author: DRANGINIS, J.

text:
    MICHAEL WALKER v. COMMISSIONER OF CORRECTION
    (AC 21458)
    Lavery, C. J., and Dranginis and Freedman, Js.
    Argued September 9 —
    officially released November 19, 2002

      Damon A. R. Kirschbaum, for the appellant (petitioner).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and George Ferko, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

DRANGINIS, J.

The petitioner, Michael Walker, appeals from the habeas court’s dismissal of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly found that his trial counsel’s failure to impeach the testimony of Lee Baskerville, Terry Meade and Detective Joseph Marrero, and to present the testimony of Leon Allen and Rene Henry, did not constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. In March, 1989, a jury, after twice deadlocking, convicted the petitioner of one count of murder in violation of General Statutes § 53a-54a in connection with an incident at a bar in Hartford. He was sentenced to a total effective term of sixty years in prison. After sentencing, the petitioner failed to file appellate papers in a timely manner. On July 24, 1992, in accordance with a stipulated agreement, the court restored his appellate rights. Thereafter, this court affirmed the judgment of conviction in State v. Walker, 33 Conn. App. 763, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994). Thereafter, the petitioner filed a third amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel, denial of a fair trial in violation of his due process rights and actual innocence. Following an evidentiary hearing, in which the court received extensive testimonial and documentary evidence, the court issued a thorough and well reasoned sixty-five page memorandum of decision denying the petition. The petitioner requested certification to appeal, which the court granted. He then filed the present appeal.

Before addressing each of the petitioner’s claims of ineffective assistance of counsel, we begin our analysis with the appropriate standard of review. In a habeas appeal, the court “is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Citation omitted.) Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002).

The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, supra, 466 U.S. 668, in which “the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

“The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . .

“Even if a petitioner shows that counsel’s performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Therefore, [a] habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if the claim may be disposed of on the ground of an insufficient showing of prejudice.” (Citation omitted; internal quotation marks omitted.) Doehrer v. Commissioner of Correction, 68 Conn. App. 774, 777-79, 795 A.2d 548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002).

Here, the petitioner essentially claims that his attorney was ineffective for not eliciting testimony that the shooter was a light skinned male and that the petitioner would not have been convicted had such testimony been presented. The strength of the evidence against the petitioner, however, belies his contention. In making his argument, the petitioner particularly challenges his trial counsel’s failure to cross-examine and to impeach the credibility of Baskerville and Meade, key state’s witnesses, with the inconsistencies between their testimony at trial and prior statements they gave regarding the physical description of the suspect. He insists that his attorney had ample court documents at his disposal to extensively cross-examine Baskerville and Meade, who had provided evidence connecting the petitioner to the crime, about their initial descriptions that the shooter had light skin, a skin tone that does not match the petitioner’s dark complexion. In determining whether trial counsel should have cross-examined those two witnesses, the court noted that Baskerville and Meade had admitted at trial that they initially gave inaccurate descriptions of the shooter because they feared the petitioner. This court is satisfied that the evidence supports the habeas court’s conclusion that it was a valid strategic decision for trial counsel not to question Baskerville or Meade about their prior misstatements because such cross-examination could have opened the door to testimony about their fear of the petitioner, especially where such testimony could have done more harm than good. Moreover, trial counsel elicited testimony from Baskerville that was consistent with the petitioner’s alibi that he was at a halfway house at the time of the shooting. That testimony highlights yet another strategic reason for trial counsel not to have impeached Baskerville with the prior inconsistencies.

The petitioner further argues that trial counsel should have impeached Marrero’s testimony that the descriptions of the shooter ranged “from one end of the spectrum to the other end of the spectrum” with the twelve statements that had been given to the police that all described the shooter as a light skinned Hispanic or black male. Given the fact that it is the absolute responsibility and right of the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their testimony; State v. Thompson, 69 Conn. App. 299, 317, 797 A.2d 539, cert. granted on other grounds, 260 Conn. 936, 802 A.2d 90 (2002); we agree with the court that the jury was free to accept or to reject the numerous descriptions provided during trial that the shooter was light skinned, particularly in light of the fact that the jury had the opportunity to view the petitioner. Accordingly, we agree with the court’s conclusion that additional evidence regarding the shooter’s light skin complexion would not have had a significant impact on the jury’s decision.

The petitioner also faults his trial counsel for not calling two witnesses, Allen and Henry, whose testimony, he argues, could have provided exculpatory information. Specifically, the petitioner argues that because Allen and Henry were in the bar when the shooting took place they would have testified that the shooter was a light skinned Hispanic or a black male. On the basis of that supposed testimony, the petitioner maintains that it would have been possible for the jury to conclude that he was not the shooter. In his principal brief, the petitioner incorrectly states that the habeas court did not rule on that argument. The court, in fact, concluded that trial counsel’s failure to call those witnesses did not prejudice the petitioner because the “jury heard numerous descriptions of the shooter and still convicted the [petitioner].” Additionally, during the trial, counsel called three eyewitnesses to rebut the testimony of the state’s witnesses. All three of the petitioner’s witnesses testified that they knew the petitioner and stated that he was not the shooter. Rather, the shooter, according to those witnesses, was a light skinned male who they had never before seen. We agree with the habeas court that trial counsel’s decision not to have Allen and Henry testify on the petitioner’s behalf was based on his reasonable belief that their testimony would have elicited needless cumulative evidence.

After a careful review of the record and after applying the appropriate standard of review, we conclude that the petitioner has failed to demonstrate that the habeas court’s factual findings are clearly erroneous. The record reveals that trial counsel was a competent attorney who made certain strategic or tactical decisions in defending the petitioner that were reasonable and logical under the circumstances of the case. We therefore conclude that the petitioner has failed to satisfy his burden of establishing that his trial counsel’s performance fell below an objective standard of reasonableness or that there was a reasonable probability that but for trial counsel’s allegedly deficient performance, the result would have been different.

The judgment is affirmed.

In this opinion the other judges concurred.

       The details of the incident that led to the petitioner’s conviction are set forth in State v. Walker, 33 Conn. App. 763, 764-66, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994), as follows. “The victim, Sylvester Meade, was shot and killed outside the Blue Hills Cafe in Hartford. Four witnesses identified the [petitioner] as the person who shot the victim. Terry Meade, the victim’s niece, testified that she saw the shooting while standing next to a car in front of the cafe, and saw the shooter run toward Adams Street in Hartford. She recognized the gunman as the [petitioner], but, because she was afraid of the [petitioner], did not immediately identify him to the police, and instead gave the police a deliberately inaccurate description of the shooter.
      “Lee Baskerville testified that he saw the [petitioner], whom he had seen before, fire shots at the victim and then run toward Adams Street. Baskerville identified the [petitioner] as the gunman from a photographic array, and also identified the [petitioner] at trial.
      “Geraldine Conners testified that she heard gun shots while in her first floor apartment at 1347 Albany Avenue. She looked out a window and saw, in a well lit area, someone running from Albany Avenue toward Adams Street. About one year later, Conners selected a photograph of the [petitioner] from a photographic array after viewing the array in her apartment. The following day, she again picked a photograph of the [petitioner] from a photographic array, and gave a written statement to the police. At trial, Conners was not able to identify the [petitioner].
      “Diane Sims, Conner’s daughter, testified that she heard gun shots while in her second floor apartment at 1347 Albany Avenue. She looked out a window, and saw someone running through a vacant lot toward Adams Street. About one year after the shooting, when her mother was being shown the photographic array in her apartment, Sims entered the bedroom where the photographs were laid out on the bed. At that time, she told the police that she had seen someone the night of the shooting. The police asked her to look at the array, and she selected a photograph of the [petitioner]. At trial, she was not able to identify the [petitioner].
      “Three witnesses testified that the [petitioner] was not the shooter. Eddie Gant testified that he witnessed the shooting from a distance of twenty feet. He stated that the shooter had light skin and curly hair, and that he had never before seen the person. He also testified that he knew the [petitioner], and would have recognized him if he had been the gunman. Prior to his in-court testimony, Gant had told a police officer that he had not seen the shooting.
      “Bumess Wallace and Lillian Threet both testified that at the time of the shooting they were together in a car across the street from the victim’s car, and that the gunman had light skin. They also testified that they knew the [petitioner], and that they were sure the [petitioner] was not the gunman. They both acknowledged that, although they knew that the [petitioner] had been charged with the crime, they did not go to the police with their account.
      “At the time of the shooting, the [petitioner] was in the custody of the department of correction, and living in the Watkinson halfway house as part of a work release program. The halfway house is approximately one mile from the cafe. On the evening of the crime, which occurred between 12:45 and 1 a.m., the [petitioner] had left the house on an authorized furlough and was not there at 10 p.m., but was present at midnight and at 2 a.m. for facility head counts. The log indicated that the [petitioner] had also signed out at about 11 p.m., and had returned about twenty minutes later, although he failed to sign in.
      “The [petitioner] was assigned to room twenty-six on the second floor of the house. The whereabouts of those assigned to the house were monitored, most notably by means of a head count at two hour intervals. In order to leave or enter the facility after midnight, a resident had to check in with a counselor. Windows on the first floor were locked, but windows on the second and third floors were not. Residents were not confined to their rooms at night.
      “The facility had had security problems. First floor windows, which residents had access to, had been found unlocked, and other windows had been broken. A drainpipe that ran down from the room adjacent to the window of the [petitioner’s room had been pulled away from the building. A counselor at the facility testified that a resident could get out of the facility undetected between midnight and 2 a.m. Another counselor testified that it was possible to get back into the facility undetected.”

       In Ms appeal to tMs court, the petitioner has abandoned Ms claims of actual innocence and demal of a fair trial. Thus, the only issue before (Ms court is the petitioner’s claim of ineffective assistance of counsel.

       By the time of the habeas hearing, the petitioner’s trial counsel, attorney Daniel J. Hagearty, had died.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    IN RE VINCENT B.

    (AC 22749)
    Foti, Mihalakos and Hennessy, Js.
    Argued September 10 —
    officially released November 19, 2002

      Thomas F. Mitola, for the appellant (respondent father).

      Renee Bevacqua Bollier, assistant attorney general, with whom, on the brief, were Richard Blumenthal,
      attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Albert J. Oneto III, for the appellee (minor child).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

FOTI, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, V. On appeal, the respondent claims (1) that the court improperly concluded that the department of children and families (department) had made reasonable efforts to reunite him with V and (2) that the evidence did not support the court’s finding that termination was warranted under General Statutes § 17a-112 (j) (3) (E). We agree with the respondent’s first claim and reverse the judgment of the trial court.

The following facts and procedural history underlie this case. On September 29, 2000, the commissioner of the department (commissioner) filed a petition, accompanied by a request for an order of temporary custody, alleging that V, who was younger than seven years of age, was neglected in that he was being denied proper care and attention physically, educationally, emotionally or morally, and that he was being permitted to live under conditions, circumstances or associations that were injurious to his well-being. The commissioner also alleged that V was uncared for in that he could not be provided in his home with the specialized care that his physical, emotional or mental condition required. The court granted the commissioner’s request for an order of temporary custody and placed V in the commissioner’s custody.

On November 2, 2000, the commissioner filed a petition requesting termination of the respondent’s parental rights. The petition alleged that termination was warranted under § 17a-112 (j) (3) (E). On November 28, 2000, the court consolidated the petition alleging that V was neglected and uncared for with the petition requesting the termination of parental rights. The court thereafter conducted hearings on the coterminous petitions as to V as well as neglect petitions that were pending as to V’s siblings. See footnote 3.

On December 14, 2001, the court adjudicated V to be neglected and uncared for. The court, in the dispositional phase of the neglect hearing, conducted a hearing on the petition to terminate the respondent’s parental rights and found, by clear and convincing evidence, that the department had made reasonable efforts to reunify V with the respondent. The court also found, by clear and convincing evidence, that the respondent either was unable or unwilling to benefit from such efforts. The court further found that termination of parental rights was in V’s best interest and that termination was warranted under § 17a-112 (j) (3) (E). Accordingly, the court terminated the respondent’s parental rights in V and appointed the commissioner as V’s statutory parent.

We need address only the respondent’s first claim, which is that the department failed to undertake the reasonable efforts required by § 17a-112 (j) (1) to reunite him with V because that claim is dispositive of his appeal. We conclude that the department failed to undertake such efforts and reverse the judgment on that basis.

Section 17a-112 (j) requires, as aprerequisite to terminating a party’s parental rights in his or her child, that the court find “by clear and convincing evidence . . . that the [department] has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . . .” “It is axiomatic that in seeking to terminate parental rights, the commissioner must prove by clear and convincing evidence that the department made reasonable efforts to reunify the parent and child as required by [the statute]. . . . We also note that [t]he statutory criteria must be strictly complied with before termination can be accomplished. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported; every reasonable presumption is made in favor of the trial court’s ruling and we will disturb the findings of the trial court in either the adjudication or disposition phases only if they are clearly erroneous.” (Internal quotation marks omitted.) In re Dorrell R., 64 Conn. App. 455, 462-64, 780 A.2d 944 (2001).

In undertaking our review, however, we also are mindful of the significant interest of which the respondent has been deprived — the right to care for and to raise his child. As the United States Supreme Court has observed, “[w]hen the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. If the State prevails, it will have worked a unique kind of deprivation. ... A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” (Internal quotation marks omitted.) Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

“The term reasonable efforts was recently addressed by this court: Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . [Reasonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case.” (Citation omitted; internal quotation marks omitted.) In re Ebony H., 68 Conn. App. 342, 349, 789 A.2d 1158 (2002).

In the present case, the court noted that the department had been “involved” with the respondent’s family for approximately six years and that this involvement included visits to V’s home by department workers. The court also noted that the department had made services available to the respondent during the ten months prior to its filing of the petition for temporary custody. The court also found that despite the fact that the respondent was not V’s primary caretaker, “when services were available to him he . . . failed to take advantage of them to whatever extent possible.” On the basis of those findings, the court concluded that the department had made “considerable efforts” to help the respondent to resolve his parenting problems.

Our review of the record reveals a significant history between the respondent and the department. The court terminated the respondent’s parental rights in two of his other minor children in April, 1999, and in February, 2000. For a significant amount of time predating those terminations, the department had made services available to the respondent in an effort to achieve reunification. The record reflects, however, that beginning in April, 2000, the respondent voluntarily had entered a long-term inpatient substance abuse treatment program to treat a lengthy alcohol addiction. The respondent also successfully completed counseling for anger management and depression. During his enrollment in that program, the respondent was, for the most part, away from home. During one phase of the program, the respondent was permitted to go home only on weekends. The evidence suggests that the respondent’s participation in the substance abuse program, which ended in May, 2001, was successful.

The respondent was in the treatment program when V sustained the injury that precipitated the department’s actions in this case. For that reason, the respondent was not present when the injury occurred, although he left the treatment facility to be with V while the child was receiving medical care. Furthermore, the respondent was in the treatment program when the commissioner filed the petition to terminate his parental rights. Upon completing the program, the respondent attended regularly scheduled department supervised visits with V. Melody Carr, a social worker with the department, was assigned to V’s case in September, 2000. At trial, she testified that at the time of her involvement, the department had decided not to offer any further services to the respondent. Carr testified that as of September, 2000, the department believed that efforts to reunify V with the respondent had been “exhausted” and, accordingly, offered the respondent the opportunity only to visit with V.

During her testimony, Carr acknowledged that the department’s decision not to engage in further efforts to reunify V with the respondent was based on its prior experiences with the respondent. That experience, however, predated the respondent’s participation in the treatment program. Carr also testified, however, as to her belief at the time of trial that the respondent was in a position to benefit from services offered by the department to assist him in being reunited with two of V’s siblings, who also were in the commissioner’s custody.

The court noted the findings contained in a report authored by Nancy Randall, a psychologist who examined and evaluated the respondent, among others, to assess, in part, his capacity for rehabilitation. Randall concluded, on the basis of her evaluations in January, 2001, that the respondent had been away from home and did not know his children’s needs. Randall also noted that the respondent had always taken a “backseat” to his wife regarding child care matters and that he was not experienced in providing primary child care services. Despite finding that the respondent appeared to be capable of learning new skills, she nonetheless concluded that he was unlikely to make significant changes in his assumption of parenting duties.

We conclude that the department’s efforts to reunite the respondent and V were not reasonable under the circumstances of this case. The respondent’s history of not availing himself of services as well as the department’s filing of the petition to terminate his parental rights did not relieve the department of a continuing duty to make reasonable efforts. The evidence reveals that after the respondent’s successful participation in a lengthy treatment program in May, 2001, he regularly visited with V. Carr testified that the respondent was consistent in visiting with V, that he acted appropriately with V at those visits and that both V and the respondent demonstrated affection for one another. The respondent voluntarily had sought and received substance abuse, anger management and depression counseling. The record shows no evidence of relapses in those areas. Randall noted in her report that the respondent intended to repair the problems in his family life and to care for his children. Furthermore, John McKeithen, a substance abuse counselor who worked with the respondent during his treatment program, testified that the respondent’s participation in treatment and willingness to stay sober was motivated by a desire to “get his family back.”

The aforementioned steps taken by the respondent presented the department with a window of opportunity during which reasonable efforts at reunification should have been made. Reasonable efforts to reunify the respondent with V after the respondent’s completion of the treatment program could have taken any number of forms. Although this court is not in a position to prescribe what actions the department should have taken, it suffices to say that the department should have engaged the respondent, apprised him of what steps he had to take to achieve rehabilitation and given him feedback on his progress in reaching that goal. From the evidence before us, the only request made by the department was that the respondent complete substance abuse treatment. The respondent did so. The department did not make reasonable efforts when it should have done so. In fact, the record reflects that at least as of July, 2000, the department had made no efforts at reunification at all. Although making no efforts to reunify a parent and his or her child may be reasonable in certain circumstances, it was not so in this case.

For related reasons, we likewise conclude that clear and convincing evidence does not support the court’s alternate finding that the respondent was either unable or unwilling to benefit from reunification efforts. We reiterate that the respondent’s positive step in participating in a treatment program demonstrated a degree of rehabilitation in itself. The evidence certainly showed that the respondent had failed to utilize services that were offered to him by the department prior to March, 2000. That failure underlies the prior termination of his parental rights in two of his other children. His failure to participate in services at that earlier time, however, as experts testified, most likely occurred because of his alcohol abuse problems. McKeithen, for example, testified that the respondent, having completed treatment and having maintained sobriety, was in a far better position to benefit from services and to care for V. As previously stated, Carr also testified that as of the time of trial, the department believed that the respondent could benefit from services to reunite him with two of Ms other children who were M the department’s custody.

The respondent did what the department asked of Mm, albeit on Ms own, when he completed the substance abuse treatment program, as well as programs for depression and anger management. Furthermore, the respondent expressed Ms desire to acMeve reunification with V to both McKeithen and to Randall. The court relied on Randall’s conclusion that the respondent was unlikely to be capable of providing parental needs to V in the future. We note, however, that Randall’s conclusions were based on her evaluations of the respondent prior to his successful completion of the treatment program and should be viewed in that context. Despite the fact that the respondent had a Mstory of failed attempts at reunification m regard to other cMldren, we cannot conclude that at all times prior to the date of Ms termination hearing, clear and convincing evidence demonstrated that he was unable or unwilling to benefit from reasonable efforts to reunify him with V.

We note, as a final matter, that the department’s views concerning both the reasonableness of the efforts it made and its views concemmg the respondent’s ability and wilhngness to benefit from such efforts appear to be shaped by its concern for the respondent’s desire to reumte Ms family, should he have parental rights over V. Carr testified that she believed that the respondent’s future plan was to reunify Ms family and to rely on V’s mother, whose parental rights in V have been terminated, as the primary caregiver. Indeed, Carr acknowledged that the department’s concern with respect to the respondent, who was not even livmg at home when V sustained the injury that gave rise to tMs action, centered around the respondent’s perceived desire to reuMte V and V’s mother. Counsel for the department echoed that concern during argument before this court. That concern, however, does not relieve the department of its burden of making reasonable efforts to achieve reunification by engaging the respondent and making available services aimed at instilling in him healthy parental skills. The fact that the respondent may have expressed such an ill-advised plan for V does not mean that given the benefit of department services, the respondent was unwilling or unable to formulate an appropriate plan for V in the future. The expenditure of reasonable efforts by the department should assist the respondent in attempting to do so.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the petition to terminate the respondent’s parental rights.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent mother as to the minor child, V. Because the respondent mother has not appealed from the judgment, we refer in this opinion to the respondent father as the respondent.

       General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing . . . that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that . . . (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent’s parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families . . . .”

       The commissioner also filed similar petitions as to two of V’s siblings, alleging that they were uncared for or neglected. Those two children were older than seven years of age at the time that the commissioner filed those petitions. In addition to its disposition of the coterminous petitions filed on V’s behalf in this action, the court adjudicated the two other children neglected and committed them to the custody of the commissioner. The record also reflects that the court previously had terminated the respondent’s parental rights in two of his other minor children in April, 1999, and in February, 2000.

       The commissioner’s actions followed an incident wherein V sustained a double fracture to his right arm. A social worker reported the injury to the department after noticing what she believed to have been an unreasonable time lapse between when V sustained the injury and when V’s mother sought medical attention on his behalf. The social worker also questioned the nature of how the injury occurred. The court found that the injury occurred in the course of V’s outdoor play, rather than as a result of abuse, but that it resulted from inadequate parental supervision.

       Counsel for V joins the respondent in raising the claim.

       See footnote 4.

       See footnote 3.


author: LAVERY, C. J.

text:
    DANA EVANS ET AL. v. PLAN AND ZONING COMMISSION OF THE TOWN OF GLASTONBURY ET AL.
    (AC 22203)
    Lavery, C. X, and West and Peters, Js.

      Argued September 10 —
    officially released November 19, 2002

      Derek V. Oatis, for the appellants (plaintiffs).

      Barbara A. Frederick, for the appellee (defendant Testa Development Associates, LLC).

      Duncan J. Forsyth, for the appellee (named defendant).
   Opinion

LAVERY, C. J.

The plaintiffs, Dana Evans and David Evans, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant plan and zoning commission of the town of Glastonbury (commission). The commission had approved the applications of the defendant Testa Development Associates, LLC (Testa), for subdivision approval and a rear lot special permit. On appeal, the plaintiffs claim, as they did before the trial court, that the defendants failed to comply with applicable regulations and General Statutes § 22a-19. We conclude that the court properly dismissed the plaintiffs’ appeal, and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. On or about May 1, 2000, Testa filed applications for subdivision-resubdivision approval and a rear lot special permit. The applications were signed by Testa as the “applicant” and by the defendants David M. Russell and Alvah A. Russell, Jr., as the “owners” of the property. On June 6,2000, the plaintiffs filed petitions to intervene pursuant to § 22a-19 (a). On July 18, 2000, the commission approved Testa’s subdivision and special permit applications. The plaintiffs appealed to the trial court, claiming that (1) the commission improperly failed to require the defendants to comply with § 5.6 (c) of the Glastonbury subdivision and resubdivision regulations, (2) the commission improperly failed to require the defendants to comply with § 6.8.3 of the Glastonbury building zone regulations, and (3) the proposed subdivision causes an unreasonable impairment to wildlife, and the commission failed to consider any alternatives to the proposal as required by § 22a-19.* ** Thted those claie court rejecms and dismissed the plaintiffs’ appeal, finding that the regulations did not apply to Testa because it was the applicant and not the owner of the subject property. The court further found that substantial evidence existed that the proposed plan would not cause unreasonable impairment in natural resources of the state. We granted the plaintiffs’ petition for certification to appeal and now conclude that the court properly dismissed the plaintiffs’ appeal.

I

The plaintiff Dana Evans 6first argues that the commission improperly approved Testa’s application because Testa had not submitted information required by § 5.6 (c) of the Glastonbury subdivision and resubdivision regulations. Testa counters that the requirements of § 5.6 (c) are not applicable to the application at issue.

Before reaching the merits of the plaintiff Dana Evans’ claim, we note that she did not raise that issue before the commission. The court, citing Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992), held that her failure to raise her claim before the commission barred it from reviewing the claim on appeal. The plaintiff Dana Evans challenges that decision.

“A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the [commission].” Id.; see Dram Associates v. Planning & Zoning Commission, 21 Conn. App. 538, 544, 574 A.2d 1317, cert. denied, 215 Conn. 817, 576 A.2d 544 (1990). A thorough review of the record in the present case reveals that the plaintiff Dana Evans failed to challenge § 5.6 of the Glastonbury subdivision and resubdivision regulations before the commission. The court properly held, therefore, that she could not raise that claim on appeal. The court, however, then addressed the merits of that claim. Therefore, we will review it on the merits.

Before commencing our review of the plaintiff Dana Evans’ claim, we set forth the general principles that govern our review of the regulations at issue. When interpreting an ordinance, we recognize that “[a] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances. ... A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. ... A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” (Citations omitted; internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 604-605, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002).

With the foregoing principles in mind, we consider the plaintiff Dana Evans’ claim regarding § 5.6 (c), which provides in its entirety: “Where development covers only a portion of the land owned by the Applicant, the Applicant shall submit a non-binding Plan . . . indicating potential development of the entire tract in relation to the tract involved in the current application. Any portion not included in the subdivision shall be labeled ‘other land of “owner” not approved for building purposes.’ ”

The issue is essentially whether Testa, the applicant, was required to submit the nonbinding plan required by § 5.6 (c). It is undisputed that at the time that Testa filed the subdivision application and rear lot special permit application, it did not own the property at issue or any adjacent property. Rather, it had an option to purchase the property from the owners, the defendants Lucy May Russell, David Russell and Alvah Russell, Jr.

The plaintiff Dana Evans argues that the terms “applicant” and “owner” are interchangeable and, therefore, the commission should have required Testa to submit a nonbinding plan for the future use of the “other lands” owned by the Russells that were adjacent to the subject land. She contends that Testa’s failure to submit the necessary information as required by the regulation was fatal, and, further, that the commission had no discretion to waive the requirement and to approve the application. In contrast, Testa maintains that there is a distinction between the terms “applicant” and “owner” of the subject land and that by its express terms, § 5.6 (c) applies only to “other lands” belonging to the “applicant.” Because it did not own or have any interest in land adjacent to the subject property, Testa asserts, it was not subject to the regulation. We agree with Testa.

Initially, we note that § 2.1 of the subdivision and resubdivision regulations recognizes a distinction between owners and applicants. That section defines “applicant” to mean “the owner of record or any person, firm, corporation, partnership, association or appointed agent having interest in a parcel of land with written consent by the owner, who applies to the Commission for approval of subdivision or resubdivision of said land.” The regulations, therefore, do not use the terms “applicant” and “owner” interchangeably. Rather, the regulations provide that an applicant may be someone other than the owner.

We further note that § 5.6 (c) specifically refers to the “land owned by the [applicant.” The court found that in the present case, the applicant, Testa, had filed the applications for subdivision and rear lot special permits with the consent of the owners, the Russells. Because it was undisputed that Testa did not own the subject property or any “ ‘other land . . . not approved for building purposes,’ ” the court properly found that § 5.6 (c) did not require Testa or the commission to do anything.

The plaintiff Dana Evans argues, however, that to recognize a distinction between an owner and an applicant, where there exists consent and a clear commonality of interest in the application and approval by the commission, would be to advance form over substance. She contends that our courts have rejected such a technical distinction between an owner and applicant. She concedes, however, that the cases on which she relies primarily involve issues of standing and the desire of an applicant, who is not the owner of record, to challenge an adverse decision of a zoning commission. See, e.g., Richards v. Planning & Zoning Commission, 170 Conn. 318, 321-24, 365 A.2d 1130 (1976); Michel v. Planning & Zoning Commission, 28 Conn. App. 314, 324-25, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824 (1992). The present case, however, does not involve such an issue. The question, rather, is whether Testa was required to submit a nonbinding plan with regard to property in which Testa undisputedly had no ownership interest. On the basis of our review of the record, and considering the express language of § 5.6 (c), we conclude, as did the trial court, that Testa was not required to submit the nonbinding plan referred to in that section.

II

The plaintiff Dana Evans* ****** next argues that the defendants failed to comply with building zone regulation § 6.8.3. She argues, as she did before the trial court, that Testa’s final plans reveal a driveway that provides access to both the subject property and to other, undeveloped land of the Russells, and that this driveway was not labeled in accordance with § 6.8.3. She again contends that Testa’s failure to submit the necessary information was fatal to its application, and, further, that the commission had no discretion to waive that requirement and to approve the application. We disagree.

Section 6.8.3, entitled “Resubdivision Limitation,” provides in relevant part that “any driveway that has the potential to, or is anticipated to access ‘other land of, as defined under Section 6.8 (c) of the Glastonbury Subdivision and Resubdivision Regulations, shall be labeled ‘possible future access drive to undeveloped land’ on the final development plans. No rear lot shall be approved without compliance with this paragraph.”

As the court correctly pointed out, § 6.8.3 refers to a definition of “other land of’ contained in § 6.8 (c) of the subdivision and resubdivision regulations. Section 6.8 (c) of the subdivision and resubdivision regulations, however, does not exist. The definition of “other land of,” as stated in § 6.8.3, is, therefore, unclear. The plaintiff Dana Evans claims that the Russells’ undeveloped land meets the definition of “other land of’ referred to in § 6.8.3, and, therefore, Testa was required to label its proposed driveway as “ ‘possible future access drive to undeveloped land’ ” in its subdivision plan. Testa counters that its land and not the Russells’ land falls within the purview of the “other land of’ referred to in § 6.8.3. We agree with Testa.

The concept of “other land of’ is addressed in §§ 5.6 (c) and 6.6 of the Glastonbury subdivision and resubdivision regulations. Read as a whole, therefore, it is likely that the intended reference in § 6.8.3 of the building zone regulations to “other land of’ was either to § 5.6 (c) or to § 6.6. As discussed in part I, those sections apply to the other land of the applicant, in this case, Testa, and not to the other land of the owner, in this case the Russells. The court, therefore, properly concluded that the term “other land of’ referred to lands owned by Testa and not the Russells. The court then correctly concluded that because Testa, as the applicant, “did not own a qualifying driveway or any undeveloped land in the area depicted on the plans, § 6.8.3 simply did not apply to this case.”

III

The plaintiffs Dana Evans and David Evans next argue that the commission failed to follow the statutory requirements of § 22a-19 by not considering feasible and prudent alternatives to the proposed application. The plaintiffs claim that once they had established that the proposed application reasonably was likely to impair or to destroy the public trust in natural resources, specifically, resident species of animals, the commission was required to consider feasible and pradent alternatives to that harm. The defendants counter that § 22a-19 requires the consideration of alternatives only if the proposed project involves conduct reasonably likely to cause unreasonable impairment to a natural resource. The defendants further contend that the record contains substantial evidence to support the commission’s implied finding that the applications did not involve conduct that reasonably was likely to have an unreasonable effect on any species. We agree with the defendants.

We again begin by setting forth the appropriate standard of review. Because statutory construction is a question of law, our review is plenary. See State v. Marro, 68 Conn. App. 849, 855, 795 A.2d 555 (2002). We conduct our review of the plaintiffs’ claim, however, mindful that we do not write on a clean slate. In Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 668 A.2d 340 (1995), our Supreme Court discussed when zoning commissions are required to consider alternatives pursuant to § 22a-19 (b). In Paige, the Supreme Court stated that “[b]y its plain terms, General Statutes § 22a-19 (b) requires the consideration of alternative plans only where the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue. . . . In view of the factors and standards that govern the determination in each case, any fear that a broad definition will cause alternative plans to be required in virtually eveiy case is plainly unwarranted.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Paige v. Town Plan & Zoning Commission, supra, 462-63; see also Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 736 n.33, 780 A.2d 1 (2001). The court, therefore, properly held that the dispositive issue was whether the proposal would cause unreasonable impairment of natural resources so as to require the commission to consider alternatives. We agree with the court that once the commission made no finding of unreasonable impairment of natural resources, it no longer had an obligation to consider alternative plans.

We next consider whether the court properly found that substantial evidence existed that the subdivision would not cause an unreasonable impairment to natural resources. “In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record. . . . [EJvidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The [commission’s] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence ... to support any such reason [however] must be substantial . . . .” (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).

In concluding that substantial evidence existed to sustain the commission’s determination, the court properly relied on a report prepared by Rema Ecological Services, LLC, concerning the presence of the timber rattlesnake and other species of wildlife in the subject area. We agree with the court that the report, which was submitted by Testa’s expert, constitutes substantial evidence to support the commission’s decision that Testa’s proposal would not cause an unreasonable impairment to natural resources. The court, citing the report, stated that “it is highly unlikely that the timber rattlesnake utilizes the site. The report did find that several species, such as the rose-breasted grosbeak, the coyote and the wild turkey, do have a habitat or are found within the subject area. The report concludes, however, that ‘the local diversity of wildlife species would not be compromised by the proposal. This is greatly due to the relative low density of development and the amount of undeveloped and/or protected habitat that exists adjacent to the site.’ ”

On the basis of our review of the record, we conclude that the court properly found that substantial evidence existed that the proposed subdivision would not unreasonably impair natural resources.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants at trial were the plan and zoning commission of the town of Glastonbury, Testa Development Associates, LLC, and property owners Lucy May Russell, David M. Russell and Alvah A. Russell. The commission and Testa are the defendants on appeal.

       Section 5.6 (c) of the Glastonbury subdivision and resubdivision regulations provides: “Where development covers only a portion of the land owned by the Applicant, the Applicant shall submit a non-binding Plan ([one inch equals 100 feet scale] Class ‘D’ Survey) indicating potential development of the entire tract in relation to the tract involved in the current application. Any portion not included in the subdivision shall be labeled ‘other land of “owner" not approved for building purposes.’ ”

       Section 6.8.3 of the Glastonbury building zone regulations provides: “A Section 6.8 Special Permit shall not be granted for any rear lot that is created by the resubdivision of any numbered and approved lot in any subdivision approved after the effective date of this ordinance (3/09/87). Furthermore, any driveway that has the potential to, or is anticipated to access ‘other land of, as defined under Section 6.8 (c) of the Glastonbury Subdivision and Resubdivision Regulations, shall be labeled ‘possible future access drive to undeveloped land’ on final development plans. No rear lot shall be approved without compliance with this paragraph.”

       General Statutes § 22a-19 provides: “(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
      “(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”

       The court found that the plaintiff Dana Evans had proven aggrievement as an abutting landowner. See General Statutes § 8-8 (a) (1). The court also found that the plaintiff Dana Evans had standing to raise environmental claims pursuant to § 22a-19. The plaintiff David Evans’ standing was limited to raising environmental claims pursuant to § 22a-19. Because David Evans’ standing was limited to asserting claims pursuant to § 22a-19, the claim regarding the defendants’ compliance with § 5.6 (c) of the subdivision and resubdivision regulations applies only to the plaintiff Dana Evans.

       It is undisputed that following the commission’s approval of the applications, Testa purchased the property from the Russells. Testa contends that this action renders the plaintiffs’ claims moot with regard to § 5.6 (c) of the subdivision and resubdivision regulations, and § 6.8.3 of the building zone regulations. See part II. We will, however, consider this case in the manner in which it was presented to the commission and the court and consider those arguments on the merits.

       In so holding, we note the argument by the plaintiff Dana Evans that subdivision and resubdivision regulation 6.6, entitled “Other Lands of Applicant,” defines the land and the identity of the actual owner broadly, and in relation to the clear interests and relationship of the “owner” and “applicant.” That section provides: “In determining the total open space to be dedicated, the Commission may, if the Applicant so requests, consider not only the tract or tracts to be subdivided immediately but also any other adjacent tract owned, controlled or under agreement to buy or optioned by the Applicant or corporation controlled or owned by the Applicant.” Thus, “other lands of applicant” essentially refers to adjacent tracts owned or controlled by the applicant or a corporation owned or controlled by the applicant. As it is undisputed that Testa did not own or have any interest in the adjacent property owned by the Russells, § 6.6 would be applicable if the Russells were a “corporation controlled or owned” by Testa. No such evidence was presented before the commission.

       See footnote 5.

       As with the first issue on appeal, the plaintiff Dana Evans failed to raise the challenge to § 6.8.3 before the commission. The court properly held, therefore, that her failure to preserve the issue precludes judicial review of the issue. Because the court nonetheless considered the merits of the claim, we likewise will consider its merits.

       See footnote 5.


author: PER CURIAM.

text:
    ANDRE RHODES v. COMMISSIONER OF CORRECTION
    (AC 22467)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 19, 2002

      Sebastian O. DeSantis, special public defender, filed a brief for the appellant (petitioner).

      Mary M. Galvin, state’s attorney, and James M. Ralls and Angela R. Macchiarulo, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Andre Rhodes, appeals from the habeas court’s denial of his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that he failed to prove his claim of ineffective assistance of counsel. We dismiss the appeal.

In affirming the petitioner’s conviction on direct appeal, our Supreme Court stated in State v. Rhodes, 248 Conn. 39, 726 A.2d 513 (1999), that the jury could have reasonably found the following facts. “On the evening of July 29,1995, the [petitioner] and an unidentified male companion went to Kenneth Vitale’s apartment to purchase one-quarter pound of marijuana from Vitale’s friend, Michael Day, the victim. Vitale’s girlfriend, Megan Schwatlow, and Carolyn Huhn were present at the apartment. When the victim arrived with the marijuana, Vitale, the victim, the [petitioner] and the unidentified male convened in the bedroom to weigh the drugs. Thereafter, it was determined that the marijuana weighed five grams less than expected. The victim then attempted to place a telephone call to the person from whom he had obtained the marijuana. While the victim was on the telephone, Vitale departed from the bedroom and, as he was proceeding toward the living room, he heard the sound of a gunshot. Seconds later, the unidentified male left the bedroom and proceeded into the living room carrying a brown paper bag containing the marijuana. The [petitioner] followed immediately thereafter, brandishing a pistol and pointing it in the direction of Vitale, Schwatlow and Huhn. The [petitioner] and the unidentified male fled the apartment. Vitale then went into the bedroom and observed the victim lying on the bed, semiconscious, with the telephone receiver in his hand. According to the medical examiner, the victim had been shot twice in the chest from a distance of less than two feet. The victim died from injuries sustained as a result of the gunshot wounds.

“Vitale reported the incident to the police and provided them with the [petitioner’s] name and address. The police located the [petitioner] two days later at the apartment of a friend, Leon Telford. The police conducted a search of Telford’s home and found a red, nylon zippered bag, containing a semiautomatic pistol, two bags of marijuana and a bag of hashish. Ballistics testing definitively matched the pistol to two spent bullets that had been found near the victim’s body and the [petitioner’s] fingerprint was found on two of the bags containing the drugs. In addition, Vitale and Schwatlow made positive out-of-court and in-court identifications of the [petitioner]. Both Vitale and Schwatlow described the [petitioner’s] pistol to the police and later identified it at trial. Huhn also made a positive in-court identification of the [petitioner],

“After six days of deliberations, the jury found the [petitioner] guilty of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8, and felony murder in violation of General Statutes § 53a-54c.” State v. Rhodes, supra, 248 Conn. 40-42.

On September 20,1999, the petitioner filed a petition for a writ of habeas corpus, claiming that the evidence was insufficient to support the verdict and that the trial court improperly allowed the state to exercise a peremptory challenge on the basis of race. On April 17, 2001, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. An evidentiary hearing took place, and on October 2, 2001, the court rendered judgment dismissing the petition. On October 5, 2001, the court denied the petitioner’s petition for certification to appeal. This appeal followed.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court .... First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. ... To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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.” (Citations omitted; internal quotation marks omitted.) Grant v. Commissioner of Correction, 68 Conn. App. 484, 487, 791 A.2d 697, cert. denied, 260 Conn. 909, 795 A.2d 544 (2002).

“The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner must prove both deficient performance and actual prejudice. . . . Therefore, for the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different.” (Citation omitted, internal quotation marks omitted.) Grant v. Commissioner of Correction, supra, 68 Conn. App. 486.

The petitioner claimed that his counsel failed to call potential alibi witnesses to testify as to his whereabouts at the time he allegedly killed the victim. The petitioner claimed that he had been in two bars in New Haven at the time the victim was murdered. The potential alibi witnesses testified at the habeas trial that they had been present at the New Haven bars during the night in question, but they could not testify that they had seen the petitioner at the time of the murder so as to support his alibi defense. The potential witnesses also testified at the habeas trial that they had been aware of the petitioner’s arrest and that if they had had any information that would have been pertinent to the police or to defense counsel, they would have come forth and reported such information.

The petitioner also claims that his counsel failed to call Regina Rhodes, the petitioner’s wife, to corroborate his statement that he was not present at the murder scene. The petitioner’s counsel made a tactical decision not to call Regina Rhodes to testify during the trial because she would not be able to testily as to where the petitioner was when he made a telephone call to her and, therefore, she would not significantly assist the petitioner’s alibi defense. In addition, Regina Rhodes’ written statements to the police were inconsistent with the statement that she had given to the investigator hired by the petitioner’s counsel. Those inconsistencies could have been used to impeach her credibility.

The petitioner has failed to demonstrate deficient performance by his counsel. See id. Our thorough review of the record leads us to conclude that the petitioner has failed to demonstrate that the court abused its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The petitioner appealed from his conviction following the jury trial. The sole issue on appeal involved a juror’s allegedly improper conduct with a nonjuror during the trial. Our Supreme Court upheld the conviction in State v. Rhodes, supra, 248 Conn. 39.

       The petitioner also claims that his counsel failed to cross-examine Vitale effectively concerning discrepancies between Vitale’s statement to police and his subsequent testimony. A review of the transcript reveals that counsel did, in fact, question Vitale concerning those discrepancies.

       One of the potential witnesses was a member of the New Haven police department who was working extra duty in full uniform on the night of the murder at one of the bars that the petitioner frequented.


text:
    STATE OF CONNECTICUT v. FRANCISCO JIMENEZ
    (AC 22120)
    Lavery, C. J., and Dranginis and Dupont, Js.
    Argued September 19 —
    officially released November 19, 2002

      Arnold V. Amore, special public defender, for the appellant (defendant).

      Melissa L. Streeto, special deputy assistant state’s attorney, with, whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroti, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Francisco Jimenez, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a) and possession of narcotics with intent to sell within 1500 feet of an elementary school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that there was insufficient evidence to support his conviction as to either crime because the cocaine was not actually found on his person. We disagree.

The jury could have reasonably found the following facts. At approximately 5 p.m. on March 10,1999, members of the New Britain police department went to the defendant’s residence to execute an arrest warrant on an unrelated charge. Prior to the defendant’s being handcuffed, an officer patted the defendant down to ascertain if he had any weapons in his possession. As the officer attempted to pat the defendant down, the defendant was constantly moving. Once handcuffed, the defendant then was placed in a police cruiser, where he was observed twisting back and forth. The defendant’s shifting motion continued until he was taken out of the vehicle upon arrival at the police station.

While the defendant was being processed, the officer who transported the defendant to the police station returned to his vehicle to perform a customary search of the backseat, where he found a plastic bag containing a white powdery substance. The officer took the bag to where the defendant was being processed to have its contents tested. Prior to the test, the defendant stated to the officer: “It’s not real.” A test revealed that the bag contained 4.4 ounces of cocaine. The defendant then was arrested and subsequently was convicted of possession of narcotics with the intent to sell by a person who is not drug-dependent and possession of a controlled substance with intent to sell within 1500 feet of an elementary school.

It is the defendant’s sole contention on appeal that there was insufficient evidence to convict him of either crime because no drugs actually were found on his person. We disagree.

Although the defendant seeks review under the plain error doctrine; Practice Book § 60-5; or under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), he preserved his claim at trial and, therefore, we need not engage in a plain error or Golding analysis. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light 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. . . .

“The question on appeal is not whether we believe that the evidence established guilt beyond a reasonable doubt, but rather whether, after viewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . While the jury may not speculate to reach a conclusion of guilt, [it] may draw reasonable, logical inferences from the facts proven to reach a verdict. . . . Deference is given to the trier of fact who had the opportunity to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility. . . .

“In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . 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.) State v. Riser, 70 Conn. App. 543, 551, 800 A.2d 564 (2002).

“In order to prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where, as here, the cocaine was not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999).

In the present case, there was ample evidence to support the jury’s conclusion that the defendant was in constructive possession of the cocaine that was found in the backseat of the police vehicle. The jury heard testimony that prior to the start of his shift, Officer Michael Conway, who had transported the defendant to the police station, inspected the backseat of his vehicle to ensure that there was no contraband or other materials present. The backseat was aplastic, one piece modular, designed so that there were no crevices where anything could be hidden. Further, Conway testified that he was the only person who had the keys to the vehicle, that he kept the vehicle locked at all times when he was not present in it and that the defendant was the only person to be placed in the backseat from the time that Conway inspected the area prior to the start of his shift until Conway found the bag of cocaine in the backseat after transporting the defendant to the police station. The jury also was told that during the entire time that the defendant was in the backseat of the vehicle, he was shifting and moving about, movement that is typical of a prisoner trying to discard something. Finally, once the defendant saw the bag of cocaine that was found in the backseat of the vehicle, he stated: “It’s not real.”

“We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . . [T]he evaluation of [a witness’] testimony and credibility are wholly within the province of the trier of fact. . . . [I]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; internal quotation marks omitted.) State v. Riser, supra, 70 Conn. App. 555.

On the basis of the cumulative evidence that the jury heard, it could have reasonably concluded that the defendant’s movement while he was in the police vehicle was because he sought to discard the bag of cocaine that was in his possession at the time of his arrest, thereby supporting a conclusion that he was in constructive possession of the narcotics when the narcotics were seized from the vehicle’s backseat. Accordingly, there was sufficient evidence to support the jury’s verdict of guilty.

The judgment is affirmed.

       In his brief to this court, the defendant also based his claim of insufficient evidence on the fact that the warrant for his arrest never was introduced at his trial. The defendant merely mentions that issue without analysis. “A reviewing court will not consider an inadequately briefed issue. ... An issue merely mentioned will be deemed abandoned.” (Citation omitted.) State v. Wragg, 61 Conn. App. 394, 395 n.1, 764 A.2d 216 (2001). Accordingly, we decline to review that part of the defendant’s claim.

       The defendant stipulated at trial that his residence is within 1500 feet of an elementary school.


author: MIHALAKOS, J.

text:
    KENNETH F. LEMOINE, JR. v. COMMISSIONER OF CORRECTION
    (AC 22114)
    Mihalakos, Flynn and Hennessy, Js.
    Argued September 11 —
    officially released November 19, 2002

      Conrad Ost Seifert, special public defender, for the appellant (petitioner).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

MIHALAKOS, J.

The petitioner, Kenneth F. Lemoine, Jr., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly found that his trial counsel and appellate counsel provided effective assistance. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. In June, 1992, a jury convicted the petitioner of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), risk of injury to a child in violation of General Statutes § 53-21 and two counts of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l). The petitioner was acquitted of five additional charges. He was sentenced to a total effective term of fourteen years in prison. Thereafter, the petitioner appealed, and this court reversed the judgment of conviction and ordered a new trial. State v. Lemoine, 33 Conn. App. 743, 641 A.2d 131 (1994). Our Supreme Court granted the state certification to appeal, reversed this court’s judgment and remanded the case for consideration of the petitioner’s remaining appellate claim. State v. Lemoine, 233 Conn. 502, 659 A.2d 1194 (1995). This court thereafter affirmed the petitioner’s conviction. State v. Lemoine, 39 Conn. App. 657, 666 A.2d 825 (1995).

On November 4, 1998, the petitioner filed a second amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel, ineffective assistance of appellate counsel and actual innocence. Following an evidentiary hearing, at which the court reviewed the trial transcripts and records, and heard from the petitioner’s previous attorneys, the court rendered a thorough memorandum of decision denying the petition. The petitioner thereafter requested certification to appeal, which the court granted. The petitioner then filed the present appeal.

The petitioner asserts that the court improperly determined that his trial counsel and appellate counsel provided effective assistance. The petitioner asserts that trial counsel neglected (1) to request a contemporaneous limiting instruction regarding constancy of accusation testimony, (2) to challenge the constancy of accusation testimony, (3) to challenge the court’s jury instructions regarding constancy of accusation evidence, (4) to contest the court’s jury instructions regarding the charge of sexual assault in the third degree and (5) to object to certain allegedly inappropriate statements made by the prosecutor during closing argument to the juiy. In addition, the petitioner contends that appellate counsel failed to challenge (1) the unpreserved jury instructions regarding the charge of sexual assault in the third degree and (2) the unpreserved prosecutorial misconduct claims, which purportedly occurred during the prosecutor’s closing argument.

Before addressing each of the petitioner’s claims, we begin our analysis with the appropriate standard of review. A court “is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Citation omitted.) Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002).

“A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.” (Citation omitted; internal quotation marks omitted.) Crump v. Commissioner of Correction, 61 Conn. App. 55, 58-59, 762 A.2d 491 (2000).

The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in which “the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . .

“The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . .[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . .

“Even if a petitioner shows that counsel’s performance was deficient, the second prong, or prejudice prong, requires that the petitioner show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Therefore, [a] habeas court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if the claim may be disposed of on the ground of an insufficient showing of prejudice.” (Citation omitted; internal quotation marks omitted.) Doehrer v. Commissioner of Correction, 68 Conn. App. 774, 777-79, 795 A.2d 548, cert. denied, 260 Conn. 924, 797 A.2d 520 (2002); Crump v. Commissioner of Correction, 68 Conn. App. 334, 337-38, 791 A.2d 628 (2002).

Furthermore, “[w]e have [also] adopted the two-part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel.” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 68 Conn. App. 337; see Holloway v. Commissioner of Correction, 72 Conn. App. 244, 249, 804 A.2d 995, cert. denied, 261 Conn. 944, 808 A.2d 1136 (2002).

The petitioner claims that he was denied the effective assistance of counsel in violation of his federal and state constitutional rights. In its memorandum of decision, the court focused largely on the deficient performance element of the Strickland test and concluded that it had not been satisfied. Regardless, the petitioner would not have prevailed because he could not have satisfied the second prong of the Strickland test.

The petitioner first asserts that his trial counsel should have requested a contemporaneous limiting instruction regarding the constancy of accusation testimony. As the habeas court correctly stated, although it is acceptable for a trial court, in its discretion, to give a contemporaneous limiting instruction to the jury, there is no rule of practice or statutory requirement that the court must give such an instruction contemporaneously with the introduction of such testimony. See State v. Bethea, 24 Conn. App. 13, 21, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). Thus, it was not improper for trial counsel not to request a different charge and not to object to the charge given by the trial court. Furthermore, the habeas court found that the trial court had charged the jury properly by instructing that the constancy of accusation evidence was to be admitted solely to corroborate the victim’s testimony. We agree with the habeas court’s findings. See id.; see generally State v. Wild, 43 Conn. App. 458, 465, 684 A.2d 720, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996).

Second, the petitioner asserts that trial counsel was ineffective in challenging the constancy of accusation evidence and jury instructions regarding the same. The habeas court noted that trial counsel had objected to each constancy of accusation witness who was presented and took exception to each witness’ testimony. The court held that there was adequate evidence in the record to demonstrate that those witnesses remembered speaking with the victim and that the trial court had charged the jury properly on how that evidence should be considered. The habeas court found that although the trial court in its charge had used the term “they,” “[i]t [was] clear in reading the charge that ‘they’ refers to the statement of the victim as given to the constancy witnesses as concerns whether each of these several out-of-court statements, (‘they’), were consistent with the victim’s recollection of what happened.”

“The test of a charge is whether it is correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) State v. Lemoine, supra, 233 Conn. 510. This court is satisfied that the evidence supports the habeas court’s conclusion that there is no indication that the jury was misled or confused by the instructions. Therefore, we agree with the habeas court that both the admission of the testimony and the jury charge were proper. See State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (enbanc); State v. Williams, 65 Conn. App. 449, 463-65, 783 A.2d 53, cert. denied, 258 Conn. 927, 783 A.2d 1032 (2001).

Nonetheless, even if this court had found that trial counsel should have objected to the jury charge, the petitioner would still fail to satisfy the second prong of the Strickland test. The habeas court found, and we agree, that the petitioner did not establish a reasonable probability that, absent counsel’s allegedly unprofessional errors, the result of the proceedings would have been different. See Bunkley v. Commissioner of Correction, 222 Conn. 444, 454-55, 610 A.2d 598 (1992).

The petitioner further argues that both his trial counsel and appellate counsel should have challenged the jury charge regarding sexual assault in the third degree, § 53a-72a (a) (1) (B), and insisted that the court define the term “compels.” The petitioner felt disadvantaged by the charge that was given because he believed it unfairly deemphasized the element of compulsion. Taking into consideration that a trial court must instruct a jury on every essential element of a criminal charge, that does not imply that the court must define those words that have an ordinary meaning in the English language. See State v. George B., 258 Conn. 779, 800, 785 A.2d 573 (2001). The trial court charged the jury, without objection, in accordance with the clear language of the statute. Furthermore, the habeas court found that the jury was read the statute two additional times and that it never asked for any further definition of the word “compelled” or seemed confused by the instructions. That is significant because the jury asked for clarifications of other portions of the charge. “The jury is presumed to [have followed] the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 242, 710 A.2d 732 (1998). We agree with the habeas court that trial counsel did not act improperly by not objecting to or requesting a new charge, and appellate counsel did not act improperly by not raising those claims on appeal. Again, even if this court had found that “compels” should have been defined, the petitioner failed to establish a reasonable probability that absent counsel’s allegedly unprofessional errors, the result of the proceedings would have been different. In short, the petitioner has not shown the prejudice, arising out of his attorneys’ performances, that Strickland requires.

Finally, the petitioner also faults his trial counsel and appellate counsel for not objecting to and challenging the state’s improper closing arguments. The petitioner claims that the prosecutor argued matters that were outside the evidence, improperly argued matters pertaining to psychology and psychological traits that were for the jury to consider objectively from the evidence, and referred to constancy of accusation testimony as substantive evidence. We recognize, as did the habeas court, that the petitioner must establish that “as a whole” the trial was unfair and that the misconduct “so infected the trial with unfairness” that the conviction denied him due process. See State v. Alexander, 254 Conn. 290, 303, 755 A.2d 868 (2000). Although the habeas court held that there were specific instances of prosecutorial misconduct, that court further reasoned that there was no substantial prejudice and no reasonable probability that the outcome of the case would have been any different. This court agrees that even if some of the challenged statements were improper, the incidents were cured by the court’s instructions to the jury. See State v. Wickes, 72 Conn. App. 380, 399-400, 805 A.2d 142 (2002). Furthermore, the strength of the state’s case was significant, and this court would have to agree that the fairness of the trial, as a whole, is apparent. See id.

In the present case, the habeas court, in a well reasoned memorandum of decision, found that the petitioner had failed to meet his burden of satisfying either prong of the Strickland test. This court cannot conclude that those factual findings are clearly erroneous. After a thorough review of the record and briefs, we conclude that the petitioner has failed to overcome the presumption that the performance of his trial counsel and appellate counsel fell within the wide range of reasonable professional assistance or that, but for their performance, the result would have been different. The habeas court, therefore, properly determined that the petitioner had failed to satisfy his burden of establishing that either trial counsel or appellate counsel provided ineffective assistance.

The judgment is affirmed.

In this opinion the other judges concurred.

       The details of the incident that led to the petitioner’s conviction are set forth in State v. Lemoine, 33 Conn. App. 743, 641 A.2d 131 (1994), rev'd, 233 Conn. 502, 659 A.2d 1194, on appeal after remand, 39 Conn. App. 657, 666 A.2d 825 (1995), as follows. “On June 20, 1991, the victim, his mother, the [petitioner], Barbara Tirado and her daughter went to a lake. The victim was eight years old at the time. After staying at the lake, they drove to the home of the [petitioner’s] mother, then to the home of his sister and then to Tirado’s home located on Maple Street in Meriden. The victim’s father later joined the group and the adults all began drinking. The victim fell asleep on tlie couch in Tirado’s home wearing his pants, shirt and underpants. The victim’s father was asleep on a chair near the couch and the victim’s mother was asleep in another room. The victim awoke to find the [petitioner] placing his hands between the victim’s legs on the outside of the victim’s pants. The [petitioner] was attempting to pull down the victim’s pants. The [petitioner] was behind the victim on the couch and the victim was facing away from the defendant. The [petitioner] told him to be quiet. The victim took off his pants while the [petitioner] continued to touch the outside of the underpants between the legs and then the [petitioner] cut the victim’s underpants. The victim was scared and ran to his mother’s room and told her what had just occurred.
      “The victim’s mother ran into the living room to wake the victim’s father. In the meantime, the [petitioner], who was wearing only a tee shirt, ran down the stairs and out the backdoor. Tirado caught the [petitioner] outside and asked him ‘why he did it’ and the [petitioner] responded that he was sorry and the drugs made him do it. Tirado brought the [petitioner] back upstairs. The victim’s father and the [petitioner] then fought while the victim’s mother took off the victim’s underpants and dressed him. The victim then went downstairs with his parents and got into a van. The victim’s father began to drive on Main Street in Meriden to the police station when he observed the [petitioner] driving a truck with Tirado as a passenger on Maple Street. The victim’s father blocked the [petitioner’s] vehicle and the two vehicles collided. The victim and his mother exited the van and proceeded to the side of the road.
      “Officers Michael Merrigan, Mark Masse and Grant Treiber of the Meriden police department arrived at the scene in uniform shortly thereafter. Merrigan approached the father and was informed by him about the events that occurred at Tirado’s home. Masse and Treiber approached the [petitioner’s] vehicle and asked him to exit it. As they attempted to open the door of the [petitioner’s] vehicle and take the keys, the [petitioner] hit Treiber in the face and drove the vehicle in reverse. The officers at that point were hanging onto the doors of the vehicle. The truck veered to the right and almost hit a building on Maple Street. Treiber fell off the side of the truck and Masse hit a door attached to the building with sufficient force to break a hole in the door. Masse sustained lacerations to his right hand, right forearm, shoulder and back. Treiber sustained bruises and injured his right hand. Treiber then placed the [petitioner] under arrest.
      “At the crime scene, Robert Pocobello, a Meriden police detective, seized a pair of scissors and underpants. He discovered the scissors on a coffee table near the couch and the underpants on the couch. Pocobello processed the scissors for fingerprints. The processing revealed the presence of fingerprints that were not clear enough to be identified.
      “Ted Standish, another Meriden police detective, employed by the department’s sexual assault unit, interviewed the victim on June 21, 1991. The victim stated that after arriving at Tirado’s home, she told him to sleep on the couch, where the [petitioner] was already sleeping. The victim further told Standish that he awoke when the [petitioner] placed his hands on the victim’s ‘dinky’ and that the [petitioner] pulled at the victim’s pants. The victim also told Standish that the [petitioner] told the victim to take off his pants and keep quiet. The victim then told Standish that the [petitioner] tried to make him take off his underpants and when he refused, the [petitioner] cut the underpants with scissors.
      “The [petitioner] disputed the facts. He testified on his own behalf that he, the victim, Tirado and the victim’s mother arrived at Tirado’s home after they had spent the day at the lake. The [petitioner] also testified that he left Tirado’s at 11 p.m., just after the victim’s father arrived, returned at around 4:30 or 5 a.m., and found Tirado and the victim’s father drinking and the victim asleep on the couch. The [petitioner] also stated that he fell asleep on the couch, ‘opposite the victim’ and awoke to find the victim’s father with his hand in the pocket of the [petitioner’s] pants, which the [petitioner] had on, and thought that the victim’s father was attempting to steal money. The [petitioner] then testified that he tried to get up and that the victim’s father jumped on him and hit him in the face. The [petitioner] then testified that Tirado offered to drive him to the hospital and that he accepted Tirado’s offer. He further testified that as Tirado drove him to the hospital, the victim’s father forced their vehicle to a stop on Maple Street. The [petitioner] then testified that he moved into the driver’s seat, placed the truck in reverse and police officers tried to grab him, causing the truck to move in reverse.” Id., 744-47. In addition, “[t]he victim testified that his underwear was left in Tirado’s bedroom. The victim’s mother testified that she did not remember where the underwear was left.” Id., 745 n.5. Furthermore, “Standish testified that the victim pointed to his penis when he used the word ‘dinky.’ ” Id., 747 n.6.

       In his appeal to this court, the petitioner has abandoned his claim of actual innocence.

       General Statutes (Rev. to 1991) § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person . . . .”