text:
    RICHARD AUSTIN v. COMMISSIONER OF CORRECTION
    (AC 19524)
    Schaller, Mihalakos and Zarella, Js.
    Submitted on briefs October 18, 2000
    officially released January 30, 2001

      James A. Shanley, Jr., special public defender, filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, Mary Elizabeth Baran, senior assistant state’s attorney, and John A. East III, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Richard Austin, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. He claims that the habeas court improperly determined that his trial counsel provided effective assistance. In his petition, the petitioner claimed that his trial counsel was ineffective in failing (1) to explain properly the consequences of waiving his right to a probable cause hearing, (2) to investigate properly the criminal case by not interviewing three eyewitnesses, (3) to examine an eyewitness to the shooting for a potential conflict of interest and (4) to request the removal of two jurors because they discussed the case with each other. The habeas court denied the petition and the petitioner’s subsequent request for certification to appeal. We dismiss the appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000), citing Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77, 712 A.2d 992 (1998).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999). “For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” White v. Commissioner of Correction, supra, 58 Conn. App. 170, citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). In the present case, the petitioner has not established that the habeas court abused its discretion in finding his petition for certification to be “wholly frivolous.”

The habeas court’s dismissal of the petition for a writ of habeas coipus was based on a review of the petitioner’s claims and the court’s conclusion that “[t]he petitioner has failed to prove how the result would be different. He has also failed to prove counsel’s representation fell below an objective standard of reasonableness. . . . No grounds were produced to have the juror . . . excused. Nor did the petitioner prove how [the witness] might be better cross-examined. The strategy of waiving the hearing in probable cause was obvious since the defense was relying on the defense of extreme emotional disturbance which would not seek to negate intent and therefore would be barred from use in the hearing of probable cause.” Accordingly, the habeas court concluded that the petitioner failed to carry the burden of proof required to establish that his trial counsel provided ineffective assistance.

After a review of the record and briefs, we conclude that the petitioner failed to make a substantial showing that he has been denied a state or federal constitutional right. Furthermore, the petitioner has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. Simms v. Warden, supra, 230 Conn. 612; Simms v. Warden, supra, 229 Conn. 189.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       Following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. The petitioner was sentenced to a total effective sentence of sixty years for the murder charge, to be served concurrently with a five year sentence for the weapons charge. Our Supreme Court affirmed the judgment in State v. Austin, 244 Conn. 226, 710 A.2d 732 (1998).


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LAWRENCE HAWTHORNE
    (AC 19648)
    Foti, Pellegrino and O’Connell, Js.
    Argued December 5, 2000
    officially released January 30, 2001

      Michael A. D’Onofrio, special public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a) and assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The defendant’s sole claim is that the trial court improperly accepted an inconsistent verdict of guilty of these two crimes. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of September 26,1997, the victim accompanied the defendant to a small, empty room in the Greene Homes housing complex in Bridgeport to ingest cocaine. When they had finished, the defendant attacked the victim, starting by inserting three fingers into the victim’s vagina. The victim told him to stop and that she wanted to leave, but the defendant would not let her go and pushed her against the wall. The victim hit him with her pocketbook and then with one of her shoes. The defendant struck the victim in the head with her other shoe and punched her in the face. The victim struggled with the defendant, and, in the course of that struggle, a portion of her stockings was tom from her body. The defendant then wrapped the stocking around the victim’s neck and told her that “[she] was not going to get out of [there] alive.” The defendant also grabbed an empty beer bottle and struck the victim in the face with it. Eventually, the victim was able to break away and flee the building.

The victim was transported to Bridgeport Hospital where she was treated for multiple injuries, including a fractured jaw, a puncture wound to her leg, a hematoma around her eye, and bleeding from her nose and ears. The emergency room physician testified that the victim has suffered serious physical injuries and that there was a substantial risk of death. The victim remained in the hospital for about two weeks and underwent two surgical procedures.

The defendant contends that the verdict of guilty of attempt to commit murder and assault in the first degree is inconsistent as a matter oflaw when the same person is the victim of both crimes. He argues that attempt to commit murder and assault by reckless conduct require incompatible mental states. Attempt to commit murder requires an intent to cause death, whereas assault in the first degree requires reckless conduct. He relies on State v. King, 216 Conn. 585, 595, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991), for the proposition that he may be convicted of one count or the other, but not of both.

In King, our Supreme Court enunciated that “the statutory definitions of intentionally and recklessly are mutually exclusive and inconsistent. Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result. . . . Therefore, the transgression that caused the victim’s injuries was either intentional or reckless; it could not, at one and the same time, be both. . . . Where a determination is made that one mental state exists, to be legally consistent the other must be found not to exist. ... By no rational theory could the jury have found the defendant guilty of both crimes. . . . Logically then, the jury verdicts convicting the defendant of two offenses each of which requires a mutually exclusive and inconsistent state of mind as an essential element for conviction cannot stand.” (Citations omitted; internal quotation marks omitted.) Id., 593-94. Referring to the murder and assault counts, the King court held that “the trial court must instruct the jury that, depending on its findings of fact, it may convict the defendant of one count or the other, but not of both.” Id., 595.

The defendant’s reliance on King is misplaced. King is inapposite because it involved only one criminal act (setting fire to another prisoner’s cell). In the present case, however, the jury reasonably could have bifurcated the defendant’s attack on the victim as follows: (1) the general battering of the victim, including punching her in the face, hitting her head with a shoe, striking her face with a beer bottle and banging her head against the wall; and (2) the wrapping of the leg of the victim’s stocking around her neck while telling her that she would not get out of the room alive.

The defendant argues that everything he did to the victim was part of one overall beating and that the jury could not divide the facts so as to assign a portion of them to the attempt to commit murder count and another to the assault count. We are not persuaded. In State v. Glover, 40 Conn. App. 387, 395, 671 A.2d 384, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996), this court, bifurcated the facts where the defendant fired a gun at the victim’s abdomen and then attempted to fire at the victim’s head, although the gun misfired. We determined that the juiy could have concluded that the shot at the victim’s abdomen evinced an intent to cause serious physical injury, whereas the misfired shot at, the victim’s head supported an intent to kill.

Where, as here, the jury reasonably could find that the defendant committed one act or group of acts with one mental state and a second act or acts with a different, mental state, there is no inconsistency. The court properly accepted the verdict of guilty on both charges.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of aggravated sexual assault in the first degree.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . (Emphasis added.)
      General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . .

         General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . (Emphasis added.)
      General Statutes § 53a-3 (13) provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . .


author: PER CURIAM.

text:
    KENDALL HOOKS v. COMMISSIONER OF CORRECTION
    (AC 19912)
    Foti, Schaller and Spear, Js.
    Submitted on briefs December 4, 2000
    officially released January 30, 2001

      Sarah F. Summons filed a brief for the appellant (petitioner).

      James E. Thomas, state’s attorney, Joy K. Fausey, deputy assistant state’s attorney, and George Ferko, assistant state’s attorney, filed a brief for the appel-lee (respondent).
   Opinion

PER CURIAM.

The petitioner was convicted of manslaughter in the first degree, conspiracy to commit assault in the first degree and assault in the first degree. We affirmed the judgment of conviction in State v. Hooks, 30 Conn. App. 232, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993).

The petitioner now appeals from the dismissal of his habeas corpus petition and the denial of his petition for certification to appeal. He claims that the habeas court abused its discretion and improperly concluded that his trial counsel was effective because counsel failed (1) to prepare the petitioner properly to take the witness stand in his defense and (2) failed to investigate three witnesses. We conclude that the court did not abuse its discretion in denying his petition for certification to appeal. Accordingly, we dismiss the appeal.

The court predicated the dismissal of the petition for a writ of habeas corpus on a factual review of his claims and a determination that he had failed to rebut “the strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

After being canvassed by the trial court, the petitioner elected not to take the witness stand in his criminal trial. Trial counsel testified before the habeas court that although he had advised the petitioner not to testify because of his criminal record and because he would make a poor witness, the petitioner ultimately made the decision not to testify. The court accepted his counsel’s testimony and rejected the petitioner’s claim that he did not testify at trial because counsel failed to prepare him to take the witness stand.

The petitioner also claims that his counsel failed to investigate certain witnesses. None of those witnesses testified at the habeas trial. Moreover, the petitioner offers nothing to show what their testimony would have been and how that testimony may have supported his claims.

After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right, and has failed to sustain his burden of persuasion that the denial of certification to appeal was an abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). We conclude that the court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The petitioner also claims that counsel was ineffective at sentencing. That claim was not alleged in his petition, and the court did not address it. We are not required to address claims that parties do not distinctly raise at trial, absent plain error or constitutional error. See Practice Book § 60-5; State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).


author: FOTI, J.

text:
    JOANNE K. HOYE v. THE DEWOLFE COMPANY, INC.
    (AC 20002)
    Foil, Pellegrino and O’Connell, Js.
    Argued December 5, 2000
    officially released January 30, 2001

      Thomas G. Benneche, for the appellant-appellee (defendant).

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellee-appellant (plaintiff).
   Opinion

FOTI, J.

The defendant, The DeWolfe Company, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, Joanne K. Hoye, in the amount of $34,166.74 as to the first count of her complaint, which sounded in breach of contract. The plaintiff cross appeals from the court’s ruling denying her prejudgment interest. On appeal, the defendant contends that the court improperly found that the parties’ severance agreement (1) was a separate agreement from a prior employment agreement between the parties and did not waive, change or modify that prior agreement, and (2) did not have to be signed by the defendant. The plaintiff contends in her cross appeal that the court abused its discretion by not awarding prejudgment interest. We affirm the judgment of the court.

The following facts are relevant to this appeal. At the time of trial, the plaintiff, a real estate agent for twenty-three years, had been affiliated for the past twenty years with T. R. Preston, a Connecticut Realtor, and had served as a senior partner of that company when the defendant acquired it in 1995.

On March 1, 1995, the parties entered into an agreement whereby the defendant, a real estate agency, would employ the plaintiff until February 28, 1998, at an annual salary of $136,667. The contract required the plaintiff to use her best efforts to promote the interests of the defendant, not to engage in any other business activity during the term, except as permitted in writing, and not to disclose any confidential information during or after her term of employment. If the plaintiff violated the terms of the agreement, she could be terminated from her employment. Additionally, the agreement provided that it could not be changed orally, but only by an agreement in writing and signed by the party to be charged.

On that same day, the parties also executed a non-competition agreement pursuant to which the plaintiff could be terminated for violating its terms. That agreement provided that the plaintiff would not, for a period of five years from the signing of the agreement, solicit any person or entity located in Connecticut who was a customer of the defendant, its predecessor or its affiliated companies. The agreement further provided that the plaintiff was prohibited from recruiting or hiring any employees or sales associates of any affiliated companies, wherever located, or inducing the employees to leave their employment, including independent contractors of the defendant.

In January, 1998, the defendant offered the plaintiff either another position within the company or a three month severance agreement. On February 13,1998, the plaintiff, in writing, accepted the defendant’s offer of three months severance pay effective March 1, 1998. The defendant, in response thereto, sent the plaintiff a severance agreement with an effective date of March 2, 1998. The plaintiff signed and promptly returned the agreement. On March 11, 1998, the defendant issued the first installment payment due under the severance agreement in the amount of $3568.70 by direct deposit into the plaintiffs account. Shortly thereafter, the defendant withdrew or canceled the deposit on the basis of the mistaken belief that the plaintiff had solicited an employee of the defendant’s subsidiary to leave. The plaintiff, however, had not engaged in such conduct.

The plaintiff thereafter brought this action to enforce the severance agreement. The court rejected the defendant’s argument that the agreement was an attempt to change the terms of the 1995 employment contract. The court concluded that the severance agreement constituted a fully enforceable contract that was supported by consideration. Nevertheless, the court did not award the plaintiff interest under General Statutes § 37-3a.

The defendant contends that our review is plenary because this matter presents definitive contract language so that the determination of what the parties intended by their contractual commitments is a question of law. The plaintiff, on the other hand, claims that the issues present the question of whether the parties intended to modify an existing contract or to enter into a separate and subsequent agreement, which is a question of fact. We agree with the plaintiff.

Whether the severance agreement called for new and subsequent performance for the benefit of the parties, and whether it changed anything regarding the pre-March, 1998 performance by each party, constitute questions of fact. As to the second issue, it also is a question of fact whether the parties intended to be bound without a formal written and signed document. Whether and in what terms parties have undertaken a contractual commitment are questions of fact, the determination of which by the trial court may be overturned on appeal only if the trial court’s determinations are clearly erroneous. Sandella v. Dick Corp., 53 Conn. App. 213, 219, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849 (1999).

I

The defendant argues that the court improperly found that the severance agreement was a separate and distinct contract. We disagree.

“[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). . . . State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). 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. . . . State v. Hodge, 248 Conn. 207, 218-24, 726 A.2d 531 (1999). . . . State v. King, [249 Conn. 645, 660, 735 A.2d 267 (1999)].” (Internal quotation marks omitted.) State v. Ross, 251 Conn. 579, 592-93, 742 A.2d 312 (1999).

At trial, the defendant argued that paragraph ten of the employment contract provided that the parties could not change the agreement orally, but could do so only by agreement in writing, signed by the party against whom enforcement of any waiver, change, modification or discharge was sought. Under the defendant’s theory, the severance agreement had to be signed by the defendant because that agreement sought to change the terms of the employment contract. The court found that the severance agreement did not waive, change or modify the employment contract and noted that no evidence was presented that either party did not adequately or completely fulfill the obligations under the employment agreement or the noncompete agreement. The court found that the severance agreement, as a separate agreement, called for new and subsequent performance for the benefit of both parties, and changed nothing as to the prior agreements. Both the subject matter and the time for performance of the terms of the severance agreement make it clear that the factual findings of the court have a basis in the evidence. Those factual findings, therefore, sustain the court’s conclusion that the severance agreement was separate and distinct from the employment contract. The severance agreement constituted an additional agreement between the parties to be performed after the term of employment set forth in the employment contract.

The court’s factual findings as set forth in its memorandum of decision are supported by the evidence. The court’s determinations, therefore, are not clearly erroneous.

II

The defendant next claims that the court improperly found that the severance agreement did not have to be signed by the defendant to be legally enforceable. We disagree.

The court found that the parties intended to be bound by the severance agreement regardless of the fact that the defendant had not signed the document. Parties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated. Schwarz-schild v. Martin, 191 Conn. 316, 321-22, 464 A.2d 774 (1983).

Because the severance agreement was a distinct contract, the terms of the employment contract requiring that any modification be in a writing signed by the defendant are inapplicable and cannot affect the validity of the severance agreement. The court determined that the parties, by their words and conduct, had bargained for and agreed that the plaintiff would receive severance benefits. The court’s findings are supported by the evidence, and the court’s conclusion that the severance agreement did not have to be signed by the defendant to be legally enforceable is not clearly erroneous.

Ill

The plaintiff cross appeals from the court’s denial of her request for prejudgment interest pursuant to § 37-3a on the amount of the judgment not paid to her under the terms of the severance agreement.

“It is clear that Connecticut case law establishes that prejudgment interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted.” Paulus v. LaSala, 56 Conn. App. 139, 147, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). In reviewing the plaintiffs request, the court concluded that although the defendant incorrectly believed that the severance agreement was unenforceable, it was “bolstered by advice of counsel” and had a good faith belief that the agreement was unenforceable. The court further concluded that the burdens assumed by the plaintiff, while sufficient to constitute consideration, were not so significant as to require the payment of interest.

We conclude that the court did not abuse its discretion in refusing to award prejudgment interest to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found for the defendant on the second count of the complaint in which the plaintiff sought double damages for the failure to pay wages pursuant to General Statutes § 31-72. The plaintiff has not made that ruling part of her cross appeal.

       General Statutes § 37-3a provides in relevant part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .”


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. GENO BRYANT
    (AC 19568)
    Foti, Spear and Mihalakos, Js.
    Argued September 28, 2000
    officially released February 6, 2001

      Norman A. Pattis, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Geno Bryant, appeals from the judgments of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-8 and 53a-54a (a), assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), tampering with a witness in violation of General Statutes § 53a-151 (a) and bribery of a witness in violation of General Statutes § 53a-149 (a). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence an out-of-court statement that had been given by Keith Bryant, a witness to the murder and the assault, and (2) refused to admit an out-of-court statement that had been given by Danny Beverly, who also had been charged in connection with the events at issue. We affirm the judgments of the trial court.

The juiy reasonably could have found the following facts. On November 26, 1996, at approximately 1 p.m., Tyrell Blackwell, Sterling Cole and Roosevelt Green were conversing outside Willie Wilson’s house at 154 Rosette Street in New Haven. Soon thereafter, Keith Bryant, who is not related to the defendant, arrived and spoke with Green, a friend of Bryant. While Bryant and Green were talking, the defendant approached, driving a navy blue Buick Park Avenue automobile. He was accompanied by Beverly, who was seated in the back on the driver’s side. The defendant stopped the Buick outside Wilson’s house.

Cole approached the Buick and saw that the defendant was the driver and that Beverly was in the backseat. The defendant, who was known by witnesses as “Jizzy Vance,” told Cole that he had been planning to kill somebody, but had recently reconsidered. Keith Bryant, who was still talking to Green, heard the defendant or Beverly say, “Hurry up, hurry up, what you gonna do?”

Immediately thereafter, Beverly exited the Buick, walked toward Green and fired three or four gunshots at him. Keith Biyant saw Beverly retrieve some of the spent shells and get back into the Buick. The Buick, which was still being operated by the defendant, then sped away.

One of the gunshots struck Blackwell, killing him. Another struck Green, the intended victim, causing a catastrophic injury to one of his hands. At the scene, Green stated that he had been shot by Jizzy Vance (the defendant) and Danny Beverly. Additional facts will be discussed where relevant to the issues on appeal.

I

The defendant claims that the court improperly admitted Keith Bryant’s out-of-court statement. He argues initially that the court improperly admitted the statement for substantive purposes under the rule of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defendant also argues, in the alternative, that the admission of the statement violated his right to due process as guaranteed by article first, § 8, of the constitution of Connecticut.

The following additional facts are relevant to our resolution of this claim. On December 4,1996, six days after the shooting, Keith Bryant gave an oral statement to two detectives from the New Haven police department. In his statement, which the detectives recorded, Bryant incriminated the defendant and Beverly. At the defendant’s trial, Keith Bryant testified, and the state moved to have his statement admitted into evidence for substantive purposes under the Whelan rule. The court, over the defendant’s objection, granted the state’s request.

A

The defendant argues that the court improperly admitted Bryant’s statement under Whelan, “absent any showing of its reliability.”

“In Whelan, [our Supreme Court] adopted an exception to the hearsay rule allowing the substantive use of a prior inconsistent written statement of a nonparty witness if the declarant: (1) signed the statement; (2) had personal knowledge of the facts set forth in [his] statement; and (3) testifies at trial and is subject to cross-examination.” State v. Borrelli, 227 Conn. 153, 158-59, 629 A.2d 1105 (1993).

In the present case, the defendant seeks to further his argument by alleging that police interviews, including the one during which Keith Bryant’s statement was recorded, have “built-in factors that work against an assumption of reliability,” rendering them “inherently coercive.” He does not, however, challenge the court’s finding that Bryant’s statement satisfied the Whelan requirements previously stated.

“As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless is admissible to establish the truth of the matter asserted because it falls within a class of hearsay evidence that has been deemed sufficiently trustworthy to merit such treatment. Thus, as with all other admissible nonhearsay evidence, [our Supreme Court] allow[s] the fact finder to determine whether the hearsay statement is credible upon consideration of all the relevant circumstances. Consequently, once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, [as the state has done in the present case], that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible.” (Emphasis in original.) State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000). Accordingly, the state was not required to make a showing of reliability beyond satisfying the criteria of Whelan to secure proper admission of Bryant’s statement.

B

The defendant also argues that his right to due process, as guaranteed by article first, § 8, of the constitution of Connecticut, was violated when the court admitted Bryant’s statement. The defendant specifically alleges that “it offends fundamental fairness to permit the state to introduce for substantive purposes a statement of a [nonparty] witness when only one party [i.e., the state] was present at the time the statement was given.” Because our review of the record reveals that this claim is unpreserved, we will begin our analysis by considering the defendant’s request for review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“Under Golding, a defendant can prevail on an unpre-served claim of constitutional error only if all of the following conditions are met: ‘(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ Id. ‘The first two requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail.’ State v. Woods, 250 Conn. 807, 815, 740 A.2d 371 (1999). This court, however, is free to dispose of a Golding claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992).” State v. Eaton, 59 Conn. App. 252, 269, 755 A.2d 973, cert. denied, 254 Conn. 937, 761 A.2d 763 (2000).

Although the record is adequate to review the defendant’s claim, he nonetheless fails to qualify for review under Golding because he has not cited any law to support his position that his claim rises to the level of a constitutional violation. Moreover, we are not aware of any authority that supports his position. “[I]t would trivialize the constitution to transmute a nonconstitu-tional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.” (Internal quotation marks omitted.) State v. Dash, 242 Conn. 143, 152, 698 A.2d 297 (1997). Thus, because the defendant has not demonstrated that his claim alleges the violation of a fundamental constitutional right, we conclude that the defendant has failed to satisfy the second prong of Golding. Accordingly, we decline the defendant’s invitation to examine this issue as a state constitutional question.

II

The defendant also claims that the court improperly refused to admit Beverly’s out-of-court statement. He argues that the court’s refusal to admit that evidence contravened either the hearsay exception for statements against penal interest or the residual exception to the hearsay rule. We disagree.

The following additional facts are relevant to our resolution of this claim. On December 5, 1996, seven days after the shooting, Beverly gave an oral statement to two detectives from the New Haven police department. In his statement, which was recorded, Beverly described the incident as follows. He was wearing a necklace as he was walking along Rosette Street when Green approached and asked him for it. Moments later, Green brandished a gun and a struggle ensued. Beverly, after wresting the gun from Green, fired it twice. One of the gunshots struck Green. Beverly then dropped the gun and ran along Rosette Street toward Hurlburt Street. When he reached the intersection, he encountered the defendant, whom he had seen sitting in a parked, blue Buick Park Avenue in the center of Rosette Street at the time of the shooting. The defendant, who was driving the Buick along Rosette Street, promptly gave him a ride to the home of Beverly’s aunt, which was at the intersection of Hurlburt Street and Washington Street.

At trial, the defendant called Beverly as a witness. Upon taking the witness stand, Beverly invoked his fifth amendment privilege against compulsory self-incrimination. The court found that a murder charge was pending against Beverly that related to the November 26, 1996 shooting. Accordingly, the court ruled that Beverly’s exercise of his fifth amendment privilege was valid and that he was unavailable to testify. It also declined to admit Beverly’s statement into evidence.

“A trial court’s ruling on the admissibility of evidence is entitled to great deference and will be overturned only if a clear abuse of the court’s discretion is shown and the defendant shows that the ruling caused substantial prejudice or injustice.” State v. Lewis, 245 Conn. 779, 804 n.23, 717 A.2d 1140 (1998). An appellate tribunal is required to make every reasonable presumption in favor of upholding the trial court’s ruling. Id., citing State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). With that standard of review in mind, we now address the defendant’s argument that the court improperly failed to admit Beverly’s statement under either of the two exceptions to the hearsay rule that are at issue in this appeal.

A

“The law regarding the admissibility of third party statements against interest is well settled. A trustworthy third party statement exculpatory of the accused and against the penal interest of the declarant is admissible at the trial of the accused if the declarant is unavailable. . . . The determination of whether such a statement is sufficiently trustworthy to be admitted into evidence at trial lies within the sound discretion of the trial court. . . .

“Four considerations have been deemed relevant when examining the trustworthiness of declarations against penal interest: (1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; [and] (4) the availability of the declarant as a witness.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lopez, 239 Conn. 56, 70-71, 681 A.2d 950 (1996).

In the present case, focusing on the third consideration used in examining the trustworthiness of statements against penal interest, the court ruled that Beverly’s statement did not constitute a statement against penal interest because it did not significantly inculpate Beverly, the declarant. Our examination of Beverly’s statement reveals that it is comprised principally of responses that exculpate the declarant. In his statement, Beverly indicated that during Green’s failed attempt to rob him of his necklace at gunpoint, he fired two gunshots at Green in self-defense. Beverly also stated that the gun he fired was the same gun that Green used to threaten him. At the time Beverly gave his statement, however, he must have known that people at the scene had seen him fire a gun at Green because Green’s friends, specifically, Cole, Blackwell and Keith Bryant, were in the immediate area. Analyzed in that context, the statement, which Beverly gave one week after the shooting, resembles more of an attempt by Beverly to justify his actions in the presence of police detectives than it does a statement against his interests. For that reason, we conclude that the third consideration employed in examining the trustworthiness of statements against penal interest, as well as the first consideration, i.e., the time of the declaration and the party to whom the declaration was made, counsel against admitting Beverly’s statement.

We now turn to the second consideration used in examining the trustworthiness of statements against penal interest, that is, whether there is corroborating evidence in the case. “The corroboration requirement ... is significant and goes beyond minimal corroboration.” State v. Rosado, 218 Conn. 239, 249, 588 A.2d 1066 (1991). “Third party statements exculpating an accused are [especially] suspect . . . .’’Id. In his statement, Beverly asserted that he and the defendant had arrived at Rosette Street separately, and that the defendant had not been involved in the shooting. Beverly also asserted that the defendant was not aware that a shooting had occurred at the time he offered Beverly a ride. We conclude that Beverly’s statement exculpated the defendant and, therefore, was suspect. Consequently, Beverly’s statement needed to be corroborated by evidence that clearly indicated it was trustworthy before it properly could be admitted. See id.

Our examination of the record reveals that Beverly’s statement was not significantly corroborated by the evidence. For example, Beverly asserted in his statement that he had dropped the gun at the scene after firing it twice at Green. There was, however, no direct or circumstantial evidence that corroborated that part of Beverly’s statement. In fact, there is evidence to the contrary: The police did not recover a gun at the scene despite the fact that a police officer arrived there on foot moments after the shooting. Consequently, the second consideration, too, counsels against admitting Beverly’s statement.

Our inquiry need not proceed further, as we are satisfied that the untrustworthiness of Beverly’s statement was substantial and obvious. Accordingly, we conclude that the court did not abuse its sound discretion when it declined to admit Beverly’s statement under the hearsay exception for statements against penal interest.

B

The law regarding the admissibility of hearsay under the residual exception to the hearsay rule also is well settled. “The ‘residual,’ or ‘catch-all,’ exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” (Internal quotation marks omitted.) State v. Lewis, supra, 245 Conn. 805.

Our examination of the record reveals that Beverly’s statement “was not imbued with guarantees of reliability and trustworthiness sufficient to support its admission.” State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990). Our earlier inquiry revealed that Beverly’s statement was not trustworthy. Additionally, Beverly’s apparent friendship with the defendant further undermined the reliability and trustworthiness of Beverly’s statement. See State v. Oquendo, 223 Conn. 635, 668, 613 A.2d 1300 (1992). Thus, we cannot say that the circumstances surrounding Beverly’s statement established “a motivational basis for truth-telling equivalent to those associated with the traditional exceptions to the hearsay rule . . . .” (Internal quotation marks omitted.) Id. Accordingly, we conclude that the trial court did not abuse its broad discretion when it declined to admit Beverly’s statement under the residual exception to the hearsay rule.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of a second charge of tampering with a witness in violation of General Statutes § 53a-151 (a), and a charge of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1).

       The court ordered that the defendant and Beverly be tried separately. See Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (holding that defendant’s rights under confrontation clause of sixth amendment to United States constitution were violated when trial court admitted into evidence at joint trial confession of nontestifying codefendant that also incriminated defendant).

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”

       “[A] tape recording of a prior statement may be admitted even though it was not signed because ‘the recording of the witness’ voice imparts the same measure of reliability as a signature.’ ” State v. Borrelli, 227 Conn. 153, 158-59 n.5, 629 A.2d 1105 (1993), quoting State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993).

       At trial, the defendant raised a similar due process challenge; however, in so doing, he never mentioned the Connecticut constitution and appeared, instead, to be claiming that the admission of Keith Bryant’s statement violated his right to due process as guaranteed by the fourteenth amendment to the United States constitution. In his brief to this court, the defendant claims, for the first time, that the state due process clause offers more extensive protection than the federal due process clause and that the Whelan rule, which deals with the admissibility of hearsay evidence, runs afoul of the fundamental fairness guarantee of the state due process clause when its application allows the admission into evidence of statements given to the police when no one was present to represent the interests of the defendant. “[Rjeview of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection.” (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 310, 664 A.2d 743 (1995). Consequently, we conclude that the defendant’s state due process claim is unpreserved.

       In his brief to this court, the defendant claims also that his right to due process under the fourteenth amendment to the United States constitution was violated when the following combination of events occurred: (1) the state caused his case to be tried before Beverly’s by “manipulat[ing] . . . the[ir] order,” and (2) the court subsequently declined to relax the rules of evidence and permit him to introduce Beverly’s out-of-court statement into evidence. During oral argument, however, the defendant withdrew that claim.

       The fifth amendment to the United States constitution provides in relevant part: "No person . . . shall be compelled in any criminal case to be a witness against himself . . .


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. STANLEY T. VALINSKI
    (AC 17466)
    Landau, Zarella and O’Connell, Js.

      Argued October 17, 2000
    officially released February 6, 2001

      Robert J. McKay, for the appeflant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Andrew M. Wittstein, supervisory assistant state’s attorney, and Dawn Gallo, deputy assistant state’s attorney, for the appeflee (state).
   Opinion

LANDAU, J.

This case returns to the AppeUate Court on remand from our Supreme Court for resolution of the remaining claims of the defendant, Stanley T. Valin-ski. See State v. Valinski, 254 Conn. 107, 756 A.2d 1250 (2000). The remaining claims pertain to the defendant’s conviction under General Statutes (Rev. to 1995) § 14-215 (c) and are (1) whether the state’s evidence was sufficient to sustain the jury’s verdict of guilty, (2) whether the prosecutor’s representation to the jury that she would call a particular witness, but whom she did not call, deprived the defendant of his right to a fair trial, (3) whether the trial court failed to instruct the jury properly regarding the effect of the defendant’s stipulation that he previously had been convicted of a violation of General Statutes § 14-227a (a) and (4) whether the sequence of the court’s instructions improperly diluted the state’s burden of proof. See State v. Valinski, supra, 131 n.19. We affirm the judgment of the trial court.

The relevant facts, as the jury reasonably could have found them, were set out in this court’s first opinion in this matter. State v. Valinski, 53 Conn. App. 23, 731 A.2d 311 (1999), rev’d, 254 Conn. 107, 756 A.2d 1250 (2000). “The parties stipulated that on December 15, 1994, the defendant was convicted of operating a motor vehicle while under the influence of liquor or drugs in violation of § 14-227a (a). As a result of the conviction, the department of motor vehicles (department) suspended the defendant’s operating privileges on January 13, 1995. On January 14, 1995, the department issued a work permit to the defendant.

“On Saturday, May 13, 1995, State Trooper Kevin Albanese stopped the defendant’s vehicle on Route 44 in Canaan after twice observing it swerve in and out of the oncoming lane and nearly strike a guardrail post after it drifted over the white shoulder line. While waiting for the defendant’s license and registration, Albanese asked the defendant where he had been. The defendant replied that he was returning from a fishing trip with his dog. After Albanese reviewed the [special or] work permit that the defendant handed him and noticed the restrictions on the permit, he again inquired of the defendant where he had been. This time, the defendant replied that he was returning from a fishing trip with several business associates, but, when asked, was unable to supply their names.

“After receiving the defendant’s information, Albanese contacted Troop B in North Canaan and confirmed that the defendant’s right to operate a motor vehicle was under suspension. Albanese detected a strong odor of alcohol and noticed that the defendant’s eyes were red and glassy. On the basis of the defendant’s erratic driving, the strong odor of alcohol and the appearance of the defendant’s eyes, Albanese believed that the defendant was operating while under the influence of alcohol. After administering three field sobriety tests, Albanese confirmed his belief. Thereafter, Albanese arrested the defendant and transported him to Troop B, where the defendant refused to submit to any further testing.” Id., 27-28.

The following procedural history is also relevant to this appeal. “Following a jury trial, a verdict of guilty was returned on the three noninfraction counts: two counts of operating a motor vehicle while his license was under suspension and one count of operating a motor vehicle while under the influence of intoxicating liquor. On the charge of failure to drive on the right, the court made a finding of guilty. . . . Thereafter, on June 25, 1997, the trial court granted the defendant’s motion to set aside the verdict on one count of operating a motor vehicle while his license was under suspension [in violation of General Statutes (Rev. to 1995) § 14-215 (a)] and denied the defendant’s motions for judgment of acquittal on the remaining charges and for new trial.” Id., 28.

I

The defendant’s first claim is that the state failed to present sufficient evidence to sustain the jury’s verdict that he was guilty of operating a motor vehicle when his operator’s license was under suspension in violation of § 14-215 (c). Specifically, the defendant claims that the state failed to prove the charge beyond a reasonable doubt because he was operating his motor vehicle within the scope of a work permit; see General Statutes § 14-37a; which he alleged as an affirmative defense to the charge of operating under suspension. The defendant claims that he proved his affirmative defense by a preponderance of the evidence. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . In this process of review, the probative force of the evidence is not diminished because it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citations omitted.) State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995).

“In determining whether the defendant is guilty, [i]t is the sole right of the . . . trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. ... It is also the absolute right and responsibility of the [trier] to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Furthermore, in considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor axe they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. . . . State v. Roy, 38 Conn. App. 481, 488-89, 662 A.2d 799 (1995) [cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996)].” (Citations omitted; internal quotation marks omitted.) State v. Garrett, 42 Conn. App. 507, 512, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996).

The defendant stipulated that his license to operate a motor vehicle was under suspension on May 13,1995, the date in question. He argues that the preponderance of the evidence demonstrates that he was validly operating his motor vehicle pursuant to the work permit issued to him by the department. The state does not dispute that at the time of his arrest, the defendant had a valid work permit. The jury had to determine whether the defendant was operating his motor vehicle for purposes related to his employment and, thus, within the scope of the work permit.

The jury heard testimony from Terry Zietler, a driver improvement analyst with the department, who testified that a work permit allows an individual to operate a motor vehicle for employment purposes while the individual’s license is under suspension. The defendant called Donald Bradley, a department legal adviser, as an expert witness. Bradley testified that a work permit is a term “that the department uses to indicate that the right to operate a motor vehicle is restricted in some way” and described the scope of activities permitted under a work permit.

Albanese testified that he stopped the defendant at 4 p.m. on Saturday, May 13, 1995, after observing the defendant’s vehicle cross over the midline and shoulder line of the highway. He detected an odor of alcohol about the defendant. In response to a question from Albanese, the defendant replied that he had been fishing with his dog. After reviewing the defendant’s work permit, Albanese again asked the defendant where he had been. This time the defendant .responded that he had been fishing with some business associates, but he was unable to identify any of them. During trial, the defendant called one of his business associates as a witness. The business associate testified that he had been fishing with the defendant on the date in question. The state, however, impeached the business associate’s testimony with a prior inconsistent statement concerning the month in which he went fishing with the defendant.

The jury was called on to determine the credibility of the witnesses, which is a jury’s primary function. On the basis of our review of the record, we conclude that the jury reasonably could have found that the defendant had gone fishing with his dog on May 13,1995. The jury also reasonably could have concluded that fishing was not related to the defendant’s employment and that the defendant was operating his motor vehicle outside the scope of his work permit. The defendant, therefore, did not prove his affirmative defense by a preponderance of the evidence. Consequently, there was sufficient evidence for the jury to conclude that the state proved beyond a reasonable doubt that the defendant was operating a motor vehicle while his license was under suspension in violation of § 14-215 (c).

II

The defendant’s second claim is that he was deprived of a fair trial pursuant to article first, § 8, of the constitution of Connecticut as a result of prosecutorial misconduct. He claims specifically that a prosecutor’s “knowing use of misleading testimony may violate due process.” The defendant claims that the prosecutor’s statement to the jury that a certain witness would be called to testify, but who was not in fact called, was false and a misrepresentation.

During trial, at the direction of the court, the prosecutor informed the jury that the state might call another witness and identified the individual by name to determine whether the individual was known to the jury. The state, however, did not call the individual to testify. The defendant did not object to the prosecutor’s statement when it was made or when the state rested its case. He now claims that the prosecutor’s statement was misleading because it gave the jury the impression that the state had more information against the defendant than it presented at trial.

“[T]his court will not review claims that were not properly preserved in the trial court. ... A defendant may prevail on a claim of constitutional error not preserved at trial, however, if the defendant satisfies the four part standard set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).” (Citations omitted.) State v. Jones, 50 Conn. App. 338, 346-47, 718 A.2d 470 (1998), cert. denied, 248 Conn. 915, 734 A.2d 568 (1999). In this case, the defendant did not request that we review this unpreserved claim under Golding. “ ‘In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.’ ” Id., 347. Furthermore, the defendant’s claim is devoid of legal analysis and is nothing more than a mere assertion of a violation of his right to due process. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). We therefore decline to review this claim.

Ill

The defendant’s third claim is that the court improperly instructed the jury regarding the effect of the stipulation that he previously had been convicted of operating a motor vehicle under the influence of intoxicating liquor in violation of § 14-227a (a). The defendant’s argument is that because the state charged him with violating both subsections (a) and (c) of § 14-215 and the court failed to instruct the jury as to which of the violations the stipulation pertained, the jury was confused and had no choice but to find the defendant guilty of both charges. The defendant claims that he was prejudiced because § 14-215 (c) carries a mandatory sentence and § 14-215 (a) does not. We disagree.

Although the defendant did not object at trial to the court’s instruction, he seeks review under State v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. Practice Book § 60-5. We conclude that although his claim is reviewable under the first two prongs of Golding because the record is adequate for review and the claim involves a fundamental right to due process; see State v. Delgado, 50 Conn. App. 159, 170, 718 A.2d 437 (1998); State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994); the claim nevertheless fails because no constitutional violation clearly exists.

Under Golding, “a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.” (Internal quotation marks omitted.) State v. Pearsall, 44 Conn. App. 62, 68, 687 A.2d 1301, cert. denied, 240 Conn. 910, 689 A.2d 473 (1997). In making that determination, the jury charge “is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citation omitted; internal quotation marks omitted.) Id.

The following facts are necessary to our resolution of defendant’s claim. During trial, the state introduced into evidence, without objection by the defendant, a written stipulation that he previously had been convicted of violating § 14-227a (a). The stipulation correctly stated that “[t]his predicate conviction is an element of the offense of General Statutes § 14-215 (c).” In its instructions, the court told the jury that the defendant had been charged with violations of § 14-215 (a) and (c). The court stated: “Now, in one of those counts there is a claim that the defendant was operating under suspension when his license was suspended for a conviction of a violation of [ § 14-227a]. There is a stipulation for you to consider on that that is marked as court exhibit 1, and it relates directly to those facts, those elements.” Thereafter, the jury found the defendant guilty of violating both subsections (a) and (c) of § 14-215. Subsequently, the court granted the defendant’s motion to set aside the verdict on the charge of operating a motor vehicle while under suspension in violation of § 14-215 (a).

Although the defendant claims that the jury was confused by the court’s failure to state whether the stipulation pertained to subsection (a) or (c), the court’s instruction clearly informed the jury that “one of those counts” involved the suspension of the defendant’s license because of a conviction of § 14-227a. The stipulation itself, which was before the jury as court exhibit 1, clearly stated that the “predicate conviction is an element of the offense of General Statutes § 14-215 (c).” Thus, there is no merit to the defendant’s claim that the jury was confused as to which count the stipulation applied. Furthermore, there is no claim that the stipulation did not apply to subsection (c), the charge of which the defendant was convicted. Even if the jury incorrectly applied the stipulation to subsection (a), the court’s setting aside of the verdict on that count eliminated any prejudice to the defendant. Reading the charge as a whole, we conclude that the court properly instructed the jury, and there is no reasonable possibility that it was misled. See State v. Delgado, supra, 50 Conn. App. 170. Therefore, the record does not support the defendant’s claim under Golding that a constitutional violation clearly exists and clearly deprived him of a fair trial, nor does it give rise to plain error because the instructions did not affect the fairness or integrity of the proceedings or result in a manifest injustice to the defendant. See State v. Ryan, 53 Conn. App. 606, 612, 733 A.2d 273 (1999).

IV

The defendant’s final claim is that the sequence of the court’s instructions to the jury improperly diluted the state’s burden of proof in violation of his state and federal constitutional rights. Specifically, the defendant claims that the court instructed the jury that the defendant had to prove his affirmative defense by a preponderance of the evidence immediately after charging on operating a motor vehicle while under the influence of intoxicating liquor, rather than giving the instruction after the charge on operating a motor vehicle while his license was under suspension. The defendant concedes that he did not preserve this claim at trial, but maintains that we should review it pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), State v. Golding, supra, 213 Conn. 239-40, and Practice Book § 60-5 (plain error). The defendant’s claim is reviewable under the first two prongs of Golding because the record is adequate for review and the claim involves a fundamental right to due process. See State v. Delgado, supra, 50 Conn. App. 170; State v. Walker, supra, 33 Conn. App. 769. We are not persuaded, however, that a constitutional violation clearly exists.

The following additional facts and procedural history are necessary for the resolution of this claim. In its charge, the court instructed the jury on the law governing the case and on how to apply it during deliberations. The court first instructed the jury on the state’s burden of proving guilt beyond a reasonable doubt. The court then instructed the jury on the specific charges against the defendant. After it instructed the jury on the charge of operating a motor vehicle under the influence of intoxicating liquor, the court charged the jury on direct and circumstantial evidence. The court charged that the jury could rely on either or both types of evidence if the cumulative effect of the evidence on which the jury relied was that the state had proved the elements of the crimes beyond a reasonable doubt. Immediately thereafter, the court instructed the jury on the effect of the defendant’s work permit and his burden of having to prove by a preponderance of the evidence that he was operating a motor vehicle within the scope of his work permit. Later in its charge, the court repeated the instruction to the jury that “the state must prove beyond a reasonable doubt, that the defendant was under the influence of intoxicating liquor while operating the motor vehicle” and that it is the state’s obligation “to prove all of the elements charged against the defendant beyond a reasonable doubt.”

As we stated concerning the defendant’s third claim, under Golding, “a defendant may prevail on an unpre-served constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . Furthermore, [aj jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Citations omitted; internal quotation marks omitted.) State v. Pearsall, supra, 44 Conn. App. 68.

We must determine, therefore, whether the court’s instructions were improper in view of the entire charge. The defendant claims that the sequence of the court’s charge improperly diluted the state’s burden of proof. The defendant claims that the court presented the defendant’s burden of proof on his affirmative defense of operating within the scope of his work permit immediately after giving an instruction on the charge of operating under the influence of intoxicating liquor. Our review of the transcript, however, reveals that after it gave the instruction on operating under the influence, the court charged the jury on direct and circumstantial evidence, and that the state must prove the elements of the crimes charged beyond a reasonable doubt. Only then did the court instruct the jury on the effect of having a work permit and that the defendant’s burden of proof was by a preponderance of the evidence. Subsequently, the court again instructed the jury that the state had the burden of proving the charges against the defendant beyond a reasonable doubt.

On the basis of our review of the entire charge, we conclude that the court properly instructed the jury on the state’s burden of proof for every element of the crimes charged beyond a reasonable doubt and on the defendant’s burden of proving that he was operating within the scope of a work permit by a preponderance of the evidence. It was not reasonably possible that the court’s charge misled the jury as to the scope of the state’s burden of proof. Accordingly, the record in this case does not support the defendant’s claim that a constitutional violation clearly exists and clearly deprived him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the first part of a two part substitute information, the state charged the defendant with, inter alia, one count each of violation of General Statutes (Rev. to 1995) § 14-215 (a) and (c), which provide: “(a) No person to whom an operator’s license has been refused, or whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked. . . . (c) Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.”

       See General Statutes § 14-230 (a).

       General Statutes § 14-37a provides in relevant part: “(a) Any person whose operator’s license has been suspended pursuant to any provision of this chapter or chapter 248 . . . may make application to the Commissioner of Motor Vehicles for a special permit to operate a motor vehicle to and from such person’s place of employment or, if such person is not employed at a fixed location, to operate a motor vehicle only in connection with, and to the extent necessary, to properly perform such person’s business or profession. . . . (c) A special operator’s permit issued pursuant to this section shall be of a distinctive format and shall include the expiration date and the legend ‘work only.’ ”

       We previously disposed of another portion of the defendant’s sufficiency of the evidence claim, namely that he could not be in violation of General Statutes (Rev. to 1995) § 14-215 (c) because work permits are not mentioned in the statute. See State v. Valinski, supra, 53 Conn. App. 28-31.

       In State v. Valinski, supra, 254 Conn. 121-29, our Supreme Court held that General Statutes (Rev. to 1995) § 14-37a may be alleged as an affirmative defense to a charge of violating General Statutes (Rev. to 1995) § 14-215 (c), operating a motor vehicle under a suspended license.

       recor(j indicates that with respect to a separate incident unconnected to this appeal, the defendant, a self-employed advertising agent, applied for a work permit on September 7, 1994, which was valid until December 13, 1994. In a letter dated January 9, 1995, the defendant requested an extension of the 1994 work permit. Thereafter, the defendant’s work permit was extended until January 14, 1996. In the permit application, and again in his letter dated January 9, 1995, the defendant indicated that he needed the permit only to drive to meet with clients and to shoot, record and edit radio and television commercials.” State v. Valinski, supra, 53 Conn. App. 26-27 n.7.

       Bradley also testified: “I use as an example when police call me that the person dropping their child off on the way back and forth to work, dropping a child off in school is probably not outside the scope. When they are leaving the bar at 2 a.m. on Sunday morning, that is pretty clearly outside the scope in most cases. Anything else is gray . . . .”

       We note that the defendant refers to the statement that the prosecutor made to the jury as “testimony.” The prosecutor’s statement, however, was not testimony. It is well settled that statements made by counsel are not evidence. See State v. Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993).

       The stipulation clearly stated, however, that the conviction for operating under the influence of intoxicating liquor was an element of § 14-215 (c). The stipulation was before the jury as court exhibit 1 and stated: “The State and the defendant do hereby stipulate to the fact that on December 15, 1994, in the Bristol Superior Court, the defendant was convicted of Operation under the Influence of Alcohol, in violation of Connecticut General Statutes § 14r-227a (a). This predicate conviction is an element of the offense of General Statutes § 14-215 (c)." (Emphasis added.)

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

       The defendant invokes his due process rights under the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. We note that the defendant, however, “does not claim . . . that he is entitled to any greater protection under the due process clause of the state constitution than he is under the analogous provision of the federal constitution. For purposes of this appeal, therefore, we Ireat the state and federal due process clauses as embodying the same level of protection.” State v. Austin, 244 Conn. 226, 237 n.11, 710 A.2d 732 (1998).
      The defendant also claims that the instructions violated his right to a jury trial by an impartial jury under the sixth and fourteenth amendments to the United States constitution, and article first, §§ 8 and 19, of the constitution of Connecticut. Because the defendant has failed to brief how the instructions violated his right to ajuiy trial or to an impartial jury, we decline to review the claim and deem it abandoned. See Nazarko v. Conservation Commission, 50 Conn. App. 548, 550 n.2, 717 A.2d 850, cert. denied, 247 Conn. 940, 941, 723 A.2d 318 (1998).

       The defendant also cannot prevail under the plain error doctrine. See Practice Book § 60-5. “[T]his court will reverse a judgment for plain error only in the truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Rodriguez, 49 Conn. App. 606, 612, 716 A.2d 914, cert. denied, 247 Conn. 925, 719 A.2d 1171 (1998). We decline to review the defendant’s claim under the plain error doctrine because we have concluded that the trial court’s instructions to the jury did not affect the fairness or integrity of the proceedings or result in a manifest injustice to the defendant. See State v. Sivri, 46 Conn. App. 578, 590, 700 A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).