or cannot print” and that the defendant “correctly determined . . . that the Associated Press was exempt from a claim of religious discrimination under § 46a-64 (a) where the plaintiffs complaint alleged a matter reserved for journalistic discretion.” This appeal followed.

We begin by setting forth our standard of review. “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. ... It is a familiar principle that a court which exercises alimited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . . This concept, however, is not limited to courts. Administrative agencies [such as the defendant] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. . . . We . . . note that because [a] determination regarding [an agency’s] subject matter jurisdiction is a question of law, our review is plenary.” (Citation omitted; emphasis added; internal quotation marks omitted.) Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn. App. 646, 649-50, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51, cert. denied, 552 U.S. 886, 128 S. Ct. 206, 169 L. Ed. 2d 144 (2007).

The Superior Court, in affirming the decision of the defendant, agreed that had the defendant required the Associated Press to publish the materials requested by the plaintiff, such an order would violate the first amendment. The court is correct under Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974), where the United States Supreme Court concluded that a Florida statute requiring newspapers to print a reply from a candidate for elected office if the newspaper had assailed the candidate’s personal character or official record was unconstitutional. Id., 258. “The clear implication has been that any such compulsion to publish that which reason tells [a newspaper publisher] should not be published is unconstitutional.” (Internal quotation marks omitted.) Id., 256; see also Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 391, 93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973) (court reaffirmed unequivocally protection of editorial judgment and free expression of views); Associated Press v. United States, 326 U.S. 1, 20 n.18, 65 S. Ct. 1416, 89 L. Ed. 2013 (1945) (newspaper not required to publish something that in its judgment should not be published).

Justice White’s concurring opinion in Miami Herald Publishing Co. contains language applicable to the present case. “But the balance struck by the [f]irst [amendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints may not be expressed. ... [A law requiring publication] runs afoul of the elementary [f]irst [a]mendment proposition that government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor. Whatever power may reside in government to influence the publishing of certain narrowly circumscribed categories of material . . . we have never thought that the [first [amendment permitted public officials to dictate to the press the contents of its news columns or the slant of its editorials.” (Citations omitted; emphasis added; internal quotation marks omitted.) Miami Herald Publishing Co. v. Tornillo, supra, 418 U.S. 260-61. Guided by this first amendment jurisprudence, we conclude that the Superior Court properly rejected the plaintiffs appeal from the defendant’s dismissal of his discrimination complaint.

The judgment is affirmed.

       The plaintiff named Charles Krich and Pekah Wallace, members of the defendant, and Thomas Curley of the Associated Press as defendants in his administrative appeal to the Superior Court. The court granted motions to dismiss these individuals, and they are not parties to this appeal. We therefore refer in this opinion to the Commission on Human Rights and Opportunities as the defendant.

       General Statutes § 46a-64 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons . . . .”

       The powers and duties of the defendant are set forth in General Statutes §§ 46a-54 and 46a-56.

       General Statutes § 46a-83 (b) provides in relevant part: “Within ninety days of the filing of the respondent’s answer to the complaint, the executive director or the executive director’s designee shall conduct a merit assessment review. The merit assessment review shall include the complaint, the respondent’s answer and the responses to the commission’s requests for information, if any, and the complainant’s comments, if any, to the respondent’s answer and information responses. If the executive director or the executive director’s designee determines that the complaint fails to state a claim for relief or is frivolous on its face, that the respondent is exempt from the provisions of this chapter or that there is no reasonable possibility that investigating the complaint will result in a finding of reasonable cause, the executive director or the executive director’s designee shall dismiss the complaint and send notice of dismissal pursuant to section 46a-86a. ...”

       The merit assessment review completed by the defendant provided: “[The plaintiff] claims discrimination based on his religion (Human Faith) because [the Associated Press] has allegedly refused to give press coverage to an organization with whom [the plaintiff] is affiliated. [The Associated Press] is a news agency whose business is gathering and dissemination of news to a global base of subscribing newspapers, broadcasters, and Internet and other news distributors. [The Associated Press] is not a place of public accommodation. [The Associated Press] is not obligated by statute to provide press coverage to any individual and/or organization and the [defendant] lacks jurisdiction over the complaint.”

       The first amendment to the United States constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

       In its brief to this court, the defendant notes that because it would have jurisdiction over the Associated Press had there been a discriminatory publication, it should have dismissed the plaintiff’s complaint for failure to state a claim upon which relief can be granted. Although we need not address this issue, we note that “[i]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason.” (Internal quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn. App. 44, 51 n.3, 19 A.3d 215 (2011); Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985 (2005); see also Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 111, 671 A.2d 349 (1996) (if evidence supports only one conclusion as matter of law, then result should be affirmed even where there is error). Under the first amendment’s protection of editorial discretion by the press, the defendant properly dismissed the plaintiffs complaint.

       See General Statutes § 4-183.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MATTHEW BOUTILIER
    (AC 34638)
    Gruendel, Beach and Alvord, Js.

      Argued April 15
    —officially released August 13, 2013

      Jodi Zils Gagne, assigned counsel, for the appellant (defendant).

      Melissa Patterson, 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

ALVORD, J.

The defendant, Matthew Boutilier, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55a. On appeal, the defendant claims that the trial court abused its discretion in (1) denying his motion to allow the jury to view the crime scene, and (2) denying his motion for a mistrial when the credibility of a witness for the state was bolstered improperly during his testimony before the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In January, 2008, the defendant and his girlfriend, Katie Krantz, lived together with their three children in a house on Waterford Street in Hartford. At approximately 9:30 p.m. on the evening of January 11, 2008, Krantz and her friends, Becky Ramos and Yajaira Aponte, went to a neighbor’s house where they drank beer and wine. While there, Ramos and Krantz each ingested an ecstasy pill and smoked marijuana. Several hours later, the three women left and went to Krantz’ house. Shortly after their arrival at approximately 1 a.m., the defendant came into the kitchen area to meet them. The three children were being cared for by Krantz’ mother and were not home that evening.

When the women indicated that they were going out again to purchase snacks and cigars, the defendant became angry and told Krantz not to leave the house. He said that if she went out, she had to leave her keys because she would not be able to come back. Krantz left her keys behind and walked out of the house with Ramos and Aponte. They were midway down the driveway when Ramos saw the defendant throwing articles of Krantz’ clothing out the front door. Ramos turned around and walked up to the defendant. She told him to pick up the clothing and to stop acting like a child; the defendant told Ramos to mind her own business. They spat at each other and Ramos intentionally spilled her beer on him. At that point, Ramos, followed by Krantz and Aponte, went after the defendant into the kitchen area and the argument between the defendant and Ramos escalated. Ramos, who was five feet, seven inches tall and weighed 126 pounds, pushed the defendant, who was almost six feet tall and weighed more than 200 pounds, away from her and managed to move him slightly backwards. The defendant told Ramos to get out of his house or “something” would happen.

Neither Krantz nor Aponte spoke to Ramos or the defendant during the argument. None of the women had a weapon. Ramos had only her cell phone in her hand. As the defendant and Ramos stood close to the door in the kitchen that led to the basement stairs, they continued yelling at each other. The defendant then quickly reached back into a cupboard shelf near the basement door and pulled out a gun. Ramos immediately put her hands up and the defendant, standing two feet or less from her, shot Ramos in the head. She immediately dropped to the floor. Aponte immediately reached for the phone on the wall to call for medical assistance. The defendant shot her in the chest. Aponte was able to run from the room, but the defendant caught up to her and fired a second shot that hit her hand. When Krantz threw herself at the defendant, Aponte crawled back to the kitchen. The defendant fled from the house and was in hiding for more than two weeks before turning himself in at the police station on January 28, 2008.

Ramos died from the gunshot wound to her head. Aponte suffered a collapsed lung and a severed finger. Krantz was uninjured. The defendant was arrested and charged with the crimes of murder, attempt to commit murder, assault in the first degree and criminal possession of a firearm. His first trial was held in September, 2009. The jury found the defendant guilty of the crimes of assault in the first degree with respect to Aponte and criminal possession of a firearm. The jury was unable to reach a unanimous verdict as to the murder and attempted murder counts, however, and the court declared a mistrial as to those charges. The defendant appealed from the judgment of conviction, and this court affirmed the judgment in State v. Boutilier, 133 Conn. App. 493, 36 A.3d 282, cert. denied, 304 Conn. 914, 40 A.3d 785 (2012).

The defendant was retried for the shooting death of Ramos. The information charged him with murder in violation of General Statutes § 53a-54a (a). At his second trial, the defendant never disputed that he shot Ramos, but he claimed that he had acted in self-defense because he believed that Ramos was “drag crazed.” Following a six day trial, the jury returned a verdict finding the defendant guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of §§ 53a-55 (a) (1) and 53a-55a. The court accepted the verdict and sentenced the defendant to forty years of incarceration, to run concurrently with the sentence he already was serving for his assault on Aponte. This appeal followed.

The defendant s first claim is that the court improperly denied his requests to allow the jury to view the crime scene. Specifically, the defendant argues that “[b]ecause self-defense was at issue, it was important for the jury to understand that the kitchen was very cramped when the defendant felt as if he was being attacked by women who were both high and drank.”

The record reflects that defense counsel made three oral requests for the jury to view the crime scene during the trial. The first request was made when Aponte was testifying, and the court instructed defense counsel to renew the request outside of the jury’s presence when both counsel could argue the matter. After the jury exited the courtroom, defense counsel renewed his request for a view of the crime scene. The court heard argument from defense counsel and the prosecutor and then denied the motion. The court stated that it did not consider it necessary to view the kitchen at that time, but that defense counsel could renew the motion: “If the context of the trial convinces me that a view is necessary, I’ll reconsider it.” The court also noted that there was a diagram of the kitchen with undisputed dimensions and that the defendant intended to show the jury a videotape of the area around the basement stairwell. The court further offered the following suggestion: “If the dimensions of the room become increasingly pertinent, we can tape off agreed upon measurements here in a courtroom for the purposes of the illustration and take photos of them.”

Defense counsel made a third request for the jury to view the crime scene on the fourth day of trial, claiming that neither the testimony of the witnesses nor photographs of the kitchen admitted as exhibits could convey “the confines of that kitchen or the steepness of the stairwell.” The prosecutor responded that she believed the photographs were sufficient. The court ruled: “I know what the issue is. I think the picture of the stairwell can be conveyed by a witness; we don’t need a view.”

Practice Book § 42-6 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, or of any other place or thing involved in the case, will be helpful to the jury in determining any material factual issue, it may in its discretion, at any time before the closing arguments, order that the jury be conducted to such place or location of such thing. . . .” In determining whether to grant 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.” (Citation omitted; internal quotation marks omitted.) State v. Oden, 43 Conn. App. 480, 483, 684 A.2d 1195 (1996), cert. denied, 240 Conn. 905, 688 A.2d 333 (1997).

In the present case, the record discloses that the jury had evidence regarding the size of the kitchen in the form of testimony, a diagram with uncontested dimensions, a videotape and several photographs. The defendant failed to persuade the trial court that a viewing of the kitchen area was necessary or important to an understanding of the proper application of the evidence. Because a ruling on a motion to view the crime scene is within the sound discretion of the trial court, its decision must stand unless we conclude that the trial court abused its discretion. State v. Cato, 21 Conn. App. 403, 409-410, 574 A.2d 240, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990). Here, the jury had sufficient evidence to allow it to assess the scene of the crime. A firsthand view of the kitchen area would have been cumulative and was neither necessary nor important to understand the issues or the evidence. Accordingly, the court did not abuse its discretion in denying the defendant’s motion for a jury view of the scene of the crime.

II

The defendant’s next claim is that the trial court abused its discretion when it denied his motion for a mistrial. He argues that the credibility of a witness for the state was bolstered improperly, which prejudiced the defendant’s case with respect to his claim of self-defense, thereby depriving the defendant of a fair trial. We disagree.

The following additional facts are necessary to resolve this issue. While incarcerated, the defendant met Fernando Bosque. Bosque claimed that the defendant confided in him about the shootings in January, 2008, and he became a witness for the state during the defendant’s second trial. Prior to Bosque’s testimony, the court gave a cautionary instruction relating to the credibility of a jailhouse informant.

When questioned by the prosecutor, Bosque testified that the defendant told him that Ramos got involved in an argument that he was having with his girlfriend. According to Bosque, the defendant said that Ramos had scratched him and that he became angry and shot her. The defendant said that he shot Ramos in the head and that he then shot off Aponte’s finger. Bosque testified that the defendant told him that he fled after he shot Ramos and Aponte and that, while he was in hiding, he came up with a story that supported a self-defense claim.

When questioned, Bosque admitted that he had been convicted of multiple felonies and was serving a fifty year prison sentence. He also conceded that he hoped for an early release date in exchange for his testimony. The prosecutor asked Bosque whether he had testified as an informant against another defendant in a previous murder trial and whether that testimony related to facts told to him by that defendant. When Bosque answered affirmatively to both questions, the prosecutor asked him whether that other defendant had been convicted. Defense counsel objected to the question, but Bosque answered “yes” before the court ruled on the objection. The court then sustained the defendant’s objection.

As soon as the jury exited the courtroom, the defendant moved for a mistrial. After listening to argument by defense counsel and the prosecutor, the court denied the defendant’s motion for a mistrial. When the jury returned, the court gave an additional cautionary instruction: “During the direct examination you heard testimony from Mr. Bosque about testifying in another proceeding. You can ignore that. Don’t use that to base any conclusions in this trial. There’s no way for you to know what happened there, whether he testified truthfully or untruthfully. That’s not before you.

“What you should concentrate on is his testimony here and whatever interest he has in his testimony; that’s legal language. In plainer language, what does he expect to gain himself by testifying here. That’s one of the things that you—one of the factors that you have to weigh in evaluating his testimony. And we’ll—I’ll give you further instructions at the end of the case.” The defendant claims that the prosecutor’s question was an attempt to vouch for Bosque’s credibility, that Bosque’s response was prejudicial to the defendant’s claim of self-defense and that the response to the prosecutor’s question “rang a bell that could no longer be unrung.” For those reasons, the defendant claims that the court’s cautionary instruction given after Bosque’s response was insufficient to cure the prejudice to his claim of self-defense and that the court should have granted his motion for a mistrial.

“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. . . . Put another way, [o]n appeal, the defendant bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 87 Conn. App. 93, 99, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005).

As previously stated, the court gave a curative instruction with respect to Bosque’s response shortly after that inadmissible testimony. “It is to be presumed that the jury followed the court’s [curative] instructions unless the contrary appears. . . . We have repeatedly acknowledged, in cases tried to a jury, that curative instructions can overcome the erroneous effect of statements that a jury should not have heard. . . . Because curative instructions often remedy the prejudicial impact of inadmissible evidence . . . [w]e have always given great weight to such instructions in assessing claimed errors. . . . Thus, [a] jury is normally presumed to disregard inadmissible evidence brought to its attention unless there is an overwhelming probability that the jury will not follow the trial court’s instructions and a strong likelihood that the inadmissible evidence was devastating to the defendant. . . . Consequently, the burden is on the defendant to establish that, in the context of the proceedings as a whole, the stricken testimony was so prejudicial, notwithstanding the court’s curative instructions, that the jury reasonably cannot be presumed to have disregarded it.” (Citations omitted; internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533-34, 737 A.2d 392 (1999).

The trial court expressly told the jury that it was not to consider any of Bosque’s testimony with respect to his testifying in a prior proceeding and that there was no way for the jurors to know whether Bosque had testified truthfully or untruthfully at that time. The jury is presumed to have followed the court’s curative instruction, and the defendant has not shown that the stricken testimony was so prejudicial that the jury reasonably cannot be presumed to have disregarded that testimony. There is nothing in the record to suggest that the jury disregarded the trial court’s instructions to ignore that portion of Bosque’s testimony when it was deliberating. We conclude, therefore, that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       There was testimony that the cigars were to be hollowed out and filled with marijuana.

       The defendant was sentenced to a total effective term of twenty-seven years of incarceration. State v. Boutilier, 133 Conn. App. 493, 496, 36 A.3d 282, cert. denied, 304 Conn. 914, 40 A.3d 785 (2012).

       The court gave the following instruction: “Mr. Bosque is a witness who will testily in a moment in this case and he is what is described as an informant. An informant is someone who is currently incarcerated and who claims he obtained information from the defendant regarding the crime in this case and agreed to testify for the state. You must look with particular care of the testimony of an informant and scrutinize it very carefully before you accept it. You should determine the credibility of the witness in light of the—any motive for testifying falsely and inculpating the accused.
      “In considering the testimony of this witness, you should consider such things as the extent to which the informant’s testimony is confirmed by other evidence, the specificity of that testimony, the extent to which the testimony contains details known only to the perpetrator, the extent to which the details of the testimony could be obtained from a source other than the defendant, the informant’s criminal record, any benefits received in exchange for his testimony, whether the informant previously has provided reliable or unreliable information, and the circumstances under which the informant initially provided the information to the authorities, including whether the informant was responding to a request for information.
      “Like all other questions of credibility, this is a question for you to decide. The jury decides this based on the evidence presented to you. And I’ll read this to you again in the conclusion of the trial with all my other instructions.”

       “Due process seeks to assure a defendant a fair trial, not a perfect one.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 352, 696 A.2d 944 (1997). The defendant received a fair trial.


author: Per Curiam.

text:
    STANLEY J. FOSTER, M.D., P.C., ET AL. v. SALLY G. DELMAN
    (AC 33371)
    Robinson, Bear and Keller, Js.
    Argued April 15
    —officially released July 30, 2013
   Per Curiam.

The judgment is affirmed.


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. TYLER JOHNHEATH GODE
    (AC 34338)
    Lavine, Bear and Mihalakos, Js.

      Argued May 21
    officially released August 13, 2013

      Allison M. Near, assigned counsel, for the appellant (defendant).

      Lisa Herskowitz, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Jason Germain, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Tyler Johnheath Gode, appeals from judgments of conviction, rendered after a consolidated jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a), threatening in the second degree in violation of General Statutes § 53a-62 (a) (1), sexual assault in the fourth degree in violation of General Statutes § 53a-73 (a) (2), and disorderly conduct in violation of General Statutes § 53a-182 (a) (2). On appeal, the defendant claims that the court improperly (1) refused to instruct the jury on his theory of the case, namely, that he reasonably believed the victim consented to sexual intercourse, and (2) refused to instruct the jury on inconstancy of accusation. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts, which are relevant to this appeal. The defendant and the victim attended high school together. The two dated for a brief period, and they remained acquaintances. The defendant and the victim both enrolled in the Junior Reserve Officers’ Training Corps (ROTC) Program during the 2008-2009 school year. On Friday, May 1, 2009, the victim was in the ROTC back room when the defendant approached her from behind and fondled her breasts. The victim told the defendant to stop, crossed her arms across her chest to prevent him from continuing to touch her, and exited the room. A third student, T.S., also a member of ROTC, heard the victim’s protests and witnessed the incident. T.S. reported the incident to the ROTC supervisor the following Monday, May 4, 2009.

Later that day, the supervisor discussed the incident separately with the victim and the defendant. The defendant admitted to the supervisor that he had grabbed the victim’s breasts the preceding Friday. The supervisor reported the incident to the school’s director of security, who, in turn, reported the incident to the local police department’s school resource officer. T.S. subsequently was asked to meet with a police officer of the local police department.

The police officer later spent several hours interviewing the victim. Initially, they discussed the May 1, 2009 incident. During that conversation, the victim revealed an earlier instance of sexual assault by the defendant, which had occurred on December 23, 2008. The police officer then interviewed the defendant about the May 1, 2009 incident, and the defendant admitted grabbing the victim’s breasts on that day.

With respect to the December 23, 2008 incident, the victim testified that she had invited the defendant to her grandparents’ home to help hang Christmas lights. The defendant walked to the home of the victim’s grandparents, and the two hung Christmas lights until they ran out of clips. The victim and the defendant went inside, at which time she told her grandfather that they could not finish hanging the Christmas fights because they had run out of clips and needed to purchase more. The victim and the defendant went into a bedroom so that she could use the computer. The victim sat in front of the computer, and the defendant sat on the bed. Thirty minutes later, the victim finished using the computer and left the room to inquire whether her grandfather had returned with the clips. Her grandfather had not yet purchased the clips, but was about to do so. The victim went back to the bedroom and her grandparents went to purchase more clips, leaving her alone with the defendant. The defendant used the bathroom and returned to the bedroom. At this point, the victim and the defendant were sitting on the bed. The victim reached down to put on her shoe, but the defendant forcibly pulled her backward onto her bed. The victim sat up, and the defendant pushed her down a second time and laid on top of her. The victim felt the defendant’s erection along her leg.

The defendant then unbuttoned and pulled down the victim’s pants. The victim asked the defendant what he was doing, to which he replied, “Nothing, just don’t worry about it.” She replied, “I’m going to worry about it.” She asked him a second time what he was doing; in response, the defendant pushed her pants and underwear down with his leg and foot. The defendant placed his hand over her chest to keep her pinned down on the bed. He then used his right hand to direct his penis into her vagina. The victim told the defendant to stop and said, “You don’t want to do this,” but he continued to penetrate her and told her to shut up. The victim continued to resist, telling the defendant to “[g]et off me” and “[d]on’t touch me.” She moved back onto the bed to get away from the defendant until she reached the end of the bed and could not move any further. The defendant told her to stop moving and said “[j]ust deal with it, you know you’re going to like it.” The victim told the defendant to “leave me alone” but he continued to penetrate her approximately thirty more times. When she attempted to scream, the defendant placed his elbow on her chest and covered her mouth. The victim looked up at the defendant and told him that she would tell someone about what had transpired, to which he replied, “You’re not going to tell anyone. And if you do, I’m going to kill you.”

After ejaculating, the defendant cleaned himself and put his clothes back on. Thereafter, the victim went to the bathroom to clean herself. The victim and the defendant separately returned to the living room. By this time, the victim’s grandfather had returned home with the clips. The victim and the defendant went outside to finish hanging the Christmas lights. When they were done, the victim’s grandfather drove the defendant home; the victim went along with them and sat in the front seat.

Following an investigation by the local police department, the defendant was charged in two separate infor-mations that were later consolidated for trial. The first information charged the defendant for crimes relating to the May 1, 2009 incident. The second information charged the defendant for crimes relating to the December 23, 2008 incident. This appeal followed the judgments of conviction rendered after a jury trial.

Additional facts will be set forth as necessary.

I

The defendant first claims that the court “violated [his] constitutional right to have the jury instructed on his theory of defense.” He argues that the court improperly refused to instruct the jury in accordance with his request to charge, which set forth his theory of the case, namely, that he reasonably believed the victim engaged in conduct indicating that she consented to sexual intercourse. He also argues that it is reasonably possible that the jury was misled by the court’s failure to give the proposed instruction. We are not persuaded.

We begin by setting forth our standard of review. “A challenge to the validity of jury instructions presents a question of law over which [we have] plenary review.” (Internal quotation marks omitted.) State v. Samms, 139 Conn. App. 553, 558, 56 A.3d 755 (2012), cert. denied, 308 Conn. 902, 60 A.3d 287 (2013). “When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Griffin, 97 Conn. App. 169, 181, 903 A.2d 253, cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006).

The following additional evidence, adduced at trial, is relevant to the defendant’s claim. Contrary to the victim’s testimony, the defendant testified that he and the victim were dating in December, 2008. He further testified that after they retired to the bedroom on December 23, 2008, they “made out,” undressed each other and engaged in sexual intercourse. He denied ever threatening her or holding her down against her will. The defendant stated that he believed the sex was consensual because, during the intercourse, the victim was on top of him.

The defendant submitted to the court a written request to charge on sexual assault in the first degree that articulated his theory of the case, i.e., that he reasonably believed that the victim consented, by her conduct, to sexual intercourse. In addition to the model criminal jury instruction from the judicial branch website that the court intended to give to the jury; see Connecticut Criminal Jury Instructions (4th Ed. 2010) § 7.1-1, available at http://www.jud.ct.gov/JI/criminal/ part7/7.1-l.htm (last visited July 18, 2013) (copy contained in the file of this case in the Appellate Court clerk’s office); the defendant proposed adding to the instruction language first articulated by our Supreme Court in State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989) (Smith instruction), to inform the jury on the issue of consent. The court declined to give a Smith instruction, holding that the model instruction adequately encapsulated the relevant law. After the court charged the jury, the defendant took an exception to the charge on the element of compulsion and the definition of consent.

In State v. Smith, supra, 210 Conn. 141, our Supreme Court explained: “[0]nce the issue [of consent] is raised, [a defendant may] request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.” Thus, “a defendant is entitled to a jury instruction that [he] may not be convicted of [the] crime [charged] if the words or conduct of the complainant under all the circumstances would justify a reasonable belief that she had consented.” Id.

A defendant is not entitled to a Smith instruction every time the issue of consent is raised at trial. Rather, the instruction should be given only when it is requested and warranted. Our Supreme Court has indicated that a Smith instruction may be warranted when the “suggestion [has been] made to the jury that it should acquit the defendant because he reasonably interpreted ambiguous conduct by the complainant to indicate her consent.” State v. Jeffrey, 220 Conn. 698, 719, 601 A.2d 993 (1991) (Smith instruction not warranted where defendant’s theory of case was that complainant had fabricated story of being forced to engage in sexual activity), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed.2d 909 (1992). The defendant’s theory here is more analogous to the facts of Jeffrey than to the theoretical situation contemplated in Smith.

Although the defendant requested that a Smith instruction be given to the jury, the court concluded that the instruction it had prepared adequately addressed the issue of consent and any issue raised by Smith. In any event, the proper question for our consideration is whether a Smith instruction was warranted in this case. We conclude that it was not.

A Smith instruction is warranted when the evidence suggests an ambiguity in the victim’s conduct and the way the defendant perceived such conduct. See State v. Cotton, 77 Conn. App. 749, 759, 825 A.2d 189 (consent charge properly is given where “evidentiary basis [exists upon] which the jury could have concluded that the defendant could have misapprehended the victim’s attitude toward his advances”), cert. denied, 265 Conn. 911, 831 A.2d 251 (2003); see also State v. Jeffrey, supra, 220 Conn. 719 (Smith instruction is inappropriate where “the issue of the reasonableness of the defendant’s belief regarding the complainant’s consent was never made a theory of defense in [the] case”).

We agree with the trial court that the present case does not involve ambiguous conduct by the victim. The defendant’s idiosyncratic self-serving interpretation of the victim’s conduct does not make that conduct ambiguous. We also note that the defendant did not argue to the court that the victim’s conduct was ambiguous and that he should have been found not guilty because he reasonably misunderstood her actions as indicative of consent. Rather, he proffered to the jury a completely different version of the relevant events. As he states in his brief to this court, his version of what happened on December 23, 2008, is “distinctly different” from the victim’s account. According to the defendant, the victim and the defendant engaged in consensual sexual intercourse. He argues that he believed the sex was consensual because, among other reasons, he alleges that the victim was on top of him during intercourse. The victim, however, testified that the defendant pinned her down on her bed and forcibly removed her clothing; that she resisted his advances and told him to stop several times, but despite that he proceeded to penetrate her vaginally.

These conflicting accounts do not create the type of ambiguity our cases say is a predicate for a Smith instruction. See, e.g., Griffin v. Commissioner of Correction, 137 Conn. App. 382, 396, 47 A.3d 956 (Smith instruction not warranted where defendant claimed sexual activity was consensual, not that victim’s consent was ambiguous), cert. denied, 307 Conn. 921, 54 A.3d 182 (2012). In the present case, as in Griffin, the jury was presented with two diametrically opposed versions of the events that occurred on December 23,2008, and it believed the victim’s testimony about the incident instead of the defendant’s testimony. Neither account of the incident suggested any ambiguity with regard to the victim’s consent. It is the province of the jury as fact finder to weigh conflicting evidence and to make credibility determinations. State v. Gene C., 140 Conn. App. 241, 246-47, 57 A.3d 885, cert. denied, 308 Conn. 928, 64 A.3d 120 (2013). Because the ambiguity required for a Smith instruction was lacking from this case, we conclude that the court properly declined the defendant’s request for a Smith instruction.

II

The defendant’s second claim is that the corut improperly denied his request to instruct the jury on inconstancy of accusation, to “highlight the inconsistencies in [the victim’s] [trial] testimony.” He argues that the jury was misled by the court’s refusal to give the requested instruction. We are not persuaded.

Our well established standard of review for considering a claim of erroneous jury instructions is stated in part I of this opinion.

The following additional facts are relevant to the defendant’s second claim. The victim and another female, A.F., were close friends, who spoke on a daily basis. At the time of the December 23, 2008 incident, the defendant was dating A.F. A.F. testified that she and the defendant stopped dating shortly after the defendant told her he had sexual intercourse with the victim. In January or February, 2009, A.F. called the victim and asked her whether she had engaged in sexual intercourse with the defendant; the victim confirmed that she and the defendant had engaged in sexual intercourse.

According to the defendant, A.F.’s testimony implicitly contradicted the victim’s testimony. At trial, the victim implied that the first time she discussed the sexual assault was in her conversation with the police officer on May 4, 2009. The following exchange occurred between the prosecutor and the victim:

“Q. Why did you want to come forward [to the police officer] at that time?
“A. I wanted to finally get it off my chest. It was—I don’t want to say it was killing me, but it was bothering me a lot and I really just wanted to tell someone, I just didn’t know who, and it was an opportunity, and I knew it was a safe opportunity.”

The victim testified that she did not recall telling A.F. in January or February, 2009, that she had had sex with the defendant—though “I might possibly [have told her], but I really don’t remember.” But in subsequent cross-examination by defense counsel, the victim testified that she did not tell A.F. that she had engaged in sexual intercourse with the defendant.

In his written request to charge, the defendant proposed a variation of the model constancy of accusation instruction. His proposed instruction would have highlighted alleged inconsistencies, instead of consistencies, in the victim’s testimony, allegedly based on her conversations with A.F. and her alleged implication that the police officer was the first person with whom she discussed the December 23,2008 incident. At the charging conference, the defendant repeated his request that his proposed inconstancy of accusation instruction be included in the jury charge. The court declined to give the defendant’s proposed instruction, concluding that it appeared to be a “180 degree reversal” from the standard constancy of accusation instruction. See Connecticut Criminal Jury Instructions (4th Ed. 2011) § 7.2-1, available at http://www.jud.ct.gov/JI/criminal/part7/7.2-l.htm (last visited July 18, 2013) (copy contained in the file of this case in the Appellate Court clerk’s office). At the conclusion of the court’s jury charge, the defendant again took exception to the court’s charge.

Under the common-law constancy of accusation doctrine, “once the victim [of a sexual assault] has testified [about] the alleged sexual assault and the identity of the person or persons to whom a complaint had been made” the state is permitted to introduce details of the complaint and “constancy of accusation testimony of each of the persons to whom the complainant had reported the sexual assault.” State v. Troupe, 237 Conn. 284, 297-98, 677 A.2d 917 (1996). In Troupe, our Supreme Court limited this rule so that constancy of accusation testimony could be introduced only “with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge . . . .’’Id., 304. Thus, constancy of accusation information is permitted “solely to corroborate the victim’s prior in-court testimony concerning the facts of the alleged sexual offense and to show constancy in the victim’s declarations.” (Internal quotation marks omitted.) Id., 290-91 n.7.

The constancy of accusation instruction is given to counteract lingering misconceptions that victims of sexual assault always come forward promptly to report their assault. Id., 300-302. But, as the state argues in its brief, there is no justification for expanding this doctrine to include prior inconsistent statements by the victims of sexual assault.

Our cases recognize three instances where a special instruction highlighting a witness’ potentially specious credibility, by virtue of the witness’ status, is given: (1) when the complaining witness could have been subject to prosecution himself, dependent upon his recollection of the criminal transaction about which he testifies; (2) when an accomplice testifies; and (3) when ajailhouse informant testifies. State v. Gonzalez, 137 Conn. App. 696, 701-702, 49 A.3d 1025, cert. denied, 307 Conn. 920, 54 A.3d 563 (2012).

The defendant relies on our Supreme Court’s decision in State v. Ali, 233 Conn. 403, 423, 660 A.2d 337 (1995), to argue that it is reversible error where “the court fails to instruct the jury that it may rely on inconsistencies in a complainant’s testimony to discredit her testimony in court.” In Ali, the defendant had requested, as part of the court’s constancy of accusation instruction, that the jury be instructed to consider the testimony of constancy witnesses not only to corroborate the victim’s testimony but also to impeach the victim’s testimony if there were inconsistencies. Id., 417 n.10. The court refused, instead instructing the jury that constancy of accusation evidence was admitted for the sole purpose of corroborating the victim’s testimony. Id., 424. Our Supreme Court found this to be reversible error because the trial court had failed to balance the jury instructions by not explaining to the jury that “it could use the inconsistencies elicited during the trial and highlighted during closing argument to impeach the victim’s credibility.” Id., 425. Alii is distinguishable from the present case in that the legitimate concerns raised in Ali do not apply here because the state did not introduce any constancy of accusation evidence, and thus there was nothing for the trial court to balance.

Furthermore, the court charged the jury on witness credibility by explaining that in weighing the evidence “you must take into account . . . [whether] the witness’testimony [was] contradicted by what that witness had said or done at another time, or by the testimony of other witnesses, or by other evidence.” We conclude that the court’s general charge on credibility sufficiently alerted the jury that it must consider inconsistencies in the victim’s testimony in accessing her credibility and determining whose account of the events it believed. Additionally, we agree with the state that the defendant could have requested the standard prior inconsistent statement instruction; see Connecticut Criminal Jury Instructions (4th Ed. 2008) § 2.4-3, available at http:// www.jud.ct.gov/JI/criminal/part2/2.4-3.htm (last visited July 18, 2013) (copy contained in the file of this case in the Appellate Court clerk’s office); had he believed that the jury needed additional guidance on how it should treat inconsistent statements as evidence.

After our consideration of the foregoing, we conclude that the defendant was not entitled to have the jury charged on inconstancy of accusation as offered in his proposed instruction. We therefore reject the defendant’s second claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom the victim’s identity maybe ascertained. See General Statutes § 54-86e.

       In his brief and at oral argument, the defendant argued that failure to give an arguably warranted instruction pursuant to State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989), constitutes an error of constitutional magnitude. We disagree. See State v. Cotton, 77 Conn. App. 749, 757-58, 825 A.2d 189, cert, denied, 265 Conn. 911, 831 A.2d 551 (2003), citing State v. Jeffrey, 220 Conn. 698, 718, 601 A.2d 993 (1991) (“[although Smith supports the notion that a defendant is entitled to request an instruction that the state must prove beyond a reasonable doubt that the conduct of the victim would not have justified a reasonable belief that she had consented, our Supreme Court has declined to hold that there is a constitutional requirement that the court must give such an instruction whenever consent is placed in issue in a sexual assault case”), cert, denied, 505 U.S. 1224, 112 S. Ct. 3041,120 L. Ed. 2d 909 (1992).

       In its relevant part, the model instruction reads: “ ‘Compelled’ has its ordinary meaning. It means that the complainant did not consent and that the defendant must have required the complainant to engage in sexual intercourse against (his/her) will. If you find that the complainant consented to the act of sexual intercourse, you cannot find that the act was compelled. Such consent must have been actual and not simply acquiescence brought about by force, by fear, or by shock. The act must have been truly voluntary. Consent may be express or you may find that it is implied from the circumstances that you find existed. Whether there was consent is a question of fact for you to determine. The defendant has no burden to prove consent. The state must prove compulsion.” Connecticut Criminal Jury Instructions, supra, § 7.1-1.

       The defendant proposed charging the jury in relevant part as follows: “Whether the defendant forced or compelled the complainant within the meaning of the first degree sexual assault statute depends not upon the complainant’s subjective state of mind about whether she had consented, but upon her objective manifestations of consent as reasonably construed by the defendant. Jurors should never convict a defendant who had in their view acted in reasonable reliance upon the words or conduct of the complainant that indicated consent at the time and place of the alleged sexual intercourse. Therefore, after a full and fair comparison of the evidence, you must decide whether the state has proven beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented. In other words, if you find that the defendant reasonably believed from the words and conduct of the complainant that she was consenting, then you must find the defendant not guilty.”

       The defendant repeatedly refers to “consent” as a defense to the charge of sexual assault in the first degree. Consent is not an affirmative defense to this crime. State v. Smith, supra, 210 Conn. 140. Rather, if the jury finds that the victim consented, it “would implicitly negate a claim that the actor had compelled the complainant by force or threat to engage in sexual intercourse.” Id.

       In fact, the defendant in Smith was not entitled to the Smith instruction because the court did not find that the victim’s conduct was sufficiently ambiguous. State v. Smith, supra, 210 Conn. 142-43.

       Relying on two out-of-state cases, State v. Koperski, 254 Neb. 624, 578 N.W.2d 837 (1998), and Carters. State, 121 Nev. 759, 121 P.3d 592 (2005), the defendant urges us to convert the discretionary Smith instruction into a mandatory charge that must be given every time the issue of consent is raised in a sexual assault prosecution. Even if we were to agree with the defendant on the merits, which we do not, we are an intermediate appellate court whose function is to apply the law—not make new law. “[I]t is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by [its] precedent.” (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 137 Conn. App. 307, 324, 48 A.3d 694, cert. granted on other grounds, 307 Conn. 918, 54 A.3d 562 (2012). As discussed previously in this opinion, we decline the defendant’s invitation to address this argument because our Supreme Court has settled this question in Smith.

       In relevant part, the defendant’s proposed instruction read: “This evidence by [A.F.] is admitted solely to corroborate or not the testimony of the complaining witness in court, to be considered by you only in determining the weight and credibility you will accord the complaining witness’s testimony given here in this court as to the alleged sexual assault in December 2008.”


author: DiPENTIMA, C. J.

text:
    ANGEL GONZALEZ v. COMMISSIONER OF CORRECTION
    (AC 33057)
    DiPentima, C. J., and Gruendel and Bear, Js.

      Submitted on briefs April 12
    officially released August 13, 2013

      Justine F. Miller, assigned counsel, filed a brief for the appellant (petitioner).

      GailP. Hardy, state’s attorney, and Mitchell S. Brody and Angela R. Macchiarulo, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

The petitioner, Angel Gonzalez, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion when it denied his petition for certification to appeal and improperly rejected the claim that his criminal trial counsel provided ineffective assistance. We disagree, and, accordingly, dismiss the appeal.

The following facts, as set forth in the petitioner’s direct appeal to this court, and procedural history are relevant to this appeal. Two murders occurred on November 15 and 16, 2003. The petitioner was charged and convicted of the second murder.

On the evening of November 15,2003, the first murder occurred when Smaely Tineo shot and killed Michael Zuckowski. State v. Gonzalez, 106 Conn. App. 238, 240-41, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). Shortly after the shooting, the petitioner, who worked as a clown and went by the names “Clown” and “Clowny,” was recorded by a restaurant’s video camera riding his unicycle in a parking lot across the street from the murder site. Id., 241. While investigating the crime, the police learned that Tineo was friends with the petitioner, and significantly, that Zuckowski was friends with the victim of the second murder, Lamar Williams. Id. In the early morning hours of the following day, November 16, 2003, Williams was in a hallway of a building on South Marshall Street, engaged in a drug sale. Id. The second murder occurred when the petitioner, wearing a mask, entered the building and shot Williams two times. Id. The police arrived on the scene to find Williams dead from his gunshot wounds. Id. The petitioner was arrested for this murder and ultimately tried before a jury. Id.

During the petitioner’s criminal trial, the state’s case included testimony from Charles McClairen, Trevor Bennett, and Jasenia Rodriguez. Id., 242-43, 254-55. McClairen testified that he and the petitioner, whom he knew as “Clown,” were incarcerated together. Id., 242. McClairen testified that in late March or early April, 2003, the petitioner had told him that he had shot a person on South Marshall Street. Id. Bennett testified that he and the petitioner, whom he also knew as “Clown,” had been cellmates in January, 2004. Id., 243. Bennett testified that the petitioner admitted to having killed Williams and told him that Tineo was responsible for Zuckowski’s death. Id. Bennett further testified that the petitioner had told him that he and Tineo were close, “ ‘like brothers.’ ” Id. The jury also heard testimony from Rodriguez, a former girlfriend of Williams. Id., 254. Rodriguez testified that on November 13, 2003, three days before the second murder, the petitioner confronted her and pushed her against a wall. Id., 254-55. She testified that the petitioner was wearing a clown mask and that he had told her that Williams was dead. Id., 255.

After hearing this testimony and considering other evidence, the jury found the petitioner guilty of murder in violation of General Statutes § 53a-54a. Id., 240. Thereafter, the petitioner filed a motion for a new trial. Id., 258. At the hearing on the motion, the petitioner orally amended his motion and sought relief on the ground of newly discovered evidence. Id. This evidence, founded on the sworn statements of four incarcerated individuals, sought to expose an alleged jailhouse conspiracy to wrongfully inculpate the petitioner. Id., 259. The trial court, Hon. John F. Mulcahy, Jr., judge trial referee, denied the motion. Id. This court rejected all of the petitioner’s claims on appeal, including his claim related to the motion for a new trial, and affirmed the judgment of conviction. Id., 240.

Following his unsuccessful appeal, the petitioner filed an amended petition for a writ of habeas corpus, alleging two counts of ineffective assistance of counsel. The petitioner alleged that his criminal trial counsel, John Stawicki, “failed to adequately investigate and prepare an appropriate defense for the petitioner’s trial, failed to call defense and impeachment witnesses on behalf of the petitioner, failed to properly cross-examine [the] state’s witnesses . . . McClairen and . . . Bennett, and failed to prepare and present discoverable defense testimony and evidence necessary for a fair trial.”

The habeas court, Fuger, J, heard testimony from the petitioner, Stawicki, and the four inmate witnesses with information regarding the alleged jailhouse conspiracy. Concluding that the petitioner had failed to meet his evidentiary burden of proof, the court rejected all of the petitioner’s claims and denied his amended petition. Specifically, the court found that Stawicki’s decision not to investigate and call the four inmate witnesses was premised on reasonable trial strategy. The court then denied the petition for certification to appeal, and this appeal followed. Additional facts will be set forth as necessary.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .

“We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Barlow v. Commissioner of Correction, 131 Conn. App. 90, 93-94, 26 A.3d 123, cert. denied, 302 Conn. 937, 28 A.3d 989 (2011). “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.) Small v. Commissioner of Correction, 286 Conn. 707, 717, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

“Furthermore, it is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677-78, 51 A.3d 948 (2012).

The following additional findings made by the habeas court are necessary for our discussion. At the habeas trial, the petitioner testified that George Flores, a public defender, initially served as his attorney until a conflict of interest was discovered during jury selection. Due to the conflict, Stawicki was appointed and assumed the responsibilities of counsel. The petitioner testified that Flores had used an investigator and that Flores’ file was given to Stawicki. Further, the petitioner testified that he had told Stawicki of the jailhouse conspiracy.

In addition to hearing this testimony from the petitioner, the court heard testimony from the four inmate witnesses, and noted the following. Cephas McBean, a convicted felon, testified that another inmate and former cellmate, Jonathan Ward, had asked him to lie about the petitioner’s responsibility in the murder of Williams. The court found that McBean had no direct knowledge of the murder. Walter Lawson, Jr., another convicted felon, also testified that Ward had asked him to lie about the petitioner’s responsibility in the murder of Williams. Another inmate, Anthony McKenzie, testified that he overheard a conversation between Ward and Bennett in which they were “plotting” to receive a more lenient sentence from the state through their cooperation. Abraham Hannah, also a convicted felon, indicated that he heard Bennett say that the petitioner did not shoot anybody. The court found that “Lawson, McKenzie and Hannah were not ... at the murder scene and had no direct knowledge or evidence regarding the murder.”

The court also heard testimony from Stawicki. Staw-icki testified that he spoke with Flores, the prosecutor, and the investigator after being appointed as counsel. He testified that the investigation was complete at the time he assumed responsibility. Stawicki also stated that the petitioner told him of the jailhouse conspiracy. Further, Stawicki testified that he “was concerned about getting the jury to believe that Ward, who was a friend of Williams, was attempting to lay blame for the crime on someone who did not commit the crime instead of on the actual perpetrator.” Stawicki also testified that he would not have called McBean, Lawson, McKenzie, and Hannah to testify during the criminal trial, despite being told of the jailhouse conspiracy, because doing so could have led the state to call Ward as a witness. According to Stawicki, had Ward been called as a witness, he could have testified about his reasons for wanting to see the petitioner punished, which consequently, might have led the jury to doubt the petitioner’s innocence.

The following legal principles are relevant to our resolution of this appeal. “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable .... Nevertheless, [jjudicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . .

“Inasmuch as [constitutionally adequate assistance of counsel includes competent pretrial investigation; Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981); [e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case. . . .

“Nevertheless, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

“The reasonableness of counsel’s actions may be determined or substantially influenced by the [petitioner’s] own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the [petitioner] and on information supplied by the [petitioner]. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.” (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 679-81 (citing supporting case law).

On appeal, the petitioner argues that Stawicki was deficient by failing to conduct, at the time of trial, an adequate investigation into the jailhouse conspiracy, which according to the petitioner, would have led to the discovery of the four inmate witnesses, who, in turn, could have been called to impeach two of the state’s witnesses, McClairen and Bennett. The petitioner further argues that, contrary to the court’s determination, this was not reasonable trial strategy. We are not persuaded.

In its memorandum of decision, the court addressed Stawicki’s trial strategy and noted that he was aware of the jailhouse conspiracy during the trial, but was concerned that the jurors would not believe that Ward, a friend of Williams, would conspire with other inmates to wrongfully charge the petitioner with Williams’ murder, when doing so would allow the true perpetrator to escape prosecution. Mindful of the fact that there is a strong presumption that counsel’s representation falls within the wide range of reasonable professional assistance, we are persuaded that the court properly concluded that Stawicki’s decision not to continue the investigation of the four inmates was reasonable trial strategy. Stawicki testified that he had reviewed Flores’ complete file, had been made aware of the alleged jailhouse conspiracy, and had been told of Ward’s motives for conspiring against the petitioner. He further testified that introducing evidence of the jailhouse conspiracy would have revealed Ward’s involvement as the organizer, and further, his personal friendship with Williams. With this information, Stawicki reasoned, a jury could have determined that Ward, acting as Williams’ friend, would have attempted only to conspire against Williams’ actual murderer. Relying on these inferences, Stawicki stated that he was concerned that the jury would credit Ward’s conspiracy as evidence of the petitioner’s guilt. See Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (counsel need not pursue investigation that would be fruitless or harmful to defense strategy); see also Gaines v. Commissioner of Correction, supra, 306 Conn. 681-82 and 682 n.12 (same). In light of these circumstances, Staw-icki’s strategic assessment of the jury’s potential reaction to the conspiracy evidence was reasonable. Similarly, his strategic decision not to continue investigating reasonably comported with such an assessment. See, e.g., Thompson v. Commissioner of Correction, 131 Conn. App. 671, 696, 27 A.3d 86 (counsel not deficient when aware of content of witness testimony and failed to interview witness because content unhelpful), cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).

The petitioner also argues that without further investigation into the conspiracy, and thus, not knowing the testimony of the inmates, Stawicki’s decision was necessarily unreasonable. We are not persuaded. In support of his argument, the petitioner cites Gaines v. Commissioner of Correction, 125 Conn. App. 97, 109, 7 A.3d 395 (2010), aff'd, 306 Conn. 664, 51 A.3d 948 (2012), as well as other nonbinding authority. The petitioner’s reliance on Gaines is misplaced, as it readily is distinguishable. In Gaines, counsel “did not claim that he made an informed decision not to investigate ... in conjunction with a reasonable trial strategy.” Gaines v. Commissioner of Correction, supra, 306 Conn. 683. Moreover, the facts there revealed that the missing witness whom counsel should have investigated and called was an alibi witness. Id. Here, by contrast, Stawicki made an informed decision not to investigate in furtherance of reasonable trial strategy, and the four inmates were not alibi witnesses. Contrary to the petitioner’s argument, our habeas jurisprudence does not reveal such a rigid rule obligating counsel to know the exact testimony of a witness as a precondition to making a reasonable professional decision about bis involvement. Under the petitioner’s theory, the reasonableness standard pursuant to Strickland effectively would be eviscerated. We stress that “counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it.” (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 100 Conn. App. 94, 103, 917 A.2d 555, cert. denied, 282 Conn. 914, 924 A.2d 140 (2007).

We conclude that the court properly determined that the petitioner failed to meet his burden of showing that Stawicki’s decision not to investigate was deficient under the performance prong of Strickland. Therefore, we are not persuaded that the issues raised in the petition for certification to appeal are debatable among jurists of reason, that a court could resolve the issues differently, or that the questions raised by the petitioner deserve encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, the petitioner has failed to demonstrate that the court abused its discretion in denying his petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       In his amended petition, the petitioner also alleged that his trial counsel was ineffective for failing to object properly to hearsay testimony. This claim, however, was abandoned at the habeas court and is not the subject of this appeal.

       To the extent the petitioner attempts to raise as a separate and distinct aspect of his claim Stawicki’s decision not to call the four inmate witnesses, we conclude that this aspect has not been raised and briefed properly. The petitioner did not raise the failure to call these witnesses as a distinct aspect of Stawicki’s alleged deficiency in his appellate brief. This secondary ground for deficiency is raised for the first time in his reply brief. “It is axiomatic that a party may not raise an issue for the first time on appeal in its reply brief. . . . Our practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 197, 982 A.2d 620 (2009). Accordingly, we only address the petitioner’s claim as it relates to Stawicki’s failure to investigate.

       Stawicki testified that the petitioner had told him that Ward’s motivation stemmed merely from his dislike of the petitioner.


text:
    ALEJANDRO GONZALEZ v. COMMISSIONER OF CORRECTION
    (AC 32871)
    Robinson, Alvord and Keller, Js.

      Argued April 18
    officially released August 13, 2013

      Michael Zariphes, assigned counsel, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Maureen Keegan, former state’s attorney, and Patrick Griffin, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Alejandro Gonzalez, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. We dismiss the appeal.

On October 14, 2005, the petitioner, pursuant to a plea agreement, pleaded guilty to possession of cocaine with intent to sell in violation of General Statutes § 2 la-278 (a). In accordance with the plea agreement, the petitioner was sentenced to twenty-two years incarceration. In April, 2010, the petitioner filed a second amended petition for a writ of habeas corpus. He alleged, inter alia, that his trial counsel, Louis Martoc-chio, rendered ineffective assistance because he failed to adequately advise him regarding aspects of his guilty plea, including the presumption of innocence and the existence of options aside from accepting the state’s plea offer. Following trial, the habeas court denied the petition in a September 29,2010 oral decision. The court concluded that Martocchio’s performance in advising the petitioner regarding the guilty plea was not deficient. In addressing a claim that had been added by amendment that day, the court concluded that Martoc-chio had adequately advised the petitioner, who was not a United States citizen, of the immigration consequences of his plea. The petitioner filed a petition for certification to appeal, which the habeas court denied. This appeal followed.

“To prove an abuse of discretion [in denying a certification to appeal], the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Morris v. Commissioner of Correction, 131 Conn. App. 839, 842, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court “adopted a two-part standard for evaluating claims of ineffective assistance of counsel. . . . [First] the [petitioner] must show that counsel’s representation fell below an objective standard of reasonableness. . . . [Second], [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). In Hill, the United States Supreme Court held: “In the context of guilty pleas, the first half of the Strickland . . . test is nothing more than a restatement of the standard of attorney competence .... The second, or prejudice, requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” (Citations omitted; internal quotation marks omitted.) Id., 58-59.

The petitioner argues that the court erred in concluding that Martocchio’s performance was not deficient. He argues that Martocchio rendered deficient performance in failing to advise him that he was not presumed guilty, that he could challenge the prosecution, and that he had options aside from accepting the state’s plea offer. In its decision, the court noted that the case was a credibility contest between the petitioner and Martoc-chio and credited Martocchio’s testimony “in all material respects.” The court highlighted Martocchio’s testimony that he had urged the petitioner to continue to litigate or at least to investigate the case, but that the petitioner, by signing a document, admitted that he was acting contrary to Martocchio’s advice by pleading guilty. The court discredited the petitioner’s testimony that Martocchio advised him that he already had been found guilty. The court’s fundings support its conclusion that Martocchio was not deficient in allowing the petitioner to accept the state’s plea offer. We will not disturb those factual findings as they are based on credibility determinations. “As an appellate court, we do not reevaluate the credibility of testimony .... 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.) Corbett v. Commissioner of Correction, 133 Conn. App. 310, 316-17, 34 A.3d 1046 (2012). We are not persuaded that the court’s determination in this regard is debatable among jurists of reason, that a court could resolve the issue differently, or that it deserves encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616 A.2d 126 (1994). Therefore, the habeas court did not abuse its discretion by denying the petition for certification to appeal as to this issue.

Additionally, the petitioner claims that the court erred in failing to conclude that Martocchio was ineffective for failing to adequately advise him that a guilty plea would result in deportation in accordance with Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In 2010, the United States Supreme Court held for the first time in Padilla that the sixth amendment to the United States constitution requires that “counsel must inform [his or] her client whether [the Ghent’s] plea carries a risk of deportation.” Id., 374. In Padilla, the Supreme Court set forth requirements for when counsel must advise that a guilty plea “will” result in deportation and when counsel must advise that a guilty plea “may” result in deportation. Id., 368-69. Although the habeas court determined that Martocchio “did so advise the petitioner of immigration consequences,” whether that advice satisfied the requirements of Padilla is not a question we need to address. In Chaidez v. United States, U.S. , 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149 (2013), the United States Supreme Court held that Padilla does not apply retroactively; thus, “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Id., 1113. The petitioner was sentenced in October, 2005, and he did not file a direct appeal. His conviction became final prior to the release of Padilla in 2010. Because Padilla does not apply, the petitioner cannot prevail on his claim that the court erred in failing to conclude that Martocchio was ineffective for failing to advise him in accordance with Padilla.

The appeal is dismissed.

       We ordered simultaneous supplemental briefs on the following issue: “What is the effect of Chaidez v. United States... on the present appeal?”

       In State v. Aquino, 89 Conn. App. 395, 410, 873 A.2d 1075 (2005), rev’d on other grounds, 279 Conn. 293, 901 A.2d 1194 (2006), a case decided prior to Padilla, this court concluded, “effective assistance of counsel may be rendered without advising a client whether deportation will result from a guilty plea.”


text:
    IRIS S. LYNN v. RODERICK A. LYNN
    (AC 34659)
    Beach, Keller and Harper, Js.

      Argued May 21
    officially released August 13, 2013

      Roderick A. Lynn, self-represented, the appellant (defendant).

      Iris Suarez, self-represented, and Jonathan D. Chomick, filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The self-represented defendant, Roderick A. Lynn, appeals from the judgment of the trial court concerning what funds, if any, the defendant owed to the self-represented plaintiff, Iris S. Lynn, following the disbursement of the proceeds of the sale of their marital home. In his brief to this court, the defendant sets forth nine interrelated claims in which he alleges that the court failed to address several issues and set forth findings of fact in contravention of a remand order issued by this court. We affirm the judgment of the trial court.

The record reflects that, on February 20, 2008, the court, Prestley, J., dissolved the parties’ marriage and issued various orders. Relevant to this appeal, the court ordered that the marital home be sold. It also ordered the following: “The proceeds of the sale, after closing costs are paid, shall be held in escrow .... The proceeds shall be divided [equally between the parties]. The defendant is 100 [percent] responsible for the mortgage debt [encumbering the marital home] owed [to] his father and brother. If the closing costs include and result in a payoff of the mortgage notes to the defendant’s father and brother, the defendant’s share of the proceeds shall be reduced by that amount.”

On October 13, 2009, the plaintiff filed a motion for contempt in which she alleged that the defendant had violated the court’s order with regard to the payment of the mortgage note held by his father. The court, Dolan, J., held a hearing on the motion for contempt and, inter alia, found the defendant to be in contempt. The very next day, the defendant paid the purge amount set by the court, $21,671.19, thereby avoiding incarceration. The defendant appealed to this court, which held that the trial court misconstrued Judge Prestley’s judgment and, by failing to consider several material arguments raised by the defendant, denied him due process of law. Lynn v. Lynn, 130 Conn. App. 319, 328, 23 A.3d 771 (2011). This court “reverse[d] the judgment of contempt and remand[ed] the matter for a hearing ... to determine whether the defendant owes the plaintiff funds, and if so, how much.” (Citation omitted.) Id., 330.

On remand from this court, the trial court, Pinkus, J., held an evidentiary hearing and issued a memorandum of decision in which it stated that it was called on “to determine whether the defendant owes the plaintiff funds, and if so how much.” The court set forth relevant findings of fact, including those related to issues surrounding the sale of the marital home, as well as its interpretation of Judge Prestley’s financial orders. The court stated in relevant part: “The court has considered each and every claim made by the defendant and finds them to be without merit. By the clear language of the judgment, the payment of the mortgage debts to his brother and father were the defendant’s responsibility. This court finds that the plaintiff would have received $28,996.81 had the mortgage to [the defendant’s father] not been paid from the closing. . . . Pursuant to the testimony at the hearing, the plaintiff actually received $31,496.81. This is a combination of the money she received from the closing and the money paid pursuant to Judge Dolan’s order including $2500 in attorney fees. Therefore the defendant overpaid the plaintiff the sum of $2500.”

Before filing the present appeal, the defendant filed a motion for articulation in which he asked the court to articulate with regard to nine matters. The court denied the motion for articulation, noting that it “[had] carefully considered all of the claims put forth by the defendant in reaching its decision.” After filing the appeal, the defendant filed a motion for articulation in which he asked the court to adjudicate eight matters that either were raised in motions that predated the filing of his original appeal or, in his view, were raised before the court during the proceedings on remand. The court denied this request.

We carefully have reviewed the defendant’s appellate brief. The argument portion of the brief is five lines in length, summarily stating that the court improperly failed to address issues that he raised in his trial brief and to set forth necessary facts, including a determination as to whether the plaintiff had lied under oath. Additionally, the defendant asserts therein that the court improperly denied one or both of his motions for articulation. Finally, without any reference to specific judicial conduct or in what manner the claim was raised before and addressed by the trial court, the defendant states in the body of his brief that he was “denied neutral justice in New Britain Superior Court” because of judicial bias.

The overriding deficiency in this appeal is that the defendant has set forth a multitude of claims, but has not provided an adequate and distinct analysis of those claims in his brief. In summary fashion, the defendant claims error by way of the trial court’s failure to have addressed certain issues and to have made certain findings, but he has failed to demonstrate that the court improperly determined that it had carefully considered all of the issues relevant to the matter before it on remand, let alone why the court was legally required to have done more. Apart from issues that are conceivably related to the proceeds of the sale of the marital home, there is no explanation as to why the court was legally required to adjudicate an allegation of perjury concerning the plaintiff. Additionally, the reference to judicial bias is not supported by reference to any specific judicial conduct, let alone a reference to the manner in which a claim of this nature was raised before and addressed by the trial court, if at all. We are not persuaded that any of the claims raised in the defendant’s brief should be reviewed on their merits.

“Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law. . . . [W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Traylor v. State, 128 Conn. App. 182, 185 n.2, 15 A.3d 1173, cert. denied, 301 Conn. 927, 22 A.3d 1276 (2011). As this court has observed, “[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Dichello v. Holgrath Corp., 49 Conn. App. 339, 348 n.8, 715 A.2d 765 (1998).

Here, the court appears to have addressed the issue properly before it. The defendant has not demonstrated that the court’s judgment should be reversed.

The judgment is affirmed.

       We consider this appeal on the basis of the record, the briefs filed by the self-represented parties and the oral argument of the defendant before this court. The plaintiff waived her right to present oral argument before this court.

       Insofar as the defendant challenges the judgment on the ground that the court denied one or both of his motions for articulation, the claim is not a proper subject of this appeal. The record does not reflect that the defendant sought appellate review of the court’s denial of his articulation requests in accordance with Practice Book § 66-7. The motion for review, not the appeal, is the only appropriate means by which to obtain a remedy with regard to a decision on a motion for articulation. See Practice Book § 66-6; Rivnak v. Rivnak, 99 Conn. App. 326, 334-35, 913 A.2d 1096 (2007).

       A claim of judicial bias is not set forth in the defendant’s statement of issues.