author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. ANTHONY W. ROGERS
    (AC 31421)
    Robinson, Bear and Borden, Js.
    Argued May 20
    officially released September 21, 2010

      John R. Williams, for the appellant (defendant).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, James M. Bemardi, supervisory assistant state’s attorney, and Joseph C. Valdes, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Anthony W. Rogers, appeals from the judgments of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, conspiracy to commit minder in violation of General Statutes §§ 53a-48 and 53a-54a, attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (5), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court abused its discretion by (1) granting the state’s motion for joinder, (2) denying his motions to sever and (3) admitting evidence of uncharged misconduct. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In December, 2004, the defendant, a drug dealer, asked his girlfriend, Latoya Boyd, to purchase a six pistol gun case for him because he needed a place to store the guns he needed for protection. Boyd bought the gun case and gave it to the defendant with a note stating, “Merry X-mas baby.” The defendant put his guns in the case, created combinations for the locks and gave the combinations to Boyd. A .25 caliber Beretta and a nine millimeter Glock handgun were in the defendant’s gun case, among others.

At approximately 10 p.m. on January 12, 2005, the defendant entered a bodega at 42 Woodward Avenue in Norwalk. Alicea Castro, who owns the bodega with her husband, D’anicio Castro, and Abraham Vargas, a customer, were in the bodega when the defendant entered and began to argue with Vargas. Vargas was so intoxicated that he had to support himself on a newspaper stand. Castro told the defendant to leave. The defendant left but returned immediately, pointed a .25 caliber handgun at Vargas and fired it. The bullet did not hit Vargas, and the defendant fled. Alicea Castro called the police and identified the defendant from a photographic array as the person who shot at Vargas.

As he was sweeping the floor in the bodega the next morning, Francisco Valez found a spent shell casing, which he gave to the Castros. D’anicio Castro gave the shell casing to the Norwalk police, which, in turn, sent it to the department of public safety’s scientific services division for forensic examination. On that same day the defendant told Boyd and his friend, Joshua Huckabee, that he shot off Vargas’ hat because Vargas came at him with a knife. Alicea Castro, however, never saw Vargas with a knife.

The Norwalk police obtained a warrant to search the apartment that the defendant shared with Boyd, their motor vehicle and the home of the defendant’s parents. Only Boyd was in the apartment when the police executed the warrant on February 18, 2005. In the apartment, the police found marijuana, cocaine and an inordinate number of small plastic bags, the type typically used by drug dealers to package drugs for sale, and more than $3000. The police found the defendant in his motor vehicle and seized a firearm he had concealed on his person. In the defendant’s room in his parents’ home, the police found $10,415 and marijuana. The defendant and Boyd were arrested and charged with narcotics and drug violations. They posted bond and were released.

On April 9, 2005, just before 11 p.m., the defendant was near the bodega when he saw Jaime Cubillos leave the bodega. Cubillos was a Hispanic man who resembled Vargas, and, in the dark, the defendant mistook him for Vargas. The defendant followed Cubillos to Larsen Street where he shot Cubillos in the head, killing him instantly. The defendant fled the scene and had his mother drive him to his aunt’s house in Bridgeport. When Boyd picked up the defendant at his aunt’s house, he told Boyd that he had shot “the Spanish guy” from the bodega on Larsen Street. The next day the defendant also told Huckabee that he had shot “the Mexican guy” on Larsen Street because he thought the man was Vargas.

Kevin Brown, who lived on Larsen Street, left his house shortly after 11 p.m. on April 9, 2005, and saw Cubillos’ body lying in the street in a pool of blood. Brown alerted the Norwalk police, who arrived along with medical personnel who pronounced Cubillos dead. The police found a single spent shell casing twelve to fifteen feet from Cubillos’ body. During the autopsy of Cubillos, associate medical examiner Malka B. Shah, a pathologist, removed fragments of the bullet and shell casing from Cubillos’ skull and brain and gave them to a Norwalk police detective. The fragments were sent to the department of public safety for testing.

Alicea Castro and D’anicio Castro raised money to return Cubillos’ body to his native country by putting photographs of Cubillos on collection cans they placed in their bodega. When the defendant saw the photograph of Cubillos, he told Boyd that he had shot the “wrong guy” because Cubillos was not the name of the man identified in the police report that the defendant had received in connection with the Vargas incident. The defendant stated, “fuck it, anyway.” The defendant also told Huckabee that he had killed the “wrong guy.”

On May 27, 2005, the defendant and Boyd appeared in court on the charges related to their February 18,2005 drug arrests. When assistant state’s attorney Michael A. DeJoseph called the case, an altercation occurred between him and the defendant. The court found the defendant in contempt and sentenced him to thirty days in jail. Thereafter, the defendant instructed Boyd to give his gun case to Huckabee. In addition to the gun case, Boyd gave Huckabee a handgun and a long rifle, which Huckabee put under his bed in the attic of his house.

The defendant served his thirty day contempt sentence in the Bridgeport correctional facility, where he shared a cell with Barry Bersek. The defendant was irate about the incident involving DeJoseph. He told Bersek that he was going to kill DeJoseph and that he knew DeJoseph’s jogging routes. Given the defendant’s willingness to commit murder, Bersek, an admitted con man, saw the defendant as his “get out of jail ticket.” To that end, Bersek fabricated a plan under which the defendant would agree to commit a crime. Before the crime was committed, however, Bersek intended to report the planned crime to the police in return for a possible reduction in the amount of time he had to serve in jail.

In carrying out his scheme, Bersek first gained the defendant’s trust by telling him about the crimes he himself had committed. Bersek told the defendant that he was a compulsive gambler who stole personalty and then sold it to Mafia “wise guys . . . .” The defendant let Bersek know that he was not making enough money selling drugs and was looking for a way to make more money. The defendant also told Bersek that he had five or six guns. In response, Bersek informed the defendant that he knew members of the Mafia who were looking for a hit man and suggested that the defendant become a Mafia hit man. The defendant told Bersek that he had killed people in the past. Bersek continued to con the defendant by telling him that Mafia rivals were taking over different gambling territories and needed people killed right away, and that the defendant could make $75,000 if he committed the murders. The defendant was unaware that the gambling ring and Mafia rivals were fictitious. The defendant, believing that he would be released from jail in thirty days, agreed to meet Bersek with the guns in Grand Central Station in New York City. The defendant gave Bersek his mother’s telephone number so that they could contact each other when the defendant was released from jail. Bersek intended to inform the police of the plan and to have the defendant arrested at Grand Central Station.

Bersek was released from jail before the defendant, and he informed Norwalk police Sergeant Arthur Weisgerber of the defendant’s plan to murder the fictitious Mafia rivals. Before he was released from jail, however, the defendant was taken into custody by federal authorities on gun possession charges arising out of the February 18, 2005 search. Bersek therefore revised the plan he made with the defendant from having the defendant commit murder to supplying the guns to be used by others to commit murder. After enlisting the help of the Norwalk police, Bersek communicated with the defendant’s mother and eventually with Boyd.

When he heard of the revised plan, the defendant wanted his guns to be used to commit the Mafia murders. The defendant agreed to sell his guns because Bersek told him that he would be paid well for them. The defendant told Boyd that he wanted to be paid at least $25,000 for the sale of the first gun. In preparation for the sale, the defendant instructed Boyd not to touch the gun to avoid leaving any fingerprints on it, get the money from Bersek up front, use a different telephone each time she spoke to Bersek, make Bersek open his shirt when she met him to ensure that he was not wearing a recording device, take the bullets out of the gun before handing it to Bersek and take the defendant’s sister with her for protection.

To sell the first gun, Boyd told Huckabee that she needed one of the guns he was holding for the defendant. Huckabee gave her a nine millimeter handgun. Boyd put the gun in a bag and met Bersek at a parking lot in Norwalk on October 7,2005. Bersek was accompanied by a man he introduced as “Sonny,” one of the Mafia “guys” from New York who wanted to buy a gun to commit a murder. “Sonny,” however, was special agent James Sullivan of the federal Bureau of Alcohol, Tobacco and Firearms. “Sonny” gave Boyd $200 for the gun, explaining that that sum was a good faith showing that Boyd and the defendant would get the rest of the money after the murders were committed. “Sonny” wanted to buy another gun, but Boyd told him that she would have to ask the defendant. When she spoke to the defendant, he scolded Boyd for not getting all of the $25,000 up front but agreed to sell another one of his guns.

Boyd sold “Sonny” a second handgun on October 13, 2005, after she got a .25 caliber pistol from the gun case Huckabee was keeping for the defendant. Boyd met Bersek and “Sonny” at the Interstate 95 rest stop in Darien. When “Sonny” got into Boyd’s automobile, she told him that the gun was loaded and ready to use. When “Sonny” told her that he was going to use the gun to commit murder, Boyd told him to “just put it right behind his head when you use it and it will work fine.” “Sonny” gave Boyd $100, and she gave him the .25 caliber handgun.

On November 28, 2005, agents from the federal Bureau of Alcohol, Tobacco and Firearms informed Boyd that she had sold the guns to an undercover officer. Boyd agreed to cooperate with the investigation and told the agents about the gun case stored at Huckabee’s house. She also gave the agents the combination to the locks. The agents searched Huckabee’s house and found the gun case under his bed. Inside the gun case, the agents found a nine millimeter Glock handgun, several packets of ammunition and various items of drug paraphernalia.

Forensic examiners at the department of public safety were able to connect the guns Boyd sold to “Sonny” and the guns in the gun case to the Vargas incident and to Cubillos’ murder. The spent shell casing found at the murder scene was fired from the nine millimeter Glock handgun and the bullet fragments removed from Cubillos’ skull and brain were fired from that gun. The shell casing found at the bodega had been fired from the .25 caliber pistol that Boyd sold to “Sonny” on October 13, 2005. The defendant did not have a local or state permit to own a gun in 2005. The defendant subsequently was arrested and charged under the two informations that resulted in the convictions that are the subject of this appeal as well as a third information related to the narcotics and drug violations.

Prior to trial, the state filed a motion to join the three informations for trial and notice of its intention to use other acts of the defendant’s misconduct as evidence. In the motion, the state represented that the defendant was charged with murder and conspiracy to commit murder in an information scheduled for jury selection in October, 2007. The defendant also had charges pending against him in seven other criminal files. The state argued that in two of the other cases, the defendant’s acts and the evidence against him were relevant to the murder and conspiracy to commit murder charges, and, therefore, the cases should be joined for trial. The state also sought to admit evidence from other cases being prosecuted by state and federal authorities. In its motion, the state summarized the evidence related to the cases it sought to join for trial. The defendant objected, claiming that the state’s motion was in violation of State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987). The court granted the motion for joinder as to the murder and conspiracy charges with the attempt to commit assault charge. It denied the motion as to the drug charges because it concluded that joinder of these charges would be overly prejudicial to the defendant.

In its memorandum of decision, the court quoted from case law on the subject of joinder. “In Connecticut, joinder of cases is favored. . . . Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. . . .

“Despite this deferential standard, the court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. . . . [Our Supreme Court has recognized] that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. . . .

“General Statutes § 54-57 and Practice Book § [41-19] expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court's instructions. . . . [Wjhether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant. (Emphasis in original; internal quotation marks omitted.) State v. Swain, 101 Conn. App. 253, 258-59, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007).

“In State v. Boscarino, supra, 204 Conn. 722-24, the court identified three factors that should be considered in order to avoid the aforementioned risks. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred. . . . State v. Swain, supra, 101 Conn. App. 259.” (Internal quotation marks omitted.)

In ruling on the state’s motion for joinder, the court concluded that the defendant’s objection to the motion failed under Boscarino. Although the defendant conceded that the “ ‘charges involve discrete, easily distinguishable factual scenarios,’ ” he claimed that Cubillos’ murder was “ ‘brutal and shocking.’ ” The court reasoned that the allegations “surrounding Cubillos’ murder do not involve prolonged anguish, gratuitous injuries, prior taunting or any other claims that might inflame the jury’s passion. Instead, the murder, while tragic and upsetting, was committed in a relatively clinical fashion. Indeed [our Supreme Court] has held that [wjhile any murder involves violent and upsetting circumstances, it would be unrealistic to assume that any and all such deaths would inevitably be so brutal and shocking that a jury, with proper instructions to treat each killing separately, would necessarily be prejudiced by a joint trial. State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912,109 S. Ct. 3230,106 L. Ed. 2d 579 (1989); see also State v. Hair, 68 Conn. App. 695, 700-701, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002).” (Internal quotation marks omitted.) The court therefore concluded that Cubillos’ murder was not so “brutal or shocking” under Boscarino.

In his objection to joinder, the defendant claimed that joinder would prejudice him by extending the length of the murder trial. The court found that the defendant had cited no case law and provided no analysis to support his claim. The defendant failed to articulate how the duration or complexity of the trial substantially would prejudice him if the charges were joined. The court further reasoned that in light of apparent cross admissibility and the presumption in favor of joinder, it could not conclude that the additional charges would extend the length of the trial or increase its complexity so as to confuse the jury and unfairly prejudice the defendant. Apart from the role that cross admissibility plays in the Boscarino analysis, the court noted an independent basis for joinder under State v. Pollitt, 205 Conn. 61, 530 A.2d 155 (1987), in which our Supreme Court stated: “Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial.” (Emphasis in original.) Id., 68.

With respect to the charges under all three informations, the court concluded that evidence related to the charges would be admissible in the murder trial pursuant to Connecticut Code of Evidence § 4-5 (b), subject to individual rulings by the court. The court, however, was concerned with the cumulative effect of joining the drug charges with the murder charge due to the risk that the jury would view the defendant as a “ ‘bad person.’ ” It ultimately concluded that the potential for prejudice cautioned against joinder of the drug charges with the murder and attempt to commit assault informations. The court therefore granted the motion to join the charges arising out of the Vargas incident with the murder incident.

I

On appeal, the defendant claims that the court abused its discretion “in joining all of these highly inflammatory charges into a single trial and in thereafter denying the defendant’s motion to sever them.” We decline to review this claim due to inadequate briefing. In his objection to the motion for joinder, the defendant claimed that the Cubillos murder was brutal and shocking and that the trial would be overly long and complex. The defendant made the same conclusory statements in his brief on appeal, but he did not confront the reasoning of the court in its memorandum of decision or cite the facts of the murder case and distinguish them from the precedents of this court and our Supreme Court. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Anderson, 67 Conn. App. 436, 441-2 n.8, 787 A.2d 601 (2001).

II

The defendant’s second claim is that the court abused its discretion and prejudiced him by admitting evidence of uncharged misconduct having little or no relevance to the crimes with which he was charged. This claim is minimally briefed and fails to support the defendant’s more specific claim that evidence of his conspiring with Bersek was not relevant or material to the crimes with which he was charged or how that evidence outweighed its prejudicial effect.

“The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [Ejvery reasonable presumption should be given in favor of the trial court’s ruling. [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . [T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant . . . [who] must show that it is more probable than not that the erroneous action of the court affected the result.” (Citation omitted; internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 393, 796 A.2d 1191 (2002).

“To admit evidence of prior misconduct properly, two tests must be met. The evidence (1) must be material and relevant, and (2) its probative value must outweigh the prejudicial effect of the evidence. . . . Evidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue. . . . Relevant evidence is defined in the Connecticut Code of Evidence, § 4-1, as evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. The commentary to that section makes it clear that there are two separate components of relevant evidence at common law, probative value and materiality. Evidence is relevant if it tends to support the conclusion even to a slight degree. . . . Materiality is determined by the pleadings (or information) and the applicable substantive law.” (Internal quotation marks omitted.) State v. Aaron L., 79 Conn. App. 397, 409, 830 A.2d 776 (2003), affd, 272 Conn. 798, 865 A.2d 1135 (2005).

The essence of the defendant’s claim is that the court abused its discretion by admitting evidence concerning the defendant’s conspiring with Bersek and the sale of guns to “Sonny.” The defendant failed, however, to explain how that evidence was not relevant to the attempt to commit assault, gun possession or murder charges. The sale of the guns to “Sonny” was the means by which the state identified the gun that the defendant used in the attempted assault on Vargas and the one he used to murder Cubillos. The defendant’s conversations with Bersek were the core of the conspiracy to commit murder charge. The evidence, therefore, was relevant and material to the charges against the defendant, and its probative value outweighed its prejudicial effect.

The judgments are affirmed.

In this opinion the other judges concurred.

       In granting the state’s motion for joinder, the following informations were consolidated for trial. In docket number CR-06-107614, the state charged the defendant with attempt to commit assault in the first degree in violation of §§ 53a-49 and 53a-59 (a) (5) and carrying apistol without apermit in violation of § 29-35 (a).
      In docket number CR-06-113852, the state charged the defendant with murder in violation of §§ 53a-54a (a), conspiracy to commit murder in violation of §§ 53a-48 (a) and 53a-54a (a), attempt to commit murder in violation of §§ 53a-54a (a) and 53a-49, and attempt to commit assault in the first degree in violation of §§ 53a-49 and 53a-59 (a) (5). After the close of the state’s case, the court granted the defendant’s motion for a judgment of acquittal as to the charge of attempt to commit murder.
      Thereafter, the state filed a fifth amended information charging the defendant with murder in violation of § 53a-54a (a), conspiracy to commit murder in violation of §§ 53a-48 (a) and 53a-54a (a), attempt to commit assault in the first degree in violation of §§ 53a-49 and 53a-59 (a) (5), and carrying a pistol without a permit in violation of § 29-35 (a).

       The court gave the defendant a total effective sentence of seventy-one years in prison.

       The court found that neither the state nor the defendant provided the court with a list of witnesses, an exhibit list or a reasonable estimate as to the length of trial.

       The court stated that its ruling with respect to the issue of nonjoinder of the drug charges did not control whether the evidence relating to those charges was admissible in the murder case.

       The court noted that any prejudice arising from the joinder of those charges could be cured with an appropriate jury instruction.

       With respect to the defendant’s claim concerning the denial of his motion to sever, in his brief on appeal, he provides no analysis or law on the subject of severance. We therefore deem that claim abandoned. See, e.g., State v. Gonzalez, 106 Conn. App. 238, 240 n.l, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008).

       The defendant conceded in his brief that joining the charges of attempted assault and carrying a pistol without a permit with the murder charges would pass muster under the Boscarino test.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    GEORGE FIGUEROA III v. COMMISSIONER OF CORRECTION
    (AC 28555)
    Flynn, C. J., and Lavine and Peters, Js.

      Argued October 27, 2009
    officially released September 21, 2010

      George Figueroa III, pro se, the appellant (petitioner).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Linda N. Howe, former senior assistant state’s attorney, and Linda Currie-Zeffiro, assistant state’s attorney, for the appellee (respondent).

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

   Opinion

FLYNN, C. J.

Article third, § 1, of our state constitution provides for a particular style of the laws enacted by the Senate and the House of Representatives. Each such law’s enactment clause must read: “Be it enacted by the Senate and House of Representatives in General Assembly convened.” Conn. Const., art. HI, § 1. The appeal before us arises out of the trial court’s granting of the respondent commissioner of correction’s motion to dismiss the petition for a writ of habeas coipus in which the petitioner, George Figueroa III, claimed that this constitutional provision was not complied with following amendments to General Statutes §§ 53a-54a and 29-35, and that his conviction of murder of John Corbett and of carrying a pistol or revolver without a permit, respectively, should therefore be voided. It is undisputed that for the relevant year in which § 53a-54a, which prohibits the crime of murder and under which the petitioner was charged, was amended, the publication of the public acts did not contain the constitutionally required enactment clause as a preface to each public act so published. See Public Acts 1992, No. 92-260, § 26 (P.A. 92-260). Instead, the preface to the 1992 Public Acts states: “In preparing the engrossed bills for photo-composition the tradition of deleting the enactment clause has been followed to conserve paper . . . .” The petitioner makes a similar claim of infirmity arising from the failure to print the enactment clause before each public act regarding § 29-35, prohibiting carrying a pistol or revolver without a permit, which was amended by Public Acts 1988, No. 88-128, § 1 (P.A. 88-128). The 1988 Public Acts contains the same prefatory language regarding deletion of the enactment clause for conservation purposes as does the 1992 Public Acts. The petitioner appeals following the habeas court’s denial of his petition for certification to appeal to this court and requests reversal of the habeas court’s decision on the merits or whatever other relief is deemed necessary and appropriate. We disagree with the petitioner’s claims and dismiss the appeal.

The following facts are pertinent. In 1997, the petitioner, after a dispute with Corbett that had occurred two years earlier, armed himself with a gun and shot Corbett to death on Lilac Street in New Haven. State v. Figueroa, 74 Conn. App. 165, 166-68, 810 A.2d 319 (2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003). After his conviction, he was sentenced, for the crime of murder in violation of § 53a-54a and for carrying a pistol or revolver without a permit in violation of § 29-35, to a total effective sentence of sixty years imprisonment. The petition for a writ of habeas corpus was dated January 11 and filed with the clerk on August 14, 2006, and dismissed by the court on the respondent’s motion under the authority of Practice Book § 23-29 for failure to state a claim on which relief could be granted. The habeas court concluded that the absence of the enactment clause in published versions of the public acts in question did not render the corresponding statutes invalid. The court subsequently denied certification to appeal pursuant to General Statutes § 52-470.

The petitioner represented himself at trial and on appeal. After a careful reading of his brief and listening to his oral argument, the petitioner’s claims can be summarized fairly in the following way: (1) the statutory prohibitions against murder and carrying a pistol or revolver without a permit found in §§ 53a-54a and 29-35, respectively, were unconstitutional enactments because the amendments made in 1992 and 1988 lacked the enactment clause the constitution mandates; (2) because these enactments set forth in P.A. 92-260, § 26, repealing, reenacting and amending § 53a-54a and P.A. 88-128, § 1, repealing, reenacting and amending § 29-35, were unconstitutional nullities, the state’s charging documents, which asserted the crimes as amended against him, were invalid and there was no jurisdiction of the court over him; and (3) the failure to include the enactment clauses deprived him of due process, notice of the nature and cause of the accusation contained in the information and equal protection, and, thus, his prosecution violated the fifth, sixth and fourteenth amendments to the United States constitution.

Before turning to the petitioner’s claims, we note our standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 616. “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Id., 612.

“The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the corut are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.” (Internal quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn. App. 188, 193, 932 A.2d 467 (2007), cert, denied, 285 Conn. 907, 942 A.2d 416 (2008). Furthermore, the petitioner’s appeal raises constitutional questions, our review of which is also plenary. See Perricone v. Perricone, 292 Conn. 187, 199, 972 A.2d 666 (2009).

We first address the petitioner’s first two claims. He maintains that the amendments to §§ 53a-54a and 29-35 were void because the enactment clause required by the constitution was omitted from P.A. 92-260 and P.A. 88-128, which repealed, reenacted and amended the statutes. The enactment clause form required by our state constitution is mandatory. “Whatever . . . [the constitution] prescribes, the General Assembly, and every officer or citizen to whom the mandate is addressed, must do; and whatever it prohibits, the General Assembly, and every officer and citizen, must refrain from doing; and if either attempt to do that which is prescribed, in any other manner than that prescribed, or to do in any manner that which is prohibited, their action is repugnant to that supreme and paramount law, and invalid.” (Internal quotation marks omitted.) Caldwell v. Meskill, 164 Conn. 299, 314-15, 320 A.2d 788 (1973), quoting Opinion of the Judges, 30 Conn. 591, 593-94 (1862). “In a majority of jurisdictions, the constitutional form of an enacting clause must be set forth in exact conformity ... in every act.” 1A N. Singer & J. Singer, Sutherland Statutory Construction (7th Ed. 2009) § 19:2, p. 111.

The respondent contends, and we agree, that the petitioner has conflated the constitutional requirement of article third, § 1, with the statutory provision requiring publication of the public acts found in General Statutes § 2-58. Article third, § 1, requires that the “style” of the laws enacted by the General Assembly shall be: “Be it enacted by the Senate and House of Representatives in General Assembly convened.” The plain language of this constitutional provision refers to laws enacted by both houses of the legislature that become law either because the governor has signed them, or, not having vetoed them, has allowed them to become law without his or her signature, and those laws repassed by a two-thirds majority of each house following a gubernatorial veto. Under our authority to take judicial notice of legislative enactments; see Perkins v. Coffin, 84 Com. 275, 304, 79 A. 1070 (1911); we have reviewed the contents of the originals of the public acts that are subject of the petitioner’s appeal, which the secretary of the state is constitutionally required to keep for safekeeping and which have been entrusted by her to the Connecticut state library for that purpose. See State v. South Norwalk, 77 Com. 257, 264-65, 58 A. 759 (1904); Eld v. Gorham, 20 Com. 8, 16 (1849). These originals both contain the enactment clause required by our state constitution. We therefore agree with the respondent that there simply is no constitutional infirmity in either public act caused by a lack of that prefatory language in that the actual bills passed by the legislature both contained that clause.

We hold that the enactment of a law by the General Assembly transmitted to the secretary of the state with the governor’s signature, or repassed by a two-thirds majority of each house after a gubernatorial veto, or which the governor allowed to become law without his or her signature, is compliant with the constitutionally mandated enactment clause if that law contains the required enactment clause. The plain language of the constitution refers only to laws passed by the General Assembly, not to published compilations of all the laws passed by the legislature in a given session, which are required to be prepared and published by § 2-58. Section 2-58 requires the legislative commissioners to prepare after each legislative session’s adjournment “an edition of the public and special acts passed at such regular session in the form of engrossed bills . . . .” The legislative commissioners are required to affix a certificate to the compilation indicating that their compilation contains correct copies of “those [public and special acts] engrossed and on file in the office of the Secretary of the State.” General Statutes § 2-58. This is a statutory mandate, apart from the constitutional requirement of article third, § 1. Our state’s constitutionally mandated enactment clause was present in both pertinent acts passed by the General Assembly, P.A. 92-260 and P.A. 88-128, and, therefore, neither public act is void for lack of it, nor should the petitioner’s conviction be voided on that ground.

We next turn to the petitioner’s claim that failure to include the enactment clause in published editions of the Public Acts deprived him of notice of the statutory provisions, due process and equal protection of the laws and therefore violated his rights under the fifth, sixth and fourteenth amendments to the United States constitution. Although couched in the labels of these precise amendments, the heart of the petitioner’s claim is a challenge to the fundamental fairness of the criminal proceedings against him, which implicates due process. “[B]y due process is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought.” (Internal quotation marks omitted.) Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123,162, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring).

We first note that when the murder and weapons statutes at issue were amended properly, the petitioner and all others were on notice of their provisions. In Connecticut, laws can be specified to be effective on passage or, if not so specified, they are effective on the ensuing first day of October, unless a later day or dates are specified in the statute as to specific provisions. General Statutes § 2-32.

We also take judicial notice that the compilations of the public acts are not published on the day a law effective on passage is approved by both houses and signed by the governor, allowed to become law without signature of the governor or repassed by a two-thirds majority of the legislature following a gubernatorial veto. Our point is that it is not the publication of these acts in the Public Acts compilations that makes them effective against members of the public, but their lawful passage by the General Assembly.

The petitioner’s claim that the failure to include the enactment clause in the published public acts deprived him of notice of the nature of the charges against him is without merit. The information submitted by the state provided the petitioner with notice that the state sought to prove he was guilty of murder in violation of § 53a-54a and of carrying a pistol or revolver without a permit in violation of § 29-35. There can be no doubt but that the substance of those criminal statutes—the acts that the statutes prohibited—was widely available to the petitioner by virtue of their publication by the legislative commissioners under the authority of § 2-58. This is so even without the inclusion of the enactment clause in the published volumes of the public acts. The prefaces to those public act compilations referenced the enactment clause and explained its absence. Further, the prefaces contained the certification of the legislative commissioners that the publication contained “a correct copy of the laws enacted by [the] General Assembly ... as engrossed and on file in the office of the Secretary of the State.” As has been stated, the original copies of the pertinent public acts on file with the secretary of the state’s office contained the enactment clause in full. A member of the public encountering the published public acts in question here and desiring confirmation that the publication reflected a duly enacted law of the General Assembly would therefore be directed by the prefaces to these original copies, where such confirmation would be evident. To credit the petitioner’s argument that the lack of the enactment clause in the published versions of the public acts here violated his constitutional right to due process truly would be to elevate form over substance. This we will not do.

On the basis of the foregoing analysis, we conclude that the petitioner has not shown that the issues raised with regard to the court’s dismissal of his petition for a writ of habeas corpus are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserved encouragement to proceed further. See Simms v. Warden, supra, 230 Conn. 616. Accordingly, the petitioner has failed to demonstrate that the court’s denial of his petition for certification to appeal constituted an abuse of discretion.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 2-58 provides: “The legislative commissioners shall prepare as soon as possible after the adjournment of each regular session of the General Assembly an edition of the public and special acts passed at such regular session in the form of engrossed bills, in numerical order and with a suitable index. The Joint Committee on Legislative Management shall cause to be published such number of copies of such edition of engrossed bills as said committee deems adequate and shall fix the price at which the same shall be sold. The publication shall be under the supervision of said commissioners, who shall affix thereto their certificate that said public and special acts are correct copies of those engrossed and on file in the office of the Secretary of the State.”


text:
    STATE OF CONNECTICUT v. DOUGLAS DOUGHERTY
    (AC 30295)
    Robinson, Flynn and Sullivan, Js.
    Argued June 3
    officially released September 21, 2010

      Lisa A. Vanderhoof special public defender, for the appellant (defendant).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Thomas M. DeLillo, senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Douglas Dougherty, appeals from the judgments of conviction, rendered after a jury trial, pursuant to two informations that were joined for trial. With respect to the Maple Court incident; see footnote 1 of this opinion; the jury found the defendant guilty of one count of robbery in the third degree in violation of General Statutes § 53a-136 and one count of larceny in the sixth degree in violation of General Statutes § 53a-125b. As to the Pineview incident; see footnote 1 of this opinion; the jury found the defendant guilty of one count of robbery in the first degree in violation of General Statutes § 53a-134, one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, one count of conspiracy to commit burglary in the second degree in violation of General Statutes § 53a-48 and General Statutes (Rev. to 2005) § 53a-102, and one count of larceny in the sixth degree in violation of General Statutes § 53a-125b. On appeal, the defendant claims that the trial court (1) abused its discretion by admitting evidence of uncharged misconduct and (2) improperly charged the jury on other crimes in evidence. We affirm the judgments of the trial court.

The following facts, which the jury reasonably could have found, are relevant to the claims in the defendant’s appeal. On the evening of January 24, 2006, eighty-six year old Irene Smith, who lived alone in an apartment at the Maple Court senior housing complex in Danielson, was reading in her living room, where the window shade was only partially drawn. At approximately 8:45 p.m., someone knocked on Smith’s front door. When she opened the door, Smith saw a person dressed in dark clothing and a black ski mask. The defendant entered the apartment and told Smith that this was a robbery and that he wanted money. The defendant did not touch Smith and assured her that he was not going to hurt her. Smith got her purse from her bedroom and placed it on the kitchen table. The defendant removed an envelope containing approximately $100 from Smith’s purse. He also removed the cord from Smith’s telephone and placed a small clock on a table. The defendant instructed Smith to wait until at least 9 p.m. before seeking help. Before he left the apartment, the defendant pulled the window shade in the living room down completely.

Two days later, on January 26, 2006, eighty-seven year old Stella Feige was watching television in the living room of her senior citizens apartment at the Pineview complex in Thompson. The shades on the two living room windows were not drawn. At approximately 6 p.m., Feige, who was sitting on the couch, looked into her kitchen and saw two people. Feige had not heard either of the two doors to her apartment open. Each of the intruders wore a black ski mask, and one was taller than the other. The taller intruder walked into the living room and pulled down the shades, returned to the kitchen and pulled down the shade on the window there. Feige observed the taller intruder enter her bedroom and return to the kitchen with her purse. He removed $35 from Feige’s billfold. The taller intruder asked Feige if she had more money. Feige replied that she did not and asked if she was the only person the intruders planned to rob. The taller intruder responded: “Yes, for today.” After hearing the taller intruder’s voice, Feige determined that the person was male. The shorter intruder, later identified as the defendant, remained by the kitchen table throughout the robbery and never spoke. Feige, therefore, was unable to identify the shorter person’s gender.

As the intruders prepared to leave, the taller intruder pulled a knife from his jacket, displayed it to Feige and told her to remain on the couch until 7 p.m. or he would tie her to a chair. Before he left, the taller intruder disabled Feige’s telephones by disconnecting the wires. At 7 p.m., Feige went to a neighbor’s apartment to telephone the police.

The defendant subsequently was arrested and charged with respect to both robberies. Prior to trial, the state filed a motion for joinder and notice of its intention to offer evidence of uncharged misconduct in both cases. The motion for joinder was granted, and evidence of uncharged misconduct was admitted in both cases. The trial was held in February, 2008, and the jury found the defendant guilty of six of the eleven charges against him. He was sentenced to twenty-five years in prison. Additional facts will be addressed as necessary.

I

The defendant first claims that the court abused its discretion by admitting evidence of uncharged misconduct in each case. More specifically, the defendant claims that the factual characteristics shared by the charged and uncharged misconduct were not sufficiently distinct and unique to be a signature, modus operandi or logo, and, therefore, the jury could not logically infer that if the defendant was guilty of one crime, he also must be guilty of the other. The state contends that the misconduct evidence was cross admissible because it was relevant to show that the defendant had a common plan to rob women who live alone in senior housing. We agree with the state.

“The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . [T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant . . . [who] must show that it is more probable than not that the erroneous action of the court affected the result.” (Citation omitted; internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 393, 796 A.2d 1191 (2002).

“It is well settled that evidence of prior misconduct is admissible for the purpose of showing knowledge, intent, motive, and common scheme or design, but is not admissible to prove that a defendant is guilty of the crimes with which he is charged. . . . Uncharged misconduct evidence relates to a collateral, uncharged crime and does not prove the commission of the principal crime with which the defendant is charged.” (Internal quotation marks omitted.) State v. Aaron L., 79 Conn. App. 397, 408-409, 830 A.2d 776 (2003), aff'd, 272 Conn. 798, 865 A.2d 1135 (2005).

“To admit evidence of prior misconduct properly, two tests must be met. The evidence (1) must be material and relevant, and (2) its probative value must outweigh the prejudicial effect of the evidence. . . . Evidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue. . . . Relevant evidence is defined in Connecticut Code of Evidence, § 4-1, as evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. The commentary to that section makes it clear that there are two separate components of relevant evidence at common law, probative value and materiality. Evidence is relevant if it tends to support the conclusion even to a slight degree. . . . Materiality is determined by the pleadings (or information) and the applicable substantive law.” (Internal quotation marks omitted.) Id., 409.

Our Supreme Court has identified two categories of common scheme or plan cases. See State v. Randolph, 284 Conn. 328, 343, 933 A.2d 1158 (2007). “In the first category, which consists of what most accurately may be described as true common scheme or plan cases, the nature of the charged and uncharged crimes combined with connecting evidence, if any, gives rise to a permissive inference that an overall scheme or plan existed in the defendant’s mind, and that the crimes were executed in furtherance of that plan. In the second category of cases, which consists of what most accurately may be described as signature cases, the charged and uncharged crimes appear to be separate and discrete criminal acts, but the method of commission exhibits the existence of a modus operandi, logo, or signature, which, when considered in combination with other factors, such as the proximity of time and place of commission, gives rise to a permissive inference that the crimes were executed in furtherance of an overall common scheme or plan.” (Internal quotation marks omitted.) Id. Under the facts of this case, we conclude that the latter category is applicable.

The following facts are relevant to our resolution of the defendant’s claim. On August 10, 2007, the state filed a motion for joinder and notices of its intention to offer evidence of uncharged misconduct in both cases. In the notice in the Maple Court case, the state represented that it intended “to offer evidence of an alleged home invasion in which the defendant unlawfully entered a similar dwelling, occupied by a similarly situated victim, at night, while accompanied by [a] codefendant, William McCrillis, only two days after this alleged incident occurred. The evidence is relevant because it tends to show the defendant’s identity, knowledge of the criminal nature of his conduct, and a common plan or scheme.” In the Pineview case, the state gave notice that it intended “to offer evidence of an alleged home invasion in which the defendant unlawfully entered a similar dwelling, occupied by a similarly situated victim, at night, only two days prior to this alleged incident. In the uncharged incident, the defendant is alleged to have acted alone. The evidence is relevant because it tends to show the defendant’s identity, knowledge of the criminal nature of his conduct, and a common plan or scheme.”

At the hearing on the motion for joinder, the court, Robaina, J., heard the proposed uncharged misconduct evidence. The state argued that the evidence was relevant because it tended to show the defendant’s identity, knowledge of the criminal nature of his conduct and a common plan or scheme. More specifically, the state noted the similarities in the evidence: the time of day, the age and situation of the victims, dark colored ski masks, disabled telephones, closing window shades, stolen cash, and explicit instructions to wait before seeking aid. Moreover, the crimes were close in proximity and time. The state argued that the evidence was relevant and material in that it would help the jury to determine whether the defendant had planned to rob senior citizens in their homes. The defendant objected, arguing that the evidence was not relevant in that it did not show the defendant’s identity, knowledge of the criminal nature of his alleged conduct or a common plan or scheme.

The state presented the following evidence at trial. The defendant was arrested on other charges and was imprisoned at Corrigan-Radgowski Correctional Center (Corrigan) during the spring and summer of 2006. Jason Link also was imprisoned there during that time, and the two often spoke to one another. During one of their conversations, the defendant asked Link if he had heard about the Maple Court incident and told Link that he, the defendant, “did it.” The defendant also told Link that he had bound the victim with a telephone cord and that Lori A. Collette picked him up after the robbery.

Although Link was being held on another matter, on September 27, 2006, the state police questioned him about the Maple Court incident and whether a third party was involved. Link voluntarily informed the police of the conversation he had had with the defendant about the Maple Court incident. On the basis of Link’s information, the police questioned Collette about the defendant. Collette knew the defendant and had had a conversation with him sometime during the winter months of that year. The defendant told Collette that he “got some money” from his grandmother, took her telephone and told her to wait fifteen minutes before contacting the police. Collette also told the police that she had heard that the defendant was involved in an incident with McCrillis, who also was an acquaintance of hers.

Detective Jeffrey Payette of the state police questioned the defendant at Corrigan on October 2, 2006. Payette took a statement from the defendant after asking him what he knew about the Maple Court and Pine-view incidents. Initially, the defendant told Payette that he was not going to “snitch” on the people responsible for the incidents. The defendant, however, told Payette that he was responsible for driving the individuals to the senior housing complexes and that he knew they were going to rob someone. With respect to the Maple Court incident, the defendant told Payette that he drove “a kid” to Maple Court and dropped him off, knowing that the kid was going to rob somebody. The defendant drove to a bar in Killingly, turned around and came back to pick up the kid. The kid told the defendant that the lady was very polite. The defendant was given $40 in exchange for drugs. The defendant stated that he was familiar with the Maple Court apartments because his grandmother had lived there before she died.

With respect to the Pineview incident, the defendant told Payette that he drove the kid and McCrillis to the area of the apartments, knowing that they intended to rob someone. After dropping them off, the defendant drove away, turned around and came back to pick them up. The pair gave the defendant money in exchange for drugs. The defendant described the kid as being thirty-four years old and having lived in the Greek Village section of Thompson. The kid had an addiction to crack cocaine and had spent time in jail for having committed similar crimes. On the basis of his investigation of the two incidents, Payette determined that the defendant was thirty-four years old, had lived in the Greek Village, was addicted to crack cocaine and had committed similar crimes prior to January, 2006.

On appeal, the defendant claims that the factual characteristics shared by the charged and the uncharged crimes were not sufficiently distinctive and unique as to be a signature, modus operandi or logo from which the jury reasonably could infer a common scheme or plan. In particular, the defendant notes that the intruder acted alone in the Maple Court incident and that the taller of the two intruders, who was not the defendant, performed the signature acts in the Pineview incident. The defendant concludes, therefore, that the state failed to establish that he had a plan to commit both the charged and the uncharged crimes.

A trial court properly may join two cases for trial “because, in the event of separate trials, evidence relating to each of the cases would have been admissible in the other. Although evidence of other crimes or uncharged conduct is not admissible to show bad character or a disposition to commit a crime, such evidence is admissible to show such issues as a common scheme, intent, malice, identity, motive or opportunity. ... Of course, this evidence must be relevant and material to an element of the crime and its probative value must outweigh its prejudicial effect. ... It is [b]ecause of the difficulties inherent in this balancing process that the trial court will be reversed only when there is a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988).

On the basis of our review of the evidence in the record, we conclude that the court did not abuse its discretion by admitting uncharged misconduct of the Pineview incident in the Maple Court case and vice versa. “[0]ne of the most decisive factors [to support a permissive inference] is the proximity of time and place of commission of the charged and uncharged crimes. Accordingly, when both the charged and uncharged crimes exhibit the existence of a signature, and were committed within the same limited geographic area and time period, a permissive inference ordinarily arises that the charged and uncharged crimes were the individual manifestations of a true plan in the defendant’s mind.” State v. Randolph, supra, 284 Conn. 355.

The evidence at issue here was relevant and material as to the identity of the perpetrator in both cases and permitted the jury to infer an overall scheme or plan in the mind of the defendant. The manner in which the crimes were committed in each incident was sufficiently distinct to constitute a signature, modus operandi or logo. The robberies occurred in the early evening in an apartment in a senior citizen complex, the victims were elderly women who lived alone, the robbers wore black ski masks, took money, closed the shades, disabled the telephone and instructed the victims to wait a specific amount of time before seeking help. Such evidence therefore had a tendency to help the jury determine the identity of the perpetrator who had a common scheme to burgle and to rob elderly women residing alone in a senior citizen complex. See, e.g., State v. Greene, supra, 209 Conn. 465 (uncharged misconduct admissible when “robberies were committed by nearly identically dressed men, using identical weapons, robbing similar establishments at similar times of day within three days of each other and in the same vicinity”); State v. Braman, 191 Conn. 670, 678, 469 A.2d 760 (1983) (evidence of prior robbery admissible to establish common scheme as both establishments were bars in adjoining towns, two people participated in each robbery, weapons used were cut-down shotgun and small automatic pistol, robber with shotgun assumed leadership, employees and patrons ordered into back room, incidents close in time).

Although the defendant argues that the state’s evidence demonstrated that it was the taller person, not the defendant, who performed the so-called signature acts, that fact is merely one of the dissimilarities between the Maple Corurt and Pineview incidents that had to be weighed with the similarities. We conclude that the court properly weighed the similarities between the two incidents with the dissimilarities. We also conclude that court properly found that the probative value of the evidence outweighed its prejudicial impact. The court, therefore, did not abuse its discretion by admitting the evidence of uncharged misconduct in both cases.

II

The defendant’s second claim is that the court improperly instructed the jury on evidence of uncharged misconduct. The defendant claims that the charge given by the court “essentially said that sufficient similarities in the cases were enough to establish a common scheme or plan.” We do not agree.

The defendant takes exception to the following portion of the court’s charge: “I’m going to talk a little bit about evidence of uncharged misconduct. In this proceeding, there are two separate cases. There’s one case that alleges crimes to have been committed on January 24, 2006, in the town of Killingly, and another case that alleges crimes to have been committed on January 26, 2006, in the town of Thompson. Now, ordinarily, we tell juries not to consider either of the cases in evaluating the other case. In this case, however, there is but one limited purpose that you may consider the evidence in one case in the other case. And that is for you to determine that there are sufficient similarities in the cases that constitute a common scheme or plan for committing these types of crimes. It may not be considered by you, however, to determine that the defendant has a propensity to commit criminal acts or that he is in any way a bad person. You may not ever use the evidence in one case in the other case for that purpose. You may use it if you find that the evidence logically and rationally demonstrates a common scheme in the commission of robbery or burglary. You may use the evidence in one case in considering whether the state has met its burden of proof in the other.”

The defendant argues that the court should have instructed the jury with the following language from State v. Randolph, supra, 284 Conn. 355: “[T]o establish the existence of a true plan in the defendant’s mind based solely on the marked similarities shared by the charged and uncharged crimes, the state must produce sufficient evidence to: (1) establish the existence of a signature, modus operandi, or logo; and (2) support a permissive inference that both crimes were related to an overall goal in the defendant’s mind.” (Emphasis in original; internal quotation marks omitted.) We disagree that the court should have charged the jury with the quoted language, as the quoted language concerns the standard the court is to apply in exercising its discretion as to the admission of uncharged misconduct evidence.

The standard by which claims of an improper jury charge are reviewed is well established. “[Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . [W]e must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Wallace, 290 Conn. 261, 272-73, 962 A.2d 781 (2009). “[T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Gonzalez, 106 Conn. App. 238, 253, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008).

On the basis of our review of the court’s charge, we conclude that it complies with the admonition of our Supreme Court in State v. Randolph, supra, 284 Conn. 367. The court informed the jury of the “the very purpose for which the evidence of uncharged misconduct had been admitted, namely, to establish the existence of a common scheme or plan in the defendant’s mind . . . .” Id.

The judgments are affirmed.

In this opinion the other judges concurred.

      Docket number CR-07-0130925 concerns the Maple Court incident. Docket number CR-07-0130926 concerns the Pineview incident.

       More specifically, the defendant claims that it was improper for the court to admit evidence of the Maple Court incident in the Pineview case, and vice versa.

       Smith determined, on the basis of the intruder’s voice, that the person was male and that he was white because the skin near his eyes was light. She described the person as being of medium height.

       The taller intruder was later identified as William McCrillis.

       In the Maple Court case, the defendant was charged with kidnapping in the first degree in violation of § 53a-92 (a) (2) (B), robbery in the third degree in violation of § 53a-136, burglary in the second degree in violation of General Statutes (Rev. to 2005) § 53a-102 (a) and larceny in the sixth degree in violation of § 53a-125b.
      In the Pineview case, the defendant was charged with kidnapping in the first degree in violation of § 53a-92 (a) (2) (B), conspiracy to commit kidnapping in the first degree in violation of §§ 53a-48 and 53a-92 (a) (2) (B), robbery in the first degree in violation of § 53a-134 (a) (3), conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134 (a) (3), burglary in the second degree in violation of General Statutes (Rev. to 2005) § 53a-102 (a), conspiracy to commit burglary in the second degree in violation of § 53a-48 and General Statutes (Rev. to 2005) § 53a-102 (a), and larceny in the sixth degree in violation of § 53a-125b.

       The court, Robaina, J., granted the motion for joinder on September 19, 2007.

       The court, Fuger, J., ruled on the cross admissibility of the evidence at trial.

       The defendant is not related to either of the victims.

       Collette testified at trial and admitted that she had been convicted of selling drugs and of larceny and that she used drugs herself.

       This court takes judicial notice; see McCarthy v. Commissioner of Correction, 217 Conn. 568, 580 n.15, 587 A.2d 116 (1991); of the fact that McCrillis pleaded guilty on October 10, 2008, to robbery in the first degree in violation of § 53a-134 (a) (3) and burglary in the second degree in violation of General Statutes (Rev. to 2005) § 53a-102.


author: DUPONT, J.

text:
    O’CONNELL, FLAHERTY AND ATTMORE, LLC v. JAMES J. DOODY III
    (AC 30977)
    Harper, Robinson and Dupont, Js.

      Argued March 11
    officially released September 21, 2010

      James J. Doody III, pro se, the appellant (defendant).

      Pamela M. Magnano, with whom was Sandi Beth Girolamo, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant, attorney James J. Doody III, appeals from the judgment of the trial court rendered in accordance with findings of fact made by a fact finder, attorney Kerry R. Callahan, in favor of the plaintiff, O’Connell, Flaherty & Attmore, LLC, and seeks a new trial. On appeal, the defendant claims that the court (1) failed to render a timely decision in violation of General Statutes § 51-183b and (2) erred in numerous findings of fact. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history relevant to our resolution of the defendant’s appeal. The defendant retained the plaintiff to represent him in postjudgment proceedings relating to his marriage dissolution action. The plaintiff and the defendant entered into a representation agreement dated January 20, 2005. The plaintiffs complaint, filed October 23, 2006, sought payment for legal representation of the defendant. The defendant filed his answer, special defense and counterclaim on November 16, 2006. The case was referred to Callahan in accordance with General Statutes § 52-549n and Practice Book § 23-53. On January 7 and March 24, 2008, the matter was tried before Callahan. On September 24, 2008, Callahan filed his memorandum of decision with the court. On October 14, 2008, the defendant filed a motion to reargue, claiming that Callahan’s memorandum of decision was materially flawed and a gross miscarriage of justice. The motion sought a de novo hearing to readdress the matter. Oral argument was held on the defendant’s motion to reargue, at which time the defendant admitted that a motion to reargue is not the proper method to challenge a fact finder’s memorandum of decision. On November 19, 2008, the court treated the motion as an objection to the acceptance of the finding of the facts pursuant to Practice Book § 23-57 and denied the motion. On October 22, 2008, the plaintiff then filed a motion for judgment, which the court granted on April 1, 2009. This appeal by the defendant followed.

I

The defendant’s first claim is that the trial court failed to render its decision “within 120 days after the completion date of trial, in violation of ... § 51-183b.” We disagree.

To resolve the defendant’s claim, we begin by setting forth the relevant legal principles and the standard of review. Section 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have the power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.” (Emphasis added.)

In this case, the matter was referred to and tried before an attorney fact finder pursuant to Practice Book § 23-52 et seq. A judge of the Superior Court did not commence or try the case; the attorney fact finder commenced and tried the case. The plaintiff filed a motion for judgment, and the court rendered judgment pursuant to Practice Book § 23-58 (a) (l) after a hearing had been held on the defendant’s objections to the fact finder’s memorandum of decision. The provisions of § 51-183b do not apply to the trial court under the circumstances of this case. See Irving v. Firehouse Associates, LLC, 95 Conn. App. 713, 718-21, 898 A.2d 270, cert. denied, 280 Conn. 903, 907 A.2d 90 (2006).

The defendant’s argument juxtaposes the actions of the court with those of the fact finder. Specifically, the defendant in his brief is actually challenging the fact finder’s filing of his memorandum of decision more than 120 days after the completion date of the fact finder’s hearing and is not challenging the timeliness of the court’s judgment. General Statutes § 52-549r and Practice Book § 23-56 (c) require that within 120 days of the completion of the fact finder’s hearing, the fact finder shall file findings of facts with the clerk of the court. The defendant made no objections at trial to the late filing of the fact finder’s report. Even if the defendant were arguing a violation of the correct statutory provisions or rules of practice, he raises this unpreserved claim for the first time on appeal. “To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 443, 988 A.2d 351 (2010). Additionally, not only did the defendant fail to cite the correct statutory provision and rule of practice, he failed to provide any relevant legal authority to support his claim. See Statewide Grievance Committee v. Rapoport, 119 Conn. App. 269, 280, 987 A.2d 1075 (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]), cert. denied, 297 Conn. 907, 995 A.2d 639 (2010). We therefore decline to address any potential or implied claim of the defendant relating to any late filing of the fact finder.

II

The defendant’s second claim is that the court erred in numerous findings of fact. We decline to address this claim. The defendant was required to make his objections to the acceptance of the findings of fact within fourteen days after the fact finder’s memorandum of decision was filed with the court. See General Statutes § 52-549s and Practice Book § 23-57. The defendant’s motion to reargue, which was construed by the court as an objection to the acceptance of findings of fact pursuant to Practice Book § 23-57, was filed late and therefore properly denied by the court for that reason alone. The defendant’s failure to object timely to the fact finder’s findings precludes him from now challenging those findings of fact on appeal. The defendant’s lack of compliance with Practice Book § 23-57 precludes our review of his motion to reargue, even when treated as an objection to the fact finder’s findings. See Data-Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn. App. 118, 134-35, 958 A.2d 195 (2008), citing Humiston v. Intervest Management Co., 17 Conn. App. 828, 829, 554 A.2d 296 (1989); see also Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986); Dorsen v. Kay, 13 Conn. App. 645, 538 A.2d 1080, cert. denied, 208 Conn. 805, 545 A.2d 1102 (1988); LiVolsi v. Pylypchuk, 12 Conn. App. 527, 532 A.2d 593 (1987).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims, as the third argument in his brief, that “the trial court ignored or failed to apply contract obligations between the parties, the direct result of which materially and adversely affected [the] defendant’s right to a fair and impartial trial based upon the merits.” To the extent that the defendant’s claim relates to the fact finder’s report, the plaintiff asserts that we should decline to review this claim because the defendant did not properly and timely raise any objections to the fact finder’s report. It is uncertain from his brief whether the defendant is claiming that the fact finder, whose facts were adopted by the court and incorporated into the court’s judgment, has improperly, as a matter of law, interpreted a provision of the parties’ representation agreement or whether the defendant is claiming that the facts found by the fact finder were clearly erroneous and should not have been adopted by the court. Any legal conclusions reached by the fact finder have no conclusive effect on a court because the reviewing court is the arbiter of the law, and any legal opinions of the fact finder have no weight when reviewed by the court that did render judgment. See Trade-Source, Inc. v. Kemper Construction, Inc., 96 Conn. App. 806, 810-11, 904 A.2d 210 (2006).
      We decline to review this third issue because the defendant’s brief is inadequate and devoid of any analysis as to the claim as stated by him. Furthermore, the defendant’s brief does not make it clear whether his claim relates to an impropriety or improprieties of the fact finder or of the trial court. See Statewide Grievance Committee v. Rapoport, 119 Conn. App. 269, 280, 987 A.2d 1075 (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]), cert. denied, 297 Conn. 907, 995 A.2d 639 (2010).

       Prior to the present action, the defendant appealed to this court from the judgment of dissolution, of the Superior Court, denying his motion for modification of alimony and child support, which was affirmed. See Doody v. Doody, 99 Conn. App. 512, 914 A.2d 1058 (2007). The defendant was not represented by the plaintiff in that case.

       General Statutes § 52-549n provides: “In accordance with the provisions of section 51-14, the judges of the Superior Court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the Superior Court, except claims under insurance contracts for uninsured and or underinsured motorist coverage, in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than fifty thousand dollars exclusive of interest and costs. Such cases may be referred to a fact-finder only after the certificate of closed pleadings has been filed, no claim for a jury trial has been filed at the time of reference, and the time prescribed in section 52-215 for filing a jury trial claim within thirty days of the return day or within ten days after the issue of fact has been joined has expired.”
      Practice Book § 23-53 provides: “The court, on its own motion, may refer to a fact finder any contract action pending in the superior court, except claims under insurance contracts for uninsured and or underinsured motorist coverage, in which money damages only are claimed, which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than $50,000, exclusive of interest and costs. Such cases may be referred to a fact finder only after the pleadings have been closed, a certificate of closed pleadings has been filed, and the time prescribed for filing a jury trial claim has expired.”
      Neither party disputes that the case properly was referred to a fact finder or claims that there was no compliance with § 52-549n and Practice Book § 23-53 as to the amount in controversy or the filing of a certificate of closed pleadings or in any other respect.

       The court’s decision dated November 19,2008, on the defendant’s motion to reargue states: “The defendant admits during oral argument that his motion to reargue is not the proper way to challenge the fact finder’s decision. If this motion is considered as an objection to acceptance of findings of facts pursuant to § 23-57 of the Practice Book, it is time barred.” Practice Book § 23-57 mandates that objections to a fact finder’s findings of fact must be filed within fourteen days after filing. The words of the court make clear that the court, following Practice Book § 23-57, treated the defendant’s motion as an objection to the findings of the fact finder and that the motion improperly was filed more than fourteen days after the filing of the finding of facts. Therefore, the court denied the defendant’s motion.
      The court did not consider any matters of substance raised in the defendant’s motion. In essence, the court overruled what the defendant agreed was an objection to the fact finder’s report. See TradeSource, Inc. v. Kemper Construction, Inc., 96 Conn. App. 806, 809, 904 A.2d 210 (2006). Thus, the fact finder’s report could properly be considered by the judicial authority in accordance with Practice Book § 23-58.

       Practice Book § 23-58 (a) provides in relevant part: “After review of the [fact finder’s] finding of facts and hearing on any objections thereto, the judicial authority may ... (1) render judgment in accordance with the finding of facts

       Specifically, the defendant argues that “[i]n the present case, the trial court concluded its proceedings on March 24,2008, and rendered its decision on September 23, 2008—fully one hundred eighty-three (183) days later.” (Emphasis added.) The record reveals that the hearing was concluded before the factfinder on March 24, 2008, and the fact finder’s memorandum of decision is dated September 23, 2008, and was filed with the court on September 24, 2008. The defendant has treated the fact finder as the trial court. A review of Practice Book §§ 23-52 through 23-59 makes clear that a fact finder does not render judgment following his or her findings, which is the sole prerogative of the courts, but allows the “judicial authority” to render judgment in accordance with the “finding of facts,” among other options pursuant to Practice Book § 23-58.

       General Statutes § 52-549r provides: “In matters submitted to fact-finding a record shall be made of the proceedings and the rules of evidence in civil cases in this state shall apply. The fact-finders shall proceed to determine the matters in controversy submitted to them, and shall prepare and sign a finding of fact, which shall include an award of damages if applicable. Within one hundred twenty days of the completion of the fact-finder’s hearing the fact-finder shall file the finding of fact with the clerk of the court together with sufficient copies thereof for the parties and their counsel.”

       Practice Book § 23-56 (c) provides: “Within 120 days of completion of the fact finder’s hearing the fact finder shall file the finding of facts with the clerk of the court with sufficient copies for all counsel.”

       Although unpreserved, the claim raises the specter of a lack of subject matter jurisdiction, which cannot be waived by any party and also may be raised by a party or by the court sua sponte at any stage of the proceedings, including on appeal. See Vanwhy v. Commissioner of Correction, 121 Conn. App. 1, 7, 993 A.2d 478 (2010); see also Buehler v. Buehler, 117 Conn. App. 304, 315, 978 A.2d 1141 (2009). We conclude that subject matter jurisdiction exists. Section 52-549r provides in relevant part that “[w]ithin one hundred twenty days of the completion of the fact-finder’s hearing the fact-finder shall file the finding of fact with the clerk of the court . . . (Emphasis added.) This language operates as a constraint not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it. See Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 790, 855 A.2d 174 (2004) (“[W]e often have recognized a distinction between subject matter jurisdiction and the proper exercise of authority to act under a particular statute. . . . Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. . . . Whereas [sjubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . the authority to act refers to the way in which that power [to hear and to determine the controversy] must be exercised in order to comply with the terms of the statute. . . . We have maintained that [a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . and, [o]nce it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action.” [Citations omitted; internal quotation marks omitted.]).

        The fact finder’s late filing did not deprive the fact finder or the court of subject matter jurisdiction. Even though subject matter jurisdiction existed, the defendant’s failure to challenge the court’s substantive authority to adjudicate the merits of the case before it because of the court’s acceptance of the fact finder’s late filing is unpreserved, and we, therefore, decline to address this claim on appeal. See Auerbach v. Auerbach, 113 Conn. App. 318, 325, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

       It is not certain whether the defendant is complaining of the facts found by the fact finder or of the court’s judgment rendered pursuant to the fact finder’s findings. The facts found by the fact finder were accepted by the court and formed the basis for the court’s judgment in favor of the plaintiff. The defendant’s second claim states: “The trial court misrepresents several facts that are material to the plaintiffs claim for additional compensation.” On the basis of the defendant’s brief, we conclude that it is the fact finder’s findings about which the defendant complains, but to which he did not timely object, and not the court’s judgment pursuant to those findings.

       Practice Book § 23-57 provides: “(a) A party may file objections to the acceptance of a finding of facts on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the fact finder erred in rulings on evidence or in other rulings, or that there are other reasons why the finding of facts should not be accepted.

        “(b) Objections must be filed within fourteen days after the filing of the finding of facts.”