author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. TYSHON MOORE
    (AC 16219)
    Foti, Landau and Healey, Js.
    Argued January 28
    officially released June 9, 1998

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Earl B. Richards, assistant state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

The defendant, Tyshon Moore, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). We affirm that judgment and the judgments of violation of probation.

On appeal, the defendant claims that his right to a fair trial was prejudiced because (1) the trial court abused its discretion when it permitted the state to cross-examine the defendant’s mother concerning prior arrests of the defendant, and (2) the state’s remarks in closing arguments were improper.

The jury reasonably could have found the following facts. On May 4, 1994, at approximately 8 p.m., two officers, Peter Carusone and Andrew Muro, assigned to the drug interdiction unit of the New Haven police department, drove their marked police cruiser to the comer of Shelton Avenue and Ivy Street in New Haven. That intersection is known as a high narcotics sales area. As their vehicle came to a stop at the intersection, they both observed what they believed to be a hand-to-hand narcotics transaction between an unknown male and an unknown female on the sidewalk approximately ten to fifteen feet away. The male, later identified as the defendant, was holding a plastic sandwich bag in his light hand and reaching into the bag with his left hand, while the female was standing next to him with money in her hand. The plastic bag contained a number of smaller packages of white powder. Before an actual exchange took place, the defendant turned, saw the police and ran away.

As the defendant crossed the street and ran, both Carusone and Muro observed the defendant stuff the plastic bag up the sleeve of his jacket. Carusone pursued the defendant on foot while Muro followed in the police cruiser. Approximately two blocks away, the defendant was cornered inside a fenced parking lot and Carusone arrested him.

Carusone searched the defendant and found, in the left sleeve of his jacket, a plastic bag containing twenty-four small glassine bags of white powder that subsequently tested positive for the presence of cocaine. Carusone also found $15 in the pocket of the defendant’s pants.

At the trial, the defense adduced evidence not only concerning the circumstances of the defendant’s arrest but also of whether he was drug-dependent at that time. The defendant called his mother, Donna Bennett, as a witness and also testified in his own behalf. This appeal followed the verdict of guilty.

I

We first address the issue directed to the state’s cross-examination of Bennett. To put this claim in the proper context, additional facts must be set out. On direct examination, defense counsel asked Bennett the following:

“Q. Did [the defendant] ever speak to you about being involved with drugs?
“A. Yes.
“Q. Did you draw any conclusions from your discussions with him?
“A. Yes, I did.
“Q. What did you arrive at?
“A. That he—he had a serious drug problem and that he needed help.
“Q. For this period that you lived at Brewster Street, did the—did the drug problem occur in intervals?
“A. Yes.
“Q. Could you describe how that happened?
“A. Well, [the defendant] had been arrested several times, for what I believe to be as the result of him using drugs, and—and, then, just getting wild and just doing things that he had no business or being places he had no business. And—but, when he would go, like to jail, and, then, he would come back home, all the time he was in jail, he was like, well, I haven’t done any drugs, and I’m not going to do any, I want to go to school, I want to do this and that. And when he came home, for a while, it would, you know, be good, and we’d look into different things that he could possibly do. He could work with my husband, who’s self-employed, some days, and, then, you know, then we could see the pattern starting all over again. Like, you know, he would supposed to be working with my husband, and not show up, or he’d come and not have any energy, he’d be tired, things of that nature.” (Emphasis added.)

During the cross-examination of Bennett, the state inquired as follows:

“Q. And was he—when did his problem start, his— his problems with the law and things of that nature?
“A. Maybe about fifteen or sixteen.
“Q. Fifteen or sixteen. And you said he had been arrested on other things before?
“A. That’s correct.
“Q. And how many times was that?
“A. I don’t know.
“Q. And you don’t remember what?
“A. Various things.
“Q. Such as?”

At that point, the defendant objected and the jury was excused. In asking the court to bar this line of questioning, the defendant argued that permitting it would be unduly prejudicial. In response, the state argued that the defendant had “opened the door” on Bennett’s direct examination and that it ought to be permitted to proceed with this line of questioning. The trial court agreed with the state saying, “I do believe the door’s been open to it.” In doing so, the trial court also indicated, “The jury has already heard through this witness’ voluntary testimony, that the defendant has been arrested several times, as a result of using drugs, so that these arrests, in fact, have been linked to the alleged claim of drug dependence. . . . Therefore, the issue of drug dependence has been raised in connection with his behavior. . . . It’s the essential issue with respect to the charges in the second count of the information in this case, whether or not he was drug-dependent at the time of this offense.” In ruling that the state could cross-examine Bennett with respect to the subject of her direct examination, the trial court said that it would caution the jury then and later that the testimony elicited from Bennett was to be used for impeachment purposes only and was not evidence of the defendant’s bad character and was not to be used as evidence in assessing his guilt or innocence. Upon the jury’s return to the courtroom, the trial court instructed them to that effect. The state continued its cross-examination and Bennett admitted that she believed that the defendant had been arrested “for . . . possession or something . . . [but she was] not really sure of all the charges.” When asked further about crimes for which the defendant was arrested she said, “Possession, [that’s] all I know.” When asked if that was possession of narcotics, she replied, “That . . . that’s the only possession—I assume that’s what it was.” She also acknowledged that since the defendant had become an adult, there were one or two periods of about one month each during which she had not seen the defendant because he was either in jail or with friends. When the state completed its cross-examination of Bennett, the trial court again instructed the jury as it had earlier. At the time of its final instructions to the jury, the court for the third time, gave similar instructions.

In claiming that the trial court abused its discretion, the defendant argues that the prejudicial impact of Bennett’s testimony outweighed its probative value and caused “irreparable damage” to his credibility, particularly because he did testify and, in doing so, contradicted the testimony of the arresting officers. He further argues that, not only did the trial court inappropriately allow evidence of other acts of misconduct but, in doing so, it did not consider whether the “relevance” of such testimony outweighed its prejudicial impact. Included in this claim is the defendant’s argument that the trial court, in allowing Bennett’s testimony, permitted the state to explore the particular crimes for which he had been arrested with no consideration of the prejudicial impact of that evidence. The defendant claims that the trial court’s ruling in admitting the testimony amounts to an abuse of discretion. Finally, he claims that, as a result, the only evidence as to his criminal history and the nature of the crimes for which he had been arrested came solely from the cross-examination of Bennett. We are not persuaded by any of these claims.

“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); see also State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977). “The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party.” State v. Graham, supra, 13. “The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. United States v. Lum, [466 F. Sup. 328, 335 (D. Del. 1979)], quoting United States v. Winston, [447 F.2d 1236, 1240 (D.C. Cir. 1971)]. State v. Glenn, [194 Conn. 483, 499, 481 A.2d 741 (1984)]. The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir. 1956). United States v. Winston, supra [1240]. Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal. Id., 1241-42; People v. Arends, 155 Cal. App. 2d 496, 509, 318 P.2d 532 (1957).” (Internal quotation marks omitted.) State v. Graham, supra, 13-14; State v. Hernandez, 224 Conn. 196, 206-207, 618 A.2d 494 (1992).

The doctrine of “opening the door” may be “expressively understood” according to the Circuit Court of Appeals for the District of Columbia: “ ‘This business about “opening the door” is a much overused issue and it carries with it an oversimplification. Opening the door is one thing. But what comes through the door is another. Everything cannot come through the door.’ ” United States v. Winston, supra, 447 F.2d 1240. “Evidence of a defendant’s prior misconduct is not ordinarily admissible to prove his bad character or criminal tendencies.” State v. Williams, 203 Conn. 159, 185, 523 A.2d 1284 (1987); see State v. Ortiz, 40 Conn. App. 374, 378, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1444 (1996). “Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity ... or an element of the crime.” (Citations omitted; internal quotation marks omitted.) State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986); State v. Sierra, 213 Conn. 422, 428-29, 568 A.2d 448 (1990); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Busque, 31 Conn. App. 120, 128, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). Such evidence, however, to be admissible must also be relevant and material. State v. Asherman, 193 Conn. 695, 728, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Ibraimov, supra, 352; State v. Wiedl, 35 Conn. App. 262, 265, 644 A.2d 1313, cert. denied, 231 Conn. 914, 648 A.2d 160 (1994).

The trial court has broad discretion not only to rule on the relevancy of evidence; State v. Jones, 205 Conn. 638, 666-67, 534 A.2d 1199 (1987); but also to determine the scope of cross-examination. State v. Cooper, 227 Conn. 417, 431, 630 A.2d 1043 (1993); State v. Hernandez, supra, 224 Conn. 208; State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). “Uncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect. State v. Cooper, [supra, 427].” State v. Wiedl, supra, 35 Conn. App. 265. “ ‘Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983); see State v. Cooper, supra, 427; State v. Payne, 219 Conn. 93, 98, 591 A.2d 1246 (1991); State v. Crosby, 196 Conn. 185, 191, 491 A.2d 1092 (1985).

In applying the foregoing principles to the facts of this case, we conclude that the trial court did not abuse its discretion. In this case, the trial court carefully balanced the probative value of the proffered evidence against its prejudicial impact on the defendant before admitting it. Before admitting that evidence, the trial court asked the state to indicate “by way of [an] offer of proof how far you plan to take this.” The state did so. The trial court opined that Bennett’s testimony of the defendant’s activity with drugs had raised the issue of his drug dependence, which it said was “the essential issue, with respect to the charges in the second count of the information in this case, whether or not he was drug-dependent at the time of this offense.” The elicited evidence was clearly relevant and material. As previously stated, the trial court repeatedly and carefully instructed the jury on how this evidence was to be used.

It has often been held that proper limiting instructions serve to mitigate the prejudicial impact of prior misconduct evidence. State v. Cooper, supra, 227 Conn. 428; State v. Baldwin, 224 Conn. 347, 357-58, 618 A.2d 513 (1993); State v. Brown, 199 Conn. 47, 58, 505 A.2d 1225 (1986); State v. Ryan, 182 Conn. 335, 338 n.5, 438 A.2d 107 (1980); State v. Huckabee, 41 Conn. App. 565, 573, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996); State v. Ulen, 31 Conn. App. 20, 35-36, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). The trial court’s ruling, including its hunting instructions to the jury, was well within its discretion.

Even though the defendant also claims that the trial court’s rulings irreparably damaged his credibility, that is clearly not so on the record before us. We also recognize that he claims that, because of the court’s ruling, the evidence that came in from his mother’s testimony as a result, constituted “the only evidence as to [his] criminal history and the nature of the crimes for which he had been arrested.” We reject both of these claims. In making them, the defendant overlooks some very damaging testimony he himself gave. The defendant testified that he started using marijuana at age fifteen and that he began using other drugs at age sixteen. Although he started off experimenting, his drug use became heavier. He used heroin and then cocaine. He testified that he used drugs “up to last Sunday, or the last time he was in court.” The defendant said that he used twenty to forty bags of cocaine a day. The defendant also said that he financed his drug use only by committing “robberies, stealing. The drug dealers, the youngest drug dealers [are] the easiest ones, you get them for like $500, maybe $1000. You, you, stick— stickups, like, stickups.” The defendant also testified that “when that run out, we could just rob them again. But, I had got shot like that, during robberies, a couple of years back” as well as saying that that had not stopped him “cause I—I was high when I got shot, so, I really didn’t feel it, I didn’t really feel it. But, one of the dealers we had robbed, we robbed a young one, but, he remembered our faces, and he told some of the other—the other guys he with, and, no, they came back to us. And I got shot twice, that was in 1991.” The defendant also testified that he committed “street robberies, too, whenever I could get some, like quick money” and had robbed dealers “all over Connecticut.” The defendant was, he said, afraid to spend too long on the street “unless I had a gun on me.” The defendant even ventured that on the day he was arrested for the offenses for which he was now on trial that he had “probably robbed somebody.”

Our Supreme Court has, on a number of occasions, quoted with approval State v. Staples, 120 N.H. 278, 283, 415 A.2d 320 (1980), when that court stated, “When a witness voluntarily testifies, as did the defendant here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word.” See State v. Hernandez, supra, 224 Conn. 207; State v. Sierra, supra, 213 Conn. 434; State v. Williamson, 206 Conn. 685, 699, 539 A.2d 561 (1988); State v. Glenn, supra, 194 Conn. 498-99. Given the defendant’s own testimony, it ill befits him to say that the trial court’s ruling allowing the state to examine his mother’s direct testimony on cross-examination irreparably damaged his credibility. In addition, his argument that the evidence that was admitted due to this ruling constituted “the only evidence as to his criminal history and the nature of the crimes for which he had been arrested” is totally without merit. We note that Scott Grove, a psychiatrist who was the defendant’s expert witness, testified that it was “absolutely” true that drug-dependent persons will rob, steal and sell drags to support their drug habits. The trial court said that the door had been opened, but it was very cautious in what it allowed to come through the door, and what did come through did so under appropriate instructions given on three separate occasions. There was no abuse of discretion as claimed.

II

The defendant next claims that the prosecutor’s remarks in closing arguments were improper and that it was reasonably probable that they prejudiced his right to a fair trial. Although the defendant concedes that he failed to preserve this claim at trial, he nonetheless argues that the claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because the remarks prejudiced his right to a fair trial.

The defendant claims that the prosecutor asked the jury to view this case as a “swearing contest” between the defendant and the state’s “two key witnesses,” who were police officers, that the prosecutor repeatedly vouched for the truthfulness of the three police officers who testified, that he “continually voiced his own opinion of the evidence,” that he called the defendant a “thief’ and a “robber” and that he appealed to the emotions of the jury. In examining the defendant’s claim under Golding, we are aware that he has a constitutional due process right to a fair trial. We will review the claim under Golding, but we do not agree that the defendant was deprived of a fair trial.

Our Supreme Court has acknowledged that prosecutorial misconduct can occur in the course of closing argument. See State v. Atkinson, 235 Conn. 748, 670 A.2d 276 (1996); State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). “In order to deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Atkinson, supra, 769; State v. Williams, supra, 204 Conn. 539-40; State v. Santiago, 45 Conn. App. 297, 302-303, 696 A.2d 344, cert. denied, 241 Conn. 927, 697 A.2d 362 (1997); State v. Garrett, 42 Conn. App. 507, 516, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 397, 398 (1996). At trial, the defendant did not object to the prosecutor’s remarks or request a curative instruction, and therefore, “he presumably did not regard [the] remarks as seriously prejudicial at the time they were made.” State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993); see State v. Cassidy, 236 Conn. 112, 131, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996); State v. Negron, 221 Conn. 315, 330, 603 A.2d 1138 (1992); State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983). Under Golding, “[t]he defendant bears the burden of ‘demonstrating that his claim is indeed a violation of a fundamental constitutional right’ . . . .” (Citation omitted.) State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990).

“[I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. ” (Internal quotation marks omitted.) State v. Robinson, supra, 227 Conn. 746; State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994); State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990); State v. Haggood, 36 Conn. App. 753, 772, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995). Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence. United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991); United States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988), cert. denied, 492 U.S. 906, 109 S. Ct. 3215, 106 L. Ed. 2d 565 (1989). Molina goes on to state: “In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue that one of the two sides is lying.” United States v. Molina, supra, 1445; see also Commonwealth v. Murchison, 418 Mass. 58, 60, 634 N.E.2d 561 (1994); State v. Aguilar, 117 N.M. 501, 873 P.2d 247 (1994). “While the prosecutor is permitted to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom, he is not permitted to vouch personally for the truth or veracity of the state’s witnesses.” State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). We keep in mind that “[t]he purpose of summations is for the attorneys to assist the jury in analyzing, evaluating and applying the evidence. United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978).” (Emphasis in original.) United States v. Pelullo, 964 F.2d 193, 219 (3d Cir. 1992). “[A] ‘prosecutor may not appeal to the emotions, passions and prejudices of the jurors.’ ” State v. Watlington, supra, 216 Conn. 193; United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982); State v. Williams, supra, 204 Conn. 545; State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Such appeals “ ‘have the effect of diverting the jury’s attention from their duty to decide the case on the evidence.’ ” State v. Couture, supra, 562. The prosecutor must also confíne himself to the evidence in the record. State v. Binet, 192 Conn. 618, 631, 473 A.2d 1200 (1984). “[W]e must review the comments complained of in the context of the entire trial.” State v. Robinson, supra, 746; State v. Morales, 45 Conn. App. 116, 132, 694 A.2d 1356 (1997), appeal dismissed, 246 Conn. 249, 714 A.2d 677 (1998); State v. Villanueva, 44 Conn. App. 457, 462, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997).

The defendant asserts that the state framed the issue in this case as a “swearing contest” between himself and the police. The term “swearing contest” was never used. During his argument, defense counsel himself alluded to the state’s attempt to discredit all of his witnesses, including the defendant, and to consider their testimony with that of the police officers. He thereupon asked the jury to consider whether “it [looked] like these [witnesses] made these things up.” During his argument, the defense counsel indicated that he agreed with the police as to the time span it took for the events to occur and then he argued, “I’m not saying these officers lied, at least not as to that aspect of it. Maybe as to the search.” In the closing argument, the state parsed the defendant’s theory, mindful that the defendant was the only person at the scene of the crime, as a “credibility contest.” The state also replied that the arresting officers were “honest” and “are not lying.” The evidence at the trial discloses that, on more than one occasion, the defendant testified that the police were not telling the truth. Moreover, we do not agree with the defendant’s claim that the state “repeatedly” vouched for the truthfulness of the police and that the prosecutor “continually” voiced his own opinion of the evidence. The use of the adverbs “repeatedly” and “continually” are not appropriate when one considers the final arguments in the context of the entire trial. Actually, the patina of such words was also markedly diminished by the defendant’s own closing argument, which was not without its own “vouching” and some opinion. At the outset of its closing argument, the state made the point to the jury that “it’s your collective recollection of the facts that matters, not the opinion of myself or [the public defender].” At the very end of his closing argument, the prosecutor submitted that after the jury looked at the facts, the only conclusion that it could reach was that the state had proven its case beyond a reasonable doubt. The circumstances in which the prosecutor referred to the defendant as a “thief’ and “robber” were a fair repetition of how the defendant characterized himself as he testified.

A careful review of the record discloses that the defendant’s claims do not approach the level of a due process violation. The challenged remarks, to the extent that they were inappropriate, were isolated and brief and did not reflect a pattern of misconduct in the context of the entire trial. They clearly did not deprive the defendant of a fair trial. The defendant, therefore, cannot prevail on his claim of prosecutorial misconduct in the closing argument.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense . . . any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance . . . for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .”
      The defendant was tried on a three count substitute information. The first count charged him with the crime of possession of narcotics in violation of General Statutes § 21a-279 (a); the second count charged him with the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b); and the third count charged him with the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The jury had been instructed that it could not find him guilty of both the second and third counts. At the time of sentencing, after merging the two crimes of which he was convicted at the trial, the trial court sentenced the defendant to a term of twelve years for the conviction of possession of a narcotic substance with intent to sell. The sentence was to run concurrent with terms of two and one-half years and three years for his probation violations for a total effective term of twelve years imprisonment.

       Edward Kendall, a New Haven police officer for seventeen years with expertise in the area of narcotic trafficking, testified that possession of a large number of bags of cocaine, such as twenty bags, would be more consistent with possession with intent to sell rather than possession for personal use.

       “I’m going to allow [the assistant state’s attorney] to question Mrs. Bennett with respect to the subject of her direct examination. I think it is clearly relevant to the issue of whether or not the defendant was drug-dependent at the time of the offense in this instance, and whether or not he was a user or seller. I will, however, caution the jury, both, before [the assistant state’s attorney] starts this line of inquiry and in—after the inquiry is concluded, and in my closing instructions, that any testimony that’s about to be elicited is being elicited for purposes of cross-examining this witness only, that is, for impeachment purposes. It is not evidence of the defendant’s bad character, nor, may the jury use this evidence in assessing guilt or nonguilt of the charges involved.”

       The defendant was twenty-one years old at the time of his trial.

       At that time the following instructions were given: “Again, ladies and gentlemen, I want to caution you that the testimony you just heard, with respect to periods of time where the defendant may have been incarcerated and with respect to prior arrests, is not to be considered, by you, in any way, with respect to whether or not the defendant is guilty or not guilty of the crimes with which he is charged. It is not evidence of bad character, it’s not—it should not be held against the defendant, in any way. And should only be considered by you for the very limited purpose of the cross-examination of this witness, when you are asked to assess the credibility of this witness.”

       At that time the following instructions were given: “You will recall that during cross-examination of Donna Bennett, the state questioned her about the defendant’s prior arrests and periods of incarceration. This evidence was offered and admitted for one purpose only, to be weighed by you in testing Donna Bennett’s credibility. You may not use this evidence, in any way, as evidence that the defendant is guilty of the crimes charged in this case. You may not infer that the defendant is likely to have committed the offenses charged in this case, because he was arrested or jailed in the past. You may consider this evidence only as it bears on Donna Bennett’s credibility. The weight that you give this evidence, in this regard, is for you to decide.”

       The defendant points out that when the state cross-examined him, it did not elicit any evidence of any prior felony convictions.

       The defendant seems to suggest in his brief that the trial court, in making its ruling, did not specifically refer to the matter of prejudice. Even where this is so, the lack of a specific reference is hardly ground to assume that the trial court disregarded it. See State v. Cascone, 10 Conn. App. 163, 164, 521 A.2d 1067, cert. denied, 203 Conn. 808, 525 A.2d 522 (1987). As we point out, the conduct of the trial court clearly demonstrates that it did consider prejudice.

       When the trial court was called on to rule on this matter, the jury had already heard from Bennett concerning, inter alia, how she had come to believe from observing the defendant, who sporadically lived at home with her, that “he had a serious drug problem and that he needed help,” that the defendant “had been arrested several times, for what [she believed] to be as the result of him using drugs, and—and, then, just getting wild and just doing things that he had no business doing or being places he had no business” and that “when he would go, like to jail. . . when he came home, for a while, [he] would ... be good . . . then we could see the pattern starting all over again.”

       This court has discussed the difference between General Statutes §§ 21a-278 and 21a-278 (b) (latter statute was subject of second count of information at this defendant’s trial). “The statutes are virtually identical except that § 21a-278 applies exclusively to persons who are not drug-dependent The design and effect of § 21a-278 (b) is to punish persons who are not drag-dependent and sell narcotics more severely than drug-dependent persons who sell narcotics. The legislature accomplishes that goal by providing for a five year mandatory minimum sentence for those convicted under § 21a-278 (b). A drug-dependent person can escape liability under § 21a-278 (b), and thus the five year mandatory minimum sentence, by proving that he was drug-dependent at the time of the offense. State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981) (clear meaning of clause relating to absence of drag dependency to exempt particular class of persons from operation of statute). A drug-dependent person, could, however, be convicted under § 21a-277 (a), which does not consider drug dependency, but which also does not carry a mandatory minimum sentence. State v. Paredes, 35 Conn. App. 360, 372, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994).” State v. Jenkins, 41 Conn. App. 604, 607, 679 A.2d 3 (1996).

       In making this argument, the defendant points out that the state did not elicit evidence of any prior conviction of him upon its cross-examinations.

       “In State v. Golding, [supra, 213 Conn. 239-40], we reformulated the standard announced in State v. Evans, [165 Conn. 61, 327 A.2d 576 (1973)] for appellate consideration of constitutional claims that were not preserved at trial. We stated 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. . . . State v. Golding, supra [239-40], We noted that we would remain free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances. Id., 240. State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990).” (Emphasis in original; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 768 n.26, 670 A.2d 276 (1996).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JUAN ORTIZ v. COMMISSIONER OF CORRECTION
    (AC 16948)
    Spear, Hennessy and Sullivan, Js.
    Argued March 19
    officially released June 9, 1998

      Raymond J. Rigat, special public defender, for the appellant (petitioner).

      Richard F. Jacobson, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner appeals from the dismissal of his petition for a writ of habeas corpus and the denial of his petition for certification to appeal.

The petitioner was convicted of murder in violation of General Statutes § 53a-54a (a). At his criminal trial, the petitioner raised the affirmative defense of extreme emotional disturbance to negate the specific intent required for conviction. He introduced circumstantial evidence that he was voluntarily intoxicated at the time of the crime. On his direct appeal to our Supreme Court, his conviction was affirmed. See State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991).

The jury reasonably could have found the following facts. On June 7, 1988, at approximately 7 p.m., the police were called to 46 Wood Avenue in Bridgeport to investigate a stabbing. At that location, the police discovered the body ofMyrna Ortiz, the petitioner’s wife who had been stabbed several times. Two eyewitnesses saw the petitioner stab the victim in the neck and back and drag her body into an alley. The petitioner then drove away in his automobile after cleaning the knife used in the crime and placing it on a cardboard box.

The habeas court’s dismissal of the petitioner’s writ was predicated on a factual review of the petitioner’s claim that he was denied effective assistance of counsel. The petitioner claimed that his counsel failed (1) to pursue adequately plea bargaining on his behalf, (2) to obtain a timely mental health evaluation of the petitioner, (3) to request additional time for trial preparation, and (4) to prepare adequately for jury voir dire. The habeas court evaluated the petitioner’s ineffective assistance of counsel claim in accordance with the two-pronged test espoused in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The habeas court found that trial counsel adequately informed the petitioner of all pretrial plea bargain offers by the state and that the defendant voluntarily and knowingly rejected them. The habeas court also found that trial counsel requested mental health evaluations of the petitioner, and the court credited trial counsel’s testimony that, at the time of voir dire, he believed that the petitioner’s defense would center on the petitioner’s alcoholism and intoxication on the date of the homicide to negate the specific intent required for murder. In addition, the habeas court found that trial counsel thoroughly questioned potential jurors during voir dire and was well prepared for trial. Upon a review of the trial transcript, the habeas court found that “the representation of the petitioner by [his counsel] was diligent and vigorous” and dismissed the petition.

Having reviewed the record and briefs and considered the oral arguments, we conclude that the petitioner has not made a substantial showing that he has been denied a state or federal right or sustained his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done. See Williams v. Commissioner of Correction, 40 Conn. App. 512, 513, 671 A.2d 411 (1996); Williamson v. Commissioner of Correction, 39 Conn. App. 773, 667 A.2d 562 (1995); Bush v. Commissioner of Correction, 37 Conn. App. 930, 657 A.2d 724 (1995).

The appeal is dismissed.

       These facts are set out in State v. Ortiz, supra, 217 Conn. 648.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. AFSCME, COUNCIL 4, LOCAL 1565
    (AC 16958)
    O’Connell, C. J., and Schaller and Daly, Js.
    Argued February 17
    officially released June 9, 1998

      Jason W. Cohen, with whom, on the brief, was J. William Gagne, Jr., for the appellant (defendant).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

This is an appeal from the trial court’s judgment vacating an arbitration award issued pursuant to a collective bargaining agreement between the state and AFSCME, Local 1565 of Council 4 (union). The union claims that the trial court improperly concluded that (1) the arbitrator’s award was not mutual, final and definite and (2) it did not have authority to remand the case for rehearing because it applied the incorrect time limit to the case. We affirm the judgment of the trial court as to the union’s first claim and reverse the judgment of the trial court as to the union’s second claim.

The following facts are necessary for disposition of this appeal. Michele Lee, a union member, is a correctional officer who was discharged for excessive unauthorized absences while stationed at the Northeastern Community Correctional Center at Storrs. Through the union, she grieved her discharge on the ground that her unauthorized absences from work were justified because they were due to depression caused by sexual harassment on the job.

Following a denial of the grievance at its earlier stages, the union filed for arbitration with the state board of mediation and arbitration, as required by its collective bargaining agreement. The relevant portion of the submission for arbitration was: “Was the termination of Michele Lee for just cause? If not, what shall be the remedy, consistent with the terms of the NP-4 contract?”

The hearing concluded on June 2, 1995, and briefs were filed on July 14, 1995. The arbitrator issued the following award on August 11, 1995: “There was not just cause for the dismissal of the grievant. The grievant shall be reinstated to a position at Niantic [Correctional Center] or another facility agreeable to the grievant and to the union. Jurisdiction shall be retained [for] sixty days to resolve any issues related to the remedy.”

The state filed an application with the trial court to vacate the award on September 1, 1995, which was heard on September 17,1996. On February 13,1997, the court rendered judgment vacating the award because it found that the award failed to fix definitively the rights of the parties. The trial court further held that because the award was not final, definite and mutual, thirty days after the hearing concluded on July 14,1995, as required by General Statutes § 52-416, the award could not be said to be timely on the date that the court rendered judgment. Accordingly, the court concluded that it lacked authority pursuant to General Statutes § 52-418 (b) to remand the case for rehearing. The union timely appealed to this court.

I

The union first contends that the trial court improperly vacated the arbitrator’s award under § 52-418 (a) (4) on the ground that the award was not mutual, final and definite. This presents a question of law that we review de novo. Squeglia v. Squeglia, 234 Conn. 259, 263, 661 A.2d 1007 (1995). “Every reasonable presumption and intendment will be made in favor of the award and of the arbitrator’s acts and proceedings.” Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 585, 440 A.2d 774 (1981).

Section 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . or . . . any judge thereof, shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” Additionally, “an award must be final as to the matters submitted so that the rights and obligations of the parties may be definitively fixed. ” Local 63 Textile Workers Union v. Cheney Bros., 141 Conn. 606, 617, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S. Ct. 449, 99 L. Ed. 748 (1955). “It necessarily follows that an award must conform to the submission. . . . Ordinarily, an award which does not respond to the submission cannot be upheld. . . . It is void to the extent to which it is outside the submission. ” Id., 613.

The trial court held that the arbitrator’s award required all parties to agree on the placement of the grievant, thereby rendering the award indefinite. The union contends, however, that the award orders the state to place the grievant at Niantic Correctional Center (Niantic), but gives the state the election to choose a facility other than Niantic. If the state exercises this election, the union and the grievant must agree on the facility. The union argues that because the state is the only party permitted to select a facility other than Niantic, and because the award is satisfied if the state chooses Niantic, the award does not promote further litigation and is, therefore, definite. We are not persuaded.

The language of the award orders the grievant to be placed at either Niantic or an alternate facility that would be agreeable to all parties. Because the award does not specify an exact location for placement, it is indefinite. If we assume, arguendo, that the union’s interpretation of the award is correct, there remains a possibility that the grievant will be placed at a facility other than Niantic and that she will not agree to such placement. Once again, because placement has yet to be determined, further litigation continues to be a possibility, and, thus, the award cannot be said to fix definitively the rights and obligations of the parties.

This is further emphasized by the fact that the arbitrator herself retained jurisdiction over the case for sixty days “to resolve any issues related to the remedy.” Thus, this portion of the award did not conform to the submission, which required that the arbitrator provide a specific remedy upon a finding that the grievant was terminated without just cause. See id., 613.

Because the remedy remained open to negotiation at the time the award was rendered, and because the award left a specific remedy to the predilection of one of the parties, it was not definite and the trial court properly vacated the award.

II

The union next claims that the trial court improperly concluded that it did not have the authority pursuant to § 52-418 (b) to remand the case to the arbitrator for rehearing. Specifically, the union contends that the timeliness of the award should have been analyzed under General Statutes § 31-98 rather than under § 52-416. The union argues that if the timeliness of the award was properly analyzed pursuant to § 31-98, the trial court would have had the authority to remand the case for rehearing because the time within which the award was to be rendered had not yet expired. We agree.

“The language of [§ 52-418 (b)] clearly invokes the [trial] court’s discretion in such matters. . . . We will not interfere with the discretion of the trial court unless that discretion is clearly abused.” (Citations omitted.) Hartford v. Local 760, 6 Conn. App. 11, 15, 502 A.2d 429 (1986).

Section 31-98 provides exclusively “for the submission of grievances and disputes between an employer and his employees to a board of mediation and arbitration. ... [It has been] held that the [fifteen day] time limitation in [§ 31-98] is directory and not mandatory. . . . Consequently, if [§ 31-98] is applicable, there is no statutory limitation of time the nonobservance of which renders the award voidable.” (Citation omitted.) Danbury Rubber Co. v. Local 402, 145 Conn. 53, 55-56, 138 A.2d 783 (1958). “In the absence of a mandatory time limitation, an award of arbitrators may be made within a reasonable time. . . . What is a reasonable time is a question of fact upon the circumstances of a particular case.” (Citations omitted.) Id., 59; see also AFSCME v. New Britain, 206 Conn. 465, 468, 538 A.2d 1022 (1988); South Windsor v. South Windsor Police Union, 41 Conn. App. 649, 653, 677 A.2d 464 (1996); see West Rock Lodge No. 2120, International Assn. of Machinists & Aerospace Workers v. Geometric Tool Co., 406 F.2d 284, 285 (2d Cir. 1968) (in Connecticut, time period for arbitration awards arising from labor disputes is fifteen day directory period and not thirty day mandatoiy time limitation for general arbitration awards set out in § 52-416).

In the present case, the labor dispute between Lee and her employer was heard by the state board of mediation and arbitration. Accordingly, § 31-98 applies rather than § 52-416 (a), and the fifteen day directory time limitation was triggered upon the conclusion of the hearings on July 14, 1995. The arbitrator was merely required to render an award within a reasonable time. On August 11, 1995, the arbitrator issued her award. On September 1, 1995, the state filed an application to vacate the award, which the trial court granted on February 13,1997. In vacating the award, the trial court improperly applied § 52-416 and held that the award had been timely rendered by the arbitrator. It went on to conclude, however, that “[t]he problem is it was not a final, definite and mutual award on August 11, 1995 and thus now, some fourteen months later, it cannot be timely.”

In Middletown v. Police Local, No. 1361, 187 Conn. 228, 445 A.2d 322 (1982), a Middletown police officer had been discharged from employment after directing ethnic slurs toward the band members at a policemen’s ball. After a panel of the mediation board ordered his reinstatement, the city of Middletown brought an application to vacate the award. The trial court vacated the award and remanded the case to a second panel of arbitrators for rehearing. The city appealed, claiming that the court did not have jurisdiction to order a rehearing and that the time within which to order a rehearing had expired.

Our Supreme Court held that § 31-98 applied and stated that the “only limit is that the award be rendered within a reasonable time. ... In [Middletown] the original award was rendered May 9, 1978 and the judgment vacating it was rendered October 11, 1979. The trial took place over a year after the arbitration award upon the plaintiffs application to vacate. Neither party claimed prejudice because of the delay until this appeal. . . . Under these circumstances, we cannot agree that the reasonable time for rendering an award had expired before the judgment was rendered.” (Citations omitted.) Id., 231-32.

In the present case, the parties were diligent in their respective efforts to request that the arbitrator’s award be vacated and to appeal such an order. Although it took fourteen months before the trial court rendered judgment, such delay was through no fault of the parties, and neither claimed resulting prejudice. Moreover, it cannot be said that the language of § 52-418 (b), when read together with § 31-98, anticipates that an application to vacate be filed, heard, decided and then appealed within a time period shorter than the time that it takes for the case to progress through the judicial process, as long as the parties act diligently and are not prejudiced by the delay.

Under the circumstances of this case, we construe the term “reasonable time” necessarily to include the entire appeal process, and, therefore, we conclude that the time within which an award is required to be rendered has not yet expired. The trial court improperly concluded that it lacked the statutory authority to direct the case for rehearing. We hold that the court did, in fact, have such authority.

The judgment vacating the arbitrator’s award is affirmed and the case is remanded for the trial court to exercise its discretion in determining whether the case should be remanded to the arbitrator for rehearing.

In this opinion the other judges concurred.

       General Statutes § 52-418 (b) provides in relevant part: “If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators. . . .”

       General Statutes § 31-98 provides in relevant part: “The panel, orits single member if sitting in accordance with section 31-93, may, in its discretion and with the consent of the parties, issue an oral decision immediately upon conclusion of the proceedings. If the decision is to be in writing, it shall be signed, within fifteen days, by a majority of the members of the panel or by the single member so sitting, and the decision shall state such details as will clearly show the nature of the decision and the points disposed of by the panel. . .

       General Statutes § 52-416 provides in relevant part: “(a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator . . . shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.”

       Even if the time -within which the award was required to be rendered had expired, the employee would not have been without recourse. In Aetna

        Life & Casualty Co. v. Bulaong, 218 Conn. 51, 64, 588 A.2d 138 (1991), our Supreme Court held that issues not decided by the arbitrators remain to be decided in a second arbitration proceeding. In fact, the Bulaong court stated that “General Statutes § 52-418 (b) governs the circumstances under which the court, upon vacating an award pursuant to § 52-418 (a), may order a rehearing by the same arbitrators.” Id., 64 n.ll. When the time has long since passed, however, “[t]he court is confined ... to vacating the award pursuant to § 52-418 (a), and the plaintiff is left with the option of initiating a second arbitration proceeding.” Id.

       In this case, arehearing does not require the taking of additional evidence. The arbitrator need only enter an award that is final.


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. KENNETH HENRY
    (AC 15876)
    O’Connell, C. J., and Spear and Sullivan, Js.

      Argued March 4
    officially released June 9, 1998

      Richard L. Grant, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

On January 25,1996, the defendant was found guilty, after a jury trial, of criminal attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and carrying a pistol without a permit in violation of General Statutes § 29-35. In this appeal from the judgment of conviction, the defendant claims that (1) the trial court improperly permitted the state to ask questions during voir dire that infringed on his constitutional right to a fair trial and (2) the evidence was insufficient to support his conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of April 8,1994, the victim, Albert Eaddy, took a bus to the “Hill” area of New Haven to visit with his children’s aunt, Karen Yopp. Eaddy was with another male whom he met through a friend named Dominique. When he arrived at Yopp’s apartment, Eaddy called Dominique to set up a meeting with Dominique and his friend. The meeting was to take place at a nearby Dairy Queen. Subsequently, Eaddy and his friend left Yopp’s apartment and walked to Dairy Queen. Later, Eaddy left Dairy Queen to return to Yopp’s apartment. On the way back to the apartment, he saw two friends, Jonathan and Tatair, standing at the comer of Downing and English Streets. As Eaddy began walking toward his friends, the defendant approached Eaddy and accused him of robbing him at gunpoint two or three months earlier. Eaddy explained to the defendant that that was impossible because Eaddy had been in jail at that time. The defendant pulled out a gun and a scuffle ensued. During the scuffle, Eaddy was shot three times in the leg before the gun jammed. The defendant then held the gun to Eaddy’s head. When the defendant attempted to fire the gun, it again jammed and would not fire. Eaddy then chased the defendant, who jumped into his car and drove away.

Eaddy remained in the area and the defendant later returned with his cousin and his brother Ernest Henry. The defendant and Eaddy then challenged each other to a fight. The defendant and the others present pulled out guns. Ernest Henry grabbed the defendant’s gun from him, and Eaddy persuaded the others to put their guns away. The defendant, his cousin and Ernest Henry then left the area. Jonathan and Tatair suggested to Eaddy that he have his leg treated at a hospital because it was beginning to swell. Eaddy refused and instead drank beer, smoked marijuana and snorted cocaine with Jonathan, Tatair and other friends.

In the early morning of April 9, 1994, Eaddy went to a hospital to have his leg treated. The police spoke to Eaddy at the hospital, but he did not identify the defendant as his assailant. After he received treatment for his wounds, Eaddy signed himself out of the hospital against medical advice. He then returned to the Hill area of New Haven where he remained for five or six days looking for the defendant, hoping to shoot him. Eaddy never located the defendant. Also, during that time, Eaddy hid from the police, whom he knew wanted a statement from him about the shooting. Finally, on May 23, 1994, Eaddy’s mother persuaded him to give the police a statement about the shooting. Eaddy gave the police a taped statement, which was transcribed and signed by Eaddy. Eaddy also selected the defendant’s photograph from a photographic array and positively identified him as the shooter.

At the time of trial, Eaddy was thirty-four years old and had an extensive criminal record that included two 1981 convictions for robbery in the first degree, a 1982 conviction for assault, a 1984 conviction for assault in the first degree, a 1987 conviction for robbery in the second degree, a 1990 conviction for assault in the second degree and a 1992 conviction for larceny in the second degree. Eaddy also had state criminal charges pending against him for burglary in the first degree, robbery in the first degree, attempted assault in the first degree and risk of injury to a child. In addition, at the time of trial, Eaddy was incarcerated for violating his probation on one of the prior convictions. Just prior to the trial in this case, Eaddy had pleaded guilty to a federal weapons charge.

I

The defendant’s first claim is that the trial court allowed the state to ask improper questions of the venirepersons during voir dire, thereby infringing on his right to a fair trial by an impartial jury under the sixth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8. Specifically, the defendant claims that the state’s questions were improperly designed to obtain the prospective jurors’ views on particular facts relating to Eaddy’s criminal background, and to “immunize” jurors against disbelieving Eaddy’s testimony despite this background. We disagree.

“The extent to which parties should be allowed to go in examining jurors as to their qualifications is a matter largely resting in the sound discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where harmful prejudice appeal’s to have been caused thereby.” (Internal quotation marks omitted.) State v. Sheets, 40 Conn. App. 328, 331, 671 A.2d 366, cert. denied, 237 Conn. 903, 674 A.2d 1334 (1996).

The first venireperson questioned was Richard J. Czarkowski. The state informed him of Eaddy’s criminal record, that Eaddy was presently incarcerated, and that he would testily at the trial. The prosecutor then asked: “Do you feel that because someone [is] in jail or because someone [has] been arrested or convicted, that, plain and simply, they can’t be believed?” He also asked Czarkowski if he understood the concept that “[w]hen somebody steps into that box, in the witness box, everybody starts off even-Steven. Nobody gets an advantage because, like the judge said, because he or she may be a police officer, nobody gets a disadvantage because he or she might be unemployed or somebody that isn’t a saint.”

The prosecutor next asked Czarkowski if he believed that a person previously convicted of a crime “forfeits” his right to come to court as the victim of a crime. The prosecutor asked Czarkowski if Eaddy’s criminal background would cause him automatically to disbelieve Eaddy’s trial testimony, or if, despite that background, he could listen to the testimony “just like you [would] do anybody else.” The prosecutor also asked the following question: “[W]hen you see Mr. Eaddy, you’re going to find out things about him and you’re not going to like it . . . but the fact of the matter is you have to think now whether or not if you heard bad things about him you would automatically say, forget it, I can’t believe him, or you’re still going to listen to what he says just like you do anybody else . . . and . . . even if Mr. Eaddy is not a saint, would you be able to come out here and say ‘guilty?’ ”

Ultimately, the state excused Czarkowski. Before the next venireperson was questioned, there was argument by each counsel concerning the questions being asked by his opponent. Defense counsel objected to the foregoing questions as misleading because they wrongly implied that jurors are not permitted to consider prior felony convictions in judging a witness’ credibility. The state argued that defense counsel should be prohibited from stating that the defendant had been convicted of a crime at the age of sixteen because this wrongly implied that the defendant had no other criminal record. The trial court ruled that “[w]e are not going to specifically identify any witness as having a criminal record. You can raise the possibility that one or more witnesses may come in and you may find out in the course of their testimony they have some criminal problem in their background, however you want to phrase it, but we don’t relate it to anyone.” Both parties assented to this ruling.

The second and third venirepersons questioned were Robert S. O’Neil and Ann Fischer. The prosecutor asked O’Neil the following question: “[Rjegardless of a person’s lifestyle or the run-ins the individual witnesses have had with the law, would you hear each witness testify, consider what they have to say, consider their background as the judge says it’s relevant, and then decide this case, not on whether you approve of lifestyles, not on whether or not you like certain witnesses, but on whether or not a crime was committed?” O’Neil responded: “I don’t care what the people are like. I mean, whatever I hear by him, that’s it.” Defense counsel excused O’Neil without raising any objections to the questions asked by the prosecutor.

The prosecutor asked the following questions of Fischer: “Everybody steps into the box, the witness box, on equal footing. You’ll listen to what the witness has to say, you’ll listen to the relevant factors and decide based on what you’ve heard what you think happened, what you think didn’t happen, what you found believable, what you didn’t, but you can’t make those decisions, would you agree with me, based on a person’s lifestyle, based on the type of uniform they wear, whether it’s a badge or an inmate number? Do you agree with that?” Fischer responded: “Definitely.” The prosecutor continued: “Along those same lines . . . [d]o you think that a person who has himself violated the law in the past, do you think that if that person is the victim of a crime, that since he’s done bad things in the past that he really forfeits his right to come to court and seek justice? Do you see it that way at all?” Fischer replied: “No.” The state and the defendant accepted Fischer as a juror.

During the remaining voir dire, the prosecutor and defense counsel informed the venirepersons that some of the witnesses who would be called to testify during the trial may have criminal records. The prosecutor continued to ask the remaining venirepersons questions regarding (1) whether they would automatically disregard the testimony of a witness with a prior criminal record, (2) whether they felt that a convicted felon “forfeited” his right to come to court as a crime victim, and (3) whether they accepted the proposition that everyone, regardless of profession or background, “steps into the witness box even.”

The statutory right to a voir dire examination of each prospective juror in a criminal action is provided in General Statutes § 54-82f. In 1972, this right was established as a constitutional one by including in article fourth of the amendments to the Connecticut constitution the provision that “ [t]he right to question each juror individually by counsel shall be inviolate.” (Internal quotation marks omitted.) State v. Hernandez, 204 Conn. 377, 381, 528 A.2d 794 (1987); State v. Dahlgren, 200 Conn. 586, 600, 512 A.2d 906 (1986). “[T]he twofold purpose of voir dire [is] to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges.” (Internal quotation marks omitted.) State v. Hernandez, supra, 381. “The court has a duty to analyze the examination of venire members and to act to prevent abuses in the voir dire process.” State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987).

Our Supreme Court has distinguished between questions as to the qualifications of jurors and hypothetical questions. State v. Sheets, supra, 40 Conn. App. 331. “ ‘[H]ypothetical questions intended to elicit from a juryman in advance what his decision will be under a certain state of the evidence or upon a certain state of facts should not be permitted by the trial court. A party has no right to assume the facts of a case about to go on trial, and ascertain the juror’s opinion in advance.’ ” Id. On the other hand, “ ‘[t]he court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice.’ ” State v. Dolphin, supra, 203 Conn. 512. The record of the voir dire in this matter shows that that is exactly what the trial court did in this matter.

The questions asked of the venirepersons were designed to draw out any prejudices they might have against a witness who had a felony criminal record, such as Eaddy, the defendant and other witnesses, and to determine if they would listen to the testimony of Eaddy and then make decisions on his credibility. These questions did not elicit from the venirepersons what their decisions in the case would be on the basis of a certain state of the evidence at trial. See State v. Sheets, supra, 40 Conn. App. 331. The questions were not framed so as to determine from them whether the venirepersons would believe Eaddy’s testimony and thus convict the defendant. The defendant’s assertion that certain of the questions asked of the venirepersons “inoculated or immunized” them against disbelieving Eaddy is equally without merit. Not one question gave Eaddy an advantage over any other witness relative to credibility. Accordingly, we find that the trial court did not abuse its discretion in permitting the contested voir dire questions.

II

The defendant’s second claim is that there was insufficient evidence to support his conviction on all of the charges because the jury could not rationally have reconciled the inconsistencies between Eaddy’s trial testimony and his prior statements to the police. At the close of the state’s case, the defendant moved for a judgment of acquittal, which the court denied. The defendant claimed that the state’s entire case was based on Eaddy’s testimony and that the jury could not reasonably consider Eaddy to be a truthful witness given the multiple and substantive inconsistencies in his testimony.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) Id., 490. “Furthermore, [t]his court cannot substitute its own judgment for that of the jury if there is sufficient, evidence to support the jury’s verdict.” (Internal quotation marks omitted.) Id.

It was within the province of the jury to believe or to disbelieve Eaddy’s testimony. The jury obviously believed the parts of Eaddy’s testimony necessary to convict the defendant of the crimes of attempted murder, assault in the second degree and carrying a pistol without a permit. A reasonable view of the evidence would support the jury’s verdict on all three offenses. “If there is any reasonable way that the jury might have reconciled the conflicting testimony before them, we may not disturb their verdict.” (Internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 494, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). There was sufficient evidence, if believed by the jury, to support the convictions.

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, the degree of assault was not disclosed.

       Seven of seventeen venirepersons were asked this question.

       The defendant raises fifteen inconsistencies in Eaddy’s testimony, as enumerated in the state’s brief:
      “(1) Eaddy testified on direct examination that he had a ninth grade education, whereas he told [Detective T. W.] O’Donnell that he had a fifth grade education;
      “(2) Eaddy testified on direct examination that Jonathan and Tatair had called him over to the comer [of] Downing and English Streets, whereas he told O’Donnell that it was the defendant who had called him over to that location;
      “(3) Eaddy testified on direct examination that the defendant did not ask him what his street name was, nor did Eaddy tell him, whereas Eaddy told O’Donnell that the defendant had asked him his street name and that Eaddy had responded, ‘Cleeko’;
      “(4) Eaddy testified on direct examination that the defendant had pulled the gun from his belt, whereas he told O’Donnell that the defendant had pulled the gun from his right pocket;
      “(5) Eaddy testified on direct examination that he did not observe the caliber of the gun, whereas he told O’Donnell that it was probably a .25 or .32 caliber pistol;
      “(6) Eaddy testified on direct examination that he did not encounter the defendant again after the post-shooting confrontation involving the defendant, his brother, and their cousin, whereas he told O’Donnell that he had seen the defendant three or four times thereafter;
      “(7) Eaddy testified on direct examination that, after the shooting, the defendant returned to the scene with two other persons (i.e., his brother and cousin), whereas he told O’Donnell that the defendant returned with three other persons;
      “(8) Eaddy testified on direct examination that he had never seen the defendant prior to the shooting incident, whereas he testified on cross-examination that he had recognized Ernest Kevin Henry as the defendant’s brother;
      “(9) Eaddy testified on direct examination that Jonathan and Tatair had pulled out handguns, whereas he told O’Donnell that they and other people on the scene had pulled out shotguns;
      “(10) Eaddy testified on direct examination that the shooting incident occurred at 10:30 p.m. on April 8, 1994, whereas he told O’Donnell that it had occurred at 12:15 a.m. on April 9, 1994;
      “(11) Eaddy testified on cross-examination that he did not go to the hospital until at least one hour after the shooting, whereas he told O’Donnell that he went to the hospital the next day;
      “(12) Eaddy testified on direct and cross -examination that the post-shooting confrontation occurred between 10:30 p.m. of April 8 and 12:30 a.m. of April 9, whereas he told O’Donnell that it had occurred the next day;
      “(13) Eaddy testified on direct examination that he remained in the ‘Hill’ area of New Haven for approximately six days after the shooting, whereas he told O’Donnell that he did not return to the area of the shooting;
      “(14) Eaddy told O’Donnell that the defendant wielded the gun in his right hand, whereas at trial, on cross-examination, he denied making that allegation; and
      “(15) Eaddy told O’Donnell that the defendant, upon placing the gun to his head, stated, ‘know it’s you, punk motherfucker,’ whereas at trial, on direct and cross-examination, he denied making that allegation.”


text:
    EUGENE RUSSELL v. COMMISSIONER OF CORRECTION
    (AC 16711)
    Spear, Hennessy and Sullivan, Js.
    Argued March 19
    officially released June 9, 1998

      James B. Streeto, special public defender, for the appellant (petitioner).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The dispositive issue in this appeal from the habeas court’s dismissal of the petitioner’s writ of habeas corpus is whether the habeas court abused its discretion in denying the petitioner’s request for certification to appeal.

The habeas court dismissed the petitioner’s habeas corpus writ after a hearing on his claims of ineffective assistance of counsel. The petitioner alleged that the habeas court abused its discretion in denying certification to appeal because, during the hearing, the habeas court improperly (1) barred from evidence statements made to the petitioner and other witnesses by his counsel, who had since died, that the petitioner claimed were admissible under the residual exception to the hearsay rule, (2) determined that counsel’s cross-examination of the medical witnesses was effective assistance of counsel, (3) determined that counsel was not ineffective in examining physician Deborah Bovilsky, (4) determined that counsel did not breach his loyalty to the petitioner, and (5) determined that counsel was not ineffective in failing to object to certain hearsay statements offered in support of assault charges.

In dismissing the petition for a writ of habeas corpus on the ground of ineffective assistance of counsel, the habeas court followed the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under this test, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both deficient performance and actual prejudice. The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

The habeas court did not improperly prohibit evidence of statements of deceased counsel under the residual exception to the hearsay rule. “As with other evidentiary matters, the trial court has broad discretion in ruling on the applicability of the residual exception. . . . We will reverse the trial court’s refusal to admit evidence under the residual exception only upon a showing of a clear abuse of discretion.” (Citations omitted.) State v. Rodriguez, 39 Conn. App. 579, 604, 665 A.2d 1357 (1995), rev’d on other grounds, 239 Conn. 235, 684 A.2d 1165 (1996). The petitioner’s claim as to counsel’s examination of Bovilsky has no merit. A review of the briefs and transcripts shows that this examination was adequate. The habeas court stated in its memorandum of decision that it disagreed with the petitioner’s claim that his counsel failed to cross-examine the state’s witnesses adequately. In addition, the court found that, while certain statements made by counsel about the petitioner were improper, they did not prejudice him, nor was there any evidence that the jury was aware of them. The habeas court also found that counsel's failure to object to testimony of questionable admissibility did not render his performance deficient.

After a thorough review of the record and briefs in this habeas action, we conclude that the petitioner 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 is a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.


text:
    JOSEPH LETIZIA v. DANIEL COCOZZA ET AL.
    (AC 17361)
    O’Connell, C. J., and Ilennessy and Spallone, Js.
    Argued March 20
    officially released June 9, 1998

      John A. Brennan, for the appellant (plaintiff).

      Richard J. Kilcullen, for the appellees (defendants).
   Opinion

PER CURIAM.

This is an action on a promissory note in which the plaintiff appeals from a judgment in favor of the defendants. “It is the responsibility of the appellant to provide an adequate record for review . . . .” Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5. 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 § 4059, now Practice Book (1998 Rev.) § 64-1. Accordingly, we conclude that the plaintiffs claim is not reviewable. See Dime Savings Bank of New York, FSB v. Saucier, 48 Conn. App. 709, 709 A.2d 610 (1998); Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 710 A.2d 190 (1998).

The judgment is affirmed.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. RICHARD E. PROVOST
    (AC 15651)
    Spear, Dupont and Daly, Js.
    Argued January 12
    officially released June 9, 1998

      Sheila A. Huddleston, with whom were Charles L. Howard and, on the brief, James W. Bergenn and Tracey M. Lane, certified legal intern, for the appellant (defendant).

      Judith Rossi, senior assistant state’s attorney, with whom were Kevin Murphy, assistant state’s attorney, and, on the brief, James Thomas, state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Richard E. Provost, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. The defendant claims that the trial court improperly: (1) precluded the cross-examination of a prosecution witness regarding her credibility in violation of the defendant’s fundamental right to confront witnesses pursuant to both the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut; and (2) permitted the prosecution to engage in misconduct during closing argument in violation of the defendant’s due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. During 1990 through 1991, the victim, M, a minor female, lived with her mother, J. In the winter of 1990, shortly before M’s sixth birthday, J began dating the defendant, who was known to M as Rick. J often allowed the defendant to take M with him while he did errands, played racquetball, rode his motorcycle, and, on several occasions, the defendant was alone with M at his residence. J ended her relationship with the defendant in November, 1991.

In January, 1994, M began exhibiting suicidal tendencies and a violent temper, often running away from home. J took M to the Wheeler Clinic in Plainville for a psychiatric evaluation. During the visit, M became severely agitated, had to be restrained, and was subsequently admitted to Mount Sinai Hospital in Hartford. Upon M’s discharge from the hospital three days later, J and her sister, Darline, were informed by the hospital staff that M had a yeast infection and blood in her urine.

Following her discharge from the hospital, M spent a night at Darline’s home. After bathing M, Darline, concerned about M’s infection, began to talk with M about “good touch and bad touch” in an effort to learn whether anyone had touched M inappropriately. M told Darline that “Rick, mom’s boyfriend,” had hurt her inside, kissed her on the mouth, and “[gone] to the bathroom” on her. Darline immediately informed J about M’s disclosures, and then reported the allegations to the department of children and families on February 6, 1994.

After a police investigation, the defendant was arrested and subsequently found guilty of sexual assault in the first degree and risk of injury to a child. This appeal followed.

I

The defendant first claims that the trial court improperly restricted his cross-examination of Darline, to whom M had first revealed the sexual abuse. Specifically, the defendant contends that the trial court violated his sixth amendment right to confront his accusers by precluding the cross-examination of Darline with respect to her concern about whether any member of her family might have perpetrated the sexual abuse.

We first address the defendant’s contention that this claim is of constitutional magnitude. At trial, the defendant characterized the nature and purpose of his cross-examination of Darline as relating to “credibility with what [Darline] can remember as to what she testified [to] on direct.” On appeal, however, the defendant for the first time characterizes this same cross-examination as an attempt to expose Darline’s motive and interest in questioning M. This new claim is solely of an evidentiary nature. “ ‘Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.’ ” State v. Laws, 36 Conn. App. 401, 411, 651 A.2d 273 (1994), cert. denied, 232 Conn. 921, 656 A.2d 671 (1995), quoting State v. Golding, 213 Conn. 233, 240, 567 A. 2d 823 (1989). Because we do not review evidentiary claims that were not properly preserved; Practice Book (1998 Rev.) § 60-5 (formerly § 4061); Dept. of Public Safety v. Freedom of Information Commission, 242 Conn. 79, 91, 698 A.2d 803 (1997); we will address only the issue of whether the cross-examination of Darline was improperly restricted with respect to the defendant’s sixth amendment right, that is, the questioning of her credibility on direct examination.

“ ‘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 ....’” State v. Gould, 241 Conn. 1, 15-16, 695 A.2d 1022 (1997). “ ‘The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . State v. Barnes, [232 Conn. 740, 746, 657 A.2d 611 (1995)]. . . . Moreover, it is well settled that questions of relevance are committed to the sound discretion of the trial court.’ ” (Citation omitted.) State v. Gould, supra, 16.

The defendant maintains that his questioning of Darline regarding M’s infection was necessary cross-examination because, on direct examination, Darline had raised that very issue with respect to her concern that a family member may have been involved. We disagree. At trial, Darline specifically challenged this interpretation of her testimony. Our review of the record reveals that the trial court sustained numerous objections from the prosecution on relevancy grounds because the defendant failed both to explain how the questions were relevant to Darline’s credibility and to lay the requisite evidentiary foundation that would have allowed the questioning of Darline to evolve into an issue of third party culpability.

It is well settled that “[e]vidence of third party culpability must directly connect the third party to the crime. It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . . Unless the direct connection exists, it is within the discretion of the trial court to refuse to admit such evidence. . . . State v. Colton, 227 Conn. 231, 258, 630 A.2d 577 (1993).” (Internal quotation marks omitted.) State v. Guess, 44 Conn. App. 790, 811, 692 A.2d 849 (1997), aff'd, 244 Conn. 761, 715 A.2d 643 (1998).

Here, despite the court’s request for an offer of proof, the defendant offered no evidence to connect a third party directly to M’s alleged sexual abuse. Moreover, there was no evidence to suggest that M was in any way confused or uncertain about her statement that the alleged perpetrator was the defendant. Not only did the defendant misinterpret Darline’s testimony when she stated that she simply asked M who had touched her, but the attempted questioning of Darline with respect to other family members was clearly an attempt to inculpate a third party, for which no direct evidence was proffered. Accordingly, we conclude that the court properly exercised its discretion in precluding the defendant from questioning Darline about other family members on cross-examination. This proper exercise of discretion did not violate the defendant’s constitutional right to confrontation.

II

The defendant next claims that the trial court improperly permitted the prosecution to engage in misconduct during its closing argument, depriving the defendant of his due process right to a fair trial in violation of the sixth and fourteenth amendments to both the United States constitution and article first, § 8, of the constitution of Connecticut. Specifically, the defendant contends that during closing argument the prosecutor (1) made “numerous improper, inaccurate, and highly prejudicial remarks” while repeatedly asking the jury to draw inferences that he knew to be false and (2) improperly shifted the burden of proof to the defendant. The defendant concedes that this misconduct claim was unpreserved, and he now seeks review of this claim under either State v. Golding, supra, 213 Conn. 233, or the plain error doctrine pursuant to Practice Book (1998 Rev.) § 60-5 (formerly § 4061). Although the first two prongs of Golding are satisfied here, we find no merit to the claim pursuant to the third prong of Golding. Finally, the conduct that the defendant challenges in this case does not rise to the level of plain error.

A

We have stated that “[pjrosecutorial misconduct can occur in the course of closing argument. ... In order to deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citation omitted; internal quotation marks omitted.) State v. Garrett, 42 Conn. App. 507, 515, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 397, 398 (1996).

Here, the defendant challenges the prosecutor’s conduct solely as it related to closing argument. In determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). In so doing, “we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” State v. Williams, 41 Conn. App. 180, 190, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).

We first consider the defendant’s claim that the prosecutor’s closing argument was so misleading to the jury that it amounted to an unconstitutional denial of due process. Specifically, the defendant contends that “[i]t was unfair, as a threshold matter, to argue that the defendant’s guilt was established by the absence of evidence that the prosecutor had [succeeded] in excluding on the ground that it was irrelevant.” While the defendant argues that several statements that were made by the prosecutor during closing argument were improper, he is referring in this claim to the fact that the prosecutor successfully argued to prevent the admission of evidence regarding both Darline’s and M’s motives to lie. The problem with the defendant’s claim is that excluded evidence does not exist at all, for purposes of closing arguments. It cannot be blatantly egregious, therefore, to address such an absence of evidence, notwithstanding the manner by which it was excluded. Further, it is well established that “in addressing the jury [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. ” (Internal quotation marks omitted.) State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990).

Because the challenged conduct occurred solely during the prosecutor’s closing argument, by definition it did not evince a pattern of conduct that was repeated throughout the trial. Further, for the reasons that we have discussed, the prosecutor’s remarks during closing argument did not rise to the level of blatantly egregious misconduct that would implicate the defendant’s constitutional right to due process. Accordingly, we conclude that this unpreserved claim is without merit.

B

Finally, the defendant argues that the prosecution improperly shifted the burden of proof to him by implying, in closing argument, that the defendant had the burden of proving that the child or her aunt had deliberately fabricated the charges against him. We disagree.

Our review of the record reveals that the state’s attorney implied no such thing, and, in fact, underscored the state’s burden of proof. Moreover, the trial court instructed the jury regarding the presumption of innocence, the importance of considering all of the evidence in reaching a decision, and, most important, the state’s burden to prove each and every element of the crime charged beyond a reasonable doubt. Because “we presume, absent a fair indication to the contrary, that the jury followed the instruction of the court as to the law”; State v. Lasky, 43 Conn. App. 619, 629, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997); we conclude that the burden of proof properly remained on the state to prove each and every element of the crimes charged beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb of such child is endangered, or its health is likely to be injured, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant did not provide a separate analysis of his state constitutional claims, as is required by State v. Geisler, 25 Conn. App. 282, 283 n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992). We, therefore, review only his federal constitutional claims.

       The following colloquy between the court and defense counsel is excerpted from the trial transcript:
      “The Court: I want to know what your claim is.
      “[Defense Counsel]: Oh, my claim simply is: [Darline] was concerned about the members of her family who could have caused this particular yeast infection. She brought it up on direct. That means I certainly can probe her particular concern about her family. And [the defendant] is certainly not her family.
      “The Court: Are you claiming anything other than third party culpability, so that I’m clear and the record is clear, counsel?
      “[Defense Counsel]: No, I’m claiming it for credibility with regard to what she can remember as to what she testified [to] on direct.”

       Review of an unpreserved claim under State v. Golding, supra, 213 Conn. 233, applies only when the claim is of a constitutional nature. Here, we have determined that the issue is purely an evidentiary question.

       The following trial testimony is excerpted from the transcript of the cross-examination of Darline:
      “Q. And you asked her if somebody had sexually molested her?
      “A. I didn’t ask her that directly, no.
      “Q. Well, you said you wanted to know whether it was somebody in your family. That’s what you told us on direct.
      “[Assistant State’s Attorney]: I object. That was not—
      “The Court: Excuse me. I think, again, the witness can indicate—

        “[Assistant State’s Attorney]: AU right.
      “The Court:—if she disagrees. And I think the witness is indicating that you disagree. Is that right, [Darline]?
      “[Darline]: Yes.
      “The Court: Okay.
      “Q. So if I wrote down ‘if it was somebody in the family’ that you testified to, then I’d be wrong.
      “A. I did not testify that it was somebody in the family. I testified that I was afraid who it might be. And if it was somebody in the family, I wanted to know to protect her.”

       The following statement was made by the court to defense counsel during the cross-examination of Darline: “I’ll let you have your say. But let me tell you what my concern is. We’re not going to get into third party culpability unless you can show me something more directly than the fact that there may be other people in the house here.”

       See footnote 3.

       Under State v. Golding, supra, 213 Conn. 239-40, “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 of these conditions, the defendant’s claim will fail.”

       The defendant here merely asserts plain error and does not brief any plain error issues for our review. Further, plain error review “ ‘is reserved for those 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.’ ” State v. Austin, 244 Conn. 226, 241, 710 A.2d 732 (1998), quoting State v. Ortiz, 217 Conn. 648, 659-60, 588 A.2d 127 (1991). This is not such a case.

       In his further attempt to advance what we interpret as a third party culpability theory, the defendant also contends that the prosecutor’s conduct during closing argument amounted to misconduct because the prosecutor knew that M had recently accused a cousin of sexually assaulting her. We note, however, that the defendant neither offered any evidence with respect to that fact, nor laid the requisite foundation for the admission of evidence to that effect. Accordingly, the prosecutor’s mere awareness of that allegation would not preclude his reminding the jury that no evidence had been admitted to suggest that anyone other than the defendant had committed the sexual abuse.

       The defendant also argues that it amounted to misconduct for the prosecutor to argue that, if M had accused a family member, namely, Darline’s son, Darline simply would not have reported the abuse. The defendant opened the door to this issue by testifying that Darline’s son had had intercourse with M when she was four years old. Because “counsel may comment upon facts properly in evidence and reasonable inferences drawn therefrom”; State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977); it did not amount to misconduct for the prosecutor to invite the jury to infer that the abuse would not as likely have been reported if M had accused a family member.

       The following is excerpted from the transcript of the prosecution’s closing argument: “The Judge will tell you about reasonable doubt. You look at the facts that are proved and you give the defendant the benefit of the doubt. And you say there’s—if there are any facts that have been proved, which are consistent with the defendant’s innocence, then you must find him not guilty.”