author: BERDON, J.

text:
    STATE OF CONNECTICUT v. RICK FELIX
    (AC 29517)
    DiPentima, Harper and Berdon, Js.

      Argued September 25
    officially released December 30, 2008

      H. Jeffrey Beck, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James M. Bemardi, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

BERDON, J.

The defendant, Rick Felix, appeals from the judgment of conviction, rendered following a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (4), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4). The defendant was sentenced to a total effective term of forty years imprisonment. On appeal, the defendant claims that his right to a fair trial was violated due to prosecutorial improprieties occurring in rebuttal to his closing argument. We hold that the defendant’s right to a fair trial was not violated. We accordingly affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 13, 2004, the defendant, accompanied by Renel Romias and Marvin Nowell, went to the home of Randy Johnson and his parents located at 261 Ely Avenue, Norwalk. Johnson and Darrel McFadden were at the Johnson home. The five men spoke in the hallway of the Johnson home where the defendant suggested that they rob a taxicab. The defendant stated that he had done it before and that it was easy. The individuals agreed on a plan in which Johnson would call a taxicab, and, when it arrived, they would threaten the driver with firearms. Johnson called the taxicab company and requested a pickup at 249 Ely Avenue. The five men walked to 249 Ely Avenue to wait for the taxicab. Romias was armed with a shotgun, and the defendant carried a Derringer handgun.

Ralph Moreau drove the taxicab that responded to the call. When Moreau arrived at 249 Ely Avenue, Romias opened the driver’s side door and held a shotgun to Moreau’s face. The defendant went to the passenger side door and pointed a handgun at Moreau’s face. Romias and the defendant ordered Moreau out of the car. Moreau attempted to drive off, but the defendant shot him twice. The defendant and the other men then ran from the area.

At approximately 4:15 a.m., the Norwalk police department received a report of a possible motor vehicle accident at 309 Ely Avenue. Officer John James Haggerty and Officer Anthony DePanfilis arrived to find Moreau’s taxicab wedged in between two trees so that they could not open its doors. The taxicab’s engine was still running. Moreau appeared to be gasping for air so the officers broke the window of the taxicab so they could get inside. Paramedics took over soon after the officers had broken the window, and they removed Moreau from the taxicab. At that time, the police investigated the scene as a motor vehicle accident. It was not until Moreau arrived at a hospital that medical staff discovered his gunshot wounds. Moreau subsequently succumbed to his injuries. The medical examiner determined that Moreau died from two gunshot wounds and classified his death as a homicide. The police recovered the two bullets and determined they were .22 caliber bullets. A Derringer handgun is capable of firing a .22 caliber bullet, but a shotgun is not.

A few days later, the defendant visited the Johnson home and stated to Randy Johnson in the presence of McFadden and Syreeta Johnson, Randy Johnson’s sister, that he did not mean to shoot the victim, did not want to go to jail, and planned to blame the murder on Romias and to flee to Florida. Detective Ben Trabka of the Shelton police department, the husband of Tracey Trabka, the defendant’s former schoolteacher with whom the defendant continued to maintain a relationship, testified that the defendant left a message on his wife’s voice mail, in which the defendant identified himself. Detective Trabka testified that the defendant stated in that message that “when he went to Norwalk, everyone said he was going to fuck up, and that’s exactly what he did; he went to Norwalk and fucked up. He was looking at a lot of years of jail. His aunt had hired him a lawyer, and it was about the cab shit. It was a taxi murder. It was in South Norwalk in Roodner Court where he lives. He was looking at charges. He was looking at conspiracy, conspiracy robbeiy, conspiracy murder. It didn’t look good. And he continued to say that all of his boys were locked up, and he was the last one out.” The state also admitted into evidence a recording of that voice mail.

At some point, the defendant went to Florida. The Norwalk police obtained an arrest warrant for the defendant, and he was arrested in Florida on December 16, 2004. After the defendant waived extradition, the Norwalk police department transported him back to Connecticut. A jury subsequently found the defendant guilty of felony murder, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree.

The defendant claims on appeal that eight statements made by the prosecutor during rebuttal in closing arguments to the jury were improper personal opinions and that four of the statements also referred to facts that were not in evidence. The defendant claims that these statements deprived him of his right to a fair trial under the due process clause of the fourteenth amendment to the United States constitution. We disagree.

At the outset, we first note that the defendant failed to object or otherwise to preserve the claim of prosecutorial impropriety by way of objections or motions for a mistrial. Nonetheless, “a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test. . . . The reason for this is that the defendant in a claim of prosecutorial [impropriety] must establish that the prosecutorial [impropriety] was so serious as to amount to a denial of due process .... In evaluating whether the [impropriety] rose to this level, we consider the factors enumerated by th[e] court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). . . . These factors include 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. . . . The consideration of the fairness of the entire trial through the Williams factors duplicates, and, thus makes superfluous, a separate application of the Golding test. . . .

“This does not mean, however, that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor’s improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial. . . . [Thus], the fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted. . . .

“[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. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question .... As we have indicated, our determination of whether any improper conduct by the state’s attorney violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, 213 Conn. 540, with due consideration of whether that [impropriety] was objected to at trial.” (Citations omitted; internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 360-62, 897 A.2d 569 (2006).

In determining whether an impropriety has occurred in closing arguments, “the reviewing court must give due deference to the fact that [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. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. . . . This heightened duty derives from . . . the special role played by the state’s attorney in a criminal trial. He is not only an officer of the court. . . but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.” (Internal quotation marks omitted.) State v. Camacho, 282 Conn. 328, 367-68, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). “If the accused be guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.” (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 745-46 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 1030, 166 L. Ed. 2d 428 (2006).

With these principles in mind, we turn to the defendant’s specific allegations of prosecutorial impropriety, keeping in mind that the defendant did not object at trial to any of the statements.

I

IMPROPER PERSONAL OPINIONS

The defendant claims that eight statements made by the prosecutor during rebuttal were improper because they expressed his personal opinion as to the credibility of witnesses and the defendant’s guilt. The state conceded that one of these statements was improper, namely, that the only honor in the case lies with the jury “having the guts” to find the defendant guilty. It is not necessary, therefore, for us to determine the propriety of that statement. We examine the remaining seven remarks, however, and determine that none of them was improper.

The defendant contends that the prosecutor expressed an improper personal opinion when he described as “honorable” the officers who found Moreau shortly after he was shot.* ** We disagree. A prosecutor may not vouch for the integrity of his witness. State v. Williams, 41 Conn. App. 180, 183, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996). The propriety of the prosecutor’s statement must, however, be examined in the context in which it was made. See State v. Fauci, 282 Conn. 23, 37-38, 917 A.2d 978 (2007). In the present case, defense counsel argued in closing argument that the defendant’s fingerprints were not discovered on Moreau’s taxicab. The prosecutor’s statement at issue responded to defense counsel’s argument by arguing that the police were more concerned with saving Moreau’s life than with gathering evidence. Furthermore, the credibility of the police officers was never an issue at the trial. The prosecutor’s statement drew directly upon the testimony of Officer Haggerty, who stated that the officers at the scene believed they had responded to a motor vehicle accident, not an assault. Viewed in this context, it is clear that the prosecutor used the term honorable to explain the police officers’ conduct, not to vouch for the officers’ credibility. Accordingly, the prosecutor’s statement was not improper.

The defendant argues next that it was improper for the prosecutor to state that there was “overwhelming evidence” of the defendant’s guilt. We disagree. A prosecutor is entitled to comment on the strength of the state’s evidence. 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). A prosecutor may not state an opinion that a defendant is guilty, but a prosecutor may argue that the evidence proves a defendant’s guilt beyond a reasonable doubt. Id. Accordingly, we find that it was not improper for the prosecutor to comment on the evidence of the defendant’s guilt.

The defendant argues next that the prosecutor stated numerous improper opinions concerning the credibility of the state’s witnesses. We disagree. The statements at issue can be summarized as follows: (1) McFadden and Randy Johnson were telling the truth, playing “then-last card” and were “not smart enough to he”; (2) McFadden and Randy Johnson were telling the truth and hoping for the best because they “lack criminal cunning,” are not smart enough to think of anything else and were mad at the defendant for killing Moreau and getting them in trouble; (3) the cooperation agreements given to McFadden and Randy Johnson could not have motivated statements given to police on November 22, 2004, because the statements preceded the cooperation agreements;* *** (4) an 18th century English author, Samuel Johnson, once said that any fool can tell the truth and that it takes a clever man to lie; and (5) Syreeta Johnson may love her brother, but her testimony was nonetheless the truth because she was trying to “pull herself out of . . . poverty,” and “she wouldn’t get involved in here if she had to do a lot of lying.”

It is not improper for a prosecutor to ask the jury to draw inferences and to exercise common sense. State v. Fauci, supra, 282 Conn. 37. A prosecutor may urge the jury to find for stated reasons that a witness was truthful or untruthful. See State v. Stevenson, 269 Conn. 563, 585, 849 A.2d 626 (2004). A prosecutor may also “remark on the motives that a witness may have to he, or not to lie, as the case may be.” (Internal quotation marks omitted.) Id. When a case involves two competing stories, a prosecutor may reasonably suggest that one is lying. State v. Fauci, supra, 48. “The distinguishing characteristic of impropriety in this circumstance is whether the prosecutor asks the jury to believe the testimony of the state’s witnesses because the state thinks it is true, on the one hand, or whether the prosecutor asks the jury to believe it because logic reasonably thus dictates.” Id. Additionally, a prosecutor may properly comment in closing argument on the lack of intelligence of the state’s witnesses where the defense has brought their credibility into issue. See State v. Dillard, 66 Conn. App. 238, 250-51 n. 13-14, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001).

The prosecutor’s statements at issue here were not improper. The prosecutor never used the word “I” or stated that he based his argument on his personal beliefs. See State v. Moody, supra, 77 Conn. App. 217 (“using the pronoun I in an argument increases the chances that appropriately structured arguments will deteriorate into expressions of personal opinion” [internal quotation marks omitted]). The prosecutor was entitled to apply common sense to the facts in evidence and to highlight Randy Johnson’s, McFadden’s and Syreeta Johnson’s motives to tell the truth. See State v. Fauci, supra, 282 Conn. 37; State v. Stevenson, supra, 269 Conn. 585. Similarly, the prosecutor was entitled to refer to the fact that the testimony of the state’s witnesses was by and large consistent. See State v. Fauci, supra, 47. It was also not improper for the prosecutor to reference a literary quotation. “The occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) State v. Santiago, 269 Conn. 726, 747, 850 A.2d 199 (2004). Last, the prosecutor’s statements regarding McFadden’s and Randy Johnson’s intelligence are nearly identical to those we held proper in State v. Dillard, supra, 66 Conn. App. 250-51 n. 13-14.

Accordingly, we find that except for the statement conceded by the state to have been improper, the statements made by the prosecutor during rebuttal were not improper personal opinions.

II

FACTS THAT WERE NOT IN EVIDENCE

The defendant argues that the prosecutor made four comments during rebuttal that referred improperly to facts that were not in evidence. We disagree.

The defendant argues first that the prosecutor’s statements referring to Randy Johnson and McFadden playing their last card and lacking criminal cunning improperly referenced facts that were not in evidence. “A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence.” (Internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 587. The prosecutor’s statements did not suggest that the prosecutor had specific knowledge as to Randy Johnson’s and McFadden’s state of mind or intelligence. Rather, he asked the jury to draw inferences from the facts that were in evidence. The jury could have inferred from Randy Johnson’s and McFadden’s testimony that they thought the best way to help themselves was to testify truthfully. The jury could also have inferred from the same testimony that Randy Johnson and McFadden were not cunning criminals. “[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning.” (Internal quotation marks omitted.) State v. Moody, supra, 77 Conn. App. 216. Accordingly, we find that these statements did not refer improperly to facts that were not in evidence.

The defendant argues next that the prosecutor referred improperly to facts that were not in evidence when he stated that McFadden’s and Randy Johnson’s testimony was not conjured to obtain the cooperation agreement. The state admitted into evidence separate statements made by Randy Johnson and McFadden on November 22, 2004. McFadden also testified that he did not receive a cooperation agreement until the summer of 2005, and Randy Johnson’s cooperation agreement, which was admitted into evidence, was dated September 19, 2005. This evidence suggests that McFadden’s and Randy Johnson’s testimony was not influenced by their cooperation agreements because the testimony was substantially similar to their statements made long before either witness was offered a cooperation agreement. See Conn. Code Evid. § 6-11 (b) (“[i]f the credibility of a witness is impeached by ... a suggestion of bias . . . evidence of a prior consistent statement made by the witness is admissible”). Accordingly, we find the prosecutor’s statement did not refer improperly to facts that were not in evidence.

The defendant argues last that the prosecutor referred improperly to facts that were not in evidence when he stated that Syreeta Johnson was trying to “pull herself out of . . . poverty . . . ,” Again, the propriety of this statement must be examined in its context. See State v. Fauci, supra, 282 Conn. 45. The defendant asked the jury during closing argument to “consider very strongly . . . what would Ms. Johnson do to protect the little baby brother that she helped raise.” The prosecutor argued in rebuttal that “the way [Syreeta Johnson is] going, she wouldn’t get involved in here if she had to do a lot of lying.” The prosecutor asked the jury to draw that inference from the facts that were in evidence that Syreeta Johnson lived in a three bedroom apartment with her mother, father, two brothers and her son, worked thirty-five to forty hours per week and simultaneously took five classes at a community college.

Accordingly, we find that the prosecutor’s statement did not refer improperly to facts that were not in evidence.

Ill

DUE PROCESS ANALYSIS

We now turn to the question of whether the single instance of impropriety “so infected the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 589. In State v. Williams, supra, 204 Conn. 540, our Supreme Court held that prosecutorial impropriety due process analysis focuses on the following factors: (1) the extent to which the impropriety was invited by the defense; (2) the frequency of the impropriety; (3) the severity of the impropriety; (4) the centrality of the impropriety to the critical issues in the case; (5) the strength of the state’s case; and (6) the strength of the curative measures adopted by the court. These factors are viewed in light of the entire trial. State v. Stevenson, supra, 574.

A

Whether the Impropriety was Invited

The state does not argue that the defendant invited the single instance of prosecutorial impropriety. Accordingly, we agree with the defendant that he did not invite the prosecutor to argue to the jury that the only honor in the case lies with the jury “having the guts” to stand up and say that the defendant was guilty.

B

Frequency and Severity

One instance of impropriety over the course of an entire trial is not frequent. See State v. Stevenson, supra, 269 Conn. 593-94. The conduct was also not severe. “We first note that we consider it highly significant that defense counsel failed to object to any of the improper remarks, request curative instructions, or move for a mistrial. . . . Given the defendant’s failure to object, only instances of grossly egregious [impropriety] will be severe enough to mandate reversal.” (Citation omitted.) State v. Thompson, 266 Conn. 440, 479-80, 832 A.2d 626 (2003). In Thompson, our Supreme Court held that impropriety was not severe when a prosecutor stated without objection that the defendants had “reserved a place in hell for themselves.” (Internal quotation marks omitted.) Id., 480. On the basis of this precedent, we do not find that the conceded impropriety, which referred to the juror’s honor, was severe.

C

Centrality to the Critical Issues and Strength of the State’s Case

The state’s evidence does not need to be overwhelming to support a conclusion that prosecutorial impropriety did not deprive the defendant of a fair trial. See id., 482. In the present case, the evidence of the defendant’s guilt was strong. The state presented two witnesses who testified that they saw the defendant shoot Moreau, Syreeta Williams testified that the defendant admitted to shooting Moreau and expressed remorse, the defendant’s confession on his teacher’s answering machine corroborated the witnesses’ testimony and the defendant’s flight to Florida showed consciousness of guilt. See id., 481-82 (state’s case strong when testimony placed defendant at site of shooting with gun in hand, police identified gunshot residue on defendant’s jacket and defendant’s conduct after shooting showed consciousness of guilt); see also State v. Figueroa, 257 Conn. 192, 196, 777 A.2d 587 (2001) (flight, when unexplained, tends to prove consciousness of guilt).

We also find that the impropriety was not central to the critical issues of the case. “A prosecutor . . . may not appeal to the emotions, passions and prejudices of the jurors ... or otherwise inject extraneous issues into the case . . . .” (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 473. The prosecutor’s statement that referred to the jury’s honor was extraneous to the issues properly before the jury. We find, however, that the statement was not central to the critical issues of the case because it did not contain any improper evidence establishing the defendant’s guilt.

D

Curative Instructions

Although the court gave no instructions intended specifically to cure the single instance of prosecutorial impropriety, we note that the defendant did not object or request a special instruction. By failing to bring it to the attention of the court, the defendant bears much of the responsibility for the fact that this claimed impropriety was uncured. State v. Stevenson, supra, 269 Conn. 597. Failure to object to the prosecutor’s argument when it was made suggests that defense counsel did not believe that it was unfair in light of the record of the case at the time. Id. In addition, the court reminded the jury in its general instructions that “[c]ertain things are not evidence, and you may not consider them in deciding what the facts are. These include arguments and statements by lawyers. . . . [T]he credibility and believability of the witnesses and the weight to be given to their testimony are matters entirely within your hands.” We conclude, therefore, that the court’s general curative instructions, when viewed in light of the other Williams factors, were sufficient to cure any harm to the defendant caused by the prosecutor’s one instance of impropriety. See State v. Stevenson, supra, 598.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although most of the Supreme Court cases that we cite in this opinion refer to impropriety as misconduct, we have taken the liberty to substitute the noun impropriety for misconduct when quoting these opinions. See State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007).

       The state first argues that “this court should decline review of the defendant’s claim[s] because he has inadequately briefed [them] by failing to cite any legal authority or analyze any case law dealing with alleged prosecutorial impropriety.” See State v. Diaz, 94 Conn. App. 582, 592-93, 893 A.2d 495, cert. denied, 280 Conn. 901, 907 A.2d 91 (2006). Although the defendant’s brief is lacking analysis, he does cite to seminal cases, and the crimes of which he was convicted were serious. We accordingly review his claims of prosecutorial impropriety.

       The prosecutor argued: “And if you are confronted with proof beyond a reasonable doubt—which you have been confronted with in this case— no matter how hard it is Tor you to say that someone who was seventeen years old at the time of this event, no matter how hard it is for you to say he’s guilty and guilty of murder, your honor lies--and maybe the only honor in this case lies with you having the guts, the principle to come in here and stand up and say guilty because that’s what the facts require and that’s what the law requires.”

       The prosecutor argued: “The first thing [defense] counsel talked about was that there was a lack of prints in the case. Now, if you recall the way this event happened, the police showed up at the scene of what they thought was a motor vehicle accident Now these are honorable men, and they don’t show up at a scene where somebody’s been injured and immediately start thinking about preserving prints when they think they may be able to save the man’s life.”

       The prosecutor argued: “The fact that firearms were not recovered does not contradict the ample corroboration in this case and overwhelming evidence in this case of that man’s guilt.”

       The prosecutor argued: “[CJommon sense says that [if] Darrel McFadden and Randy Johnson wanted to gang up somehow and start telling a lot of lies . . . [t]he first thing they would have done was put that shotgun in his hand. They did not do that because they were telling the truth when they were in the station and when they were on the stand. And they were telling the truth because that’s their last card left to play. They’re just not smart enough to lie their way out of this . . . .”

       The prosecutor argued: “They’re laying out the truth hoping for the best because that’s all they can do. They really don’t have any other choice, and they’re not smart enough to think of another one. They lack criminal cunning. They’re credible. They’re credible because they’re just not cunning enough to be otherwise. . . . They want to come in here and tell the truth about [the defendant] because he got them in so much trouble because he killed Ralph Moreau.”

       The prosecutor argued: “[C]ounsel talked again about cooperation agreements. Like I said, the cooperation—the statements simply gave at the station precede the cooperation agreement. They’re not the motivation. There’s no story being conjured. They’re not the cause of some kind of conjuring of some complex elaborate lie that these two gentlemen [who] had testified would never have been able to testily their way through the case with that type of elaborate anything.”

       The prosecutor argued: “[T]here’s a man named Samuel Johnson who’s a famous author; and he said: any fool can tell the truth. It takes a clever man to tell a lie. And the fact of the matter is, is it’s just not smart enough to have done anything else but reach for the truth.”

       The prosecutor argued: “Now, Syreeta Johnson, she may love her brother. I mean, there’s no reason to think that she wouldn’t. She’s trying to pull herself out of the poverty that she was born into obviously. You just have to use your common sense. I mean, basically what she said got said, fits in with everything else, that anger, that how to feel. Why did you have to kill an innocent man when you didn’t have to? . . . And you know that the way that she’s going, she wouldn’t get involved in here if she had to do a lot of lying.”

       In Dillard, this court held it was not improper for the prosecutor to state in closing argument: “Then we come to Lonnie Cross. Lonnie Cross is a piece of work, and you’d probably cross the street if you saw him come the other way. . . . Let me tell you another thing about people who commit crimes. People who commit crimes by and large are not smart. Lonnie Cross is not smart. Demetrius White is not smart. Neither is Julio Burgos. None of them are. That’s why they get caught.” (Internal quotation marks omitted.) State v. Dillard, supra, 66 Conn. App. 250-51 n.13.

       See footnote 6.

       See footnote 7.

       See footnote 8.

       See footnote 10.

       See footnote 1.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ELIZER TITO COTTO
    (AC 28296)
    Flynn, C. J., and Lavine and Hennessy, Js.
    Submitted on briefs October 21
    officially released December 30, 2008

      Elizer Tito Cotto, pro se, the appellant, filed a brief (defendant).

      Jonathan C. Benedict, state’s attorney, and Frederick W. Fawcett, supervisory assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Elizer Tito Cotto, appeals from the judgment dismissing his petition for a writ of error coram nobis or audita querela. The defendant claims impropriety in the court’s holding that it lacked jurisdiction to hear his petition. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. On December 19, 1996, the defendant pleaded guilty to robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and subsequently was sentenced to a term of ten years imprisonment, execution suspended after two years, and three years probation. The defendant completed his term of incarceration and was released from custody on January 31, 1999. On June 28, 2006, the defendant filed his petition for a writ of error coram nobis or audita querela. In the petition, the defendant claimed that the attorney who represented him on the robbeiy case rendered ineffective assistance of counsel. He claimed ineffective assistance because the attorney did not advise him of the possibility of disposing of the criminal charges as a youthful offender or under the accelerated rehabilitation program and did not file the proper documents for the defendant to file an appeal. He claimed that he became aware of these issues while he was in federal custody. He further alleges that because of his robbery conviction, he was unable to gain access to drug programs that would have reduced the length of his federal sentence.

The court held that neither of the common-law remedies were applicable to the present case. The writ of error coram nobis was held inapplicable because it must be filed within three years of judgment, while the writ of audita querela was found to be for use in civil matters when enforcement of a judgment would be contrary to the ends of justice due to matters that have arisen since its rendition. The defendant filed a motion for reconsideration of his petition, which was granted, and the court affirmed its position by clarifying that the petition was filed nine years and five months after the plea and that the court had dismissed the petition for lack of jurisdiction.

On appeal, the defendant claims that it was improper for the court to find that it did not have jurisdiction to hear the petition. The state begins by arguing that there is an inadequate record for review but contends that should this court find that there is an adequate record, the defendant had other remedies he failed to pursue. We agree with the state that we have an inadequate record to review this case.

“[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999). Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. . . . Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996).” (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 617-18, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

“The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061 [now § 60-5] .... It is not the function of this court to find facts. . . . Our role is ... to review claims based on a complete factual record developed by a trial court.” (Citations omitted; internal quotation marks omitted.) Id., 621. Without the necessary factual and legal conclusions furnished by the trial court, any decision made by us respecting the defendant’s claims would be entirely speculative.

There are no transcripts in this case and only a cursory order from the court dismissing the petition. We were not presented with any information from which to review the defendant’s claim.

The judgment is affirmed.

       The defendant represented himself, pro se, both at the trial level and in this appeal. The defendant did not appear for oral argument, and, therefore, this court considered this case on the briefs submitted.

       “A writ of error coram nobis is an ancient common-law remedy which authorized the trial judge, within three years, to vacate the judgment of the same court if the party aggrieved by the judgment could present facts, not appearing in the record, which, if true, would show that such judgment was void or voidable. . . . The facts must be unknown at the time of the trial without fault of the party seeking relief. ... A writ of error coram nobis lies only in the unusual situation where no adequate remedy is provided by law.” (Citations omitted; internal quotation marks omitted.) State v. Henderson, 259 Conn. 1, 3, 787 A.2d 514 (2002).

       “A writ of audita querela is a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense . . . arising, or at least raisable for the first time, after judgment.” (Internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn. App. 574, 574 n.2, 808 A.2d 710 (2002).

       The defendant was seventeen years old at the time of his plea.


author: BISHOP, J.

text:
    LYNN LOPA v. BRINKER INTERNATIONAL, INC., ET AL.
    (AC 29324)
    Bishop, Gruendel and Borden, Js.

      Argued October 31
    officially released December 30, 2008

      Matthew E. Dodd, for the appellant (plaintiff).

      J. Sarah Posner, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

BISHOP, J.

In this workers’ compensation case, this appeal calls on the court to determine whether the United States Postal Service is an “employer” within the Connecticut workers’ compensation scheme so as to require the inclusion of postal wages in calculating the total disability payments due to a postal service employee who suffers a compensable injury in the course of concurrent employment. Because we conclude that the United States Postal Service is not an employer within the ambit of the Connecticut Workers’ Compensation Act (act), General Statutes § 31-275 et seq., we affirm the decision of the workers’ compensation review board.

The relevant facts are not in dispute. On July 13,2004, the plaintiff, Lynn Lopa, sustained a compensable injury to her lower back arising out of her employment with the defendant Brinker International, Inc. On the date of the injury, she worked for the defendant, Timothy’s Tavern and the United States Postal Service. The trial commissioner (commissioner) concluded that the compensation rate should be calculated on the basis of the plaintiffs concurrent earnings with the defendant and Timothy’s Tavern. The commissioner rejected the plaintiffs assertion that the United States Postal Service wages should be included in her average weekly wage on the ground that the federal government is not an employer within the meaning of the act. The workers’ compensation review board (board) affirmed the commissioner’s decision and this appeal followed.

We begin with a brief overview of the purpose, relevant provisions and relevant jurisdictional confines of the act. “The purpose of the workmen’s compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. . . . The Workers’ Compensation Act compromise [s] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Citation omitted; internal quotation marks omitted.) Panaro v. Electrolux Corp., 208 Conn. 589, 598-99, 545 A.2d 1086 (1988). Our Supreme Court has “observed that the workers’ compensation commission, like any administrative body, must act strictly within its statutory authority .... It cannot modify, abridge, or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it that power. ... A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . . [I]t is settled law that the commissioner’s jurisdiction is confined by the [act] and limited by its provisions.” (Citations omitted; internal quotation marks omitted.) Discuillo v. Stone & Webster, 242 Conn. 570, 576, 698 A.2d 873 (1997). “The parties cannot confer jurisdiction upon the commissioner by agreement, waiver or conduct.” Kinney v. State, 213 Conn. 54, 60, 566 A.2d 670 (1989). “The [act] is not triggered by a claimant until he brings himself within its statutory ambit.” (Internal quotation marks omitted.) Id., 59. “Although the Workers’ Compensation Act should be broadly construed to accomplish its humanitarian purpose ... its remedial purpose cannot transcend its statutorily defined jurisdictional boundaries.” (Citations omitted; internal quotation marks omitted.) Id., 58-59.

The dispositive issue in the plaintiffs appeal is whether the United States Postal Service, which is “an independent establishment of the executive branch of the Government of the United States”; 39 U.S.C. § 201; falls within the definition of “employer” under the act. Whether the postal service may be an employer under the act presents a question of statutory interpretation over which our review is plenary. See Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” Rivers v. New Britain, supra, 10-11.

Section 31-275 (10) of the act defines “employer” as “any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay, or the legal representative of any such employer . . . .” General Statutes § 31-275 (10). Both parties agree, as does this court, that the only portion of the definition of “employer” that the postal service might satisfy is “public corporation within the state.” Because the meaning of a “public corporation within the state” is not readily ascertainable from the language of the statute, we turn to other sources for explication.

The definition of employer under § 31-275 (10) has remained essentially unchanged since the act’s enactment in 1913. During the committee hearings on the bill that became chapter 138 of the 1913 Public Acts, professor Willard C. Fisher, an economist at Wesleyan University who had been engaged by the standing committees on judiciary and labor to assist in drafting the act, remarked that “the law ought to be as wide as possible in its scope; there ought to be no employment left out that can practicably be included.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1913 Sess., p. 197. Fisher stated further that “there is no good reason for excluding employment of public corporations; I mean truly public corporations, the state, the city and the like.” Id., p. 205.

Black’s Law Dictionary provides one definition of a “public corporation” as: “A corporation that is created by the state as an agency in the administration of civil government. ... A government-owned corporation that engages in activities that benefit the general public . . . .” Black’s Law Dictionary (7th Ed. 1999). These definitions are consistent with our case law. See Norwich v. Housing Authority, 216 Conn. 112, 121, 579 A.2d 50 (1990); Housing Authority v. Dorsey, 164 Conn. 247, 251, 320 A.2d 820 (housing authority is public corporation created by municipality to exercise certain delegated sovereign powers), cert. denied, 414 U.S. 1043, 94 S. Ct. 548, 38 L. Ed. 2d 335 (1973); Local 530, AFSCME, Council 15 v. New Haven, 9 Conn. App. 260, 262, 518 A.2d 941 (1986) (water authority created as public corporation to provide and assure provision of adequate supply of pure water at reasonable cost).

Analogously, the United States Postal Service was created by the federal government for a public purpose. Therefore, it appears to meet a definition of a “public corporation.” And, if we attribute “within the state” with its ordinary meaning in regard to geography, we could conclude, as a matter of pure linguistics, that the United States Postal Service fits into the definition of “employer” under § 31-275 (10). Such an interpretation would be particularly desirable in this case, from the plaintiffs viewpoint, because if the plaintiff had been employed full-time by virtually any other entity, her wages from that employment would have been used to calculate her compensation under General Statutes § 31-310. If we could apply this interpretation only to this case and, thus, only to § 31-310, the second injury fund would be implicated, not the postal service or the federal government.

We cannot, however, interpret the term “employer” in a vacuum or as it relates solely to § 31-310, which is only one portion of the workers’ compensation scheme. When interpreting the definition of “employer,” we must be mindful that the definition set forth in § 31-275 (10) applies to the entire statutory scheme, and not merely to § 31-310. “The entire statutory scheme of the [act] is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act . . . .” (Internal quotation marks omitted.) Vanzant v. Hall, 219 Conn. 674, 678, 594 A.2d 967 (1991). Thus, in determining who falls within the ambit of “employer” under § 31-275 (10), we must ensure that that definition may be applied consistently throughout the entire act because we cannot have different meanings of the word “employer” for different parts of the act.

There are many provisions in the act that impose statutory requirements on employers. Because the postal service is part of the federal government, and because the federal government has not expressly consented to the jurisdiction of our act, we do not have the authority to require the federal government to comply with our state statutes. See United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (1980). Accordingly, because the term “employer” could not include the federal government for purposes of those provisions of the act that require statutory compliance, neither can it be so for § 31-310. To hold otherwise would impermissibly posit two different meanings of “employer” to be used throughout one uniform statutory scheme.

In light of the foregoing, we conclude that the United States Postal Service is not an employer within the meaning of § 31-275 (10) and, accordingly, that the board properly affirmed the commissioner’s determination that the plaintiffs postal wages should not be used in calculating her compensation benefits under §31-310.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Liberty Mutual Group, Inc., and the second injury fund are also defendants in this action. For convenience, we refer in this opinion to Brinker International, Inc., as the defendant.

       General Statutes § 31-310 (a) provides in relevant part: “For the purposes of this chapter, the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer in whose service the employee is injured during the fifty-two calendar weeks immediately preceding the week during which the employee was injured, by the number of calendar weeks during which, or any portion of which, the employee was actually employed by the employer .... Where the injured employee has worked for more than one employer as of the date of the injury and the average weekly wage received from the employer in whose employ the employee was injured, as determined under the provisions of this section, are insufficient to obtain the maximum weekly compensation rate from the employer under section 31-309, prevailing as of the date of the injury, the injured employee’s average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment not in excess of fifty-two weeks prior to the date of the injury, but the employer in whose employ the injury occurred shall be liable for all medical and hospital costs and a portion of the compensation rate equal to seventy-five per cent of the average weekly wage paid by the employer to the injured employee, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contribution Act made from such employee’s total wages received from such employer during the period of calculation of such average weekly wage, but not less than an amount equal to the minimum compensation rate prevailing as of the date of the injury. The remaining portion of the applicable compensation rate shall be paid from the Second Injury Fund upon submission to the Treasurer by the employer or the employer’s insurer of such vouchers and information as the Treasurer may require. . . .”

       The second injury fund, which became a party to this action due to its potential liability for the concurrent employment portion of the compensation due to the plaintiff, is the sole appellee.

       Originally, the act defined “employer” as “any natural person, corporation, firm, partnership, or joint stock association, the state, and any public corporation within the state using the services of another for pay; it includes also the legal representative of any such employer.” Public Acts 1913, c. 138, part B, § 43. The scope of this definition subsequently was amended to change “any natural person” to “any person”; Public Acts 1915, c. 288, § 22; and to include “voluntary association”; Public Acts 1921, c. 306, § 11; and “limited liability company”; Public Acts 1995, No. 95-79, § 117.

       See Cleveland v. U.S. Printing Ink, Inc., 21 Conn. App. 610, 575 A.2d 257 (1990), aff'd, 218 Conn. 181, 588 A.2d 194 (1991), in which the court appears to have fastened on the term “within the state” as connoting geography.

       See, e.g., General Statutes § 31-284 (regarding employer proving solvency and financial ability to pay compensation benefits, requiring the employer to file with the insurance commissioner guaranteeing the performance of his obligations, and by insuring against any such risks; sanctions for failure to comply with the provisions of this statute).

       To the extent that the statute creates an anomaly that results in a unique unfairness to the plaintiff, its correction lies with the legislature and not with this court.

       We note that the board has reached the same result in other cases, with which we agree. See Lemieux v. General Dynamics Corp./Electric Boat Division, No. 2077, CRB-2-94-6 (October 5, 1995) (Connecticut National Guard not employer within meaning of act); Chodkowski v. UTC/Pratt & Whitney, No. 736, CRD-3-88-5 (December 18, 1989) (United States Army Reserve not employer within act). Employing similar reasoning, the board has rejected claims to include wages from the Mashantucket Pequot Tribal Nation so as to enhance compensation benefits. See Bardales v. Christi Cleaning Service Corp., No. 5053, CRB-2-06-2 (December 21, 2006); Hudgens v. Goldy’s Restaurant, No. 4997, CRB-2-05-9 (December 21, 2006).


text:
    ROBERT MERRIAM v. COMMISSIONER OF CORRECTION
    (AC 28940)
    McLachlan, Robinson and Stoughton, Js.
    Argued October 30
    officially released December 30, 2008

      David J. Reich, for the appellant (petitioner).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Robert Merriam, has appealed following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the court abused its discretion in denying his petition for certification and improperly rejected his claims that both his trial counsel and his appellate counsel rendered ineffective assistance. We dismiss the appeal.

The petitioner, after a trial by jury, was found guilty of sexual assault in the first degree in violation of General Statutes (Rev. to 1987) § 53a-70 (a), sexual assault in the second degree in violation of General Statutes (Rev. to 1987) § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes (Rev. to 1987) § 53-21. The petitioner appealed, and the judgment of conviction was affirmed in State v. Merriam, 264 Conn. 617, 835 A.2d 895 (2003). The facts out of which this case arose are set forth in that opinion.

On May 16, 2006, the petitioner filed an amended petition for a writ of habeas corpus containing three counts. The first count alleged that his conviction was obtained in violation of his right to effective assistance of trial counsel. The second count alleged ineffective assistance of appellate counsel. The third count, alleging prosecutorial impropriety, was not pursued on appeal and therefore was abandoned.

Several witnesses testified at the habeas trial, including the petitioner, two expert witnesses, both the petitioner’s trial and appellate counsel, the prosecutor who tried the criminal case and a police officer. The court found that the petitioner generally was not credible and that counsel and the police officer were credible. Following the trial, the court, in a comprehensive forty-one page memorandum of decision, fully analyzed and examined each of the petitioner’s claims and denied the petition. On June 6, 2007, the court denied the petitioner’s petition for certification to appeal.

The petitioner challenges both the court’s denial of certification to appeal and its denial of the amended petition for a writ of habeas corpus. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

“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.) Osuch v. Commissioner of Correction, 111 Conn. App. 135, 137, 957 A.2d 887, cert. denied, 289 Conn. 957, 961 A.2d 420 (2008), quoting Coleman v. Commissioner of Correction, 108 Conn. App. 836, 838, 949 A.2d 536, cert. denied, 289 Conn. 913, 957 A.2d 876 (2008). “[E]very reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [r]eversai is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. James, 64 Conn. App. 495, 499, 779 A.2d 1288 (2001), rev’d on other grounds, 261 Conn. 395, 802 A.2d 820 (2002). To prevail on the merits on a claim of ineffective assistance of counsel, a habeas petitioner generally must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Furthermore, a petitioner claiming ineffective assistance of appellate counsel must show that, but for appellate counsel’s error, the petitioner would have prevailed on appeal. See Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

After a thorough review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues he has raised in the petition for certification to appeal are debatable among jurists of reason, that a court could resolve those issues differently or that the questions raised deserve encouragement to proceed further. The petitioner has failed to demonstrate that the court abused its discretion in denying his petition for certification to appeal.

The appeal is dismissed.

       The petitioner alleged that trial counsel failed (1) to investigate and to prepare the case for trial, (2) to explain properly a proposed plea agreement, (8) to file a motion to dismiss on the basis of the expiration of the statute of limitations, (4) to cross-examine witnesses and to introduce evidence to impeach their credibility, (5) to call relevant witnesses, (6) to challenge allegations made by the prosecutor and to present evidence and argument disproving such allegations, (7) to challenge the accuracy of the police investigation, (8) to hire and to use an expert witness to challenge the propriety of the investigation, (9) to file a motion for a judgment of acquittal on the ground of insufficient evidence, (10) to object to improper closing arguments or to request a curative instruction and (11) to present effective closing arguments.

       The petitioner contended that appellate counsel failed to assert that there was insufficient evidence to support the guilty verdict and failed to raise the issue of prosecutorial impropriety.


author: Per Curiam.

text:
    CECELIA LEBBY v. NEW BRITAIN CORPORATION COUNSEL ET AL.
    (AC 29423)
    Bishop, DiPentima and Graendel, Js.
    Submitted on briefs October 15
    officially released November 18, 2008
   Per Curiam.

The judgment is affirmed.


text:
    CECELIA LEBBY v. WORLD WRESTLING ENTERTAINMENT, INC., ET AL.
    (AC 29444)
    Bishop, DiPentima and Graendel, Js.
    Submitted on briefs October 15
    officially released November 18, 2008
   Per Curiam.

The judgment is affirmed.


text:
    CECELIA LEBBY v. OAK HILL SILVER FOX GROUP HOME ET AL.
    (AC 29463)
    Bishop, DiPentima and Graendel, Js.
    Submitted on briefs October 15
    officially released November 18, 2008
   Per Curiam.

The judgment is affirmed.


text:
    PROVIDENT BANK v. RAYMOND D. SCINTO ET AL.
    (AC 28763)
    Lavine, Robinson and Lavery, Js.
    Argued October 23
    officially released November 18, 2008
   Per Curiam.

The judgment is affirmed.


text:
    DARRYL WHITAKER v. COMMISSIONER OF CORRECTION
    (AC 27592)
    Bishop, Gruendel and Lavine, Js.
    Argued October 20
    officially released November 18, 2008
   Per Curiam.

The appeal is dismissed.


text:
    MARK BANKS v. COMMISSIONER OF CORRECTION
    (AC 28635)
    DiPentima, Harper and Beach, Js.
    Argued October 24
    officially released November 18, 2008
   Per Curiam.

The appeal is dismissed.


text:
    PAULINE GRAVEL v. SCOTT ANDREWS
    (AC 29299)
    McLachlan, Robinson and Stoughton, Js.
    Argued October 30
    officially released December 9, 2008
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MELVIN HOOKS
    (AC 29286)
    Harper, Beach and Pellegrino, Js.
    Argued November 18
    officially released December 9, 2008
   Per Curiam.

The judgment is affirmed.


text:
    ANDRE RHODES v. COMMISSIONER OF CORRECTION
    (AC 27782)
    DiPentima, Lavine and Beach, Js.
    Argued November 14
    officially released December 9, 2008
   Per Curiam.

The appeal is dismissed.


text:
    MARSHALL BROWN v. COMMISSIONER OF CORRECTION
    (AC 29008)
    Gruendel, Robinson and Peters, Js.
    Argued November 17
    officially released December 9, 2008
   Per Curiam.

The appeal is dismissed.


text:
    STEPHANIE DICKINSON v. STEPHEN J. DICKINSON
    (AC 29956)
    Beach, Robinson and Peters, Js.
    Argued November 17
    officially released December 9, 2008
   Per Curiam.

The judgment is affirmed.


text:
    PAULA’S WIG BOUTIQUE, LLC v. PAUL E. LEWIS
    (AC 29078)
    Bishop, McLachlan and Borden, Js.
    Argued November 12
    officially released December 9, 2008
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES J. UBALDI v. BOARD OF EDUCATION OF THE CITY OF WATERBURY
    (AC 29294)
    McLachlan, Lavine and Mihalakos, Js.
    Argued November 13
    officially released December 9, 2008
   Per Curiam.

The judgment is affirmed.


text:
    TYSON HUNTER v. COMMISSIONER OF CORRECTION
    (AC 28332)
    McLachlan, Harper and Lavery, Js.
    Argued November 19
    officially released December 9, 2008
   Per Curiam.

The appeal is dismissed.


text:
    MAURICE BILLIE v. COMMISSIONER OF CORRECTION
    (AC 28825)
    DiPentima, Beach and Peters, Js.
    Argued November 20
    officially released December 9, 2008
   Per Curiam.

The appeal is dismissed.


author: DiPENTIMA, J.

text:
    ROCK RIMMON GRANGE #142, INC. v. THE BIBLE SPEAKS MINISTRIES, INC.
    (AC 27752)
    DiPentima, McLachlan and Peters, Js.

      Argued September 16, 2008
    officially released January 6, 2009

      Dean R. Singewald, for the appellant (defendant).

      Timothy J. Lee, for the appellee (substitute plaintiff).
   Opinion

DiPENTIMA, J.

In this appeal, we are asked to examine the postjudgment procedure for the distribution of use and occupancy payments deposited with the court during an appeal from a summary process judgment. The defendant, The Bible Speaks Ministries, Inc., appeals from the judgment rendered by the trial court ordering disbursement of $1010 of the $1265 deposited use and occupancy payments to the substitute plaintiff, the town of Beacon Falls. We affirm the judgment of the trial court.

In 2001, the original plaintiff, Rock Rimmon Grange #142, Inc. (grange), was the owner of the property at 79 Old Turnpike Road in Beacon Falls (property). The defendant took possession of the property pursuant to the terms and conditions of documents dated April 25, 2001. On or about July 24, 2003, the grange served the defendant with a notice to quit the property on or before August 1, 2003, citing lapse of time. The defendant did not comply with the notice to quit, and in February, 2004, the grange commenced a summary process action against the defendant. On April 15, 2004, the town of Beacon Falls acquired title to the property and was thereafter substituted as the plaintiff. The court rendered judgment in favor of the plaintiff on November 24, 2004. The defendant appealed.

On April 27,2005, the plaintiff filed a motion to require the defendant to post bond during the pendency of the appeal. On May 18, 2005, the court denied the motion but ordered the defendant to pay use and occupancy fees in the amount of $160 monthly to the court pending appeal. On July 27, 2005, the court granted the defendant’s motion for orders, requiring the plaintiff to provide the defendant with a key to the property, enjoining the plaintiff from interfering with the possessory rights of the defendant and ordering the plaintiff to cease and desist from entering the property, except as specifically provided by statute. On November 29, 2005, this court affirmed the trial court’s judgment. See Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn. App. 410, 885 A.2d 768 (2005). An execution issued on December 30, 2005.

On March 8, 2006, the plaintiff filed a motion for payment of funds, requesting that the funds deposited with the office of the clerk be paid to the plaintiff. On May 5, 2006, the defendant filed (1) an objection to the motion for distribution of funds, (2) a motion for sanctions and to enlarge, alleging that the plaintiff had violated a court order requiring it to allow the defendant to use the property, and claiming, inter alia, a writ of restitution and asserting a claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (3) a motion for the court to set a time for compliance pursuant to Practice Book §§13-10 (c) and 13-23. In addition, the defendant filed two requests for admissions, on May 5 and 10, 2006.

At the May 17, 2006 hearing on the plaintiffs motion and the defendant’s motions, the defendant attempted to present testimony in support of its motion for sanctions and to enlarge. Following the plaintiffs objection, the court concluded that this testimony would be inappropriate for a summary process action and denied the motion. The court also sustained the plaintiffs objection to the defendant’s requests for admissions. The court then heard testimony related to the defendant’s objection to the motion for distribution of funds, limiting the testimony to actual monetary losses claimed by the defendant. The court also limited testimony to the items listed in the defendant’s objection to the motion for distribution of funds. The defendant’s witness, the Reverend Walter Oliver, testified that a cedar chest had been damaged, which he valued at approximately $400. Oliver also testified that a baptismal trough, which he purchased for approximately $250, had been damaged. He further testified that approximately forty songbooks and twenty bibles had sustained water damage but were still usable. The court ordered that the value of the baptismal trough be deducted from the use and occupancy fees deposited by the defendant, resulting in a disbursement of $1010 to the town and $250 to the defendant. This appeal followed.

Preliminarily, we note that in its brief the defendant asks us to reverse the judgment of the trial court because it improperly interpreted General Statutes § 47a-26f. At oral argument, the parties agreed that the pertinent statute is General Statutes § 47a-35b, not § 47a-26f. Because the statutes are nearly identical in language and purpose and because neither the court nor the plaintiff was misled by this mistake, we address this claim. Section 47a-26f provides for the distribution of use and occupancy payments made during the pen-dency of the trial proceedings while § 47a-35b addresses the distribution of such payments made during the appeal.

The crux of the defendant’s claim on appeal is that the court improperly interpreted § 47a-35b in limiting its recovery to actual losses. Within that claim, the defendant argues that the court improperly limited testimony, denied the defendant’s motion for sanctions and for an enlargement of time to hear the defendant’s CUTPA claim and writ of restitution and sustained objections to the defendant’s requests for admissions. We disagree.

We also disagree with the defendant’s assertion that our standard of review is plenary. The defendant has characterized its issues on appeal as ones of statutory interpretation that require our plenary review. See Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008). On the basis of our review of the issues and the applicable case law, however, we employ an abuse of discretion standard of review.

The statute provides that the determination of the amount due each party from the accrued payments “shall be based on the respective claims of the parties arising during the pendency of the proceedings after the date of the order . . . .” General Statutes § 47a-35b. In MFS Associates, Inc. v. Autospa Realty Corp., 19 Conn. App. 32, 560 A.2d 484 (1989), quoting Groton Townhouse Apts. v. Marder, 37 Conn. Sup. 688, 691, 435 A.2d 47 (1981), this court noted that “[t]he evident purpose of the statute was to authorize the court to settle equitably the many disputes which may arise during the pendency of the proceeding not necessarily related to the merits of the action.” (Internal quotation marks omitted.) MFS Associates, Inc. v. Autospa Realty Corp., supra, 35; see Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn. App. 294, 300-301, 912 A.2d 1117 (2007) (claims regarding equitable relief reviewed under abuse of discretion standard).

The underlying purpose of a § 47a-35b proceeding is to “place some obligation on a nonpaying tenant to provide a property owner with surety against further financial losses while the summary process judgment is being considered on appeal.” Scagnelli v. Donovan, 88 Conn. App. 840, 844, 871 A.2d 1084 (2005). Aproceeding to order the distribution of funds held by the court in a summary process action under § 47a-35b is properly limited to those claims related to the use and occupancy of the premises during the pendency of the appeal. See, e.g., Invest II v. Southern Connecticut Mental Health Substance Abuse Treatment Center, Superior Court, judicial district of Fairfield, Docket No. SPBR-940727340 (February, 10, 1995) (13 Conn. L. Rptr. 613). Accordingly, the court did not abuse its discretion in denying the defendant’s request to continue the matter to enlarge the proceedings to include CUTPA claims and a cause of action under the entry and detainer statute in its motion for sanctions.

Finally, we do not address the defendant’s additional claims that the court improperly limited testimony to claims of which the plaintiff had notice and to which there was a monetary value and improperly sustained the plaintiffs objections to the defendant’s requests for admissions served one week prior to the hearing. “[W]e repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Smith v. Andrews,

289 Conn. 61, 80, 959 A.2d 597 (2008). Here, the defendant’s claims are devoid of any legal analysis or citation to legal authority. We therefore deem these claims to be abandoned and decline to review them. See Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 124-25, 956 A.2d 1145 (2008).

The judgment is affirmed.

In this opinion the other judges concurred.

       We hereinafter refer to the town as the plaintiff.

       See General Statutes § 42-1 lOg (a) and (g).

       Although the court did not specifically deny the defendant’s motion for the court to set a time for compliance with the requests for admissions on the record, the court did sustain the plaintiffs objection to the requests for admissions, which the plaintiff made after the defendant orally requested the court to set a time for compliance with the requests for admissions. There is no written memorandum of decision or signed transcript of the court’s ruling, as required under Practice Book § 64-1. Accordingly, with a record that does not set forth the court’s ruling and findings, we do not address the defendant’s claim that the court improperly denied its motion to set a time for compliance. See Watrous v. Watrous, 108 Conn. App. 813, 835-36, 949 A.2d 557 (2008).

       Specifically, the court did not permit the defendant to present testimony regarding damage to a piano, which was not listed on any of the defendant’s motions. The plaintiff objected to such testimony, on the ground that it did not have notice, and the court sustained the objection.

       On cross-examination, Oliver stated that he did not know where any of these items were located currently and that he had not received an inventoried list of the items taken by the marshal during an execution for removal of goods from the property.

       General Statutes § 47a-35b provides: “Upon final disposition of the appeal, the trial court shall hold a hearing to determine the amount due each party from the accrued payments for use and occupancy and order distribution in accordance with such determination. Such determination shall be based upon the respective claims of the parties arising during the pendency of the proceedings after the date of the order for payments and shall be conclusive of those claims only to the extent of the total amount distributed.”
      General Statutes § 47a-26f is substantially similar except for the first phrase, which reads instead, “[ajfter entry of final judgment.”