author: PETERS, J.

text:
    STATE OF CONNECTICUT v. SCOTT GREGORY HOULE
    (AC 27403)
    McLachlan, Harper and Peters, Js.

      Argued November 29, 2007
    officially released February 19, 2008

      Suzanne Z. Curtis, assistant public defender, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Vincent J. Dooley, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

In this criminal appeal from the defendant’s conviction of a number of crimes arising out of the defendant’s unauthorized entry into a building that subsequently was damaged by fire, the principal issue is the sufficiency of the evidence at trial to establish that the defendant set the fire intentionally. The defendant also raises a number of claims of prosecutorial impropriety, particularly challenging the prosecutor’s downplaying of the role of intoxication in criminal intent. We conclude that the defendant cannot prevail on the merits of these claims, even though his conviction on two charges must be set aside for a retrial on the ground of legal inconsistency. We therefore affirm the judgment in part and reverse it in part.

In a four count information filed on October 19, 2005, the state charged the defendant, Scott Gregory Houle, with arson in the first degree in violation of General Statutes § 53a-lll (a) (4), burglary in the third degree in violation of General Statutes § 53a-103 (a), criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (l) and larceny in the sixth degree in violation of General Statutes § 53a-125b. In addition, the following day, the state filed a second information charging the defendant, in two counts, with being a persistent serious felony offender in violation of General Statutes § 53a-40 (c) and a persistent felony offender in violation of General Statutes § 53a-40 (f). After a trial to a jury, the defendant was convicted as charged, except that on the charge of arson in the first degree, the jury found him guilty of the lesser included offense of arson in the third degree in violation of General Statutes § 53a-113. The defendant has appealed from the judgment of the trial court sentencing him to a total effective term of twelve years imprisonment and four years of special parole.

The jury reasonably could have found the following facts, which are largely undisputed. In the early morning of April 24, 2004, the defendant, who was inebriated, made his way to a building located at 141 Providence Street in Putnam. Shattering the glass of the front entrance door with a rock, the defendant entered the building and, with his lighter, started a fire in a closet in a first floor accounting office. The defendant then took a box of pens, a laptop bag and some stamps from the office before leaving the burning building. As a result of a telephone call by an observant neighbor, a Putnam police officer apprehended the defendant as he was trying to climb a fence behind the building.

The police escorted the defendant to the Putnam police station, where they read him his Miranda rights before questioning him about what had transpired. Although initially he misidentified himself and wrongly accused two other men of having started the fire, eventually he signed a statement stating: “The building was in my path of walking. The door was opened and I walked in, I looked around, I went to the closet, the fire was lit with matches and my lighter. But I am not saying I lit it. The fire was lit in the closet. I don’t think it was intentional. It was like a f_around thing. I didn’t think it would go anywhere. It was the thing to do.”

Because the fire progressed rapidly, it caused more than $300,000 of damage to the building. After inspecting both the interior and the exterior portions of the building, a detective from the state fire marshal’s office testified that the fire had originated in the closet of the accounting office and had been set intentionally by human hands.

The defendant’s appeal requires us to address three issues. He maintains that (1) his conviction of arson in the third degree must be set aside and an order of acquittal entered for that charge because the state failed to introduce sufficient evidence to prove that the fire was incendiary in nature, (2) he is entitled to a new trial because the trial court misinstructed the jury on consciousness of guilt and (3) he is entitled to a new trial because of prosecutorial improprieties during the prosecutor’s closing argument to the jury. We are unpersuaded by those claims. Because the state concedes, however, and we agree, that the defendant’s conviction of criminal mischief in the first degree cannot be reconciled with his conviction of arson in the third degree because the conviction of each crime depends on proof of irreconcilably inconsistent states of mind, the judgment must be reversed as to those crimes and the case remanded for a new trial. Accord State v. King, 216 Conn. 585, 593-95, 583 A.2d 896 (1990) (“the statutory definitions of ‘intentionally’ and ‘recklessly’ are mutually exclusive and inconsistent”), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

I

The defendant’s first claim of error challenges the sufficiency of the evidence adduced by the state to prove that he violated General Statutes § 53a-113 (a), which provides in relevant part that “[a] person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building ... by intentionally starting a fire . . . .’’In the defendant’s view, although concededly he lit matches and flicked his lighter in the closet, he did not start the fire deliberately. According to the defendant, the fire resulted from an accident attributable to his inebriated carelessness and not from intentional misconduct. He claims, therefore, that neither his statement to the police nor the testimony of the detective from the state fire marshal’s office provide sufficient evidence to prove beyond a reasonable doubt that the fire was incendiary in origin. We disagree.

A well established standard of review governs our consideration of claims of evidentiary sufficiency. As stated by our Supreme Court: “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 177-78, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).

To prevail on this claim, the defendant argues that it was unreasonable for the jury (1) to have credited the testimony about the origins of the fire presented by the detective from the office of the fire marshal and (2) to have inferred intent from the defendant’s admissions at the police station. The defendant claims that the jury reasonably could not have credited the detective’s testimony because, even though the detective deduced that the fire had been intentionally set by human hands, he already had been told upon arriving at the scene that a suspect had been apprehended. The defendant further claims that he never admitted intent in his signed statement.

We disagree with the defendant’s appraisal of the evidence. The jury reasonably might have found the detective’s testimony persuasive on its own merits and reasonably might have drawn inferences from the defendant’s own statements to support a finding that the defendant intentionally set the fire. In its appraisal of the evidence as a whole, moreover, the jury reasonably might have attached significance to the fact that the defendant was apprehended fleeing from the scene of the fire.

Viewed in its entirety, the evidence presented by the state, if believed by the jury, was sufficient to establish the defendant’s guilt of arson in the third degree. Indeed, in his reply brief, the defendant concedes that the state presented sufficient evidence for the jury to find that he started the fire. His only defense, therefore, is that the fire was accidental “due to his intoxicated state.” The fact that the defendant was under the influence of alcohol did not, however, require the jury to find that he did not act intentionally in setting the fire. See State v. Rice, 105 Conn. App. 103, 109, 936 A.2d 694 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1101 (2008).

II

The defendant next argues that he is entitled to a new trial because the trial court misinstructed the jury on consciousness of guilt. Referring to evidence of the defendant’s possession of stolen items when he fled from the burning building, the court instructed the jury that such conduct might tend to show a consciousness of guilt. The defendant maintains that this instruction is reversible error.

Before we address the merits of the defendant’s claim, we must decide whether this issue is properly before us. At trial, the defendant did not file a request to charge on consciousness of guilt or take an exception to the court’s instructions as given. Concededly, instructions on consciousness of guilt do not warrant Golding review because they do not implicate a defendant’s constitutional rights. State v. Luster, 279 Conn. 414, 421-22, 902 A.2d 636 (2006).

The defendant argues instead that we should undertake plain error review pursuant to Practice Book § 60-5. We decline to do so. State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985), on which the defendant relies, is readily distinguishable because it concerned a charge to the jury that overlooked an applicable statute. See also State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980). This case is governed instead by the numerous cases cited by the state that have held that a claim of error in a consciousness of guilt instruction does not warrant plain error review. See, e.g., State v. Smith, 91 Conn. App. 133, 137, 880 A.2d 959, cert. denied, 276 Conn. 917, 888 A.2d 86 (2005); State v. Beverly, 72 Conn. App. 91, 104-105, 805 A.2d 95, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002).

Ill

We turn finally to the defendant’s claim that, on several occasions during the prosecutor’s closing arguments, he made improper statements that implicated the defendant’s right to due process and deprived the defendant of his right to a fair trial. The eight prosecu-torial statements of which the defendant complains fall into two classes: personal comments about the evidence before the jury and observations about the legal significance of intoxication. We are not persuaded that any of these statements impaired the defendant’s constitutional rights.

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 361, 897 A.2d 569 (2006).

A

The defendant claims that the prosecutor improperly expressed his personal opinion repeatedly during closing and rebuttal arguments. Specifically, the defendant claims that on seven occasions, the prosecutor improperly used the word “I” in the phrases “I think,” “I don’t think,” “I don’t believe” and “I agree.” The defendant also claims that the prosecutor improperly stated: “The evidence in this case is overwhelming.” We disagree that these statements were instances of prosecutorial impropriety.

Our Supreme Court has stated: “Although prosecutors generally should try to avoid using phrases that begin with the pronoun ‘I,’ such as ‘I think’ or ‘I believe,’ we recognize that the ‘use of the word “I” is part of our everyday parlance and . . . because of established speech patterns, it cannot always easily be eliminated completely from extemporaneous elocution.’ . . . Therefore, if it is clear that the prosecutor is arguing from the evidence presented at trial, instead of giving improper unsworn testimony with the suggestion of secret knowledge, his or her occasional use of the first person does not constitute misconduct.” (Citations omitted.) State v. Luster, supra, 279 Conn. 436.

In this case, in each instance when the prosecutor used the word “I,” it is evident that he was encouraging the jury to draw reasonable inferences from the evidence and was not suggesting that he possessed secret knowledge. Therefore, the prosecutor did not improperly express his personal opinion when he made these comments during closing and rebuttal arguments.

As for the prosecutor’s statement that “[t]he evidence in this case is overwhelming,” its context shows that the prosecutor was commenting on the strength of the evidence, rather than expressing his personal belief as to the defendant’s guilt. The statement, then, is indistinguishable from that challenged in State v. Moody, 77 Conn. App. 197, 217, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct. 831, 157 L. Ed. 2d 714 (2003), wherein we stated: “Because the prosecutor specifically was addressing the strength of the evidence presented at trial, there was no danger that the jury would infer that his comments were based on his personal knowledge of matters not in evidence.” We conclude, therefore, that the prosecutor’s remark was not improper.

B

The defendant also claims that improprieties occurred when, in arguments to the jury, the prosecutor injected his personal observations about the legal significance of intoxication. Specifically, the defendant references two remarks. During closing argument, the prosecutor stated: “[Ijntoxication is not a defense; it never has been, and it never will be.” During rebuttal, the prosecutor stated: “[Ijntoxication is not a defense to a crime; never has been, never will be. If that were the case, people would have license to do anything just because all they would need to do is say, T drank too much and I couldn’t intend what happened.’ . . . Things that you would not do if you were sober, you would do if you were drunk. I wish I had a nickel for every time I woke up after drinking more than I should have and said, ‘why the hell did I do that?’ Well, the answer is pretty simple. It probably seemed like a good idea at the time. It doesn’t mean that I didn’t have the intent to do it; it simply means that because I drank alcohol, my judgment was impaired and I did it anyway, despite my better instinct. That is probably what happened in this case.” We agree with the defendant that these comments amounted to prosecutorial impropriety, but we do not agree that they deprived the defendant of his due process right to a fair trial.

With respect to the “never has been, never will be” comments, the state admits in its brief that the prosecutor exaggerated the history and future viability of intoxication as a defense but argues that “given the leeway afforded counsel in the heat of argument and the prosecutor’s right to argue the state’s case forcefully, the prosecutor’s comments were a proper argument as to the relevance of intoxication as a defense . . . .” We disagree. Although “some leeway must be afforded to the advocates in offering arguments to the jury”; (internal quotation marks omitted) State v. Necaise, 97 Conn. App. 214, 229, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006); we have never held that this principle permits a prosecutor to misstate the law.

We equally are persuaded that it was improper for the prosecutor to discuss his own personal experiences with alcohol with the jury. Indeed, in its brief, the state acknowledges that these remarks are “closer to the line.” We disagree that we should overlook them as a mere “rhetorical device to appeal to the everyday life experiences and common sense of the jurors,” as the state contends. It is improper for a prosecutor to make light of intoxication with an expression such as, “I wish I had a nickel for every time I woke up after drinking more than I should have and said, ‘why the hell did I do that?’ ” Even more worrisome, these remarks improperly were designed to invite the jury to view the defendant’s conduct through the lens of the prosecutor’s own experience with intoxication. As such, these comments exemplify prosecutorial impropriety.

Having determined that the prosecutor’s remarks crossed the line of impropriety, we must decide whether these improper remarks deprived the defendant of his due process right to a fair trial. We conclude that they did not.

The following principles govern a due process claim grounded in prosecutorial impropriety. “In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). “Regardless of whether the defendant has objected to an incident of [impropriety], a reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the [impropriety] is viewed in light of the entire trial.” State v. Stevenson, 269 Conn. 563, 573, 849 A.2d 626 (2004). “The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) Id., 571.

Applying the factors set out in State v. Williams, supra, 204 Conn. 540, we conclude that the prosecutor’s observations, although improper, did not deprive the defendant of a fair trial. In part, the prosecutor’s remarks denigrating the propriety of a defense of intoxication were invited by the defendant, who, having admitted that he started the fire, claimed that, because of his intoxication, he had not intended to do so. Moreover, defense counsel’s own closing argument repeatedly emphasized the defendant’s intoxication and concluded with the remark, “in this case, the issue of intent is far more important than who done it. ” Additionally, defense counsel failed at trial to object to the remarks that appellate counsel now claims to have been highly prejudicial. See State v. Stevenson, supra, 269 Conn. 576 (“counsel’s failure to object at trial, while not by itself fatal to a defendant’s claim [of prosecutorial impropriety], frequently will indicate on appellate review that the challenged comments do not rise to the magnitude of constitutional error” [emphasis in original; internal quotation marks omitted]).

Finally, in its charge to the jury, the trial court clarified the law as it pertains to intoxication and intent. The defendant has not challenged the propriety of these instructions in his appeal to this court.

In light of these factors, we conclude that the defendant was not deprived of his constitutional right to a fair trial. Although we do not condone the prosecutor’s remarks, the record as a whole supports the propriety of the defendant’s conviction.

Although we affirm the defendant’s conviction of burglary and larceny, we must reverse his conviction of criminal mischief and arson. Because those charges were the predicate crimes on which the court based its determination that the defendant is a persistent serious felony offender and a persistent felony offender, we must reverse the conviction as to those charges as well.

The judgment is reversed as to the defendant’s conviction of criminal mischief in the first degree and arson in the third degree and as to his conviction of being a persistent serious felony offender and a persistent felony offender, and the case is remanded for a new trial on those charges. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-115 (a) provides in relevant part: “A person is guilty of criminal mischief in the first degree when: (1) With intent to cause damage to tangible property of another and having no reasonable ground to believe that such person has a right to do so, such person damages tangible property of another in an amount exceeding one thousand five hundred dollars . . . .”

       General Statutes § 53a-113 (a) provides: “A person is guilty of arson in the third degree when he recklessly causes destruction or damage to a building, as defined in section 53a-100, of his own or of another by intentionally starting a fire or causing an explosion.”

       See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The court properly charged the jury: “The fire must be incendiary in origin. That means [it] must not be accidental or careless. In considering whether the fire was incendiary in origin, you may rely upon all the facts and circumstances at the time and place of the fire as you find them to have been proven and again, may draw any reasonable and logical inference from such facts as to whether the defendant acted with the necessary intent. ”

       See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       “Voluntary intoxication is a defense in a criminal action only where proof of specific intent is required as an element of the crime charged.” State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963), superseded by General Statutes § 53a-7, as stated in State v. Brelsford, 6 Conn. App. 701, 704, 507 A.2d 491 (1986).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    J.R.
      v. COMMISSIONER OF CORRECTION
    (AC 27487)
    Flynn, C. J., and McLachlan and Graendel, Js.

      Argued November 26, 2007
    officially released February 19, 2008

      Michael Zariphes, special public defender, for the appellant (petitioner).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara F. Eschuk, supervisory assistant state’s attorney, for the appellee (respondent).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

FLYNN, C. J.

The petitioner, J.R., appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal and that it improperly rejected his claims that his trial counsel had provided ineffective assistance by failing (1) to introduce into evidence employment records of the petitioner, (2) to introduce a psychological report of the victim, (3) to introduce evidence about the lack of a police record regarding the alleged sexual assault of the victim by her uncle and (4) to make a proper request that the jury be polled. We dismiss the petitioner’s appeal.

The facts giving rise to this case are set forth in State v. J.R., 69 Conn. App. 767, 797 A.2d 560, cert. denied, 260 Conn. 935, 802 A.2d 89 (2002). “During her early childhood, the victim, a biological daughter of the [petitioner] lived in Puerto Rico with her grandmother. At the age of eight, the victim moved to Waterbury and lived with the [petitioner], her stepmother and her two half-siblings. In 1992, when she was eleven years old, the victim was sexually abused by the [petitioner]. The sexual abuse continued over the next four years while her stepmother was at work.

“In 1997, the victim reported the abuse to a counselor at her school. The counselor contacted investigators at the department of children and families (department), who notified the police. The [petitioner] subsequently was arrested and charged with nine counts of sexual misconduct.” Id., 768. After a trial to the jury, the petitioner was convicted of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, three counts of sexual assault in the second degree in violation of General Statutes § 53a-71, two counts of sexual assault in the third degree in violation of General Statutes § 53a-72 and two counts of risk of injury to a child in violation of General Statutes § 53-21. The court thereafter sentenced the petitioner to a total effective term of forty-three years imprisonment, execution suspended after twenty-three years, and fifteen years probation. The petitioner’s conviction was upheld on appeal.

On June 16, 2004, the petitioner filed a second amended petition for a writ of habeas coipus, alleging that his trial counsel, Louis S. Avitabile, had rendered ineffective assistance in several respects. Following a habeas trial, the court rejected the petitioner’s ineffective assistance of counsel claims and dismissed the petition. Subsequently, the court also denied the petition for certification to appeal. This appeal followed.

We begin by setting forth the standard of review and legal principles that guide our resolution of the petitioner’s appeal. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Falcon v. Commissioner of Correction, 98 Conn. App. 356, 359, 908 A.2d 1130, cert. denied, 280 Conn. 948, 912 A.2d 480 (2006).

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenaiy.” (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 424, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006).

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Citations omitted; internal quotation marks omitted.) Griffin v. Commissioner of Correction, 98 Conn. App. 361, 365-66, 909 A.2d 60 (2006).

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

“The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citation omitted; internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn. App. 133, 136-37, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007). Having set forth the applicable legal principles, we now address the petitioner’s claims in turn.

I

The petitioner first claims that the court abused its discretion in denying his petition for certification to appeal with respect to his claim that he received ineffective assistance of counsel as a result of Avitabile’s failure to introduce the petitioner’s employment records into evidence. The petitioner argues that the employment records should have been used to impeach the victim’s testimony concerning the time at which the sexual assaults allegedly occurred and to support an alibi defense. We are not persuaded.

The following additional facts are relevant to our resolution of the petitioner’s claim. At the petitioner’s criminal trial, the victim testified that, beginning in 1992, the petitioner would sexually abuse her on a regular basis when he returned home after work and while her stepmother was at work. The victim also testified that the petitioner had sexually assaulted her on February 17, 1997, “around 5 or 6” p.m. when the he returned home from work.

During the habeas trial, the petitioner testified that prior to his arrest, he had been employed at LesCare Kitchens. The petitioner further stated that when he had commenced his employment at LesCare Kitchens, his hours were from 6 a.m. to 5 p.m. At some point, the petitioner’s schedule changed, and he instead worked the 7 a.m. to 4 p.m. shift. Additionally, the petitioner called Patricia Larrivee, the payroll manager of LesCare Kitchens, as a witness. According to Lar-rivee, the payroll records reflected that, on or about February, 1997, the petitioner had been an employee of LesCare Kitchens. Larrivee also stated that, although the attendance sheet showed that the petitioner had worked on February 17,1997, the records did not reflect the hours that he had worked that day. Larrivee’s testimony also indicated that employees either worked the 7 a.m. to 3:30 or 4 p.m. shift or the 6 a.m. to 5 p.m. shift.

Avitabile testified at the habeas trial that he had discussed the possibility of presenting an alibi defense with the petitioner but that, because the petitioner was charged with having sexually assaulted the victim on multiple occasions that spanned a period of time from November, 1992, to February, 1997, such a defense would have been untenable. Avitabile acknowledged that one of the charges concerned a specific date, namely, February 17, 1997. However, because the victim’s testimony indicated that the sexual assaults occurred when the petitioner returned home after work, Avitabile testified that the employment records, including the February 17, 1997 record, would have had little impeachment value and would not have supported an alibi defense.

The court found that the petitioner failed to carry his burden of proof under Strickland as to his allegation that Avitabile should have introduced the employment records into evidence. In its memorandum of decision, the court found that “[t]he state had charged the petitioner with committing these crimes on an unspecified date within a range of dates.” The court also found that “given the range and diversity of the dates, it would have been virtually impossible” to have used the employment records to establish a successful alibi defense. The court concluded that “it was a sound tactical decision on the part of trial defense counsel to forgo this avenue.”

After reviewing the record, including the victim’s trial testimony and the testimony from the witnesses at the habeas trial, we agree with the court that the petitioner failed to rebut the strong presumption that Avitabile’s performance fell within the wide range of reasonable professional assistance. See Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 300, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001). Accordingly, the petitioner’s allegation that Avitabile rendered ineffective assistance in failing to use the employment records is without merit, and we need not analyze the petitioner’s claim under the prejudice prong of Strickland. See Johnson v. Commissioner of Correction, 218 Conn. 403, 428-29, 589 A.2d 1214 (1991). We conclude that the court properly denied the petition for certification to appeal on this ground.

II

The petitioner next asserts that the court abused its discretion with respect to his ineffective assistance of counsel claim, in which he alleged that Avitabile’s representation was deficient because he failed to introduce a psychological report on the victim that was written by Sidney Horowitz, a clinical psychologist, to impeach the victim’s trial testimony. We do not agree.

At the habeas trial, Avitabile testified that he had received the psychological report during the petitioner’s criminal trial and that he had reviewed its contents. Avitabile also testified that he had made a sound tactical decision not to introduce the psychological report into evidence. Specifically, Avitabile’s testimony indicated that the information in the psychological report that referred to when the sexual abuse occurred was not wholly inconsistent with other evidence that was before the jury. In addition, Avitabile testified that the report contained possible psychological explanations for the victim’s disjointed trial testimony that he believed would have helped to bolster the state’s case. Avitabile, therefore, believed it was better to have the victim’s disjointed testimony before the jury without an accompanying explanation.

In its memorandum of decision, the court noted that Avitabile, after reviewing the psychological report, had concluded that the report would have bolstered the state’s case by providing an explanation as to why the victim’s trial testimony was disjointed and confused. The court found that Avitabile’s decision not to use the psychological report was a sound tactical choice.

We are mindful that “there is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .” (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn. App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002). In the present case, our review of the record corroborates Avitabile’s testimony, and we agree with the court that the decision not to use the psychological report falls within the broad range of reasonable professional assistance. We therefore do not reach the second prong of Strickland, which concerns whether the petitioner was prejudiced by the alleged deficiency. Accordingly, we conclude that the court properly rejected the petitioner’s claim and denied the petition for certification to appeal on this ground.

Ill

The petitioner also claims that the court abused its discretion with respect to his claim that his counsel provided ineffective assistance because he failed to introduce evidence about the absence of a police report regarding the alleged sexual assault of the victim by her uncle. We are not persuaded.

At the petitioner’s underlying criminal trial, the victim testified that her uncle had sexually abused her when she was approximately eight or nine years old. The victim also stated that she had informed her uncle’s wife, N, of the alleged sexual assault. The victim further testified that she believed that N may have informed the petitioner of the sexual abuse because the police came to the house. According to the victim, the police never spoke with her about the sexual assault concerning her uncle. The jury also heard testimony from N, who stated that the victim never had told her about the sexual abuse allegation involving the uncle.

During the habeas trial, the petitioner called Lieutenant Edward Daponte of the Waterbury police department as a witness. Daponte, who is in charge of all operations pertaining to records, testified that the Waterbury police department did not have a record of a complaint involving the alleged sexual assault of the victim prior to the 1997 report filed in connection with the allegations of abuse by the petitioner. In addition, Daponte stated that when a police officer responds to a call, if a formal complaint is not issued thereafter or if the officer is unable to speak with the child victim, then it is possible that the police would not have a record of the incident.

Avitabile testified at the habeas trial that because the victim’s trial testimony had indicated that she informed N of the sexual assault and not the police, he called N as a witness to impeach the testimony of the victim. Avitabile further stated that “the fact [that] the police [did not] have a record of [a formal complaint] wouldn’t mean that a complaint wasn’t made.” The court concluded that the petitioner had failed to demonstrate that Avitabile’s decision not to introduce evidence of the lack of a police record constituted deficient performance or was prejudicial to the petitioner.

We agree with the court’s conclusion that the petitioner failed to establish that Avitabile’s performance was lacking because he did not introduce evidence about the absence of a police record regarding the alleged sexual assault of the victim by her uncle. See Iovieno v. Commissioner of Correction, supra, 67 Conn. App. 128. During the criminal trial, the victim did not testify that she had reported the alleged abuse to the Waterbury police department. Although there was some testimony at the criminal trial indicating that the police may have been present at her home at some point in time, the victim stated that she never spoke with the police about the incident concerning her uncle. In contrast, the victim testified that she had informed N of the alleged sexual misconduct. Therefore, as Avitabile explained, he made the tactical decision to call N as a witness in order to impeach the victim’s testimony.

Furthermore, the fact that there was no police record merely would have indicated that the victim did not make a foimal complaint about the alleged abuse by her uncle. This evidence, therefore, would have had little or no impeachment value and would have supported the victim’s version of events in which she stated that she never spoke with the police about the alleged incident involving her uncle. Accordingly, we conclude that this ground of the petitioner’s claim lacks merit.

IV

The petitioner last claims that the court abused its discretion with respect to his claim that he received ineffective assistance of counsel as a result of counsel’s failure to make a proper request that the jury be polled. We disagree.

Following the jury’s return of a guilty verdict on all nine counts, the court questioned the jury foreman about the defendant’s guilt on each count, and the clerk asked the jurors to listen to their verdict as it was accepted and recorded. The following colloquy then ensued:

“The Clerk: So say you, Mr. Foreperson?

“[Foreperson]: Yes.

“The Clerk: So say you all?

“The Jury: Yes.

“The Clerk: Thank you. You may be seated.”

After the jury left the courtroom, the prosecutor stated that she wanted the record to reflect that as the clerk asked the jury the final question, she had “personally observed each of the jurors individually answering aloud, ‘yes.’ ” Avitabile then stated, “Your Honor, under the Practice Book, I’m entitled to have them polled individually,” to which the court replied, “you did not request that. And after the verdict was rendered, before I accepted it and ordered it recorded, I specifically paused and watched you in order to give you an opportunity to do that.”

In his direct appeal to this court, the petitioner claimed that the trial court improperly had denied Avi-tabile’s timely request to poll the jury. State v. J.R., supra, 69 Conn. App. 768. This court, however, concluded that because Avitabile had “failed to state his alleged request with sufficient specificity to apprise the [trial] court of the precise matter on which a decision was being asked,” his “remark did not rise to the level of a request . . . .” Id., 774. In light of this court’s conclusion that Avitabile failed to request that the jury be polled, the related claim concerning the timeliness of the alleged request was not addressed in the appeal. Id.

The petitioner alleged in his second amended petition for a writ of habeas corpus that Avitabile had rendered ineffective assistance by failing to make a proper request that the jury be polled. At the habeas trial, Avitabile testified that after the jury foreman had announced the guilty verdict with respect to each count, the clerk asked the jurors if that was their verdict. Avitabile stated that he then observed each of the jurors nod his or her head in agreement with the guilty verdict.

The court concluded that the petitioner had failed to meet his burden of demonstrating how he was prejudiced by Avitabile’s failure to request that the jury be polled under Strickland. Specifically, the court found that there was “no evidence that [the] jury’s verdict was anything other than unanimous.”

In his brief to this court, the petitioner contends that our Supreme Court’s decision in State v. Pare, 253 Conn. 611, 755 A.2d 180 (2000), compels the conclusion that, in addressing an ineffective assistance of counsel claim premised on defense counsel’s failure to request that the jury be polled, prejudice should be presumed. In Pare, our Supreme Court concluded that the trial court improperly had denied defense counsel’s timely request to poll the jury and, therefore, determined that an automatic reversal of the judgment was required. Id., 634-35, 639. In so concluding, our Supreme Court explained that “the right to poll the jury, although not constitutional, is nonetheless a substantial right”; (internal quotation marks omitted) id., 631; that is absolute “if not waived . . . .” (Emphasis added; internal quotation marks omitted.) Id., 638-39. Atrial court, therefore, has a mandatory obligation under Practice Book § 42-31 to poll the jury when either party makes a timely request. Id., 621.

The petitioner argues that because our Supreme Court in Pare concluded that a court’s improper denial of a timely request to poll the jury requires the automatic reversal of the judgment and is not subject to a harmless error analysis, then prejudice should be presumed when counsel fails to request that the jury be polled. The petitioner also refers to the language in Pare, in which our Supreme Court stated that “[t]he action of the court [in denying a timely request to poll the jury] work[s] a denial of a right of the accused so fundamental as to require a retrial even though, as clearly appears from the record, the trial was otherwise markedly free from error and the jury’s verdict was fully warranted by the evidence.” (Internal quotation marks omitted.) Id., 636.

We are not persuaded by the petitioner’s argument and conclude that Pare does not compel the presumption of prejudice in the present case. First, Pare involved the court’s refusal to grant defense counsel’s timely request that the jury be polled. Id., 634. Here, this court previously held that Avitabile never made a request to have the jury polled. See State v. J.R., supra, 69 Conn. App. 774. Although the right to poll the jury is substantial, it is clear that this right can be waived. See State v. Pare, supra, 253 Conn. 631, 638. Further, the petitioner does not argue, nor do we conclude, that defense counsel is required in all circumstances to poll the jury, absent some indication that the verdict was not unanimous. However, Avitabile had observed the assent of the jurors to their verdict prior to its acceptance by the court. For the foregoing reasons, we conclude that the circumstances of this case do not warrant the application of presumed prejudice.

Applying the prejudice prong of Strickland, we agree with the court that the petitioner has failed to demonstrate that there is a reasonable probability that, absent Avitabile’s failure to request that the jury be polled, the fact finder would have had a reasonable doubt respecting the guilt of the petitioner. There is nothing in the record suggesting that the verdict was anything other than unanimous. In fact, during the criminal trial, the prosecutor stated that she had observed each of the jurors answer “yes” when questioned by the clerk about the guilty verdict they had returned. Additionally, Avitabile witnessed the jurors each nod his or her head in agreement with the verdict. Our review of the record reveals that the court properly found that the petitioner failed to offer any evidence that a request for a jury poll would have affected the outcome. We therefore conclude that the petitioner has failed to demonstrate that the court’s denial of his petition for certification to appeal reflects an abuse of discretion. See Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

In this opinion the other judges concurred.

       Specifically, the petitioner claimed that Avitabile was ineffective by failing to introduce the petitioner’s employment record and the psychological report on the victim, by failing to introduce evidence about the lack of a police record concerning the alleged sexual abuse of the victim by her uncle, by failing to make a proper request that the jury be polled and by failing to take exception to the trial court’s consciousness of guilt charge. The court rejected all of the petitioner’s ineffective assistance claims. In this appeal, however, the petitioner does not challenge the court’s ruling concerning the consciousness of guilt charge.

       In his brief, the petitioner also claims that Avitabile conducted an inadequate cross-examination of the victim because he failed to “question [the victim] as to more specific dates and times of day as to her allegations against the petitioner.” Because this claim was not raised in the second amended petition for a writ of habeas corpus, we decline to review it. See Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001).

       The petitioner also claims that Avitabile was ineffective in failing to retain his own psychological expert. We, however, decline to review this alleged instance of ineffective assistance of counsel because it was not raised in the petitioner’s second amended petition for a writ of habeas corpus. See Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001).

       In his brief, the petitioner makes much of the fact that Avitabile did not review the psychological report until after the state had rested its case and that, because of this, Avitabile’s decision not to use the psychological report cannot be a strategic choice. We are not persuaded by this argument. Avitabile testified that he did review the report during the trial and that, had he believed that the information in the report needed to be brought out, he would have recalled the victim to the witness stand.

       The record indicates that, rather than being the uncle’s wife, N was the uncle’s longtime companion and lived with the uncle from 1983 to 1993.

       The court, in its memorandum of decision, stated that “trial defense counsel did not obtain a polling of the jurors and arguably, this is deficient performance.” The court, therefore, did not determine the deficiency of Avitabile’s performance and, instead, rejected the petitioner’s claim on the ground that the petitioner had failed to satisfy the prejudice prong of Strickland.

       In his reply brief, the petitioner cites United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), in which the United States Supreme Court recognized a narrow exception to the prejudice component of the Strickland test and held that, in certain limited circumstances, a presumption of prejudice applies to an ineffective assistance of counsel claim “when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate . . . .” Id., 659-60. The court also stated that a showing of prejudice is not required when counsel is either totally absent or prevented from assisting the accused during a critical stage in the proceeding, when counsel “entirely fails to subject the prosecution's case to meaningful adversarial testing” and when a defendant is “denied the right of effective cross-examination.” (Internal quotation marks omitted.) Id., 659 & n.25.
      The petitioner, however, acknowledges in his reply brief that the exceptions delineated in Cronio are inapplicable to the facts of the present case. We agree.

       Practice Book § 42-31 provides: “After a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror’s verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.”

       Because we conclude that the petitioner has failed to satisfy the prejudice prong of Strickland, we need not determine whether it constituted deficient performance for Avitabile to fail to make a proper request that the jury be polled. See Pierce v. Commissioner of Correction, 100 Conn. App. 1, 12 n.5, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

       In reaching this conclusion, we find instructive those sister states that have determined that trial counsel’s failure to request a jury poll, under the circumstances presented, did not amount to ineffective assistance. See, e.g., People v. Coddington, 23 Cal. 4th 529, 656, 2 P.3d 1081, 97 Cal. Rptr. 2d 528 (2000) (no ineffective assistance where record does not reflect that dangers polling seeks to avoid actually occurred), cert. denied, 531 U.S. 1195, 121 S. Ct. 1199, 149 L. Ed. 2d 113 (2001), overruled in part on other grounds by Price v. Superior Court, 25 Cal. 4th 1046, 1069 n.13, 25 P.3d 618, 108 Cal. Rptr. 2d 409, cert. denied, 534 U.S. 1045, 122 S. Ct. 626, 151 L. Ed. 2d 547 (2001); Wynn v. State, 228 Ga. App. 124, 129, 491 S.E.2d 149 (1997) (no ineffective assistance where counsel failed to request polling of jury); People v. Hood, 262 Ill. App. 3d 171, 178, 634 N.E.2d 404 (1994) (no ineffective assistance where right to poll jury waived); Irving v. State, 441 So. 2d 846, 855 (Miss. 1983) (no ineffective assistance where jury foreman reported unanimous verdict and no indication outcome of proceedings would have been altered but for failure to poll jury), cert. denied, 470 U.S. 1059, 105 S. Ct. 1774, 84 L. Ed. 25 834 (1985); State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003) (no ineffective assistance because failure to poll jury would not have had impact on verdict); Commonwealth v. Williams, 537 Pa. 1, 30-31, 640 A.2d 1251 (1994) (no ineffective assistance where counsel failed to request jury poll); State v. Eckert, 203 Wis. 2d 497, 511-12, 553 N.W.2d 539 (App.) (no ineffective assistance where no indication verdict not unanimous), review denied, 207 Wis. 2d 285, 560 N.W.2d 274 (1996).


author: GRUENDEL, J. FLYNN, C. J.,

text:
    SHIRLEY A. BALDWIN v. ANN S. CURTIS
    (AC 27827)
    Flynn, C. J., and Gruendel and Foti, Js.

      Argued September 20, 2007
    officially released February 19, 2008

      Joseph A. Marotti, with whom, on the brief, was Frank J. Kolb, Jr., for the appellant (plaintiff).

      Eric P. Smith, with whom, on the brief, was Donn A. Swift, for the appellee (defendant).
   Opinion

GRUENDEL, J.

In this premises liability action, the plaintiff, Shirley A. Baldwin, appeals from the judgment of the trial court rendered following the granting of the motion for summary judgment in favor of the defendant, Ann S. Curtis. On appeal, the plaintiff claims that the court improperly granted the motion for summary judgment in favor of the defendant. The plaintiff argues that a genuine issue of fact exists as to whether the defendant possessed and controlled a parking lot and, thus, owed the plaintiff a duty to exercise reasonable care in the maintenance of that parking lot. We conclude that a genuine issue of fact exists such that the motion for summary judgment should not have been granted in the defendant’s favor. We therefore reverse the judgment of the trial court.

The pleadings, accompanying affidavits and other documentary evidence reveal the following undisputed facts. The defendant owns two adjacent properties in Branford, one at 65 South Main Street and one at 69 South Main Street. The properties share a driveway that runs between them, and parking lots exist behind each of the properties. The plaintiff is a tenant at 65 South Main Street, and Sisk Brothers Funeral Home (Sisk) is a tenant at 69 South Main Street.

In January, 2005, the plaintiff commenced an action against the defendant, claiming that, in February, 2003, she slipped and fell on ice in the parking lot located behind 65 South Main Street as a direct and proximate result of the defendant’s negligence. The defendant denied that she was negligent in the maintenance of the parking lot and, instead, claimed that the plaintiff was contributorily negligent. The defendant also filed both an apportionment complaint and a cross complaint against her tenant, Sisk, claiming that Sisk was responsible for the maintenance of both parking lots. In response, Sisk denied ever owing a duty to the plaintiff. The defendant subsequently withdrew both the apportionment complaint and the cross complaint against Sisk, at which point Sisk was no longer a party to this action.

After withdrawing her claims against Sisk, the defendant filed a motion for summary judgment, claiming that “the plaintiff cannot establish a necessary element of her negligence claim—namely duty.” The defendant asserted in her supporting memorandum of law that this was because “the plaintiff cannot establish that the defendant was the party in possession and control of the parking lot where the plaintiff allegedly fell.” In support of her motion, the defendant attached two sworn affidavits. The plaintiff filed a memorandum of law in opposition to the defendant’s motion for summary judgment but offered no counteraffidavit or counter evidence to establish that the defendant possessed and controlled the parking lot.

After hearing oral argument and reviewing the pleadings and the aforementioned affidavits, the court granted the defendant’s motion for summary judgment, finding that “in the absence of any counteraffidavit, there is no issue of material fact that the defendant was not in possession, and the motion is granted.” The plaintiff filed motions for reargument and articulation. The court denied the motion for reargument but granted the motion for articulation. In its articulation, the court explained that it relied specifically on the defendant’s affidavit, paragraph nine, in which she attested, “I was not in possession of either the parking lot or the premises at 65-69 S. Main Street in Branford at any point from July 1993 through the date of February 20, 2003.” The court further stated that the “plaintiff, who had ample time to develop contrary evidence through discovery, neither countered these statements with evidence nor requested additional time to do so.”

“The standard of review of a trial court’s decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Citation omitted; internal quotation marks omitted.) LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). “The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 228, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). “Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” LaFlamme v. Dallessio, supra, 250.

The plaintiff brought a negligence action against the defendant grounded in premises liability. “In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury.” Id., 251. “The general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control .... [Ljandlords [however] generally [do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control of the tenant.” (Citation omitted; internal quotation marks omitted.) Id., 256-57; see also 2 Restatement (Second), Torts § 421 (1965) (nondelegable duty arises when possessor of land, having leased part of land, still owes duty to maintain in reasonably safe condition that part of land retained by him). In light of the foregoing, the defendant filed a motion for summary judgment, claiming that she did not possess the parking lot and, as such, did not owe the plaintiff a duty. As the defendant was the moving party, it was the defendant’s burden to demonstrate the absence of any genuine issue of material fact as to whose duty it was to maintain the parking lot in a reasonably safe condition. The defendant attached two sworn affidavits to her motion for summary judgment, one from the defendant and one from an agent of Sisk. Specifically, in her affidavit, she attested that she did not possess the parking lot and, therefore, did not owe the plaintiff a duty. Sisk’s agent attested that Sisk maintained the parking lot. The plaintiff did not counter the affidavits. The question for this court to determine is whether, viewed in the light most favorable to the plaintiff, the affidavits provided sufficient evidence to demonstrate that the defendant did not possess and control the parking lot, and that, as a matter of law, the defendant was entitled to summary judgment.

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Rockwell v. Quintner, supra, 96 Conn. App. 228-29. In the present case, the court rendered summary judgment in favor of the defendant on the basis of the defendant’s affidavit, specifically paragraph nine, in which she attested to not possessing the parking lot where the plaintiff fell. The court further based its ruling on the fact that the plaintiff did not counter the defendant’s affidavit with evidence even though the plaintiff had ample opportunity to do so. “An important exception exists, however, to the general rule that a party opposing summary judgment must provide evi-dentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint. ... It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.” (Citations omitted; internal quotation marks omitted.) Id., 229-30.

In the present case, the defendant attached two affidavits in support of her motion for summary judgment. In her affidavit, the defendant attested that she did not possess the parking lot. In addition, she attested that Sisk maintained the parking lot. The defendant did not, however, attest as to who possessed the parking lot, if she did not, and her ownership of the parking lot is undisputed. The second affidavit by Sisk’s agent attested that Sisk maintained the parking lot. It did not allege that Sisk possessed or controlled the parking lot. Because the plaintiff allegedly fell in the parking lot, common to all tenants, and because it is undisputed that the defendant owns the parking lot, without evidence tending to show that someone other than the defendant possessed and controlled the parking lot, the defendant has not met her burden of proof. Cf. State v. LoSacco, 12 Conn. App. 172, 177, 529 A.2d 1348 (1987) (“Our landlord-tenant law generally presumes that a landlord retains possession, control, and responsibility for all common areas in a leased premises .... Similarly, tort law principles recognize that a landlord, having retained control of common areas, is responsible for their maintenance and repair because he has a right of entry and control of those areas, while no tenant can claim exclusive control of them.” [Citations omitted.]). As the defendant’s evidence failed to negate a genuine issue of material fact, the plaintiff was not obligated to submit documents establishing the existence of such an issue. See Rockwell v. Quintner, supra, 96 Conn. App. 228 (defendant’s evidence failed to “[exclude] any real doubt as to the existence of any genuine issue of material fact”). Having failed to negate a genuine issue of material fact, the defendant did not meet her burden of establishing that, as a matter of law, summary judgment should have been rendered in her favor. Accordingly, we reverse the judgment of the trial court.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion FOTI, J., concurred.

FLYNN, C. J.,

concurring in result. I respectfully write separately because although I concur with the holding of the majority that the motion for summary judgment should not have been granted at this time and would reverse the judgment of the trial court, I first would order further briefing on the applicability of the Landlord Tenant Act, General Statutes § 47a-l et seq., which appears to be the law to govern this residential landlord tenant case.

Although the plaintiff, Shirley A. Baldwin, claimed that the duty of her landlord was mandatory and nondel-egable, she cited no statutory authority for that proposition. It is not disputed in this case that the plaintiff was a residential tenant of the defendant, Ann S. Curtis. Although the parties have not briefed the applicability of the Landlord Tenant Act, subsection (e) of § 47a-l of that act defines an owner of real property, subject to the mandates of its provisions, to include any one or more persons in whom legal title to a property is vested. See General Statutes § 47a-l (e). It defines a landlord in relevant part as “the owner ... of the dwelling unit, the building of which it is a part or the premises.” General Statutes § 47a~l (d). Premises are defined as “a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of tenants generally or whose use is promised to the tenant.” General Statutes § 47a-l (g). General Statutes § 47a-7 of the act sets forth the responsibilities of a residential landlord. Subsection (a) states a landlord’s responsibility in mandatory terms, and it specifically requires, among several other things, that a landlord keep all common areas in a clean and safe condition. General Statutes § 47a-7 (a) (3). It says nothing that would limit that responsibility to those landlords who are in possession and control of the premises.

The landlord defendant in this case claimed entitlement to summary judgment on the theory that she could not be held liable for the plaintiffs fall on icy pavement because she had arranged with another of her tenants, from a neighboring property, to clear the common parking areas where the plaintiff fell. She reasoned, therefore, that she was not in possession and control of the parking area. The plaintiff opposed the granting of the motion for summary judgment on the ground that the landlord’s duty to the plaintiff was mandatory and non-delegable. She did not cite the Landlord Tenant Act as authority for her position, however.

Section 47a-7 (d) appears to provide expressly that a residential landlord can contract with another tenant to provide maintenance of the premises but only if “the agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.” General Statutes § 47a-7 (d) (4). Although on appeal we have plenary power to determine whether a party was entitled to judgment as a matter of law, mindful of the Granby Holdings, Inc., case, I would order the parties to brief what I consider to be substantial questions, namely the applicability of the Landlord Tenant Act and whether control is a material issue affecting the duty of the landlord to the tenant under the facts and circumstances of this case.

Our Supreme Court has ordered further briefing, sua sponte, on legal issues before it. It also has instructed that “[i]t is plain error for a trial court to fail to apply an applicable statute, even in the absence of the statute having been brought to its attention by the parties.” Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993) (sua sponte ordering supplemental briefing on applicability of statute not considered by trial court or parties and ultimately deciding appeal on that basis); see also Location Realty, Inc. v. General Financial Services, Inc., 273 Conn. 766, 771 and n.8, 873 A.2d 163 (2005) (ordering supplemental briefings and considering application of statute not raised before trial court); Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517 n.5, 825 A.2d 72 (2003) (“although the parties did not refer the trial court to the significance of General Statutes § 31-291, we consider it in the context of the present appeal because . . . that statute is central to the question of [the defendant’s] potential common-law liability to the plaintiff for negligence”).

       The defendant’s ownership of the property where the plaintiffs fail allegedly took place was admitted in the defendant’s answer and is not in dispute.

       The issue addressed in the concurrence, the applicability of the Landlord Tenant Act, General Statutes § 47a-l et seq., was not briefed by either the plaintiff or the defendant. At oral argument, not one word was spoken on that issue. It is fundamental that the scope of appellate review in a given appeal is defined by the claims of error actually raised by the parties. Our Supreme Court consistently has admonished this court for stepping beyond that threshold. As it recently stated, “[w]e long have held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide a case before it on a basis that the parties never have raised or briefed.” Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686, aff'd after remand, 105 Conn. App. 49, 935 A.2d 1037 (2007); see also Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 522, 815 A.2d 1188 (2003) (Borden, ,/., concurring and dissenting) (“we have even criticized, and reversed, the Appellate Court for reaching out and deciding a case before it on a basis that had never been raised or briefed”); Lynch
        v. Granby Holdings, Inc., 230 Conn. 95, 97-99, 644 A.2d 325 (1994) (Appellate Court improperly reached issue never raised by parties); State v. Rosario, 81 Conn. App. 621, 640, 841 A.2d 254 (Schaller, J., concurring) (“Our Supreme Court does not approve of this court reaching and deciding issues that were not raised or briefed by the parties. . . . We should not, and indeed are without authority, to render advisory opinions.”), cert. denied, 268 Conn.. 923, 848 A.2d 473 (2004). That precedent is grounded in the principle of judicial restraint.
      In Lynch v. Granby Holdings, Inc., supra, 230 Conn. 98, our Supreme Court explained that, when the parties to an appeal have not raised a given claim, only the plain error doctrine can bring that claim within our purview. Although the concurrence cites cases in which a panel of Supreme Court justices ordered supplemental briefing, it provides no analysis as to why application of the plain error doctrine is appropriate, nor does it cite a single case in support of its proposition that the Landlord Tenant Act is “plainly applicable” to the present case. See Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993). “[T]he plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). A majority of this panel has concluded that the failure of the trial court and the parties to address the applicability of the Landlord Tenant Act is far from a truly extraordinary situation invoking that very demanding standard.

       General Statutes § 47a~7 (d) provides: “The landlord and tenant of a dwelling unit other than a single-family residence may agree that the tenant is to perform specified repairs, maintenance tasks, alterations or remodeling if (1) the agreement of the parties is entered into in good faith; (2) the agreement is in writing; (3) the work is not necessary to cure noncompliance with subdivisions (1) and (2) of subsection (a) of this section; and (4) the agreement does not diminish or affect the obligation of the landlord to other tenants in the premises.”

       See Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98-99, 644 A.2d 325 (1994).


author: PER CURIAM.

text:
    ABBOT DINOTO v. COMMISSIONER OF CORRECTION
    (AC 27834)
    Bishop, Harper and West, Js.
    Argued January 2
    officially released February 19, 2008

      Kirstin B. Coffin, special public defender, for the appellant (petitioner).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom was Michael L. Regan, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Abbot Dinoto, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing in part his third amended petition for a writ of habeas corpus. We dismiss the appeal.

On September 15, 2003, the petitioner filed a third amended petition seeking a writ of habeas corpus. On September 26, 2003, the court dismissed the first and second counts of the third amended petition. In dismissing the third claim listed under count one, the court stated: “In light of the generic nature of the claim, the court will grant the motion to dismiss this claim. But the court has not ruled on the merits of any appropriate and more specific claim that could be raised based on the general legal theory set forth in this subparagraph and does not consider [that] its ruling should have a res judicata effect that would bar a new petition, which raised the issue in a legally sufficient manner.” The court did not dispose of the third claim under count one. Accordingly, the court did not render a final judgment on the third amended petition.

This court has jurisdiction to hear an appeal only if the appeal is taken from a final judgment. General Statutes §§ 51-197a and 52-263; Practice Book § 61-1. This court will not entertain appeals piecemeal. In the absence of a final judgment on the petition, this appeal must be and is dismissed. See Mazurek v. Great American Ins. Co., 284 Conn. 16, 33, 930 A.2d 682 (2007); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983).

The appeal is dismissed.


text:
    WELLS FARGO BANK OF MINNESOTA, N.A., TRUSTEE v. HERBERT C. MORGAN ET AL.
    (AC 28513)
    Gruendel, Lavine and Stoughton, Js.
    Argued January 7
    officially released February 19, 2008

      Brian E. Lambeck, for the appellant (named defendant).

      Martha Croog, for the appellee (plaintiff).
   Opinion

PER CURIAM.

Almost half a century ago, our Supreme Court stated that “[w]e are handicapped in our consideration of the case . . . and we are precluded from a review on the merits by the defective way in which the appeal record was prepared.” Vigue v. John Hancock Mutual Life Ins. Co., 147 Conn. 305, 305, 160 A.2d 484 (1960). We share that sentiment in the present appeal.

This foreclosure action returns to our court a second time. See Wells Fargo Bank of Minnesota, N.A. v. Morgan, 98 Conn. App. 72, 909 A.2d 526 (2006). The defendant Herbert C. Morgan, following a judgment of foreclosure by sale, appeals from the judgment of the trial court denying both his motion to open and set aside the May 9, 2005 orders accepting the report of the committee of sale and his “motion for revocation of committee deed and restoration of title.” He claims that the court abused its discretion by (1) denying his motion for revocation and restoration and (2) confirming the sale. Because the record before us is inadequate, we decline review and, accordingly, affirm the judgment of the trial court.

The relevant facts are not in dispute. On November 3, 2004, the plaintiff, Wells Fargo Bank of Minnesota, N.A., Trustee, commenced a mortgage foreclosure action against the defendant on the subject property located in Danbury. After the defendant was defaulted for failing to appear in a timely manner, the court on January 10, 2005, issued an order rendering a judgment of foreclosure by sale. The court set a sale date of March 5, 2005, ordered the appointment of a committee to make the sale and issued further orders in accordance with General Statutes § 49-25. On March 5, 2005, the committee held an auction to sell the subject property. Upon conclusion of the auction, the committee executed a bond for deed with the successful bidder and collected the deposit requirement from this purchaser in the form of a bank check in the amount of $25,500. The committee then deposited the bank check with the Danbury Superior Court. On May 9, 2005, the court entered an order that, inter alia, approved the committee sale. The court also entered an order requiring the defendant to vacate the subject property on or before the date set by the committee for the closing of title and to deliver possession to the purchaser at that time.

On May 31, 2005, the defendant filed a motion to open the judgment and set aside the orders of May 9, 2005. On June 3, 2005, prior to any court action on the defendant’s motion, the committee conducted a closing on the subject property. On June 14, 2005, the parties appeared for a hearing on the motion to open, at the conclusion of which the court concluded that “the motion to open the judgment and set aside the orders of May 9 is denied. The court . . . doesn’t have jurisdiction because the sale was approved prior to the filing of the motion.” From that judgment, the defendant appealed to this court.

On appeal, the precise question before the court was a jurisdictional one. Specifically, we defined the issue presented as “whether the court improperly concluded that it lacked subject matter jurisdiction to hear the defendant’s motion to open and set aside the court’s orders of May 9, 2005, approving the foreclosure sale of the subject property, because the motion was filed after the approval of the sale.” Wells Fargo Bank of Minnesota, N.A. v. Morgan, supra, 98 Conn. App. 77. We concluded that “the proceedings to enforce the court’s May 9, 2005 orders were automatically stayed when the defendant filed his motion to open and set aside on May 31, 2005, pursuant to Practice Book §§ 63-1 and 61-11.” Wells Fargo Bank of Minnesota, N.A. v. Morgan, supra, 77-78. As a result, we held that “the court improperly concluded that it lacked subject matter jurisdiction to hear the defendant’s motion to open and set aside the court’s May 9, 2005 orders . . . .” Id., 84. Accordingly, the judgment was reversed, and the case was remanded to the trial court for further proceedings.

Thereafter, the parties returned to the trial court to argue the merits of the defendant’s May 31,2005 motion to open. In addition, the defendant filed a “motion for revocation of committee deed and restoration of title.” It stated: “Consistent with the appellate decision released on October 17, 2006, [the] defendant objects to [the] plaintiffs motion to compel dated November 8, 2006 and moves to vacate confirmation of the sale and revoke the committee deed filed on the Danbury land records which deed the decision renders a legal nullity, in order that title be restored in the defendant so that he may be able to proceed to refinance the subject mortgage and exercise his right of redemption according to the [G]eneral [Statutes.” He did not provide an accompanying memorandum of law.

The court held a hearing on December 11, 2006, during which it heard testimony. At the conclusion thereof, the court issued an order denying the defendant’s motions to open the judgment and to revoke the committee deed. The order further provided that “[t]he committee shall reexecute a new original committee deed to be filed on the land records” and that “the committee’s motion for possession dated March 7, 2005 ... is granted.” The defendant filed a motion for reargument and clarification, which the court denied, and this appeal followed.

On appeal, the defendant does not challenge the denial of his motion to open. Rather, he claims that the court abused its discretion by confirming the sale and by denying his motion for revocation and restoration. The record before us is inadequate to review those claims.

It is the responsibility of the appellant to provide this court with an adequate record for review. See Practice Book § 61-10. Without an adequate record, we are left to speculation and conjecture; Gelormino v. Liberman, 36 Conn. App. 153, 154, 649 A.2d 259, cert. denied, 231 Conn. 946, 653 A.2d 826 (1994); which “have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). The record in the present case does not contain a written memorandum of decision or a signed transcript of an oral decision by the trial court. Despite that infirmity, the defendant did not attempt to obtain a statement of the court’s reasoning pursuant to Practice Book § 64-1 (b). Moreover, the defendant did not request an articulation of the court’s judgment, as permitted by Practice Book § 66-5. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Citations omitted; internal quotation marks omitted.) Fantasia v. Milford Fastening Systems, 86 Conn. App. 270, 283, 860 A.2d 779 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005).

The defendant has failed to meet his burden of providing this court with an adequate record for review. He has provided us with neither a memorandum of decision nor an articulation from the trial court providing the legal and factual bases of its decision. Without a sufficient record, we cannot engage in meaningful review of the court’s decision. See Bebry v. Zanauskas, 81 Conn. App. 586, 594, 841 A.2d 282 (2004).

The judgment is affirmed.

       Although several subsequent encumbrancers also were named as defendants in this action, they are not parties to this appeal. We therefore refer to Morgan as the defendant.

       Leaving no doubt as to the basis for reversal, this court stated: “Because the court’s denial of the defendant’s motion [to open] was based exclusively on jurisdictional grounds . . . our reversal is strictly limited to that claim. Whether the defendant’s motion is without merit is a question for the trial court to decide on remand.” Wells Fargo Bank of Minnesota, N.A. v. Morgan, supra, 98 Conn. App. 78 n.12.

       The court also approved the committee’s updated affidavit of fees and awarded the plaintiff $500 in additional attorney’s fees.

       The defendant did not file a complete transcript of the December 11, 2006 hearing with this court.

       Practice Book § 64-1 (b) provides in relevant part that “[i]f the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision . . . the appellant may file with the appellate clerk a notice that the decision has not been filed in compliance with subsection (a). . . Section 64-1 (b) establishes the procedure to be followed by an appellant in the event that the trial court fails to comply with Practice Book § 64-1 (a). Chase, Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608, 710 A.2d 190 (1998). An appellant who fails to utilize this procedure fails to ensure an adequate record for review. Id.