author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. HERIBERTO M.

    (AC 28795)
    Flynn, C. J., and Lavine and Hennessy, Js.

      Argued April 21
    officially released August 25, 2009

      Aaron J. Romano, special public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Brian K. Sibley, Sr., assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

FLYNN, C. J.

The defendant, Heriberto M., appeals from the judgment of conviction, following a jury trial, on charges of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the fourth degree in violation of General Statutes (Rev. to 1999) § 53a-73a (a) (1) (A) and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (a) (2). On appeal, the defendant claims that the court improperly (1) admitted the testimony of a clinical social worker containing hearsay statements under the medical treatment exception, (2) admitted constancy of accusation testimony and (3) provided an expert testimony charge in its instructions to the jury.1 * We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1999, the victim, who was six years old, lived with her mother, her brother and her mother’s boyfriend, the defendant. The victim’s mother worked from 6 a.m. until 3 p.m. During this time, the defendant would pick up the victim everyday after school at approximately 2:30 p.m., bring her home and stay with her until her mother returned from work.

One afternoon after returning home from school, the victim was lying on the bed and watching television in the bedroom shared by her mother and the defendant. The victim’s mother was at work at the time, and no one but the victim and the defendant was home. The defendant entered the room and removed the victim’s clothes. He lay down on the bed and turned the victim from her back to her side, so that he was behind her. He then lifted the victim’s leg and placed his penis between her legs and into her vagina, causing her to feel pain. The defendant moved his body, rubbing her vagina with his penis. He also touched the victim’s buttocks with his penis. The victim’s body was “slimy” after the defendant had finished, and he told her to take a shower. After school the next day, the defendant again assaulted the victim in the same manner.

The defendant had sexual contact with the victim on various other occasions. He once touched the victim’s vagina with his hands and tongue. The defendant instructed the victim not to tell anyone what he had done to her. The victim initially did not report the incidents to her mother or to anyone else because of the defendant’s instruction. In late 1999, the victim’s mother ended her relationship with the defendant and moved with her children from her residence.

In July, 2003, the victim’s mother questioned the victim concerning an incident involving inappropriate sexual conduct between the victim’s brother and her female cousin. The victim revealed to her mother and her mother’s new boyfriend that she had been sexually assaulted by the defendant. The victim’s mother reported the abuse to the New Haven police department. The victim’s mother subsequently took the victim to Yale-New Haven Hospital’s child sexual abuse clinic, where she was interviewed by Leah Smith, a clinical social worker. Smith possessed a master’s degree in social work, was licensed by the state to practice social work, had received extensive training in forensic interviewing and had conducted approximately 300 interviews with children. The purpose of the interviews, according to Smith, was threefold: medical treatment, mental health or psychological treatment and the child’s safety.

Smith conducted the interview alone with the victim while other members of a multidisciplinary team, including a police officer and Janet Murphy, a pediatric nurse practitioner, observed through a one-way mirror. The interview was videotaped according to the hospital’s procedures. The victim told Smith of the defendant’s abusive touching. Because, in describing the defendant’s actions, the victim at various times used different terms for genitalia, Smith provided her anatomically correct drawings, upon which the victim was able to identify correctly both male and female genitalia. Smith testified as to her opinion that responses given by the victim in the interview were common in cases of sexual abuse.

Following Smith’s interview, Murphy examined the victim. Murphy held an advanced practice registered nurse’s license, had worked in the sexual abuse field for eighteen years and had examined approximately 2000 children. She testified that the purpose of the type of examination performed on the victim is to determine whether the child is healthy, to calm any worries the child might possess and to determine whether he or she has sustained any physical injuries or sexually transmitted diseases. Murphy found no injuries to the victim’s genitals, a finding that she stated was consistent with approximately 90 percent of sexual abuse victims. The lack of injuries was consistent with the fact that the reported abuse occurred approximately three years previous to the time of the examination. An injury to the victim’s hymen, for instance, may have healed due to the victim’s having gone through puberty in the meantime. Furthermore, the type of touching involved was unlikely to cause injury.

Following the conclusion of the evidence, the jury found the defendant guilty of each of the three counts of the substitute information. The court thereafter sentenced the defendant to a total effective term of seventeen years imprisonment, execution suspended after twelve year's, with ten years of probation. The present appeal followed. Additional facts will be provided where necessary.

I

The defendant first claims that the court improperly admitted the testimony of Smith. Specifically, he argues that the testimony did not qualify for admission under the medical treatment exception to the rule of evidence prohibiting hearsay. We decline to review this claim as the defendant failed to preserve this issue at trial and, on appeal, does not request any extraordinary level of review.

Prior to Smith’s testimony, and outside of the presence of the jury, the court entertained argument from the prosecutor and defense counsel regarding the admissibility of Smith’s testimony. The prosecutor sought to admit into evidence not only Smith’s testimony regarding her interview of the victim, which included the victim’s statements to Smith, but also the videotape recording of the interview. Defense counsel made no objection to admission of Smith’s testimony concerning the interview, stating: “I understand from the case law that the subject matter is admissible by way of the medical exception.” Defense counsel objected to the admission of the videotape, however, arguing that it would unfairly prejudice the defendant by unduly highlighting the evidence. The prosecutor indicated to the court that he and defense counsel had reached an agreement that the statements made to Smith in the interview would be admitted. The prosecutor proffered: “[W]e have an understanding that the statements themselves will be allowed under the medical exception to the hearsay rule.” Defense counsel gave no indication that he disagreed with this statement, and, instead, he continued his argument that the videotape should not be admitted. While indicating that the admissibility of the videotape was a close issue, the court stated that it would allow either Smith’s testimony or the videotape but not both. The prosecutor withdrew his offer of the videotape and called Smith to the witness stand. Defense counsel offered no objection to Smith’s testimony.

In maintaining that the issue properly was preserved, the defendant argues on appeal that “[f]rom the outset of the trial, the defense raised the objection to hearsay statements made by the complainant to others.” The defendant further contends that the “preliminary arguments made by defense counsel properly preserved the issue raised in [the defendant’s] brief that Smith’s testimony did not fall within the ambit of the medical exception rule.” However, defense counsel offered no objection to Smith’s testimony. Indeed, he stated on the record his belief that, under the pertinent case law, the testimony was admissible by way of the medical treatment exception. Further, he offered no objection when the prosecutor told the court that the prosecutor and defense counsel had agreed previously that the hearsay portions of the testimony would be admissible pursuant to the medical treatment exception.

The record clearly demonstrates that defense counsel’s real focus was preventing the separate admission of the videotape of the interview. The defendant’s failure to object to the admission of Smith’s testimony renders his claim unpreserved and unreviewable, except pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. The defendant has requested neither form of review. We therefore decline to review the claim as “it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error [or Golding review], we will not afford such review.” (Internal quotation marks omitted.) State v. Marsala, 93 Conn. App. 582, 590, 889 A.2d 943, cert. denied, 278 Conn. 902, 896 A.2d 105 (2006).

II

The defendant next challenges the admission of the testimony of both Smith and Murphy. He contends that the testimony constituted improper constancy of accusation testimony, and he argues that his right to a fair trial under the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution was violated by its admission.

The defendant failed to raise this issue at trial, and he seeks review of his claim pursuant to State v. Golding, supra, 213 Conn. 239-40. Under Golding, a defendant may prevail on an unpreserved claim only if, inter alia, the claim is of constitutional magnitude. Id., 239. In State v. Samuels, 273 Conn. 541, 558, 871 A.2d 1005 (2005), our Supreme Court held that “the interest of defendants in sexual assault cases in being protected from the prejudicial effect of postcomplaint constancy testimony is not constitutional in nature.” Such a claim, therefore, does not satisfy Golding's second prong. Id. Accordingly, we do not review the claim.

Ill

The defendant’s final claim challenges a portion of the court’s jury charge on experts. He specifically maintains that the court violated his due process right to a fair trial when it provided the jury with an expert witness instruction as to both Smith and Murphy when only Murphy had been presented by the state as an expert. As a result, the defendant argues, the court “gave undue weight to Smith’s testimony.” We disagree.

On direct examination by the state, although Smith testified as to her educational background, licensing and experience, the prosecutor did not offer her formally as an expert. He offered Murphy as an expert after eliciting her testimony as to her education, licensing and experience. Despite Smith’s not formally having been offered as an expert, defense counsel did not object when Smith testified as to her opinion that the victim’s responses during the course of their interview were consistent with those of a child who has been sexually abused. In his closing argument to the jury, defense counsel referred to Smith as an expert in highlighting a portion of her testimony. On two additional occasions in his closing argument, defense counsel referred to Smith and Murphy collectively as “the experts.”

In its charge to the jury, the court stated in relevant part: “In this case, certain witnesses have taken the [witness] stand, given their qualifications and testified as expert witnesses, and by that I’m including Janet Murphy and Leah Smith. A person is qualified to testify as an expert if she has special knowledge, skill, experience, training or education sufficient to qualify her as an expert on the subject to which her testimony relates. An expert is permitted not only to testify to facts that she personally observed but also to state her opinion about certain circumstances. This is allowed because an expert is, from her experience, research and study, supposed to have particular knowledge on the subject of the inquiry and be more capable than a layperson in drawing conclusions from facts and basing her opinion on them.

“Such testimony is presented to you to assist you in your deliberations. No such testimony is binding upon you, however, and you may disregard such testimony either in whole or in part. It is for you to consider the testimony with the other circumstances in the case in using your best judgment [to] determine whether you will give any weight to it and if so, what weight you will give to it. The testimony is entitled to such weight as you find the expert’s qualifications in her field entitle it to receive, and it must be considered by you but is not controlling upon your judgment.”

The defendant’s claim is unpreserved, as he took no exception to the court’s instruction at trial, and he consequently seeks review pursuant to Golding. The defendant’s claim must fail, however, as he has not demonstrated the existence of a clear constitutional violation that clearly deprived him of a fair trial. See State v. Golding, supra, 213 Conn. 240. It is significant that defense counsel referred to Smith in the course of his closing argument to the juiy on multiple occasions as an expert. Although given the opportunity to do so, defense counsel also did not object to the court’s proposed jury instruction containing reference to Smith as an expert. Finally, in reviewing a challenge to a jury charge, we must view the charge as a whole to determine whether it is reasonably possible that the jury was misled. State v. Griggs, 288 Conn. 116, 125, 951 A.2d 531 (2008). The instruction properly conveyed to the jury the law with respect to expert testimony. That is, the charge clearly explained that an expert’s testimony is not binding on the jury, may be disregarded in whole or in part and is not entitled to be given any additional weight. Absent clear indication to the contrary, we presume the jury to have followed the court’s instructions. See State v. Ali, 233 Conn. 403, 424, 660 A.2d 337 (1995).

No Daubert-Porte challenge was made as to the expert testimony offered. Part of the defendant’s argument rests on the lack of a declaration by the court that Smith was an expert. Although a court may decide to make such a declaration after an expert’s qualifications are put on record, it is not required to do so by our rules of practice or case law. If a defendant has an objection to the testimony or expression of opinion by such a witness, he has the opportunity to make it and have the court rule on it.

Furthermore, the defendant provides no case law for the proposition that underlies his claim: that if a jury instruction refers to a witness as an expert who has not been explicitly qualified as such, the instruction thereby is rendered constitutionally unsound. Nor do we find any such authority. Because the defendant has not demonstrated that a constitutional violation clearly exists that clearly deprived him of a fair trial, the defendant’s claim fails under Golding's third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with crimes that allegedly occurred in 1999. The codification of § 53-21 applicable to that period of time is the revision to 1999. In 2000, the legislature enacted Public Acts 2000, No. 00-207, § 6, which designated the then existing language of § 53-21 as subsection (a) and added subsection (b). The relevant language of subsection (2) of the statute with which the defendant was charged did not change.

       Following oral argument before this court, counsel for the defendant filed a motion seeking to clarify a statement he had made during oral argument. Our rules of appellate practice do not contemplate such a motion, and we do not consider it in our disposition of the case.

       Section 8-3 of the Connecticut Code of Evidence (2000) provides in relevant part: “The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness ... (5) ... [a] statement made for purposes of obtaining medical treatment or advice pertaining thereto and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment. . . .”

       Under Connecticut Code of Evidence § 6-11 (c), “[a] person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim’s allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim’s testimony and not for substantive purposes.”

       As a preliminary matter, we note that the defendant’s brief and appendix do not contain the portion of the charge he challenges on appeal. Our rules of practice require that “[w]hen error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge.” Practice Book § 67-4 (d) (2). In his reply brief, the defendant appears to argue that, because his claim is that the court should not have given an expert instruction with regard to Smith, his brief was not incomplete due to its failure to include the challenged portion of the charge. We do not read Practice Book § 67-4 (d) (2) this narrowly, and we take this opportunity to remind counsel of the provision’s requirements.

         One objection made by defense counsel during the prosecutor’s direct examination of Smith indicates that he understood her to be an expert witness, though she had never formally been offered as one. The prosecutor asked Smith what recommendations she made as a result of interviewing the victim. Defense counsel objected, and outside the presence of the jury, made the following argument: “[I]f she makes any recommendations and you put that in front of the jury, she’s essentially saying that sexual abuse occurred here and using the weight of her professional opinion to answer the question the jury is here to decide. ‘What did you make for recommendations?’ T recommended that she seek counseling. I recommended that— that she have one-on-one counseling to—to deal with the—sexual assault.’ You are telling the jury that she’s already determined that sexual assault occurred here. How—how can you talk about recommendations when essentially he’s asking her whether or not there is any credence to the allegation. That’s for the jury to decide.”

       See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). In Porter, our Supreme Court followed the United States Supreme Court’s decision in Daubert and “held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence.” (Internal quotation marks omitted.) State v. West, 274 Conn. 605, 630, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

       We note that the court followed this procedure with regard to Murphy; i.e., the court did not “declare” Murphy to be an expert. Directly following Murphy’s testimony concerning her professional qualifications, the prosecutor stated: “At this time, Judge, I would ask that the—Ms. Murphy be recognized as an expert witness in her field.” The court responded: “Ask your questions. If [there axe] objections, we’ll deal with them.”


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES N.

    (AC 29360)
    Bishop, Harper and Beach, Js.

      Argued May 21
    officially released August 25, 2009

      Richard Emanuel, with whom was Eugene J. Riccio, for the appellant (defendant).

      Theresa Anne Ferryman, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

BISHOP, J.

The defendant, James N., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the court failed to grant sufficient relief after determining that jury misconduct had occurred. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of the defendant’s appeal. On August 30,2007, the defendant was charged with sexual assault in the first degree and two counts of risk of injury to a child. On September 4, 2007, the defendant’s jury trial commenced, and on September 6, 2007, the evidence portion of the trial concluded. Throughout the trial and at the conclusion of the evidence, the court repeatedly admonished the jury about its obligation not to discuss the case before it received it for deliberations.

On September 7,2007, in advance of closing argument and the court’s charge to the jury, the court officer, Martha Morrarty, reported on the record that on the previous day, as the jurors entered the jury room to collect their belongings, she overheard them discussing the case. She stated: “Yesterday, after Your Honor excused the jury for the day, I went into the hallway because there were some jurors who needed the use of the elevator. And as the jury was headed back into the jury room to collect their things, I overheard [J] state, ‘I’m really surprised, I thought there would have been more evidence, character witnesses and things like that.’ And I did hear agreement from at least one male juror. And then the door closed, and I didn’t hear anything further. All jurors were present when that statement was made, except for [L], who was in the hallway with me, although she did hear the statement as well. As I said, once the door closed, I didn’t hear anything further.” Morrarty later stated that after the remark was made, L “immediately turned her head and looked at” Morrarty, which gave Morrarty the impression that L heard J’s statement.

On the basis of Morrarty’s account of the jury’s presubmission discussion, the defendant moved for a mistrial. The court denied the motion as premature. The defendant also requested that J be removed from the jury and that the court question the panel to identify the juror that had expressed agreement with J’s statements and to determine whether there was further discussion of the case after the jury room door had closed. The court granted the defendant’s request that jurors be questioned regarding possible juror misconduct.

The court began its canvass with juror J, who denied making any remarks to the other jurors as he left the courtroom. He also stated that he did not have any recollection of jurors discussing the quality or quantity of the evidence presented. Following J’s testimony, the defendant and the state agreed that J should be removed as a juror because, based on Morrarty’s statements, they did not believe J’s claim that he did not make any remarks regarding the evidence presented at trial.

The court next canvassed D, who only recalled jurors expressing their surprise that they were getting out early. Counsel for the defendant was then, permitted to question D. He began to ask, “specifically . . . did you hear anyone in there, a male juror, make any statement to the effect . . . .” At this juncture, the court stopped counsel before he could finish the question and excused the juror from the courtroom. The court then stated to defense counsel: “The concern I have ... if you are going to ask the question now, you are going to taint [D], who may not have heard anything. I will listen to you. [D] said he heard nothing. I don’t want to lose [D] by saying something to him.” Counsel replied that he intended to ask D: “[D]id you hear any male juror make any statement expressing surprise that there wasn’t more evidence, like character evidence. I mean, that’s a fair recitation to synthesize what . . . Morrarty said occurred. So, I would just make those three questions.” The court determined that it would not permit the defendant’s questions out of concern that D would be tainted by them.

Juror L, who remained in the hallway outside the jury room when the purported remarks were made, was the next juror called to testify. On questioning from the court, she repeatedly denied hearing any discussions among the jurors. The court then stated, “I take it, based upon that answer, that there was no discussion about the evidence or the case in any way.” L replied that she only heard talking in general but that she was not paying attention to the remarks that were made. The defendant then requested that he be heard outside the presence of the juror. Before excusing L, the court asked her if she could remain fair to both sides and if she remembered that it was the state’s burden to prove the defendant’s guilt beyond a reasonable doubt, to which she replied affirmatively. After L was excused, the defendant requested that the court ask her “whether . . . she heard any comment by any juror regarding the evidence or lack of evidence in the case, consistent with what we were told by . . . Morrarty about what she heard.” Once the court declined to ask L that question, the defendant objected, and the court noted the objection and further stated, “I will consider that [the objection] applies to every juror who I do not ask that question . . . .”

Next, juror R stated that he only recalled jurors expressing their surprise that the trial ended “so abruptly and quickly.” The court then asked R, “Was there any comment with respect to the nature of the evidence or lack thereof that you remember?” R replied, “[n]ot that I recall.”

Juror E stated that when she was outside the jury room, she overheard a juror express surprise because the defense had not called any witnesses. E never saw the juror who made the remarks, but she thought that it was the female, alternate juror. She further stated that the remarks in question did not impair her ability to be fair to both sides.

Juror S did not recall specific remarks from the day in question other than the remarks that the court day was surprisingly short. He confirmed that he had not made up his mind with respect to the case and that he could be fair to both sides.

Juror K recalled hearing J discussing the trial. She stated: “I think he said he thought the prosecution would be calling other witnesses or something to that effect and that it seemed to be stopping abruptly or something to that terminology. But I was on my way out the door as he was speaking.” She further stated that the remarks would not effect her ability to be fair to both sides.

C, the alternate juror, was the last to be questioned. She stated: “I remember one person had stated that he thought that the defense would have called additional testimony or additional witnesses. And I was surprised, and I agreed with him.” J fit the description of the juror described by C.

The defendant then renewed his motion for a mistrial, claiming that “it’s clear that there were premature deliberations,” which amounted to juror misconduct. The defendant also argued that in addition to J, L should be removed because, according to Morrarty, she overheard J’s remarks, and C should be removed because she expressed agreement with J’s comments.

The court declined to excuse L. In explaining its decision, the court commented: “I start with the premise that I don’t question and I don’t think anyone questions what . . . Morrarty told us, and this is not in any way disparaging what . . . Morrarty told us. But the comment concerning [L], as to whether she heard or didn’t hear, comprehend or didn’t hear or didn’t comprehend what was said when she’s out in the hall and others are in the jury room. I’m not sure, with all due respect to . . . Morrarty, that that’s a conclusive decision that . . . Morrarty could have made. Even if [L] looked at her, that doesn’t mean, in my mind, that [L], one, either did anything wrong or was tainted by the statement.”

The court then excused J, finding that “it’s clear that he made a comment that he should not have made,” and his comment “rises to the point in mind that he is suspect . . . .” The court also excused C, stating that although she was “less culpable” than J, the court wanted to “err on the side of caution.” The court concluded, however, that the jurors’ dismissal and the events in question did not rise to a level of juror misconduct that would warrant a mistrial. The court replaced J with the last remaining alternate juror. The remaining' jurors reiterated that they would remain fair and impartial to both parties.

The jury returned a verdict of guilty on all counts. On October 23, 2007, the court denied the defendant’s postverdict motions for a judgment of acquittal and for a new trial. The defendant was sentenced to thirty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

The defendant’s claim on appeal is that the court improperly failed to grant sufficient relief after determining that jury misconduct had occurred. Specifically, the defendant argues that the presubmission discussion by jurors constituted jury misconduct and that the court improperly (1) restricted his inquiry into the juror misconduct, (2) refused to remove L as a juror and (3) denied the defendant’s motion for a mistrial. We assess each claim in turn.

After conducting a juror misconduct hearing, the court excused jurors J and C. The court concluded that their dismissal was a sufficient remedy and that the jurors’ conduct did not warrant a mistrial. On the basis of our review of the record, we conclude that the court’s response was entirely proper.

Although the trial court enjoys wide discretion when confronted with a claim of juror misconduct, it must “ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment . . . [and therefore] a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. . . .

“Consequently, the trial court has wide latitude in fashioning the proper response to allegations [or the possibility] of juror bias. . . . [W]hen . . . the trial court is in no way responsible for the [possible] juror misconduct [or bias], the defendant bears the burden of proving that the misconduct [or bias] actually occurred and resulted in actual prejudice.” (Internal quotation marks omitted.) State v. Brown, 96 Conn. App. 700, 704-706, 901 A.2d 86, cert. denied, 280 Conn. 912, 908 A.2d 539 (2006).

I

The defendant first claims that the court’s inquiry into possible juror misconduct was inadequate. He argues that the com! improperly restricted his inquiry into the misconduct by refusing to ask, and barring him from asking, whether the jurors had heard any other juror make a statement expressing surprise that more evidence was not presented. In response, the state argues that the court acted within its discretion when it limited the questioning to determine whether other jurors had heard the subject remarks without repeating them to avoid potentially tainting the jurors. We agree with the state.

“Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations [or the possibility] of jury [bias or] misconduct will necessarily be fact specific. . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged [or possible] jury misconduct can fairly be characterized as an abuse of its discretion. . . . Although we recognize that trial [c]ourts face a delicate and complex task whenever they undertake to investigate [the possibility] of juror misconduct or bias ... we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred. . . . Ultimately, however, [t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact. . . .

“[W]here the defendant claims that the court failed to conduct an adequate inquiry into possible juror bias or prejudice, the defendant bears the burden of proving that such bias or prejudice existed, and he also bears the burden of establishing the prejudicial impact thereof.” (Internal quotation marks omitted.) Id., 705-706.

“[A] trial court should consider the following factors in exercising its discretion as to the form and scope of a preliminary inquiry into allegations [or the possibility] of jury misconduct [or bias]: (1) the criminal defendant’s substantial interest in his constitutional right to a trial before an impartial jury; (2) the risk of deprivation of the defendant’s constitutional right to a trial before an impartial jury, which will vary with the seriousness and the credibility of the allegations of jury misconduct; and (3) the state’s interests of, inter alia, jury impartiality, protecting jurors’ privacy and maintaining public confidence in the jury system.” (Internal quotation marks omitted.) Id., 705. Mindful of these principles, we now turn to the defendant’s specific claims regarding the scope of the court’s inquiry.

The record reveals that the sole issues before the court were whether J had remarked that he was surprised that the defendant did not offer more evidence and whether other jurors had heard and ultimately agreed with those remarks. The court carefully tailored its questioning to glean that information from the jurors while trying to avoid tainting them by exposing them to remarks they may not have heard. The court asked each juror what, if anything, he or she had heard during the events in question. The court also asked each juror if he or she would be able to remain impartial in reaching a verdict. When jurors indicated that they had heard remarks pertaining to the trial, the court probed further to determine whether those comments would ultimately result in bias. Additionally, if the court had acceded to the defendant’s request for further inquiry, there was a realistic likelihood that such questioning could have tainted jurors who may not have heard J’s comments. Accordingly, we find no fault in the scope of the court’s inquiry.

II

The defendant next argues that the court improperly refused to remove L as a juror. As noted, the court excused J for making suspect remarks and C for possibly being swayed by those remarks. As to L, the defendant contends that because the court found Morrarty to be credible and that her statements were reliable, the court should have inferred that L was lying when she denied hearing the remarks. We are not persuaded.

As noted, Morrarty stated that she was under the impression that L, who was standing beside her in the hallway when J made his remarks, also heard what he said. L testified that she did not hear the remarks. The court noted that it was not sure whether Morrarty could have made a conclusive decision as to whether L had heard J’s remark. Although the court found Morrarty’s impressions to be credible, it did not find that those impressions were conclusive of what L actually heard. Additionally, as noted, when questioned by the court, L confirmed her ability to remain fair to both sides and her awareness of the state’s burden to prove the defendant guilty beyond a reasonable doubt. On this basis, it was within the court’s discretion to find L credible and to permit her to remain a juror. See State v. Osimanti, 111 Conn. App. 700, 716, 962 A.2d 129 (2008), cert. granted on other grounds, 290 Conn. 914, 965 A.2d 554 (2009).

Ill

The defendant finally argues that the court improperly denied his motion for a mistrial. Specifically, the defendant contends that the court improperly relied on the remaining jurors’ assurances that they remained impartial and that the court improperly considered the interests of the two alleged victims. We do not agree.

“The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. ... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Ortiz, 280 Conn. 686, 702, 911 A.2d 1055 (2006); see also Practice Book § 42-43.

The record reveals that following the removal of J and C, the court notified the jury that two jurors had been excused and instructed the jurors not to “speculate as to why that is” or to allow it to affect their “continued deliberations and decision making in this case.” The court also stated: “If any of you has any feeling whatsoever that you cannot give [the defendant] the presumption of innocence that he or anyone else charged with a crime is entitled to and that you, for any reason whatsoever, cannot put the burden solely on the state, if it can, to prove his guilt beyond a reasonable doubt with evidence presented in this courtroom, I need you to tell me that. During my instructions of law, I’m going to tell you again about those things. I’m also going to tell—and I have told you already—[the defendant] has no obligation whatsoever. He sits there presumed to be innocent. And that is a foundational part of our criminal justice system. And if any of you have the slightest inclination that because of something that may have been said or a sense in your mind of an abrupt end to a trial or a sense that you expected anything either of [the defendant] and, or, his lawyer, then you need to tell me that. Because they have no obligation at all. . . . So, I am putting the responsibility on you. If any of you has any sense whatsoever that you cannot continue in the way that I have just discussed it, I expect you are going to tell me that.”

The court then permitted the jurors to recess for lunch and to take that time to decide if they could determine the facts and apply the law impartially in the defendant’s case. After lunch, all the jurors agreed that they remained impartial. “[I]n the absence of an indication to the contrary, the jury is presumed to have followed [the trial court’s] curative instructions.” (Internal quotation marks omitted.) State v. Necaise, 97 Conn. App. 214, 225, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).

The defendant also argues that the court improperly considered the interests of the victims in its determination that a mistrial was not warranted. The facts belie the defendant’s claim.

At the mistrial hearing, the court made the following statement regarding the victims’ interests: “It is not only [the defendant] that the court has concerns about here. I would be remiss, and frankly not completely candid— and again, when I say this, that does not mean that I take anything away from [the defendant’s] rights, but we also have two young children who were—and rightfully so, I don’t want anyone to think that [the defendant] did anything wrong by seeking a trial; he had an absolute right to have his case resolved by a jury. But we have two young alleged victims who were asked to testify, and I recognize that.” The court then noted that its primary concerns were, “one, to investigate any alleged juror misconduct and, two, to make a determination as to whether the defendant has, in effect, raised the contention of juror misconduct or bias from the realm of speculation to the realm of fact and what remedy, if any, is needed.” The court concluded: “[B]ased upon my hearing—and I’m excluding [J] and [C]—what I am hearing is that although there was some brief offhand type of discussion concerning the abruptness of the trial ending, although there was apparently a comment by [J] which should not have been made, that more should have come from the defense, so to speak, in terms of either testimony or some form of character testimony, perhaps. I don’t believe that that does rise to a level where I should grant a mistrial in this case.”

Although the court noted its concern about the victims, our review of the record leads us to the firm conviction that the focus of its juror misconduct inquiry centered on the interest of the defendant in receiving a fair and unbiased trial. In an effort to serve that paramount interest, the court questioned each juror about what, if any, improper remarks he or she had said or heard. As a result of its inquiry, the court excused two jurors. The court’s actions fell well within its sound discretion. Moreover, the defendant failed to show that actual prejudice resulted from the court’s handling of the jury misconduct hearing and its denial of his motion for a mistrial. We conclude that the court did not abuse its discretion in its conduct of the jury misconduct hearing and its determination to deny the defendant’s motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child [is guilty of risk of injury to a child] . . . .”

       To protect the privacy of the jurors, we refer to them by initial. See State v. Newsome, 238 Conn. 588, 624 n.12, 682 A.2d 972 (1996).

       Pursuant to Practice Book § 42-43, “[u]pon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case.”


author: PER CURIAM.

text:
    MARY E. SULLIVAN v. RANDY BROWN ET AL.
    (AC 29822)
    Harper, Beach and West, Js.
    Argued March 19
    officially released August 25, 2009

      Andrew J. Brand, with whom was Eric W. Callahan, for the appellants (defendants).

      Scott W. Sawyer, with whom, on the brief, were Nicholas Grimaldi, Jr., and Loma J. Dicker, for the appellee (plaintiff).
   Opinion

PER CURIAM.

Claiming a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., the plaintiff, Mary E. Sullivan, commenced this action against the defendants, Randy Brown, Randy Brown doing business as Clearwater Construction/Home Improvements and Clearwater Home Improvement, Inc. The defendants claim that the court improperly determined that the plaintiff was entitled to a hearing on costs and attorney’s fees under General Statutes § 42-1 lOg (d) because she had not proven that she suffered an ascertainable loss as required by § 42-110g (a). Because we dismiss the defendants’ appeal, sua sponte, we do not reach this issue.

The plaintiff brought an action against the defendants, who constructed ahorne for her. In her amended complaint, the plaintiff set forth claims of breach of contract, a violation of CUTPA and unjust enrichment. Following atrial, the court, in its March 31, 2008 memorandum of decision, found in favor of the plaintiff on her breach of contract claim and awarded damages to her in the amount of $12,407.74. The court also found that the defendants violated provisions of the New Home Construction Contractors Act, General Statutes § 20-417a et seq. The court found that as a result of this violation, the defendants violated CUTPA. The court did not award any damages pursuant to CUTPA. The court stated that “the plaintiff is entitled to costs and reasonable attorney’s fees” and that “[t]he plaintiff may . . . move for a hearing on costs and attorney’s fees awarded under the [CUTPA] count.” The record indicates that no such hearing has been held. This appeal followed.

We must first address the threshold jurisdictional issue of whether the defendants have appealed from a final judgment. Although neither of the parties raised a question as to the finality of the judgment, we decide the question sua sponte because it invokes this court’s subject matter jurisdiction over the defendants’ appeal. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. . . . The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 793-94, 967 A.2d 1 (2009).

Following oral argument in this court, we asked the parties, sua sponte, to brief the question of whether the court’s March 31, 2008 decision that the plaintiff was entitled to costs and reasonable attorney’s fees was an appealable final judgment in light of the fact that the court indicated that the plaintiff may move for a hearing on costs and attorney’s fees but the hearing had not been held and the amount of attorney’s fees, if any, had not yet been decided. The defendants argue in their supplemental brief that the court awarded attorney’s fees in principle and that the award is an appealable final judgment despite the fact that no amount has been awarded and despite the fact that a hearing as to an amount has not been held. The plaintiff, in her supplemental brief, states that prior case law indicates that an award of attorney’s fees without a determination of the amount of that award is not an appealable final judgment; see Paranteau v. DeVita, 208 Conn. 515, 524 n.11, 544 A.2d 634 (1988); Stuart v. Stuart, 112 Conn. App. 160, 188-89, 962 A.2d 842, cert. granted on other grounds, 290 Conn. 920, 966 A.2d 237 (2009); Burns v. General Motors Corp., 80 Conn. App. 146, 150 n.6, 833 A.2d 934, cert. denied, 267 Conn. 909, 840 A.2d 1170 (2003); and requests this court to overturn such prior case law.

We may not overturn prior case law established by our Supreme Court, and we conclude, with respect to the defendants’ sole claim on appeal concerning costs and attorney’s fees under CUTPA, that the defendants have not appealed from a final judgment. In its memorandum of decision, the court determined that the plaintiff was entitled to attorney’s fees and costs and indicated that a hearing would be scheduled to determine the amount. “In Paranteau v. DeVita, [supra, 208 Conn. 524 n.11], our Supreme Court determined that ‘ [a] supplemental postjudgment award of attorney’s fees becomes final and appealable . . . not when there is a finding of liability for such fees, but when the amount of fees are conclusively determined.’ An award of attorney’s fees without a determination of the amount of the attorney’s fees is not an appealable final judgment. See Burns v. General Motors Corp., [supra, 80 Conn. App. 150 n.6].” Stuart v. Stuart, supra, 112 Conn. App. 189.

The appeal is dismissed.

       The defendants raised additional claims in their appellate brief. At oral argument before this court, the defendants abandoned all claims except those pertaining to the court’s determination that the plaintiff was entitled to costs and attorney’s fees under CUTPA.


author: HENNESSY, J.

text:
    TIM TOWNSEND v. COMMISSIONER OF CORRECTION
    (AC 29284)
    DiPentima, Haiper and Hennessy, Js.

      Argued March 10
    officially released August 25, 2009

      Mary H. Trainer, special public defender, for the appellant (petitioner).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, Tim Townsend, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, he claims that (1) his trial counsel was ineffective for not advising him of his appellate rights in connection with the denial of his motion to withdraw his plea, (2) his trial counsel was ineffective in his preparation for trial and (3) it was improper for the court to grant the motion filed by the respondent, the commissioner of correction, to quash the petitioner’s subpoena duces tecum for the disciplinary records of police officers involved in the investigation of the underlying crime. We affirm the judgment of the habeas court.

The following facts are relevant to the petitioner’s appeal. On May 23, 2002, the petitioner pleaded guilty, under the Alford doctrine, to the crime of murder. On July 19, 2002, the date of sentencing, the petitioner requested that the court allow him to withdraw his guilty plea and to restore his case to the criminal docket. The matter was continued until August 2,2002, at which time the court denied the petitioner’s request and sentenced him to twenty-five years incarceration. The petitioner did not directly appeal from his conviction. On January 29, 2007, the petitioner filed a second amended petition for a writ of habeas corpus. After a hearing, the court denied the petition. The court granted the petition for certification to appeal on September 27, 2007. This appeal followed.

I

The petitioner claims that his trial counsel provided ineffective assistance due to inadequate trial preparation and by not advising the petitioner of his right to appeal from the denial of the motion to withdraw the guilty plea. The respondent argues that the court was correct in concluding that the petitioner’s trial counsel’s representation was not ineffective due to lack of trial preparation because the petitioner never notified counsel that he wanted to appeal and there was no reasonable basis to appeal. We agree and will discuss the petitioner’s claims in turn.

We first set forth the appropriate standard of review. “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 762, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .... For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong. . . .

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time. . . .

“To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . Reasonable probability does not require the petitioner to show that counsel’s deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. . . . The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through atrial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Hill v. Lockhart, supra, [474 U.S.] 59 .... A reviewing court can find against a petitioner on either ground, whichever is easier.” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 721-23, 789 A.2d 1046 (2002).

A

The petitioner claims that his trial counsel was ineffective in his investigation into a potentially exculpatory witness and in advising the petitioner regarding the strength of the state’s case. Specifically, he contends that his counsel did not inform him of the recantation of an eyewitness’ statement and did not interview a potentially exculpatory witness. The respondent argues that the petitioner cannot make a showing that his trial counsel’s investigation or advice were ineffective. We agree -with the respondent.

The court’s finding that trial counsel adequately investigated this case is supported by the record. The court found that the testimony of the petitioner was not very credible and that the testimony of trial counsel was much more credible. The testimony before the habeas court was clear that the petitioner was made aware of and fully advised about an eyewitness’ statement to the police and his subsequent affidavit recanting that statement. Thus, counsel’s representation was well within the range of what competent attorneys would do in this situation.

The petitioner could not show prejudice from trial counsel’s decision not to investigate what the petitioner claimed was an exculpatory witness. The petitioner offered the only testimony regarding the existence of an exculpatory witness, which the habeas court properly found was insufficient to show prejudice because there was no opportunity to evaluate the testimony or credibility of the claimed witness. See Taft v. Commissioner of Correction, 47 Conn. App. 499, 504-505, 703 A.2d 784 (1998).

B

The petitioner also claims that his trial counsel was ineffective in failing to advise him of his right to appeal from the denial of his motion to withdraw the guilty plea. Because there were no nonfrivolous grounds on which to appeal and there was no showing that the petitioner requested information regarding his appeal options, trial counsel was not ineffective in failing to advise the petitioner of his appellate rights.

“There is no constitutional mandate that to provide reasonably competent assistance, defense counsel always must inform a criminal defendant of the right to appeal from the judgment rendered after the acceptance of a guilty plea. Ghant v. Commissioner of Correction, 255 Conn. 1, 9, 761 A.2d 740 (2000). Instead, counsel has a constitutional obligation to advise a defendant of appeal rights when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” (Internal quotation marks omitted.) King v. Commissioner of Correction, 73 Conn. App. 600, 604-605, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). “[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, supra, 10.

The petitioner has not provided us with a record showing inadequacy in trial counsel’s representation. The petitioner did not make a showing that he expressed interest in an appeal to trial counsel. Further, he presents this court with no testimony that he wanted to appeal or even that he would have appealed had he been made aware of his rights. Without such testimony, this court is not even presented with any indication that any alleged ineffective representation prejudiced the petitioner. Without this showing, it was proper for the habeas court to find that trial counsel’s representation was not ineffective for not making the petitioner aware of or initiating an appeal on his behalf.

Because the petitioner has not demonstrated that his trial counsel’s representation was inadequate or that he was prejudiced by this representation, his claim of ineffective assistance of counsel fails.

II

The petitioner’s final claim is that the court abused its discretion in granting a motion to quash his subpoena and refusing an in camera review of police personnel records. The respondent argues that the records sought were confidential and, therefore, the sixth amendment right to confrontation does not apply in a habeas hearing and the requirements for in camera review were not met.

“Our standard of review of a challenge to a court’s refusal to disclose privileged records is whether there was an abuse of discretion. . . . Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Access to confidential records should be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Citation omitted; internal quotation marks omitted.) State v. Webb, 75 Conn. App. 447, 457-58, 817 A.2d 122, cert. denied, 263 Conn. 919, 822 A.2d 244 (2003).

The following facts are relevant to the petitioner’s claim. On June 7,2007, the petitioner served a subpoena on the New Haven police department, ordering that the department produce personnel and disciplinary files for three detectives. On June 8, 2007, the respondent filed a motion to quash the subpoena, claiming that the files sought were privileged and neither material nor relevant to the issues in the habeas petition. The respondent further argued that because this was a civil habeas matter, the same concerns as to the right to confrontation do not exist as they do in a criminal proceeding. The petitioner claimed that he was seeking information about any complaints filed against the three officers for having attempted to bribe or to intimidate a witness. The petitioner alleged that there was a newspaper article about one of the officers being cited for improper investigative techniques. The court noted on the record that the three officers whose files were being sought were not on the petitioner’s witness list. The court found that there was nothing in the petition that would implicate the personnel or disciplinary records of any of the officers. The court granted the motion to quash but asserted that “depending on how the trial develops ... it may become relevant depending on where the trial goes.”

The respondent called one of the officers as a witness. The testimony was put forth to rebut claims made by the petitioner and the eyewitness who recanted in their testimonies. On cross-examination, the petitioner questioned the officer about any reprimands in his disciplinary file. The officer responded that he had been reprimanded but that the reprimand was rescinded after he had successfully won a lawsuit, in which he had claimed that he had not investigated a case improperly, against the city of New Haven. The petitioner requested that the court allow him to subpoena this officer’s employment record to confirm that the officer’s account of his reprimand was factual. The court denied the request because the petitioner could impeach the officer with the line of questioning about the reprimands but could not offer extrinsic evidence of it. After this ruling, the petitioner more fully questioned the officer about the reprimand and its rescission.

The court did not abuse its discretion in granting the motion to quash. The petitioner concedes that the officers’ personnel records were protected by statute. See General Statutes § 1-210 (b) (2). Despite the statutory protections, the petitioner argues that his need to examine the records outweighed the statute’s confidentiality policy. Although there is case law that the confrontation clause allows in camera review and access to confidential personnel records in criminal prosecutions under certain circumstances; State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); there is no authority to suggest that in camera review of such records was required upon a showing here in the petitioner’s civil habeas case. Moreover, because a great deal of the information sought would have been available to the petitioner through the officers’ testimony, there was little need to allow the petitioner access to the files. The court appropriately exercised its discretion and weighed the high value of the confidentiality of the officers’ personnel files with the petitioner’s claimed need to review the files.

The judgment is affirmed.

In this opinion the other judges concurred.

         North Carolina v. Alford, 400 U.S. 25, 33, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


author: PETERS, J.

text:
    LISA K. MASSAD v. SARAH J. GREAVES
    (AC 30194)
    Gruendel, Beach and Peters, Js.

      Argued June 3
    officially released August 25, 2009

      Richard M. Franchi, for the appellant (defendant).

      Jeffrey C. Ankrom, for the appellee (plaintiff).
   Opinion

PETERS, J.

If a lawsuit has been improperly removed from a state court to a federal court, federal law requires the federal court to order a remand and authorizes the federal court to make an award of costs and attorney’s fees. See 28 U.S.C. § 1447 (c). In the present case, the federal court made an award of attorney’s fees and costs but directed that the supporting documentation justifying the amount of such award be submitted to the state court after the remand. The defendant has appealed from the consequent award of fees to the plaintiff. Because the doctrine of res judicata prohibits the relitigation of a claim determined upon a full and fair consideration of the merits “by a court of competent jurisdiction ... in the same or any other judicial tribunal of concurrent jurisdiction(emphasis added) Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559, 436 A.2d 24 (1980); we affirm the judgment of the trial court.

On July 19, 2006, the plaintiff, Lisa K. Massad, instituted this action in the Superior Court, alleging that the defendant, Sarah J. Greaves, had wrongfully interfered with her attempt to collect a judgment against the defendant’s father. In response, the defendant filed a number of special defenses and a counterclaim, including a claim that the plaintiff had violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. On November 30, 2007, before any of these claims had been adjudicated, the defendant removed the case to the United States District Court for the District of Connecticut. The District Court, after concluding that the defendant’s removal was “untimely and without any legal basis,” held that the defendant was required to pay the plaintiff the costs and attorney’s fees attendant to the latter’s successful remand motion. In the same order, the court remanded the case to allow the plaintiff to “submit her affidavit of fees and costs sought ... to the Connecticut Superior Court . . . .” The defendant did not file an appeal from that order to the United States Court of Appeals for the Second Circuit.

On May 8, 2008, in accordance with the remand order from the District Court, the plaintiff filed, in the trial court, a motion for attorney’s fees supported by an itemization of fees. On May 28, 2008, the defendant filed an objection to this motion in which she maintained that the court lacked subject matter jurisdiction to award such fees, principally because, in the defendant’s view, the District Court retained exclusive jurisdiction over any award of attorney’s fees in this case. On July 22, 2008, without issuing a memorandum of decision, the court granted the plaintiff’s motion for attorney’s fees in the requested amount of $4833.78. The defendant did not request an articulation under Practice Book § 66-5.

The defendant’s appeal from the judgment of the trial court ordering payment of attorney’s fees to the plaintiff raises two issues. The defendant claims that the court (1) lacked subject matter jurisdiction and (2) violated her constitutional right to due process by awarding the fees without a hearing and without making a finding of bad faith by the defendant. We disagree.

I

The defendant’s principal claim at the trial court, and on appeal, challenges the court’s subject matter jurisdiction to award attorney’s fees to the plaintiff. In the defendant’s view, despite the unequivocal language of the District Court’s remand order, only that court had jurisdiction to make such an award. We are not persuaded.

Whether the trial court had subject matter jurisdiction to grant the plaintiff’s motion for attorney’s fees is a question of law that warrants plenary review by this court. “We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 770-71, 924 A.2d 846 (2007).

The defendant’s jurisdictional challenge is addressed only to the court’s award of attorney’s fees. Significantly, she has not clearly articulated any challenge to the validity of the underlying conclusion of the District Court that she improperly removed the case. She argues instead that once the District Court decided that an award of attorney’s fees was warranted, that court should have made the award rather than ordering the trial court to find the amount of fees to which the plaintiff was entitled. In other words, she questions the authority of the trial court to award attorney’s fees for an improper invocation of federal jurisdiction, even where the District Court decided that the plaintiff was entitled to the award.

A

It is well established that, in the absence of congressional intent to vest exclusive jurisdiction over a particular matter in the federal courts, state courts have concurrent jurisdiction over a matter arising under federal law. The United States Supreme Court “has long made clear that federal law is as much the law of the several States as are the laws passed by their legislatures. Federal and state law ‘together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.’ Claflin v. Houseman, 93 U.S. 130, [137, 23 L. Ed. 833] (1876) . . . .” (Citations omitted.) Haywood v. Drown, 556 U.S. 729, 735, 129 S. Ct. 2108, 173 L. Ed. 2d 920 (2009). Furthermore, the supremacy clause of the United States constitution prohibits states from refusing jurisdiction over federal claims when state courts have jurisdiction to hear analogous suits. Id., 740 n.6 (citing Testa v. Katt, 330 U.S. 386, 388, 394, 67 S. Ct. 810, 91 L. Ed. 967 (1947), for proposition that state law claim over which state does exercise jurisdiction need not be identical to federal claim that state seeks to exclude).

The federal removal statute, 28 U.S.C. § 1446 (d), provides that, upon removal, “the State court shall proceed no further unless and until the case is remanded.” When, however, a certified copy of a remand to state court is mailed to the state court clerk, 28 U.S.C. § 1447 (c) authorizes the state court to proceed again with the case. See Ins. Co. of Pennsylvania v. Waterfield, 102 Conn. App. 277, 283, 925 A.2d 451 (2007) (under plain language of 28 U.S.C. § 1447, state court has subject matter jurisdiction to proceed as soon as remand effected).

The defendant’s argument that only the District Court had jurisdiction to award attorney’s fees to the plaintiff relies on a number of federal cases that have held that the District Court may make an award of attorney’s fees even after a case has been remanded to the state court. See, e.g., United States ex. rel. Grynberg v. Praxair, Inc., 389 F.3d 1038 (10th Cir. 2004), cert. denied, 545 U.S. 1139, 125 S. Ct. 2964, 162 L. Ed. 2d 888 (2005); Hart v. Wal-Mart Stores, Inc., 360 F.3d 674 (7th Cir. 2004); Husko v. Geary Electric, Inc., 316 F. Sup. 2d 664 (N.D. Ill. 2004). These cases do not advance the defendant’s argument. Their holdings relate to the authority of the federal District Court to exercise jurisdiction over attorney’s fees under 28 U.S.C. § 1447 (c), and they do not address the jurisdiction of the state courts to enforce an order by the federal court after a remand pursuant to that statute. In short, we have found no case, and the defendant has cited none, suggesting that Congress intended § 1447 (c) to preempt state law and to make the federal court the exclusive forum for the determination of the amount of attorney’s fees that are an appropriate sanction for an improper removal of a state case.

In the alternative, the defendant maintains that the exercise of jurisdiction by the trial court in this case was improper in view of federal case law that requires the District Court to exercise its discretion to determine whether an improper removal of a case from a state court warrants an award of attorney’s fees and costs to the opposing party. That argument presupposes that the District Court failed to exercise such discretion in this case. The record of the District Court proceedings establishes the opposite. The District Court expressly followed the principles recently articulated by the United States Supreme Court in Martin v. Franklin Capital Corp., 546 U.S. 132, 140-41, 126 S. Ct. 704, 163 L. Ed. 2d 547 (2005), in rendering its judgment that the circumstances of the removal in this case warranted an award of attorney’s fees and costs. If the defendant wanted to challenge the manner in which the District Court exercised its discretion, the defendant could have filed an appeal from the District Court’s order in the Second Circuit. See Bryant v. Britt, 420 F.3d 161 (2d Cir. 2005).

B

Under the governing principles of federal law, the remand order of the District Court again vested jurisdiction over the proceedings in this case in the trial court.8 Such jurisdiction is buttressed by the well established principle that, as a general matter, state trial courts have the competence to determine a reasonable figure for an award of attorney’s fees. The trial court is a court of general jurisdiction that regularly determines appropriate awards for fees and costs. “Courts have a general knowledge of what would be a reasonable attorney’s fee for services which are fairly stated and described. . . . [C]ourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees. . . . The court [is] in a position to evaluate the complexity of the issues presented and the skill with which counsel had dealt with these issues.” (Citation omitted; internal quotation marks omitted). Miller v. Kirshner, 225 Conn. 185, 201, 621 A.2d 1326 (1993). The defendant has offered no argument that the court lacked competence to make the requisite finding under the circumstances of this case; rather, the defendant has argued that under the “American rule,” the court had limited authority to award attorney’s fees.

“The general rule of law known as the ‘American rule’ is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . Connecticut adheres to the American rule. . . . There are few exceptions.” (Citations omitted; internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 311, 685 A.2d 305 (1996). Although the record does not reveal whether the court found that any other exception to the “American rule” applied, the court implicitly gave preclusive effect to the finding by the District Court that, under federal law, the plaintiff is entitled to receive attorney’s fees and costs.

In Albahary v. Bristol, 276 Conn. 426, 886 A.2d 802 (2005), our Supreme Court held that the doctrine of collateral estoppel, a relative of res judicata, precluded litigation in state court of an issue previously decided by a federal court. See also Kline v. Burke Construction Co., 260 U.S. 226, 230, 43 S. Ct. 79, 67 L. Ed. 226 (1922) (where federal and state courts have concurrent jurisdiction over questions of personal liability “[e]ach court is free to proceed in its own way and in its own time .... Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending . . . .”). Pursuant to the doctrine of res judicata, the court properly gave preclusive effect to the award of attorney’s fees and did not need to find a distinct state law exception to the “American rule” to order payment of attorney’s fees.

We conclude, therefore, that the trial court had jurisdiction in this case to order the defendant to pay attorney’s fees and costs to the plaintiff in accordance with the District Court’s order of remand. Applying principles of concurrent jurisdiction and res judicata, it was bound to honor the District Court’s ruling that as a matter of law, the plaintiff was entitled to recover fees and costs. It was authorized, thereafter, as a court of general jurisdiction, to determine the sole issue remaining on the motion for attorney’s fees—the amount of the plaintiffs recovery.

II

The defendant next claims that the trial court violated her right to procedural due process under the fourteenth amendment to the United States constitution by awarding attorney’s fees to the plaintiff without making a finding that the defendant removed the case to federal court in bad faith and without holding an evidentiary hearing. The plaintiff contests the validity of both claims. We agree with the plaintiff.

A

The defendant maintains that, as a matter of law, the trial court had no authority to make an award of attorney’s fees without a factual finding that the defendant removed the case to the District Court in bad faith. The defendant’s due process argument is unpersuasive because it rests on two related assumptions that are unsustainable. The first assumption is that the defendant was unable to raise this argument by way of appeal from the order of the District Court. The defendant has offered no factual or legal basis for this assumption. The second assumption is that, although no appeal was filed with the Second Circuit, an attack on a judgment grounded on a due process claim permits a collateral attack on a judgment that would otherwise be res judicata. That argument, too, cannot succeed.

The issue of whether the doctrine of res judicata is applicable to the facts of the present case is a question of law. Accordingly, our review is plenary. See Gaynor v. Payne, 261 Conn. 585, 595, 804 A.2d 170 (2002). The issue, in this case, is whether the court had the authority to reconsider the merits of the order of the District Court entitling the plaintiff to an award of attorney’s fees relating to the defendant’s improper removal of the case. Our case law is directly to the contrary. In CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999) (en banc), our Supreme Court held that “ [t]he fact that a prior judicial determination may be flawed ... is ordinarily insufficient, in and of itself, to overcome a claim that otherwise applicable principles of res judicata preclude it from being collaterally attacked. ... If the judgment [in the prior action] is erroneous, the unsuccessful party’s remedy is to have it set aside or reversed in the original proceedings.” (Citations omitted; internal quotation marks omitted.) Id., 395.

Federal law does not permit appellate review of an order remanding to state court a case that has been improperly removed. Under 28 U.S.C. § 1447 (d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .” Considering the unappealability of an order to remand, the Second Circuit, in dicta, has noted that application of res judicata to issues decided by the federal court in an order to remand might not be appropriate in state court. MediSys Health Network, Inc. v. Local 348-S United Food & Commercial Workers, 337 F.3d 119, 124 (2d Cir. 2003). No such concern exists with regard to fees and costs, however, because that determination is appealable as an issue that is collateral to the remand order. Bryant v. Britt, supra, 420 F.3d 161; see also Stallworth v. Greater Cleveland Regional Transit Authority, 105 F.3d 252, 255 (6th Cir. 1997).

The defendant has advanced no persuasive reason under state law to warrant our reversal of the judgment of the trial court. “The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. . . . [T]he doctrine of res judicata . . . [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim. . . . Accordingly, the salient inquiry is whether the present matter involves the same claim that was litigated in the prior action.” (Citations omitted; internal quotation marks omitted). Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616, 619, 902 A.2d 24 (2006). Because, in this case, that inquiry must be answered in the affirmative, we affirm the judgment of the trial court.

B

The defendant’s remaining due process claim asserts that she had a right to an evidentiary hearing on the amount of the plaintiffs attorney’s fees. The plaintiff maintains that the defendant never pursued such a claim at the trial court. Our appraisal of the merits of the defendant’s claim is impaired by the defendant’s failure to comply with her responsibility to provide an adequate record. See Practice Book § 60-5.

The plaintiff alleges that, at the trial court, the defendant never challenged the reasonableness of the fees that the plaintiff sought to recover or the propriety of her documentation. The defendant has not filed with this court either a memorandum of decision or a signed transcript of the relevant proceedings. The defendant did not file a motion for articulation; see Practice Book §§ 60-5 and 66-5; to enable the court to fill in these gaps. In short, we do not know what issues the court addressed or how it resolved them, and, therefore, any other attacks by the defendant on the judgment of the trial court have no basis in the record. Because the defendant has failed to establish where in the record the court was clearly apprised of this claim or how it ruled on its merits, this claim warrants no further consideration, as it has been inadequately briefed. See Eremita v. Morello, 111 Conn. App. 103, 107, 958 A.2d 779 (2008).

In sum, we conclude that the trial court properly awarded the plaintiff attorney’s fees and costs, as ordered by the District Court. The principle of res judicata precludes the defendant from relitigating the question of whether the plaintiff is entitled to receive such fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 1447 (c) of title 28 of the United States Code provides in relevant part: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.”

       The plaintiff alleged in the complaint that in attempting to collect moneys owed under a stipulated judgment from an action against Thomas Greaves, the defendant’s father, the plaintiff sought to serve Thomas Greaves with postjudgment interrogatories. The plaintiff further alleged that the defendant interfered with the plaintiffs collection efforts by falsely informing the marshal attempting to serve Thomas Greaves that he no longer resided in the state and by making false allegations about the plaintiff to various law enforcement and regulatory officials.

       In her counterclaim, the defendant alleged that the plaintiff committed an abuse of process by bringing this action to collect a debt owed by a third party. She further claimed that the plaintiff defamed her by alleging that the defendant made false statements to the marshal. Finally, the defendant alleged that the plaintiff engaged in wrongful collections practices when she sent a letter to the defendant threatening to bring charges and to file grievances if the debt was not paid.

       The defendant also argued that the court lacked subject matter jurisdiction because the District Court did not find that the defendant had acted in bad faith.

       Neither party has questioned the jurisdiction of this court to hear the defendant’s appeal. We agree that the award of attorney’s fees in this case is a final judgment that is immediately appealable because the award terminated a separate and distinct proceeding. See Briggs v. McWeeny, 260 Conn. 296, 314, 796 A.2d 516 (2002); State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see also Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988).

       The constitution of the United States, article six, cl. 2, provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

       Section 1446 (d) of title 28 of the United States Code provides: “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded.”

       Even if this court disagreed with the legal standards relied on by the District Court, or otherwise disagreed with its reasoning or conclusions, we would have no authority to overturn that ruling.

       Other state courts have reached the same conclusion under similar factual circumstances. See, e.g., Abels v. Ungarino & Eckert, LLC, 951 So. 2d 318 (La. App. 2006), cert. denied, 951 So. 2d 1106 (La. 2007). Indeed, federal District Courts in other jurisdictions have found it appropriate to reserve for the state court the question of a specific amount for fees and costs where the District Court has already determined that an award of fees is necessary under 28 U.S.C. § 1447 (c). See Hodach v. Caremark RX, Inc., 374 F. Sup. 2d 1222, 1226 (N.D. Ga 2005).

       On the merits of the defendant’s claim, we note that the defendant’s criticism of the District Court’s failure to make a finding of bad faith fails to take into account the changes in the relevant standard articulated in Martin v. Franklin Capital Corp., supra, 546 U.S. 140-41.

       The defendant also argues that her due process rights were violated because the trial court did not determine whether she acted in bad faith before holding her liable for the plaintiffs attorney’s fees. We have no basis in the record for reviewing this claim, as the trial court did not address it and the defendant did not request an articulation under Practice Book § 66-5.

       The defendant has cited, in her appendix, her request to the court, at the conclusion of the July 21, 2008 hearing on the plaintiffs motion for attorney’s fees, that “as far as attorney’s fees are concerned ... if in fact that the court is going to rule on that, that we do get a hearing on it based upon what is going on.” The record contains no judicial response to this request.


text:
    SARA SOCCI ET AL. v. JEFFREY S. PASIAK
    (AC 30049)
    Gruendel, Lavine and Lavery, Js.
    Argued May 21
    officially released September 1, 2009

      Daniel M. Young, for the appellant (named plaintiff).

      Patrick D. McCabe, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff Sara Socci appeals from the trial court’s denial of her application for a prejudgment attachment of certain property of the defendant, Jeffrey S. Pasiak. On appeal, the plaintiff claims that the court improperly found that payment of any judgment rendered against the defendant was secured adequately by insurance. We reverse the judgment and remand this matter to the trial court with direction to enter a prejudgment remedy order in the amount of $250,000.

The following facts and procedural history are relevant to the resolution of the plaintiffs appeal. On March 17,2008, the plaintiff filed a complaint against the defendant, alleging false imprisonment, intentional infliction of emotional distress, reckless infliction of emotional distress and negligent infliction of emotional distress. Pursuant to General Statutes § 52-278h, the plaintiff subsequently filed an application for a prejudgment remedy seeking an attachment of $750,000 against the defendant’s property and assets.

On June 16 and 17, 2008, the parties attended a prejudgment attachment hearing pursuant to General Statutes § 52-278d. ***Following the hearing, the court concluded that the plaintiff adequately proved probable cause that judgment would enter against the defendant only for negligent infliction of emotional distress in the amount of $250,000. In making this finding, the court rejected the plaintiffs original request for a $750,000 prejudgment remedy attachment.

Before issuing a final order, the court recessed for a short period to allow the parties to discuss insurance coverage. Earlier in the hearing, it was stipulated that the defendant’s insurance company had issued a reservation of rights letter with respect to all counts. Because the court did not know what insurance coverage existed, however, it sought clarification from the parties. Following the recess, the defendant’s counsel stated that the defendant had a homeowner’s insurance policy, including umbrella coverage, of $1.3 million. As a result, the court denied the plaintiffs prejudgment remedy application on the basis of the availability of adequate insurance coverage. This appeal on the limited issue of insurance coverage followed.

On appeal, the plaintiff claims that the court improperly found that payment of any judgment rendered against the defendant was adequately secured by insurance under § 52-278d (a) (2). Specifically, the plaintiff argues that the court’s adequacy finding was unreasonable because it is unsupported by evidence. We agree.

We first set forth the following legal principles. “[I]n reviewing a court’s decision to deny or to grant a prejudgment remedy, we decide only whether that decision constituted clear error.” Connecticut Light & Power Co. v. Gilmore, 89 Conn. App. 164, 180-81, 875 A.2d 546, cert. denied, 275 Conn. 906, 882 A.2d 681 (2005). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn. App. 638, 648, 922 A.2d 1131 (2007). “[On appeal], therefore, we need only decide whether the trial court’s conclusions were reasonable under the clear error standard.” (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 138, 943 A.2d 406 (2008).

“Because a prejudgment remedy is a statutorily based remedy, we first examine the language of the statute.” Id., 145. Under General Statutes § l-2z, when the language is plain and unambiguous, we need look no further than the statutory words themselves. See Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 798, 970 A.2d 640 (2009). Because the language of the controlling statute in this case is plain and unambiguous, the defendant had the right to a hearing in which he could demonstrate that payment of a potential judgment against him was “adequately secured by insurance . . . .” General Statutes § 52-278d (a) (2).

During the hearing, the defendant did not place the insurance policy into evidence. The only evidence the defendant introduced was the declaration page of the umbrella policy, which showed a coverage limit of $1.3 million. In addition, the defendant’s counsel acknowledged that a reservation of rights as to providing a defense and coverage existed on all counts. The reservation of rights letter was not placed into evidence. This farther put into question the insurance coverage.

Despite the evidentiary absence of a policy, the defendant argues that his personal umbrella policy declaration sufficiently supports a finding of insurance coverage. Without determining whether the defendant’s argument has merit, this argument loses sight of the fact that insurance constitutes a contract between the parties. Kane v. American Ins. Co., 52 Conn. App. 497, 501, 725 A.2d 1000 (1999), aff'd, 252 Conn. 113, 743 A.2d 612 (2000). “It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy.” (Internal quotation marks omitted.) Clinch v. Generali-U.S. Branch, 110 Conn. App. 29, 35, 954 A.2d 223 (2008). Because the policy was never admitted into evidence, and especially in light of the reservation of rights, this declaration form standing alone provides insufficient evidence as to the contours of coverage. See 16 S. Williston, Contracts (4th Ed. Lord 2000) § 49:25, p. 139 (when declarations page unclear, it must be read with body of policy). Thus, notwithstanding the defendant’s insurance declaration, the record leaves us with the definite and firm conviction that the court unreasonably found an adequate showing of insurance. The defendant did not meet his burden of proof that adequate insurance existed to cover a judgment against him.

The judgment is reversed and the case is remanded with direction to enter an order granting the prejudgment remedy in the amount of $250,000.

       Socci’s husband, Kraig Socci, also was a plaintiff at trial. Because only Sara Socci has appealed, we refer to her in this opinion as the plaintiff.

       The granting or denial of a prejudgment remedy is deemed a final judgment for purposes of appeal. See General Statutes § 52-2781 (a).

       The plaintiffs claims arose out of an event on May 9, 2006, when a masked gunman allegedly entered the defendant’s home office, where the plaintiff was employed as the defendant’s administrative assistant, and bound, gagged and blindfolded the plaintiff while threatening her life and the lives of her family.

       General Statutes § 52-278d (a) provides in relevant part: “The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of . . . (2) whether payment of any judgment that may be rendered against the defendant is adequately secured by insurance . . . .”

       The plaintiff did not appeal from the court’s $250,000 attachment finding.

       The court, however, originally granted the prejudgment remedy application with a potential setoff for a later showing of insurance coverage. Following a short recess, counsel for the defendant submitted a declarations page as the only evidence of the $1.3 million homeowner’s insurance policy.

       See Palasky v. Glemacy Builders, LLC, Superior Court, judicial district of New London, Docket No. CV-06-5001528-S (August 13, 2008) (“[When a reservation of rights defense is tendered] it is the court’s obligation to determine whether it is satisfied of the existence of insurance sufficient to satisfy awards that may ultimately be rendered. . . . Given that defense counsel opted not to divulge the specific conditions of the reseivation of rights at the hearing ... a realistic possibility exists that there may not be insurance coverage .... As a result, the court does not factor in the aforementioned insurance policy in deciding this matter.” [Citations omitted; internal quotation marks omitted.]).