author: DiPENTIMA, C. J. ESPINOSA, J.,

text:
    STATE OF CONNECTICUT v. MILTON CAMPBELL
    (AC 33142)
    DiPentima, C. J., and Espinosa and Sheldon, Js.

      Argued October 11, 2012
    officially released February 26, 2013

      Charles F. Willson, special public defender, for the appellant (defendant).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Pamela J. Esposito, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Milton Campbell, appeals from his conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), and of being a persistent serious felony offender in violation of General Statutes § 53a-40 (c) and (j). On appeal, the defendant claims that he was deprived of a fair trial due to improper statements made by the prosecutor during closing arguments. We disagree that the prosecutor’s statements deprived the defendant of a fair trial, and therefore affirm the judgment of conviction.

The jury reasonably could have found the following facts. The victim met the defendant in a substance abuse program in 2009. The victim checked into the program for her use of cocaine. In November, 2009, the victim and the defendant agreed to get high together. The victim picked the defendant up from his home in Bridgeport on November 6, 2009. After purchasing alcohol from a local store and obtaining cocaine, the victim went back with the defendant to his home, where they consumed the alcohol and she used her cocaine. Once she had consumed the drugs, the victim intended to leave the defendant’s house, but the defendant blocked her way and made sexual advances toward her. The defendant turned off the light, and the victim felt something sharp against her throat, which she thought was a knife. The defendant then instructed the victim to take off her clothes. Fearing for her safety, the victim complied, but asked the defendant to use a condom. The defendant put on a condom and proceeded to have intercourse with the victim both vaginally and anally. At a certain point, the defendant stopped, and the victim asked to go to the bathroom, but the defendant would not permit her to do so. The victim testified that the defendant seemed to go into a kind of “zone” of semi-consciousness, and, in that time, she called his father, who lived upstairs, and 911. The Bridgeport police responded to the victim’s call, but when they knocked on the door, the defendant held his hands around the victim’s throat to keep her quiet. The police left the defendant’s residence, and the victim asked to use the bathroom again. The defendant allowed her to go, and when she was finished, he went into the bathroom. While he was in the bathroom, the victim ran out of the house to her car, which was parked on the street outside, wearing only a T-shirt and socks. After driving for a short period, the victim pulled over and called 911 again.

The police arrived at the victim’s vehicle, provided her with a blanket and sent her to a hospital. At the hospital, the victim underwent a physical examination through the use of a rape kit and was given antipreg-nancy and antiJEHV medication, in addition to a shot for sexually transmitted diseases. The police questioned the victim at the hospital, and she gave them a description of the defendant, as well as the details of the incident.

The next day, November 7, 2009, the defendant was arrested at his home. In an amended information, the defendant was charged with sexual assault in the first degree in violation of § 53a-70 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and being a persistent serious felony offender pursuant to § 53a-40 (c) and (j). The defendant pleaded not guilty to the sexual assault and kidnapping charges.

The trial began on October 22, 2010. The state presented evidence that included the results of the victim’s rape kit examination, photographs of the defendant’s house, audio recordings of 911 calls made by the victim, a crack pipe, clothing recovered from the victim and from the defendant’s home on the night of the incident, the victim’s medical records, a forensic biology section report and a DNA section report. The state presented as a witness the nurse who examined the victim and, as expert witnesses, two forensic analysts from the state forensic science laboratory.

On October 29, 2010, the jury returned a verdict of guilty on the charge of sexual assault in the first degree, but failed to reach a verdict on the charge of kidnapping. The court declared a mistrial on the kidnapping count. Following the verdict, the court accepted the defendant’s plea of nolo contendere to the amended part B information. On January 10, 2011, the court sentenced the defendant to a term of twenty-five years imprisonment for sexual assault in the first degree, as enhanced by the charge of being a persistent serious felony offender. The state entered a nolle prosequi as to the count of kidnapping in the first degree. This appeal followed.

The sole issue on appeal is whether the defendant was denied his right to a fair trial as a result of prosecutorial impropriety. Our standard of review concerning claims of prosecutorial impropriety is well settled. “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial [impropriety].” (Internal quotation marks omitted.) State v. Johnson, 71 Conn. App. 272, 285, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002), cert. denied, 537 U.S. 1207, 123 S. Ct. 1286, 154 L. Ed. 2d 1052 (2003). In analyzing claims of prosecutorial impropriety, we engage in a two step process; each step is separate and distinct. See State v. Long, 293 Conn. 31, 36, 975 A.2d 660 (2009). “First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 808, 981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010).

I

We first turn to the question of whether prosecutorial impropriety occurred. “[A]n impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial.” State v. Long, supra, 293 Conn. 36. “[Prosecu-torial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully . . . .” (Internal quotation marks omitted.) State v. Ovechka, 118 Conn. App. 733, 744, 984 A.2d 796, cert. denied, 295 Conn. 905, 989 A.2d 120 (2010).

The defendant contends that during her closing argument and rebuttal, the prosecutor made improper statements. Specifically, the defendant challenges (1) the prosecutor’s use of “you” throughout her arguments as “golden rule” arguments, (2) the prosecutor’s discussion of the habits of drug addicts as inappropriate testimony from a nonexpert and (3) the prosecutor’s discussion of the victim’s reasons for agreeing to the rape kit examination as inappropriate bolstering of the victim’s credibility. We agree that there was prosecu-torial impropriety as to the prosecutor’s use of “you” when discussing the victim’s mental state after the incident. We also agree that the prosecutor improperly opined as to the drug habits of addicts, although we do not agree that her use of “you” in that same statement rose to the level of impropriety. Further, we disagree that there was impropriety in the prosecutor’s other uses of “you” and in her discussion of the victim’s reasons for agreeing to a rape kit examination.

A

There are limits to the zeal with which a prosecutor may present her case. One such limitation is the use of a “golden rule” argument. “[A] golden rule argument is one that urges jurors to put themselves in a particular parly’s place ... or into a particular parly’s shoes. . . . Such arguments are improper because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence. . . . They have also been equated to a request for sympathy.” (Internal quotation marks omitted.) State v. Long, supra, 293 Conn. 53-54. The defendant argues that the prosecutor’s use of the word “you” more than thirty times throughout her summation and rebuttal was inappropriate. We disagree that every use was inappropriate, but we agree that in one instance the prosecutor’s statements rose to the level of impropriety.

1

We look first to the prosecutor’s use of “you” when discussing the victim’s mental state after the incident. The state argues that the prosecutor’s use of “you” was merely colloquial, and meant to encourage the jurors to use common sense to make reasonable inferences, not to put themselves in the victim’s shoes. We disagree.

In her rebuttal, the prosecutor stated, in relevant part: “And part of [the victim’s] addiction is that she made bad choices. And guess what? Being raped didn’t cure her of that addiction. It didn’t cure her of making cloudy decisions; isn’t that amazing. Rape doesn’t cure you. If you were just raped, ladies and gentlemen, would your thinking be clearer or would it be less clear? If you came to that moment in your life where you realized that all your bad decisions, your selfishness, your self-absorption, your addiction, led you all the way down to this, sitting in your car with no pants on, how would you feel about yourself? Would you try to paint yourself in a better light or [worse] light?”

“[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the [jurors’] attention from their duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Long, supra, 293 Conn. 54; see also State v. Bell, 283 Conn. 748, 773, 931 A.2d 198 (2007). In evaluating impropriety, we must distinguish between comments intended to unduly arouse the jurors’ emotions or to elicit the jurors’ sympathies and statements intended to encourage the jurors to draw inferences from the evidence. State v. Long, supra, 54. Here, we find that certain of the prosecutor’s statements exceeded asking the jury to make inferences and were intended to arouse the jurors’ sympathies and emotions.

The prosecutor went beyond asking the jurors to draw inferences from the evidence presented at trial when she stated, in relevant part: “Rape doesn’t cure you. If you were just raped, ladies and gentlemen, would your thinking be clearer or would it be less clear? If you came to that moment in your life where you realized that all your bad decisions, your selfishness, your self-absorption, your addiction, led you all the way down to this, sitting in your car with no pants on, how would you feel about yourself ? Would you try to paint yourself in a better light or a [worse] light?” (Emphasis added.) Although the statement does correspond with the defendant’s argument that the victim had a motive for lying, instead of encouraging the jurors to form an objective determination on the basis of the defendant’s and the victim’s versions of the alleged incident, the prosecutor asked the jurors to put themselves in the victim’s shoes, to speculate as to her thoughts and feelings and to make their decision based on how they might feel in a similar situation. The jurors’ feelings about rape were not evidence; it was improper for the prosecutor to ask them to use such feelings in deciding the case. It is axiomatic that a prosecutor may not advance an argument that is intended solely to appeal to the jurors’ emotions and to evoke sympathy for the victim; see State v. Thompson, 266 Conn. 440, 473-74, 832 A.2d 626 (2003); and that is precisely what the prosecutor attempted to do through her use of “you” in this statement.

2

We briefly address the defendant’s argument that the prosecutor’s use of “you” more than thirty times throughout her closing and rebuttal, beyond the instance discussed previously, violated the “golden rule.” We disagree.

“The animating principle behind the prohibition on golden rule arguments is that jurors should be encouraged to decide cases on the basis of the facts as they find them, and reasonable inferences drawn from those facts, rather than by any incitement to act out of passion or sympathy for or against any party.” State v. Long, supra, 293 Conn. 57-68. In the many instances where the prosecutor used “you” in her closing and rebuttal, aside from that discussed previously, the prosecutor used “you” in a way that the jurors could distinguish as a request for them to view evidence as a reasonable person, and not as an appeal for them to empathize with the victim. For example, the prosecutor stated, in relevant part: “[The victim] said [the defendant] threatened, or she perceived that as a threat to injure her; would you? If someone held a knife to your throat, is that reasonable?” Further, the prosecutor stated, in relevant part: “Consent is not, I called 911 and I want to get outside but he won’t let me. Are you inside voluntarily at that point? If you’ve called 911 to get you out of the house, are you there voluntarily?” As a final example, the prosecutor stated, in relevant part: “Perhaps the most compelling piece of evidence in this case is not what happened, according to [the victim], in [the defendant’s] house, but what happened afterward. Why would you go to the hospital when you are free to leave and endure [that type of] examination?” In each of these examples, the prosecutor used “you,” but she did so to direct the jurors to the evidence, not to draw their sympathies. For this reason we find no improper golden rule arguments beyond that discussed in part I A 1 of this opinion.

B

We now turn to the defendant’s contention that the prosecutor improperly discussed the habits of drug addicts and attempted to give expert opinion on the subject. The defendant argues that the prosecutor argued facts not in the record and gave her own opinion about drug use in an effort to bolster her case. We agree.

An argument may be proper when it is “based on reasonable inferences drawn from the evidence . . . not [solely on] the prosecutor’s opinion.” State v. Warholic, 278 Conn. 354, 367, 897 A.2d 569 (2006). “Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” State v. Alexander, 254 Conn. 290, 306, 755 A.2d 868 (2000). In Alexander, the court held that comments were inappropriate where a prosecutor stated, in relevant part: “Child molesters don’t sexually assault their victim in front of witnesses. They wait until they’re alone, isolated. They pick out a vulnerable child, such as an eight year old asleep in her bed. . . . Nor did [the victim] exaggerate. Nor did she have any motive to he. . . . There’s no motive for her to he. . . . [YJou’re supposed to believe that as a result of that comment [the victim] fabricated this whole incident to get back at him. I don’t know of that many eight or nine year olds that are that sophisticated to fabricate a story involving sexual abuse.” (Internal quotation marks omitted.) Id., 300-301. The court concluded that these remarks improperly provided an opinion that could not be reasonably inferred from the evidence.

Here, the prosecutor made a similar offer of her own opinion based on facts not in evidence. The prosecutor stated, in relevant part: “[I]f you know anything about addiction and you know anybody in your life who struggled with it, all you want is your drugs. Your drugs, not any drugs, your drug of choice.” As in Alexander, the prosecutor inserted her own opinion without any evi-dentiary basis. She provided the jury with her view as to the habits of drug addicts and their use preferences in order to make the victim appear more credible. The victim had testified that she wanted to leave the defendant’s home because she does not use crack cocaine; she stated that once she had used her cocaine, her purpose for being with the defendant ended. It was the defendant’s position that the victim wanted more drugs and offered sexual favors for the defendant’s crack cocaine. The prosecutor attempted to bolster the veracity of the victim’s testimony by adding her view on the habits of drug users, a view that would have made the defendant’s version of events unlikely. There was no testimony at trial that drug addicts, in general, do not use different types of drugs. For the prosecutor to conclude before the jury that drug addicts, in general, only want their drug of choice and nothing else, and to ask the jurors to apply that unfounded conclusion when considering the victim’s testimony, was improper.

C

Finally, we turn to the defendant’s assertion that the prosecutor inappropriately attempted to bolster the victim’s credibility when discussing her reasons for agreeing to submit to the rape kit examination. The defendant argues that the prosecutor improperly attempted to instruct the jury in assessing the victim’s credibility when she discussed possible reasons for a person to undergo the rape kit examination. We disagree.

“[A] prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position.” (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 462. “A prosecutor’s voucher for a witness is particularly dangerous for two reasons. First, such comments may convey the impression that the prosecutor is aware of evidence supporting charges against the defendant of which the jury has no knowledge. . . . Second, the prosecutor’s opinion carries with it the imprimatur of the [g]ovemment and may induce the jury to trust the [g] ovemment’s judgment rather than its own view of the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Alexander, supra, 254 Conn. 305.

Contrary to the statements addressed previously, here the prosecutor’s statements regarding the victim’s reasons for submitting to the rape kit examination do pertain to the evidence presented at trial. She stated, in relevant part: “Why would you go to the hospital when you are free to leave and endure that type of examination? . . . And I don’t mean to suggest that any of the gentlemen on the jury are insensitive to that type of examination, but please have a very open discussion about exactly what an examination like that would do to the female body, how that would feel. What exactly that type of an examination with certain things, without certain things, such as lubrication, exactly what that would do to the body, how that would feel.” In her testimony, the victim described the various procedures applied during her rape kit examination and the effect they had on her. For example, she stated: “I guess it’s a rape kit they did on me. ... I took medicine for thirty days — that was very — I was very sick — HIV prevention medicine .... They gave me the morning after pill. And they gave me one painful shot in my arm for, I think, all the [sexually transmitted diseases] and stuff like that . . . .’’In response to the prosecutor’s question of how the rape kit examination felt, the victim replied: “It, it was awful, honestly, it was really awful, very painful. From just already what I had went through, that was worse, it seemed like. It was, it was painful.” Here, the prosecutor merely asked the jury to infer the effect of the rape kit examination from the victim’s testimony regarding the physical pain she had experienced. Although the prosecutor’s statements could have been worded with more care, the statements regarding the rape kit examination were not improper argument.

II

Having reviewed the statements at issue, we turn to the question of whether the prosecutor’s improper statements deprived the defendant of a fair trial. The defendant argues that he was substantially prejudiced by the prosecutor’s statements, given the “number of improper comments and their repeated bearing on the credibility of the state’s most critical witness, [the victim].” We disagree.

“To determine whether the defendant was deprived of his due process right to a fair trial, we must determine whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Internal quotation marks omitted.) State v. Moore, supra, 293 Conn. 808. “[The] burden properly lies with the defendant to prove substantial prejudice.” State v. Alexander, supra, 254 Conn. 302 n.11. In determining whether prosecutorial impropriety was so serious as to amount to a denial of due process, our Supreme Court has focused on six factors: “[T]he extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).

A

We first address the prosecutor’s improper statement in her rebuttal regarding the victim’s state of mind on the night of the incident. Applying the Williams factors, we conclude that the statement did not deprive the defendant of his right to a fair trial. First, defense counsel in his closing argument invited the prosecutor’s remarks by specifically pointing to the victim’s “regret” as a motive for lying about the incident. See State v. Long, supra, 293 Conn. 51 (concluding defense counsel invited prosecutor’s inappropriate remarks when prosecutor’s “remark was part of a series of comments directly responding to defense counsel’s repeated attacks on [the victim’s] credibility during his closing argument”). Here, defense counsel stated, in relevant part: “[The victim]’s done things that she’s regretted in the past while she’s on drugs. She stole from . . . the man with whom she has a child. She did things, she admitted she’s done things she regretted when she was on drugs. Do you think she regretted what happened that night?” Further, defense counsel in his closing argument addressed the victim’s state of undress and mental state while on drugs, stating, in relevant part: “So, when the state asks you in their first opening — closing argument, when was the last time you . . . saw someone run out the house naked, there is a second part of that question, which is, when was the last time you or someone that ran out [of] the house was naked, or on crack, or on cocaine, or doing drugs? Isn’t the more reasonable version . . . [s]he smoked crack and ran out of the house?” Finally, defense counsel stated, in discussing the victim’s mental state: “Again, did she regret what was going on there? Was it drugs? Was it alcohol? Was it a little bit of both?” On the basis of these statements in defense counsel’s closing, it is evident that the prosecutor was responding to them in her rebuttal.

Looking to the next prongs of the Williams test, we conclude that the statement was isolated and not so severe as to influence the jury improperly. Although we do not condone the prosecutor’s appeal to the jurors’ emotions, the prosecutor did not frequently use “golden rule” arguments. Contrary to the thirty or more times the defendant claims that the prosecutor employed “golden rule” arguments, we found that the prosecutor violated the rule only once. The prosecutor’s statement can be isolated from her other uses of “you” throughout her closing and rebuttal. Further, the statement was not severe enough to influence the jury improperly. In determining the severity of an improper statement, our Supreme Court has noted that it considers it “highly significant [when] defense counsel fail[s] to object to any of the improper remarks, request curative instructions, or move for a mistrial.” State v. Thompson, supra, 266 Conn. 479. The court has held that “only instances of grossly egregious [impropriety] will be severe enough to mandate reversal.” Id., 480. Here, defense counsel did not object to the prosecutor’s statements in either her closing or her rebuttal argument. Nor did he ask for curative instructions. Following the court’s reasoning in Thompson, defense counsel’s lack of objection to the improper statement demonstrates that the statement was not so severe as to mandate reversal of the judgment of conviction.

The court took curative measures to prevent the jury from being unduly swayed. See State v. Stevenson, 269 Conn. 563, 598, 849 A.2d 626 (2004) (instruction was sufficient for fair trial “even though the trial court gave no specific curative instructions, [and] the court reminded the jury in its general instructions, both prior to trial and again following final argument, that what the lawyers may have said to you in argument about the facts is not testimony or evidence” [internal quotation marks omitted]). It is within a jury’s purview to determine a witness’ credibility, and the court instructed the jury in this case to that effect. The court stated, in relevant part: “You should, in short, size up the witnesses and make your own judgment as to their credibility and decide what part, all, some, or none of any particular witness’ testimony you will believe .... You should use all of your experience and your knowledge of human nature and of the motives that influence and control human conduct.” The court clearly instructed the jurors that “[y]ou may not go outside the evidence to find the facts. This means you may not resort to guesswork, conjecture, or suspicion, and you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy.” Finally, the court provided the jury with instructions on how to assess the arguments made by counsel, stating, in relevant part: “In reaching your verdict you should consider all the testimony and exhibits received into evidence, but certain things are not evidence and you may not consider them in deciding what the facts are. These include the arguments and statements by counsel. What they have said in their closing arguments and at other times is intended to help you interpret the evidence, but it’s not evidence.” While the court did not specifically point to the prosecutor’s statement, it provided the jury with sufficient foundation on what was evidence and how to analyze it properly.

Finally, we look to the remaining Williams factors, the centrality of the impropriety to the critical issues in the case and the strength of the state’s case. It is clear that credibility was a critical issue in this case, and it is undeniable that the prosecutor’s statement attempted to influence the jurors to find the victim’s version of the incident more credible than the defendant’s. See State v. Jones, 139 Conn. App. 469, 480-84, 56 A.3d 724 (2012) (noting that credibility is central issue where case relies entirely on testimony of victim), cert. granted on other grounds, 307 Conn. 957, 958, 59 A.3d 1192 (2013). The case here differs from Jones in that the state did not rely entirely on testimony; there was also physical evidence presented that supported the state’s case. The state presented physical evidence from the rape kit examination and from the defendant’s home, in addition to the testimony of a nurse and two forensic science examiners from the state. All of this evidence supported the victim’s version of the incident and contradicted the defendant’s version. “[W]e have never stated that the state’s evidence must have been overwhelming in order to support a conclusion that prosecutorial [impropriety] did not deprive the defendant of a fair trial.” States. Thompson, supra, 266 Conn. 483. The strength of the state’s case outweighed the possible effect of the impropriety on the jurors’ perception of the victim’s credibility.

In light of defense counsel’s statements inviting the prosecutor’s impropriety, the isolated nature of the prosecutor’s impropriety, the lack of severity of the statement, the sufficiency of the court’s curative instructions and the strength of the state’s case, the defendant’s claim fails under the Williams test.

B

Second, we turn to the prosecutor’s statement regarding the habits of drug addicts. First, during his closing argument, defense counsel invited the prosecutor’s statement by addressing the issue of drug addicts’ preferences in getting high. Defense counsel stated, in relevant part: “Think about the physical evidence. Think about how [the victim] did drugs. She fully admitted she did drugs; she did some cocaine but only cocaine. Is that reasonable? Is that believable? A person who is in the throes of a drug addiction, she was doing drugs, she wasn’t going to her meetings. The plan that night with [the defendant] was to get high .... Is it really open for debate that after the cocaine was done and the crack came out, she said no, no thanks, I’ll pass on that, not my cup of tea. I don’t want any of that. You can do that; I’m going to sit right here? Is that reasonable? Is that believable?” The victim stated very clearly in her testimony that she did not use crack cocaine on the night of the incident, and, although the police recovered a crack pipe from the defendant’s home, neither the state nor defense counsel introduced evidence that the victim had used the pipe. See State v. Long, supra, 293 Conn. 51 (defense counsel invited prosecutor’s inappropriate remark when prosecutor’s “remark was part of a series of comments directly responding to defense [counsel]”).

Turning to the next three Williams factors, this statement was a single instance of the prosecutor’s improperly testifying as to facts not in evidence, and the comment was not so severe that it could not be cured with proper instruction. See State v. Thompson, supra, 266 Conn. 480. The statement was short in duration and did not encompass multiple, unfounded factual assertions. Rather, the prosecutor offered her opinion on the habits of drug addicts in only one portion of her rebuttal argument. See State v. Quint, 97 Conn. App. 72, 93, 904 A.2d 216 (concluding misconduct was not severe where “it was confined to only a portion of the closing argument”), cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006). As discussed in part II A of this opinion, the court instructed the jurors on how to assess arguments made by counsel, stating, in relevant part: “In reaching your verdict you should consider all the testimony and exhibits received into evidence, but certain things are not evidence and you may not consider them in deciding what the facts are. These include the arguments and statements by counsel. What they have said in their closing arguments and at other times is intended to help you interpret the evidence, but it’s not evidence.” A court’s instructions need not specifically relate to the misconduct in order to cure any possible prejudice caused by it. See State v. Quint, supra, 93-94 (“[although the court did not issue any specific curative instruction, its preliminary and final instructions to the jury likely cured the misconduct, as it reminded the jury that it alone determine [s] the weight, the effect, the value of the evidence, as well as the credibility and believability of the witnesses” [internal quotation marks omitted]).

Finally, we turn to the remaining Williams factors, the centrality of the misconduct to critical issues in the case and the strength of the state’s case. Here, the victim’s drug use was a critical issue in the case, as both the defendant’s and the victim’s versions of the incident were dependent on their conflicting descriptions of the victim’s drug use. As discussed in part II A of this opinion, the strength of the state’s case outweighs any possible prejudice the prosecutor’s inappropriate statement may have caused. The state presented physical and testimonial evidence to support the victim’s assertion that she did not use crack cocaine. The victim stated very clearly in her testimony that she did not use crack cocaine on the night of the incident, and there was no evidence that the victim used the crack pipe recovered from the defendant’s home following the incident. Further, the state presented the results of the rape kit examination, and the nurse who administered the test testified that it showed evidence of trauma to the victim’s labia, vagina, cervix and rectum; this evidence supported the victim’s version of the incident. The strength of the state’s physical evidence pertaining both to the victim’s drug use on the night of the incident and to her physical condition after the incident outweighs any possible prejudice the prosecutor’s statement regarding the habits of drug addicts may have caused.

As instructed by State v. Williams, supra, 204 Conn. 538, “[i]n determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial.” “[A] reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the misconduct is viewed in light of the entire trial.” (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 743, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). Viewing the two improper statements cumulatively, they did not deprive the defendant of a fair trial. The challenged remarks by the prosecutor, to the extent that they were inappropriate, were invited by counsel, and although they did address critical issues in the case, they were infrequent, confined to rebuttal argument and did not evidence a pattern of misconduct sufficient to deprive the defendant of his right to a fair trial. The defendant did not object to the statements at the time of the prosecutor’s argument, nor did he seek specific, curative instructions. The court’s general instructions that the jury must decide the case on the basis of its recollection of the evidence before it and that the arguments of counsel were not binding on the jury’s determination of the facts were sufficient to cure any harm caused by the remarks at issue. See State v. Brown, 71 Conn. App. 121, 137-38, 800 A.2d 674 (concluding that multiple incidents of misconduct did not cumulatively deny defendant fair trial), cert. denied, 261 Conn. 940, 808 A.2d 1133 (2002).

The judgment is affirmed.

In this opinion SHELDON, J., concurred.

ESPINOSA, J.,

concurring. I agree with the outcome reached by the majority as well as most of the analysis in its well reasoned decision. I write separately, however, to express my disagreement with the analysis in part I A 1 of the majority opinion that addresses one of the “golden rule” claims of the defendant, Milton Campbell.

Our Supreme Court recognized in State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007), that a prosecutor may not ask the jury “to put itself in the place of the victim, the victim’s family, or a potential victim of the defendant”; id., 772; in an effort to appeal to the emotions, passions and prejudices of the jury. Arguments of this type are improper because they tend to divert the jury’s attention from a rational appraisal of the evidence. Id., 773; see also State v. Warholic, 278 Conn. 354, 376, 897 A.2d 569 (2006). “The animating principle behind the prohibition on golden rule arguments is that jurors should be encouraged to decide cases on the basis of the facts as they find them, and reasonable inferences drawn from those facts, rather than by any incitement to act out of passion or sympathy for or against any party.” State v. Long, 293 Conn. 31, 57-58, 975 A.2d 660 (2009).

In evaluating claims of prosecutorial impropriety arising from the statements made by a prosecutor, a reviewing court does not evaluate the challenged statements in artificial isolation but in the context of the evidence and the arguments of which they are a part. See State v. Francione, 136 Conn. App. 302, 325, 46 A.3d 219, cert. denied, 306 Conn. 903, 52 A.3d 730 (2012). Only when such statements are considered in appropriate context can a court accurately analyze the dispos-itive issue of whether the statements had an improper effect on the jury.

Both our Supreme Court and this court have upheld the propriety of prosecutorial arguments that have invited jurors to put themselves in the place of a party for the purpose of evaluating the reasonableness of the party’s conduct. See State v. Long, supra, 293 Conn. 58 (argument concerning victim encouraged jurors to draw inferences from evidence on basis of jurors’ views as to how similarly situated victim would act under circumstances); State v. Bell, supra, 283 Conn. 773 (arguments concerning defendant and state’s witness invited jurors to draw inferences from evidence on basis of jurors’ views as to how similarly situated persons would act under circumstances); State v. Ovechka, 118 Conn. App. 733, 746, 984 A.2d 796 (argument concerning victim asked jurors to draw inferences from evidence on basis of jurors’ views as to how similarly situated victim would act under circumstances), cert. denied, 295 Conn. 905, 989 A.2d 120 (2010).

In the present case, during closing argument, the defendant’s attorney argued that the victim was not credible with regard to any of the events at issue because there was evidence that she lied to the police and emergency personnel immediately after she fled the defendant’s apartment and called 911. The defendant’s attorney drew the jury’s attention to the undisputed evidence that the victim attempted to conceal certain facts about her encounter with the defendant on November 5, 2009, including the fact that, prior to the alleged assault, she picked up the defendant at his home, purchased alcohol and cocaine and voluntarily returned to the defendant’s home where she ingested alcohol and drugs with him. In pointing out untruthful statements the victim made to the police, the defendant’s attorney referred to the victim’s initial statement to the police that, prior to the assault, the defendant had forced her into his home at knifepoint.

The prosecutor, during rebuttal argument, referred to the ample evidence of the victim’s history of using illegal drugs. She responded to the argument by the defendant’s attorney, in relevant part, as follows: “[P]art of [the victim’s] addiction is that she made bad choices. And guess what? Being raped didn’t cure her of that addiction. It didn’t cure her of making cloudy decisions; isn’t that amazing. Rape doesn’t cure you. If you were just raped, ladies and gentlemen, would your thinking be clearer or would it be less clear? If you came to that moment in your life where you realized that all your bad decisions, your selfishness, your self-absorption, your addiction, led you all the way down to this, sitting in your car with no pants on, how would you feel about yourself? Would you try to paint yourself in a better light or a [worse] fight? So, when she calls that 911 operator, how does she paint herself? How does she portray herself? I was dragged in the house. I was held at knifepoint. . . . [S]omeone come and help me. Get me out of here. And then she has a moment and the cops come; you know what, I went there. I went there. I did it.” The prosecutor proceeded to question whether the defendant’s attorney essentially had argued that the victim was not credible because she was a drug user or because she voluntarily had engaged in drug related activities with the defendant prior to the assault.

In my view, the challenged statements, when considered in the context of the evidence presented at trial, the arguments by the defendant’s attorney and the prosecutor’s rebuttal argument, reflect that the prosecutor invited the jurors to put themselves in the place of the victim for the limited purpose of evaluating the significance of and reasonableness of the false statements that she made immediately after the assault occurred. The prosecutor’s invitation to consider the victim’s mindset did not occur in isolation; it immediately preceded a discussion of the fact that the victim provided false information to the 911 operator concerning her presence at the defendant’s home. Consistent with the victim’s trial testimony concerning her false statements to the 911 operator, the prosecutor argued that the victim’s false statements did not suggest a fabricated claim of sexual assault by asking the jury to consider that her untruthfulness to the 911 operator was motivated by an initial desire merely to portray herself in a better light following the assault. In so arguing, the prosecutor invited the jurors to draw inferences from the victim’s statements to the police based on their views as to how a reasonable person in the victim’s position might act in similar circumstances.

Thus, I would conclude that the argument was based on the evidence and that it did not suggest an appeal to the emotions, passions or prejudices of the jurors. Relying on Long, Bell and Ovechka, I would conclude that the argument was not an instance of impropriety.

For the foregoing reasons, I respectfully agree with the outcome reached by the majority, but not with the entirely of its analysis, as described previously.

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

       In the proceedings below, the rape kit was referred to as a SANE kit. The acronym SANE stands for sexual assault nurse examiner. A SANE kit includes, generally, small boxes, microscope slides and plastic bags for collecting and storing evidence such as clothing fibers, hairs, saliva, semen or body fluid, which may help identify the assailant and provide evidence supporting prosecution in a criminal trial.

       Although the defense counsel did not object to the prosecutor’s statements at the time of her summation and rebuttal, we may still review these claims. “[I]n cases involving incidents of prosecutorial [impropriety] that were not objected to at trial ... it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for areviewing court to apply the four-pronged Golding test.” State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). “The object of the inquiry before a reviewing court in claims involving prosecutorial [impropriety], therefore, is always and only the fairness of the entire trial, and not the specific incidents of [impropriety] themselves. Application of the . . . factors [in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)] provides for such an analysis, and the specific Golding test, therefore, is superfluous.” (Internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 34, 917 A.2d 978 (2007).

       We note that the defendant also argued that the prosecutor employed a “golden rule” argument in this statement. The state acknowledged in its brief that the prosecutor’s use of “you” in this statement did reference the jurors personally, but argued that the prosecutor’s action was not improper and, rather, permissibly asked the jurors to draw from their own life experiences, not their emotions. We conclude that although the prosecutor’s use of “you” in this statement was not artful, it did not improperly appeal to the jurors’ emotions.
      Where a prosecutor asks the jury to make inferences from evidence in the case, the statement is not deemed an improper appeal to the jurors’ emotions. See State v. Bell, supra, 283 Conn. 773 (“[T]he prosecutor was not appealing to the jurors’ emotions or to their sympathies for the victim. Rather, he was asking the jurors to draw inferences from the evidence that had been presented at trial regarding the actions of the defendant and [a witness], based on the jurors’ judgment of how a reasonable person would act under the specified circumstances.”); see also State v. Long, supra, 293 Conn. 58 (noting that where prosecutor “intended to encourage the jurors to draw inferences from the evidence . . . presented at trial on the basis of the jurors’ views as to how a reasonable [person] would act under the circumstances,” statements were not inappropriate). Asking the jury to decide how a reasonable person would act is not improper and does not inappropriately put the jurors into a defendant’s or another party’s shoes. Here, that is what the prosecutor did. In this regard, the statement was not improper.

       Nurse Brittany Tartaglia testified, in relevant part: “[W]e did note that there was redness and soreness around the labia, around the vagina, and the doctor — see, when the doctor addressed the cervix, he assessed that there were abrasions. . . . [The victim] was wincing in pain, and . . . she was very sore and there were small cuts or abrasions.”

       The victim stated, on cross-examination: “I don’t do hard. I don’t do crack. I only sniff cocaine and put it in a cigarette.”

       The defendant claimed that the victim used crack cocaine on the night of the incident and offered him sexual favors for more drugs. The victim testified that she uses only cocaine, not crack, and that she wanted to leave the defendant’s home after she consumed her cocaine.

       See footnote 5 of this opinion.

       The victim, in her trial testimony, admitted that she was not truthful to the 911 operator when she stated that the defendant forced her into his residence, but that she told the responding officers the truth about what had occurred. She said part of what motivated her initial statement was the fact that she was using illegal drugs and that she did not want her boyfriend to know she was at the defendant’s house for that illicit purpose.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    GAYLORD SALTERS v. COMMISSIONER OF CORRECTION
    (AC 32473)
    DiPentima, C. J., and Bear and Borden, Js.
    Argued October 18, 2012
    officially released February 26, 2013

      Mary Boehlert, assigned counsel, for the appellant (petitioner).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

DiPENTIMA, C. J.

Following the granting of certification to appeal by the habeas court, the petitioner, Gay-lord Salters, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. The petitioner claims that the court (1) improperly rejected his claim of ineffective assistance of counsel and (2) erroneously rejected his claim that he was denied a fair trial due to the prosecutor’s failure to disclose material, exculpatory information. We affirm the judgment of the habeas court.

The following facts and procedural history set forth by the court in its memorandum of decision and supported by the record are relevant to the resolution of this appeal. On November 24,1996, the petitioner participated in a gang related shooting in New Haven. At the time of the shooting, the petitioner was a member of the Island Brothers street gang, and the Ghetto Boys were a rival street gang. On that day, the petitioner and an accomplice followed a car driven by Daniel Kelley, a member of the Ghetto Boys. Either the petitioner or his accomplice fired gunshots into Kelley’s car, and Kelley sustained a gunshot wound to his shoulder. Kendall Turner, a passenger in Kelley’s car and also a member of the Ghetto Boys, sustained a gunshot wound to his elbow. Kelley’s wound caused him to lose control of the vehicle, and he crashed into two nearby cars.

The petitioner was arrested and charged with two counts of assault in the first degree pursuant to General Statutes §§ 53a-59 (a) (5) and 53a-8, and one count of conspiracy to commit assault in the first degree pursuant to General Statutes §§ 53a-59 (a) (5) and 53a-48 (a). At trial, the petitioner was represented by John R. Williams (defense counsel). Defense counsel had defended the petitioner in cases prior to the present action, and he referred to himself as “ ‘almost in-house counsel’ ” for the Island Brothers and for the petitioner. Defense counsel filed an untimely notice of alibi on “the eve of trial” on December 5, 2002. The state filed a motion to exclude alibi evidence on December 6,2002. The court granted the state’s motion that day, noting that its order pertained only to third party alibi witnesses and did not preclude the petitioner from testifying and offering an alibi on his own behalf. The petitioner was convicted by a jury of all charges and was sentenced to forty years imprisonment, execution suspended after twenty-four years, followed by five years probation. The petitioner appealed his conviction, claiming that the trial court violated his right to present a defense by precluding him from presenting testimony from an alibi witness at trial. See State v. Salters, 89 Conn. App. 221, 222, 872 A.2d 933, cert. denied, 274 Conn. 914, 879 A.2d 893 (2005). This court upheld the petitioner’s conviction. Id., 236.

The petitioner subsequently filed this second amended petition for a writ of habeas corpus in 2009. In it, he claimed that he was denied due process because the prosecutor withheld material, exculpatory impeachment information in that the prosecutor failed to provide such information pertaining to Turner, who had testified for the state in the criminal trial. He further claimed ineffective assistance of counsel because defense counsel failed to (a) sufficiently investigate, discover and present to the jury information regarding Turner’s statement, (b) conduct sufficient discovery and (c) sufficiently advise the petitioner of his right to apply for sentence review.

The second amended petition was tried before the habeas court, and defense counsel, the petitioner, the petitioner’s girlfriend, the petitioner’s mother, Turner and Kelley testified. Defense counsel testified in part that the petitioner did not provide him with an alibi until the night before trial was scheduled to begin. The court denied the petition for a writ of habeas corpus in a memorandum of decision. The court based its denial in part on its conclusion that defense counsel’s testimony was more credible than the petitioner’s testimony. Further, the court determined that defense counsel did investigate Turner’s history of criminal convictions prior to the petitioner’s trial and that the prosecutor disclosed all of the information he had pertaining to Tinner.

This appeal followed. On appeal, the petitioner claims that the habeas court improperly (1) rejected his claim of ineffective assistance of counsel and (2) rejected his claim that he was denied the right to a fair trial by the prosecutor’s failure to disclose material, exculpatory information. Additional facts will be set forth as necessary.

I

The petitioner first claims that the habeas court improperly rejected his claim of ineffective assistance of counsel. Specifically, the petitioner argues that defense counsel failed to investigate the case properly and to file timely notice of the petitioner’s alibi. We disagree.

“When a [petitioner] complains of the ineffectiveness of counsel’s assistance, the [petitioner] must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “To satisfy the prejudice prong [of Strickland], a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 91, 52 A.3d 655 (2012). Thus, the task before us is to determine whether the court appropriately determined that defense counsel's actions were objectively reasonable so as not to prejudice the petitioner.

“The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Internal quotation marks omitted.) Brown v. Commissioner of Correction, 131 Conn. App. 497, 500-501, 27 A.3d 33, cert. denied, 303 Conn. 905, 31 A.3d 1181 (2011). Here, the habeas court concluded that the petitioner did not provide an alibi until the eve of trial. In making that conclusion, the court determined that defense counsel’s testimony was more credible than the petitioner’s testimony. “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 717, 946 A.2d 1203, cert, denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). “This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Greene v. Commissioner of Correction, 96 Conn. App. 854, 857, 902 A.2d 701, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

It is not this court’s role to second guess the habeas court’s conclusion that defense counsels testimony was more credible than the petitioner’s testimony. The habeas court noted that “it is indisputable that [defense counsel] did not file the notice of alibi in a timely manner” and that “[t]here is a disputed issue of fact between the petitioner and . . . defense counsel.” The court concluded that the petitioner did not disclose the alibi defense to defense counsel “until the eve of trial.” The court stated: “While the testimony of an attorney is not inherently more credible as a matter of law . . . [t]he petitioner and his mother have a motive to fabricate [and] . . . [t]he court cannot identify any motive to lie by [defense counsel] . . . .”

It is the exclusive purview of a trier of fact to determine the credibility of witnesses, and this court does not review such determinations. Here, the court determined that defense counsel was more credible than the petitioner in concluding that defense counsel acted reasonably in filing the late notice of the petitioner’s alibi. Further, the court determined that “the strategic decisions of [defense] counsel [were] within the acceptable range of performance.” We conclude that the court did not err in rejecting the petitioner’s claim of ineffective assistance of counsel on this basis.

II

The petitioner also claims that he was denied due process. Specifically, the petitioner argues that the state failed to disclose information regarding the disposition of Turner’s 1995 arrest for gun charges, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The state argues that the petitioner’s Brady claim is procedurally defaulted. We agree and therefore decline to reach the merits of the petitioner’s claim as to this issue.

A party in a habeas appeal procedurally defaults on a claim when he raises issues on appeal that were not properly raised at the criminal trial or the appeal thereafter. See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993); Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991). “Habeas, as a collateral form of relief, is generally available to litigate constitutional issues only if a more direct route to justice has been foreclosed through no fault of the petitioner.” Tart v. Commissioner of Correction, 94 Conn. App. 134, 139, 892 A.2d 298, cert. denied, 278 Conn. 904, 896 A.2d 106 (2006). “[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate’s procedural rule. . . . [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or . . . some interference by officials . . . would constitute cause under this standard. ... A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.” (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn. App. 778, 788, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009). “The appropriate standard for reviewability of [a procedurally defaulted claim] . . . is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance .... Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice. . . . [When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test.” (Internal quotations marks omitted.) Id., 787.

In the present case, the petitioner had an available avenue for his Brady claim outside of this habeas action. The petitioner and defense counsel were aware of Turner’s history of arrests at the time of trial. At trial, defense counsel specifically discussed Turner’s records and his belief in his entitlement to them, stating, in pertinent part: “It seems to me that what I need to have are the rap sheets that show dispositions, even if they are nolles. Now I know we have an erasure statute. But I know that the erasure as defined by the statute doesn’t mean that it ceases to exist. It means it is sealed. And I believe I’m entitled to that.” The prosecutor responded: “I’ve disclosed everything I have access to .... I — the only place where the record of [Turner’s] arrest on the gun charge involving the gun . . . exist in a computer printout from this police department which says warrant served. After [t]hat, we have records that long ago from the [Superior Court] simply don’t exist .... They’ve been purged from the record center in Hartford. We wouldn’t have access to them

Although defense counsel discussed his theories as to the records’ existence at length at trial, he did not ask for an evidentiary hearing at that time. The court granted him the ability to ask Turner, outside of the presence of the jury, about the arrest. When asked whether he had been formally charged with possession of a firearm, Turner responded that he had not been, and when asked if he had been fingerprinted in relation to the gun charge, he also replied that he had not been. When defense counsel asked Turner if he thought the case was “fixed” so he would not get charged, Turner answered, “I don’t know.” Defense counsel extensively examined Turner on his criminal history, and noted that history in his closing argument, but he did not seek further disclosure from the state for the purposes of claiming a Brady violation. On direct appeal, the petitioner claimed only that he had not been allowed to present a defense adequately due to the court’s denial of his motion to present an alibi witness. State v. Salters, supra, 89 Conn. App. 222. The petitioner was aware of the records he now claims were unlawfully withheld at the time of trial and his direct appeal, and he could have raised the alleged violation at trial or on direct appeal. In other words, there was a direct route to raise a Brady violation that the petitioner did not take. For that reason, we find that his claim of unlawful withholding of evidence pertaining to Turner’s prior criminal charges is procedurally defaulted.

The petitioner did not demonstrate good cause for his failure to raise this claim at trial or on direct appeal. At trial, defense counsel questioned Turner about his criminal charges and the possibility of an erased record was discussed at length, but defense counsel made no motion or argument indicating the petitioner’s desire for an evidentiary hearing to examine the possible Brady violation he now raises. After trial and his direct appeal; see State v. Salters, supra, 89 Conn. App. 221 (petitioner claimed ineffective assistance only as to defense counsel’s failure to present notice of petitioner’s alibi in timely manner); the petitioner stated in his reply to the state’s return only that he denied the state’s claim of procedural default because “the facts giving rise to each of the [petitioner's claims are outside of the record of the trial court proceedings; they could not have been raised on direct appeal.” This is not the case. The petitioner was aware of the possible charges and had examined Turner extensively about them; defense counsel had asked for all records pertaining to Turner and the state answered that it had provided all available responsive records. The petitioner did not ask for, nor did the court make, any determination that prosecutorial impropriety had occurred. Clearly, the petitioner had sufficient facts to raise a Brady claim at trial or directly thereafter on appeal.

Further, at the habeas proceeding, the petitioner did not demonstrate good cause for his failure to raise a Brady claim. The petitioner’s counsel indicated that defense counsel was aware of Turner’s various criminal charges at trial and that he had investigated the information. The habeas court noted that there were missing records, and after such notation, the petitioner’s counsel continued to examine Turner in detail about his criminal history and the missing records. Although the petitioner’s counsel continued to question the lack of records, just as defense counsel did at trial, he did not allege or present evidence of a cause for the petitioner’s failure to claim a Brady violation with regard to that lack.

“[When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test.” (Internal quotation marks omitted.) Council v. Commissioner of Correction, 286 Conn. 477, 489-90, 944 A.2d 340 (2008). Further, pursuant to Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the seminal case regarding procedural default, a petitioner must prove both cause and prejudice in order to overcome procedural default. Because “[c]ause and prejudice must be established conjunctively, we may dispose of [a] claim if the petitioner fails to meet either prong.” (Internal quotation marks omitted.) Guadalupe v. Commissioner of Correction, 68 Conn. App. 376, 385, 791 A.2d 640, cert. denied, 260 Conn. 913, 796 A.2d 557 (2002). At no time during the habeas proceedings did the petitioner allege cause for not bringing a Brady claim at trial or on direct appeal. We conclude that on this claim the petitioner was procedurally defaulted.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court determined that the petitioner’s claims pertaining to sentence review had been abandoned. This is not an issue raised on appeal.

       We note that the court did not address the question of procedural default in its memorandum of decision and evaluated the petitioner’s claim on the merits. This does not preclude our review. “[When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test.” (Internal quotation marks omitted.) Council v. Commissioner of Correction, 286 Conn. 477, 489-90, 944 A.2d 340 (2008).

       The court stated, “[i]f there’s no record, there’s no record.”


author: PER CURIAM.

text:
    JOSEPH A. DORREMAN ET AL. v. DAVID A. L. JOHNSON ET AL.
    (AC 33614)
    Lavine, Espinosa and West, Js.

      Argued December 11, 2012
    officially released February 26, 2013

      Jason L. McCoy, for the appellants (plaintiffs).

      Thomas O. Anderson, with whom, on the brief, was Christin E. Sheehan, for the appellee (named defef-endant).
   Opinion

PER CURIAM.

The plaintiffs, Joseph A. Dorreman and Patricia C. Dorreman, appeal from the summary judgment rendered by the trial court in favor of the defendant David A. L. Johnson, an orthopedic surgeon. The plaintiffs claim that the court improperly (1) granted the defendant’s motion to preclude expert testimony and (2) granted the defendant’s motion for summary judgment. We affirm the judgment of the trial court.

The plaintiffs commenced this action in August, 2008, and later filed a two count revised complaint, dated January 8,2009. In count one, Joseph Dorreman alleged that in June, 2006, he received treatment from the defendant for a ruptured tendon in his right knee. Days after the defendant performed surgery to repair the tendon, it ruptured a second time. The defendant was aware of this fact, yet decided not to perform additional surgery to repair the affected tendon. In December, 2006, due to instability in his right knee, Joseph Dorreman fell as he was descending a staircase, thereby causing physical injuries that necessitated surgery to his left knee. The plaintiffs alleged that the defendant was negligent in his treatment of the plaintiff and that his negligence caused Joseph Dorreman to sustain various economic and noneconomic damages, including permanent physical injury. In count two, Patricia C. Dorreman brought a claim sounding in loss of consortium. In his answer, the defendant denied that he acted negligently.

In October, 2009, the court issued a scheduling order that required the plaintiffs to disclose expert witnesses on or before August 1, 2010. The order required that depositions of the plaintiffs’ experts occur by September 15, 2010. The record does not reflect the disclosure of an expert witness by the plaintiffs.

On May 25, 2011, the defendant filed a motion to preclude the plaintiffs from disclosing any expert witnesses. In support of the motion, the defendant relied on the fact that no expert witness had been disclosed and that an untimely disclosure would interfere with the orderly progress of the trial, to the defendant’s detriment. On June 1, 2011, the court, finding that the plaintiffs had not disclosed any expert witness, granted the defendant’s motion.

On May 25, 2011, the defendant filed a motion for permission to file a motion for summary judgment. The court granted the motion. In the motion for summary judgment, the defendant argued that the plaintiffs had failed to disclose any expert witnesses and that, without expert testimony, the plaintiffs were unable to substantiate a prima facie case of medical malpractice.

On June 23, 2011, over the plaintiffs’ objection, the court granted the motion for summary judgment. The court observed that the plaintiffs did not disclose an expert witness in this case and that the plaintiffs had not advanced any reason for their failure to do so. The court reasoned that the plaintiffs were required to present evidence that the defendant deviated from the standard of care and that such deficient treatment proximately caused injury. The court concluded that, without expert opinion from a similar health care provider, with regard to both of these issues, the plaintiffs were unable to satisfy their burden of proof.

I

First, the plaintiffs claim that the court improperly granted the defendant’s motion to preclude expert testimony. We disagree.

The plaintiffs argue that the ruling to preclude expert testimony was improper because “the rule was not clear” that they were required to disclose expert testimony, the sanction was disproportionately harsh, and they, in fact, timely disclosed an expert directly to the defense.

This action was commenced in August, 2008. Accordingly, Practice Book (2008) § 13-4 governs the disclosure of expert witnesses. See Practice Book § 13-4 (i) (“[t]he version of this rule in effect on December 31, 2008, shall apply to cases commenced on or before that date”). Under Practice Book (2008) § 13-4 (4), a plaintiff expecting to call an expert “shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. . . .” Additionally, the rule provides that if disclosure does not occur within a reasonable time prior to trial, “such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. . . .” Practice Book (2008) § 13-4 (4). The rule also provides that expert witness information shall be timely disclosed in response to interrogatory requests. Practice Book (2008) § 13-4 (1) (A) and (4).

“The court’s decision on whether to impose the sanction of excluding the expert’s testimony . . . rests within the sound discretion of the court. . . . The action of the trial court is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) McVerry v. Charash, 96 Conn. App. 589, 594-95, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006).

The plaintiffs’ argument that the rule requiring disclosure “was not clear” is unavailing. The record reveals that the court issued a scheduling order that required the plaintiffs to disclose their expert witnesses by August 1, 2010. As set forth previously, the rules of practice required disclosure within a reasonable time prior to trial. It does not appear that the plaintiffs argued at any time before the trial court that the scheduling order was not sufficiently clear. Instead, the plaintiffs argued before the court that disclosure had taken place.

Likewise, the argument that the court’s sanction was disproportionately harsh is without merit, as the rules of practice provide that the court, upon a proper finding, may preclude expert testimony in its entirety. See Practice Book (2008) § 13-4 (4). Here, the court found that, in violation of its order, no disclosure had been made as of the eve of trial. The detriment and unfairness of the disclosure of an expert witness at this late date is obvious. In the absence of additional findings by the court, we presume that the court was persuaded by the defendant’s arguments in support of the motion to preclude, specifically, that untimely disclosure would interfere with the orderly progress of the trial and cause undue prejudice to the defense. Affording the court’s decision every reasonable presumption of correctness, we conclude that the court could have concluded that preclusion of any expert testimony was a fitting remedy.

To a large extent, the plaintiffs rely on their assertion that they disclosed an expert witness, Peter M. Schos-heim, a board certified orthopedic surgeon, to the defense in December, 2008. They acknowledge that they did not file such disclosure with the court. The defendant’s attorney represented to the court that he had not received such disclosure and, after the date on which the disclosure purportedly occurred, in response to an interrogatory by the defendant, the plaintiffs declined to identify Schosheim as having authored the plaintiffs’ opinion letter required under General Statutes § 52-190a. The court, relying on the representations of the defendant’s attorney and other facts apparent from the court file, found that the disclosure of an expert witness had not occurred. Because, on appeal, the plaintiffs do not clearly challenge this finding made incident to the court’s decision, the plaintiffs’ reliance on that purported disclosure is unpersuasive.

Having reviewed the record, we conclude that the corut reasonably concluded as it did in granting the motion to preclude. The defendant has not demonstrated that the court’s decision reflected an abuse of its discretion.

II

Next, the plaintiffs claim that the court improperly granted summary judgment in the defendant’s favor. We disagree.

We apply a plenary standard of review to the court’s decision granting summary judgment, mindful that in determining whether any genuine issues of material fact exist, we must view the evidence in the light most favorable to the nonmoving party, the plaintiffs. See, e.g., Hospital of Central Connecticut v. Neurological Associates, P.C., 139 Conn. App. 778, 782-83, 57 A.3d 794 (2012).

The plaintiffs do not dispute that, in accordance with well settled precedent; see, e.g., Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002); they bore the burden of presenting expert testimony in this medical malpractice action with regard to the issues of the requisite standard of care, the deviation from that standard of care and causation. Rather, the plaintiffs argue that, regardless of the court’s ruling on the motion to preclude, they presented sufficient expert opinion evidence. The plaintiffs argue that materials before the court, including the deposition testimony of the defendant and the disclosed treatment records of Durgesh G. Nagarkatti, a treating physician of Joseph Dorreman, satisfied their burden of proof. The plaintiffs appear to suggest that a jury, by comparing the treatment records of the defendant and Nagarkatti, reasonably could find that the defendant acted negligently.

Having reviewed the materials before the court at the time it rendered summary judgment and the arguments advanced in connection with the motion, we readily conclude that the plaintiffs, in opposing summary judgment, failed to demonstrate that a genuine issue of material fact existed. The materials relied on by the plaintiffs, including treatment records and the deposition testimony of the defendant, did not contain expert opinion with regard to the requisite standard of care, deviation from the standard of care and causation and, thus, were not sufficient to demonstrate a prima facie case of medical malpractice. Accordingly, we conclude that summary judgment was proper.

The judgment is affirmed.

       In their initial complaint, the plaintiffs also brought claims against “David A. L. Johnson, M.D. . . . doing business as Eastern Orthopedics and Sports Medicine and Connecticut Orthopaedic Institute.” Later, the court granted the named defendant’s request to correct the record by removing from the action this “fictitious party,” against whom the plaintiffs did not allege a cause of action in their revised complaint. In this opinion, we will refer to David A. L. Johnson as the defendant.

       Attached to the revised complaint was a good faith certificate signed by the plaintiffs’ attorney as well as a written letter from a board certified orthopedic surgeon who opined that there was evidence of medical negligence. See General Statutes § 52-190a.

       Additionally, the defendant raised a special defense that is not germane to this appeal.

       The court rejected the plaintiffs’ argument that the treatment records of physicians who treated Joseph Dorreman satisfied their burden of proof. The court observed that such treatment records did not contain expert opinion regarding the relevant standard of care or the issue of proximate cause. Insofar as the plaintiffs asserted that, apart from the documentary evidence already before the court, these treating physicians could provide sufficient expert testimony at trial, the court concluded that following the plaintiffs’ failure to disclose any expert testimony, such evidence would be inadmissible.


text:
    ANDRE MARTIN v. COMMISSIONER OF CORRECTION
    (AC 33682)
    Gruendel, Robinson and Espinosa, Js.
    Argued November 30, 2012
    officially released February 26, 2013

      Natalie Olmstead, assigned counsel, for the appellant (petitioner).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, C. Robert Satti, Jr., supervisory assistant state’s attorney, and Gerard Eisenman, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Andre Martin, appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. The petitioner claims that the court improperly determined that his trial counsel rendered effective assistance with regard to his exercising his right to testify at trial on his own behalf. We disagree and, accordingly, affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. The petitioner was convicted of the crimes of attempt to possess one kilogram or more of marijuana with the intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 2 la-278 (b) and 53a-49 (a), possession of four ounces or more of a cannabis-type substance in violation of General Statutes § 21a-279 (b) and conspiracy to possess one kilogram or more of marijuana with the intent to sell in violation of General Statutes §§ 21a-278 (b) and 53a-48 (a), for which he received a total effective sentence of twelve years of incarceration. His conviction was affirmed in part and reversed in part on appeal, and the matter was remanded to the trial court with direction to combine the petitioner’s conviction of attempt to possess one kilogram or more of marijuana with the intent to sell with his conviction of possession of four ounces or more of marijuana and to vacate the sentence for the possession conviction. See State v. Martin, 110 Conn. App. 171, 180, 954 A.2d 256 (2008), appeal dismissed, 295 Conn. 192, 989 A.2d 1072 (2010).

The petitioner filed his second amended petition for a writ of habeas corpus on December 16,2010, in which he alleged that his trial counsel, Richard Lafferty, in various ways, had rendered ineffective assistance with regard to the petitioner’s decision to testify on his own behalf. In particular, the petitioner alleged that Lafferty “misadvised [him] about the wisdom of testifying,” failed to advise him adequately “about the risks and dangers associated with choosing to testify,” “misguidedly encouraged [him] to testify in his defense,” failed to ensure that he made an intelligent, knowing and voluntary decision to waive his right to testify, failed to prepare him adequately to testify and failed “to take steps to ensure that unnecessary prejudicial information was not elicited or offered during [his] testimony . . . .” Following a hearing, the habeas court denied the habeas petition, concluding that the petitioner had failed to prove that Lafferfy had not offered reasonably competent advice regarding the petitioner’s decision to testify. The court subsequently granted his petition for certification to appeal. This appeal followed.

“To prevail on a claim of ineffective assistance of counsel, a habeas petitioner generally must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” Ortiz v. Commissioner of Correction, 92 Conn. App. 242, 244, 884 A.2d 441, cert. denied, 276 Conn. 931, 889 A.2d 817 (2006), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “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.” (Internal quotation marks omitted.) Sotomayor v. Commissioner of Correction, 136 Conn. App. 15, 20, 41 A.3d 333, cert. denied, 305 Conn. 903, 43 A.3d 661 (2012). “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). If, as in the present case, the habeas court determines that the petitioner failed to satisfy the performance prong of the Strickland standard, that determination is dispositive of the petitioner’s habeas claims, and it is unnecessary for the court to reach the prejudice prong. See Johnson v. Commissioner of Correction, 218 Conn. 403, 429, 589 A.2d 1214 (1991) (reviewing court can find against petitioner on either prong of Strickland').

“To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Corona v. Commissioner of Correction, 123 Conn. App. 347, 352, 1 A.3d 1226, cert. denied, 299 Conn. 901, 10 A.3d 519 (2010). “In Strickland [v. Washington, supra, 466 U.S. 687], the United States Supreme Corut held that [judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Sotomayor v. Commissioner of Correction, supra, 135 Conn. App. 21-22. With those principles in mind, we turn to the merits of the petitioner’s appeal.

The petitioner claims that the habeas court erred in determining that Lafferty’s performance was not deficient. He argues, in part, that rather than basing its decision on the quality of Lafferty’s advice, the court rendered its decision on the basis of an erroneous conclusion that the petitioner knew the risks associated with testifying. On the basis of our review of the record, we conclude that the court properly determined that Lafferty’s performance fell within the range of reasonable professional assistance.

There is no merit to the petitioner’s assertion that the court failed in its duty to scrutinize Lafferty’s performance. In reaching its decision, the court reviewed the testimony of the petitioner and Lafferty regarding how the petitioner reached his decision to testify and the nature of the advice given by Lafferty. As noted by the court in its memorandum of decision, they “had much different recollections regarding the petitioner’s decision to testify.” The court, however, found Lafferty’s testimony to be more credible than the petitioner’s testimony. We will not second-guess the court’s credibility determination on appeal. See Joseph v. Commissioner of Correction, supra, 117 Conn. App. 433.

Lafferty testified that the issue of whether the petitioner should testify on his own behalf was the subject of several conversations he had with the petitioner, but, ultimately, it was the petitioner’s decision to testify. The first time they discussed the issue was prior to trial. Lafferty could not recall whether he or the petitioner had raised the topic. At that time, the petitioner had indicated his desire to address the jury about his version of the events surrounding his arrest. Lafferty, on the basis of what he knew at that time, initially believed that the petitioner’s testifying might be helpful to the defense. Lafferty explained, however, that they went “back and forth, hemmed and hawed” about whether the petitioner should testify and that the final decision was not made until after the state had rested its case.

At the close of the state’s evidence, the trial court asked if there would be evidence from the defense, and Lafferty asked for and received time to further consult with the petitioner. They again discussed the pros and cons of his testifying for approximately ten minutes. On the basis of the relative strength of the state’s evidence, in particular the testimony of the investigator who was the state’s chief witness and whose testimony Lafferty described as methodical and very believable, Lafferty reviewed with the petitioner the general risks associated with his testifying and expressed his opinion that it was unlikely that the petitioner would be “able to help himself’ by testifying and that doing so would be “risky.” Lafferty stressed to the petitioner that, if he chose to testify, he needed to be truthful, and that, on cross-examination, the prosecutor could raise prior convictions and anything else in the petitioner’s background that would go to his credibility or truthfulness. According to Lafferty, the petitioner understood what that meant. The petitioner nevertheless insisted on testifying.

Although Lafferty admitted that he never reviewed specific topics that the state potentially might ask about during cross-examination, as the habeas corut concluded, “[t]he issues on which the petitioner was questioned were not novel or surprising.” Lafferty indeed warned the petitioner that, if he testified, he could be questioned about anything that went to his veracity as a witness, and that is exactly what transpired. No credible evidence was presented from which the court reasonably could have found that Lafferty’s advice was so deficient as to have left the petitioner to make a wholly uninformed decision to testify. The habeas court stated in its memorandum of decision that the petitioner also was canvassed thoroughly by the trial court about his decision to testify. The habeas court also discussed the extent to which the petitioner was aware of newly obtained evidence that the state had disclosed just prior to his testimony would be available for impeachment purposes. Nevertheless, we do not construe the foundation of the court’s decision as resting upon the petitioner’s personal knowledge of the evidence used to impeach his testimony. Rather, the habeas court properly based its ruling on the petitioner’s failure to satisfy his burden of overcoming the strong presumption that Lafferty provided effective assistance in this matter.

The judgment is affirmed.

       The petitioner’s arrest and conviction stemmed from an incident involving the transport of a package containing marijuana. The police knew the package contained marijuana and kept it under surveillance. The petitioner was a passenger in one of several vehicles involved in the transport of the package from a freight company in Middletown to a residence in Bridgeport. The police executed a search and seizure warrant at that residence, at which time they found the petitioner in the living room, a coconspirator in a bedroom and the unopened package in a bathroom. The petitioner claimed in his direct appeal, inter alia, that there was insufficient evidence to establish that he had had dominion and control over the marijuana or that he had had knowledge of the contents of the package. This court agreed and initially reversed the conviction, but that decision was overturned by our Supreme Court, which remanded the matter to this court for consideration of the remainder of the petitioner’s claims. See State v. Martin, 98 Conn. App. 458, 909 A.2d 547 (2006), rev’d, 285 Conn. 135, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101 (2008).

       Because the five year sentence for possession was to have run concurrently with the remainder of his twelve year sentence, the petitioner’s overall effective sentence was unchanged.

       The petitioner also alleged in his habeas petition that Lafferty was ineffective in several ways with regard to certain out-of-court statements that the petitioner alleged contained exculpatory information. The petitioner withdrew all claims related to the statements, however, during closing argument, and, thus, they are not before us on appeal.


text:
    KEVIN KLEMONSKI v. UNIVERSITY OF CONNECTICUT HEALTH CENTER
    (AC 34253)
    Lavine, Beach and Schaller, Js.

      Argued January 11
    officially released February 26, 2013

      Brooklyn Macellaio, pro se, the appellant (plaintiff).

      Carmel A. Motherway, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Kevin Klemonski, now known as Brooklyn Macellaio, appeals from the judgment of the trial court granting the motion of the defendant, the University of Connecticut Health Center, to dismiss his amended complaint on the ground of sovereign immunity. We affirm the judgment of the trial court.

In August, 2009, the plaintiff filed a complaint in which he made various allegations regarding mental health services provided to him by the defendant that were received during his incarceration. He sought monetary damages and injunctive relief. The defendant filed a motion to dismiss the complaint on the ground of, inter alia, sovereign immunity, which the court granted. In his amended complaint, filed in October, 2011, the plaintiff made similar allegations and sought monetary relief only. In December, 2011, the defendant filed a motion to dismiss the plaintiffs amended complaint on the ground of sovereign immunity. The court granted the motion, holding that the plaintiffs action for money damages was barred by the doctrine of sovereign immunity.

The doctrine of sovereign immunity, which implicates the court’s subject matter jurisdiction, is a ground for granting a motion to dismiss. Martinez v. Dept. of Public Safety, 263 Conn. 74, 80-81, 818 A.2d 758 (2003). In the circumstances of this case, our review is plenary. See id., 81. “In ruling on a motion to dismiss, the court must take the facts alleged in the complaint as true . . . .” (Internal quotation marks omitted.) Capasso Restoration, Inc. v. New Haven, 88 Conn. App. 754, 758-59, 870 A.2d 1184 (2005).

“[A] plaintiff who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner. Miller v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003); see also General Statutes § 4-141 et seq. When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. . . . This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions.” (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 212 n.11, 897 A.2d 71 (2006).

The plaintiff argues that he did not proceed through the claims commissioner (commissioner) in this case because he was unable to pay the statutory filing fee on account of his recent incarceration and indigency. He argues that he was denied access to the court because of a decision by the commissioner in May, 2009, that he pay future filing fees. In a May 26, 2010 decision, the commissioner stated that the plaintiff had filed forty-four claims between May 1, 2009, and October 26, 2009, as well as eleven court actions in 2009. The commissioner determined that “[t]his serial claimant has received fee waivers and abused the coruts and this office for frivolous claims. In the future [the plaintiff] shall be required to pay the statutory filing fee for any claims filed with the Office of the Claims Commissioner.”

The plaintiffs amended complaint does not fall within any recognized exception to the doctrine of sovereign immunity on account of the commissioner’s having barred the plaintiff from future filing fee waivers because of a history of numerous frivolous filings. The facts remain that the plaintiff sought monetary damages in his amended complaint and did not receive permission from the commissioner to bring the action. The plaintiff has not provided this court with a cogent and persuasive analysis in his brief or oral argument as to why the doctrine of sovereign immunity should not be applied in the present case. Waiver of sovereign immunity by the commissioner is a legislative prerogative with which we will not interfere lightly. See, e.g., Perrone v. State, 122 Conn. App. 391, 394-95, 998 A.2d 256 (2010).

The judgment is affirmed.

       In his complaint, the plaintiff sought injunctive relief by way of the court “issu[ing] charges . . . against those who violated laws . . . The defendant, in its motion to dismiss the complaint, sought dismissal on the additional ground that the plaintiff lacked standing to seek injunctive relief. In granting the motion to dismiss, the court also determined that the plaintiff’s claim for injunctive relief fell outside the scope of its jurisdiction. The claim for injunctive relief was included in the original complaint, but not in the amended complaint and thus is deemed withdrawn.

       In some cases, the determination of subject matter jurisdiction requires a resolution of factual issues; see Conboy v. State, 292 Conn. 642, 652-53, 974 A.2d 669 (2009); but a factual resolution is not required in this case.

       “[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity ... or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.” (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 212, 897 A.2d 71 (2006).