author: LAVINE, J.

text:
    CURTIS TUCK v. COMMISSIONER OF CORRECTION
    (AC 31046)
    Lavine, Alvord and Bear, Js.
    Submitted on briefs May 26
    officially released August 10, 2010

      Michael Oh, special public defender, filed a brief for the appellant (petitioner).

      David I. Cohen, state’s attorney, and Rita M. Shair and Angela R. Macchiarulo, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

LAVINE, J.

The petitioner, Curtis Tuck, 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 his claims that his trial counsel, Lindy R. Urso, rendered ineffective assistance by failing to negotiate with the state for a plea offer of three to four years imprisonment. We dismiss the appeal.

The facts and procedural history surrounding the underlying conviction were set forth in the decision of this court affirming the petitioner’s conviction; State v. Tuck, 90 Conn. App. 872, 879 A.2d 553 (2005); and in the habeas court’s oral decision. On December 4, 2001, two police officers were dispatched to the Side By Side community school after a teacher had contacted the Norwalk police department because she had witnessed what she thought was a drug transaction near the school. Upon the officers’ arrival, the teacher informed them of what she had observed and directed them to a house close to the school’s property. At this house, the officers encountered the petitioner, who confessed to possessing two bags of heroin. The officers later discovered, pursuant to an inventory search, that the petitioner was in possession of an additional thirteen bags of heroin and $108. The petitioner was charged with possession of narcotics with intent to sell in violation of General Statutes § 2 la-277 (a) and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b).

The petitioner was represented by Urso following his arrest and during pretrial negotiations with assistant state’s attorney Michael A. DeJoseph. During his representation of the petitioner, Urso filed several motions with the court concerning both the pending narcotics charges and charges stemming from the petitioner’s violation of his probation for an earlier conviction of robbery in the first degree. Among the motions filed by Urso was a motion to suppress the bags of heroin found by the police and a motion for the petitioner to undergo evaluation and treatment pursuant to the Connecticut alcohol and drug abuse commission pretrial diversionary program.

Urso and the petitioner engaged in substantive discussions concerning offers for entering a guilty plea to the various charges; however, none of the plea deals suggested by the state were acceptable to the petitioner. After the petitioner’s motion to suppress was denied, the petitioner proceeded to trial and was convicted of both charges. On July 31, 2003, he was convicted of possession of narcotics with intent to sell and sentenced to nine years imprisonment with a six year period of special parole and convicted of possession of narcotics with intent to sell within 1500 feet of a school and sentenced to three years imprisonment. These sentences were to run consecutively to a previous sentence of four and one-half years imprisonment imposed by the court for violation of probation.

The petitioner appealed from his conviction, claiming that “the trial court improperly (1) denied his motion to suppress evidence . . . and (2) prohibited [him] from introducing evidence under General Statutes § 52-180, the business record exception to the hearsay rule.” Id., 874. Both of these claims were rejected by this court.

The petitioner filed an amended petition for a writ of habeas corpus on April 11, 2008, in which he alleged that Urso rendered ineffective assistance of counsel. Specifically, the petitioner alleged that Urso failed to advise him of an offer of settlement that he would have accepted.

On January 15, 2009, the habeas court conducted the first day of a two day hearing on the petition at which only the petitioner testified concerning, inter alia, negotiations to resolve the charges against him without trial. On April 1,2009, the habeas court conducted the second day of the hearing at which Urso and DeJoseph testified on the same subject. On the first day of the hearing, the petitioner testified that after the motion to suppress the bags of heroin was denied, Urso told him that it was not possible to get another offer from the state and that the next step was to prepare for trial. The petitioner claimed that he did not want to go to trial due to the fact that the defense case was weak. Instead, he testified that he wanted to plead guilty and indicated that he had asked Urso if the case could be resolved without going to trial. He also testified that he had instructed Urso to try to make a deal for a “substantial offer” which he wanted to be “somewhere around” three to four years imprisonment. Finally, the petitioner claimed that DeJoseph had made an offer of three years imprisonment directly to him right before the trial started.

In contrast to the petitioner’s testimony, Urso testified that the petitioner was adamant about not pleading guilty to any offense that involved a period of incarceration in excess of eighteen months. He also claimed that he had continued to negotiate with the state for a plea offer, even during trial, but was never able to obtain one. According to Urso, the petitioner made the final decision to go to trial notwithstanding Urso’s recommendation that he accept a plea, and despite being told that the opportunity for treatment, rather than imprisonment, had passed.

Following the habeas trial, the court issued an oral decision in which it denied the petition for a writ of habeas corpus. The court credited the testimony of the petitioner that he was not willing to take any plea agreement pursuant to which the period of incarceration exceeded three or four years; however, the court additionally credited the testimony of Urso that the petitioner told Urso that the longest sentence he wanted to serve was eighteen months. Additionally, the court found that Urso had attempted to renew plea negotiations without success even after the motion to suppress was denied and that it was the petitioner who had insisted on going to trial rather than accept a plea offer from the state. Ultimately, the court concluded that “[ijnasmuch as the petitioner is required to prove deficient performance and prejudice, the court finds that Mr. Urso’s performance was anything but deficient. The court finds that his representation was diligent and in good faith and, more to the point, in no way constitutes ineffective assistance of counsel in any of the specifics pleaded in this petition for a writ of habeas corpus.” The court denied the petition for certification to appeal from the denial of the petition for a writ of habeas coipus on April 20, 2009. This appeal followed.

“We set forth the appropriate standard of review. Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate that the issues 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. . . . Id., 616. If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. Id., 612.” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 116 Conn. App. 400, 404, 975 A.2d 740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009).

“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... 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. ... It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 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).

On appeal, the petitioner asserts that Urso provided ineffective assistance by failing to seek a three to four year offer during his plea negotiations with the state. The respondent, the commissioner of correction, correctly points out that this claim was not explicitly raised in the petitioner’s amended petition for a writ of habeas corpus and argues that the claim cannot be reviewed by this court. Although the petitioner did not plead this claim, evidence pertaining to it was presented during the habeas trial, and the court made findings on it in its decision. Therefore, we will review the claim.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous .... Thus, [t]his court does not retry the case or evaluate the credibility of the witnesses .... Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . 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.) Douros v. Commissioner of Correction, 111 Conn. App. 525, 528-29, 959 A.2d 1041 (2008).

We view the petitioner’s claim that Urso failed to seek a plea offer of three to four years from the state through the lens of the first prong of the Strickland test. To establish that Urso’s performance was deficient, the petitioner must demonstrate that the failure to seek a plea offer of three to four years amounted to Urso’s “not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment.” (Internal quotation marks omitted.) Small v. Commissioner of Correction, supra, 286 Conn. 713. The petitioner’s testimony at the habeas hearing is the only evidence that supports such an assertion. Specifically, the petitioner’s testimony is the only evidence that he was willing to accept a plea offer of three to four years imprisonment when he instructed Urso to seek an offer from the state. His testimony is also the only evidence that such an offer may have been considered by the state during plea negotiations.

The habeas court is the arbiter of witness credibility. The court found that the petitioner was adamant about not accepting a plea for a term of imprisonment in excess of eighteen months and that Urso continued to seek an acceptable offer from the state following the denial of the motion to suppress and during trial. It also found that the petitioner made the decision to proceed to trial despite the likelihood of conviction. The court credited Urso’s testimony on both of these issues. Furthermore, DeJoseph testified that he was not willing to extend a plea offer for three or four years imprisonment. Instead, the lowest term of imprisonment DeJoseph testified that he was willing to offer was six years, and he did not recall ever offering a deal involving a five year term of imprisonment. The court made no specific finding as to whether the state ever made a five year offer as opposed to a six year offer, but it did find that it was clear from the testimony of Urso and DeJoseph that no offers were made in the range of a term of three to four years imprisonment at any time. Acceptance of the petitioner’s claim would require us to ignore the habeas court’s evaluation of witness credibility. This we cannot do.

Accordingly, we conclude that the petitioner has not shown that the issue raised with regard to the court’s denial of his petition for a writ of habeas corpus is debatable among jurists of reason, that a court could resolve the issue in a different manner or that the question raised deserves encouragement to proceed further. Therefore, the petitioner has failed to demonstrate that the court’s denial of his petition for certification to appeal relative to his ineffective assistance of counsel claim reflects an abuse of discretion.

The appeal is dismissed.

In this opinion the other judges concurred.

       When Urso was appointed as the petitioner’s counsel, he had been practicing law for six years, concentrating primarily on criminal defense. He also had handled approximately thirty narcotics cases in Norwalk at that point.

       The alcohol and drug abuse commission program is a statutory program that authorizes courts to order offenders who are drug or alcohol dependent into treatment in lieu of prosecution or incarceration. See General Statutes § 17a-695 et seq.

       The petitioner also alleged in his amended petition that Urso failed to advise him (1) of the elements of the crime for which he went to trial and (2) not to continue the trial process once the motion to suppress had been denied. These claims were not pursued by the petitioner on appeal and therefore are deemed abandoned.

       Furthermore, no objection was raised by the respondent during the hearings when evidence was presented on this issue.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    MUNSUR ABDULLAH v. COMMISSIONER OF CORRECTION
    (AC 31039)
    Gruendel, Robinson and Borden, Js.

      Argued April 8
    officially released August 10, 2010

      Jennifer C. Vickery, special public defender, for the appellant (petitioner).
    . Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

BORDEN, J.

The petitioner, Munsur Abdullah, appeals, following a grant of certification to appeal by the habeas court, from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petition asserts that this state’s judicial procedures for prosecuting and sentencing criminal defendants result in disproportionately longer sentences for black defendants who refuse to plea bargain than for white defendants who refuse to plea bargain. The petitioner claims that the court, in dismissing his petition, concluded improperly that this alleged system of racial disparity did not violate his right to equal protection as guaranteed by the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution. We disagree and, accordingly, affirm the judgment of the habeas court.

In State v. Townsend, 211 Conn. 215, 558 A.2d 669 (1989), the petitioner’s direct appeal to our Supreme Court, the facts underlying his criminal conviction were set forth as follows. On February 18,1986, the petitioner entered the Gary Crooks Center in Bridgeport carrying a rifle under his coat and searching for the victim, Joseph Kelly. The petitioner found and shot the victim, who died as a result of his gunshot wounds. Upon his arrest, the petitioner admitted to shooting the victim and stated that, as a Muslim, he was permitted to do so under Muslim law because the victim had insulted his wife. See id., 216. Following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a. He was sentenced by the court to life imprisonment. Our Supreme Court affirmed the judgment of conviction. Id.

The petitioner thereafter brought the habeas corpus action underlying this appeal. In his second amended petition, filed February 24, 2009, the petitioner claimed that “Connecticut’s judicial system, including its procedures for charging, negotiating and/or processing criminal cases, systematically result[s] in a disproportionately greater ‘trial penalty’ to black defendants, including the petitioner, who refuse the plea bargain sentences offered to them than to white defendants who refuse the plea bargain sentences offered to them.” This system, according to the petitioner, discriminates on the basis of race against black defendants because “[t]he disparity in the sentences received by black defendants versus those received by white defendants is statistically not explainable by any other variable than race.” The petitioner claimed that these unexplainable disparities are causally related to state actions and therefore violated his federal and state equal protection rights on the ground that his “sentence is longer than it would have been absent the influence of the racially discriminatory aspects of Connecticut’s judicial system.” His petition also referenced certain reports and statistical analysis concerning Connecticut’s incarcerated population that he claimed detail the significant impact race has had on the sentencing of criminal defendants in Connecticut. Furthermore, he alleged, his right to equal protection was violated “[without regard to whether the [s]tate of Connecticut ... or any individual acting [therefor], has displayed purpose or intent [to] create or [to] maintain these disparities . . . .”

Citing Practice Book § 23-29 (2), the respondent, the commissioner of correction, filed a motion to dismiss the petition for failure to state a claim, which was granted by the habeas court. The respondent claimed, and the court agreed, that dismissal was warranted because the petitioner had failed to allege in his habeas coxpus petition the existence of any purposeful discrimination. In its memorandum of decision, the court concluded that the petitioner’s federal equal protection claim was governed by the United States Supreme Court’s holding in McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), which demands that, in order to prevail, a party alleging an equal protection violation under the fourteenth amendment must demonstrate the existence of purposeful discrimination. Additionally, the habeas court concluded that the petitioner was not relieved under the Connecticut constitution of his burden to plead facts that demonstrated that his sentence was the result of purposeful discrimination. The court, accordingly, granted the respondent’s motion to dismiss the petition for failure to state a claim for which habeas corpus relief may have been granted. This appeal followed. Additional facts will be set forth as necessary.

We begin our analysis by setting forth the applicable standard of review. “The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn. App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008).

“It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.” (Internal quotation marks omitted.) Arriaga v. Commissioner of Correction, 120 Conn. App. 258, 262-63, 990 A.2d 910 (2010).

I

FEDERAL CONSTITUTIONAL CLAIM

In his amended habeas corpus petition, the petitioner alleged that a system of racial disparity underlying Connecticut’s judicial procedures for prosecuting and sentencing criminal defendants violated his right to equal protection as guaranteed under the fourteenth amendment to the United States constitution. On appeal, he contends that his petition was sufficient to survive a motion to dismiss for failure to state a claim even though he states expressly in his pleading that his constitutional claim exists “[w]ithout regard to whether the [s]tate of Connecticut ... or any individual acting [therefor], has displayed purpose or intent [to] create or [to] maintain these disparities . . . .” We disagree.

As set forth by the court in its memorandum of decision, the petitioner’s federal equal protection claim is governed by the Unites States Supreme Court’s decision in McCleskey v. Kemp, supra, 481 U.S. 279. In McCleskey, the petitioner, a black man, had been convicted of two counts of armed robbery and one count of murder in Fulton County, Georgia, and thereafter sentenced to death. Id., 283-85. The United States Supreme Court reviewed the petitioner’s habeas corpus action, in which he claimed that the Georgia capital sentencing statute violated the equal protection clause of the fourteenth amendment because it was administered in a racially discriminatory manner. Id., 285-86. In support of his claim, the petitioner offered a statistical study that demonstrated that Georgia defendants whose victims were white were 4.3 times as likely to receive a death sentence as those whose victims were black (Baldus study). Id., 286-87. He failed, however, to offer any other specific evidence that would support an inference that racial bias played a role in his sentence. Id., 292-93.

In denying his claim, the Supreme Court held that the petitioner’s reliance on the Baldus study was insufficient to support an inference that the imposition of the death penalty in his particular case was the product of purposeful discrimination. Id., 297. The court elucidated: “Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving ‘the existence of purposeful discrimination.’ Whitus v. Georgia, 385 U.S. 545, 550 [87 S. Ct. 643, 17 L. Ed. 2d 599] (1967). A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination ‘had a discriminatory effect’ on him. Wayte v. United States, 470 U.S. 598, 608 [105 S. Ct. 1524, 84 L. Ed. 2d 547] (1985). Thus, to prevail under the Equal Protection Clause, [the petitioner] must prove that the decisionmakers in his case acted with discriminatory purpose.” (Emphasis in original.) McCleskey v. Kemp, supra, 481 U.S. 292; see also Knight v. Dept. of Public Health, 275 F.3d 156, 166 (2d Cir. 2001) (appellants must prove decision makers in their cases purposely discriminated); Ricketts v. Hartford, 74 F.3d 1397, 1407 (2dCir.) (“[i]tis well established that a claimant under the Fourteenth Amendment’s Equal Protection Clause . . . must establish intentional discrimination”), cert. denied, 519 U.S. 815, 117 S. Ct. 65, 136 L. Ed. 2d 26 (1996).

The petitioner, in his amended habeas corpus petition, has failed to allege specific facts that tend to support an inference that any of the decision makers who were involved in his particular sentencing acted with a discriminatory purpose. In fact, as set forth previously, he expressly indicates in his pleading that his alleged equal protection violation exists “[w]ithout regard to whether the [s]tate of Connecticut ... or any individual acting [therefor], has displayed puipose or intent” to discriminate.

In McCleskey, the United States Supreme Court reiterated the well established principle that a petitioner seeking to prove a violation of his federal equal protection rights must demonstrate purposeful discrimination on the part of the decision makers in his case. The court announced further that the statistical study proffered by the petitioner in that case was “clearly insufficient to support an inference” of intentional discrimination. McCleskey v. Kemp, supra, 481 U.S. 297. Because the petitioner has specifically disclaimed the presence of purposeful discrimination in either his particular sentencing or systemically, we conclude that the habeas court properly applied the principles enunciated in McCleskey to dismiss the petitioner’s federal equal protection claim.

The petitioner urges us to decline to apply McCleskey to his federal claim, asserting that it is an outlier without a firm grounding in equal protection jurisprudence, that certain recent United States Supreme Court decisions indicate a willingness on the part of that court to overrule “precedents that lack firm grounding in due process and equal protection jurisprudence, and that McCleskey is such a case.” In making this assertion, the petitioner, in addition to relying on Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977); see footnote 5 of this opinion; brings to our attention certain law review articles criticizing McCleskey, other cases that involve the doctrine of stare decisis and a portion of his brief arguing that faith in our judicial system is undermined by McCleskey. The short answer to this argument is that such a course of judicial conduct, namely, to decline to follow United States Supreme Court precedent with regard to an issue of federal law, is simply beyond our authority. State v. Marquez, 291 Conn. 122, 125 n.4, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).

II

STATE CONSTITUTIONAL CLAIM

We turn next to the petitioner’s claim that his sentence violates article first, § 20, of the Connecticut constitution. The petitioner claims that he was not required to allege purposeful discrimination in his habeas petition in order to assert an equal protection violation under our state constitution. We reject the petitioner’s claim.

It is well settled that, as a general matter, this state’s constitutional equal protection jurisprudence follows that of the federal constitution. See Broadley v. Board of Education, 229 Conn. 1, 8 n.15, 639 A.2d 502 (1994); Franklin v. Berger, 211 Conn. 591, 594 n.5, 560 A.2d 444 (1989); Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982). Indeed, in our Supreme Court’s most recent equal protection case under the state constitution, no party claimed that there was any difference between the two, and the court accepted that analytical rubric. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 149 n.13, 957 A.2d 407 (2008). Those cases would, at least in the first instance, suggest that, as under the federal constitution, a claim of equal protection under the state constitution would require an allegation and proof of purposeful or intentional discrimination.

It also is well established, however, that “federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Furthermore, although we often rely on the United States Supreme Court’s interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut, we have also recognized that, in some instances, our state constitution provides protections beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court. . . . The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled.” (Internal quotation marks omitted.) State v. McKenzie-Adams, 281 Conn. 486, 509, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). In State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), our Supreme Court set forth a six factor test for analyzing independent claims under the constitution of Connecticut.

“The Geisler factors serve a dual purpose: they encourage the raising of state constitutional issues in a manner to which the opposing party—the state or the defendant—can respond; and they encourage a principled development of our state constitutional jurisprudence.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 271, 990 A.2d 206 (2010).

The petitioner failed, in his opening brief, even to address or to cite Geisler. Thereafter, after the state in its responsive brief raised this issue, the petitioner in his reply brief claimed that he had performed in substance a Geisler analysis. We disagree.

The petitioner’s principal brief is bereft of what could, under even a very broad interpretation of Geisler, be considered such an analysis. As we have indicated, the portion of the petitioner’s principal brief on which he relies consists, instead, of law review articles criticizing McCleskey, a discussion of stare decisis and an argument that McCleskey undermines faith in our judicial system. This lack of a Geisler analysis is particularly significant because this is precisely the type of case in which a thorough Geisler analysis in the petitioner’s principal brief, to which the respondent could respond in his brief, would have been useful in order for this court to make a thoughtful and principled decision on a significant claim under the state constitution.

Although “not every Geisler factor is relevant in all cases”; (internal quotation marks omitted) id.; the petitioner has failed to discuss, under any of those factors, how article first, § 20, of our state constitution provides greater protection in this situation than does the federal constitution. The petitioner has not offered, for example, any textual evidence of greater protection, nor has he provided historical constitutional analysis or referred to any economic or sociological considerations that may provide a basis for his claim that purposeful discrimination is not a required element of an equal protection claim under our state constitution. He also has failed to highlight sister state decisions or sibling approaches that buttress his argument.

The petitioner does argue that Sheff v. O’Neill, 238 Conn. 1, 678 A.2d 1267 (1996) (en banc), stands for the proposition that evidence of purposeful discrimination is not a required element of state equal protection claims brought pursuant to article first, § 20. This argument misses the mark.

In Sheff, the plaintiff schoolchildren claimed that racial and ethnic segregation between Hartford and the surrounding suburban public school districts had deprived them of an equal opportunity to a free public education. Id., 5-6. Our Supreme Court concluded that article eighth, § 1, in conjunction with article first, § 20, of our state constitution, require the state legislature to remedy both de jure and de facto segregation in public schools. Id., 29-30. Although the court rejected the argument that the plaintiffs in that case were required to demonstrate intentional governmental discrimination in order to pursue their claim, this conclusion was reached, in part, on the reasoning that “[o]ur Connecticut constitution, [in] contrast [to the United States constitution], contains a fundamental right to education and a corresponding affirmative state obligation to implement and maintain that right.” Id., 21. The court went on to address the express inclusion of the term “segregation” in article first, § 20, of our state constitution, and emphasized that it was “[t]he addition of this term to the text of our equal protection clause [that] distinguishes this case from others in which we have found a substantial equivalence between our equal protection clause and that contained in the United States constitution.” Id., 27; see footnote 1 of this opinion. The holding in Sheff therefore was not premised on the equal protection clause of our state constitution but instead was decided on the clause in article first, § 20, that declares that Connecticut citizens shall not be subjected to segregation.

One final comment. In its memorandum of decision, the court, in addition to concluding that the petitioner had failed to state a cognizable equal protection claim under both the federal and state constitutions, also stated that it would not infer the existence of purposeful discrimination from a statistical study that the division of public defender services was “disinclined to commission.” This language, as far as we can ascertain from the record, stems from certain proceedings surrounding a motion for discovery, filed by the petitioner in December, 2004, during the pendency of his habeas action, in which he asked the court to order the production of statistical data analyzing sentencing patterns in the state of Connecticut for the crime of murder. At the hearing on the petitioner’s motion, the then deputy chief public defender testified that, because of the extraordinary cost associated with such a study, the public defender services commission, in her opinion, would be disinclined to conduct the study. The court thereafter denied the petitioner’s motion.

On appeal, the petitioner claims that the court, in dismissing his habeas petition, relied improperly on evidence related to the state’s disinclination to conduct such a study. He claims that the court should not have considered the denial of this motion in reaching its conclusion because the petitioner had shifted his litigation strategy and no longer required this statistical data. The petitioner seeks to prevail on this alleged impropriety pursuant to the plain error doctrine. See Practice Book § 60-5.

“As we often have stated, [p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Atkins, 118 Conn. App. 520, 535, 984 A.2d 1088 (2009), cert. denied, 295 Conn. 906, 989 A.2d 119 (2010). Applying these standards, we reject the petitioner’s claim of plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The equal protection clause of the fourteenth amendment to the United States constitution, § 1, provides in relevant part: “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
      The constitution of Connecticut, article first, § 20, as amended by articles five and twenty-one of the amendments, provides in relevant part: “No person shall be denied the equal protection of the law nor be subjected to segregation . . . .”

       In his habeas petition, the petitioner also asserted that the alleged system of racial disparity violated his rights under the International Convention on the Elimination of All Forms of Racial Discrimination, which was rejected by the court. Because this claim is not raised or briefed on appeal, it is deemed abandoned. See Morant v. Commissioner of Correction, 117 Conn. App. 279, 283 n.2, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

       As noted by the court, this petition for a writ of habeas corpus is one of numerous legal actions that have been filed by the petitioner, including several under his former name, Lawrence Townsend.

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the [habeas] petition ... if it determines that . . .
      “(2) the petition . . . fails to state a claim upon which habeas corpus relief can be granted . . . .”

       The petitioner’s reliance on Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977), for the proposition that statistical disparities are sufficient, under federal equal protection jurisprudence, to create an inference of intentional discrimination is misplaced. In Castaneda, the United States Supreme Court accepted mathematical disparities demonstrating a substantial underrepresentation of an identifiable group as proof adequate to establish a prima facie showing of an equal protection violation in grand jury selection. Id., 496. The McCleskey court, however, expressly disavowed similar statistical analysis as proof of intentional discrimination in capital sentencing cases, explaining: “[T]he application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection . . . [because] the statistics relate to fewer entities, and fewer variables are relevant to the challenged decisions.” McCleskey v. Kemp, supra, 481 U.S. 294-95. The court added that “[b]ecause discretion is essential to the criminal justice process, [it] would demand exceptionally clear proof before [it] would infer that the discretion has been abused.” Id., 297. Thus, for purposes of federal equal protection purposes, McCleskey, rather than Castaneda, governs the petitioner’s claim.

       The six factors to be considered are: “(1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies.” (Internal quotation marks omitted.) State v. McKenzie-Adams, supra, 281 Conn. 510.

       In Wendt v. Wendt, 59 Conn. App. 656, 685-86, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000), this court explained that the Sheff court "did not intend to allow state constitutional challenges on the basis of disparate impact, and it ruled as it did because it relied in part on the ‘independent constitutional significance' of the word ‘segregation’ in article first, § 20, of our state constitution and the affirmative constitutional obligation to provide a substantially equal educational opportunity under article eighth, § 1.”


author: BEAR, J.

text:
    JOANNE KENNEY, ADMINISTRATRIX (ESTATE OF MATTHEW S. KENNEY) v. DAVID G. WEAVING ET AL.
    (AC 31227)
    Robinson, Bear and Borden, Js.

      Argued May 20
    officially released August 10, 2010

      Andrew J. Pianka, for the appellant (plaintiff).

      Nicole Demers, assistant attorney general, with whom were MaiteBarainca, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Michael R. Butters, assistant attorney general, for the appellee (defendant Robert M. Ward).
   Opinion

BEAR, J.

The plaintiff, Joanne Kenney, administratrix of the estate of Matthew S. Kenney, appeals from the judgment of the trial court rendered in favor of the defendant Robert M. Ward after the court granted his motion to dismiss the plaintiffs cause of action against him. On appeal, the plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction pursuant to the doctrine of sovereign immunity. We affirm the judgment of the trial court.

The following allegations from the plaintiffs complaint set forth the basis for her claims against the defendant. On April 27, 2007, a motor vehicle driven by David G. Weaving struck the decedent, fourteen year old Matthew S. Kenney, who later died from his injuries. At the time of the accident, Weaving had five convictions for operating a motor vehicle while under the influence of alcohol. Four of those convictions occurred between November 1, 1996, and May 10, 1999. Despite these convictions, Weaving held a driver’s license that had been issued to him by the department of motor vehicles (department). In March, 2007, Weaving registered a 1990 Ford Mustang with the department, which he was driving at the time of the accident.

On or about March 9,2009, the plaintiff filed her initial complaint against both Weaving and the defendant, who was alleged to have served as the commissioner of the department at all times relevant to the complaint. In her complaint, the plaintiff alleged negligence against Weaving in count one and against the defendant, as commissioner, in count two. As to the defendant, she alleged that, as commissioner, he had a “duty to enforce the provisions of the [General] [Statutes concerning motor vehicles and the operation of such vehicles.” She also alleged that because of Weaving’s multiple convictions for driving under the influence, the defendant, “through his employees, officers and/or agents, was required to permanently revoke [Weaving’s] motor vehicle operator’s license . . . .” (Emphasis in original.) Additionally, she alleged that the defendant, “through his employees, officers, and or agents, through their acts or omissions, allowed [Weaving], a five-time drunk driving offender, to maintain a valid driver’s license, to register a 1990 Ford Mustang motor vehicle, and to operate said vehicle ... on the roads of this [s]tate.”

On April 14,2009, the plaintiff filed a second amended complaint that, in relevant part, removed any references to allegations of negligence against the defendant and instead alleged that the defendant, “through his employees, officers, and/or agents, acted recklessly and outside [the] scope of employment.”

On April 29, 2009, the plaintiff filed a third amended complaint. In that amended complaint, the plaintiff, in relevant part, eliminated any reference to the defendant’s “employees, officers, and/or agents.” The plaintiff filed an additional writ of summons naming the defendant and listing his private residence as his address. In this third amended complaint, the plaintiff attempted to abandon any claim against the defendant in his official capacity and instead set forth a cause of action against him only in his individual capacity.

On May 5, 2009, the defendant filed a motion to dismiss the second count of the third amended complaint on the ground that, inter alia, he was protected by sovereign immunity. The court granted the motion to dismiss on the ground of sovereign immunity, finding that the plaintiffs cause of action remained a cause of action against the defendant in his official capacity. The court opined that the defendant “could not conceivably have any connection to this horrible tragedy that occurred if he were not the commissioner of motor vehicles” and that “it is blatantly obvious that [the plaintiff continues] to consider him as the commissioner of motor vehicles.”

On appeal to this court, the plaintiff claims that the court improperly granted the motion to dismiss on the ground of sovereign immunity. She argues that her negligence claim is directed at the defendant in his individual, not his official, capacity and that, therefore, he is not entitled to the defense of sovereign immunity. We disagree.

“Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review. ... In so doing, we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. ... It has deep roots in this state and our legal system in general, finding its origin in ancient common law. . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence.” (Citation omitted; internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 211, 994 A.2d 106 (2010).

“The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty.” Hultman v. Blumenthal, 67 Conn. App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). Our Supreme Court has recognized that “because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state.” Sentner v. Board of Trustees, 184 Conn. 339, 342, 439 A.2d 1033 (1981).

“Whether a particular action is one against the state is not determined solely by referring to the parties of record.” Somers v. Hill, 143 Conn. 476, 479, 123 A.2d 468 (1956). “If the plaintiffs complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims.” Miller v. Egan, 265 Conn. 301, 307, 828 A.2d 549 (2003). The fact that the state is not named as a defendant, however, “does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent.” Somers v. Hill, supra, 479.

To determine whether an action is against the state or against a defendant in his individual capacity, we look to the four criteria established by our Supreme Court in Somers and as explained further in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). If all four criteria are satisfied, the action is deemed to be against the state and, therefore, is barred. Id., 568. The criteria are: “(1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.” Id.

In the present case, the first criterion is met because the defendant is a state official. The second criterion is met because the plaintiff claims that the defendant was “reckless in his duties of administering, coordinating, and controlling the operations of the department and in keeping records of proceedings and orders pertaining to matters under his jurisdiction and of licenses granted, suspended, and/or revoked.” The allegedly reckless actions of the defendant were related to his duties as commissioner of the department.

The third criterion, that the state clearly is the real party in interest, also is satisfied. Damages are sought for injuries allegedly caused by the defendant for performing or not performing acts that are part of his official duties. See Somers v. Hill, supra, 143 Conn. 480. Despite arguing that she abandoned the action against the defendant in his official capacity, the plaintiff in her third amended complaint continued to refer to the defendant as the commissioner of the department, to his duty to enforce the motor vehicle statutes and to his “recklessness” in failing to enforce such statutes. Furthermore, the plaintiff did not and could not allege any personal involvement on the part of the defendant with respect to the accident, nor did she allege that the defendant was aware of Weaving or of his motor vehicle history prior to the accident. Clearly, the defendant was sued only because he was the commissioner of the department at the time of the accident.

The fourth criterion is met because any judgment against the defendant based on the allegations in the third amended complaint will subject the state to liability. See Miller v. Egan, supra, 265 Conn. 311.

Despite the four Spring criteria being met, we, nonetheless, are aware that it is possible for a plaintiff to avoid the bar of the doctrine of sovereign immunity by demonstrating one of two recognized exceptions. A plaintiff “must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity ... or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.” (Citation omitted.) Id., 314.

With respect to the first exception, the plaintiff cites General Statutes § 4-165 as the applicable statute that would constitute a waiver of the state’s sovereign immunity. Section 4-165 (a) provides in relevant part: “No state officer or employee shall be personally hable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. ...” The statutory immunity provided by § 4-165 is distinct from common-law sovereign immunity. Hanna v. Capitol Region Mental Health Center, 74 Conn. App. 264, 268, 812 A.2d 95 (2002).

Our Supreme Court explicitly has rejected the argument that § 4-165 waives the state’s sovereign immunity. “In enacting § 4-165, the legislature abrogated the previously existing common-law liability of state employees for their negligent acts performed in the corarse of their duties. . . . The plaintiff argues that the legislature’s extinguishment of state employee liability necessarily implies a legislative intent that the state concurrently assumed liability for those actions. This argument ignores the statutory scheme of which § 4-165 is a part, requiring plaintiffs to proceed through the claims commissioner’s office. In the context of this statutory scheme, § 4-165 cannot reasonably be read so as necessarily to imply a legislative intent to waive the state’s sovereign immunity.” (Citations omitted.) Miller v. Egan, supra, 265 Conn. 333-34.

The plaintiff, however, repeatedly asserts that the defendant acted in excess of his statutory authority. She argues that any time a state official discharges his duties in a reckless manner, he is acting in excess of his statutory authority. The exception to the doctrine of sovereign immunity for actions by state officers in excess of their statutory authority applies only to actions seeking declaratory or injunctive relief, not to actions for money damages. See id., 327. Our courts have “excepted declaratory and iryunctive relief from the sovereign immunity doctrine on the ground that a court may fashion these remedies in such a manner as to minimize disruption of government and to afford an opportunity for voluntary compliance with the judgment.” (Internal quotation marks omitted.) Id., 317. In her complaint, the plaintiff sought only monetary damages together with costs and punitive damages against the defendant. Therefore, the exception for actions by officers in excess of their statutory authority does not apply.

Accordingly, we conclude that the court properly granted the defendant’s motion to dismiss on the ground of sovereign immunity.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought an action against both Ward and David G. Weaving. The action against Weaving is not part of this appeal. We therefore refer to Ward as the defendant in this opinion.

       We take judicial notice of the fact that the defendant did not begin his duties as commissioner of motor vehicles until early January, 2007. He was confirmed by the House of Representatives on March 7, 2007. As of the April 27,2007 accident, the defendant had been commissioner of the department for less than four months. The plaintiff does not allege that the driver’s license of Weaving was issued after the defendant became commissioner. At oral argument, the plaintiffs counsel stated that the driver’s license of Weaving was issued in 2004. The plaintiff does not allege that Weaving was under the influence of alcohol at the time of the accident. She also does not allege that the defendant had any contact with Weaving or that he had heard of Weaving or his motor vehicle record prior to the accident.

       The court also concluded that, even if the action had been pursued against the defendant in his individual capacity, it would have been barred by statutory immunity under General Statutes § 4-165 because the defendant’s conduct, as alleged in the complaint, did not amount to recklessness. Because we conclude that the court properly determined that the complaint was barred under the doctrine of sovereign immunity, we do not address this alternate ground for dismissal.

       The plaintiff argues that “[sovereign immunity applies to actions against the state and its officers or employees unless a statute creates an exception allowing an action. [Section] 4-165 allows for direct action against officers or employees for damages caused by reckless, willful or wanton conduct.”

       The plaintiff also argues that she should be given an opportunity to conduct discovery in the matter because she will be able to resolve factual issues that will demonstrate that the defendant acted recklessly. We have determined, however, that the defendant is entitled to the defense of sovereign immunity, and, therefore, the plaintiff cannot maintain her cause of action against him regardless of whether she could demonstrate recklessness pursuant to § 4-165. Furthermore, the plaintiffs counsel admitted at oral argument before this court that he did not utilize any of the fact-finding methods that had been available to him. Once the plaintiffs complaint had been challenged by way of the motion to dismiss, the plaintiffs counsel did not make a request to the trial court to hold an evidentiary hearing in connection with the motion, nor did he seek to take the deposition of or to engage in any other discovery from the defendant prior to argument of the motion to dismiss. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. GREGORY S. SEEKINS
    (AC 28830)
    Flynn, C. X, and Harper and McDonald, Js.

      Argued January 8, 2009
    officially released August 10, 2010

      Carlos E. Candal, special public defender, for the appellant (defendant).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Susan W. Hatfield, deputy assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

MCDONALD, J.

The defendant, Gregory S. Seekins, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes §14-227a (a) (1). On appeal, the defendant argues that the court improperly denied his request to add language to the court’s jury instruction under § 14-227a (e) that the jury might draw an inference from the refusal of the police to conduct a Breathalyzer test after the defendant requested it. We affirm the judgment of the trial court.

In considering the propriety of a jury instruction, an appellate court considers the evidence in the record before the jury most favorably to giving the instruction. State v. Carter, 232 Conn. 537, 546-47, 656 A.2d 657 (1995).

With Carter in mind, we recount the following evidence the jury heard at trial. On the early morning of April 29, 2005, Officer Douglas Gamache, of the University of Connecticut police department in Storrs, while on patrol, observed the defendant’s vehicle traveling with a broken tail light. Gamache followed the defendant’s vehicle and observed that it was traveling forty-five miles per hour in a thirty mile per horn zone. Gamache also noticed that the defendant’s vehicle drove very slowly around a slight turn and veered off to the right side of the roadway, although the vehicle did not veer off the pavement or into another lane of travel. At 12:40 a.m., Gamache stopped the defendant’s vehicle and saw that the defendant’s eyes were red and glassy and that his speech was slurred. Gamache also noticed that the car smelled of alcohol, although the defendant denied having consumed alcohol that night.

Gamache then asked the defendant to exit his vehicle to perform field sobriety tests, which Gamache believed he had failed. Thereafter, at 12:56 a.m., Gamache, concluding that the defendant was intoxicated, placed the defendant under arrest on a charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs and transported him to the University of Connecticut police headquarters. At 1:20 a.m., in the presence of a video camera, Gamache advised the defendant of his Miranda rights. Then at 1:27 a.m., Gamache read to the defendant an advisory regarding an operator’s implied consent to take a Breathalyzer test and the consequences of refusing to take the test. Gamache advised the defendant that he was being requested to submit to a Breathalyzer test and that his driver’s license would be suspended if he refused to submit to that test.

The defendant stated that he would not do anything until he called an attorney and had an attorney present. Gamache offered the defendant an opportunity to contact his attorney and permitted the defendant to speak with his father by telephone while his father located an attorney’s telephone number. The defendant repeatedly stated that he would not do anything without an attorney present. Because the defendant was ultimately unable to contact his attorney by calling his office at 1:48 a.m., Sergeant Scott Sleeman of the University of Connecticut police department and Gamache witnessed the defendant’s refusal to blow into the Breathalyzer machine. This was recorded on a form A-44, which Sleeman signed as required by law.

The defendant later stated that he would take the test, but Gamache did not administer it, stating that it was too late. The defendant also wanted his willingness to blow into the Breathalyzer machine documented before he was released at 2:44 a.m. The defendant’s request to take the Breathalyzer was within two hours of when the defendant operated his vehicle, and the test would have been valid if Gamache had then given the defendant the test.

Following the evidence at trial, the court informed counsel of the court’s proposed jury instruction that evidence of the defendant’s refusal to submit to the Breathalyzer test had been introduced and that if the jury concluded that the defendant had refused to take the test, it could draw any reasonable inference that followed from that fact. The defendant orally asked the court to instruct the jury that if the jury found that the police had refused to administer the Breathalyzer test after he had requested the test, the jury could draw a reasonable inference that follows from that fact. The court denied the defendant’s request, and the defendant took an exception to the charge as given. The jury returned a verdict of guilty, and this appeal followed.

On appeal, the defendant argues that the court’s instruction improperly deprived him of a theory of defense and was imbalanced in favor of the state. The defendant argues on appeal that the instruction improperly focused on his refusal to take the test without focusing on evidence that later he did request to take the test. The defendant argues that the court’s failure to deliver the requested instruction deprived him of the opportunity to have the jury draw the inference that he knew he was innocent and was seeking to prove it by submitting to the test. This argument focuses on the issue of a defendant’s consciousness of innocence in a jury charge regarding consciousness of guilt.

Our Supreme Court has stated that a defendant must assert a recognized legal defense to be entitled, as a matter of law, to a theory of defense instruction. Id., 545. We conclude that the defendant cannot do this.

This court repeatedly has refused to apply the consciousness of innocence principle to jury instructions regarding a consciousness of guilt. In State v. Holley, 90 Conn. App. 350, 364-66, 877 A.2d 872, cert. denied, 275 Conn. 929, 883 A.2d 1249 (2005), this court upheld the trial court’s refusal to give a consciousness of innocence instruction because the defendant voluntarily turned himself into the police after he fled the scene of the crime. This court held that the relevant precedent did not support the claim.

In State v. Timmons, 7 Conn. App. 457, 464, 509 A.2d 64 (1986), appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987), a similar argument and request to charge was made and rejected by the trial court. This court concluded that the surrender after flight of an accused is a factual argument that may be made in summation but does not support a theory of defense after flight, from which, as a matter of law, an inference of innocence may be drawn by the jury. Id., 466. The court stated that it had been unable to find any authority for such an instruction allowing such an inference. Id. Our Supreme Court dismissed the appeal in that case because this court’s opinion fully and carefully considered the defendant’s claims. See State v. Timmons, 204 Conn. 120, 526 A.2d 1340 (1987). A claim that absence of flight supports such an instruction was also rejected by the trial court and affirmed by this court in State v. Jennings, 19 Conn. App. 265, 271-73, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989). Accordingly, we conclude that the defendant was not entitled to the theory of defense instruction that he sought because he did not assert a recognized legal defense at trial.

With respect to the defendant’s claim that the court’s jury instruction was imbalanced in favor of the state, our Supreme Court has held that a claim of impropriety as to sin instruction concerning a permissive inference of consciousness of guilt is a claim of an evidentiary nature rather than a constitutional one. State v. Luster, 279 Conn. 414, 421-22, 902 A.2d 636 (2006).

It is well established that when a challenge to a jury instruction is not of constitutional magnitude, as here, “the 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. Gonzalez, 106 Conn. App. 238, 253, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008).

When giving a jury instruction, a trial court is not required to read verbatim applicable statutory language, so long as the court’s instruction substantially complies with the statutory language and it is not reasonably possible that the jury was misled. See State v. McCarthy, 63 Conn. App. 433, 439, 775 A.2d 1013, cert. denied, 258 Conn. 904, 782 A.2d 139 (2001). A court, however, must deliver a jury instruction in a manner calculated to give the jury a clear understanding of the issues presented, under the offenses charged and on the evidence. State v. Pinnock, 220 Conn. 765, 789-90, 601 A.2d 521 (1992). A proper jury instruction must be balanced and fair. Id., 788, 792.

In State v. Pinnock, supra, 220 Conn. 791-93, our Supreme Court held that it was improper, although harmless, for the jury instruction not to include the defendant’s request for language that would result in a more balanced instruction as to the absence of evidence of motive to commit an offense for which the defendant was on trial.

In State v. McCarthy, supra, 63 Conn. App. 439, this court held that the trial court’s instruction was adequate even though it was not identical to the language set forth in General Statutes (Rev. to 1997) § 14-227a (f). In McCarthy, the court’s instruction provided: “In order to draw an inference, however, you must find that the state . . . proved the fact from which you are to draw the inference beyond a reasonable doubt. . . . Now, if you find that the state has sustained its burden, you . . . must also make a determination whether or not the inference is logical .... [I]f you conclude from the evidence that the defendant refused to take [the breath] test . . . that’s for you to determine whether or not the defendant refused to take the test. ... If you find he didn’t refuse, then you don’t go on to that. Then there’s nothing for you to decide. ” (Internal quotation marks omitted.) Id., 437-38. The instruction also provided that if the jury concluded that the defendant had refused to take the test, then it could also conclude that the test would have been unfavorable to his position. See id., 439.

The instruction in McCarthy required that before the jury could draw any inference, the jury had to determine that the defendant had refused the test. Looking at the instruction in its entirety, the court in McCarthy held that it was not reasonably possible that the jury was misled. Id. In this case, the defendant claims that he and the state contested at trial whether he had refused to submit to the Breathalyzer test and argues that the instruction was improperly imbalanced because the jury was not directed to consider his later willingness to take the Breathalyzer test. We conclude, however, that the court’s jury instruction in this case properly and directly required the jury to find that the defendant had refused the test before the jury could draw an inference. Accordingly, we reject this argument.

The state argues that even if the instruction was imbalanced it was not harmful. We agree.

The law regarding the admissibility of evidence when a defendant refuses to submit to a Breathalyzer test and allowing jury instructions as to an inference to be drawn therefrom arises from the principle of consciousness of guilt. See id., 437-38. It is reasonable to infer that a refusal to take such a test indicates the defendant’s fear of the results of the test. Id.; see also State v. Albright, 98 Wis. 2d 663, 298 N.W.2d 196 (Wis. App. 1980); People v. Sudduth, 65 Cal. 2d 543, 55 Cal. Rptr. 393, 421 P.2d 401 (1966), cert. denied, 389 U.S. 850, 88 S. Ct. 43, 19 L. Ed. 2d 119 (1967).

In State v. Kelly, 256 Conn. 23, 54, 770 A.2d 908 (2001), our Supreme Court observed that four inferences must be drawn regarding consciousness of guilt. As applied to this case, the consciousness of guilt doctrine requires (1) an inference from the conduct of the defendant to his denial to the prosecution of Breathalyzer evidence of his blood alcohol level, (2) from that denial to an inference of consciousness of guilt, (3) from that consciousness of guilt to an inference of consciousness of guilt as to having operated a motor vehicle while under the influence of alcohol and (4) therefrom to an inference of guilt of that offense. In this case, the consciousness of guilt inference required the jury to discern the defendant’s state of mind when he refused to submit to the Breathalyzer test.

In State v. Pinnock, supra, 220 Conn. 792-93, our Supreme Court referred to language in the instruction that the jury consider all of the evidence in deciding the issue of the defendant’s guilt and found no prejudice to the defendant. In the present case, the court instructed the jury concerning inferences and circumstantial evidence as to a person’s state of mind. In doing so, as in Pinnock, the court told the jury it must consider all of the evidence. As in Pinnock, the instruction in the present case did not instruct the jury that it could not consider the defendant’s request to submit to the test. Finally, the court’s instruction in this case did not inform the jury that it could draw a negative inference from a refusal to take a Breathalyzer test.

In State v. Morelli, 293 Conn. 147, 162, 976 A.2d 678 (2009), our Supreme Court stated that a refusal to take the Breathalyzer test could give rise to a statutory inference of guilt. In State v. McCarthy, supra, 63 Conn. App. 439, the court’s instruction stated that the jury could conclude that the test would have been unfavorable to the defendant’s position and could draw such an inference. In this case, the court merely informed the jury that it could draw an inference from his refusal.

On appeal, the defendant argues on the issue of harmfulness that without his requested instruction to counterbalance the court’s instruction permitting the jury to draw a negative inference, he was prevented from having the jury consider drawing the opposite inference if it found that he had not refused the test. The defendant thus argues on appeal that the instruction was imbalanced and might have improperly led the jury to a “negative inference . . . .” The negative inference in this case would be that the defendant refused to blow into the Breathalyzer machine because he feared the result of the test. In this case, however, the defendant’s trial attorney took a different tack than the defendant does on appeal. The defendant’s counsel was present when the police videotape was played to the jury, and counsel did not contest before the jury the defendant’s motive in refusing to submit to the test. Counsel stated in final argument to the jury that although the videotape was unclear, the jury heard everything on the videotape when the defendant spoke to his father over the telephone. Counsel stated that the jury heard the defendant state that he had had two drinks but was sober and that his blood alcohol level “could be over point one or I could be under. But also I am sober. [It t] ells us . . . [that the defendant] was looking for counsel to advise him whether to take the breath test. ” His counsel added: “They did allow him to call. Everyone knows it was after 1 a.m., and no one is in the attorney’s office, so he’s given his right to [an] attorney. He said, I’m not doing anything until I talk to an attorney. The police put it down as a refusal.” Defense counsel continued, stating that there was no question that at one point in time, near the end of the booking process, the defendant asked to blow into the machine. The defendant’s counsel argued that the defendant asked three times, but the officer said no because it was too late. Counsel stated: “We have a video, and it showed that [the defendant] did ask to blow into the machine. . . . [He] had his one last chance near the end of the process . . . and the officer did not give him that chance.”

There was evidence before the jury that a Breathalyzer is a scientific test for blood alcohol level that produces a number either above or below 0.08 percent, the level of alcohol in the blood necessary to establish that a driver was operating under the influence in April, 2005. There was also evidence that formerly that blood alcohol level was 0.10 percent and that the legislature had lowered it to 0.08 percent. See Public Acts, Spec. Sess., May, 2002, No. 02-1, § 108, effective July 1, 2002. The videotape, as described by the defendant’s counsel, thus, was direct evidence in the defendant’s words of his reason not to take the Breathalyzer test to avoid the risk of such evidence. Because the defendant’s videotaped statements, as related by his counsel in argument, provided the jury with direct evidence of his motive and purpose in refusing to take the Breathalyzer test, we conclude that the challenged jury instruction was harmless.

“When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error.” (Internal quotation marks omitted.) State v. Sierra, 213 Conn. 422, 436, 568 A.2d 448 (1990). Our Supreme Court recently stated that “ [a] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Slater, 285 Conn. 162, 190, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).

We conclude with fair assurance that the failure to give the requested jury instruction did not substantially affect the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (e) provides: “In any criminal prosecution for a violation of subsection (a) of this section, evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b shall be admissible provided the requirements of subsection (b) of said section have been satisfied. If a case involving a violation of subsection (a) of this section is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.”

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       “The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.” (Internal quotation marks omitted.) State v. Bereis, 117 Conn. App. 360, 368 n.7, 978 A.2d 1122 (2009).

       General Statutes (Rev. to 2005) § 14-227b (c) provides in relevant part: “If the person arrested refuses to submit to such test or analysis . . . the police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period. The police officer shall prepare a written report of the incident and shall mail the report and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. The report shall be made on a form approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penally of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both and shall state that such person had refused to submit to such test or analysis when requested by such police officer . . . .”

       The defendant’s counsel stated on the record: “The other issue I have with the court’s charge, as we spoke in chambers, relates to the refusal, and you talk about the evidence of the defendant’s refusal to submit has been introduced. There was also evidence here that at one point in time he revoked that refusal, said I want to blow into the machine, and the police refused to conduct the test, so I’d ask that to be fair to the defendant that the court add a sentence right after where you say, if you find that the defendant did refuse to submit to such tests, you may make any reasonable inference that follows from that fact, that you add a statement that if you find that the police refused to conduct the test after the defendant requested it, you may make a reasonable inference that follows from that fact, and I’d ask that to be fair to both sides.”

       In accordance with the proposed instructions, the court instructed the jury in relevant part: “Evidence of the defendant’s refusal to submit to a breath test has been introduced. Before you consider such evidence, you must be satisfied that there has been compliance with General Statutes § 14-227b (b), which provides as follows: If any person having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor and thereafter being apprised of his constitutional rights, having been requested to submit to a breath test at the option of the officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test, and having been informed that such person’s license may be suspended, if such person refuses to submit to such test, that evidence of such refusal shall be admissible. If you find that the defendant did refuse to submit to such a test, you may make any reasonable inference that follows from that fact.”

       The state does not fault the manner of the defendant presenting his request orally or his exception to the charge.

       General Statutes (Rev. to 1997) § 14-227a (f), now (e), provides that the jury may or may not draw an inference from the defendant’s refusal to submit to the test. State v. McCarthy, supra, 63 Conn. App. 439.

       The state claims that evidence of the defendant’s statements of a similar nature appear on the audio portion of the videotape exhibit. The state invited us to listen to the videotape, but Gamache admitted in the trial record that the videotape had distortions “now and then” because of “skipping.” Furthermore, the videotape was admitted into evidence and played in part to the jury. On remand from this court, because the evidentiary record by the court reporter did not contain the audio portion of the videotape, the parties stipulated as to the parts of the videotape played to the jury. There is, hence, no contemporaneous record by the court reporter of the audio portion of the videotape being played to the jury, the sole means of knowing, because of the nature of the videotape and its playing by some tape player, what was clearly transmitted to the jury in the courtroom as required.

       Defense counsel argued as follows: “With regard to the state law, there’s additional rights, which [are], first, the officer must inform him of the implied consent, and then the officer must give him a reasonable opportunity to contact an attorney. So, you’ve got, you got [the defendant] being told by police officers, you got a right to counsel, and [the defendant] is saying, I don’t know I really need an attorney. I need an attorney here now. I need to talk to an attorney. I need an attorney present. Very emphatic. He wanted his constitutional right, statutory rights to an attorney.
      “The officers said, well, you know, you’ve got—we want an answer. I don’t want to do anything until I speak to an attorney, which, under our law, is his right. Officers say, we don’t have the number. He said, may I call my father? You heard [testimony from state police] Detective Christopher Bartolotta .... When suspects want to talk to an attorney, he gives them some privacy. Well, the reason we hear [the defendant] on the video is because there is no privacy there at [the University of Connecticut]. He was right there on the video, and we heard everything he was saying to his father.
      “What we can gather from hearing him speak to his father, he was being lectured by his father. He told him I don’t want a lecture. He told him he only had two drinks. That’s contrary to what he told the officer. We also can infer he didn’t want to hear the lecture. He also said I’m sober. He continued to say I’m sober. Everything we saw, could be over point one or I could be under. But also I am sober. What does that tell us? Tells us he doesn’t know what the law is. It tells us he was looking for counsel to advise him whether to take the breath test. The police did not—again, Detective Bartolotta said, well, we give him a phone call. If he asks to speak to an attorney, we give him a phone. That wasn’t allowed in this case. They did allow him to call. Everyone knows it was after 1 a.m., and no one is in the attorney’s office, so he’s given his right to an attorney. He said, I’m not doing anything until I talk to an attorney. The police put it down as a refusal. The officer did say, and he apologized, actually apologized, for he said I never—I did not tell [the defendant] that once he refused, he could not thereafter revoke and agree to take the test. I did not tell him that, and he apologized for that.”

       The defendant did not argue at trial and also does not argue on appeal that the police were required to afford him a Breathalyzer test after his previous refusal of the officer’s request was witnessed and endorsed. See footnote 4 of this opinion. There is also no dispute that the officer did not repeat his request that the defendant submit to a Breathalyzer test after the refusal was witnessed and before the defendant asked to blow into the machine. In these circumstances, we need not consider that the statute requires an officer to repeat that request and perform the test after the officer and an endorsing witness have witnessed a refusal and signed the required form before the court could charge the jury as it did.