author: FREEDMAN, J.

text:
    STATE OF CONNECTICUT v. ARTHUR GREGG KRATZERT
    (AC 21910)
    Foti, Dranginis and Freedman, Js.

      Argued March 25
    officially released June 25, 2002

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Ronald Dearstyne, senior assistant state’s attorney, for the appellee (state).
   Opinion

FREEDMAN, J.

The defendant, Arthur Gregg Kratzert, appeals from the trial court’s judgment of conviction, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a and Practice Book § 61-6, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). The defendant claims that the court should have dismissed part B of the information that alleged that he was a third offender pursuant to § 14-227a (h) (3). We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. By information dated October 16, 2000, the defendant was charged with, inter alia, operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. The conduct giving rise to the defendant’s arrest allegedly occurred on October 14, 2000. The state subsequently filed a part B information, alleging that the defendant previously had been convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a on December 9, 1988, and on May 10, 1999. Part B of the information sought an enhanced penalty due to the prior convictions. The defendant filed a motion to dismiss part B of the information, arguing, inter alia, that his 1988 conviction should not be counted for purposes of applying the enhanced penalties because it occurred more than ten years prior to the defendant’s 1999 arrest. Following a hearing, the court denied the defendant’s motion to dismiss part B of the information. The defendant entered a conditional plea of nolo contendere to both parts of the information, reserving the right to appeal to challenge the denial of his motion to dismiss part B of the information. The defendant then filed the present appeal.

The defendant argues that the court should have dismissed part B of the information, which alleged that he was a third offender pursuant to § 14-227a (h). Specifically, the defendant argues, as he did before the trial court, that his 1988 conviction cannot be used to enhance the penalty for the present offense because the 1988 conviction is beyond the ten year “look back” or “cleansing” period referred to in the statute. The state argues in response that the court properly denied the motion to dismiss on the basis of State v. Mattioli, 210 Conn. 573, 556 A.2d 584 (1989). We agree with the state and conclude that Mattioli is dispositive of the issue in this case.

Section 14-227a (h) provides in relevant part that “[a]ny person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense” be subject to enhanced penalties. In State v. Mattioli, supra, 210 Conn. 575, our Supreme Court considered whether the enhanced penalties provided in § 14-227a (h) (3) apply to the third conviction of a defendant when only one of his two prior convictions occurred “within five years” of his present conviction. The defendant in Mattioli argued that he could not be charged as a third offender pursuant to § 14-227a (h) (3) because his third conviction for violating § 14-227a did not occur within five years of his first conviction for violating the statute. Id. Our Supreme Court held, however, that § 14-227a (h) (3) does not require that the third conviction be within five years of all prior convictions. Id., 575-76.

In so holding, the Supreme Court first examined the language of the statute. “The language of § 14-227a (h) (3), interpreted according to the ordinary meaning of its words, plainly states that it applies to a ‘conviction of a third violation within five years after a prior conviction . . . .’ There is no dispute that this is the defendant’s third conviction for violating § 14-227a. It is also undisputed that this third conviction occurred within five years of a previous conviction .... The most recent conviction is, therefore, a ‘conviction of a third violation within five years after a prior conviction’ that subjects the defendant to the enhanced penalties provided by § 14-227a (h) (3).” Id., 577.

To the extent that § 14-227a (h) (3) could be construed as ambiguous, the Supreme Court further examined the statute’s legislative history and purpose. “Public Acts 1985, No. 85-387, which amended § 14-227a in 1985 to incorporate the language at issue in this case, was entitled ‘An Act Increasing Imprisonment Penalties for Drunk Driving to Meet the Federal Standards.’ Although the legislative history does not expressly address the statute’s five year period, this provision was part of a statutory package that enhanced mandatory minimum sentences for both first and multiple offenders and increased penalties for each successive offense. In enacting Public Acts 1985, No. 85-387 so as to amend § 14-227a, the legislature clearly intended to provide harsher penalties for offenders with a history of driving while under the influence.” Id., 578.

Finally, our Supreme Court rejected the defendant’s argument that this interpretation would allow the irrational and bizarre result that a person can be a third offender without ever being a second offender. “We recognize that, under our interpretation, an enhanced penalty might follow despite a lengthy interval between a first and second conviction, if a third conviction came on the heels of the second. We are unpersuaded that this result is either irrational or bizarre. As written, § 14-227a (h) (3) allows a person to be adjudged a third offender only after three convictions for violation of the statute. The statute makes the fact of a prior second conviction, rather than the status of being a prior second offender, the touchstone for an enhanced penalty. The legislature was free to make such a choice.” Id., 578-79.

The facts of the present case fall within the scenario contemplated by the Supreme Court in Mattioli and § 14-227a (h) (3). There was an interval of more than ten years between the defendant’s first conviction for operating a motor vehicle while under the influence on December 9, 1988, and his second conviction on May 10, 1999. The defendant’s third violation, however, occurred on October 14, 2000, clearly within ten years after a prior conviction for the same offense. Contrary to the assertions of the defendant, we can discern no reason why the present case is not controlled by Mattioli and does not fit squarely within the statutory framework of § 14-227a (h) (3). We conclude, therefore, that the court properly denied the defendant’s motion to dismiss part B of the information.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to talce an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
      Practice Book § 61-6 (a) (2) (i) provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence inay file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied the motion to . . . dismiss. A plea of nolo contendere by a defendant under this subsection shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution. . . .”

       General Statutes § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall . . . (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars nor more than eight thousand dollars, (B) be imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person’s motor vehicle operator’s license or nonresident operating privilege permanently revoked upon such third offense. . . .”

       The parties are in agreement that, based on certain documents in the court file, the incident may have occurred on October 13, 2000, rather than October 14, 2000. This discrepancy is irrelevant to the determination of the defendant’s appeal. The parties referred to the October 14, 2000 date in their briefs. For consistency, we likewise refer to the date of the incident as October 14, 2000.

       Public Acts 1995, No. 95-314, § 1, increased the statutory “look back period” contained in § 14-227a (h) (3) from five years to ten years.

       In State v. Burns, 236 Conn. 18, 25-26, 670 A.2d 851 (1996), our Supreme Court held that the five year period (now a ten year period) that is the predicate for the enhanced penalties provided in § 14-227a (h) (3) runs from a prior conviction to a third violation, not from a prior conviction to a third conviction.

       The defendant attempts to distinguish Mattioli on the ground that it did not involve the expiration of a look back period between any two adjacent measuring points established by § 14-227a (h), whereas in the present case, the defendant’s first conviction for operating a motor vehicle while under the influence of intoxicating liquor occurred more than ten years before his second violation. On the basis of our analysis, however, we consider this to be a distinction without a difference.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL FRANCIS
    (AC 21647)
    Schaller, Pellegrino and Flynn, Js.

      Argued December 6, 2001
    officially released July 2, 2002

      Michael O. Sheehan, special public defender, with whom, on the brief, were Richard A. Reeve and Sarita Ordonez, special public defenders, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Russell C. Zentner, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Paul Francis, appeals from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a), arson in the first degree in violation of General Statutes § 53a-111 (a) (1), larceny in the third degree in violation of General Statutes § 53a-124 (a) (1) and criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1). On appeal, the defendant claims that he was denied his sixth amendment rights (1) to present a defense and (2) to confront a witness against him. We reverse the judgment of the trial court and remand the case for a new trial.

The jury reasonably could have found the following facts. The defendant had a social relationship with U. During the late summer months of 1995, the defendant and U engaged in idle banter while they were fishing. In the fall of that year, the defendant often visited U’s apartment, which U shared with his brother. The apartment was part of a three story structure. The victim, who was the mother of U and his brother, occupied another apartment in the building.

Sometime during the fall of 1995, the relationship between the defendant and U began to deteriorate, and the defendant became unwelcome at U’s residence. The defendant, however, returned to U’s residence, and an altercation ensued between U and the defendant. After that event, the two men had no further contact.

In the early morning of January 2, 1996, neighbors were awakened by the sound of a noisy car backing away from U’s residence. One of the neighbors, Linda Wierenga, who lived on the third floor of the apartment building, soon smelled smoke. Looking out a window that overlooked the victim’s apartment, Wierenga noticed heavy smoke emanating from the apartment. She notified the fire department, then went downstairs and alerted U about the fire.

U attempted to gain access to the victim’s apartment, but was unable to enter due to the heat and smoke from the fire. He exited the building and tried to enter the victim’s apartment from the outside, but was again unsuccessful. While outside, U noticed that the victim’s car was missing. After the fire was suppressed, firefighters discovered the victim’s body in her apartment. She was lying face down on the floor with her hands and feet bound behind her back. An autopsy revealed that she likely had died from suffocation by means of an object being placed over her face. Further investigation revealed that the fire was caused by a flammable liquid that had been spread in the victim’s apartment.

On the evening of January 5, 1996, the Middletown police were notified that the defendant was in the area. The police were seeking the defendant pursuant to an outstanding warrant unrelated to the victim’s death. The police arrested the defendant on that warrant, and a search of his person revealed an ignition key to the victim’s vehicle. During an interview with a state police detective while in the lockup, the defendant stated that he had been fishing with a prostitute on the night of the murder. On May 5,1997, the defendant was arrested and charged with the victim’s murder.

At trial, the defendant’s principal defense was that a third party, U, had committed the murder. The defendant argued that U was motivated to kill his mother because U and the victim had a discordant relationship due to U’s financial troubles and drinking problem. To support that defense, the defendant sought U’s confidential treatment record from Connecticut Valley Hospital, where U had received treatment for alcohol abuse in February, 1996, about one month after the murder. The defendant believed that the record might reveal information about the relationship between U and the victim.

Additionally, the defendant sought that information because he further believed that U’s treatment record might provide information useful to impeach U, who was to testify as a witness for the state. The defendant sought to discredit U’s testimony concerning the defendant by attempting to demonstrate to the jury that U’s alcohol consumption affected his ability to perceive and to recall the events about which he testified. Specifically, the defendant sought to impeach both U’s ability to retain cognitively the contents of a discussion U and the defendant had on the fishing trip as well as U’s ability to later recall a specific comment from that discussion in February, 1996.

The state filed a motion in limine to preclude the disclosure of U’s treatment record. The record was subpoenaed, and the court conducted an in camera review of the material. After reviewing the material, the court concluded that it would remain sealed and refused to disclose it to the defendant.

Subsequently, the state called U as one of its witnesses at trial. In addition to his other testimony about his relationship and past encounters with the defendant, U testified about the 1995 summer fishing trip. U testified that the defendant had stated that “if he ever did another crime ... he would bum the place to the ground to cover the evidence.” During cross-examination, U testified that he had consumed alcohol on the fishing trip. U also testified that he did not recall the defendant’s statement until February, 1996, about six months later. He further stated that he was drinking when he remembered the statement and that his consumption of alcohol would affect his memory. U testified that he did not relate to the police his recollection of the defendant’s statement until July 25, 1996, about five months after he recalled it. The defendant was found guilty, and this appeal followed.

On appeal, the defendant claims that his sixth amendment rights to present a defense and to confront a witness against him were violated when the court failed to disclose U’s treatment record following its in camera review. Specifically, the defendant advances two distinct sixth amendment arguments. First, he argues that was deprived of his right to present a defense because he was not allowed access to information that supported his defense. Second, he asserts that he was not allowed to impeach a witness against him.

We first set forth the standard of review for the defendant’s claim. “Our standard of review for the refusal to disclose privileged records is abuse of discretion.” State v. Springmann, 69 Conn. App. 400, 420, 794 A.2d 1071, cert. denied, 260 Conn. 934, 802 A.2d 89 (2002). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) State v. Olah, 60 Conn. App. 350, 354, 759 A.2d 548 (2000). “Access to confidential records should be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Internal quotation marks omitted.) State v. Slimskey, 257 Conn. 842, 856-57, 779 A.2d 723 (2001).

After our own thorough review of U’s treatment record, we are persuaded by the defendant’s argument that the court abused its discretion and improperly refused to disclose the record. Because we are persuaded that the failure to disclose the record impaired both the defendant’s rights to present a defense and to impeach a witness, we will address each claim in turn. We note at the outset that we will not divulge specific information or the details of what our in camera review has revealed because U may decide to preclude the disclosure of his record at the new trial. See State v. Olah, supra, 60 Conn. App. 355. Consistent with the procedure for disclosing confidential documents, U must consent to the disclosure and waive his privilege so that his treatment record may be disclosed to the defendant. See id.; see also State v. Slimskey, supra, 257 Conn. 855. If such waiver is not provided, U’s record will not be disclosed and his testimony may be stricken. See State v. Olah, supra, 355. We therefore state only that which is necessary to illuminate our decision in order to protect U’s right to keep his privileged records confidential. See id.

I

The defendant first argues that he was deprived of his right to present a defense because he was not allowed access to information that supported his defense. He asserts that he should have been given access to U’s treatment record to establish the defense that a third party, U, was responsible for killing the victim.

We first note the law relevant to that argument. “After performing an in camera inspection, the trial court is required to release only information that is material and favorable to the defense. . . . Favorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist. ... On the other hand, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Id., 354-55.

With regard to the defendant’s third party culpability defense, we conclude that U’s treatment record should have been disclosed because it contains information about U’s state of mind that is favorable and material to the defense. In denying the defendant access to that information, the court restricted his right to present a defense because it prevented his acquisition of evidence that he could use to establish third party culpability. Because we have determined that the treatment record contains information that was favorable and material to the defendant’s third party defense, we conclude that the court abused its discretion by failing to disclose the record to him after the in camera review.

Having determined that the court abused its discretion, we now turn to an analysis of whether its decision harmed the defendant. We conclude that the court’s failure to disclose U’s treatment record was harmful to the defendant. With regard to a defendant’s right to present a defense, we have stated that when the “impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Mincewicz, 64 Conn. App. 687, 696, 781 A.2d 455, cert. denied, 258 Conn. 924, 783 A.2d 1028 (2001). In the present case, the defendant sought to prove that U killed the victim. The defendant’s theory centered on the alleged stressful relationship that U had with the victim, his mother, which was the product of U’s unemployment and drinking. In light of that defense, we cannot conclude that the court’s denial of access to the information in U’s record was harmless beyond a reasonable doubt.

II

The defendant also argues that he was not allowed to impeach a witness against him. He asserts that he should have been given access to U’s treatment record to enable him adequately to cross-examine and to confront U, who testified as a witness against him.

We first note the law relevant to that argument. “A criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. . . . Thus, in some instances, otherwise privileged records . . . must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility.” (Citations omitted.) State v. Slimskey, supra, 257 Conn. 853-54.

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences.” (Internal quotation marks omitted.) Id., 855. “[T]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation.” (Internal quotation marks omitted.) Id., 856-57.

Our review of U’s record also reveals that it should have been disclosed for impeachment purposes because it contains information about U’s alcohol consumption during relevant periods. The information is probative of U’s ability to observe, recollect and narrate the events about which he testified. The court’s refusal to disclose that information to the defendant after the in camera review violated his right to confrontation because it limited his right to impeach U’s testimony and to attack his credibility.

We note, moreover, that the violation was exacerbated because U did not tell anyone about the comment that the defendant allegedly made during the 1995 fishing trip until a significantly later date. Therefore, U’s testimony required him not only to clearly register the remark in the first instance, but also to recall it about six months later. In that situation, the court’s decision deprived the defendant of his right to cross-examine U with regard to both aspects. Because we have determined that the treatment record provides information that the defendant could use to impeach a witness against him and to attack that witness’ credibility, we conclude that the court abused its discretion by failing to disclose the record to the defendant after its in camera review.

Having determined that the court also abused its discretion with regard to the defendant’s ability to impeach U, we again turn to an analysis of whether that decision harmed the defendant. We conclude that the court’s failure to disclose U’s treatment record was harmful to the defendant. In terms of a defendant’s ability to impeach a witness, our Supreme Court has stated that “[t]he correct inquiry for identifying harmless constitutional error is to ask whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. . . . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Internal quotation marks omitted.) Id., 859. Here again, the burden rests with the state to show that the error was harmless beyond a reasonable doubt. See id.

In the present case, we conclude that the failure to disclose the treatment record was harmful. We note that U was an important witness for the state. His testimony described his deteriorating relationship with the defendant, the fight they had and, most importantly, what the defendant allegedly said during the 1995 fishing trip about burning down any future crime scenes. Because the two men were the only ones on the trip, no other witness provided similar testimony about what the defendant said. Additionally, although the court did allow the defendant to probe U’s drinking patterns to some degree, we cannot construe that cross-examination as adequate in light of the information the court kept from the defendant by refusing to disclose the treatment record. Although the state’s case was sound, we are not persuaded that it was so overwhelming so as to accommodate the court’s improper ruling. In light of that, we cannot say that the error was harmless beyond a reasonable doubt. We therefore conclude that the failure to disclose the treatment record was harmful error.

The court’s failure to disclose U’s treatment record following its in camera review was an abuse of discretion that deprived the defendant of his sixth amendment rights to confront a witness against him and to present a defense. The refusal to disclose was harmful to the defendant.

The judgment is reversed and the case is remanded for a new trial, at which the treatment record must be disclosed to the defendant contingent on a waiver of the privilege and in accordance with the disclosure procedures specified herein.

In this opinion the other judges concurred.

       In addition, the defendant claims that (1) the trial court’s charge to the jury on circumstantial evidence improperly lowered the state’s burden of proof on the element of intent, and (2) the state’s repeated reference to his invocation of his right to remain silent and his request for a lawyer violated his fifth amendment right and his right to due process under the fourteenth amendment. Because we conclude that the defendant was deprived of his sixth amendment rights, we need not reach those claims.

       On the basis of our decision, we refer to that individual by initial only to protect his statutory right to keep his medical treatment record confidential. See footnote 3.

       U’s treatment records are privileged confidential records protected by General Statutes § 17a-688.

       We note with regard to sixth amendment claims that although an appellant sometimes will combine the rights afforded under that amendment and claim, for example, that he was deprived of his right to present a defense because he was not allowed to cross-examine a witness, that is not the case in the present appeal. The defendant, as previously explained, advances two distinct sixth amendment arguments.

       We note that we apply that test to the material sought in the present appeal despite the fact that it appears that Olah concerned material sought for impeachment. We do so because Olah does not explicitly state what material was sought and because we conclude that this portion of the Olah test is a generally applicable standard that can be applied to various materials that are sought in the in camera context.

       Specifically, we refer to the Connecticut Valley Hospital Admission Psychiatric Evaluation, page two, and the Connecticut Valley Hospital Brief Stay Psychosocial Assessment and Summary, page three.

       We note that although we conclude that the defendant is entitled to U’s treatment record, we do not reach the issue of whether the material in the record will be admissible at a new trial. That is a separate issue and must be decided by the new trial court. Our decision goes only so far as to determine that the defendant’s right to present a defense, guaranteed by the sixth amendment, entitles him to access to the treatment record.

       With regard to events in 1995, we refer specifically to the Connecticut Valley Hospital Admission Nursing Assessment, page one, and the Dutcher Treatment Center Request for Psychiatric Consult, page one. With regard to events in February, 1996, we refer to the treatment record generally.


text:
    STATE OF CONNECTICUT v. JOSHUA D. LAMBERT
    (AC 20106)
    Schaller, Dranginis and Daly, Js.
    Argued November 26, 2001
    officially released July 2, 2002

      Donald D. Dakers, special public defender, with whom, on the brief, was Arthur P. Meisler, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were John Coman, acting state’s attorney, and Patricia A. Swords, former state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Joshua D. Lambert, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a new trial and (2) permitted prosecutorial misconduct during closing argument. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. At approximately 10 p.m. on June 13,1998, three men robbed Christy’s Market at 110 Main Street in Stafford. Three eyewitnesses in a parked car outside the store observed the three men fleeing Christy’s through the store’s front door. After the police were summoned, a canine track was conducted. The track began at the rear of Christy’s, where a jacket had been discovered on the ground, and ended a few blocks away where a state police trooper had detained two men matching a description of the men who had fled Christy’s. The dog began barking at the two individuals, indicating that one of them had been wearing the jacket. The eyewitnesses from Christy’s identified the detainees, Todd Misuraca and Justin Buchanan, as two of the three people they had seen running from the store. Both individuals were taken to the state police Troop C barracks for questioning.

A second canine track from the rear of Christy’s led to 27A Center Street, the home of the defendant. During questioning at the Troop C barracks, Misuraca admitted that he, Buchanan and the defendant had robbed Christy’s Market. Misuraca also implicated the defendant, Buchanan and himself in a robbery earlier that day at the Eagle Mart convenience store at 2 Spring Street in Stafford. The three men were arrested and charged with the Christy’s robbery on the basis of Misuraca’s confession. Buchanan and the defendant later made their own statements in which they admitted to having committed the Christy’s robbery. Misuraca subsequently recanted his confession to having committed the Eagle Mart robbery.

During the defendant’s trial, the state filed a motion in limine to preclude all evidence related to the Eagle Mart robbery, claiming that such evidence would be more prejudicial than probative and would distract the jury. The court ordered that if the state offered Misuraca’s confession regarding the robbery at Christy’s for Whelan purposes, then the confession and subsequent recantation as to the Eagle Mart robbery would be admissible. If the state offered Misuraca’s confession about Christy’s for impeachment purposes only, however, the confession as to the Eagle Mart robbery would not be admissible. At trial, Misuraca testified that he had not been with the defendant on the evening of June 13,1998, when the Christy’s robbery had occurred. The state proceeded to use Misuraca’s confession as to the Christy’s robbery to impeach his trial testimony. As a result, the defendant and the state were precluded from mentioning the Eagle Mart robbery. The defendant was convicted of robbery and conspiracy to commit robbery, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a new trial. The defendant advances two arguments to support his claim. First, he argues that he should be granted a new trial because the court abused its discretion when it granted the state’s motion in limine to preclude evidence. Second, the defendant asserts that the court improperly allowed the state to call a -witness for the sole purpose of impeaching that witness.

We first note our standard of review for challenges to rulings on motions for new trials. “Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. ... In our review of the denial of a motion for [a new trial], we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 247, 780 A.2d 53 (2001).

A

The defendant argues that the court’s denial of his motion for a new trial was improper because the court improperly granted the state’s motion in limine. Although the defendant seeks review of the court’s denial of his motion for a new trial, his claim relies on the propriety of the court’s ruling on the motion in limine. Therefore, we must first review the court’s decision on the motion in limine to determine if the defendant’s claim has merit.

The state filed the motion in limine to keep any evidence concerning the Eagle Mart robbery out of the trial. It argued that such evidence was irrelevant and prejudicial, and would serve only to distract the jury from the issue before it. The defendant argues on appeal that the granting of the state’s motion precluded him from putting certain facts before the jury. Specifically, he asserts that he could not establish that Misuraca’s confession as to the Eagle Mart robbery cast doubt on his entire confession, including the confession as to the Christy’s robbery. Misuraca recanted his confession as to the Eagle Mart robbery one day after he had given it, and two other men were later arrested in connection with the Eagle Mart robbery. The defendant contends that because he was not allowed to present evidence that Misuraca had falsely implicated himself in one robbery, he was precluded from offering that evidence to show that Misuraca had made up the confession as to Christy’s robbery as well.

Despite those contentions, our review of the record does not indicate that the court improperly granted the state’s motion in limine. The decision on the motion reveals that the court was attempting to fashion a ruling under which relevant aspects of Misuraca’s statements would be admitted into evidence, but irrelevant and distracting aspects would not be admitted. The ruling indicated that if the state chose to offer the Christy’s evidence for its substance, then the defense could explore both confessions and the recantation in a full cross-examination. The court also determined, however, that evidence relating to the Eagle Mart confession should not be introduced if the state chose to offer Misuraca’s confession about Christy’s only to impeach his subsequent inconsistent testimony at trial that he and the defendant had not been at Christy’s on the night of the robbery. The court apparently concluded that in that situation, the Eagle Mart evidence would be collateral and might distract the jury by getting into the subject matter of another robbery that was not relevant to the impeachment.

We conclude that the court did not abuse its discretion in granting the motion in limine. In ruling as it did, the court properly limited the parties to evidence that was relevant. Although the defendant argues that he should have been allowed to explore the evidence relating to the Eagle Mart robbery, we cannot say that the court abused its discretion by ruling that that evidence would be irrelevant and should not be admitted if the state offered Misuraca’s confession about Christy’s only to impeach Misuraca by exposing his prior inconsistent statement with regard to that particular robbery.

There were two separate robberies, and the court was forced to determine the extent to which evidence about one was relevant to the other. Whether Misuraca had recanted his confession as to the Eagle Mart robbery was not relevant to whether he and the defendant had committed the Christy’s robbery. We cannot conclude, without more, that the court’s decision was an abuse of its discretion. Because we conclude that the court did not abuse its discretion with regard to the motion in limine, and because the defendant bases his claim that the court improperly denied his motion for a new trial on the ruling on the motion in limine, we further conclude that the court did not abuse its discretion in ruling on the defendant’s motion for a new trial.

B

The defendant next argues that the court improperly denied his motion for a new trial because it allowed the state to call a witness for the sole purpose of impeaching that witness. The defendant claims that the state had no reason for calling Misuraca as a witness other than to impeach him with his testimony.

As we previously noted, we review orders granting or denying motions for a new trial under an abuse of discretion standard. The record reveals that Misuraca was called as a witness for reasons other than to impeach him. Misuraca corroborated several details of the state’s case. Misuraca testified that he had spent the entire day with Buchanan on June 13, 1998. That admission, along with the eyewitness identification of Misuraca as one of the three males seen fleeing Christy’s, corroborated Buchanan’s Whelan statement implicating the defendant, Misuraca and himself in the Christy’s robbery. Accordingly, we conclude that the defendant’s argument that the state called the witness only to impeach him is without merit. The court did not abuse its discretion in allowing the state to call Misuraca as a witness.

II

The defendant’s second claim is that the court improperly permitted prosecutorial misconduct. The defendant makes two arguments in support of his claim. First, he avers that the prosecutor improperly argued to the jury the circumstances surrounding Misuraca’s confessions as to the Christy’s and Eagle Mart robberies on June 13,1998. Second, he contends that the prosecutor used Misuraca’s statement for substantive purposes as well as impeachment purposes. The defendant argues that this was improper because the state, in accordance with the court’s ruling on the motion in limine, had chosen to use Misuraca’s statement for impeachment purposes.

“Our standard of review of prosecutorial misconduct is well established. In analyzing this claim, we do not focus solely on the prosecutor’s conduct. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Hampton, 66 Conn. App. 357, 369, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001).

“In determining whether [a] claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant.” (Internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 90, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [courts have] focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Conde, 67 Conn. App. 474, 500-501, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

“In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial.” (Internal quotation marks omitted.) State v. Hampton, supra, 66 Conn. App. 370.

A

The defendant claims that the state improperly argued the circumstances surrounding the taking of Misuraca’s confession on June 13, 1998. Specifically, the defendant argues that it was improper for the prosecutor to call the jury’s attention to the fact that Misuraca did not respond when the state police first questioned him. The defendant also states that it was improper for the prosecutor to argue that Misuraca was allowed to call his parents and to be alone with them prior to his confession, and that the trooper interrogating Misuraca had asked his parents to leave because he thought Misuraca would be more comfortable confessing without them there. The defendant further asserts that he was prevented from examining the circumstances surrounding Misuraca’s confession as a result of the court’s granting the state’s motion in limine to suppress evidence of the Eagle Mart robbery.

The defendant’s argument is without merit because the state was not precluded from eliciting testimony concerning the circumstances surrounding Misuraca’s confession. The state’s motion in limine sought to exclude evidence concerning the robbery of Eagle Mart, and it sought to prohibit Misuraca from testifying about that robbery. The court properly granted the state’s motion, recognizing that such evidence might distract the jury from the present case. The record does not indicate that the state sought to exclude the facts surrounding Misuraca’s confession at the barracks, but rather, the state sought to exclude part of the confession itself. Accordingly, neither the state nor the defendant was precluded from eliciting testimony and commenting on the circumstances of the confession and the conditions at the Troop C barracks.

Because neither party was precluded from discussing the circumstances surrounding Misuraca’s confession, we conclude that the defendant has failed to establish that the prosecutor’s argument was improper. We need go no further in our analysis to conclude that the court’s decision to allow the argument presented by the state did not result in an unfair trial.

B

The defendant also asserts that the prosecutor argued facts from Misuraca’s confession for substantive purposes when the confession had been introduced only for impeachment purposes. The defendant contends that the prosecutor’s statements during closing argument encouraged the jury to use substantively facts from Misuraca’s confession as to the Christy’s robbery.

We decline to review the defendant’s claim because it is inadequately briefed. See In re Kachainy C., 67 Conn. App. 401, 413, 787 A.2d 592 (2001). As explicated by the previously discussed case law, a critical aspect in determining whether prosecutorial misconduct deprived the defendant of his right to due process is whether, and to what extent, the court gave the jury instructions that cured the alleged harm resulting from the prosecutor’s conduct. Additionally, our law directs that we view the alleged misconduct in the context of the entire trial.

In the present case, however, we have no way of knowing what curative measures or appropriate instructions were adopted by the court in its final jury instructions as a result of the prosecutor’s remarks because the defendant has not supplied us with a transcript of the final jury charge. Without the transcript, we cannot properly take into account a factor that is relevant to our analysis. We also cannot view the prosecutor’s remarks in the context of the entire trial because we cannot weigh the comments against all the instructions given by the court.

Although it is conceivable that we could apply the other factors to which our case law directs our attention, absent analysis of the final charge and without being able to review the prosecutor’s comments in the context of the entire trial, we decline to afford review of the allegedly improper comments because of the somewhat complex nature of the court’s ruling on the motion in limine. Additionally, we note that to the point of its final instruction, the court had given the jury adequate instructions as to the limited use for which Misuraca’s confession about Christy’s had been admitted. Despite that, we will not extrapolate from those instructions to fill in the gap left by the defendant’s omission from the record of the court’s final charge. As a result, we decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

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

       “Pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), a prior inconsistent statement may be used during trial for substantive purposes if the statement is signed by the declarant, who has personal knowledge of the facts stated therein, and who testifies at trial and is subject to cross-examination.” State v. Conde, 67 Conn. App. 474, 493 n.9, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

       We note that we employ the abuse of discretion standard when reviewing the court’s decision on a motion in limine. See Levesque Builders, Inc. v. Hoerle, 49 Conn. App. 751, 761, 717 A.2d 252 (1998).

       See footnote 4.