text:
    AMERICAN PREMIER UNDERWRITERS, INC. v. NATIONAL RAILROAD PASSENGER CORPORATION ET AL.
    (AC 16247)
    Landau, Schaller and Hennessy, Js.
    Argued October 31
    officially released December 30, 1997

      James T. Shearin, with whom, on the brief, was Andrew J. McDonald, for the appellant (plaintiff).

      Charles A. Deluca, with whom, on the brief, was Joseph P. Sargent, for the appellees (named defendant et al.).

      JohnB. Hughes, assistant United States attorney, for the appellee (defendant United States Department of Transportation).
   Opinion

LANDAU, J.

The plaintiff, American Premier Underwriters, Inc., appeals from the judgment following the trial court’s granting of the motions filed by the defendant National Railroad Passenger Corporation (Amtrak) and the defendant United States of America Department of Transportation (United States) to dismiss the five count complaint. On appeal, the plaintiff argues that the trial court improperly dismissed the first four counts of the complaint for lack of subject matter jurisdiction on the ground that a special federal court had exclusive jurisdiction, and the fifth count of the complaint because the claim was not ripe. We affirm the judgment of the trial court because we agree with the trial court’s ultimate decision to dismiss the plaintiffs claims; however, we disagree with the court’s reasoning in support of that result.

The following facts are necessary for the resolution of this appeal. The dispute among the parties began in the early 1970s, when several large railroad companies in the northeastern United States, including Penn Central Transportation Company (Penn Central), filed for bankruptcy protection. Congress responded to the transportation crisis by enacting the Regional Rail Reorganization Act of 1973 (act). The act created the United States Railway Association and charged it with preparing a plan to restructure rail service in the northeastern region of the United States. The national restructuring plan that emerged from this process is known as the Final System Plan. Among other things, the Final System Plan required the transfer of certain rail properties then owned by Penn Central to the newly created Consolidated Rail Corporation (Conrail) and to Amtrak.

The act created the “Special Court” to implement the conveyancing process by issuing orders approving the transfer of deeds pursuant to the Final System Plan. Pursuant to that plan, on March 30, 1976, the trustees of the property of Penn Central conveyed rights in the real property at issue in this case to Conrail, and on April 1,1976, Conrail conveyed its rights in the property to Amtrak (1976 deeds). The plaintiff, asserting that it is the successor in interest to Penn Central, claims that the order of the Special Court and the 1976 deeds vested it with a fee simple interest in the property located in Greenwich. Amtrak denies that the plaintiff is the owner of the property and maintains that the effect of the 1976 deeds was to vest it, not the plaintiff, with ownership.

In May, 1996, the plaintiff filed its five count amended complaint in the trial court. See footnote 2. The plaintiff also commenced an action in the Special Court seeking a determination by that tribunal of the meaning and effect of the 1976 deeds. It sought a judgment declaring that the 1976 deeds conveyed only operating rights, if any, to Conrail and Amtrak and that it retained a fee simple interest in the property. The defendants moved to dismiss the action in the trial court, arguing that the court lacked subject matter jurisdiction because the Special Court had original and exclusive jurisdiction of the first four counts of the complaint and the fifth count was not ripe for adjudication. On the same day that the defendants filed the motions to dismiss, the plaintiff moved to stay the action in the trial court pending the Special Court’s resolution regarding ownership of the property at issue. The trial court granted the defendants’ motions to dismiss, and, as a result, did not act on the plaintiffs motion to stay.

It is beyond dispute that each count of the plaintiffs five count complaint relied on the threshold determination of the effect of the 1976 deeds. The plaintiff, in its brief, concedes that “[t]he Special Court . . . unquestionably has exclusive jurisdiction over the narrow but important issue of interpreting [the 1976 deeds].” In addition, the plaintiff states that “[if] the Special Court decides, as [the plaintiff] believes is correct, that no fee simple interest was conveyed, then the Superior Court . . . must grapple with the state [law] issues raised as a result of plaintiffs amended [five count] complaint . . . .” (Emphasis added.) Moreover, the plaintiff stated in its memorandum of law in support of its motion to stay the proceedings that, [i]f the Special Court determines that [the plaintiff] is the fee owner of the properties at issue, other [state] issues arise that do not concern the Special Court. . . . There are, therefore, a number of state-law issues that would need to be resolved after the resolution of the issue over which the Special Court has exclusive jurisdiction.” (Emphasis added.)

As a result, we are not presented with the issue of concurrent jurisdiction versus exclusive jurisdiction. It is conceded by all parties that the trial court may not decide the issues presented by the complaint until the Special Court rules on the issue concerning the 1976 deeds. Consequently, the plaintiffs claims were not ripe and, therefore, not justiciable.

“Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law. Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 (1973) ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982).” (Internal quotation marks omitted.) Hallas v. Windsor, 212 Conn. 338, 347, 562 A.2d 499 (1989). “Courts are established to decide actual controversies and an appellate court has no jurisdiction to adjudicate cases that are not justiciable. State v. Nardini, supra, 111.” Mayer v. Biafore, Florek & O'Neill, 45 Conn. App. 554, 557, 696 A.2d 1282 (1997).

Here, because the plaintiffs claim as to the 1976 deeds had not been adjudicated and, consequently, no determination had been made as to the plaintiffs rights, if any, in the property, no actual controversy existed among the parties in this dispute. An essential element of the causes of action pleaded by the plaintiff in its five count complaint had not been determined and, even the parties agree, could have been determined only by the Special Court. At the time the trial court heard the motion to dismiss, the plaintiffs claim against the defendants had yet to be adjudicated in an action between the plaintiff and the defendants in the Special Court, and, as a result, the claims at issue in the trial court could not have been determined. See footnote 9. The trial court, in effect, issued an opinion regarding its jurisdiction over claims that may never come before it subsequent to a judgment by the Special Court on the threshold and determinative issue.

The plaintiff asserts, however, that, in the interests of comity and judicial economy, the trial court should have stayed rather than dismissed the action. We disagree. “ ‘Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.’ ” Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn. App. 699, 703, 700 A.2d 1179 (1997), quoting Second Injury Fund v. Lupachino, 45 Conn. App. 324, 330, 695 A.2d 1072 (1997). As a result, the trial court was required to address the jurisdictional challenge before ruling on other motions and, once it decided that it lacked subject matter jurisdiction, it was bound and required to dismiss the case. See Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245-46, 558 A.2d 986 (1989). Accordingly, nothing was left before the trial court on which to act. See Denton v. Danbury, 48 Conn. 368, 372 (1880). Therefore, the trial court could not properly have addressed the plaintiffs motion for a stay. See Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (error for trial court to consider motion to amend prior to ruling on challenge to court’s subject matter jurisdiction).

Because the issue before the Special Court had not been resolved, the “matter in controversy [before the trial court was incapable] of being adjudicated by judicial power” and the motion to dismiss was properly granted. See Hallas v. Windsor, supra, 212 Conn. 347. We conclude, therefore, that the trial court properly granted the defendants’ motions to dismiss due to its lack of subject matter jurisdiction. The basis for the dismissal, however, should have been that all five claims were not ripe, and, therefore, not justiciable.

The judgment is affirmed.

In this opinion the other judges concurred.

       There are numerous defendants in this case, many of whom were defaulted for failure to appear. The two defendants pertinent to this appeal, Amtrak and the United States, moved to dismiss counts one through four of the complaint on the ground that a special federal court had exclusive jurisdiction over those claims. Amtrak and the United States also moved to dismiss count five because it was not ripe for adjudication. We refer in this opinion to Amtrak and the United States as the defendants.

       Count one of the operative complaint sounded in an action to quiet and settle title, count two requested a declaratory judgment, count three requested a constructive trust be imposed, count four asked for a declaration that the plaintiff had fee title to or an equitable interest in the property and count five requested an accounting.

       The plaintiff also argues that his motion for a stay of proceedings, filed May 8, 1996, should have been granted. The trial court never acted on the application because it dismissed the case.

       45 U.S.C. §§ 701 through 797m.

       45 U.S.C. §§ 711 through 729.

       45 U.S.C. §§ 716 through 717.

       See 45 U.S.C. § 719. The Special Court was abolished on January 19, 1997, and its powers transferred to the United States District Court for the District of Columbia. See Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 605, 110 Stat. 3847, 3858 (1996).

       Although the judgment file indicates that the trial court granted only Amtrak’s motion to dismiss, it is apparent from the trial court’s articulation that it also granted the United States’ motion to dismiss. The trial court, in its articulation, expressly concurred with the United States’ reasoning in dismissing the plaintiffs complaint. As a result, the trial court impliedly granted both Amtrak’s and the United States’ motions to dismiss. See Lashgari v. Lashgari, 197 Conn. 189, 196-97, 496 A.2d 491 (1985).
      We further note that we do not condone the trial court’s verbatim adoption, in its articulation, of the reasoning of the United States in its motion to dismiss as the basis for its dismissal of the plaintiffs complaint. See Doe v. Bridgeport Hospital, 40 Conn. App. 429, 432-33, 671 A.2d 405 (1996) (recognizing inadequacy of trial court’s adoption of party’s legal or factual conclusions as basis for court’s decision).

       Subsequent to the filing of this appeal, the Special Court ruled on the plaintiffs action, which sought a determination by that tribunal of the meaning and effect of the 1976 deeds. The order and memorandum of decision, filed November 6, 1997, contained the following information: the Special Court denied the plaintiffs motion for summary judgment, granted the defendant Amtrak’s motion for summary judgment, and rendered judgment on the merits in favor of all defendants against the plaintiff.

       We note that the consideration of any issues not germane to a determination of the trial court’s jurisdiction over the subject matter is not warranted. This includes the consideration, as argued by the plaintiff, of the statute of limitations, estoppel and laches issues. Even if such issues were properly raised, they lack merit. Subject matter jurisdiction may not be conferred in a matter that is not. ripe for adjudication merely because the statute of limitations may run before resolution of a claim. Connecticut law has consistently recognized that a statute of repose may on occasion operate to bar an action even before it accrues. See Zapata v. Burns, 207 Conn. 496, 508-509, 542 A.2d 700 (1988); Sanborn v. Greenwald, 39 Conn. App. 289, 301-306, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

       The cases cited in the plaintiffs brief are not pertinent to this issue because each case was heard by the Special Court and each case focuses on the ability of the Special Court to stay proceedings pending resolution of issues in other courts.

       Justiciability and ripeness have been referred to as related doctrines. See Cumberland Farms, Inc. v. Groton, 46 Conn. App. 514, 517-18, 699 A.2d 310, cert. granted, 243 Conn. 936, 702 A.2d 641 (1997); Mayer v. Biafore, Florek & O’Neill, supra, 45 Conn. App. 556-57; ASL Associates v. Zoning Commission, 18 Conn. App. 542, 548-49, 559 A.2d 236 (1989). The courts, however, have left the precise relationship between ripeness and justiciability unanswered. Whether ripeness is a requirement of justiciability or vice versa seems to puzzle both courts and scholars.
      In “A Unified Approach to Justiciability,” 22 Conn. L. Rev. 677 (1990), Professor Erwin Chemerinsky examines ripeness in the context of the federal courts. He describes ripeness as one of “several justiciability doctrines,” including standing, mootness and the political question doctrine, which must be met in order for a federal court to hear a case. Id., 677. “ ‘Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability.” Shaskan v. Waltham Industries Corp., 168 Conn. 43, 48, 357 A.2d 472 (1975), quoting Flast v. Cohen, 392 U.S. 83, 98, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Chemerinsky concludes his study by suggesting that ripeness along with other overlapping doctrines should be merged into one unified analysis. Because we agree that ripeness is a sine qua non of justiciability, we have referred to the doctrines as such.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    MICHAEL J. LAPIA, JR. v. TOWN OF STRATFORD ET AL.
    (AC 16373)
    Foti, Landau and Hennessy, Js.

      Argued October 28
    officially released December 30, 1997

      J. Brendan Sharkey, for the appellant (plaintiff).

      Harold Brienes, pro se, the appellee (intervening defendant).
   Opinion

FOTI, J.

The plaintiff, Michael J. LaPia, Jr., appeals from a decision rendered by the compensation review board (board) affirming the commissioner’s order awarding attorney’s fees of $41,732 to the plaintiffs former attorney, Harold Brienes.

On appeal, the plaintiff claims that the board improperly determined (1) that workers’ compensation commissioner John A. Arcudi had jurisdiction to order an award of attorney’s fees, and (2) that Arcudi did not engage in improper ex parte communications with Brienes. Because we agree with the second of those claims, we reverse the board’s decision and remand the case for further proceedings.

An examination of the board’s record reveals the following facts. In 1991, the plaintiff suffered a work-related injury while in the employment of the named defendant town of Stratford (town). In June, 1994, the plaintiff entered into an “Attorney-Client Employment Agreement” with Brienes to represent him in his claims against the town for workers’ compensation benefits and a disability pension. The parties subsequently agreed to submit the action to the workers’ compensation commission (commission) to oversee the terms of a global settlement. At the time the parties submitted the action to the commission, Arcudi was the acting commissioner for the fourth district.

On March 17, 1995, a meeting was held to discuss a settlement of the plaintiffs claims against the town. The plaintiff was represented by Brienes. On March 18, 1995, the plaintiff terminated his client relationship with Brienes. Sometime between March 18 and May 4, 1995, Arcudi was reassigned to the seventh district by the chairman of the commission. Following Arcudi’s reassignment, Brienes contacted him by telephone to request his assistance in obtaining fees for Brienes’ previous service to the plaintiff.

The parties executed a voluntary agreement that was approved by the new commissioner for the fourth district, Frank J. Verrilli, on May 4,1995, following a formal hearing. Brienes was present at the hearing and argued that approval of the voluntary agreement should be delayed pending full payment of his attorney’s fees, and that the matter should be transferred to Arcudi for final approval of the voluntary agreement. Verrilli denied Brienes’ request to transfer the matter to Arcudi, but ordered that a $25,000 escrow account be established to protect Brienes’ interests. The terms of the escrow agreement state that “[t]he money will be protected and disbursed upon settlement of the claim for attorney’s fees.” Following the May 4, 1995 hearing, Brienes wrote to Arcudi to inform him of Verrilli’s award and establishment of an escrow account and to request that Arcudi enter an order awarding him attorney’s fees. On June 5, 1995, Arcudi sent a letter to the plaintiff, which began: “Attorney Brienes has asked me to set an attorney’s fee in the [present] matter.” Arcudi then went on to estimate that the settlement package, approved by Verrilli, was “worth well over $250,000.” On the basis of his estimate of the value of the settlement, Arcudi set a fee of $40,000, plus the reimbursement of Brienes’ out-of-pocket expenses in the amount of $1732.

On June 14, 1995, the plaintiff petitioned the board to review Arcudi’s award of attorney’s fees. On November 17, 1995, the board granted Brienes’ motion to be made a party defendant.

We first set forth our standard of review. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The compensation review [board] must review the appeal on the record and must not retry [the] facts.” (Citations omitted; internal quotation marks omitted.) Green v. General Dynamics Corp., 44 Conn. App. 112, 115, 687 A.2d 550 (1996), cert. granted on other grounds, 240 Conn. 916, 692 A.2d 813 (1997).

The plaintiff first claims that Arcudi did not have jurisdiction to award attorney’s fees because he presided over formal hearings in this case while assigned to the fourth workers’ compensation district, and subsequently issued his order regarding attorney’s fees while assigned to the seventh district. The board rejected the plaintiffs argument stating that “[General Statutes] § 31-280 (b) allows trial commissioners to be transferred between districts. Certainly, atrial commissioner is permitted to make a determination on a case which he has presided over even after he has been transferred to another district.”

The plaintiff concedes in his brief that the board’s conclusion is an accurate expression of the law and that workers’ compensation commissioners retain statewide jurisdiction. Nevertheless, the plaintiff claims that Arcudi failed to assert his authority to retain jurisdiction in this case because he neither ordered the parties to continue to submit their “findings” to him after his reassignment to the seventh district nor objected to Verrilli’s assumption of the case in the fourth district. The plaintiffs claim, therefore, is not that Arcudi, after having been transferred to another district, could not retain jurisdiction to act in this matter, but rather that he failed to satisfy the prerequisites of jurisdiction.

The plaintiff provides no authority for his claim that to retain jurisdiction Arcudi was required either (1) to order the parties to submit subsequent filings to him after his reassignment or (2) to object to Verrilli’s assumption of the case. Moreover, the board approved Arcudi’s exercise of jurisdiction when it affirmed his decision and stated that “[cjertainly, a trial commissioner is permitted to make a determination on a case which he has presided over even after he has been transferred to another district.”

Our Supreme Court has consistently stated that “[an appellate court] must accord great deference to the construction given a statute by the agency charged with its enforcement. Preston v. Dept. of Environmental Protection, 218 Conn. 821, 830, 591 A.2d 421 (1991). That principle applies with even greater force to the agency’s interpretation through its own duly adopted regulations which have the same force and effect of law unless they are shown to be inconsistent with the authorizing statutes. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986).” Commission on Human Rights & Opportunities v. Windsor Hall Rest Home, 232 Conn. 181, 196 n.1, 653 A.2d 181 (1995) (Berdon, J., dissenting); see Dept. of Utilities v. Carothers, 28 Conn. App. 674, 682, 613 A.2d 316 (1992), citing State v. Lang, 23 Conn. App. 272, 277, 580 A.2d 71 (1990) (courts give great deference to construction of statute by agency charged with its enforcement).

Because the plaintiff has failed to provide support for his claim that Arcudi was required to satisfy certain prerequisites of jurisdiction and has conceded that workers’ compensation commissioners retain statewide jurisdiction, we affirm the decision of the board that Arcudi had jurisdiction to order an award of attorney’s fees.

The plaintiff next claims that Arcudi engaged in improper ex parte communications with Brienes on two occasions. The first occurred when Brienes telephoned Arcudi to request his assistance in Brienes’ fee dispute with the plaintiff. The second took place after the May 4, 1995 hearing before Verrilli, when Brienes wrote to Arcudi to inform him of the outcome of the hearing and to request that Arcudi enter an order awarding him attorney’s fees.

General Statutes § 4-181 (a) provides: “Unless required for the disposition of ex parte matters authorized by law, no hearing officer or member of an agency who, in a contested case, is to render a final decision or to make a proposed final decision shall communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or, in connection with any issue of law, with any party or the party’s representative, without notice and opportunity for all parties to participate.” (Emphasis added.) Subsection (c) of § 4-181 provides in relevant part: “Unless required for the disposition of ex parte matters authorized by law, no party or interoenor in a contested case, no other agency, and no person who has a, direct or indirect interest in the outcome of the case, shall communicate, directly or indirectly, in connection with any issue in that case, with a hearing officer . . . without notice and opportunity for all parties to participate in the communication.” (Emphasis added.)

This case is complicated by the fact that the communications objected to by the plaintiff were made to a commissioner who was no longer presiding over the contested case between the plaintiff and the defendant town, and by the fact that the second communication was made after the May 4, 1995 hearing at which a stipulation was executed resulting in a settlement of the plaintiffs claims against the town. It is undisputed, however, that the communications were made to a commissioner who ultimately issued an order awarding attorney’s fees in the amount of $41,732 to Brienes.

In Henderson v. Dept. of Motor Vehicles, 202 Conn. 453, 458, 521 A.2d 1040 (1987), our Supreme Court stated: “Long before the advent of § 4-181 it had been held that a fundamental requirement of a fair administrative hearing is that ‘the one who decides shall be bound in good conscience to consider the evidence, to be guided by that alone, and to reach his conclusion uninfluenced by extraneous considerations . . . .’ Morgan v. United States, 298 U.S. 468, 480, 56 S. Ct. 906, 80 L. Ed. 1288 (1936). ‘Nothing can be treated as evidence which is not introduced as such.’ Id. Ex parte communications with persons outside the agency are plainly improper under this standard for administrative adjudication. Even in the absence of such a statute, therefore, an ex parte communication by an adjudicator concerning a case before him would indicate that the decision had been ‘made upon unlawful procedure,’ a ground for reversal or modification specifically mentioned in [General Statutes § 4-183 (j) (3)]. A plaintiff who also showed ‘substantial prejudice’ to his rights, satisfying the predicate established by [§ 4-183 (j)] for relief upon any of the grounds enumerated therein, would thus be entitled to reversal or modification of the agency decision quite apart from § 4-181.” In Henderson v. Dept. of Motor Vehicles, supra, 460, our Supreme Court held that once a “violation of § 4-181 has been proved by the party seeking relief, the burden shifts to the agency to prove that no prejudice has resulted from the prohibited ex parte communication.” The rationale behind the court’s decision to shift the burden to the agency was that “an adjudicating official may not ordinarily be subjected to inquiry concerning the mental process used in reaching a decision. United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 (1941).” Henderson v. Dept. of Motor Vehicles, supra, 459.

In rejecting the plaintiffs claim that the ex parte communications between Arcudi and Brienes resulted in a denial of his due process rights, the board implied that the plaintiff had waived his due process rights by directly appealing the commissioner’s decision to the board rather than requesting a formal hearing before Arcudi. Even if we assume that the plaintiff was entitled to a hearing before Arcudi, such a hearing would not have cured the procedural deficiencies that resulted in the original order of attorney’s fees.

Both our Supreme Court and the United States Supreme Court have stated: “The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them. Leib v. Board of Examiners for Nursing, 177 Conn. 78, 82, 411 A.2d 42 (1979), quoting Morgan v. United States, 304 U.S. 1, 18, 58 S. Ct. 773, 82 L. Ed. 1129 [(1938)].” (Internalquotation marks omitted.) Martone v. Lensink, 207 Conn. 296, 303, 541 A.2d 488 (1988). “The right to judicial review is impeded if the reasons for an agency’s actions are not accessible through a record. . . . [Section 4-181] is intended to preclude litigious facts reaching the deciding minds without getting into the record. . . . The purposes of § 4-181 are to prevent one party from exerting improper influence on the decisionmaker . . . and to ensure that the reasons underlying his or her decision are on the record. . . .” (Citations omitted; internal quotation marks omitted.) Id.

Because there is no record through which the plaintiff could determine the basis of Arcudi’s decision, he would have no way to challenge its reasonableness or to determine whether it was improperly influenced by ex parte communications with Brienes. Therefore, the plaintiffs decision to forgo a formal hearing before Arcudi did not represent a waiver of his procedural due process rights. In addition, once the plaintiff established a prima facie violation of § 4-181, the board was required to shift the burden to Brienes to make an evidentiary showing to rebut an inference of prejudice by demonstrating that Arcudi’s decision was not adversely affected by the ex parte communications. See Martone v. Lensink, supra, 207 Conn. 305; Henderson v. Dept. of Motor Vehicles, supra, 202 Conn. 460.

“[Workers’] compensation commissioners are not bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit of this chapter. General Statutes § 31-298. Nonetheless, procedural due process is a requirement of adjudicative administrative hearings, including those held before [workers’] compensation commissioners, and the admission of hearsay material such as letters without an opportunity to cross-examine is ordinarily a deprivation of procedural due process. Richardson v. Perales, 402 U.S. 389 [402-407], 91 S. Ct. 1420, 28 L. Ed. 2d 842 [1971]; Goldberg v. Kelly, 397 U.S. 254, 267-70, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]; Welch v. Zoning Board of Appeals, 158 Conn. 208, 212, 257 A.2d 795 [1969]; Conley v. Board of Education, 143 Conn. 488, 495, 123 A.2d 747 [1956].” (Internal quotation marks omitted.) Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 227 (1974). General Statutes § 31-298 provides in relevant part that “ [i]n all cases and hearings under the provisions of [the Workers’ Compensation Act], the commissioner shall proceed, so far as possible, in accordance with the rules of equity. ...” Our Supreme Court has stated that “no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Osterlund v. State, 129 Conn. 591, 596, 30 A.2d 393 (1943); Simmons v. Bonhotel, 40 Conn. App. 278, 287-88, 670 A.2d 874 (1996).

In the present case, Arcudi’s unilateral order awarding Brienes legal fees in the amount of $41,732 was made without any notice to the plaintiff or opportunity to present evidence. In fact, Arcudi never discussed the issue of attorney’s fees with the plaintiff at any time before or after his June 5,1995 order. Thus, the commissioner’s order effected a denial of the plaintiffs right to due process of law.

The decision of the workers’ compensation review board is reversed and the case is remanded with direction to vacate the commissioner’s June 5, 1995 order awarding attorney’s fees and to return the case to the commissioner for a formal hearing regarding the appropriate amount of attorney’s fees.

In this opinion the other judges concurred.

       Arcudi credited the plaintiff with the $6000 retainer previously paid to Brienes. Therefore, the net payment ordered by Arcudi amounted to $35,732.

       General Statutes (Rev. to 1995) § 31-280 (b) provides in relevant part: The chairman of the Workers’ Compensation Commission shall:
      “(1) Establish workers’ compensation districts and district offices within the state and assign compensation commissioners to the districts to hear all matters arising under this chapter within the districts . . .
      “(14) Control the hearing calendars of the compensation commissioners, and if necessary, preside over informal hearings in regard to compensation under the provisions of this chapter in order to facilitate the timely and efficient processing of cases . . . .”

       We recognize that it would be difficult, if not impossible, for Brienes to rebut the inference of prejudice in this case, given the fact that Arcudi’s order was issued in response to a request from Brienes and that the amount of out-of-pocket expenses awarded by Arcudi was the exact figure recited by Brienes in his May 4, 1995 letter to Arcudi.


author: DUPONT, J. FOTI, J.,

text:
    STATE OF CONNECTICUT v. JASON SHINN
    (AC 15928)
    Foti, Lavery and Dupont, Js.

      Argued October 1
    officially released December 30, 1997

      Francis T. Mandanici, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, carrying a dangerous weapon without a permit in violation of General Statutes § 53-206 (a), and threatening in violation of General Statutes § 53a-62. The defendant claims (1) that the trial court improperly denied his motions for judgment of acquittal concerning the attempt charge because there was insufficient evidence to sustain his conviction on that charge, (2) that the court improperly instructed the jury concerning the planning element of the attempt charge and the defense of intoxication, and (3) that the state’s closing argument to the jury impermissibly burdened his constitutional rights to be present at his trial and to testily in his own behalf. We reverse the judgment of conviction on the charge of attempt to commit murder on the ground that the defendant’s constitutional right to testify in his own behalf was impermissibly burdened and remand the case for a new trial.

The jury reasonably could have found the facts that follow. In November, 1994, the defendant lived in an apartment with his girlfriend, Lisa Listorti, her infant daughter and her mother. The defendant was then sixteen years old and had been living with Listorti for approximately three years.

On November 8, 1994, the defendant was at home with Listorti, drinking liquor and smoking crack cocaine and marijuana. The defendant had had two violent arguments with Listorti that day. Both times, the police were called and came to the apartment. During the second argument, the defendant became violent, hit Listorti, waved a knife in her face and threatened to kill her.

When the police arrived after the second fight between the defendant and Listorti, the defendant ran out the back door of the apartment, taking a large kitchen knife. New Haven police officer Roderick McLane, who had responded to the domestic violence call, spoke with Listorti and went to the back of the apartment building where he saw the defendant on the fire escape. From there, the defendant went onto the roof of the building. McLane followed the defendant to the top of the fire escape and, at that point, saw that the defendant was holding a large kitchen knife in a threatening manner. The defendant told McLane, “Don’t come up here, I’m going to kill you.” At some point, the defendant also threatened to kill himself. McLane remained on the fire escape and called for back-up. In response to McLane’s call, Officer John Magoveny arrived.

After some discussion between the officers and the defendant, the defendant agreed to talk to Magoveny and the officer climbed onto the roof. McLane could not see the defendant or Magoveny or hear their conversation from his position on the fire escape. When Magoveny got onto the roof, he saw that the defendant was holding a large kitchen knife. As Magoveny continued to talk to the defendant, the defendant became agitated, began to growl and snarl, and raised the knife above his shoulders in a striking position. The defendant then threatened to kill Magoveny and began to walk quickly toward the officer, holding the knife in a striking position. Magoveny fired two shots from his gun at the defendant, hitting him in the hip and left arm. The defendant fell onto the roof. As Magoveny bent down to assist the defendant, the defendant continued to growl and attempted to thrust the knife at Magoveny. After a brief struggle, Magoveny fired a third shot into the defendant’s chest. The defendant then dropped the knife onto the roof. Magoveny picked up the defendant and carried him to the edge of the roof where he was lowered to a waiting ambulance.

We first address the defendant’s claim that there was insufficient evidence for the trial court to conclude that the defendant was guilty of attempt to commit murder. The defendant is entitled to a judgment of acquittal on this charge if he prevails on this claim. Specifically, the defendant claims that the state was required to prove that the defendant “planned” his conduct and that the evidence was insufficient to prove the element of “planning.” The relevant portion of the attempt statute in this case provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-49 (a). Relying on the words “planned” and “culminate” in the statute, the defendant claims that in order to convict him of attempted murder the state was required to demonstrate that prior to his act of advancing toward Magoveny while holding the knife in a striking position, he had a plan to kill the officer. The defendant further claims that his intent to kill Magoveny could not have been adopted simultaneously with the actions that constituted the substantial step toward the murder. The defendant fails, however, to provide any case law or other authority for his contention that the attempt statute requires any such prior planning or premeditation.

There are many Connecticut cases defining tihe elements of an attempt charge, none of which indicates any requisite prior planning. See State v. Gonzalez, 222 Conn. 718, 725-26, 609 A.2d 1003 (1992); State v. Sharpe, 195 Conn. 651, 655, 491 A.2d 345 (1985); State v. Russell, 29 Conn. App. 59, 66, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992); State v. Taft, 25 Conn. App. 578, 582-83, 595 A.2d. 918, cert. denied, 220 Conn. 921, 597 A.2d 343 (1991). The legislature has defined what it meant by a “substantial step” in § 53a-49 (a). It must be part of a course of conduct that is “planned to culminate in” the crime. The action taken must embody the intended crime, rather than being merely accidental or inadvertent. The “[c]onduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) . . . unless it is strongly corroborative of the actor’s criminal purpose.” (Emphasis added.) General Statutes § 53a-49 (b). “[T]his standard properly directs attention to overt acts of the defendant which convincingly demonstrate a firm purpose to commit a crime.” State v. Green, 194 Conn. 258, 277, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). Accordingly, the acts “ ‘must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the [defendant] at least to be possible of commission by the means adopted.’ ” State v. Taft, supra, 582, quoting State v. Mazzadra, 141 Conn. 731, 736, 109 A.2d 873 (1954).

In the only Connecticut case of which we are aware in which the possibility that there is an element of prior planning in the attempt statute is discussed; State v. Gonzalez, supra, 222 Conn. 725-26; it was held that the trial court had improperly assumed that some prior plan or premeditation was necessary for criminal liability under § 53a-49 (a) (2). In that case, the trial court had informed the jury that subsection (a) (2) of the attempt statute did not apply because there was no plan or lying in wait leading up to the encounter between the defendant and the victim. State v. Gonzalez, supra, 724-25. Our Supreme Court stated that the only proof required for a conviction for attempted murder under § 53a-49 (a) (2) was that “the defendant was armed, that he knowingly and intentionally produced a gun during his altercation with the victim, and that he shot the victim with the intent to take the victim’s life.” Id., 726. The court further stated that “[i]t cannot seriously be argued that if the defendant shot the victim with the intent to cause his death, that the action taken, the shooting of the victim, was not a substantial step in a course of conduct ptomed, i.e., intended or designed, to culminate in the commission of the crime of murder . . . .” (Emphasis added.) Id. Thus, the Gonzalez court clearly interpreted the “planning” language in the statute to refer to the conduct, not the ultimate crime, in that the conduct must be planned or intended to culminate in the crime. The only factual distinction between this case and Gonzalez relevant to the interpretation of the statutory language quoted is that the victim was actually shot in Gonzalez.

The jury in this case reasonably could have found that the defendant raised the knife in a menacing manner and aimed the knife toward Magoveny, and that the defendant’s act of advancing toward Magoveny holding a large knife in such a manner and driving the knife toward Magoveny was a substantial step in a course of conduct that was planned to culminate in the murder of Magoveny. We conclude that there is no support in the language of the statute or in the case law interpreting it for the defendant’s proposition that to be guilty of attempt pursuant to § 53a-49, the state would have to prove that he planned to murder Magoveny prior to performing acts that constitute a substantial step toward the murder. We hold, therefore, that the evidence was sufficient to support the jury’s conviction of the defendant of attempted murder.

We next address the defendant’s claim that the state’s closing argument to the jury impermissibly burdened his constitutional right to testify in his own behalf. In the state’s rebuttal closing argument to the jury the prosecutor stated: “You heard repeated references this afternoon that Mr. Shinn got up and testified. That is his right, if he wants to do that, he has the perfect right to do that. That is up to him. He also has a right not to testify. Obviously, ladies and gentlemen of the jury, he heard evidence during the course of the state’s case that he felt was, is strong, and so convincing to you, that he felt obligated to get up there and testify and give you a story. . . . And if he thought . . . that the state’s evidence was too weak in this case, why did he decide to get up here and testify? That’s for your judgment to consider.” (Emphasis added.)

The defendant did not object to the prosecutor’s remarks during the prosecutor’s rebuttal argument but did, immediately after the argument, and outside the presence of the jury, ask the court for permission to address the jury to respond to the quoted remarks. The court denied the request. Even if that request were insufficient for the preservation of the defendant’s claim, we would nevertheless review it under the “exceptional circumstances” doctrine articulated in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

In Golding, our Supreme Court clarified the standard for appellate review of unpreserved constitutional claims. The court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of a constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986); see Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Manfredi, 17 Conn. App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed 2d 37 (1990).

The defendant’s claim is reviewable because the claim implicates the defendant’s fundamental constitutional right to testily at trial and there is a record sufficient for review. “A record is not inadequate for Golding purposes because the trial court has not reached a conclusion of law if the record contains the factual predicates for making such a determination.” State v. Torres, 230 Conn. 372, 378-79, 645 A.2d 529 (1994). Here, the exact words of the argument are known and those words implicate the defendant’s constitutional right to testily in his own behalf.

We next turn to the third prong of Golding, which requires that a defendant, in order to prevail, must show that the constitutional violation clearly exists and deprived the defendant of a fair trial. Before beginning this discussion, we emphasize that this case is not about a comment of a prosecutor that relates to the credibility of a defendant who takes the stand to testify in his or her own behalf. Rather, this case concerns a comment that relates to the fact that a defendant chose to exercise the constitutional right to testify, not to the content of that testimony.

“The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ Faretta v. California, 422 U.S. 806, 819 n.15 [95 S. Ct. 2525, 45 L. Ed. 2d 562] (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony .... The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call‘witnesses in his favor,’. . . Washington v. Texas, 388 U.S. 14, 17-19 [87 S. Ct. 1920, 18 L. Ed. 2d 1019] (1967). Logically included . . . is aright to testify himself. . . . The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); see, e.g., Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) (“[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so”). A defendant’s right to testify is also protected by his rights to a fair trial, to due process, to present a defense, and to be free from compelled testimony under article XVII of the amendments to the Connecticut constitution and under article first, § 8, of the Connecticut constitution.

It is well settled that a constitutional violation may be established even though there has not been a complete deprivation of that right. A constitutional violation may result “when a constitutional right has been impermissibly burdened or impaired by virtue of state action that unnecessarily chills or penalizes the free exercise of the right.” State v. Cassidy, 236 Conn. 112, 126, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996); see, e.g., Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) (state’s conditioning receipt of welfare benefits on duration of residency impermissibly burdened constitutional right to travel); United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) (statute permitting imposition of death penalty only on defendants convicted after trial and not on those who pleaded guilty impermissibly impaired constitutional right to trial); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) (“for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional’ ”).

We conclude that this case is similar to and governed by State v. Cassidy, supra, 236 Conn. 120, in which the court held that the defendant’s constitutional right to be present throughout his trial was violated by the prosecutor’s closing argument. The remarks in that case were that “the defendant, because he was present in court throughout the trial, was able to tailor his testimony to that of the state’s witnesses who, in contrast to the defendant, were subject to the trial court’s sequestration order.” Id. The court held that the defendant had a constitutional right to be present in the courtroom and to face his accusers, and that the prosecutor’s statement “placed too high a price on the defendant’s exercise” of that right. Id., 125. The court stated that, in arguing to the jury that the defendant had doctored his testimony simply because he chose to be present during the trial, “the prosecutor invited the jury to draw an inference adverse to the defendant solely because of the defendant’s exercise of his constitutional right to confront the witnesses against him.” Id., 127-28. The court concluded that “[ijnviting the fact finder to draw an inference adverse to a defendant solely on account of the defendant’s assertion of a constitutional right impermissibly burdens the free exercise of that right and, therefore, may not be tolerated.” Id., 127; see, e.g., Zant v. Stephens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) (aggravating factor invalid if it “authorizes a jury to draw adverse inferences from conduct that is constitutionally protected”); Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (statement by court or prosecutor inviting jury to draw adverse inference from defendant’s failure to testify violates constitution as “penalty imposed by courts for exercising a constitutional privilege”).

The Cassidy court acknowledged, as is true in the present case, that the objectionable comments by the prosecutor were relatively brief. The court further acknowledged that “we have in the past rejected due process claims predicated on a single questionable prosecutorial statement.” (Internal quotation marks omitted.) State v. Cassidy, supra, 236 Conn. 130-31. The court distinguished the Cassidy case from cases where no due process violation resulted from brief objectionable comments, however, noting that “[i]n most such cases . . . the challenged argument did not directly implicate a constitutional right . . . [whereas the remarks in the present case] struck at the heart of the critical issue in a closely contested case [and] infringed upon the defendant’s constitutional right . . . .’’Id., 131; see also Agard v. Portuondo, 117 F.3d 696, 713 (2d Cir. 1997) (“[a] comment which directly disparages the defendant’s exercise of constitutional rights can be severe misconduct regardless of its length”).

The Cassidy court also acknowledged the fact that, in choosing to testify, the defendant put his credibility at issue, thereby subjecting himself to critical cross-examination. Accordingly, the court noted that the prosecutor would have been free to challenge the defendant’s version of the facts and to argue that the defendant had tailored his testimony to fit the state’s case, provided that such an argument was “linked solely to the evidence and not, either directly or indirectly, to the defendant’s presence at trial [i.e., his exercise of a constitutional right].” State v. Cassidy, supra, 236 Conn. 128 n.17.

The principles of Cassidy control this case, by which we are bound as an intermediate appellate court. In the present case, the prosecutor argued to the jury that the defendant exercised his constitutional right to testify because he and his attorney believed that the state’s case was so “strong, and so convincing to you, that he felt obligated to get up there and . . . give you a story . . . [a]nd if he thought . . . that the state’s evidence was too weak in this case, why did he decide to get up here and testify?” The state essentially argued, therefore, that the defendant exercised his constitutional right to testify at his trial because the state’s evidence so strongly supported a finding of guilt that he felt compelled to respond. The defendant, however, might have felt compelled to testify in his own behalf because he believed that his testimony would strongly support a finding of not guilty. The prosecutor’s statements are based on the assumption that defendants who testify in their own behalf acknowledge that the state’s case is so strong that, unless they testify they would be found guilty.

The prosecutor in this case, as a consequence of his remarks, invited the jury to draw an adverse inference from the very fact of the defendant’s decision to exercise his fundamental right to testify in his own behalf. The remarks were not objectionable because they addressed the content or credibility of the testimony, but because, as was true in Cassidy, the comments directly implicated an important constitutional right of the defendant. Only he and the officer were on the roof during the encounter, and the defendant’s version of the encounter related to the critical issue to be determined in the case, namely, whether the defendant intentionally did or omitted to do anything “under the circumstances as he believe[d] them to be, [was] an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” (Emphasis added.) General Statutes § 53a-49 (a) (2). The statements in the present case were not merely comments on the credibility of the defendant’s testimony, but rather were statements that directly linked his decision to testify with his guilt. Such comments are impermissible, and we hold that they were a denial of the defendant’s due process rights.

Finally, the state argues in its brief that the prosecutor’s arguments in this case were permissible because unlike in Cassidy, the prosecutor’s remarks were made during his rebuttal argument in response to the defendant’s closing argument. Specifically, the state contends that the prosecutor was responding to the defendant’s argument that the defendant’s testimony was the natural and unrehearsed statements of an inexperienced “seventeen year old kid” and, therefore, should be believed. While courts have held that due process will not prevent a prosecutor from responding fairly to a defendant’s argument, a prosecutor may not treat a defendant’s exercise of a constitutional right as evidence of guilt under the guise of attacking the defendant’s credibility. Cf. United States v. Robinson, 485 U.S. 25, 28, 32, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1988) (prosecutor’s statement that defendant could have gotten up and told his story did not infringe on defendant’s fifth amendment rights where statement was direct response to defense counsel’s argument that prosecution “has not allowed the defendants an opportunity to explain”).

This is not a case where the prosecutor was responding to the defendant’s own argument in his closing statement that directly implicated the defendant’s constitutional right to testify, such as, for example, an argument by the defendant that the defendant must have been telling the truth or he would not have testified. Cf. id., 33. Instead, the defendant’s closing argument merely urged the jury to believe the defendant’s testimony. Although it is true that the prosecution may comment on the veracity of a defendant, it may not constitutionally make a negative comment on the defendant’s very act of taking the stand.

A defendant’s decision to exercise his right to testify is analogous to a defendant’s decision to exercise his fifth amendment right not to testify. “It is well settled that comment by the prosecuting attorney or the trial court on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution.” State v. Arline, 223 Conn. 52, 66, 612 A.2d 755 (1992), citing Griffin v. California, supra, 380 U.S. 614.

The United States Court of Appeals for the Second Circuit has extended the holding in Griffin to prohibit prosecutorial comment on a defendant’s decision to testify. In a 1997 case, Agard v. Portuondo, supra, 117 F.3d 712, the Second Circuit relied on Griffin to hold that “commentary which chills the defendant’s right to testify on his own behalf is unconstitutional.” Although the Connecticut Supreme Court has not yet had an opportunity to comment on Agard, the Agard case is consistent with the principles of Cassidy.

The Agard court held that closing arguments that invited the jury to infer that the defendant exercised his constitutional right to be present in the courtroom during his trial in order to doctor his testimony violated the defendant’s “right to testify on his own behalf and correspondingly the Fifth, Sixth and Fourteenth Amendments.” Id. Similarly, in United States v. Freeman, 514 F.2d 1314, 1318 (D.C. Cir. 1975), the court relied on an analogy to Griffin and held that “the prosecutor’s reference [to the defendant’s decision to take the stand as indicative of his guilt] impinged impermissibly on his right to take the stand . . . .’’In holding that the prosecutor’s comments constituted error, the court stated that the defendant’s decision to take the stand had “no rational bearing” either on the defendant’s guilt or on his credibility, and the use of “[s]uch a tactic does not become the prosecutor, as an exemplar of fairness and justice in the criminal system.” Id., 1319; see also Commonwealth v. Stout, 356 Mass. 237, 249 N.E.2d 12 (1969) (holding comment on defendant’s decision to take stand improper).

Having determined that the closing remarks by the prosecutor were improper, we next, in accord with the fourth prong of Golding, consider whether the state has proved beyond a reasonable doubt that the error was harmless. Viewing the prosecutor’s comments in the context of the entire trial, we conclude that the state has failed to meet its burden.

The court in Cassidy held that the prosecutor’s impermissible remarks regarding the defendant’s presence in the courtroom during the trial were harmful constitutional error even though “the prosecutor’s objectionable comments were relatively brief and not made in bad faith.” State v. Cassidy, supra, 236 Conn. 130. In concluding that the statements were not harmless error, the court relied on the fact that the defendant and the victim were the only witnesses with firsthand knowledge of the crime and, thus, credibility was unquestionably a central issue at trial. Id., 129-30. Similarly, in the present case, the defendant and the victim, Magoveny, were the only witnesses with firsthand knowledge of the events pertinent to the attempted murder charge. The critical question to be resolved by the jury, therefore, was which of the two eyewitnesses was telling the truth. Furthermore, the crime of which the defendant was accused requires proof that the defendant intentionally committed an act that would culminate in the commission of a crime “under the circumstances as the defendant believe[d] them to be.” The defendant was best able to testify as to the circumstances as he believed them to be, although, of course, the jury need not have found his testimony credible.

The prosecutor’s argument, which served to link the discrediting of the defendant’s testimony with a negative comment on the very fact that the defendant did testify, bore on the critical issue to be resolved by the jury. Given the particular facts of this case, we are not persuaded beyond a reasonable doubt that the jury was not influenced adversely by the prosecutor’s improper closing argument. The remarks were not harmless beyond a reasonable doubt and, accordingly, the defendant is entitled to a new trial on the charge of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) and 53a-54a.

The judgment is reversed only as to the conviction of attempt to commit murder and the case is remanded for a new trial on that charge.

In this opinion LAVERY, J., concurred.

FOTI, J.,

dissenting. I must respectfully disagree with the majority opinion that statements made by the prosecutor in his rebuttal closing argument to the jury impermissibly burdened the defendant’s constitutional right to testify in his own behalf. The defendant did not object to any of the comments made by the prosecutor and has not satisfied the Evans-Golding test to allow this court to review his unpreserved claim. Furthermore, the defendant’s claim is distinguishable from that decided by our Supreme Court in State v. Cassidy, 236 Conn. 112, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996).

The defendant concedes that his claim is unpreserved but argues that it is reviewable under both “exceptional circumstances” discussed in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant argues that his claim satisfies the first exceptional circumstance because our Supreme Court’s decision in Cassidy, on which he relies to make out a claim of prosecutorial error, was decided after his conviction. I do not agree that Cassidy created a new constitutional right not readily foreseeable to the defendant at the time of trial. Contrary to the defendant’s contention, Cassidy did not create a new constitutional right, but rather applied a known constitutional right to the particular set of facts present in that case and found a violation of that known right.

The constitutional right at issue in Cassidy was the defendant’s right to be present throughout the trial. In Cassidy, the court relied on several United States Supreme Court decisions to establish that the right of a defendant to be physically present in the courtroom is fundamental. See, e.g., Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (right to confrontation fundamental to fair trial under federal constitution); Coy v. Iowa, 487 U.S. 1012, 1018-19, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), quoting Lee v. Illinois, 476 U.S. 530, 540, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986) (right to confront one’s accusers so deeply rooted in “human feelings of what is necessary for fairness [that] the right of confrontation ‘contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails’ ”). The cases cited by the court in Cassidy clearly recognized the right of a defendant to be present at trial and were decided before the trial in this case. Moreover, in Cassidy, “before the trial court had commenced its instructions to the jury, the defendant moved for a mistrial or, in the alternative, for a curative instruction, claiming that the prosecutor’s argument had improperly infringed upon his constitutional right to be present throughout the trial.” State v. Cassidy, supra, 236 Conn. 122. Thus, the right was readily foreseeable to the defendant in Cassidy. Because our Supreme Court’s decision in Cassidy did not create a new constitutional right not readily foreseeable to the defendant at the time of trial, I would decline to review the defendant’s unpreserved claim under the first exceptional circumstance articulated by the court in Evans.

The defendant also argues that his claim is reviewable under the second exceptional circumstance of Evans, as refined by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). This court has consistently held that “[w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. ...”

“In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) State v. Villanueva, 44 Conn. App. 457, 461-62, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997), quoting State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 421, cert. denied, 235 Conn 928, 667 A.2d 554 (1995).

In this case, the prosecutor’s comments were not so egregious as to deprive the defendant of a fair trial, and were made in response to defense counsel’s final argument, much of which referred to the defendant’s sincerity, credibility and willingness to testily, and to the weaknesses in the state’s case. In addition, the comments were brief and did not constitute a “pattern of misconduct pervasive throughout the trial.” (Internal quotation marks omitted.) State v. Hansen, supra, 39 Conn. App. 395. Although the court in Cassidy granted the defendant a new trial on the basis of similarly brief comments by the prosecutor, its decision was premised on the fact that the challenged argument directly implicated the defendant’s constitutional right to be present throughout the trial and was so flagrant as to prompt an objection by the defendant. Here, the prosecutor’s arguments did not directly implicate the defendant’s rights either to be present throughout the trial or to testify in his own behalf. In fact, the prosecutor expressly stated that the defendant has a right to testify. Furthermore, the defendant failed to raise an objection to the prosecutor’s comments. I would decline to review the defendant’s claim of prosecutorial error under Golding because the argument by the prosecutor was neither so egregious as to deprive the defendant of a fair trial nor is the claim of constitutional magnitude.

Even if I were to review this claim, however, I would conclude that the defendant has failed to demonstrate that the prosecutor’s closing argument impermissibly burdened his constitutional rights to be present throughout the trial or to testify in his own behalf. The defendant claims that the prosecutor argued that the defendant’s act of testifying was really an act of misconduct that showed consciousness of guilt and asked the jury to draw an adverse inference from that act.

During closing arguments, defense counsel challenged the credibility of Officer John Magoveny’s testimony and argued that the state’s case was politically motivated. In response, the prosecutor referred to the fact that the defendant felt compelled to testify in his own defense. These comments may be distinguished from those held to be improper in Cassidy. In that case, the prosecutor argued that the defendant had “doctor[ed] up” his testimony as a result of having been present in the courtroom during the trial. Our Supreme Court held that the prosecutor’s comments were improper “because [they] unfairly penalized the defendant for asserting his constitutionally protected right to confront his accusers at trial”; State v. Cassidy, supra, 236 Conn. 129; and invited the jury to draw an inference adverse to the defendant solely on account of the defendant’s assertion of his constitutional right.

Here, in response to comments by defense counsel that characterized Magoveny’s testimony as unworthy of belief, the prosecutor referred to the fact that the defendant testified in order to refute Magoveny’s testimony. Those comments did not ask the jury to infer guilt because the defendant testified, but merely pointed out the fact that the case revolved around the credibility of the defendant and Magoveny. “It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination.” State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986). Moreover, rather than ask the jury to draw an adverse inference from the defendant’s assertion of his right to testify, the prosecutor specifically stated that the defendant had a right to testify. I would conclude that the prosecutor’s comments were not an unconstitutional infringement of the defendant’s right to testify in his own behalf.

The defendant has also failed to establish that the prosecutor’s comments violated his right to be present throughout the trial. The prosecutor, during his rebuttal closing argument to the jury, made the following statement: “Obviously . . . [the defendant] heard evidence during the course of the state’s case that he felt was . . . strong, and so convincing to you, that he felt obligated to get up there and testify and give you a story. ...” This statement merely pointed out the obvious fact that the defendant chose to testify after listening to the evidence presented by the state. Furthermore, this statement is distinguishable from the statement made in Cassidy. Unlike the statement made by the prosecutor in Cassidy, here the prosecutor did not imply that the defendant had altered his testimony as a result of having been present in the courtroom and having heard the testimony of previous witnesses. The prosecutor herein also did not mislead the jury. In Cassidy, the prosecutor implied that the state’s witnesses might have remained in court to hear all of the evidence, but did not, obviously omitting to tell the jury that the witnesses were sequestered and could not, by order of the court, be present other than to testify. I find nothing in the prosecutor’s statement either misleading or that would in any way burden the defendant’s right to be present in the courtroom.

I would affirm the judgment of the trial court and, therefore, respectfully dissent.

       The threatening charge concerns Lisa Listorti, a victim different from the victim involved in the attempt to commit murder charge. No claims of impropriety are alleged on appeal as to the crime of threatening or carrying a dangerous weapon.

       On the basis of the particular comments of the prosecutor, we conclude that the constitutional right of the defendant to be present at trial is not involved in this case. Also, the defendant’s constitutional right to confront the witnesses against him is not involved in this case.

       In Gonzalez, the defendant was charged with attempted murder as a result of an encounter between the defendant and the victim on a public road. The defendant got out of his car and shot the victim after the victim allegedly had cut him off. State v. Gonzalez, supra, 222 Conn. 725. The defendant and the victim had never met prior to the encounter. Id.

       The defendant also claims that the court’s instructions to the jury concerning the planning element of an attempt charge and concerning the defense of intoxication were improper. Because both of these claims rely on the defendant’s assertion that the attempt statute includes an element of prior planning, which assertion we have concluded is not valid, we need not discuss these claims.

       The defendant’s request was made at a time when the court could have cured any impropriety because the charge had not yet been given and the jury had not yet begun its deliberations. See State v. Haase, 243 Conn. 324, 332, 702 A.2d 1187 (1997).

       Article first, §8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel .... No person shall be . . . deprived of . . . liberty . . . without due process of law . . . .”

        State v. Cassidy, supra, 236 Conn. 128 n. 16, determined that the prosecutor’s argument “also burdened the defendant’s exercise of his constitutional right to testify in his own behalf . . . [but concluded that] [b]ecause the defendant has not raised this claim . . . we do not base our decision on it.”

       In Cassidy, the prosecutor made the following statement: “Now also consider, you notice that the witnesses come in and out and there’s no witnesses in court, while the other witnesses are testifying, and that ensures that you’re going to hear just that person’s version of the story. They’re not going to doctor it up to fit the other person’s version of the story. There’s one witness in this case who heard every other witness testify. He heard the whole story before he told you the story. That means when the defendant took the stand, and I would submit to you that during the three days of trial, hearing all of the witnesses, the defendant had ample time to doctor up his version of the story.” State v. Cassidy, supra, 236 Conn. 121.

       Our legislature has statutorily recognized this right by enacting General Statutes § 54-84, which provides: “(a) Any person on trial for a crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       The defendant and Magoveny disagreed on several critical facts in this case. Specifically, the two differed on the issues of when Magoveny unholstered his weapon, in which hand the defendant carried the knife and whether the defendant dropped the knife before or after Magoveny fired the third shot into the defendant’s chest.

       The defendant’s convictions of violating §§ 53-206 (a) and 53a-62 remain undisturbed.

       In Evans, the court stated: “There appear, then, to exist only two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered by this court. The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second ‘exceptional circumstance’ may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial. ” (Citation omitted.) State v. Evans, supra, 165 Conn. 70.

       In addition to the United States Supreme Court cases cited by the court in Cassidy, several Connecticut cases have also considered the defendant’s right to be present at trial and to be confronted with the witnesses against him. See, e.g., State v. Bonello, 210 Conn. 51, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989); State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).

       In Colding, the court held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       “In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument. . . .” State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).

       In Ms rebuttal closing argument, the prosecutor stated: “[Y]ou heard repeated references this afternoon [to the fact] that Mr. Shinn got up and testified. That is Ms right, if he wants to do that, he has the perfect right to do that. That is up to him. He also has a right not to testify.”