author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. HASSAN EATON
    (AC 18313)
    O’Connell, C. J., and Sehaller and Healey, Js.

      Argued March 2
    officially released August 8, 2000

      RichardE. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Edward R. Narus, senior assistant state’s attorney, and, on the brief, James E. Thomas, 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

HEALEY, J.

The defendant, Hassan Eaton, appeals from the judgment of conviction, rendered after a trial to the court, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l) and failure to appear in the first degree in violation of General Statutes § 53a-172 (a). On appeal, the defendant claims that the court improperly (1) admitted, in violation of his sixth amendment right to confrontation, a statement made by a witness to the police and (2) failed to take reasonable measures to compel the witness to testify, thereby denying him the right to meaningful cross-examination. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The state filed a five count information charging the defendant with three counts of assault in the first degree and with conspiracy to commit assault in the first degree and failure to appear in the first degree. This case arose out of a shooting that occurred on March 3, 1995, at about 11:45 p.m. in a crowded Hartford dance hall known as the Capitol Hall Club (club). As a result of that shooting, Calvin Smith lost his right eye and Vivian Kutspas suffered a gunshot wound to her leg. Oshia Loman, Shawndrika Stevens and Lakeisha Johnson were all present at the club at the time of the shooting and gave signed statements to Detective Robert Lawlor of the Hartford police department after the shooting. Loman’s statement to Lawlor, which was given on March 10, 1995, is the subject of this appeal.

At the trial, the state’s first witness was Lieutenant Scott Vinci of the Hartford police department. Vinci had been dispatched to the scene of the shooting at the club. He testified that he arrived there at about 11:43 p.m. and found Smith lying on the floor and learned that Kutspas had been shot in both legs.

The state’s next witness was Smith. He testified that he went to the dance at the club with a couple of friends and, upon his arrival, he saw Alvin Waters, Everton Gunther, an individual known as “Small Fry” and the defendant, all allegedly members of a gang known as the Young Guns, standing outside. To gain entrance to the club, a person usually had to go through a metal detector and be searched. Apparently, however, Waters bombarded his way into the club avoiding a security check. According to Smith, he saw Waters inside the club acting “crazy” and saying different things in a loud tone, such as “Fuck Twenty Love.”

Smith also testified that he saw the defendant enter the club, but his attention was drawn to Waters when he made eye contact with him. Smith testified that, about aminute later, Waters gave him an “unfriendly look,” and then he heard a gunshot and felt pain in his eye. He had been struck in his right eye by a bullet. The last time Smith had seen the defendant before he was shot was about “a minute before [he] got shot,” at which time the defendant was somewhere in back of him.

Following Smith’s testimony, the state called Loman to testify because she had given a statement on March 10,1995, to Detective Lawlor implicating the defendant. Immediately after being sworn in, however, Loman stated that she did not want to testify. The court stated, “It’s my understanding you’re reluctant to testify because of various reasons. Now, I can tell you that there’s two ways to go about this. Okay. The easiest and the most proper way is for you to answer the questions honestly.” The court also told her that if she was being threatened, such threats would be investigated and pursued by the police. The court told Loman that if she refused to testify honestly and forthrightly, it had the ability and authority to hold her in contempt of court and to incarcerate her until she decided to testify.

Thereafter, the prosecutor inquired about a meeting that he had had with Loman before going into court that morning, at which he asked her to review her March 10, 1995 statement to the police. She, however, refused to review her statement and claimed that she did not remember anything that had happened at the club. Loman then testified that she had no recollection about the March 3, 1995 incident at the club. She did admit, however, that she was present when the incident took place, that a police officer took her name and that the police came to her home later in March, 1995, to take her to the police station. She also admitted that she told the police in her March 10, 1995 statement what she had observed at the club on the night of the shooting. She further testified that the detective who took her statement, Lawlor, wrote down her account of how the shooting occurred. While on the stand, she identified her signature on each page of the statement as well as her initials on a diagonal line on the second page. She also identified her signature on each page where the words, “I have read,” were handwritten. She further admitted that the statement, dated March 10, 1995, was the one that she had given to the police. Upon further inquiry, Loman also admitted that when she gave Lawlor her account of the incident in her March 10, 1995 statement, she was being truthful. After that testimony, the court took a recess to allow Loman to read the statement, but, after doing so, she indicated that it did not refresh her recollection as to her observations on the night of the shooting.

Thereafter, the state offered Loman’s statement into evidence as a full exhibit pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defendant objected, claiming that it was not a prior inconsistent statement. He argued that Loman had not testified to anything that was inconsistent with her statement as Whelan requires because she never specifically retracted anything that she had said in her statement to the police. According to the defendant, for Loman’s testimony to be inconsistent with her March 10, 1995 statement, she would have had to testify that something in that statement did not actually occur. As the defendant points out, Loman merely testified that she could not recall anything in her statement.

The state argued that Whelan was broad enough to allow the admission of the statement. It claimed that Whelan applies in the circumstances of this case, namely, when a witness has indicated that she does not want to be in court and that she is not willing to testify and has stated that to the police, the prosecutor and the court. The state claimed that the witness’ asserted loss of memory could be considered inconsistent with her prior written statement for purposes of Whelan.

The court overruled the defendant’s objection and admitted Loman’s statement as a full exhibit, finding that Whelan was broad enough to allow its admission. In doing so, the court found that Loman was a reluctant witness, that all her answers basically had to be “dragged out of her,” that her lack of memory was apparent and that all of this was produced under the pressure of testifying.

On his cross-examination of Loman, the defendant probed into the circumstances under which she gave her statement to the police, including how she got to the police station, how long she was there, how she was questioned, who questioned her, how she answered the questions and whether the police had told her who the person was who had shot the victims at the club. Loman stated that she did not know if there was another person present besides Lawlor when she gave her statement.

Upon completing his cross-examination, defense counsel renewed his objection to the admission of Loman’s statement, arguing that because Loman could not recall what had happened, he was essentially put in the position of cross-examining a written statement. He again argued that the statement was not inconsistent with her testimony. The court adhered to its previous ruling allowing the admission of the statement. At that time, the court noted that Loman’s testimony was produced reluctantly and that her credibility when answering the questions, including her lack of memoiy about the particular issue, was very low.

Thereafter, Johnson, who also had given a statement to the police about the shooting, testified that she had arrived at the club between 9:30 p.m. and 10:30 p.m. She further testified that she saw the defendant, Waters and Everton in the club that night, but that she could not recall observing anything Waters had done. Although she heard a gunshot and saw sparks, she did not know where they came from.

Johnson further testified that some time after that night she gave a statement to the police regarding her observations on the night of March 3, 1995. She too, however, had difficulty recollecting the events of that evening. Even after she looked at her statement, she did not recall telling the police that she saw the defendant standing on the dance floor holding a gun as it had been reported in her statement. She did, however, say, “I don’t recall [saying] it, but it’s in the statement.”

Toward the end of her direct examination, when again questioned about the male she had seen standing on the dance floor, she said she could not see him “clearly” because she had seen him only for “a hot second.” Shortly thereafter, however, she admitted that her statement to the police was truthful and she stated, “I think I [told the officers that] it was [the defendant].”

Johnson also admitted that on March 7, 1998, she signed the same three police photographs that Loman had signed. She further admitted that in signing the defendant’s photograph, the officers had asked her to identify the person that she saw firing the gun and she identified the defendant.

Stevens, who also was under subpoena and had given a statement to the police regarding the shooting, was called next to testify by the state. She and several of her friends had arrived at the club between 11 p.m. and 11:30 p.m. She testified that she saw the defendant, Waters, Everton and Smith, and that she had known the defendant for about six years. Stevens testified that she was standing right behind Smith before and during the incident. She saw Waters look at Smith and heard him making “smart remarks” about the Twenty Love gang, such as “F them.” She further testified that, the defendant, who was to her left, was holding something black in his hand that she had recognized to be a gun and that she saw him point it up toward Smith’s head. At that point, she heard a gunshot and Smith fell on her. She also heard additional gunshots. She then testified that she saw Smith crawling away toward the bar and that the defendant was alone in the middle of the dance floor. Then, she observed the defendant walking toward the bar area and gunshots were still going off. She saw Waters take off his black coat and give it to the defendant. Waters, thereafter, left by the back entrance to the hall.

Continuing on direct examination, Stevens identified the three police photographs previously marked as exhibits as being those of Waters, Everton and the defendant. On the photograph of the defendant, she had written, “Photo number 7 is the person named Hassan SOH who shot Calvin.’’

The state’s next witness was Lawlor, who explained the circumstances under which he took Loman’s statement. Lawlor testified that when Loman was originally contacted about being interviewed by the police, she had no problems with it whatsoever and she was willing to cooperate; therefore, the police transported her to the police department. According to Lawlor, Loman’s only reluctance was that she feared retaliation because it was allegedly a gang related shooting. Lawlor testified that when he took Loman’s statement he typed it on the computer with the monitor facing her so that she could read what he was typing. When Lawlor printed out Loman’s statement, she read it, signed it, swore before a notary public that the statement was truthful and also initialed the “I have read” acknowledgement that she had circled herself.

Lawlor further testified that when he served Loman with a subpoena, she again displayed reluctance about testifying. Lawlor explained to her that she could be incarcerated for disregarding a subpoena, and, according to Lawlor, she replied, “I don’t care.” She eventually stated, however, that she would show up for court.

The state also introduced evidence that the defendant had failed to appear in court on an unrelated matter in April, 1995. The police in Hartford obtained an arrest warrant for the defendant on April 11, 1995, but could not locate him because he had left their jurisdiction. Approximately nineteen months later, on October 28, 1996, the police in Wethersfield, acting on an anonymous tip, located him in a Wethersfield motel. When police apprehended him, the defendant gave them a false name. A police officer from the Hartford police department, however, verified that the person that the police had apprehended was the defendant.

After the trial to the court had concluded, the defendant was convicted of assault in the first degree and failure to appear in the first degree. Later, the court made a finding under a part B information that, at the time of the assault, the defendant was free on a pretrial bond and thus subject to an enhanced penalty under General Statutes (Rev. to 1995) § 53a-40b. Thereafter, the court sentenced the defendant on the assault conviction to a seventeen year term of imprisonment, enhanced by a concurrent five year term under § 53a-40b and a second concurrent five year term on the failure to appear charge. The total effective sentence, therefore, was seventeen years of imprisonment. This appeal followed. Additional facts will be discussed where necessary.

I

The defendant claims that the court improperly admitted Loman’s written statement to the police under Whelan, thereby violating his sixth amendment right to confrontation. We disagree.

First, we must undertake a discussion of whether a witness’ prior written statement can be considered “inconsistent” with her testimony under Whelan when the witness, at trial, claims that she is unable to recall the circumstances surrounding the making of that statement. Loman, like the declarant in Whelan, was a forgetful witness, and Whelan’s reach encompasses inconsistencies arising in a number of contexts. “A statement is admissible as a prior inconsistent statement . . . only when the trial court is persuaded that, taking the testimony of the witness as a whole, the statements are in fact inconsistent. . . . Such a determination as to inconsistency lies within the discretionary authority of the trial court.” (Citations omitted.) State v. Avis, 209 Conn. 290, 302, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989). “Inconsistencies may be shown not only by contradictory statements but also by omissions. In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. . . . Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement . . . and the same principle governs the case of the forgetful witness. ... A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position and they may also be found in denial of recollection. . . . The trial court has considerable discretion to determine whether evasive answers are inconsistent with prior statements.” (Citations omitted; internal quotation marks omitted.) State v. Whelan, supra, 200 Conn. 748-49 n.4.

Loman’s posture at trial can fairly be viewed as what Whelan considers “inconsistent in effect,” that is, she had given a properly executed statement to the police that she swore was truthful when given, but later failed to recall its contents at trial. We note that the witness in Whelan testified in court that he was unable to remember the events involved because he had been intoxicated at the time and that he had been in an automobile accident that had left him in a coma. Id., 746. In making our determination here, however, we point out that our Supreme Court has stated: “Our analysis in Whelan . . . did not focus on the circumstances surrounding the witness’ statements in the courtroom. Rather, we carefully examined the circumstances surrounding the out-of-court statement, in order to determine if the statement was made under conditions providing a reasonable assurance of reliability.” State v. Borrelli, 227 Conn. 153, 159, 629 A.2d 1105 (1993). Loman’s statement to the police meets the Whelan requirements. Accordingly, we conclude that the court did not abuse its discretion in admitting that statement as a prior inconsistent statement.

The defendant claims that allowing Loman’s written statement in as a full exhibit under Whelan when she could not recall making the statement violated his sixth amendment right to confrontation because he could not meaningfully cross-examine her while she was on the witness stand as required by Whelan. When Loman was called to testify, she was shown the statement that she had made to police on March 10, 1995. Loman testified that although she recognized the signature on it as being her own, she did not recall making the statement. The statement, however, was admitted into evidence under Whelan over objection by the defendant.

“The issue of whether admission of the statement was proper revolves around State v. Whelan, [supra, 200 Conn. 743], In Whelan, we adopted the rule allowing the substantive use of a prior inconsistent statement if: (1) the statement is in writing; (2) it is signed by the declarant; (3) the declarant has personal knowledge of the facts set forth in the statement; and (4) the declarant testifies at trial and is subject to cross-examination. ... A Whelan claim is evidentiary in nature and, accordingly, the defendant bears the burden of establishing that the trial court’s erroneous ruling was harmful to him in that it probably affected the outcome of the trial. . . . The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court. ... On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused.” (Citations omitted; internal quotation marks omitted.) State v. Robinson, 56 Conn. App. 794, 798, 746 A.2d 210, cert. denied, 253 Conn. 904, 753 A.2d 938 (2000).

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“Although it is within the trial court’s discretion to determine the extent of cross-examination . . . the preclusion of sufficient inquiiy into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. . . . The right of confrontation is preserved [however] if defense counsel is permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . .

“While [t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause . . . that is not the situation in this case.” (Citations omitted; internal quotation marks omitted.) State v. Portee, 55 Conn. App. 544, 558-59 (1999), 740 A.2d 868, cert. denied, 252 Conn. 920, 744 A.2d 439 (2000). Although Loman was uncooperative for the defense as well as for the state in failing to recall her statement to the police even after she was given the opportunity to review it, she did describe in some detail the circumstances of when she gave her statement to the police. She was able to recall that she signed and initialed the statement after it was read to her and that she was present at the club at the time of that incident. Significantly, she testified that the contents of her statement that she gave some ten days after the shooting incident in 1995 were truthful.

Furthermore, Loman was present in court and she was under oath and subject to cross-examination. While Loman asserted that she could not recall the events surrounding the making of her statement to the police and declared discomfort about having to come to court in the first instance, she did respond to certain questions on direct examination. Therefore, “[t]his is not the situation where a witness did not testify at trial at all . . . or where the trial court completely precluded inquiry into a particular area.” (Citation omitted.) Id., 559.

The defendant’s confrontation claim also is not aided by his actual cross-examination of Loman. The transcript shows that he made little effort to question Loman about the facts of the shooting incident itself and that most of the questions on cross-examination concerned the circumstances leading up to and including the making of her statement. The defense, however, did elicit from her that she had no recollection of ever telling a police officer on the night of the shooting that she was not sure of the identity of the shooter, but that she would try to make an identification. In addition, defense counsel also sought to impeach Loman’s credibility by asking her if she recalled telling a police officer at the scene of the shooting that the only members of the Young Guns gang at the club that she knew were Harold Cook and a person named “TT.” She, however, had no recollection of making that statement.

On cross-examination, the defendant had the opportunity to show Loman’s bias, interest and motive, which were for the court to assess. Furthermore, the court had the opportunity to observe and assess Loman’s demeanor. Given Loman’s asserted loss of memory, defense counsel was not without resources in his cross-examination because the court might have been persuaded that Loman’s statement to the police was as unreliable as her memory arguably was. The defendant, therefore, was hardly reduced to cross-examining a written statement.

Our Supreme Court noted in State v. Paulino, 223 Conn. 461, 470, 613 A.2d 720 (1992), that the “mission of the confrontation clause [is] to advance the accuracy of the truth determining process ... by assuring that the trier of fact has a satisfactory basis for evaluating the truth of a prior statement.” (Internal quotation marks omitted.) “The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story . . . .” California v. Green, 399 U.S. 149, 159, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

The defendant argues that Loman’s lack of recollection has precluded him from any meaningful cross-examination of her. “The court, however, did not preclude questioning into any area that defense counsel found relevant to the defendant’s case”; State v. Portee, supra, 55 Conn. App. 559; it was Loman who refused to testify. Under the circumstances of this case, we conclude that the court did not abuse its discretion in admitting the statement under Whelan, and that the defendant’s sixth amendment right of confrontation was not violated.

II

The defendant’s final claim is that the court improperly failed to take reasonable measures to compel Loman to testify, thereby denying him his right to meaningful cross-examination. We decline to review this claim.

The defendant argues that the court was required to invoke its contempt authority under General Statutes §§ 51-33, 51-33a or 51-35 to compel the reluctant witness with a pattern of selective memory loss to testify. No such claim, however, was made by the defendant at trial, and the defendant never asked the court to invoke its contempt powers. He therefore seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “The first two requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail.” State v. Woods, 250 Conn. 807, 815, 740 A.2d 371 (1999). This court, however, is free to dispose of a Golding claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992).

The defendant claims that because the court did not invoke its contempt authority against Loman his right to cross-examination was violated; therefore, in his opinion, his claim is a constitutional one. The second prong of the Golding requires that the claim be of constitutional magnitude alleging the violation a fundamental right. The right of an accused to confront the witnesses against him is guaranteed by the sixth amendment. See State v. Kulmac, 230 Conn. 43, 55-56, 644 A.2d 887 (2000). It should be pointed out, however, that it is “a fundamental tenet of confrontation clause jurisprudence . . . that the clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” (Internal quotation marks omitted.) State v. Troupe, 237 Conn. 284, 292, 677 A.2d 917 (1996). Thus, every evidentiary ruling that a defendant claims implicates his sixth amendment right of confrontation is not constitutional in nature. See State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

We are not aware of any authority that supports the proposition that a court’s failure to exercise its contempt powers in relation to a witness, as under the circumstances of this case, implicates the right of cross-examination of the defendant. Therefore, although the defendant claims that the court violated his right to cross-examination by not holding Loman in contempt, he has failed to cite any law to support his position that his claim rises to the level of a constitutional violation. See State v. Gonda, 53 Conn. App. 842, 855, 732 A.2d 793, cert. denied, 250 Conn. 919, 738 A.2d 660 (1999). We will, therefore, not review this unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, or (2) while on probation for conviction of a felony, he wilfully fails to appear when legally called for a violation of probation hearing.”

       During the trial, the court dismissed the conspiracy count.

       Smith allegedly was a member of the Twenty Love gang.

       Smith testified that a1 1hat time he had known the defendant for about five years.

       The Twenty Love gang, Smith’s supposed gang, and the Young Guns were rival gangs.

       Because Waters was acting in such a crazy manner, Smith said that he was concerned only about what Waters might do.

       Lawlor testified that the police received information that suggested that some witnesses were being coerced not to testify.

       At that time, the following colloquy transpired between the court and Loman:
      “The Court: [I]n our society when people come forth when they’re investigating a crime, people have an obligation and a responsibility to other citizens to testify to what they’ve seen or heard honestly. Now, I know you’re nervous and that is very understandable and this is a lot of pressure on you.
      “The Witness: I don’t want to be here.
      “The Court: I understand that. However, this is a court of law and people have been charged with crimes. You have given statements to the police, I understand, which I haven’t read, and you’re going to be questioned about those statements. Bear with me and we’ll try to go through this procedure.”

       After first denying that Lawlor read the statement back to her, Loman finally admitted 1hat he had done so.

       “In Whelan, [our Supreme Court] adopted tire rule allowing the substantive use of a prior inconsistent statement if: (1) the statement is in writing; (2) it is signed by the declarant; (3) the declarant has personal knowledge of the facts set forth in 1he statement; and (4) the declarant testifies at trial and is subject to cross-examination.’' (Internal quotation marks omitted.) State v. Robinson, 56 Conn. App. 794, 798, 746 A.2d 210, cert. denied, 253 Conn. 904, 753 A.2d 938 (2000).

       At that time, defense counsel stated, “I certainly will stipulate that the other requirements of Whelan have been met.”

       Defense counsel stated: “She indicated that she didn’t want to be here, but the fact is, she is here, and I don’t believe that we can speculate as to why she is saying that she doesn’t remember the events.”

       After the admission of Loman’s statement to the police, the state completed its direct examination of her by obtaining her acknowledgement that she had signed her name to three photographs from police files on March 10, 1995.

       She was not friends with the three men and merely knew of them.

       She had previously signed each of these photographs when questioned by the police in March, 1995.

       “SOH” was a nickname for the defendant.

       Later, on cross-examination, she said that she did not see the defendant fire the gun. At that time, she also indicated that she made an “assumption” that the defendant was the shooter. She, however, did not testify to any corrections that she had “suggested” after reading the statement.

       Lawlor admitted on cross-examination that a redacted version of an incident report of the shooting by Detective James Rovella contained the following: “Loman stated [to Rovella] she was unsure about identifying the party who was shooting but would try.” Lawlor also stated, however, that Loman was “extremely confident” of her identification of the defendant as the shooter when she later gave her signed statement on March 10, 1995.

       General Statutes (Rev. to 1995) § 53a-40b provides: “A person convicted of an offense committed while released pursuant to sections 54-63a to 54-63g, inclusive, or sections 54-64a to 54-64c, inclusive, may be sentenced, in addition to the sentence prescribed for the offense to (1) a term of imprisonment of not more than ten years if the offense is a felony, or (2) a term of imprisonment of not more than one year if the offense is a misdemeanor.”

       There are other factors, in addition to the those enumerated in Whelan, that may enhance the reliability of a prior statement of a witness. See State v. McDougal, 241 Conn. 502, 510, 699 A.2d 872 (1997) (statement written, signed under oath and declarant advised that it was criminal to give false statement); State v. Hermann, 38 Conn. App. 56, 67-68, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995) (where prior statement tape-recorded, statement need not be signed because recording of witness’ voice imparts same measure of reliability as signature).

       This apparently was in reference to an incident report made by Detective Rovella as the result of his talking to Loman at the scene on the night of the shooting.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    L, S & L BETHANY, INC. v. MALCOLM W. BALDWIN
    (AC 19355)
    Landau, Hennessy and Zarella, Js.
    Argued April 26
    officially released August 8, 2000

      Max F. Brunswick, for the appellant (plaintiff).

      Richard M. Shapiro, for the appellee (defendant).
   Opinion

PER CURIAM.

In this action for breach of contract for the alleged overpayment of a mortgage note, the plaintiff, L, S & L Bethany, Inc., appeals from a summary judgment rendered in favor of the defendant, Malcolm W. Baldwin. The plaintiff claims that the defendant accepted a check for the payment of the mortgage with a notation written on it reserving the plaintiffs right to bring an action disputing the amount of the debt. The trial court granted summary judgment on the theory of res judicata. A previous action between these parties resolved the issue of the amount the plaintiff owed on the mortgage note. The plaintiff claims, however, that it is not precluded from challenging the debt because of the notation written on the check.

“It is the responsibility of the appellant to provide an adequate record for review. . . .” Practice Book § 61-10. In this case, the record is inadequate for review because we have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court. See Practice Book § 64-1. Moreover, the record does not contain the check on which the plaintiff bases its case, nor does the record contain any affidavit from the plaintiff regarding the facts in dispute. Accordingly, we conclude that the plaintiffs claim is not reviewable. See Dime Savings Bank of New York, FSB v. Saucier, 48 Conn. App. 709, 710, 709 A.2d 610 (1998); Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607-609, 710 A.2d 190 (1998).

The judgment is affirmed.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. KAREEM HEDGE
    (AC 19058)
    Lavery, C. X, and Schaller and Daly, Js.
    Argued April 27
    officially released August 8, 2000

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph Harry, assistant state’s attorney, for the appellant (state).

      H. Jeffrey Beck and Jeffrey G. LaPierre, certified legal intern, with whom, on the brief, was Maria A.

      Cahill, certified legal intern, for the appellee (defendant).
   Opinion

DALY, J.

The state, with the permission of the trial court pursuant to General Statutes § 54-96, appeals from the judgment of the trial court dismissing the charges against the defendant following the court’s decision granting the defendant’s motion to suppress evidence obtained during a search of his automobile. The defendant had been charged with possession of nar cotics with intent to sell in violation of General Statutes § 2 la-278 (b), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b) and conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 21a-278 (b). The court granted the defendant’s motion to suppress evidence obtained during a search of the defendant’s automobile because the court concluded that the search was conducted without probable cause. Thereafter, the court dismissed the charges against the defendant.

On appeal, the state advances three alternative grounds in support of its claim that the court improperly granted the motion to suppress the evidence. Specifically, the state claims that (1) the search of the vehicle was a valid search incident to a lawful arrest, (2) the search was justified under the automobile exception to the warrant requirement and (3) the search was permitted as a protective search pursuant to a valid Terry stop. We agree with the first of these contentions and, accordingly, reverse the judgment of the trial court.

The record discloses the following facts. On June 12, 1997, at about 1:30 a.m., Officer Robert Magnuson, Jr., of the Bridgeport police department was conducting a narcotics surveillance of a building in the Marina Village housing project. Magnuson had been involved in many similar drug surveillance operations and arrests. He also had taken advanced courses in narcotics detection at the state police academy.

Magnuson took up a position on the roof of a building close to the building under surveillance, which was known as a place for narcotics activity. Magnuson utilized binoculars to view the area, which was well illuminated. He watched the defendant for about an hour, during which time the defendant was with a known drug dealer. During this time, Magnuson observed unidentified individuals enter the area, have brief conversations with the defendant and obtain small plastic bags from a brown paper bag in the defendant’s waistband in exchange for money. Magnuson estimated that seven separate drug transactions were conducted during his surveillance.

Eventually, the defendant and his companion entered an automobile, with the defendant sitting in the driver’s seat. Magnuson then radioed nearby officers and told them to stop the automobile. Those officers stopped the vehicle after it had been out of Magnuson’s sight for only one minute. Officer Louis Cortella of the Bridgeport police department searched the vehicle and found thirty small bags containing drugs under the front passenger seat. The defendant and the other occupants of the vehicle were then arrested.

The defendant filed a motion to suppress the evidence obtained by the police during the search of the automobile, claiming that the search was made without either a warrant or probable cause and, therefore, violated his rights under the fourth and fourteenth amendments to the United States constitution and the analogous provisions of the Connecticut constitution.

After a hearing on the motion to suppress, the court found that, while the officers did have a reasonable and articulable suspicion that the defendant engaged in illegal drug transactions sufficient to justify the stop of the vehicle, the facts as known to the police did not amount to probable cause. Accordingly, the court found that the police lacked probable cause to arrest the defendant and to search the vehicle. Because the search was conducted by the police in the absence of either a warrant issued by a court or probable cause, and because there was an insufficient basis for the arrest and subsequent search incident to that arrest, the court granted the motion to suppress the evidence obtained from that search in a memorandum of decision dated October 13, 1998. On October 15, 1998, the trial court dismissed all of the charges against the defendant, and the state filed a request for permission to appeal, which request the court granted. This appeal followed.

On appeal, the state claims that the court improperly granted the motion to suppress because there was probable cause both to arrest the defendant and to search his vehicle and, therefore, the police were permitted to conduct a search of the automobile incident to a lawful arrest or under the automobile exception to the warrant requirement. The state also claims that the search was permitted as a protective search for weapons after a valid Terry stop.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [WJhere 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 set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Boyd, 57 Conn. App. 176, 180, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000); see also State v. Velasco, 248 Conn. 183, 188-89, 728 A.2d 493 (1999); State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998); State v. Casiano, 55 Conn. App. 582, 586, 740 A.2d 435 (1999), cert. denied, 252 Conn. 942, 747 A.2d 519 (2000).

“The fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents. A warrantless search and seizure is per se unreasonable, subject to a few well-defined exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Miller, 227 Conn. 363, 383, 630 A.2d 1315 (1993); State v. Lewis, 220 Conn. 602, 609, 600 A.2d 1330 (1991). The state bears the burden of proving that an exception to the warrant requirement applied. Mincey v. Arizona, 437 U.S. 385, 390-91, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); State v. Blades, 225 Conn. 609, 618, 626 A.2d 273 (1993). State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).” (Internal quotation marks omitted.) State v. Szepanski, 57 Conn. App. 484, 487-88, 749 A.2d 653 (2000).

“One of those exceptions is a search incident to a lawful arrest. It is an established rule that a properly conducted warrantless search incident to a lawful arrest is itself lawful. State v. Cobuzzi, 161 Conn. 371, 373, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972); State v. Collins, 150 Conn. 488, 492, 191 A.2d 253 (1963).” State v. Velasco, supra, 248 Conn. 189. “This exception permits a police officer to conduct a full search of an arrestee and to seize evidence as well as weapons.” State v. Trine, 236 Conn. 216, 235-36, 673 A.2d 1098 (1996). “Thus, if the defendant’s arrest was lawful, the subsequent warrantless search . . . also was lawful.” State v. Velasco, supra, 189. “Even if a search and seizure chronologically precede a formal arrest, the search and seizure may be constitutionally valid as long as the arrest and the search and seizure are substantially contemporaneous and are integral parts of the same incident.” State v. Trine, supra, 236.

Pursuant to General Statutes § 54-lf (b), a police officer may conduct a warrantless arrest of “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” “The phrase ‘reasonable grounds to believe’ is synonymous with probable cause. State v. Trine, [supra, 236 Conn. 236 n.16]; State v. Love, 169 Conn. 596, 599, 363 A.2d 1035 (1975).” State v. Velasco, supra, 248 Conn. 189.

“The determination of whether probable cause exists under the fourth amendment to the federal constitution, and rmder article first, § 7, of our state constitution, is made pursuant to a ‘totality of circumstances’ test. Illinois v. Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991). With respect to warrantless arrests . . . the trial court, in determining whether the arrest is supported by probable cause, is required to make a practical, nontechnical decision whether, under all the circumstances . . . there is a fair probability that the defendant had committed or was committing a felony. State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991).” (Emphasis in original.) State v. Velasco, supra, 248 Conn. 189-90.

“In order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. . . . State v. Cobuzzi, [supra, 161 Conn. 376]. In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 460 U.S. 730, [742,] 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). ... In testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered.” (Citations omitted; internal quotation marks omitted.) State v. Holder, 18 Conn. App. 184, 187-88, 557 A.2d 553 (1989).

In the present case, while Magnuson did not actually see drugs being passed by the defendant, he observed the defendant with a known drug dealer in an area known for narcotics activity. He further observed the defendant meet with a number of individuals, have brief conversations with them and then hand over small plastic bags that he took from a brown paper bag in his waistband in exchange for money. This was sufficient to warrant a man of reasonable caution, in this case, a trained and experienced police officer, to believe that a felony had been committed. See State v. Holder, supra, 18 Conn. App. 187; see also State v. Carey, 13 Conn. App. 69, 72, 534 A.2d 1234 (1987) (“police officer is authoiized to arrest, without a warrant, ‘any person who the officer has reasonable grounds to believe has committed or is committing a felony’ ”).

We conclude that the evidence in the possession of the officers involved in this case was sufficient to constitute probable cause to arrest the defendant, and, therefore, the search of the defendant and the vehicle incident to that arrest was permissible. We conclude that the court improperly granted the defendant’s motion to suppress the evidence obtained.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by . . . possessing with the intent to sell or dispense . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising ... a public housing project . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of . . . possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising ... a public housing project .... For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”

         General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       General Statutes § 54-lf (b) provides in relevant part,: “Members of the Division of State Police within the Department of Public Safety or of any local police department . . . shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.”


text:
    ROSELYNN D. CONFORTI ET AL. v. DONALD B. CHRISTIE ET AL.
    (AC 19280)
    Lavery, C. J., and Landau and Mihalakos, Js.
    Argued June 8
    officially released August 8, 2000

      Eddi Z. Zyko, for the appellants (plaintiffs).

      Anne Kelly Zovas, for the appellees (defendants).
   Opinion

PER CURIAM.

This is an action pleaded in eighteen counts, sounding in “wilful and intentional assault and battery, reckless and wanton assault and battery, negligent assault and battery, common-law recklessness, intentional infliction of emotional distress, negligence, breach of contract, respondeat superior and loss of consortium.” The named plaintiff appeals from the judgment rendered in favor of the defendants, Donald B. Christie and Toll Gate Foods, Inc., following the court’s granting of a motion to strike the plaintiffs’ amended complaint.

Certain procedural facts are relevant to this appeal. On July 31,1998, the court, Pellegrino, J., in a memorandum of decision, granted the defendants’ motion to strike the plaintiffs’ revised complaint. The plaintiffs pleaded over and filed an amended complaint, which the defendants also moved to strike. On December 17, 1998, the court, Gill, J., granted the motion to strike the amended complaint without writing a memorandum of decision. Thereafter, the defendants filed a motion for judgment, which the court, Holzberg, J., granted on January 19, 1999.

The duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 61-10. In the present case, the record is inadequate for review because we have not been provided with a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court with respect to the motion to strike the amended complaint. See Practice Book § 64-1. We cannot reach the issue of whether the trial court acted properly because this court “may not surmise or speculate as to the reasons why the trial court granted the motion to strike.” Dime Savings Bank of New York, FSB v. Saucier, 48 Conn. App. 709, 710, 709 A.2d 610 (1998); Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607-609, 710 A.2d 190 (1998).

The judgment is affirmed.

       The named plaintiff, Roselynn D. Conforti, was joined in this action by her husband, the plaintiff Michael F. Conforti, who died on May 3, 1999. The named plaintiff was appointed executrix of his estate. We refer to the named plaintiff in both capacities as the plaintiff on appeal.

         During oral argument before us, counsel for the plaintiff argued against a finding of an inadequate record by noting that the memorandum of decision concerning the motion to strike the revised complaint was in the record. According to plaintiffs counsel, the court granted the motion to strike the amended complaint for reasons identical to the reasons contained in the memorandum of decision that is in the record. The plaintiffs counsel suggested that the memorandum of decision concerning the revised complaint constituted an adequate record for the judgment rendered on the striking of the amended complaint. Merely to state the argument is to refute it.


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. GEORGE C. TATE
    (AC 20236)
    Lavery, C. J., and Spear and Hennessy, Js.
    Argued May 1
    officially released August 8, 2000

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Jessica C. Torres-Daigle, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Louis Luba, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, George C. Tate, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), sexual assault in the third degree in violation of General Statutes § 53a-72 (a) (1) (A), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and threatening in violation of General Statutes § 53a-62 (a) (l). The defendant claims that the trial court gave an improper instruction to the jury on the thoroughness of the police investigation. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. Several years ago, the victim worked as a confidential informant for the New Britain police department. While in this capacity, the victim purchased drugs from the defendant at 60 Sexton Street in Hartford. The victim’s assistance led to the eventual arrest and conviction of the defendant for drug possession.

On May 1, 1998, at approximately, 9 p.m., a man, identified by the victim to be the defendant, forcibly entered the victim’s apartment and stated to the victim, “Do you remember me from Sexton Street?” The defendant choked the victim, threatened to kill her if she screamed, forcibly fondled her breasts and vaginal area, and attempted to sodomize her. The victim escaped and fled to the apartment of a neighbor. A police investigation ensued, which led to the arrest of the defendant on June 3, 1998.

The trial began on May 11, 1999, and lasted three days. Before the jury began its deliberation, the court gave various instructions, one of which was the following: “You’ve heard questioning regarding the thoroughness of the police investigation in this case. This question might be a matter of opinion, but the state has put its evidence before you, and the defense is entitled to make an investigation and put its evidence before you also. And, of course, not only the state but also the defense has put on evidence in behalf of the defendant. I tell you that the issue before you is not the thoroughness of the investigation of the responding police officer; the issue you have to determine is whether the state, in light of all the evidence before you, has proved the defendant’s guilt beyond a reasonable doubt as I have recited that to you. That is the sole issue.”

After the jury left the courtroom, the defendant objected to the jury instructions on the ground that the “charge on thoroughness in the investigation” was the “last thing that the jury hear[d] before they [went] into deliberation [and] might effect them in terms of objectively looking—I mean, I think that they can surmise that.” In response to the defendant’s objection, the court offered to reinstruct the jury that “the general instructions given are given in no certain order, and there should be no more weight given to any one because of the order that they are presented.” The defendant replied, “That would be great.” The court then asked the defendant whether the additional instruction would satisfy his objection, to which the defendant answered, “Yes, Your Honor, certainly.”

The court reconvened the jury and gave the curative instruction that “the order in which the general instructions are given and the order in which I went through the crime, the specific crimes and the elements, have no bearing on the importance of those instructions or of the crimes or the elements thereof. Just because I did something first or second or eighth or tenth or last does not mean that it has any more, and should have no more, influence upon you.” The defendant did not voice any further objections. The defendant was convicted on May 13, 1999. This appeal followed.

I

The defendant contends that the jury instruction regarding the police investigation deprived him of a fair trial by undermining the presumption of innocence and diluting the state’s burden of proof in violation of the state and federal constitutions. We disagree.

The defendant first claims that his objection to the jury instruction was preserved at trial and also claims that to the extent that it was not so preserved, review is appropriate under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). An objection or claim of error must be distinctly and properly raised at trial or it will be precluded from appellate review unless it meets the requirements of Golding. Id., 239-40. “In order properly to preserve for appeal a claimed error in the trial court’s charge to the jury, a party must take an exception when the charge is given that distinctly states the objection and the grounds therefor.” State v. Miller, 186 Conn. 654, 657, 443 A.2d 906 (1982). “A defendant must avail himself of the opportunity to make an objection and if he ‘does not avail himself of the opportunity, he must be holden to a waiver of the objection.’ ” State v. Evans, 165 Conn. 61, 66, 327 A.2d 576 (1973), quoting State v. Tuller, 34 Conn. 280, 295 (1867).

Here, the defendant failed to make at trial the objections that are presently pending before this court. At trial, the defendant objected solely to the jury instructions on the ground that a prejudicial effect may result from the court’s delivery of the instruction about the thoroughness of the police investigation toward the end of the charge. After the court gave a curative jury instruction, stating that the order in which the instructions were given were irrelevant to their weight, the defendant did not further object. As the defendant failed to raise his current objections before the trial court and stated that his one objection had been satisfied, the defendant failed to preserve any objection for appeal. See Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 525-26, 656 A.2d 1009 (1995).

As a general rule, this court refuses to hear unpre-served claims. Under Golding, however, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. The defendant cannot meet prong three of the Golding test and, thus, his claim must fail.

Under prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that clearly deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction. State v. Schiappa, 248 Conn. 132, 171, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). To determine whether it is reasonably possible that the jury was misled by the court’s instruction, “[t]he test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995). The challenged instruction must be analyzed for its probable effect on the jury “in the context of the entire charge and the entire trial, rather than as individual sentences or phrases viewed in isolation.” State v. Walton, supra, 66. In evaluating a jury instruction under prong three of Golding, “[w]e will not sever one part of the instruction and analyze it separately from the whole.” State v. Milardo, 224 Conn. 397, 409, 618 A.2d 1347 (1993).

The defendant contends that the jury instruction concerning the police investigation diluted the state’s burden of proof and thereby misled the jury into believing that the state’s burden of proof was less than beyond a reasonable doubt. A thorough review of the transcripts and the juiy instruction in its entirety, however, reveals that there is no reasonable possibility that the jury was misled by the challenged jury instruction.

Repeatedly, throughout the lengthy and detailed jury instructions, the court, in clear and legally correct terms, definitively instructed the jury that the burden rests solely on the state to prove the accused guilty of the charges, and that the defendant is presumed innocent unless and until the state proves the defendant’s guilt beyond a reasonable doubt. Directly after the challenged instruction, the court stated, “If I had made reference to the position of the state or the accused more of one than the other, it’s not my intention to convey to you directly or indirectly how the court feels or what should be the outcome of this case. You may be assured that I have no preference or inclination one way or the other.” In fact, almost immediately following the challenged statement, the court again reminded the jury that “it’s the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence, which the law imputes to every person so charged, and by making the state meet its burden of proving the guilt beyond a reasonable doubt.” Furthermore, with regard to deference to the police, prior to the challenged instruction, the court declared to the jury that “the testimony of a police officer is entitled to no special or exclusive sanctity merely because it comes from a police officer. . . . In the case of police officers, you should not believe them merely because they are police officers.”

After considering the challenged instruction in the context of the jury charge as a whole, we hold that there is no reasonable possibility that the jury was misled into believing that the state’s burden of proof was anything less than beyond a reasonable doubt. See State v. Walton, supra, 227 Conn. 66. When reading the challenged instruction in light of the court’s repeated and accurate explanations of the state’s burden of proof and the defendant’s presumption of innocence, it is clear that the court adequately apprised the jury of the state’s burden of proof and the defendant’s presumption of innocence. See State v. Milardo, supra, 224 Conn. 409 (holding in part that jury not misled by challenged portion of instructions when other sections accurately explained state’s burden of proof). The court’s numerous and accurate instructions about the state’s burden of proof certainly “eliminated any reasonable likelihood of juror misunderstanding as to the state’s burden and the proof necessary for a conviction.” State v. Schiappa, supra, 248 Conn. 173.

Because a reading of the jury instructions in their entirety reveals that there is no reasonable possibility that the jury was misled, the defendant has failed to establish that a constitutional violation clearly exists and clearly deprived him of a fair trial pursuant to prong three of Golding. Therefore, the defendant cannot meet all four conditions set forth in Golding and cannot prevail on this claim.

II

The defendant also asks that this court exercise its supervisory authority to discontinue the use of the challenged jury instruction. “Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Emphasis in original; internal quotation marks omitted.) State v. Robinson, 56 Conn. App. 794, 804 n.7, 746 A.2d 210, cert. denied, 253 Conn. 904, 753 A.2d 938 (2000), quoting State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998). As the situation here fails to rise to the extraordinary status previously described, we do not consider this to be an appropriate case in which to exercise our supervisory powers.

Furthermore, not only do the circumstances in the present situation fall short of warranting such an extraordinary remedy, but our Supreme Court in Slate v. Williams, 169 Conn. 322, 335-36, 363 A.2d 72 (1975), upheld similar language in a challenged jury instruction. Although Williams was decided before Golding, in evaluating the challenged jury instruction, the court in Williams utilized a line of inquiry that substantially parallels an analysis under prong three of Golding. In Williams, the court evaluated the challenged jury instruction by reading the charge as a whole to determine whether the instruction in its entirety gave the jury a “clear understanding of the issues involved and a proper guidance in determining those issues.” The Supreme Court found that such language is not of the kind that would render a jury unable to decide questions of fact and that the jury instruction was not “improper under the circumstances.” State v. Williams, supra, 336.

In the alternative, the defendant requests that a new trial be ordered under the plain error doctrine should this court decline to find that a clear constitutional violation exists. Where a claim is asserted but “thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” State v. Sewell, 38 Conn. App. 20, 29, 658 A.2d 598, cert. denied, 234 Conn. 918, 661 A.2d 98 (1995). Beyond requesting that a new trial be ordered, the defendant neglects to discuss his claim under the plain error doctrine. Accordingly, we deny the defendant’s request for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 53a-40 (b) and (g), the defendant also was convicted of being a persistent serious felony offender.

       The defendant in his brief focuses primarily on prong three of Golding-, thus, we, too, will analyze the defendant’s claim under prong three.

       To support Ms proposition that the state’s burden of proof was diluted, the defendant cites State v. Pharr, 44 Conn. App. 561, 691 A.2d 1081 (1997). Pharr does not pertain to the present situation. In Pharr, the trial court unambiguously endorsed the police testimony by stating, “ ‘Now tMs officer comes here and testifies in good faith what happened, I’ll take it anytime over what a report says. I don’t even know what report you have or who the author is.’ ” Id., 566. Here, we have no inflammatory statement of any kind. Therefore, Pharr is distingmshable from the present situation. Additionally, unlike the situation in Pharr, the court here, on the defendant’s objection, offered to give a curative jury instruction that addressed the objection and satisfied the defendant.

       The defendant in Williams objected to the following jury instruction:
      “ ‘Now, you have heard in the course of arguments discussion as to whether the police conducted a thorough search. You have also heard some discussion about the competency of the police in this arrest. Now, ladies and gentlemen, this question might be a matter of opinion, but the State has put its evidence before you, and the defense was entitled to make an investigation and put its evidence before you also, and, of course, not only the State but also the defense has put on evidence on behalf of the defendant. I say to you, ladies and gentlemen, that the issue before you is not the thoroughness of the investigation or the competence of the police. The issue you have to determine is whether the State in the light of all of the evidence before you has proved beyond a reasonable doubt that the defendant is guilty on one or both counts with which he is charged.’ ” State v. Williams, supra, 169 Conn. 335-36 n.3.

       The court in Williams was confronted with the similar issue of whether the challenged jury instruction endorsed the police investigation and weighed in favor of the state.


author: PELLEGRINO, J.

text:
    CATHERINE DAVIS v. PHILIP F. FRACASSO
    (AC 19008)
    Foü, Pellegrino and Peters, Js.
    Argued April 25
    officially released August 8, 2000

      Michael P. Shea, with whom were David J. Elliott and Melissa J. Papantones, and, on the brief, Stephen B. Reynolds and Valida Harmon, for the appellant (substitute defendant).

      William F. Gallagher, with whom was John F. Riley, Jr., for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

Francis Lamboley, executor of the estate of the named defendant, Philip F. Fracasso, and the substitute defendant in this personal injury action, appeals from the judgment of the trial court rendered after a jury verdict in favor of the plaintiff, Catherine Davis. On appeal, the defendant claims that the court improperly (1) denied his posttrial motions to set aside the verdict, for a new trial and for permission to file a motion for a new trial and (2) denied his posttrial motions without granting him a full evidentiary hearing. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On February 15, 1994, the plaintiff commenced an action to recover damages for injuries she sustained in a two car accident in 1992 with the defendant’s decedent. On March 31, 1998, the jury returned a verdict in favor of the plaintiff for $540,000, of which $377,400 was for economic damages and $163,000 for noneconomic damages. In calculating the economic damages, the jury appears to have relied on the plaintiffs sworn interrogatory responses, deposition and trial testimony that she was earning approximately $600 per week as a private duty nurse for the Solomon and Gagge families prior to the accident, and that after the accident, she was unable to return to work except for a brief period in 1993.

On April 9, 1998, the defendant timely filed a motion to set aside the verdict, for a new trial and for a remitti-tur pursuant to Practice Book § 16-35 on the grounds that the verdict awarding economic and noneconomic damages was contrary to the law, against the weight of the evidence, and so excessive as to shock the conscience and compel the conclusion that the jurors were influenced by partiality, prejudice, mistake or corruption. In his motion, the defendant also requested permission to file a supplemental motion and memorandum following receipt of the trial transcript.

On October 9 and October 16, 1998, the defendant allegedly discovered evidence that the plaintiff had not testified truthfully at trial as to her earnings after the accident and her future earning capacity. The evidence consisted of more than sixty-four checks drawn on the bank accounts of Anna E. Solomon and A. Pharo Gagge and Edwina M. Gagge, and made payable to the plaintiff for services rendered as a private duty nurse after the accident.

The defendant’s April 9,1998 motion was heard by the court on October 9, 1998, at which time the defendant claimed that the verdict should be set aside and a new trial granted on the ground of newly discovered evidence of the plaintiffs fraud. In support of his claim, the defendant described financial affidavits from the plaintiffs 1992 divorce proceedings, indicating that she had earned far less than $600 a month prior to the accident. The defendant also made an offer of proof on the basis of twenty-two checks made payable to the plaintiff from Solomon. The defendant advised the court that Solomon’s son, Paul Solomon, had signed the checks and would testify that the checks were paid to the plaintiff for her nursing services after the accident. The defendant requested a one week continuance while he waited to receive an undetermined number of similar checks issued to the plaintiff for postaccident services rendered to the Gagges, which checks he intended to offer into evidence at a future date. The court deferred its ruling.

A second hearing was held on October 20, 1998. The defendant stated that on October 16, 1998, he had received more than forty of the anticipated checks for services rendered by the plaintiff to the Gagges after the accident. The court, however, denied the defendant’s motion for a new trial. The court also denied the defendant’s motion to set aside the verdict and for a remitti-tur, stating that it was not persuaded that the verdict was excessive, was contrary to law or that the jury had been influenced by partiality, prejudice, mistake or corruption.

Following these rulings, the court allowed the defendant to move for permission to file a motion for a new trial on the ground that the plaintiff knowingly testified falsely at trial and that the jury relied on her false testimony in rendering its verdict. The defendant filed the motion pursuant to Practice Book § 16-35 and General Statut.es § 52-270, which permit an extension of time to file a motion for a new trial beyond the ten day limit provided in Practice Book § 16-35 for good cause shown, and pursuant to his timely April, 1998 motion for permission to file a supplemental motion and memorandum. Thereafter, the court denied the defendant’s motion for permission and rendered judgment for the plaintiff in accordance with the jury verdict. This appeal followed.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the ‘abuse of discretion’ standard.” (Citation omitted.) Jeffries v. Johnson, 27 Conn. App. 471, 475, 607 A.2d 443 (1992). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Rivera v. Saint Francis Hospital & Medical Center, 55 Conn. App. 460, 463-64, 738 A.2d 1151 (1999). “[W]e do not . . . determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Ignacio v. Montana-Ignacio, 57 Conn. App. 647, 648, 750 A.2d 491 (2000).

I

The defendant first claims that the court improperly denied his posttrial motions to set aside the verdict, for a new trial and for permission to file a motion for a new trial on the ground of newly discovered evidence. We disagree.

“[A] party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result. . . . Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959).” (Internal quotation marks omitted.) In re James L., 55 Conn. App. 336, 345, 738 A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999).

In the present case, we conclude that the court did not abuse its discretion when it denied the defendant’s posttrial motions on the ground of newly discovered evidence. At the October 9, 1998 hearing, the court observed that neither the checks nor the witness whose testimony was proffered by the defendant were present in the courtroom, and that the defendant’s offer of proof, unaccompanied by sworn testimony, did not carry the weight of evidence. At the October 20, 1998 hearing, the court further observed that the defendant had been given an opportunity to present “any and all evidence and arguments to buttress [his] position” at the earlier hearing and that in the absence of such evidence, the court would make its determination on “that which transpired up to the time of trial.” Thereafter, in explaining its reasons for denying the defendant’s motion, the court stated that “the attorney for the defendant . . . has produced offers of proof, offered theories, offered beliefs, and a great deal of these theories and offers of proof and beliefs amount to really speculation because the court has received no evidence on all that is claimed . . . .”

The court also reasoned that the checks and the testimony proffered by the defendant could have been discovered much earlier and produced at trial had he exercised due diligence. The court thus concluded that “with regard to the presentation of such evidence . . . which was . . . presented . . . only by way of argument, the court will find that it is tardy and doesn’t fit the parameters of after-discovered evidence because all this ought to have been discovered months, if not years ago . . . ,” The court then denied the October 20, 1998 motion for permission with no farther explanation.

Making every reasonable presumption in favor of the trial court’s ruling, we are persuaded by the record that the court properly determined that the defendant did not present the court with any newly discovered evidence, and did not exercise due diligence in discovering and producing the alleged evidence at trial. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s posttrial motions on the ground of newly discovered evidence.

II

The defendant next claims that the court improperly denied his posttrial motions to set aside the verdict, for a new trial and for permission to file a motion for a new trial for “reasonable cause,” namely, that the plaintiff had perpetrated fraud on the court and on the defendant in connection with her damages claim. The defendant argues that during the trial, the plaintiff provided a poorly substantiated and highly inflated estimate of her income prior to the accident and that contrary to her claim, the posttrial proceedings are replete with evidence that she was able to continue working after the accident and achieve significant earnings. We disagree.

General Statutes § 52-270 (a) provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence ... or for other reasonable cause . . . .” “Other reasonable cause” includes “every cause for which a court of equity could grant a new trial, such as, for example, fraud, accident and mistake.” (Internal quotation marks omitted.) Jenkins v. Bishop Apart- merits, Inc., 144 Conn. 389, 391, 132 A.2d 573 (1957). “Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed.” (Internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991).

The defendant’s claim that the current record establishes that the plaintiff peipetrated a fraud on the court, the jury and the defendant in connection with her damages claim is misguided. Although the defendant asserts that the posttrial motions and proceedings contain “evidence” indicating that the plaintiffs earnings and earning capacity following the accident were not severely diminished, the court denied the defendant’s motion for a new trial on the ground of fraud precisely because he did not offer into evidence the checks and the testimony that would have supported his claim, a point conceded by the defendant himself at the October 9, 1998 hearing. The court thus based its denial of the defendant’s motions only on “that which transpired up to the time of trial.”

Making every reasonable presumption in favor of the trial court’s ruling, we conclude that the court properly found that the defendant failed to provide evidence during the posttrial proceedings that might have supported his claim of fraud. Accordingly, we hold that the court did not abuse its discretion in denying the defendant’s posttrial motions insofar as they were based on allegations of fraud.

Ill

The defendant finally claims that the court improperly denied his posttrial motions without granting him a full evidentiary hearing on the issue of fraud. We do not agree.

When a court’s exercise of discretion depends on disputed factual issues, such as the existence of fraud, due process requires an evidentiary hearing. Cromwell Commons Associates v. Koziura, 17 Conn. App. 13, 17, 549 A.2d 677 (1988).

Our review of the record discloses that the court held a hearing on October 9, 1998, six months after the jury rendered its verdict, but that the defendant, by failing to exercise due diligence, was not prepared on that date to introduce the evidence and testimony required to substantiate his claims. Expressing its frustration, the court noted not only that the defendant had failed to produce either the checks or the witness on the date of the hearing, but that such evidence and testimony could have been produced many years earlier, between the return date in February, 1994, and the trial in March, 1998. Responding to the defendant’s request for a continuance while he waited to acquire additional evidence, the court also noted in apparent exasperation that “you are telling me now, almost six months after the verdict, that you are looking for something and they’re going to send you something, but you don’t know what they are sending,” and later commented that “we have to have an end to this situation.”

We conclude that the court conducted a hearing on October 9, 1998, that the defendant had an opportunity to present the checks and the testimony in support of his claim during the hearing, and that the defendant was precluded from offering the checks and the testimony into evidence at that time only because of his own lack of due diligence. Accordingly, we conclude that the defendant’s due process right to an evidentiary hearing was not abridged.

The judgment is affirmed.

In this opinion the other judges concurred.

       Fracasso died in October, 1997. Therafter, Lamboley, the executor of his estate, was substituted as the defendant in this action. We refer in this opinion to Lamboley as the defendant.

       The plaintiff claimed that the accident caused her to suffer a 5 percent permanent partial impairment of her left shoulder and lower back, which prevented her from performing the bending and lifting required in her activities as a private duty nurse.

       The plaintiff was fifty-three years old when the accident occurred. Her loss of earnings, calculated on the basis of $600 per week from the date of the accident to the date of her intended retirement at age sixty-five, plus medical expenses of $2868.36, amounted to approximately $377,268.36.

       Practice Book § 16-35 provides in relevant part: “Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict, motions for remittitur [and] motions for new trials . . . must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time. . . .”

       The total amount of the checks was $35,660.

       The defendant stated that Paul Solomon, an attorney, had been present in the courtroom earlier that day, but was not available to testify at the time the defendant made his offer of proof.

       In his brief, the defendant claims that the court improperly denied his posttrial motions (1) on the ground of newly discovered evidence and (2) on the ground of fraud. We address the two claims separately, as presented by the defendant, rather than as a single claim that the court improperly denied his posttrial motions on the ground of newly discovered evidence of the plaintiffs fraud.

       The defendant also concedes in his brief that the checks, as well as various records relating to the plaintiffs divorce proceedings, were marked for identification only at the October hearings. The lack of evidence to support the defendant’s claim was even more emphatically established when the defendant requested a one week continuance while he waited to receive additional checks allegedly drawn on the Gagges’ bank account.

       During an exchange between the court and the defendant’s attorney at the October 9,1998 hearing, the court indicated that discovery of the checks “ought to have been done somewhere between the bringing of this action, which has a return date of February 15, 1994, and the trial of the case, which took place in [March] of 1998.”

       We note that the court rendered its decision orally yet failed to sign the transcript of the decision in contravention of Practice Book (1998 Rev.) § 64-1 (a), which provides that if the decision of the court is presented orally, “the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office.” The parties agreed, however, to request that the judge sign the transcript and permit its filing with this court. The court, Cel,otto, J., subsequently rendered judgment on June 18, 1999.

       The denial followed a discussion wherein the court stated that it wanted to give everyone an opportunity to make a record and do “whatever is necessary” to preserve the interests of their respective clients.


text:
    STATE OF CONNECTICUT v. FRED MYER
    (AC 19069)
    Lavery, C. J., and Sehaller and Daly, Js.
    Argued April 27
    officially released August 8, 2000

      Fred Myer, pro se, the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, sad Judith Rothschild-Rippe, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Fred Myer, appeals from the judgment of conviction, rendered after a jury trial, of failing to abate a septic system overflow in violation of General Statutes § 19a-36 and the Public Health Code, Regs., Conn. State Agencies, § 19-13-B103c (f). The defendant claims, inter alia, that the trial court failed to conduct a proper waiver canvass as required by Practice Book § 44-3 prior to allowing him to proceed pro se. The state concedes that the court did not conduct a waiver canvass at any time during the pendency of the proceedings, and that the defendant is therefore entitled to a new trial. See State v. Miller, 55 Conn. App. 185, 189, 738 A.2d 1142 (1999) (“trial court’s failure to conduct an adequate canvass to ensure that the defendant’s waiver of the right to counsel was made knowingly and intelligently requires that the defendant be granted a new trial”).

The judgment is reversed and the case is remanded for a new trial.

       Practice Book § 44-3 provides: “A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;

        “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       The defendant also claims that (1) he was not afforded reasonable accommodations for his hearing impairment, (2) the court improperly ordered him to pay the town of Woodbury $3616.35 as reimbursement for legal fees and (3) the court improperly instructed the jury. In light of our conclusion regarding the court’s failure to canvass the defendant, we need not address these issues.


text:
    WILLIE J. FULLER, JR. v. COMMISSIONER OF CORRECTION
    (AC 19249)
    Landau, Mihalakos and Pellegrino, Js.
    Argued May 1
    officially released August 8, 2000

      Robert E. Byron, for the appellant (petitioner).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Willie J. Fuller, Jr., appeals from the judgment of the habeas court denying his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. He claims that the habeas court improperly determined that his trial counsel provided effective assistance. Our examination of the record and briefs and consideration of the oral arguments of the parties persuades us that the habeas court acted properly and that the appeal should be dismissed.

“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. . . . For [a] petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s mistakes, the result of the proceeding would have been different.” (Citation omitted.) Birch v. Commissioner of Correction, 57 Conn. App. 383, 384, 749 A.2d 648, cert. denied, 253 Conn. 920, 755 A.2d 213 (2000).

The petitioner has not satisfied this burden. He has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Kennett v. Commissioner of Correction, 57 Conn. App. 333, 334-35, 749 A.2d 45 (2000).

The habeas court’s dismissal of the petition for a writ of habeas corpus was based on a review of the petitioner’s claims and its determination that he had failed to rebut the “strong presumption that counsel's conduct f[ell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The habeas court also found that the outcome of the trial would not have been any different even if the claim of counsel’s unprofessional conduct were proven, given the evidence offered against the petitioner that he was in possession of personal items belonging to the victim three days after the crime. Accordingly, we conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       Following a jmy trial in February, 1996, the petitioner was convicted of robbery in the third degree in violation of General Statutes § 53a-136, larceny in the second degree in violal ion of General Statutes § 53a-123 and tampering with physical evidence in violation of General Statutes § 53a-155. See State v. Fuller, 47 Conn. App. 917, 703 A.2d 1193 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1270 (1998).

       The petitioner claims that his trial counsel failed to (1) prepare defense witnesses, (2) conduct athorough cross-examination ofthe state’s witnesses, (3) call as witnesses those helpful to the petitioner’s defense and (4) maintain adequate communication with the petitioner.