text:
    STATE OF CONNECTICUT v. ALBERTO AMPERO
    (AC 33545)
    Bear, Sheldon and Pellegrino, Js.

      Argued April 17
    —officially released August 6, 2013

      Naomi T. Fetterman, with whom, on the brief, was Aaron J. Romano, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Alberto Ampero, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the second degree in violation of General Statutes § 53a-94 (a) and interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant makes three claims: (1) that the admission of testimony regarding his prior bad acts constituted reversible error; (2) that the admission of testimony regarding his prior incarceration constituted reversible error; and (3) that prosecutorial impropriety in offering the foregoing evidence and arguing its significance to the jury deprived him of a fair trial. We disagree, and thus affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 27, 2009, around 7 p.m., the victim, Jasmin Vazquez, was driving her three children, a six year old, a four year old, and a six month old, to her mother’s house on Natick Street in Hartford, when she stopped at the store on the comer of Broad and Ward Streets in Hartford to buy them chips and juice. She had parked her car on Broad Street and was walking around the car to remove her children from it when she saw the defendant. The victim and the defendant previously had been in a relationship together that ended in April, 2009, following an incident in which the defendant slapped the victim in the face and broke both of her cell phones in half.

The defendant initiated a conversation with the victim by saying that they needed to talk, to which the victim replied that they did not have to talk about anything. After the defendant repeated that they needed to talk, he showed the victim a kitchen knife in his back pocket and told her to get into her car. After the victim complied, the defendant also got into the car and told the victim to drive around the comer and park in front of an apartment building on Ward Street. Once she had parked her car around the comer, the defendant turned off the car’s motor and told the victim and the two older children to get out of the car. The defendant also got out of the car and carried with him the victim’s six month old son in his car seat. The defendant then directed the victim and the children into his apartment. The defendant led the victim and her children upstairs to a room inside of the apartment that contained only a bed, told the two older children to go to sleep, and put the baby, who was still in his car seat, on the floor.

The defendant, who was then “real mad,” again told the victim that they had to talk. The victim repeatedly told the defendant that she wanted to go home, but the defendant told her she was not going anywhere. The defendant argued with the victim and would not let her leave the apartment or make any phone calls. At some point during the argument, the defendant pressed the same knife that he previously had displayed to the victim against her stomach and told her that he loved her and that if she was not going to be with him, she would not be with any man. The defendant also threatened that if the victim was not going to be with him, he would either kill her or kill himself and that she would have to Uve with the fact that he had killed himself for her love.

The defendant argued with the victim for the next several hours and at one point bit her neck, leaving hickeys to show that she belonged to him. The defendant held the victim overnight. The next day, the victim tried to escape by bringing her children downstairs, but the defendant would not let her leave. The defendant grabbed the victim by her right wrist, told her she was not going anywhere, took her phone, and ordered her to call her mother. The defendant instructed the victim to teU her mother that she was happy with the defendant, that she loved him and that they were going to be together. The victim complied, but the victim’s mother did not beheve her daughter because she was crying and she knew her daughter was afraid of the defendant. The victim’s mother repeatedly asked her about her location, what the defendant was doing to her, and if the children were okay. The victim was able to respond only that the children were okay. The defendant then took the phone and spoke with the victim’s mother directly, telling her that he knew she had called the police in April when he was arrested and that she had better not call the police this time. The victim’s mother then handed the phone to her husband so that she could call the police. Fearing that the defendant would hear her calling the police, the victim’s mother told the 911 operator that she had had a fight with her daughter that had caused her daughter to leave the house and that she was requesting a well-being check. The defendant then hung up the phone.

After the phone conversation with her mother, the victim repeatedly told the defendant that she wanted to go home, to which he replied that she was not going anywhere. The defendant then grabbed the victim by her neck, choking her and leaving scratch marks on her neck. The victim attempted to go downstairs with her children, but the defendant grabbed her by the neck again. The defendant then let the victim go downstairs with her two older children, but he brought the baby back upstairs, and the victim yelled at the defendant to give her back her baby. At this point, an unidentified older man who lived downstairs told the defendant to give the victim back her baby and to let her go because he did not want any trouble with the police. The defendant obliged and let the victim and her children leave the apartment. He made the victim promise to come back, however, and threatened that if she did not return, he would look for her and kill her. The victim then drove to her mother’s house, where she was met by Officers Robert Quaglini and Robert Iovanna of the Hartford Police Department, who had responded to her mother’s 911 call. The victim informed the officers of what had happened and provided a description of the defendant and the location where the incident had occurred.

Quaglini and Iovanna then left the mother’s home in pursuit of the defendant. After obtaining the defendant’s name, date of birth, and “DOC picture” from their cruiser computer, they began walking on Ward Street and saw the defendant standing on the front steps of an apartment building. When Quaglini made eye contact with him, the defendant immediately turned around and ran inside the apartment. Quaglini ordered the defendant to stop, but he did not comply. Quaglini then chased him into the apartment, where he ran down the back stairs and out the back door of the apartment. The defendant ran west on Ward Street, turned north on Lawrence Street, passed a couple of houses, ran east, and started hopping fences in the backyards while running northbound on Lawrence Street.

Quaglini saw the defendant hop a fence at 913 Broad Street and later located him hiding under a minivan parked near that address. Quaglini first ordered the defendant to come out from under the minivan, but he refused. When Quaglini attempted to grab the defendant’s feet to pull him out, the defendant began kicking at Quaglini’s hands. Quaglini then struck the defendant’s ankle with his baton, but the defendant still would not come out. Quaglini struck the defendant’s ankle three more times before he was able to grab the defendant’s feet, pull him out, and place him in handcuffs. The defendant was given medical treatment at the scene for swelling to his ankle, and later was treated at Hartford Hospital for a broken ankle. After the defendant was placed under arrest, he stated that he “didn’t do it,” that he just wanted to be with the victim, and that they had had an argument about their relationship. The police then transported the victim to the scene for a showup identification of the defendant and to the Hartford Police Department to have her statement taken by the major crimes detectives.

Following a jury trial, the defendant was found guilty of kidnapping in the second degree and interfering with an officer. On the charge of kidnapping in the second degree, the court sentenced the defendant to twenty years of incarceration, suspended after ten years, followed by five years of probation. On the charge of interfering with an officer, the court sentenced the defendant to one year of incarceration, to be served concurrently with his sentence for kidnapping in the second degree. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim on appeal is that the admission of evidence of his prior bad acts constituted reversible error. We disagree.

The following additional facts are relevant to our resolution of this claim. The defendant references five instances in which three of the state’s witnesses testified about his prior bad acts. First, the victim testified that when she and the defendant broke up in April, 2009, the defendant broke both of her cell phones in half and slapped her in the face. The victim also testified about another incident involving the defendant where he threatened her over the phone with a gun and then followed her in his car, which resulted in his arrest. The victim further testified that a condition of the defendant’s probation was a court order that he have no contact with her. The victim’s mother testified that she previously had called the police on the defendant, that he had been arrested as a result of that call, and that he had been incarcerated in the past. Finally, Officer John Zweibelson testified that he previously had arrested the defendant for the incident involving the alleged gun, which later turned out to be a facsimile.

The record reflects that at no time did defense counsel object to or seek to strike any of the prior bad acts testimony, nor did he request a limiting instruction as to the jury’s permissible use of such testimony. Because the defendant did not raise this issue at trial, he now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or alternatively, under the plain error doctrine. Practice Book § 60-5. In Golding, our Supreme Court held that “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.” (Emphasis in original; footnote omitted.) State v. Golding, supra, 239-40. We conclude that the record is adequate for review and turn our attention to the second prong of Golding, namely, whether the defendant’s claim is of constitutional magnitude alleging a violation of a fundamental right.

We have consistently held that purely evidentiary claims fail to satisfy the second prong of Golding, as they are not of constitutional magnitude. See, e.g., State v. Stepney, 94 Conn. App. 72, 79, 891 A.2d 67 (“[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right”), cert. denied, 278 Conn. 911, 899 A.2d 40 (2006). Here, the defendant’s claim is a classic evidentiary claim, in that it challenges the admission of evidence, namely, evidence of the defendant’s prior misconduct. It is well settled that issues concerning the admission of, and judicial instructions on, prior misconduct evidence are solely evidentiary in nature and that the court’s failure to give a limiting instruction is not a matter of constitutional magnitude. See, e.g., State v. Dews, 87 Conn. App. 63, 75, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005). Because the admission of evidence of the defendant’s prior bad acts is not of constitutional magnitude, his claim fails to satisfy the second prong of Golding.

The defendant alternatively seeks review of this claim under the plain error doctrine. Practice Book § 60-5. “[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . [It] is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009). The defendant’s claim is not such a “truly extraordinary [situation].” Id.

Here, it clearly appears that defense counsel strategically chose not to object to the admission of the prior bad acts testimony, as he questioned the state’s witnesses about such evidence and incorporated their testimony into his closing argument. He thus treated the evidence as helpful to the defendant’s defense rather than erroneous and prejudicial, much less violative of the defendant’s fundamental right to a fair trial. “[A] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . .” (Internal quotation marks omitted.) Id., 205. The defendant cannot show manifest injustice because his defense counsel waived this claim by failing to take action against the admission of such evidence and then strategically used the evidence to his advantage. See Mozell v. Commissioner of Correction, 291 Conn. 62, 70-71, 967 A.2d 41 (2009).

Specifically, defense counsel cross-examined three of the state’s witnesses about their testimony regarding the defendant’s prior bad acts and incarceration. In fact, when cross-examining the victim, who was the state’s first witness, defense counsel began his examination with those very subjects, as follows:

“Q. Hi, Ms. Vazquez.
“A. Hi.
“Q. You told the jury about two incidents in April of 2009, and I’d like to go over those first with you. Okay?
“A. Yes.
“Q. The first incident involved you picking up [the defendant] someplace on Ward Street. Is that correct?
“A. Yes.
“Q. And he was mad at you because you weren’t there on time? Is that what you told the police?
“A. Because I didn’t answer the phones on time.
“Q. Okay. And—so what you told the police is because of that, he broke your cell phones. You have two cell phones?
“A. Yes.
“Q. He broke both of your cell phones, and he slapped you.
“A. Yes. . . .
“Q. Now, the next incident was, what, about a week later?
“A. Yes.
“Q. And you told the police [that the defendant] was following you around in a car?
“A. Yes.
“Q. And threatening you with a handgun?
“A. Yes.
“Q. And you told the police he’d done that a number of times in the past, didn’t you?
“A. Yes.
“Q. And you actually told the police about the week before, and did you tell them that involved a handgun, too?
“A. No.
“Q. Are you sure?
“A. Yes.
“Q. Now, the police did stop [the defendant] outside your mom’s house. Right?
“A. Of the block, not in front of my mom’s house, like a block away.
“Q. Pretty close to your house, though. Right?
“A. Yes. . . .
“Q. Now, I—you had said at some point that in describing the way [the defendant] was acting that he was really mad or at—at points he was really mad?
“A. Yes.
“Q. And you’d never seen him that way before?
“A. No.
“Q. Not even when he broke your cell phone?
“A. No. It was—it was different. I—I can’t explain it. It was just different. . . .
“Q. Did you have an order of protection from the first set of instance? Was—was there some piece of paper that you had said that [the defendant] wasn’t supposed to have contact with you?
“A. The paper that they had sent from the court.
“Q. Okay. You had something like that?
“A. Yes.
“Q. Okay. Did the police ask you about that in August?
“A. Yes, they did.
“Q. Okay. Did you show them anything or were they able to find anything?
“A. Yes.
“Q. They did?
“A. I showed them the paper.
“Q. Okay. You showed them the paper you had?
“A. Yes.”

In similar fashion, defense counsel began his cross-examination of Zweibelson by drawing his, and the jury’s, attention back to the April, 2009 incident between the victim and the defendant:

“Q. Good afternoon, officer.
“A. Good afternoon, sir.
“Q. So, as we finished up, you’d been to 81 Natick Street before in April of 2009.
“A. Yes.
“Q. And you sort of met all the players back in April. Right?
“A. Um, back in April I only dealt with Ms. Vazquez. I did not deal with the mother on that particular day.
“Q. And you dealt with—with [the defendant] on that date.
“A. Yes.
“Q. Okay. And Ms. Vazquez told you, didn’t she, that she’d been threatened with this gun on a number of different occasions?
“A. She said—she said to me that she was threatened on this particular occasion. . . .
“Q. And she made some reference to an incident that had happened about a week before, and she said that the silver firearm had been involved in that too?
“A. Yes. . . .
“Q. Now, on this—this April 30 incident, you’ve been told that [the defendant] was following Ms. Vazquez around, sort of unwanted attention, and was parked fairly close by this Natick Street address. Correct?
“A. Yes.
“Q. And when you got there, in fact, he was sitting right there. Right?
“A. I believe if—if—I believe a vehicle description was given out, and I—I located the vehicle approximately two blocks from the house parked at a stop sign.
“Q. [The defendant] was apprehended right then and there. Right?
“A. Yes.”

Indeed, later in his cross-examination of Zweibelson, defense counsel returned to the subject of the prior incidents with the victim that had led to the defendant’s arrest by asking specific questions about the case numbers of those incidents, as Zweibelson had referenced them in his police report about the kidnapping at issue here. In eliciting the previously described testimony from multiple witnesses for the state on cross-examination, defense counsel gave the jury several additional opportunities to hear about the defendant’s prior bad acts toward the victim and resulting arrest.

As the trial unfolded, it became apparent that defense counsel’s repeated exploration of the defendant’s prior bad acts and resulting arrest was no mere accident. In fact, such testimony became a centerpiece of counsel’s closing argument. First, defense counsel reminded the jury of the defendant’s stormy relationship with the victim by recounting the prior incidents and their aftermath: “Alberto and Jasmin had been involved in a relationship. It has been problematic. The police have been called on more than one occasion, including officers that are involved in this incident, particularly Officer Zweibelson.” Defense counsel then specifically referenced the prior incident in which the defendant threatened the victim with a gun: “[0]ne of the first officers on the scene when the police do get there is Officer Zweibelson. He knows this situation as well because he was in on this earlier incident with the facsimile firearm that turned out to be a lighter.” When commenting about how the victim’s mother might have reacted to the latter incident had it really been a kidnapping, defense counsel theorized as follows: “Supposedly, from the first moment it is being expressed to the police that this is serious. This is a kidnapping. This is a guy who’s been obsessed with my daughter, who’s been stalking her. There’d been physical altercations.” Contrasting that reaction to what the victim’s mother actually did, defense counsel argued that this case was not a kidnapping, and that she knew it.

Having so used the prior bad acts and prior incarceration testimony of the state’s own witnesses to undermine the state’s case against him at trial, where he was found not guilty on two of the four charges against him, the defendant can hardly argue that the introduction of such evidence warrants reversal of his challenged conviction under the plain error doctrine.

II

The defendant next claims that the admission of testimony regarding his prior incarceration constituted reversible error. The defendant also seeks review of this claim under Golding, or alternatively, under the plain error doctrine. The following additional facts are relevant to our resolution of this claim. The defendant references two instances in which witnesses for the state testified about his prior incarceration: first, when the victim’s mother testified that the defendant had previously been arrested; and second, when Quaglini testified about the defendant’s DOC photograph, from which the defendant argues that a reasonable jury could have inferred that he had been incarcerated. We are not persuaded by the defendant’s argument for the reasons stated in part I of this opinion. The defendant’s unpre-served evidentiary claim fails to satisfy the second prong of Golding for it is purely evidentiary. It also fails to meet the standard for reversal under the plain error doctrine because its admission without objection by defense counsel, who used it creatively and effectively in arguing his client’s case to the jury, did not result in manifest injustice.

Ill

Last, the defendant claims that prosecutorial impropriety deprived him of a fair trial. We disagree.

Before addressing the merits of this claim, we set forth the applicable standard for review. “[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial . . . .” (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 428, 902 A.2d 636 (2006).

“In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . Last, we note that [w]e do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Internal quotation marks omitted.) State v. Quint, 97 Conn. App. 72, 85-86, 904 A.2d 216, cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006). “In evaluating whether the [impropriety was so serious as to amount to a denial of due process], we consider the factors enumerated by [the] court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). . . . These factors include the extent to which the [impropriety] was invited by defense conduct or argument, the severity of the [impropriety], the frequency of the [impropriety], the centrality of the [impropriety] to the critical issues in the case, the strength of the curative measures adopted, and the strength of the state’s case.” (Citation omitted.) State v. Warholic, 278 Conn. 354, 360-61, 897 A.2d 569 (2006).

Although a defendant need not object at trial to the alleged improprieties, nor seek review under Golding, “the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor’s improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial.” (Internal quotation marks omitted.) Id., 361.

The defendant first claims that the prosecutor’s introduction of prior misconduct evidence—despite her filing of a notice of intent to offer such evidence that was never ruled on by the trial court—and her failure to seek a limiting instruction with respect to it, were improper and deprived him of a fair trial. The defendant also claims that the prosecutor’s repeated elicitation of prior misconduct testimony and reliance on such evidence in her closing argument was improper and deprived him of a fair trial. The defendant argues that the failure of defense counsel to object did not waive the defendant’s due process right to a fair trial.

The state counters that the defendant’s unpreserved evidentiary claim is not reviewable as a claim of prose-cutorial impropriety because it is merely a failed attempt to mask an evidentiary claim as a claim of prosecutorial impropriety. The state also argues that if this court were to hold that the defendant’s claim constitutes a claim of prosecutorial impropriety, it still would fail because the state was not obligated to obtain a court ruling before it proffered the unobjected-to misconduct evidence, nor was it required to request a limiting instruction with respect to such evidence. The state concludes that even if there was prosecutorial impropriety, it did not violate the defendant’s due process right to a fair trial.

We agree with the state that its introduction of prior misconduct evidence and failure to request a limiting instruction did not constitute prosecutorial impropriety. At no point did defense counsel object to the admission of such evidence or to the lack of a limiting instruction as to its proper use by the jury. When, to reiterate, “defense counsel does not object, request a curative instruction or move for a mistral, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial.” (Internal quotation marks omitted.) Id. As our Supreme Court has repeatedly held, “jajppellate review of prosecutorial [impropriety] claims is not intended to provide an avenue for the tactical sandbagging of our trial courts, but rather, to address gross prosecutorial improprieties that clearly have deprived a criminal defendant of his right to a fair trial.” (Internal quotation marks omitted.) State v. Luster, supra, 279 Conn. 446. Here, defense counsel strategically chose not to object to the introduction of the prior misconduct evidence or to seek a limiting instruction to ensure the jury’s proper use of this evidence. The defendant cannot now claim prosecutorial impropriety on the basis of his defense counsel’s chosen, albeit unsuccessful, trial tactics.

Moreover, although no prosecutorial impropriety occurred in the present case, the court’s general instructions to the jury properly instructed it that arguments by counsel were not evidence. Such an instruction by the trial court adequately addressed any impropriety that might be found to have occurred, although none was present in this case. See State v. Young, 76 Conn. App. 392, 406, 819 A.2d 884 (impact of prosecutorial impropriety lessened when trial court instructed jury that statements and arguments of counsel were not evidence), cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003).

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of the charges of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and strangulation in the second degree in violation of General Statutes § 53a-64bb.

       Following the April, 2009 incident that ended their relationship, the victim encountered the defendant twice more: the defendant followed the victim from her friend’s house to her mother’s house and also threatened her over the phone with a gun that he claimed to have, which was later discovered to be a facsimile. The victim’s mother called the police when the defendant was following the victim, and he subsequently was arrested.

       Quaglini was not asked either on direct or on cross-examination for an explanation of the acronym DOC. In their briefs in the present appeal, counsel for both parties addressed the issue of whether the jury understood the meaning of the acronym DOC, as well as whether they could infer that such a photograph is taken when an individual has been incarcerated. Prom Quaglini’s testimony, a reasonable jury could have inferred that DOC is an acronym for the Department of Correction, but based on this information alone, it likely could not reasonably have inferred that such a photograph was a result of the defendant’s previous incarceration, without additional testimony of Quaglini.

       The state’s intent to offer prior misconduct stated the following: “The state is seeking to offer evidence of [the defendant’s] prior misconduct in his trial in the above captioned case. The state intends to offer the following: Testimony of [Jasmin Vazquez] that there have been prior instances of domestic violence perpetrated upon her by the defendant. This testimony will include specific acts of violence from April 23, 2009, (H14HCR090631791) and misconduct from April 30, 2009 (H14HCR090631189). The state does not intend to offer any such evidence without a prior ruling from the court outside the presence of the jury.”


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    MARK ST. JOHN v. COMMISSIONER OF CORRECTION
    (AC 34049)
    DiPentima, C. J., and Bear and Sheldon, Js.

      Argued March 7
    —officially released August 6, 2013

      Rosemarie T. Weber, assigned counsel, for the appellant (petitioner).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Erika L. Brookman, assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

The petitioner, Mark St. John, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court erred in denying his claim of ineffective assistance of counsel because it (1) failed to consider all aspects of his claim relating to his criminal trial counsel’s failure to call a dog tracking expert and (2) improperly concluded that his claim of ineffective assistance of counsel failed to satisfy the prejudice prong of the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We disagree, and, accordingly, affirm the judgment of the habeas court.

The following facts and procedural history of the petitioner’s underlying criminal proceeding are distilled from his direct appeal to our Supreme Court. On July 16, 2002, the petitioner entered a convenience store at a gasoline station in Manchester, pointed a gun in the face of the victim and demanded money. State v. St. John, 282 Conn. 260, 262-63, 919 A.2d 452 (2007). After the victim handed the petitioner $300 or $400 from the cash register, the petitioner threatened to shoot the victim and ordered him into a stockroom. Id., 263. The victim remained in the stockroom for about one minute before running outdoors. Id. Outside of the store, the victim noticed the petitioner near some bushes at the edge of the property and saw the side of the petitioner’s face. Id. Karen Nowak, who was outside the convenience store, also saw the side of the petitioner’s face. Id. Nowak observed the petitioner as he neared a stockade fence, and, as she continued to watch, “he appeared to cast something aside before disappearing out of sight.” Id.

Around 9:30 p.m., John Tollis, a trooper from the canine unit of the Connecticut state police, arrived at the scene with a German shepherd tracking dog named Diesel. Id., 264. Alighting from Tollis’ vehicle, Diesel ran directly to the bushes at the edge of the property and pulled out a knit hat. Id. After preparing the dog properly, Tollis allowed Diesel to begin tracking. Id. Approximately forty to forty-five minutes later, Diesel tracked the scent to a location where the petitioner was being detained by Manchester police officers. Id. Diesel made his way through several officers before he jumped up on the petitioner, a signal that he had been trained to give when he discovered the source of the scent. Id. Additionally, both the victim and Nowak made pretrial identifications of the petitioner as the individual they observed leaving the crime scene. Id., 264-65.

The petitioner was taken into custody and charged with robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) and kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a (a). Id., 265. Following a trial, the jury found the petitioner guilty on both charges. Id., 266. The trial court rendered judgment of conviction in accordance with the jury verdict, sentencing the petitioner to twenty-five years incarceration, execution suspended after seventeen years, with five years probation. Id. Our Supreme Court affirmed the judgment of conviction. Id., 262.

In his amended petition for a writ of habeas corpus, the petitioner claimed, inter alia, that he had been denied the effective assistance of trial counsel. Over the course of two days, the court heard testimony from the petitioner, Tollis and several members of the Manchester Police Department. The petitioner also called as witnesses Attorney Robert Meredith, his trial counsel, and Attorney Thomas Farver, an expert in the practice of criminal law. Both the petitioner and the respondent, the commissioner of correction, presented evidence, including transcripts of the underlying criminal proceeding, reports from the Manchester Police Department and a report from the state police regarding the dog track and identification of the petitioner. In its memorandum of decision, the habeas court concluded that in the absence of evidence to show that the testimony from a dog tracking expert would have been helpful in establishing the petitioner’s defense, the petitioner had failed to demonstrate prejudice. Accordingly, the court denied the petitioner’s amended petition for a writ of habeas corpus. The court granted the petition for certification to appeal from its decision.

On appeal, the petitioner claims that the court improperly rejected his claim that Meredith provided ineffective assistance of counsel. The petitioner first argues that the court erred by failing to consider all aspects of the claim presented during the habeas trial relating to his criminal trial counsel’s failure to call a dog tracking expert. The petitioner further claims that the court erred when it concluded that his claim of ineffective assistance of counsel failed to satisfy the two-pronged test enunciated in Strickland. Because the petitioner failed to call an expert on dog tracking at the habeas trial, the habeas court properly concluded that the petitioner had not established prejudice, and, therefore, we do not need to reach his first claim.

We begin by setting forth the standard of review applicable to the petitioner’s appeal. “Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 128 Conn. App. 564, 569, 17 A.3d 539, cert. denied, 301 Conn. 925, 22 A.3d 1278 (2011).

The legal principles relevant to this appeal are well settled. “A criminal [petitioner] is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . Put another way, the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . With respect to the prejudice component, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Citations omitted; internal quotation marks omitted.) Thompson v. Commissioner of Correction, 131 Conn. App. 671, 690-91, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011); see also Strickland v. Washington, supra, 466 U.S. 668.

As to the prejudice prong, the petitioner presents two arguments. First, he argues that the identifications by the victim and Nowak were not reliable. Second, and related to the first point, the petitioner argues that had it not been for Diesel’s identification, a reasonable jury could have concluded that there was reasonable doubt as to the identity of the robber. On the basis of these two points, the petitioner urges us to conclude that Meredith’s failure to call a dog tracking expert was prejudicial.

We agree with the court’s conclusion that the petitioner failed to sustain his burden of showing that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 466 U.S. 694. The petitioner provided no eviden-tiary basis for determining the dispositive issue in this case, namely, whether, with reasonable probability, a dog tracking expert’s testimony would have changed the result of the criminal proceeding. The petitioner presented no expert witness on dog tracking at the habeas trial. In the absence of such evidentiary support, the petitioner could not sustain his burden of establishing prejudice. See Lambert v. Commissioner of Correction, 100 Conn. App. 325, 327-28, 918 A.2d 281 (prejudice not established where petitioner failed to call medical expert and alibi witness at habeas trial or offer evidence as to what they would have testified), cert. denied, 282 Conn. 915, 924 A.2d 138 (2007). Accordingly, the habeas court properly concluded that the petitioner had failed to satisfy the prejudice prong of the Strickland test.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner’s amended petition alleged four separate counts of ineffective assistance of counsel. All four counts were rejected by the habeas court. In this appeal, the petitioner raises only the ineffective assistance of counsel claim that relates to his attorney’s failure to call a dog tracking expert.

       The claim contained the alleged need for testimony concerning (1) the impact of contaminants on the reliability of Diesel’s identification, (2) Diesel’s limited experience and (3) Diesel’s success rate. We note that the petitioner’s habeas counsel, Christopher Neary, elicited testimony regarding all three arguments at trial. In his posttrial brief, however, the petitioner’s habeas counsel raised only the impact of contaminants argument. Referring to this omission, the habeas court, in turn, limited its analysis only to the impact of contaminants argument. Because we agree that the habeas court properly concluded that the petitioner failed to demonstrate prejudice resulting from counsel’s failure to call a dog tracking expert, we decline to address whether it was proper for the habeas court to limit its analysis to posttrial brief arguments.

       We note that the court did not make a specific determination as to whether Meredith’s performance was deficient. The court’s decision simply concluded that the petitioner failed to sustain his burden of showing that he suffered prejudice. Nieves v. Commissioner of Correction, 51 Conn. App. 615, 620, 724 A.2d 508 (“court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim”), cert. denied, 248 Conn. 905, 731 A.2d 309 (1999).

       We note that the petitioner had disclosed a dog training expert, but did not call that expert as a witness during the habeas proceeding.


author: BEAK, J.

text:
    STATE OF CONNECTICUT v. CHYWON WRIGHT
    (AC 33480)
    Beach, Bear and Sheldon, Js.

      Argued April 18
    —officially released August 6, 2013

      Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt,
      state’s attorney, and David A. Gulick, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAK, J.

The defendant, Chywon Wright, appeals from judgment of conviction, rendered after a jury trial, of two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (4), and one count of conspiracy to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-70a (a) (4), conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-92 (a) (2) (A), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and conspiracy to commit assault in the third degree in violation of §§ 53a-48 (a) and 53a-61 (a) (1). On appeal, the defendant claims that the trial court (1) improperly excluded evidence relevant to his defense of consent and the victim’s bias or motive to falsely accuse him and (2) violated the federal constitutional prohibition against double j eopardy by convicting him of three counts of conspiracy that arose out of a single unlawful agreement. We affirm in part and reverse in part the judgment of the trial court.

The following facts that reasonably could have been found by the jury and procedural history are relevant to the defendant’s claims on appeal. On November 1, 2008, the victim accompanied Bryan Fuller, a member of a street gang, to a vacant second floor apartment at 19 Taylor Street in Waterbury. The victim went to the apartment expecting Fuller to pay her $250. Fuller’s fellow gang members, including the defendant, were present at the apartment. Inside the apartment, several of the gang members, including the defendant, took turns openhandedly hitting the victim on her breasts, buttocks and vagina, and engaged in oral intercourse with the victim for approximately one half horn:.

The victim was then moved to a second room. In this room, the defendant engaged in oral intercourse with the victim and vaginally penetrated the victim while wearing a black plastic convenience store bag on his penis. Also, in that room, several of the defendant’s fellow gang members engaged in oral, vaginal and anal intercourse with the victim. These events lasted for approximately one and one-half hours. Eventually, the victim left the apartment, wearing her clothes but leaving her shoes, cell phone and purse behind. Shortly thereafter, the victim went to Saint Mary’s Hospital in Waterbury, where she reported the sexual assault and the medical staff performed a sexual assault evidence collection kit on her.

Subsequently, the defendant was arrested and charged with two counts of aggravated sexual assault in the first degree in violation of § 53a-70a (a) (4), and one count of conspiracy to commit aggravated sexual assault in the first degree in violation of §§ 53a-48 (a) and 53a-70a (a) (4), kidnapping in the first degree in violation of § 53a-92 (a) (2) (A), conspiracy to commit kidnapping in the first degree in violation of §§ 53a-48 (a) and 53a-92 (a) (2) (A), assault in the third degree in violation of § 53a-61 (a) (1), and conspiracy to commit assault in the third degree in violation of §§ 53a-48 (a) and 53a-61 (a) (1).

On December 30, 2010, the prosecutor filed a motion in limine to preclude the defendant from offering evidence at trial of other sexual assaults upon the victim and other complaints of sexual assault by her unless the defendant showed via an offer of proof that the evidence fell within an enumerated exception under General Statutes § 54-86f, known as the rape shield statute. The defendant’s trial commenced on January 11,2011, when the court, inter alia, held a hearing pursuant to § 54-86f for the purpose of allowing defense counsel to demonstrate how the evidence he intended to proffer at trial was relevant to a critical issue in the case—either, the victim’s alleged consent to engage in sexual relations with him, or the defendant’s alleged belief that the victim consented to having sexual relations with him and the reasonableness of that belief. The trial ended on January 20, 2011, at which time the jury returned a verdict of guilty on all of the charges against the defendant, except for kidnapping in the first degree on which he was acquitted. The court eventually sentenced the defendant on those charges to a total effective term of twenty years of incarceration and ten years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the defendant claims that the court violated his constitutional rights to confront his accuser and to present a defense in violation of his constitutional rights pursuant to § 54-86f (4). Specifically, the defendant argues that the court “denied the defendant his opportunity to defend himself by refusing to allow the defendant to introduce evidence that [the victim] was a prostitute and had just had consensual oral sex with codefendant Bryan Fuller and his friend for the promise of payment of $260 shortly before the Taylor Street acts. This evidence was highly relevant to his defense that [the victim] had consensual sex with him and expected to get paid for it, that she got mad at [certain] acts and Fuller’s refusal to pay her for services [at] both [the] Wolcott [Street] and Taylor [Street locations] , and she fabricated the charges of rape as a means of getting even with the guys. Once the court precluded the defendant from introducing this evidence, the jury had no way of knowing why [the victim] might have consented in this case, or that she would have a motive to fabricate a claim of rape.” The defendant further argues that “[t]he evidence that [the victim] was a prostitute, had just had sex with a codefendant for the promise of $250 and expressed a willingness to have sex with several men for $500 taken together with her behavior supported that she consented and rendered it more probable that the defendant reasonably believed she had consented or she in fact did consent and only went to the police because she was not paid for her services [at the] Wolcott [Street] and . . . Taylor [Street locations].” We are not persuaded.

“Upon review of a trial court’s decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very 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. . . .

“The rape shield statute excludes evidence of prior sexual conduct of the victim of a sexual assault, unless one of the statutory exceptions is satisfied. . . . The statute was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. . . . Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue harassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. . . .

“Although the state’s interests in limiting the admissibility of this type of evidence are substantial, they cannot by themselves outweigh the defendant’s competing constitutional interests. . . . The determination of whether the state’s interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the particular case.

“[T]he right to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. . . . Such an interest includes the trial court’s right, indeed, duty, to exclude irrelevant evidence.” (Citation omitted; internal quotation marks omitted.) State v. Adorno, 121 Conn. App. 534, 543-44, 996 A.2d 746, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).

“The primary interest secured by confrontation is the right to cross-examination .... As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. . . . [Preclusion of sufficient inquiry into aparticular matter tending to show motive, bias and interest may result in a violation of the sixth amendment [to the United States constitution]. . . . Further, the exclusion of defense evidence may deprive the defendant of his constitutional right to present a defense. . . . Not every ruling that prevents the defendant from introducing evidence, however, rises to the level of a violation of his constitutional rights. . . . The defendant’s right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, 270 Conn. 826, 836-36, 856 A.2d 345 (2004).

Section 54-86f provides in relevant part: “In any prosecution for sexual assault under [section] . . . 53a-70a ... no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. . . .”

“In a prosecution for sexual assault, § 54-86f sets forth the appropriate factors for consideration in determining the admissibility of evidence of the victim’s sexual conduct. . . . The rape shield statute excludes evidence of an alleged victim’s prior sexual conduct, with limited exceptions, for policy reasons. . . . Although the state has a substantial interest in promoting these goals, subdivision (4) of § 54-86f codifies the constitutional mandate that the state’s interest must yield to that of the defendant where the proffered evidence is so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Because the primary issue in the present case was whether the sexual intercourse was consensual, any evidence that was so relevant and material to the issue of consent that excluding it would have violated the defendant’s constitutional rights was admissible under § 54-86f (4). Determining whether evidence is relevant and material to critical issues in a case is an inherently factbound inquiry. Relevance depends on the issues that must be resolved at trial, not on the particular crime charged. . . . Consequently, the determination of whether the state’s interest in excluding evidence under the rape shield statute must yield to the defendant’s sixth amendment rights to confront the witnesses against him and to present a defense depends on the facts and circumstances of the particular case.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, supra, 270 Conn. 836-37.

“As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either more certain or more probable. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Citation omitted; internal quotation marks omitted.) Id., 838. “A clear statement of the defendant’s theory of relevance is all important in determining whether the evidence is offered for apermissible purpose.” (Internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 179, 777 A.2d 604 (2001).

“[E]vidence is material for purposes of § 54-86f (4) if, considering the case without the excluded evidence, there is a probability [that the result of the proceeding would have been different] sufficient to undermine confidence in the guilty verdict.” State v. DeJesus, supra, 270 Conn. 842.

“[A]n evidentiary ruling that excludes evidence properly admissible under § 54-86f (4), contrary to evidence admissible under the other subdivisions of the statute, requires reversal with no additional evaluation of harm, because the establishment of materiality, in a constitutional sense, also establishes harm to the defendant. Thus, analysis of whether the state has proved beyond a reasonable doubt that the ruling was harmless to the defendant would only replicate the analysis already completed under the statute. Put another way, where a trial court ruling excludes evidence properly admissible under § 54-86f (4), implicit in the determination that the ruling was improper is the necessary conclusion that the judgment must be reversed.” Id., 845.

On the first day of trial, the court held a hearing pursuant to § 54-86f for the purpose of allowing defense counsel to proffer evidence demonstrating how the evidence he sought to elicit at trial was relevant to a critical issue in the case—either the victim’s consent to have sex with the defendant or his alleged belief that the victim consented to have sex with him and the reasonableness of that belief. Defense counsel argued that the victim’s prior agreements to exchange sex for money with his fellow gang members were relevant because the agreements were part of one large transaction of prostitution and the large transaction involved the victim’s having agreed with a codefendant to have sex with several men, including the defendant, at the Taylor Street location for $500. After the hearing concluded, the court held that the defendant had not proffered evidence sufficient to raise the question of consent and, therefore, it precluded the defendant from presenting evidence on that issue during his cross-examination of the victim in the state’s case-in-chief. The court further ruled that he could offer evidence in his case-in-chief on the issue of consent, at which time the court would determine if that evidence was adequate to establish consent.

The following additional facts are relevant to the disposition of this claim. At trial, defense counsel made several attempts to ask the victim and other witnesses questions regarding the victim’s alleged status as a prostitute, whether she offered a codefendant that she would engage in sexual acts with four men for $500 and whether she had had consensual sex with a codefendant and another man for $250 shortly before the sexual conduct that occurred in this case. As it had previously ruled, the court precluded defense counsel from asking questions on cross-examination of the victim during the state’s case-in-chief pertaining to those evidentiary issues on the ground that such questions were prohibited under the rape shield statute, § 54-86f. The court, however, permitted the defendant to offer such evidence in his case-in-chief.

On January 13, 2011, however, the prosecutor called Sergeant Michael Slavin of the Waterbury Police Department as a witness, through whom the prosecutor introduced into evidence the defendant’s written statement. On January 14, 2011, the court read a portion of the defendant’s statement into the record, stated that it had been admitted as a full exhibit and ruled that the defendant at that point had sufficiently raised the issue of consent.

The defendant first challenges the court’s application of § 54-86f (4) by arguing that the court precluded him from introducing “evidence that [the victim] was a prostitute . . . The defendant, however, also argues to the contrary that “[e]vidence was presented before the jury that supported a reasonable inference that the defendant knew [the victim] was a prostitute and that she was going over to Taylor Street to have consensual sex for the payment of money even though Fuller had no intention of paying [her].” Our review of the record leads us to conclude that there was in fact evidence before the jury, which reasonably could have supported findings, if the jury had chosen to make them, that the defendant knew that the victim was a prostitute and believed that she was going to the Taylor Street location to have consensual sex for money. Therefore, the defendant’s claim that he was prevented from establishing that the victim was a prostitute is without foundation.

Insofar as the defendant challenges the court’s application of § 54-86f (4) to prohibit him from using the term “prostitute,” we recognize that the term prostitute describes a person who performs sexual acts for money or other consideration, including those acts which the defendant claims that the victim performed in this case. The evidence before the jury, if believed, reasonably could have supported a finding that the victim had agreed to and did perform sexual acts in the expectation of being paid. Although the court did not permit the victim to be called a prostitute, whether she was in fact a prostitute reasonably was a question of fact for the jury to decide on the basis of the evidence. The defendant presented evidence to the jury that, if believed by the jury, demonstrated that the victim exchanged sex for money. The court’s prohibition of the use of the conclusory term prostitute thus had no bearing on the outcome of the trial because the jury heard evidence from which it reasonably could have found that the victim was indeed a prostitute. The defendant concedes this point in his brief, when he states that “[e]vidence was presented before the jury that supported a reasonable inference that the defendant knew [the victim] was a prostitute and that she was going over to Taylor Street to have consensual sex for the payment of money . . . .” We conclude that the court did not preclude the defendant from introducing evidence to the jury that the victim was a prostitute, despite its ruling that the defendant could not label her a prostitute.

The defendant also challenges the court’s application of § 54-86f (4) to preclude him from introducing evidence that the victim “had just had sex with a codefen-dant for the promise of $250” and precluded him from introducing evidence that the victim had “expressed a willingness to have sex with several men for $500 . . . .” The defendant’s claims are not persuasive. The record demonstrates that although the court initially precluded the defendant from presenting evidence as to the victim’s prior sexual conduct, it later allowed the defendant to present such evidence to the jury. The defendant does not point to any specific instances in which he was precluded from pursuing questions regarding the victim’s prior sexual conduct or an expression of her willingness to have sex with several men for $500 after he sufficiently had raised the question of consent. We conclude that the court properly exercised its discretion with respect to its evidentiary rulings challenged by the defendant.

n

The defendant next claims that the court violated the double jeopardy clause of the United States constitution by sentencing him on three counts of conspiracy on the basis of a single agreement with multiple criminal objectives.

“A defendant’s double jeopardy claim presents a question of law, over which our review is plenary. . . . The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause [applies] to the states through the due process clause of the fourteenth amendment. . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. . . .

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Citation omitted; internal quotation marks omitted.) State v. Gonzalez, 302 Conn. 287, 315, 25 A.3d 648 (2011).

“Where a defendant is convicted of [multiple] counts of conspiracy that arise from the same agreement, resulting in [multiple] sentences, the defendant’s rights under the double jeopardy clause have been violated.” State v. Lee, 138 Conn. App. 420, 448, 52 A.3d 736 (2012). “Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute .... For such a violation, only the single penalty prescribed by the statute can be imposed.” (Internal quotation marks omitted.) Id., 449.

Section 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.” General Statutes § 53a-51 provides: “Attempt and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or is an object of the conspiracy, except that an attempt or conspiracy to commit a class A felony is a class B felony.”

The information charging the defendant with, inter alia, the three conspiracies alleged that the conspiracies arose out of the same underlying factual scenario in that the agreements were entered into on the same date, at the same time and in the same location. “[0]n or about November 1, 2008, at or near 19 Taylor Street Second Floor, Waterbury, CT, at or about 7:00 p.m., the [defendant], with intent that conduct ... be performed . . . agree [d] with one or more persons to engage in or cause the performance of such conduct, and any one of them commitfted] an overt act in pursuance of such conspiracy.” The state concedes “that the defendant’s convictions and sentences for kidnapping, sexual assault and assault are supported by evidence of a single agreement to sexually assault the victim.” In essence, the state charged the defendant with having entered into one unlawful agreement to accomplish three criminal proposes. Accordingly, we conclude that the defendant’s multiple sentences for three separate conspiracies arising out of a single unlawful agreement are unlawful and cannot stand.

Although the parties agree that a double jeopardy violation has occurred, they disagree about what the appropriate order of remand should be to remedy this violation. The defendant argues that the conviction of conspiracy to commit assault in the third degree and conspiracy to commit kidnapping in the first degree should be vacated and dismissed, and that he should be sentenced only for the conviction of conspiracy to commit aggravated sexual assault. The state argues that “the judgments as to the three conspiracy counts must be set aside and remanded to the trial court with direction to combine the defendant’s three conspiracy convictions and to vacate the sentences for two of the conspiracy convictions.” (Internal quotation marks omitted.) The appropriate remedy for such a constitutional violation, pursuant to State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), is to reverse the judgment of conviction of conspiracy to commit aggravated sexual assault in the first degree, conspiracy to commit kidnapping in the first degree and conspiracy to commit assault in the third degree, and to remand the case to the trial court with direction to render judgment on one count of conspiracy as explained in Polanco and to resentence the defendant accordingly.

The judgment is reversed only with respect to the conviction of three counts of conspiracy and the case is remanded with direction to vacate the judgment as to two of the conspiracy counts, and to render judgment on one count of conspiracy and to resentence the defendant thereon; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

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

       The state’s motion in limine provides: “Pursuant to Connecticut Practice Book § 42-15 and to Connecticut General Statute[s] § 54-86f, the state moves that the defendant be precluded from offering evidence of other sexual conduct or sexual assault complaints of the complaining witness in the above case, unless he shows via an offer of proof that his evidence falls within an enumerated exception under Connecticut General Statute [s] § 54-86f.”

       General Statutes § 54-86f provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a~71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       During the § 54-86f hearing, defense counsel did not argue that the victim’s bias or motive to fabricate the sexual assault claim against the defendant constituted a critical issue in the trial, nor did defense counsel attempt to make a proffer that evidence he sought to introduce was relevant to show the victim’s bias or motive to fabricate the sexual assault claim against him.
      On appeal, the defendant requests that we review this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, “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 omitted; footnote omitted.) Id.
      We now turn to the third prong of Golding to determine whether “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” Id., 241. The defendant claims that by precluding him from introducing evidence “that [the victim] was a prostitute and had just had consensual oral sex with codefendant Bryan Fuller and his friend for the promise of payment of $250 shortly before the Taylor Street acts,” the court prevented him from presenting evidence to the jury regarding the victim’s bias or motive to fabricate the sexual assault claims against the defendant.
      As discussed in this opinion, however, the court allowed the defendant to inquire into these issues after the defendant established that there was a question of consent by the victim. See part I of this opinion. Although the defendant was permitted to present this evidence with respect to another issue in the trial, the jury could consider this evidence without limitation with respect to all issues raised by the defendant, including the victim’s bias or motive to fabricate the sexual assault claims against him. Thus, the record demonstrates that the court allowed the defendant to introduce the evidence that he claims that he was precluded from introducing to the jury. Absent factual support for his claims, he cannot establish any violation of his constitutional rights. Accordingly, the defendant has not shown that a constitutional violation clearly exists, and his claim of constitutional error fails under the third prong of Golding.

       See footnote 3 of this opinion.

       See footnote 2 of this opinion.

       The court stated: “State’s exhibit 47, which is now a MI exhibit, has a statement which I’ll read into the record. Quote: Then Bryan grabbed me aside and said that he told this girl, that wotdd be [the victim], that he was give her some money because he was with her all day, she was giving him and the other boy head all day, giving head means getting oral sex. I heard Bryan tell this girl that the money he owes her is upstairs on the second floor but I knew he was lying to her because he told me that and I also know that the second floor is a vacant apartment.
      “In my opinion, that has now, that statement which is now a lull exhibit, and that portion of the statement has established, even though it’s very thin, has established the question of consent.
      “Therefore, I’m going to allow the defendant to, because I think—because I think at this point, the narrow reading of § 54-86f could result in the defendant here not being able to present a defense to this jury. . . .
      “Counsel can inquire as to the basis of the defendant’s knowledge of the prior sexual conduct of [the victim]. There were several questions that I excluded because at that point, before his statement came in, there was no evidence to support the question of—it was—there was no reason not to apply § 54-86f.
      “Now, we have a statement, which, in my opinion, requires me to more narrowly view § 54-86f in terms of the statement and in terms of the language set forth in Demers v. [State], 209 Conn. 143, [547 A.2d 28 (1988)], and State v. DeJesus, [supra] 270 Conn. 826.”

       For example, the record demonstrates that the court allowed the defendant to present evidence that the victim had sex with a codefendant for a promise of $250 prior to arriving at Taylor Street. The record also demonstrates that the court allowed the defendant to ask the victim whether she had had an arrangement to sexually service four individuals for $500, and the court allowed the victim to respond.

       Count three of the substitute Information, which charged the defendant with conspiracy to commit aggravated sexual assault in the first degree, alleged “that on or about November 1, 2008, at or near 19 Taylor Street Second Floor, Waterbury, CT, at or about 7:00 p.m., the [defendant], with intent that conduct constituting the crime of Aggravated Sexual Assault In The First Degree be performed . . . agree[d] with one or more persons to engage in or cause the performance of such conduct, and any one of them commit[ted] an overt act in pursuance of such conspiracy.”
      Count five of the substitute information, which charged the defendant with conspiracy to commit kidnapping in the first degree, alleged “that on or about November 1, 2008, at or near 19 Taylor Street Second Floor, Waterbury, CT, at or about 7:00 p.m., the [defendant], with intent that conduct constituting the crime of Kidnapping In The First Degree be performed . . . agree[d] with one or more persons to engage in or cause the performance of such conduct, and any one of them commit[ted] an overt act in pursuance of such conspiracy.”
      Count seven of the substitute information, which charged the defendant with conspiracy to commit assault in the third degree, alleged “that on or about November 1,2008, at ornear 19 Taylor Street Second Floor, Waterbury, CT, at or about 7:00 p.m., the [defendant], with intent that conduct constituting the crime of Assault in The Third Degree be performed . . . agree[d] with one or more persons to engage in or cause the performance of such conduct, and any one of them commit[ted] an overt act in pursuance of such conspiracy.”

       The defendant also requests that the conviction on all three counts be vacated and a new trial ordered. He has not identified any legal basis, however, upon which this relief may be granted.

       We take guidance from our Supreme Court in Polanco, in which it held that “when a defendant has been convicted of greater and lesser included offenses, the trial court must vacate the conviction for the lesser offense rather than merging the convictions .... State v. Polanco, supra, 308 Conn. 245. Our Supreme Court further stated: “While we are aware of no reason why our holding, of logical necessity, would not apply with equal force to other scenarios in which cumulative convictions violate the double jeopardy clause, we must limit our discussion to the specific context that arises in the present case and as briefed by the parties.” Id., 249 n.3.

       The defendant argued at oral argument to this court that the appropriate remedy includes resentencing him on the basis of the aggregate package theory. “Pursuant to [the aggregate package] theory, we must vacate a sentence in its entirety when we invalidate any part of the total sentence. On remand, the resentencing court may reconstruct the sentencing package or, alternatively, leave the sentence for the remaining valid conviction or convictions intact.” (Internal quotation marks omitted.) State v. LaFleur, 307 Conn. 115, 164, 51 A.3d 1048 (2012). The defendant, however, did not brief this issue in his appellate brief. Accordingly, we decline to address this issue. See Daniels v. Warden, 28 Conn. App. 64, 65 n.1, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992); Practice Book § 60-5.


author: PER CURIAM.

text:
    ANTHONY SMALL v. COMMISSIONER OF CORRECTION
    (AC 33759)
    DiPentima, C. J., and Gruendel and Dupont, Js.
    Argued May 20
    —officially released August 6, 2013

      Kenneth Paul Fox, assigned counsel, for the appellant (petitioner).

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

PER CURIAM.

The petitioner, Anthony Small, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) denied certification to appeal from the denial of his petition for a writ of habeas corpus and (2) determined that it lacked subject matter jurisdiction to consider the merits of his petition. We disagree, and, accordingly, dismiss the petitioner’s appeal.

The record reveals the following facts and procedural history. The petitioner was convicted of one count of the crime of capital felony in violation of General Statutes § 53a-54b (8), two counts of the crime of felony murder in violation of General Statutes § 53a-54c, and one count of the crime of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-48. Our Supreme Court vacated the petitioner’s conviction of capital felony and instructed the trial court to resentence the petitioner. State v. Small, 242 Conn. 93, 99, 700 A.2d 617 (1997). In accordance with this directive, the court sentenced the petitioner to forty-five years incarceration on both counts of felony murder, and five years incarceration on the count of conspiracy to commit robbery in the first degree. The court further ordered these sentences to be served concurrently. The petitioner filed his first petition for a writ of habeas corpus in February, 2000. The habeas court dismissed the petition, and that decision was affirmed by both this court and our Supreme Court. See Small v. Commissioner of Correction, 98 Conn. App. 389, 401, 909 A.2d 533 (2006), aff'd, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

The petitioner filed the present habeas action and, in a second amended petition, filed January 5, 2011, alleged ineffective assistance of counsel with respect to his criminal trial counsel, Attorney Lawrence Hopkins, his criminal appellate counsel, Attorney Lauren Weisfeld, his habeas trial counsel, Attorney David Bach-man, and his habeas appellate counsel, Attorney Joseph Visone. On January 20, 2011, the respondent, the commissioner of correction, filed a return and raised the special defenses of procedural default and res judicata.

On January 28, 2011, the petitioner filed a third amended petition. In the first count, he alleged ineffective assistance by Hopkins and Weisfeld. In the second count, the petitioner alleged ineffective assistance by Bachman. In the third count, the petitioner claimed that Visone had provided ineffective assistance of counsel with respect to the prior habeas appeal. Specifically, the petitioner alleged that Visone should have argued that Hopkins provided deficient performance in failing to (1) object to instances of prosecutorial impropriety, (2) fully cross-examine certain witnesses, (3) challenge the trial court’s lack of impartiality, (4) call certain witnesses, and (5) object to the state’s use of perjured testimony.

The court held a hearing on July 25, 2011. During this proceeding, the petitioner’s counsel expressly acknowledged that his claim contained in count three, went “specifically and only to the conspiracy count . . . .” After hearing argument, the court dismissed count one of the third amended petition on the basis of res judicata and Practice Book § 23-29 (3). The court dismissed count two on the basis of procedural default. As to count three, the court determined that it lacked subject matter jurisdiction because the petitioner’s counsel had specified that this claim related only to the conviction of conspiracy to commit robbery in the first degree, and the petitioner had completed his five year sentence prior to the filing of the present action. The court also denied the petition for certification to appeal from the denial of the petition for a writ of habeas corpus.

On appeal, the petitioner first argues, as he must, that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . .

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” (Internal quotation marks omitted.) Burgos-Torres v. Commissioner of Correction, 142 Conn. App. 627, 630-31, 64 A.3d 1259 (2013).

We now set forth the substantive issue raised in the petitioner’s appeal. The petitioner agrees that the habeas court properly dismissed counts one and two of the operative petition, but challenges the habeas court’s dismissal of count three. Specifically, he contends that the process by which habeas counsel orally amended count three of the operative petition was improper. He further maintains that without such an amendment, the court’s determination regarding the scope of count three and the corresponding lack of subject matter jurisdiction must be reversed.

“Subject matter jurisdiction for adjudicating habeas petitions is conferred on the Superior Court by General Statutes § 52-466, which gives it the authority to hear those petitions that allege illegal confinement or deprivation of liberty. . . . We have long held that because [a] determination regarding a trial court’s subj ect matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.” (Citation omitted; internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 139 Conn. App. 173, 177-78, 55 A.3d 588 (2012), cert. granted on other grounds, 307 Conn. 947, 60 A.3d 960 (2013); see also Lebron v. Commissioner of Correction, 274 Conn. 507, 529-30, 876 A.2d 1178 (2005); Young v. Commissioner of Correction, 104 Conn. App. 188, 191, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008).

At the hearing, the petitioner’s habeas counsel stated that the allegation of ineffective assistance of counsel set forth in count three of the operative petition applied only to the conviction of conspiracy to commit robbery in the first degree. We are not aware of any reason why the court could not consider this statement by counsel as an oral amendment to the petition. See, e.g., Burton v. Stamford, 115 Conn. App. 47, 59-60, 971 A.2d 739 (setting forth case law permitting oral amendment to pleadings in civil actions), cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009); Mitchell v. Warden, Superior Court, judicial district of Tolland, Docket No. 00215 (October 29, 1991) (habeas court permitted petitioner to orally amend petition that had failed to include allegation that there had been no deliberate bypass of appeal). The petitioner argues, without citation or analysis, that the habeas court should have canvassed him before it permitted the amendment to count three. This unsupported argument is unavailing.

The habeas court properly considered the statement of the habeas counsel as an oral amendment to the operative petition and properly limited count three to the petitioner’s conviction of conspiracy to commit robbery in the first degree. It is undisputed that the petitioner had completed his five year sentence on this count when the petition was filed. As a result, the habeas court properly determined that it lacked subject matter jurisdiction over count three. After reviewing the entire record and briefs, we conclude that the court did not abuse its discretion in denying certification to appeal from the denial of the petition for a writ of habeas corpus.

The appeal is dismissed.

       Practice Book § 23-29 provides in relevant part: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . .
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . . .”

       The petitioner conceded in his brief that if count three pertained only to the conviction of conspiracy to commit robbery in the first degree, then the court properly dismissed count three for lack of subject matter jurisdiction.