source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BENJAMIN JENKINS
    (AC 22200)
    Foti, Bishop and Shea, Js.

      Argued April 1
    officially released June 25, 2002

      Felix Esposito, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Benjamin Jenkins, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8, and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). The trial court imposed a total effective sentence of ninety years incarceration. On appeal, the defendant claims that (1) the court improperly denied his requests to dismiss his attorney and (2) prosecutorial misconduct deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early evening hours of December 21, 1998, several individuals were congregated on the sidewalk in front of a package store in New Haven. The defendant apparently had had a disagreement with someone who he believed was standing in that vicinity. The defendant, carrying a firearm and accompanied by another man, suddenly approached the group on foot. He raised his firearm and showered the group with gunfire. As peopie began to flee, bullets struck Lamont Coleman, George Kimpson and Marcus Warner. Coleman and Kimpson sustained serious physical injuries as a result of the shooting; Warner, whom the defendant shot in the head, subsequently died as a result of his injuries.

After the shooting, the defendant and his accomplice fled the immediate scene on foot. Police were dispatched to the shooting scene. As one officer in a vehicle responded within minutes, the defendant’s vehicle sped by. The officer activated his vehicle’s overhead lights, but the operator of the defendant’s vehicle did not stop. Despite the fact that the officer took note of the vehicle’s license plate number, he did not engage in a protracted, high-speed pursuit of the vehicle and eventually lost sight of it. Additional facts will be set forth as necessary to resolve the issues on appeal.

I

The defendant first claims that the court, in violation of the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut, improperly denied his oral and written motions to dismiss his counsel. We disagree.

The following additional facts are relevant to the defendant’s claim. During the course of the trial, Thomas Conroy, an attorney and special public defender, represented the defendant. The record reflects that on January 19, 2000, during a hearing on a motion for bond reduction before Judge Fasano, the defendant interrupted the proceeding and personally addressed the court. The defendant stated: “I want to talk to you because it ain’t coming out the way that I really want you to hear it.” The defendant complained that Conroy was misstating his criminal record. He further informed the court that he wanted to clear his name and that “I’m not gettin’ no help, you know what I mean, as far as legally, you know what I mean.” The defendant did not make a motion to dismiss his counsel, and the court took no action as to those statements.

By way of a handwritten letter, dated January 30, 2000, addressed to the court, the defendant requested that the court appoint a special public defender to represent him. He also stated: “My present public defender is not providing the legal representation I need in this serious case I’ve been accused of. I need someone thoroughly equipped to help me in this matter.” (Emphasis in original.) Judge Fasano treated the defendant’s letter as a motion to dismiss counsel and conducted a hearing on the motion on March 1, 2000.

The court asked the defendant why he desired a different attorney to represent him. The defendant replied: “I don’t know nothing about when the trial is approaching, but I’ve been wanting to fire the man since I first — the second time meeting him. I mean he’s totally — he’s not representing me. I don’t even — it don’t even seem like he even went to school to be a lawyer cause he don’t do nothing.” The defendant made nonspecific allegations as to Conroy’s preparation of his defense, what he perceived to be Conroy’s lackluster performance, and a poor relationship between himself and Conroy. The defendant clearly indicated his desire not to be represented by Conroy. Conroy represented that he was working with an investigator and that his investigation would be complete by the time of trial. The defendant complained that the investigator lacked knowledge of the case and was not helping the defense.

In a memorandum of decision, Judge Fasano denied the defendant’s motion to dismiss counsel. The court recognized the defendant’s displeasure with Conroy, but noted that “[the defendant] has not provided the court with any legitimate basis or specific reason to grant his motion . . . other than general comments regarding his view of the representation to this point.” The court noted Conroy’s trial experience, his efforts to that point in the proceedings and concluded: “A change of counsel at this point would be a disservice to the defendant and is simply uncalled for under the circumstances here.”

On May 12, 2000, the parties appeared before Judge Hartmere to conduct jury selection. Conroy informed the court that he had received a notice from the statewide grievance committee that the defendant had filed a complaint against him. Conroy indicated that despite the complaint, he did not know of a reason to discontinue his representation of the defendant. The court responded to that representation by informing the defendant that Conroy was a capable and experienced trial attorney. The court further informed the defendant that the case now was in the trial phase and that the court would not countenance any delay in the proceedings.

The defendant responded to the court’s remarks by indicating that he was displeased that Conroy had waived the defendant’s right to a probable cause hearing. Despite the fact that on March 30, 1999, before Judge Fasano, the defendant waived his right to a probable cause hearing, he stated on May 12, 2000, that he did not want to do so. The court reminded the defendant that the decision to waive the hearing was a common and tactical legal decision made by Conroy on the defendant’s behalf. The court explained that the defendant had agreed with that decision at the time that it was made and that the court would not revisit the issue. The defendant argued that he did not feel comfortable with Conroy’s representation and that he had the right to be represented “the way I want to be represented.” The court thereafter stated: “Mr. Conroy has been appointed a special public defender for you. You don’t get to choose your attorney in terms of special public defenders. Mr. Conroy says there is no conflict. I will accept his representation . . . that he can represent you ably, and he is a very competent trial attorney, which I’ve said. So, we are going to continue.”

On May 16, 2000, Conroy informed the court that the defendant again wanted personally to address it to convey his displeasure with the manner in which Conroy had been participating in the jury selection process. The defendant told the court that Conroy did not want his assistance and that he was not communicating with him. He also told the court that he had been trying to retain private counsel, but that it was costly to do so. The court told the defendant: “You’re not in the process of getting a lawyer; you have a lawyer, and you’re on trial.” The court informed the defendant that Conroy had been asking legally appropriate questions during the voir dire process and that the court did not understand the defendant’s complaint. The court stated: “I don’t know what in the world you’re talking about . . . .” The defendant stated: “I’m seeing it from a different angle. It’s my life, and I feel I’m not getting the representation that I need . . . .” The court reiterated that Conroy had been performing in a satisfactory manner during the jury selection process and that it would proceed with the trial.

The defendant now claims that Judge Fasano improperly denied his written motion to dismiss counsel and that Judge Hartmere improperly denied his oral requests to dismiss counsel. We begin our analysis of the defendant’s claims by setting forth the general standards on which to review them.

“Our state and federal constitutions guarantee a criminal defendant the right to assistance of counsel. U.S. Const., amend. VI; Conn. Const., art. I, § 8.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996). “The United States Supreme Court has definitively held that due process requires that the accused have the assistance of counsel for his defense. . . . Argersinger v. Hamlin, 407 U.S. 25, 28, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. . . . Id., 31.” (Internal quotation marks omitted.) State v. Cohens, 62 Conn. App. 345, 353, 773 A.2d 363, cert. denied, 256 Conn. 918, 774 A.2d 139 (2001). “This state has had a long history of recognizing the significance of the right to counsel, even before that right attained federal constitutional importance.” State v. Stoddard, 206 Conn. 157, 164, 537 A.2d 446 (1988).

“The standard when reviewing a denial of a request for alternate counsel ... is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request. . . . Practice Book § 3-10 requires that a court find good cause to grant a motion to withdraw. Our Supreme Court has held that to work a delay by a last minute discharge of counsel there must exist exceptional circumstances. ... We must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve or in the middle of trial.” (Citations omitted; internal quotation marks omitted.) State v. Marsala, 59 Conn. App. 135, 144, 755 A.2d 965, cert. denied, 254 Conn. 948, 762 A.2d 905 (2000).

“While a criminal defendant’s right to be represented by counsel implies a degree of freedom to be represented by counsel of [the] defendant’s choice . . . this guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel on the eve of trial.” (Internal quotation marks omitted.) State v. Rosado, 52 Conn. App. 408, 429, 726 A.2d 1177 (1999). Although the court has “ ‘a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel’ ”; State v. Marsala, supra, 59 Conn. App. 144; the extent of such inquiry lies within the court’s sound exercise of discretion. After it has given the defendant an adequate opportunity to inform it of his or her complaints, the court has broad discretion in determining whether circumstances warrant the appointment of new counsel or the dismissal of the defendant’s existing counsel. See State v. Webb, supra, 238 Conn. 423-24.

As a preliminary matter, we observe that the defendant’s claim concerns rulings from two different trial courts at different phases of the proceeding. We shall examine each of the rulings separately to determine whether either court or both abused its discretion in denying the defendant’s requests.

On the basis of our review of the record, we conclude that Judge Fasano did not abuse his discretion in denying the defendant’s written request to dismiss Conroy. The written request itself is nonspecific and actually was countered by Conroy’s representations on the record at the hearing on the motion. No legitimate basis was proffered, and the court properly concluded that no factual basis existed to dismiss counsel. After affording the defendant a hearing at which to present specific claims of inadequate legal representation, the defendant failed to demonstrate that circumstances warranted the appointment of alternate counsel. We conclude, as did Judge Fasano, that the defendant set forth only general comments reflecting his dissatisfaction with Conroy.

The state argues, perhaps correctly, that we are unable to review Judge Hartmere’s action because the defendant never actually requested that he dismiss Conroy. Nonetheless, given the substance of the defendant’s lengthy colloquies with Judge Hartmere, and his responses thereto, we see no harm in reviewing the defendant’s discussions with Judge Hartmere as a request to dismiss Conroy. Even when we view the defendant’s complaints in that light, we conclude that Judge Hartmere did not abuse his discretion in denying the defendant’s request and proceeding with the trial.

Judge Hartmere permitted the defendant to speak in support of his complaints and, as the record reflects, the defendant addressed the court at length with his concerns. Judge Hartmere made an adequate inquiry into the matter. The record reveals that the defendant’s general complaints against Conroy did not rise to the level of “exceptional circumstances” that would have warranted a change of counsel at the jury selection phase of the trial. We have stated that “simply mouthing the words ‘ineffective assistance’ of counsel is not sufficient to establish [that counsel’s representation is deficient].” State v. Patavino, 51 Conn. App. 604, 608, 724 A.2d 514, cert. denied, 249 Conn. 919, 733 A.2d 236 (1999). The defendant’s representations that he perceived a breakdown in communications with Conroy, that he did not feel “comfortable” with Conroy or that he did not “feel” that he was being properly represented did not create even the semblance of a factual record to support a finding of good cause or exceptional circumstances to warrant a change in counsel.

We conclude that both rulings of the trial court reflected a proper exercise of discretion.

II

The defendant next claims that prosecutorial misconduct deprived him of a fair trial. Specifically, he claims that the prosecutor improperly (1) vouched for the credibility of a witness, (2) suggested that a witness had reason to fear for his safety, (3) assailed the defendant’s character during the cross-examination of one of the defendant’s witnesses by suggesting that the witness was testifying because he feared the defendant and later, during closing argument, misstated that witness’ testimony, (4) implied that the jury could acquit the defendant only if it found that a state’s witness had committed perjury, (5) disparaged the defendant’s theory of defense, (6) appealed to the passions of the jury when he urged it to do “justice” and by asking it to be “justice,” (7) argued that it was the jury’s “duty” to convict the defendant and (8) misstated the testimony of one of the state’s key witnesses.

The defendant concedes that at trial, he did not object to any of the allegedly improper comments that he challenges on appeal. He seeks review of his claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review all but one of the defendant’s claims because the record is adequate to do so, and an allegation of prosecutorial misconduct in violation of a fundamental right is of constitutional magnitude. State v. Thompson, 69 Conn. App. 299, 303, 797 A.2d 539 (2002). We conclude, however, that the challenged comments did not deprive the defendant of a fair trial and, therefore, that those claims fail under Golding's third prong.

All but one of the defendant’s claims involve comments made by the prosecutor during closing argument. “Prosecutorial misconduct can occur in the course of closing argument. . . . Our standard of review of a claim of prosecutorial misconduct that allegedly results in an unfair trial is well established. [T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . Moreover, [w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . .

“In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. . . . In determining whether prosecutorial misconduct 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 misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 266-67, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). With those principles in mind, we review the defendant’s various claims of prosecutorial impropriety.

A

The defendant first claims that the prosecutor, on four separate occasions during the course of his rebuttal closing argument, commented on the credibility of Henry Frazier, an eyewitness to the shooting.

The prosecutor made the following statements: “ [Defense counsel] wants you to believe that Mr. Frazier got on the [witness] stand and lied to you because that’s the only circumstance under which that isn’t what happened. He lied. And you saw that man, you know about his background, you know what he has done, you watched him testify, and there is nobody on this jury, I submit, that thinks that that man lied to you. ... I don’t believe for a minute that he came in here, sat on that stand and lied. . . .

“And, you know, he did describe the person. . . . The only discrepancy lies maybe in the hundred sixty-five pounds, not a hundred fifty-five. . . . Well, what does he weigh? What do I weigh? Because if all twelve of the jurors deliberating maybe took a guess at his weight, it is not easy, particularly wearing clothes. And, of course . . . we don’t know what he weighed at the time of the crime. But it sounds to me like a pretty decent description of somebody. Not a bad description. The weight may or may not have been off. I can’t tell you because I don’t happen to be particularly good at weight. I know other than that what you know is that Mr. Frazier is a very cautious, careful man, and I think you will conclude a very honest man who was not going to come in here and make a mistake. If he hadn’t recognized the man in the courtroom, I believe he would have told you: I don’t know whether that is the man or not.” (Emphasis added.)

It is improper for a prosecutor to express his or her own opinion, either directly or indirectly, as to the credibility of witnesses. State v. Hammond, 221 Conn. 264, 289, 604 A.2d 793 (1992); State v. Williams, 204 Conn. 523, 541, 529 A.2d 653 (1987). The prosecutor’s comment, “I don’t believe for a minute that he came in here, sat on that stand and lied,” was improper. The prosecutor not only vouched for the witness’ credibility, but he expressed his personal view of the witness’ credibility. That impropriety by the prosecutor was not, however, pervasive. Additionally, the context of the statement must be considered in assessing whether the statement deprived the defendant of a fair trial.

Although the prosecutor’s statement facially was improper, we note that the prosecutor prefaced his closing argument by reminding the jury that it was the finder of fact and that his opinion of the facts was not evidence. Specifically, the prosecutor told the jurors that he wanted them to preface each of his remarks, in their minds, with the phrases “I suggest to you” or “this is what the evidence shows.”

Further, the court’s instructions clearly and accurately set forth the jury’s function as fact finder. After viewing the challenged remarks in their context and considering the fact that they occurred only during rebuttal argument, we are persuaded that any potential harm occasioned by them was assuaged by the court’s instructions to the jury to determine for itself the credibility of the witnesses and not to consider as facts any arguments or statements made by the attorneys. See State v. Dudley, 68 Conn. App. 405, 415-16, 791 A.2d 661, cert. denied, 260 Conn. 916, 797 A.2d 515 (2002).

B

The defendant next claims that “[t]he prosecutor reprehensively assailed the defendant’s character by inappropriately suggesting that Frazier had reason to fear for his safety.”

During his rebuttal argument, the prosecutor argued: “And, anyhow, then you have Mr. Frazier, and, fortunately, you get to decide who is a good witness and who isn’t, because I’d like you to imagine for a minute a better witness than a citizen who last lived on that block for a long time, who cares about his neighbors on that block, who has worked on the same job twenty-two years. He’s fifty-six years old. He comes in here and he has the courage, knowing exactly what happened on that comer, to come in here and say I know who I saw and it’s that man over there.” The defendant argues that the prosecutor appealed to the passions and emotions of the jury, and that he suggested facts that were not in evidence, namely, that Frazier had reason to fear for his safety by testifying.

The prosecutor has a duty to confine his or her arguments to the evidence presented at trial and should avoid inviting jurors to decide the case before them based on their emotions. See State v. Williams, supra, 204 Conn. 537-38.

We do not view the prosecutor’s comment as suggesting that the defendant had given Frazier any specific reason to fear for his safety. The prosecutor’s characterization of Frazier as having the courage to testify in a murder trial, although superfluous, was not likely to have been viewed by the jury as anything more than an obvious attempt to bolster the weight of Frazier’s testimony. Frazier had testified in a murder trial; whether the prosecutor believed that such action was courageous likely carried little or no weight in the jury’s deliberations. The remark was isolated and did not, in any way, hint at criminal activity outside of the record. In fact, the prosecutor did not even state that Frazier actually feared the defendant.

Furthermore, the challenged remark came in direct response to the personal observation of the defendant’s counsel during his closing argument that “Frazier isn’t a very good witness.” Viewed in its context, as a rebuttal to the defendant’s critique of Frazier’s testimony, we cannot conclude that the jury likely took from the prosecutor’s remark any insinuation that the defendant had threatened Frazier or had, in any other manner, intimidated him.

C

The defendant next claims that the prosecutor improperly (1) suggested that a defense witness testified out of fear that the defendant would harm his sisters and (2) misstated the witness’ testimony in that regard during closing argument.

The record discloses the following facts. The state called Kimpson to the witness stand during its case-in-chief. Kimpson testified as to how he sustained a gunshot wound during the incident. He also identified the defendant as the shooter. The defendant called Jake Walker to testify during the defense case-in-chief. The defendant’s counsel showed Walker a photograph of Kimpson. Walker testified that he recognized the man in the photograph as George Melville. Walker also testified that his mother’s family name was Kimpson and that, to his knowledge, only his two sisters used the name Kimpson. Walker further stated that the man in the photograph was not related to him in any way. The defendant’s counsel commented on Walker’s testimony during closing argument. In essence, he argued that the jury should disbelieve Kimpson’s testimony because he had lied about his real name.

When the prosecutor cross-examined Walker, he asked him, essentially, why he was testifying. He asked Walker several times whether he had testified out of a concern for his sisters. He specifically inquired: “You know that man is not related to you, but the reason you want to make sure who is out here in public is that you want to be sure that nobody thinks that what he said or did in court . . . comes back to your sisters, right?” Walker testified: “I have no reason to be worried because I don’t know anything that’s going on. The only thing I know, that man is not related to me.” Despite the prosecutor’s further questioning into the reasons behind Walker’s testimony, Walker testified: “We are not related, so there is no reason for anything.”

During his closing argument, the prosecutor commented on Walker’s testimony. He argued: “George Kimpson isn’t a Kimpson. Well, folks, who told you that? Some guy who hides his motivation until forced to admit that he had already admitted it once. And I submit to you that the only witness you saw in this case was Jake Walker, who said, well, oh, I know I just denied that, but, yeah, in fact, that is my motive. The only witness in this whole case who says, oh, yes, what I told you a few minutes ago isn’t the truth, because he denied, at least twice when I asked him, that his sisters were being connected to the person who identified the murderer until I reminded him that he had spoken to the inspectors that morning, then he said, oh, yeah, I said that. That’s the sign of a witness who is not telling the truth, and you know what his motivation is.”

Insofar as the defendant argues that the prosecutor’s cross-examination itself was improper, the claim has no merit. The defendant argues that the questioning was improper because he does not believe that the prosecutor possessed a good faith basis upon which to so inquire. We note, however, that the defendant failed to make a timely objection to the prosecutor’s questions when they were asked. If he had done so, the court could have asked the prosecutor to set forth the basis for that line of questioning. If it found that a good faith basis did not exist, the court could have issued an immediate curative instruction to the jury to disregard the line of questioning. The other necessary consequence of the defendant’s failure to object at trial is that we are unable to determine whether the prosecutor possessed a good faith basis for the inquiry; the record is inadequate. In its brief, the state argues that such a good faith basis existed because just prior to taking the witness stand, Walker had expressed to an inspector fear for his sisters’ safety. Accordingly, the record is not adequate to review that aspect of the defendant’s unpreserved claim. We also find no merit to the defendant’s argument that the prosecutor’s inquiry was inappropriate on its face simply because he asked Walker several times to admit the reasons behind his testimony and was, on several occasions, met with negative responses. Having reviewed the questioning, we do not conclude that the prosecutor overstepped the bounds of legitimate cross-examination.

The second aspect of the defendant’s claim is that during closing argument, the prosecutor misstated Walker’s testimony. Specifically, the defendant argues that the prosecutor “misstated the outcome of his [cross-examination], actually suggesting that Walker had, in fact, admitted that he was testifying out of fear.” The defendant posits that the prosecutor, unable to elicit from Walker that he did fear for the safety of his sisters, fabricated the fact that Walker somehow had changed his testimony and actually had admitted that the foregoing was his reason for testifying.

“[I]n fulfilling his duties, the prosecutor must confine the arguments to the evidence in the record.” (Internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 263, 780 A.2d 53 (2001). The prosecutor’s recitation of Walker’s testimony was clearly mistaken. The record does not reflect that Walker admitted having told inspectors that he feared for his sisters’ safety. We conclude, however, that this misstatement did not deprive the defendant of a fair trial. The issue of Walker’s credibility was of little relevance to the jury’s assessment of the defendant’s actions on December 21, 1998. Kimpson’s identity was not an issue in the case, and Walker’s testimony, although marginally relevant in the jury’s assessment of Kimpson, did not directly relate to a central issue in the case. Furthermore, the misstatement’s seriousness is lessened by the overall strength of the state’s case. The defendant did not object to the argument at trial and did not afford the court an opportunity to issue a curative instruction. Nevertheless, we also recognize that in its charge to the jury, the court reminded the jury that its recollection of the evidence and testimony, rather than the arguments of trial counsel, was controlling. We presume that the jury followed the court’s charge. See State v. Dudley, supra, 68 Conn. App. 412.

D

The defendant next claims that the prosecutor improperly argued that to acquit the defendant, the jury necessarily had to conclude that Frazier had committed perjury at trial.

During his closing argument, the defendant’s counsel devoted a fair amount of time attempting to discredit Frazier’s account of the shooting and his subsequent identification of the defendant. The defendant’s counsel opined that Frazier was “not a very good witness.” He argued that Frazier was not able to identify the people that he saw immediately after the shooting, but that he nonetheless identified the defendant months after the shooting. He also stated that it was reasonable to conclude that Frazier had identified the defendant from a photographic array because the defendant’s photograph was different from the other photographs in the array.

During his rebuttal argument, the prosecutor argued: “[The defendant’s counsel] wants you to believe that Mr. Frazier got on the [witness] stand and lied to you because that’s the only circumstance under which that isn’t what happened. He lied. And you saw that man, you know about his background, you know what he has done, you watched him testify, and there is nobody on this jury, I submit, that thinks that that man lied to you.”

The defendant correctly points out that this court has admonished prosecutors “to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” State v. Williams, 41 Conn. App. 180, 184, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996). The defendant’s claim, however, falls far short of demonstrating that the prosecutor expressly or implicitly argued that the defendant was innocent only if Frazier had lied. In other words, the prosecutor’s argument did not create such an impermissible set of choices for the jury. For example, the prosecutor did not suggest that the jury was prevented from acquitting the defendant if it found that Frazier was simply mistaken as to his pretrial or in-court identifications. Accordingly, the defendant has again failed to demonstrate that a constitutional violation clearly exists.

E

The defendant next claims that the prosecutor improperly disparaged the defendant’s theory of defense.

In support of his claim, the defendant refers to two separate comments made by the prosecutor during rebuttal argument. The prosecutor made the first comment in response to an attempt by the defendant’s counsel to discredit Kimpson’s testimony on the basis of the fact that Kimpson may not have been using his real name. During closing argument, defense counsel stated that “if you are lying about something, maybe you are lying about everything. You can say, from the fair inference that you don’t even know if the name is Melville or Kimpson, is the [identification] Kimpson made reliable?”

The prosecutor responded: “And even if you don’t [know the motive behind Walker’s testimony] — even if we assume, which I think you can’t, based on this evidence, that George Kimpson isn’t George Kimpson, so what? So what? Tell me why that is important to this case. What does that have to do with him identifying Benjamin Jenkins — what his name is? He could be Oliver Montgomery, and if he’s the guy who shot this man out on the street, who cares? Who cares? It’s a part of diverting you from the facts because the facts require you to convict his client. And, of course, there is no suggestion as to why he would claim to be a Kimpson if he wasn’t one. I mean, the Kimpsons, there is no evidence like, the Kimpsons are millionaires or something. It’s totally irrelevant. But if we take you to the irrelevant, you forget how everything fits together, and I don’t think that you are that dumb.”

The second of the prosecutor’s challenged remarks was in response to the argument of the defendant’s counsel concerning the type of weapon used in the shooting and whether or not the person who fired it possessed the requisite intent to be convicted of the crimes of assault in the first degree and murder. The defendant’s counsel asked the jurors to recall the testimony of the firearms expert who had testified that the firearm used in the shooting was difficult to aim. The defendant’s counsel also argued: “Remember [what] the forensic evidence here is, the person who died, Marcus Warner, he was only — there was only one bullet. There weren’t five or six bullets all laid in him or all striking one individual. It was one bullet that hit him. And there was a spray. What does that mean? It says something about intent, I think, if the gun is — maybe what the person’s intent was, firing in one direction and he doesn’t know what the direction is and it’s an unlucky shot that hit Marcus Warner.

“And if there is no intent to kill, if there is just an intent to cause mayhem or fire the gun, not specifically aimed to kill someone, then he’s not guilty; then you can’t enter a verdict of guilty on the charge of murder because it’s a specific intent crime. I think the firearms expert’s testimony was significant because he testified about how difficult it is to — for the bullets to go exactly where you’re trying to aim because there is a kick, there is a tendency of the hand to move.”

The prosecutor, during his rebuttal argument, responded to that line of argument as follows: “I don’t know whether I even have to address the jerking gun idea, but what I told you in the first instance is what makes sense to an intelligent, thinking human being. Somebody doesn’t go there with a gun full of at least twenty-two bullets, empty it on a group of five or six people and hit three of them, and he didn’t mean to do it. What he’s telling you is, hey, I didn’t do this, but if I did, I didn’t mean it. Particularly when they are running up Irving Street and when they are doing that, they are trying to load up another clip. They come there with twenty-two shots and another clip.”

The defendant argues that the prosecutor belittled his theory of defense by improperly suggesting that the defense would appeal only to unintelligent jurors. We are mindful that courts should afford counsel generous latitude in the heat of argument and that the limits of legitimate argument are not delineated precisely by rule and line. State v. Whipper, supra, 258 Conn. 252. We conclude that when read in context, the challenged remarks fell within the bounds of proper commentary on the defendant’s theory of defense. See State v. Perry, 58 Conn. App. 65, 71-72, 751 A.2d 843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000). Accordingly, the defendant has failed to demonstrate that the comments were improper or that they deprived him of a fair trial.

F

The defendant next claims that the prosecutor improperly appealed to the emotions and passions of the jury when he argued that its job was to do “justice” for the victims of the shooting and that the jury itself represented “justice.”

As he began his closing argument, the prosecutor stated: “Your job here as jurors in the next day or so is to do justice for Marcus Warner and for the other two victims of the senseless violence.” During his rebuttal argument, he stated: “Where is justice in our society? Maybe when you heard that the police arrested this defendant you thought they were responsible for justice, and maybe when you heard that the information filed against him, which is in evidence, had my name on it, you thought maybe the prosecutor is responsible for justice, and as you watched Judge Hartmere presiding over this case, even managing the evidence, you thought that maybe the judge is responsible for justice, but none of that is entirely true. In the United States of America you, the jury, the citizens, are justice, and in this trial you are justice, and the decision you make will be the only opportunity to bring justice in this case to Marcus Warner and the other victims, at least on this earth, and it’s your sworn duty to look only to the totality of the evidence to do so without agendas or outside distractions, and I submit to you, you’re to bring back a firm and resounding verdict of guilty on all three of these charges.”

“An appeal to emotions, passions, or prejudices improperly diverts the jury’s attention away from the facts and makes it more difficult for it to decide the case on the evidence in the record.” State v. Alexander, 254 Conn. 290, 307, 755 A.2d 868 (2000).

We do not view the challenged remarks as being improper. Having reviewed the prosecutor’s entire argument, we do not conclude that it invited the jury to abdicate its role of deciding the case based on the evidence adduced at trial. Likewise, we do not view his rhetoric as an invitation for the jurors to decide the case based on abstract notions of justice. Contrary to the defendant’s argument, State v. Mills, 57 Conn. App. 202, 207, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000), is distinguishable. The context of the challenged comment concerning “justice” in Mills cast its use in a far different light. In Mills, we concluded that “[t]he prosecutor’s repeated appeals to the jury that justice required a conviction coupled with the repeated vitriolic references to the defendant could reasonably have been a factor in the jury’s decision to convict. His opinion that society would be in trouble if the defendant were not convicted might also have played a part in the jury’s decision to convict because of a fear that the defendant might strike again if acquitted.” Id., 208-209. The comments in the present case did not infringe on the defendant’s right to a fair trial.

G

The defendant also claims that the prosecutor improperly argued that it was the jury’s “duty” to convict the defendant.

The record reflects that the prosecutor carefully summarized the evidence against the defendant, including the eyewitness and other testimony that the state presented at trial. After he did so, he argued: “You know that he’s guilty beyond a reasonable doubt, and your duty — which is, guilty in a homicide case, in a murder case.”

Our review of the final summation leads us to conclude that when read in context, the prosecutor’s use of the term “duty” was not improper. The prosecutor’s remarks made it clear that the “duty” to convict arose only if the jury had concluded that the evidence, as presented by the state, proved beyond a reasonable doubt the defendant’s guilt. That was not improper.

H

The defendant’s last claim of prosecutorial misconduct is that the prosecutor misstated Frazier’s testimony.

Frazier testified that after the shooting, he observed the defendant and another man running along Irving Street. He stated that one was carrying a weapon and that the other was “doing something with his coat.” During his rebuttal argument, the prosecutor argued that the defendant possessed the intent required for the commission of the crimes. He stated: “Particularly when they are running up Irving Street and when they are doing that, they are trying to load up another clip. They came there with twenty-two shots and another clip to load.” The defendant argues that the prosecutor’s reference to loading another clip did not reflect the testimony adduced at trial and therefore was improper.

We first observe that the prosecutor’s argument likely reflected a reasonable inference to be drawn from the evidence adduced at trial. Frazier saw the defendant carrying a firearm and leaving the shooting scene. According to Frazier, the man running next to the defendant was “doing something with his coat.” Nonetheless, even if that inference was not reasonable, we do not view the misstatement as so severe as to conclude that it deprived the defendant of a fair trial.

After considering the strength of the evidence presented at trial, we conclude that it is highly unlikely that this remark had any effect on the jury’s deliberations. Not every misstatement of evidence made during the heat of argument deprives the defendant of a fair trial. The prosecutor’s remark was isolated and essentially concerned the defendant’s conduct after he had allegedly committed the crimes with which he stood charged. Whether the defendant or his accomplice were attempting to reload a firearm was not as relevant to the issues before the jury as were the facts that the defendant was fleeing a shooting scene while carrying a firearm. Likewise, we note once again that the court properly instructed the jury that its recollection of the evidence controlled, not the representations about the evidence embedded in the arguments of counsel.

I

Having reviewed every claim of prosecutorial misconduct, we reiterate that to prove that prosecutorial misconduct deprived him of a fair trial, the defendant must demonstrate substantial prejudice. State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990); State v. Northrop, 213 Conn. 405, 421, 568 A.2d 439 (1990). To demonstrate that, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). “The ultimate question is [even if the conduct complained of is found to have been improper], whether the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 723, 793 A.2d 226 (2002).

Even where we have noted that the prosecutor’s comments were improper, we conclude that when the comments are considered either individually or collectively, they did not “so [infect] the trial with unfairness as to make the conviction a denial of due process.” State v. Alexander, supra, 254 Conn. 303. All of the challenged remarks were made during closing argument; they were not a pervasive quality of the trial. The defendant did not object to any of the comments at trial, leaving us to assume that he did not view them at that time as so prejudicial that they jeopardized his right to a fair trial. See State v. Denson, 67 Conn. App. 803, 815, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002). Contrary to the defendant’s point of view, we do not view any of the challenged remarks as particularly egregious when viewed in their proper context, and the remarks did not relate to central issues before the jury. We note the strength of the state’s case and further note that to the extent that the prosecutor misstated the evidence or injected his opinions as to the evidence, the court properly instructed the jury that its recollection of the evidence controlled.

Accordingly, we conclude that the defendant cannot prevail on his unpreserved claims of prosecutorial misconduct because, even where such misconduct existed, he has failed to show that it deprived him of a fair trial. He has not demonstrated that a constitutional violation clearly exists, and thus his claim fails under Golding’s third prong. See footnote 9.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-8 provides in relevant part: “(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.
      “(b) A person who sells, delivers or provides any firearm ... to another person to engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such iqjury to such person or to a third person by means of the discharge of a firearm.”

       Police investigators established that the shooter used an assault weapon in the attack. They recovered twenty-two spent nine millimeter cartridge casings, along with several bullets and bullet fragments, from the scene. Investigators also found bullets lodged in trees, cars and in nearby homes.
      Alter the shooting, George Kimpson positively identified the defendant, with whom he was familiar prior to the shooting, as the shooter. Another eyewitness to the shooting, Henry Frazier, testified that he saw the defendant carrying a firearm and fleeing the shooting scene.

       In August, 1998, the defendant leased a maroon Lincoln Continental from a party in New York. To save on the cost of the vehicle’s insurance, Amy Miller, an acquaintance of the defendant, obtained a Connecticut vehicle registration for the vehicle in her name. Miller did not use the vehicle.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall epjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      The sixth amendment to the United States constitution is applicable to the states through the due process clause of the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 342-44, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (applying sixth amendment right to counsel).

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him . . . and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. . .

       The defendant concedes that his action in filing a grievance against Conroy was not, in itself, cause for Conroy, who represented that the action presented him with no reason to withdraw, to withdraw automatically. See State v. Vega, 259 Conn. 374, 388, 788 A.2d 1221 (2002) (filing of grievance in and of itself insufficient to establish per se violation of defendant’s sixth amendment rights).

       Pursuant to State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; internal quotation marks omitted.) States. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001).

       We decline to review the defendant’s claim of prosecutorial misconduct in part II C insofar as it concerns improper cross-examination because the record is not adequate to review that claim.

       The prosecutor argued: “Your job here as jurors in the next day or so is to do justice for Marcus Warner and for the other two victims of this senseless violence. And during the course of my argument, I am going to have to talk about the facts, but you know that your job is to find the facts, not mine. So, if I say anything that disagrees with what you collectively believe are the facts of this case, obviously, you are going to listen to what you guys feel the facts are. But I really can’t argue unless I say 1 suggest to you’ that this is what the evidence shows. And I want you to take that little phrase that I just used and include it in front of everything that I say, because, my opinions, they aren’t evidence, and it’s not appropriate for me to tell you this is what happened because that’s your job. So, each time I say something happened, I want you to put that phrase in front of it, save us a little time and say, T suggest to you’ that you are going to determine that the evidence shows you that this happens, all right. So, fit that in because I am not going to try to tell you how to do your job. I am trying to give you some ideas about how to approach this case.”

       The prosecutor in Mills also argued: “It’s murder, murder based on an unprovoked attack of a man sitting at a table, minding his business. If we allow this to happen, we are all in trouble. If — we could be in somebody’s house and somebody — minding our business, somebody can come in and stab . . . .” (Internal quotation marks omitted.) State v. Mills, supra, 57 Conn. App. 207 n.8.


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. KENNETH RISER
    (AC 20914)
    Foti, Dranginis and McDonald, Js.
    Argued March 19
    officially released June 25, 2002

      William B. Westcott, special public defender, for the appellant (defendant).

      Paul J. Narducci, assistant state’s attorney, with whom, on the brief, -was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Kenneth Riser, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence the address that he had provided to the department of correction on a theory of consciousness of guilt and (2) held that the state presented sufficient evidence to prove beyond a reasonable doubt that he possessed the narcotics. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At 3:30 p.m. on April 13, 1999, members of the Norwich police department and the Connecticut statewide narcotics task force executed a search warrant at the Mohegan Village Apartments, 90 North Street, apartment 4k, in Norwich. The apartment was on the second floor and consisted of two bedrooms, a bathroom, living room and kitchen.

Upon entering the apartment, the police found Allen Page sleeping in one of the bedrooms. The department of mental health had helped Page and Tom Edwards, who was not present, find the apartment in which they lived. Page had been declared disabled and had a conservator. At trial, Page testified that the defendant had been staying at his apartment for about one month prior to the search. In Page’s bedroom closet, the police seized a black duffel bag belonging to the defendant, containing clothing, $1532 in cash and a broken car antenna that they recognized as a “crack pipe” used to smoke cocaine. Approximately fifteen minutes into the search, the defendant entered the apartment. Later, in the living room, the police found a clear plastic bag containing fourteen individually wrapped pieces of crack cocaine underneath a stereo. The crack cocaine was packaged in a manner consistent with the sale of cocaine, in which the defendant was engaged at the apartment.

The defendant was found guilty of possession of a narcotic substance with the intent to sell by a person who is not drug-dependent, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the trial court improperly admitted evidence of the address that he had given to the department of correction on a theory of consciousness of guilt. The defendant contends that the court should not have permitted the state to introduce evidence that he gave one address to the department of correction and another address to the Norwich police at the time of his arrest because there was no evidence that he gave a different address to the Norwich police. In addition to seeking review under our evidentiary error standard, the defendant also seeks review under the plain error doctrine.

The following evidence was presented at trial. Upon being arrested, the defendant was transported to the Norwich police station. As part of the “booking,” or intake process, Detective John A. John completed a “long form,” which contained personal information that he received from the defendant, including his address. The form that John completed after the defendant’s arrest was introduced into evidence as a business record through John, without objection by the defendant. That form listed the defendant’s address as “352 Boswell Avenue, apartment #3, Norwich.”

After a hearing, the court permitted the state to introduce evidence that the defendant provided John with a nonexistent address and that he gave a different address to the department of correction. The state then called Officer Paul Onofrio, the booking officer at Corrigan-Radgowski Correctional Institution in Uncasville. As a booking officer, it was Onofrio’s responsibility to gather a prisoner’s background information upon intake and then to compare that information with the information that the prisoner provides upon release to ensure that the correct individual is released. Onofrio testified that the defendant gave “438A Lexington in Brooklyn, New York,” as his address when he came to the facility. Following Onofrio’s testimony, the court instructed the jury that Onofrio’s testimony was to be considered only to show consciousness of guilt.

The state also called Officer William Nash of the Norwich police department. Nash testified that he attempted to locate 352 Boswell Avenue, apartment 3, the address that the defendant had given to John. Nash further testified that the address did not exist.

A

“Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Eveiy reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. O'Neil, 67 Conn. App. 827, 831, 789 A.2d 531 (2002).

“A trial court may admit [ejvidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or & false statement, [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . The trial court, however, should admit only that evidence where its probative value outweighs its prejudicial effect. ... In seeking to introduce evidence of a defendant’s consciousness of guilt, [i]t is relevant to show the conduct of an accused ... as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Middlebrook, 51 Conn. App. 711, 720, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999). “[M]isstatements of an accused, which a jury could reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime or were influenced by the commission of the criminal act, are admissible as evidence reflecting a consciousness of guilt.” (Internal quotation marks omitted.) State v. Moody, 214 Conn. 616, 626, 573 A.2d 716 (1990).

“[A] 11 that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist that tend to rebut an inference of guilt does not render evidence of concealment inadmissible but simply constitutes a factor for the jury’s consideration.” State v. Williams, 27 Conn. App. 654, 663-64, 610 A.2d 672, cert. denied, 223 Conn. 914, 614 A.2d 829 (1992). “A misstatement of a suspect to police officers is admissible against him in a later prosecution because it permits the jury to draw the reasonable inference that the misstatement was made in an attempt to avoid detection for the crime.” State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982). “The assumption of a false name and address obviously constitutes consciousness of guilt evidence.” State v. Bell, 188 Conn. 406, 412, 450 A.2d 356 (1982).

The defendant argues that there was no evidence before the jury indicating that he had given John the 352 Boswell Avenue address. He claims that the only evidence before the jury that listed his address as 352 Boswell Avenue in Norwich was the “long form” prepared by John. Consequently, he argues, there was no basis for a consciousness of guilt instruction because there was no attempt by the defendant to conceal his involvement in any criminal activity. It is the defendant’s claim that “[a] business record [the long form prepared by John] maintained by apublic agency cannot fairly be deemed conduct or a statement of the accused.” We reject this argument.

John testified that the “long form” is prepared in the ordinary course of business, that the form was prepared in the ordinary course of police business and that the form was prepared “at or about the time” he gathered the information. The jury also heard that John had received the information, including the address, on the “long form” from the defendant in response to John’s questions. Further, the defendant did not object when the form was introduced into evidence. As a result, the jury had before it a statement, which it could have found was given by the defendant, that he resided at “352 Boswell Avenue, apartment #3, Norwich.”

In this case, the defendant’s statement as to his address was relevant. By concealing his Mohegan Village address, it could be inferred that the defendant was seeking to conceal his involvement with the crack cocaine found there. The “long form” intake sheet constituted evidence from which the jury could have inferred a consciousness of guilt. “Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity . . . .” (Internal quotation marks omit ted.)States v. Middlebrook, supra, 51 Conn. App. 720-21. Accordingly, the trial court did not abuse its discretion in admitting the testimony of Onofrio and Nash and, subsequently, in charging the jury as to consciousness of guilt.

B

The defendant also seeks review of the court’s decision to admit the testimony of Onofrio and Nash under the plain error doctrine. “Pursuant to Practice Book § 60-5, this court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The court may in the interests of justice notice plain error . . . .” (Internal quotation marks omitted.) State v. Hair, 68 Conn. App. 695, 704-705, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002). “[T]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id., 705. As we concluded earlier in this opinion, the court did not improperly admit the testimony of Onofrio and Nash. Consequently, plain error review is not warranted in this case.

II

The defendant next claims that the trial court improperly held that the state presented sufficient evidence to prove beyond a reasonable doubt that he possessed narcotics with the intent to sell. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

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

“In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [jury] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Bell, 68 Conn. App. 660, 664-66, 792 A.2d 891, cert. denied, 260 Conn. 921, 797 A.2d 518 (2002).

“We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... 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. Jefferson, 67 Conn. App. 249, 255, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

The defendant claims that the state failed to prove beyond a reasonable doubt that he possessed the dealer’s package of crack cocaine that was found in the common area of the apartment. It is the defendant’s contention that “there was no evidence presented to link the defendant to the specific narcotics discovered in the living room other than his mere presence in the apartment at the time the narcotics were discovered.”

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

As the defendant correctly notes, “[t]o mitigate the possibility that innocent persons might be prosecuted for such possessory offenses and to assure that proof exists beyond a reasonable doubt, it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband.” State v. Brunori, 22 Conn. App. 431, 436-37, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). In this case, we conclude a sufficient factual nexus was shown to connect the defendant to the crack cocaine.

The jury heard the testimony of Detective Christopher Ladd, who had seized a black duffel bag from Page’s bedroom closet containing clothing, $1532 and a broken car- antenna. Ladd testified that it was “common practice for people who smoke crack to snap off a car antenna, break off a portion and use that to smoke crack. ” When questioned at the police station, the defendant admitted to the police that the black duffel bag belonged to him.

The jury had before it the “long form” completed by John. In addition to containing a false address, the defendant stated on the form that he was unemployed. Although unemployed, the defendant admitted to ownership of the more that $1500 that was found in the apartment.

The state also presented the testimony of Page. Page, who knew the defendant by the name “Steve Brooks,” testified that he did not know the defendant until the defendant appeared at his apartment unannounced and asked to stay there. The defendant, when arrested, was found in possession of a fishing license under the name “Steve Brooks.” Page testified that, in exchange for being permitted to stay at the apartment, the defendant provided Page with two pieces of crack cocaine “almost every day.” Page further testified that during the period of time that the defendant was staying at the apartment, numerous individuals came to visit the defendant for short periods of time. When the individuals arrived, they would go into Page’s bedroom with the defendant, where the duffel bag containing the cash and the converted crack pipe was located. In addition, Page testified that he had seen the defendant in the vicinity of the stereo, where the police found the packaged crack cocaine. Finally, Page denied that the crack cocaine belonged to him or that he was selling the crack cocaine that was found in the apartment.

The jury also heard the testimony of Sergeant Jeffrey Hotsky, the commanding officer for the eastern division of the statewide narcotics task force. Hotsky testified that the manner in which the crack cocaine found underneath the stereo was packaged was “consistent with that of drug trafficking, with sales.” Hotsky further testified that typically, there are two places where drug dealing occurs: Street level dealing and residential apartment dealing. In describing how a residential apartment drug dealing operation is set up, Hotsky stated: “Frequently, you will find that a drug trafficker would utilize someone else’s residence and, going along with that, they will also only stay there for short periods of time. They will be sporadic as far as their dealing out of that residence. They probably will not stay there for hours and horns. Stay, leave, come back.”

From this evidence, the jury could have concluded that the defendant moved into Page’s apartment to sell drugs and in fact did so, using the packaged narcotics found in the apartment and keeping the proceeds of the sales in his duffel bag. It could have further concluded that, as a part of his drug operation, the defendant paid for the use of Page’s apartment by giving Page crack cocaine on an almost daily basis.

“It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citation omitted; internal quotation marks omitted.) State v. Young, 56 Conn. App. 831, 835, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000). “[T]he evaluation of [a witness’] testimony and credibility are wholly within the province of the trier of fact. . . . [I]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Citation omitted; internal quotation marks omitted.) Hoffer v. Swan Lake Assn., Inc., 66 Conn. App. 858, 861, 786 A.2d 436 (2001). “The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Berger, supra, 249 Conn. 224. Construing the evidence and the reasonable inferences drawn therefrom in the light most favorable to sustaining the verdict, as we must, there was sufficient evidence to support the jury’s decision. We conclude, therefore, that the evidence was capable of supporting a conclusion that the defendant was engaged in selling the crack cocaine found in the apartment’s living room.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . sells ... to another person any narcotic substance . . . other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years .... The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended . . . .”

       The court’s instruction provided: “Ladies and gentlemen, in any criminal trial it is permissible for the state to show that the conduct or statements allegedly made by the defendant after the time of the alleged offense may fairly have been influenced by the alleged criminal act. That is, that the conduct or statements might show a consciousness of guilt. I instruct you that the testimony that you just heard from department of correction officer Onofrio as to the address given him by the defendant or allegedly given him by the defendant is being admitted here only with respect to the issue of whether or not that statement might tend to show a consciousness of guilt. You are to consider that evidence for no other purpose. And you are to consider it only with respect to the issue in this trial of whether or not you find that it tends to show a consciousness of guilt. It is up to you as the judges of the facts to decide — one second — whether or not the statement or conduct of the defendant reflects consciousness of guilt. And ultimately to consider such in your deliberations in conformity with the limited instruction I have just given you and also in conformity with the instructions that I will give you at the time this trial concludes.”
      In charging the jury on the concept of consciousness of guilt, the court stated: “In any criminal trial, it is permissible for the state to attempt to show the conduct of the defendant after the alleged offense is influenced by the criminal act. That is, that if the conduct shows a consciousness of guilt. The conduct of a person allegedly giving the police a false address when arrested may be considered in determining guilt since it may possibly show a consciousness of guilt. Such an action is a circumstance, which, when considered with all the facts, may justify an inference of — about the accused guilt.
      “Such a fact, however, even if proved, is not conclusive of guilt. It is circumstantial evidence, and you may or may not infer consciousness of guilt from it. It is to be given the weight to which you think it is entitled under all the circumstances shown.
      “Keep in mind, there can be other reasons for the alleged conduct. That such conduct does not necessarily reflect feelings of guilt and that feelings of guilt, which are sometimes present in innocent people, do not necessarily reflect actual guilt.
      “Accordingly, giving a false address to the police is not sufficient in and of itself to establish guilt. It is up to you as judges of the facts to decide whether or not, based on the totality of the circumstances, the conduct of the — the alleged conduct of the defendant reflects consciousness of guilt, assuming you first find the defendant engaged in the alleged conduct.”


author: PER CURIAM.

text:
    WALTER M. MIPS v. BECON, INC.
    (AC 21492)
    Lavery, C. J., and Dranginis and Healey, Js.
    Argued April 25
    officially released June 25, 2002

      Richard E. Hayber, for the appellant (defendant).

      Marc P. Mercier, for the appellee (plaintiff)-
   Opinion

PER CURIAM.

In this wrongful termination action, the defendant, Becon, Inc., appeals from the judgment of the trial court rendered following the denial of its motions for a directed verdict and to set aside the verdict with respect to the count of negligent misrepresentation. On appeal, the defendant claims that the trial court improperly denied its motions because insufficient evidence existed to support a finding of reliance, an element of the tort of negligent misrepresentation. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. The defendant, a manufacturing company, employed the plaintiff as a purchasing manager in April, 1993. As a purchasing manager, the plaintiff procured the necessary materials from various suppliers for the defendant’s production line. On July 17, 1997, the defendant terminated the plaintiffs employment on the ground that the plaintiffs job performance was inadequate. Specifically, the defendant found the plaintiffs performance lacking because in his dealings with a company called Mahoney Fittings, Inc., one of the defendant’s primary suppliers of fittings, the plaintiff often failed to obtain competitive bids from other suppliers.

The plaintiff subsequently filed this action against the defendant, alleging breach of the implied covenant of good faith and fair dealing, intentional and negligent infliction of emotional distress, breach of contract, intentional misrepresentation, promissory estoppel and negligent misrepresentation. With respect to the negligent misrepresentation count, the plaintiff alleged that the defendant “directed, ordered, and/or otherwise authorized” him to deal with Mahoney Fittings, Inc., as a preferred supplier and to purchase products from Mahoney Fittings, Inc., without resorting to competitive bidding. A jury trial ensued. At the conclusion of the trial, the trial court granted the defendant’s motion for a directed verdict as to counts one through six and denied the motion as to the counts alleging intentional misrepresentation, promissory estoppel and negligent misrepresentation. The jury found in favor of the plaintiff on the negligent misrepresentation claim and awarded him damages in the amount of $11,135. The defendant then moved to set aside the verdict on the ground that the plaintiff failed to prove that he had relied on any of its assertions, which the trial court denied. This appeal followed.

In essence, the defendant raises one issue on appeal, namely, that the trial court improperly denied his motions for a directed verdict and to set aside the verdict because insufficient evidence existed to support the juiy’s finding in favor of the plaintiff on the count of negligent misrepresentation. Specifically, the defendant claims that the trial court improperly denied his motions when there was insufficient evidence to support a finding that the plaintiff relied on any of its alleged assertions. We are not persuaded.

“Whether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact. . . . [Our Supreme Court] has long recognized liability for negligent misrepresentation. . . . The governing principles are set forth in ... § 552 of the Restatement Second of Torts [1977]: One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. . . . [T]he plaintiff need not prove that the representations made by the [defendant] were promissory. It is sufficient . . . that the representations contained false information.” (Citations omitted; internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn. App. 262, 273-74, 721 A.2d 1197 (1998). “There must be a justifiable reliance on the misrepresentation for a plaintiff to recover damages.” (Emphasis added.) Id., 275.

Our well settled standard of review for a motion to direct a verdict is the same as that employed for a motion to set aside a verdict. Suarez v. Sordo, 43 Conn. App. 756, 759, 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997). “Our review of the trial court’s refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Citations omitted; internal quotation marks omitted.) Sandella v. Dick Corp., 53 Conn. App. 213, 218-19, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999).

After thoroughly reviewing the record and transcripts, we conclude that the jury reasonably could have found that the plaintiff relied on the defendant’s assertions. Ample evidence exists in the record to support such a finding. We, therefore, conclude that the trial court properly denied the defendant’s motions for a directed verdict and to set aside the verdict with respect to the count of negligent misrepresentation.

The judgment is affirmed.

      The jury awarded $13,100 in economic damages to the plaintiff, but attributed 15 percent of that amount to the plaintiffs contributory negligence. Therefore, the net award was $11,135.


text:
    HENRY B. KUDLACZ v. LINDBERG HEAT TREATING COMPANY ET AL.
    (AC 22115)
    Foti, Flynn and West, Js.
    Argued May 3
    officially released June 25, 2002

      Henry B. Kudlacz, pro se, the appellant (plaintiff).

      Richard S. Bartlett, for the appellees (named defendant et al.).

      Nicone J. Gordon, for the appellees (defendant United Parcel Service et al.).
   Opinion

PER CURIAM.

The pro se plaintiff, Henry B. Kudlacz, appeals from the decision of the workers’ compensation review board (board) affirming the finding and dismissal of the plaintiffs claim by the workers’ compensation commissioner (commissioner). The plaintiff claims that there was no substantial reason to dismiss his claim. We affirm the decision of the board.

The commissioner found the following facts. The plaintiff had two employers. On May 29,1992, the plaintiff was employed by the defendant Lindberg Heat Treating Company (Lindberg) as a delivery driver. On June 3, 1992, he was employed by the defendant United Parcel Service (UPS).

On May 29, 1992, the plaintiff was making a delivery for Lindberg to one of its customers. The plaintiff backed his truck to the loading dock, which had rubber bumpers. After the truck was unloaded, the plaintiff had to remove the loading plate. To do so, he put his right foot on the dock and his left foot on the rubber bumper. As he lifted the plate, the rubber bumper gave way and, according to the plaintiff, he fell between the truck and the loading dock. The first report of injury that the plaintiff filled out indicated that he fell between the truck and the loading dock. The plaintiff testified to this effect numerous times during his deposition on June 30, 1995.

The commissioner found that it was physically impossible for a man of the plaintiffs size, standing six feet, three inches tall and weighing 215 pounds, to fall between the seven inch space between the truck and the dock. On cross-examination at the formal hearing, the plaintiff denied that he had testified previously that he had fallen between the truck and the dock. The commissioner found other instances in which the plaintiffs testimony with respect to the alleged May 29,1992 incident was contradictory.

The plaintiff did not seek medical attention until June 5,1992, when he was examined at a hospital emergency room. The emergency room records indicate that the plaintiff had fallen two days before, which would have been June 3, 1992. The records do not mention a May 29, 1992 injury. The plaintiff also received treatment at a health care center on June 8, 1995, where he sought treatment for lower back pain. According to the history taken at the center, the plaintiff first noticed the lower back pain when he was at UPS on June 5, 1995. The history does not mention the alleged fall between the loading dock and the truck.

The plaintiff testified that for three or four weeks prior to May 29, 1992, he had pain in his lower back, which he attributed to the performance of his duties at UPS. He had been employed by UPS since July, 1991, where his duties required repetitive lifting. According to the plaintiff, the pain in his lower back peaked on June 4, 1992, while he was at UPS. The pain was so severe that he had to perform his duties on his knees. At the formal hearing, the plaintiff contended that he hurt his head and neck when he fell while in Lindberg’s service on May 29,1992. He did not hurt his lower back when he fell on that date. According to him, the lower back pain is the result of the repetitive lifting he performed at UPS.

The commissioner heard contradictory evidence regarding X rays of the plaintiffs lumbosacral spine. The plaintiffs expert opined that the plaintiff had a compression fracture. The independent medical expert opined, however, that the plaintiff did not have a compression fracture. The commissioner credited the testimony of the independent expert.

On November 10, 1992, the commissioner approved a voluntary agreement entered into by the plaintiff and Lindberg. The agreement indicated that the date the plaintiff was injured was June 3, 1992, and described the injury as a compression fracture at L-2 and L-3. Although the plaintiff signed the agreement, he claims that he did not know what he was signing and that he does not know what a compression fracture is. He claims that his June 3, 1992 injury occurred while he was employed by UPS, not Lindberg. Lindberg filed a motion to open the voluntary agreement based on a mistake of fact. The commissioner granted Lindberg’s motion, vacated the voluntary agreement because it was based on a mutual mistake of fact and dismissed the plaintiffs claim. The board affirmed the decision, and the plaintiff appealed to this court.

“The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Neither the review board nor this court has the power to retry facts. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996). . . . Doe v. Stamford, 241 Conn. 692, 696-97, 699 A.2d 52 (1997).” (Internal quotation marks omitted.) Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 411, 750 A.2d 1098 (2000).

“The standard of review to be used by the board when reviewing a commissioner’s findings is set forth in Regulations of Connecticut State Agencies § 31-301-8. That section directs the board not to retry the case before it, but to determine whether evidence supports the commissioner’s finding. Whether an injury arose out of and in the course of employment is a question of fact to be determined by the commissioner. Pereira v. State, 228 Conn. 535, 544, 637 A.2d 392 (1994).” (Internal quotation marks omitted.) Noble v. Allstate Ins. Co., 67 Conn. App. 160, 163, 786 A.2d 1126 (2001).

“[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts.” (Internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526-27, 723 A.2d 1161 (1999), aff'd, 252 Conn. 261, 746 A.2d 743 (2000). “The commissioner’s conclusions are accorded the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause.” (Internal quotation marks omitted.) Id., 527.

“In workers’ compensation matters, the commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... Keenan v. Union Camp Corp., 49 Conn. App. 280, 286, 714 A.2d 60 (1998). We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . Simmons v. Bonhotel, 40 Conn. App. 278, 286, 670 A.2d 874 (1996).” (Internal quotation marks omitted.) Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 56, 782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029 (2001).

“Our role is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impress[es] him as being most credible and more weighty. . . . Accordingly, we will not disturb the commissioner’s choice as to which expert was more credible.” (Citations omitted; internal quotation marks omitted.) Noble v. Allstate Ins. Co., supra, 67 Conn. App. 165.

“As is the standard of review, the law governing eligibility for workers’ compensation is also well established. It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out o/the employment and occurred in the course of employment. There must be a conjunction of [these] two requirements ... to permit compensation. . . . The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and [circumstance] of the accident. . . .

“ [T] o establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place (a) within the period of employment; (b) at a place [he] may reasonably [have been]; and (c) while [he was] reasonably fulfilling the duties of the employment or doing something incidental to it.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Kolomiets v. Syncor International Corp., supra, 51 Conn. App. 527-28.

On the basis of our review of the record and the parties’ briefs and considering the parties’ oral arguments, we conclude that the central issue in this matter is credibility. Where factual issues are in dispute and the credibility of witnesses, including medical experts, is determinative of whether a claimant is entitled to workers’ compensation benefits, this court is bound by the findings of the commissioner. The record here contains evidence of the plaintiffs contradictory testimony and other evidence as to when, where and how he sustained injuries. The medical experts also disagreed as to whether the plaintiff sustained a compression facture of the lumbosacral spine.

We conclude therefore that the commissioner’s decision is the result of a proper application of the law to the subordinate facts. Thus, the board properly affirmed the commissioner’s decision.

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

       At oral argument before us, the plaintiff took the position that his testimony was not inconsistent but that any inconsistencies are due to the fact that English is not his native language. He either did not understand the questions or the person hearing his answers did not understand him. This is a factual issue, which this court may not review de novo.