text:
    STATE OF CONNECTICUT v. MICHAEL HILTON
    (AC 20883)
    Lavery, C. J., and Mihalakos and Bishop, Js.
    Argued September 20 —
    officially released November 19, 2002

      Michael Hilton, pro se, the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John A. Massameno, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The pro se defendant, Michael Hilton, also known as Jeromie Thorpe, appeals from the judgment of the trial court denying his motion for the correction of an illegal sentence. We affirm the judgment of the trial court.

On April 7, 1995, a jury returned a verdict finding the defendant guilty of murder, possession of narcotics with intent to sell by a person who is not drug-dependent and possession of narcotics. The court rendered judgment in accordance with the verdict and sentenced the defendant to an effective prison term of sixty years. This court, on direct appeal, affirmed the judgment of conviction. State v. Hilton, 45 Conn. App. 207, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d 147 (1998).

In the previous appeal, we noted that a discrepancy existed between the original information charging the defendant and the subsequent trial court documents. “While the original information charged a violation of General Statutes § 53a,-54a, the state’s substitute information and bill of particulars charged a violation of General Statutes § 53a-54b, the statutory provision for capital felony. The judgment file also shows a conviction under § 53a-54b. The state’s brief cites § 53a-54b, but the defendant’s brief cites § 53a-54a. The case, however, was tried pursuant to § 53a-54a and the trial court instructed [the jury] pursuant to § 53a-54a. We conclude that this inconsistency is a result of a scrivener’s error. ” (Emphasis added.) State v. Hilton, supra, 45 Conn. App. 208 n.2. That discrepancy was nothing more than a clerical error; therefore, it could be corrected at any time. See Blake v. Blake, 211 Conn. 485, 494, 560 A.2d 396 (1989); State v. Wilson, 199 Conn. 417, 436-37, 513 A.2d 620 (1986).

The defendant filed a motion for the correction of the illegal sentence on March 30, 2000, alleging that the discrepancy was not a scrivener’s error and that his due process rights were violated. In a memorandum of decision filed May 26,2000, the court denied the motion. The court noted that it was bound by our decision that the numerous references to the incorrect statute, § 53a-54b, were the result of scrivener’s errors. On May 30, 2000, a corrected judgment mittimus was filed.

It is well established that “[i]n carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . Compliance means that the direction is not deviated from. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court .... No judgment other than that directed or permitted by the reviewing court may be rendered .... The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.” (Citations omitted; emphasis in original; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 312, 541 A.2d 858 (1988); State v. James, 63 Conn. App. 697, 700, 778 A.2d 987 (2001); State v. Graham, 45 Conn. App. 12, 16, 692 A.2d 1306, cert. denied, 241 Conn. 923, 697 A.2d 360 (1997).

This court specifically determined that the discrepancy between the original information and the subsequent documents was a result of a scrivener’s error. The trial court lacked the authority to grant the defendant’s motion because to do so would expressly contradict the opinion set forth by this court.

The judgment is affirmed.

       The office of the chief public defender initially represented the defendant in this matter, but subsequently filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). That motion was granted on September 27, 2000.

       In addition to the substitute information and bill of particulars, the judgment file and the judgment mittimus all cite General Statutes § 53a-54b.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DARIO GUZMAN
    (AC 21755)
    Flynn, Bishop and Healey, Js.
    Argued September 18 —
    officially released November 26, 2002

      Lisa J. Steele, special public defender, for the appellant (defendant).

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

FLYNN, J.

The defendant, Dario Guzman, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) he was deprived of a fair trial by prosecutorial misconduct and (2) the trial court abused its discretion when it denied the defendant’s motion for a mistrial. We affirm the judgment of the trial court.

The following procedural history and facts, which the jury reasonably could have found, are pertinent to this appeal. In the early morning hours of January 16, 2000, a shooting occurred in the city of Groton in the vicinity of the Side Car Cafe. Multiple gunshots were fired in two series of gunshots. Police officers were dispatched to the scene at approximately 1:40 a.m. When the officers arrived, they observed a large crowd of people in, and on both sides of, the street as well as in the parking lot for the Side Car Cafe. The officers did not locate either a victim or the shooters, but they did find what appeared to be blood on the sidewalk, bulletholes in a house and a tree, and twenty-one shell casings of three different calibers that had been fired from four different firearms. Additionally, the officers found a loaded Hi-Point .380 caliber semiautomatic pistol, a magazine loaded with .40 caliber bullets and two live .45 caliber bullets.

Prior to these events, earlier in the evening of January 15, 2000, the defendant met Earl Cornish, William Cornish, Felix Dominguez, Danny Cruz, and Israel Rodriguez at an apartment prior to attending a party for Ramon Gomez at the Side Car Cafe. With the exception of William Cornish, everyone at the apartment possessed a firearm: Earl Cornish, a Jennings .380 caliber semiautomatic pistol; Dominguez, a .40 caliber semiautomatic pistol; Cruz, a .45 caliber semiautomatic pistol; Rodriguez, a .22 caliber semiautomatic pistol; and the defendant, the .380 caliber Hi-Point found by the police. While still at the apartment, the members of the group discussed problems they were having with Todd Thomas, who had been selling drugs in territory they regarded as their own domain for that purpose.

The defendant, William Cornish, Dominguez and Cruz traveled to the Side Car Cafe in a taxicab, while Rodriguez and Earl Cornish drove in a different car. When they arrived, the defendant, Dominguez and Cruz gave their weapons to William Cornish. While the others entered through the front door, William Cornish proceeded to the back door, because there was a bouncer and a metal detector at the front door. After the defendant let William Cornish in through the back door, he returned the weapons to the defendant, Dominguez and Cruz. They then reunited with Earl Cornish and Rodriguez inside the bar.

Their rival, Thomas, arrived at the bar at about 10:30 p.m. with his associates, Walter Hyslop and Ronnie Rogers. The three members of the Thomas group left the bar around the time that it was closing. Thomas began arguing with Cruz outside of the bar. The defendant and Rodriguez were standing nearby during this argument. During the course of the argument, Thomas became irate and lunged at Cruz, at which point Rogers and Hyslop tried to restrain their friend Thomas. Thomas broke free of their grasp. The defendant and Cruz ran around the comer from the bar and Thomas followed. Within seconds, gunshots were fired.

Thomas, Hyslop and Rogers ran to Hyslop’s car, which was parked across the street from the Side Car Cafe. At about this time, Dominguez and Earl Cornish exited the bar and began shooting their firearms at Hyslop and Thomas, wounding Thomas. Hyslop and Thomas got into the car and drove away, leaving Rogers who was unable to get into the car.

At approximately 1:30 a.m., a police officer stopped a car driven by Hyslop when that car failed to stop at a stop sign. The passenger, Thomas, had been shot twice, once in his left lower leg, and once in his left foot. An ambulance was called to take Thomas to a hospital. In a statement given to police, Rodriguez stated that he saw Cruz and the defendant shooting at Thomas and his companions.

The defendant’s first claim on appeal is that he was deprived of a fair trial when the court failed to sustain his objection to certain remarks made by the prosecutor during closing argument. We begin by setting forth our standard of review. “In analyzing the defendant’s claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). “A statement within closing argument is blatantly egregious as to implicate the fundamental fairness of the trial itself where in light of all of the facts and circumstances ... no curative instruction could reasonably be expected to remove [its] prejudicial impact.” (Internal quotation marks omitted.) State v. Wickes, 72 Conn. App. 380, 385, 805 A.2d 142, cert. denied, 262 Conn. 914, 811 A.2d 1294 (2002).

We must also be mindful of the fact that the present case involves the conduct of the prosecutor in the context of a criminal trial. We have long recognized the “special role played by the state’s attorney in a criminal trial. He is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. . . . By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe.” (Internal quotation marks omitted.) Id., 386. This special prosecutorial role arises from the nature of the office, not from public opinions derived from how it is sometimes conducted.

There are six factors that we will consider when determining whether the defendant’s conviction has been obtained by the denial of due process as a result of prosecutorial misconduct. Those factors are “the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982); the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) . . . the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra, 1181 . . . and the strength of the state’s case. See [id.] . . . .” (Citations omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 262-63, 780 A.2d 53 (2001).

The following additional facts are necessary to analyze the defendant’s first claim. During the state’s casein-chief, the prosecutor attempted to elicit testimony from Rodriguez as to what he had seen at the Side Car Cafe. Rodriguez’ testimony was inconsistent with a statement he had given to police on January 20, 2000. The prosecutor, pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), then introduced the statement Rodriguez had given to police. In that statement, Rodriguez identified the defendant as one of the persons who had shot at Thomas outside of the Side Car Cafe. On cross-examination, Rodriguez testified that he had signed the pretrial statement because the police had threatened to arrest him if he did not cooperate.

During closing argument, the prosecutor pointed out the inconsistencies between Rodriguez’ testimony and the January 20, 2000 statement and argued reasons why the jury could believe Rodriguez’ statement rather than his testimony. During the defendant’s closing argument, defense counsel argued that Rodriguez had given the statement to police to avoid being arrested. The prosecutor, in rebuttal, attempted to address the defendant’s arguments. Specifically, the prosecutor stated, “[Defense counsel] mentioned that Mr. Rodriguez was frightened [of] the police. You heard Mr. Rodriguez, he is in jail, he is in jail on I believe a narcotics charge. Think about it, if he gets back to jail and has to testify against his Mend, do you think he would be fearful for other people?” The defendant immediately objected on the ground that there was no evidence in support of the prosecutor’s argument. The court, however, overruled the objection and stated, “It is for you ultimately to decide, and counsel can present arguments. And I remind you that argument is not testimony and is not evidence.”

The defendant claims that the prosecutor’s remark was improper for three reasons: (1) it was an expression of personal opinion regarding Rodriguez’ credibility; (2) it was an appeal to the jury’s emotions; and (3) it was a fact not supported by the evidence. We agree with the defendant that the prosecutor’s remark was improper for the third reason, but disagree that this one remark so infected the defendant’s Mai as to amount to a denial of due process.

“Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest an inference from facts not in evidence.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Banks, 59 Conn. App. 112, 129, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). The prosecutor attempted to provide the jury with an alternate explanation for Rodriguez testifying contrary to his prior statement. This alternate explanation, though, was completely unsupported by the evidence. The prosecutor had the opportunity to question Rodriguez after the defendant raised the issue of Rodriguez’ fear of police during cross-examination. The prosecutor, at that time, could have asked whether Rodriguez was afraid of retaliation from fellow jail inmates for testifying against the defendant. The jury could have evaluated Rodriguez’ responses or any other evidence offered on the issue and then decided, based on the evidence, whether the prosecutor’s argument had any merit. Without such evidence, though, the jury was asked to engage in impermissible speculation. See State v. Williams, 16 Conn. App. 75, 79, 546 A.2d 943 (1988) (“[wjhile the jury may not speculate to reach a conclusion of guilt, they may draw reasonable, logical inferences from the facts proven to reach a verdict”). The prosecutor’s argument was, therefore, improper. The prosecutor’s single remark, however, does not amount to a denial of the defendant’s due process right to a fair trial when this court considers the remark in light of the six factors previously set forth. See State v. Whipper, supra, 258 Conn. 262-63.

First, we consider the extent to which the remark was invited by defense counsel’s conduct or argument. We acknowledge that the remark was not invited by defense counsel’s argument that the witness signed the Whelan statement because of fear of police. The defense counsel’s argument was supported by the testimony of Rodriguez to that effect. Thus, we cannot conclude that the remarks were in any way invited by defense counsel. This one factor, though, is not dispositive. See, e.g., State v. Johnson, 71 Conn. App. 272, 286, 801 A.2d 890 (affirming conviction although misconduct not invited by defense), cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002).

The second factor that we consider is the severity of the misconduct. We do not believe that the prosecutor’s remark was such severe misconduct as to warrant a new trial. The defendant argues, at most, that the prosecutor implied that Rodriguez was afraid of the defendant. We note that the prosecutor, despite that the defendant’s objection was overruled, did not pursue the line of argument further. Such a remark is severe when it is “strongly critical and condemnatory . . . .” (Citation omitted; internal quotation marks omitted.) State v. Thompson, 69 Conn. App. 299, 312, 797 A.2d 539, cert. granted on other grounds, 260 Conn. 936, 802 A.2d 90 (2002). This isolated remark does not equate with the kind of strongly critical or condemnatory language which has resulted in reversals of convictions. See, e.g., id., 307 (arguing that certain witnesses had “ ‘reserved a place in hell for themselves’ ”); State v. Mills, 57 Conn. App. 202, 207, 748 A.2d 318 (arguing that term “ ‘backstabber’ ” was coined because of people such as defendant), cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000); State v. Williams, 41 Conn. App. 180, 184, 674 A.2d 1372 (expressing opinion that “ ‘all of these officers are extremely honest’ ”), cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).

Third, we examine the frequency of the misconduct. The remark was one isolated instance in the course of the entire closing argument and rebuttal by the prosecutor. There is no pattern of prosecutorial misconduct infecting the entire proceeding.

Fourth, we consider whether the remark was central to the critical issues in the case. Rodriguez was the only witness to have given a statement that he witnessed the defendant shooting at Thomas. Rodriguez’ trial testimony, though, conflicted with his pretrial statement. The prosecutor’s remark addressed the issue of Rodriguez’ credibility. The credibility of Rodriguez undoubtedly was an important issue in the case. We cannot conclude, however, that Rodriguez’ credibility was the sine qua non upon which any conviction had to rest. As we will discuss more fully, the other evidence against the defendant was sufficient to support a conviction even if the jury chose to disregard the statement Rodriguez gave to police.

Fifth, the strength of the curative measures taken by the court was sufficient to prevent any use of the prosecutor’s remark by the jury in reaching its decision. We note that, although the court overruled the defendant’s objection to the remark, the court immediately reminded the jury that the arguments of counsel are not evidence and, later, instructed the jury that the arguments and statements of the lawyers were not evidence and should not be considered in deciding the facts.

Finally, we note that the state had a strong case against the defendant even in the absence of the disputed statement given by Rodriguez. The Hi-Point .380 caliber pistol, which the police found at the scene of the shooting, was identified by several witnesses as being the pistol that the defendant brought to the Side Car Cafe that night. Many of the witnesses testified that they saw the defendant and Cruz follow the victim, Thomas, around a comer immediately before the first series of shots were fired. The defendant even told his friends that he shot all his bullets during the incident and dropped his pistol at the Side Car Cafe. A firearms examiner with the state police forensic science laboratory positively identified eight of the .380 caliber shell casings found at the scene as having been fired from the Hi-Point pistol the defendant was carrying.

We conclude, therefore, that in light of all the circumstances, the remark made by the prosecutor in closing argument was not so “blatantly egregious as to implicate the fundamental fairness of the trial itself . . . .” (Internal quotation marks omitted.) State v. Wickes, supra, 72 Conn. App. 385.

We next turn to the defendant’s second and final claim. This claim arises out of the testimony of a police officer who had twenty-one years of experience, from which the jury could infer that the defendant had a criminal history. The defendant claims that the court abused its discretion when it denied his motion for a mistrial. We disagree.

The standard of review for this claim is different from that applicable to the defendant’s first claim. “The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Watson, 47 Conn. App. 794, 803, 707 A.2d 1278 (1998), aff'd, 251 Conn. 220, 740 A.2d 832 (1999).

The following additional facts are necessary for an examination of this claim. The state called David Bailey, a member of the Groton police department, as a witness. The prosecutor sought to introduce the defendant’s date of birth, presumably as a preliminary question to establish the defendant’s identity as a person without a valid pistol permit. When the prosecutor asked Bailey from whom he had received information concerning the defendant’s date of birth, Bailey responded, “I believe once we identified him as being one of the people we were looking for through criminal history checks initially.” The defendant objected immediately, and the court ordered the answer stricken and instructed the jury to disregard Bailey’s answer. When the defendant again objected before Bailey answered the next question, the court gave the jury the following instruction: “I will tell the jury during my instructions that because a person is arrested and charged with a crime, that is not to be held against the individual. That is not evidence. And what counsel’s concern obviously is is that has absolutely nothing to do with your decision made here as to the guilt or nonguilt of [the defendant], . . . So, you are not to consider in any way . . . the fact that [the defendant] was arrested and charged with these crimes [which] has absolutely no evidentiary value whatsoever.”

The defendant subsequently moved for a mistrial on the basis of Bailey’s testimony. “While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 836, 661 A.2d 539 (1995). The court acted properly when it immediately responded to the answer given by Bailey with the curative instruction quoted. We conclude that the court did not abuse its discretion in denying the defendant’s motion for a mistrial.

The present case is analogous to State v. Nowakowski, 188 Conn. 620, 452 A.2d 938 (1982). In Nowakowski, the police officer’s response to a question was clearly inappropriate, and, yet, our Supreme Court held that the trial court did not abuse its discretion in denying the motion for a mistrial. Id., 624. The Nowakowski court concluded that “[i]n taking prompt corrective action in its instruction cautioning the jury to disregard the statement made by the witness, the trial court adequately prevented any potential use of the remark by the jury in their deliberations.” Id. The actions of the court in the present case were no less prompt or thorough.

The defendant argues that we should consider other events that happened later in the course of the trial when determining whether the court abused its discretion in denying his motion for a mistrial. We disagree. If the defendant had reason to believe that the new events cumulatively viewed together with the prior police testimony had deprived him of a fair trial, he had a duty to make a new motion for a mistrial. We note that the defendant never renewed his motion for a mistrial after it was denied. Furthermore, the court could not have abused its discretion in denying the defendant’s motion by failing to consider events which had not occurred at the time of the making of the motion for mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

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

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

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon one’s person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .”

       The parties have recited the name of the establishment as both two words (“Sidecar Cafe”) and three (“Side Car Cafe”) in their briefs. The court uses the name of the establishment (three words) as it appears on the substitute information dated January 16, 2001, and as it appears in the trial transcript.

       We note that during his testimony, William Cornish identified the Hi-Point .380 caliber pistol recovered by the police as the weapon he returned to the defendant after entering the Side Car Cafe through the back door.

       The parties have spelled the latter name “Rodgers” and “Rogers.” The court spells the name as set forth in the trial transcript.

       The prosecution pointed to the fact that the statement described facts which were at that time unknown to the police, including the existence of a .22 caliber handgun given to Cruz by Rodriguez, which was not recovered by the police until January 28,2000, eight days after the statement was given.

       The relevant portion of the defendant’s closing argument is as follows: “Israel Rodriguez signed a statement composed by the police to avoid getting arrested and charged in this case. He testified that he was frightened, that he was intimidated. It is one thing to accuse someone behind their back, it is another thing to come in and look that person in the eye and say I accuse you. Israel Rodriguez could not do that, but he was willing, behind [the defendant’s] back, to tell the police what they wanted to hear. He did it to avoid being arrested. He did it because that little circle that the police officer drew kept getting smaller and smaller and smaller, and he was in the middle of that little circle.”

       The court, responding to the defendant’s objection, stated: “I will overrule the objection. It is for you ultimately to decide, and counsel can present arguments. And I remind you that argument is not testimony and is not evidence.”
      In its charge to the jury, the court stated in relevant part: “Certain things are not evidence . . . and you may not consider them in deciding what are the facts. These include, one, the arguments and statements by the lawyers. The lawyers are not witnesses. What they have said in closing argument and at other times is intended to help you to interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory must control.”

       The police officer in Nowakowski, when questioned regarding his interactions with the defendant in that case, gave the unsolicited response that “[i]f he was so innocent he would have given me a statement. . . .” (Internal quotation marks omitted.) State v. Nowakowski, supra, 188 Conn. 621-22.


author: BISHOP, J.

text:
    ROBERT GEORGE MAZZACANE ET AL. v. ROBERT J. ELLIOTT ET AL.
    (AC 21454)
    Schaller, Bishop and West, Js.

      Argued September 13 —
    officially released November 26, 2002

      David G. Toro, with whom, on the brief, was John R. Williams, for the appellants (plaintiffs).

      John W. Mills, for the appellee (named defendant).

      Philip F. von Kuhn, for the appellees (defendants Warren C. Favreau et al.).
   Opinion

BISHOP, J.

This is an appeal from the judgment of the trial court rendered after a jury verdict in the plaintiffs’ favor for personal injuries and lost wages resulting from an automobile accident. The plaintiff Robert George Mazzacane was awarded $5608 in economic damages and $5000 in noneconomic damages. His wife and coplaintiff Karen Mazzacane was awarded $500 for loss of consortium. The plaintiffs claim that the court improperly (1) denied their motion for an additur and to set aside the verdict as to damages, (2) directed a verdict in favor of the defendant Warren C. Favreau’s employer, Parker X-Ray and Solution Services, Inc. (Parker X-Ray), and (3) tainted the entire trial by directing a verdict in favor of Parker X-Ray. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ appeal. Robert Mazzacane sought to recover damages for lost wages and for injuries sustained to his neck, lower back and shoulder as a result of an automobile accident that occurred when he was a passenger in a car that was operated by the defendant Warren C. Favreau and owned by Favreau’s employer, Parker X-Ray. Karen Mazzacane sought to recover for loss of consortium.

The accident occurred on July 8, 1995, when Favreau’s motor vehicle was rear-ended by a car driven by the defendant Robert J. Elliott. At trial, there was a dispute as to which of the defendants, Favreau or Elliott, had caused the accident. Furthermore, the proximate cause and extent of Robert Mazzacane’s alleged injuries were contested vigorously due to a prior lower back surgery, a documented history of neck problems and a subsequent accident after which he brought an action for similar injuries.

At the close of all the evidence, Parker X-Ray requested that the court direct a verdict in its favor. The court ruled that Favreau had been acting outside the scope of his employment at the time of the accident and, therefore, directed a verdict in favor of Parker X-Ray.

Subsequently, the jury found in favor of the plaintiffs as against Elliott and determined that he bore sole responsibility for the accident. Thereafter, the plaintiffs filed a motion for an additur and to set aside the verdict as to damages. The court denied that motion and this appeal followed.

I

The plaintiffs first claim that the court improperly failed to grant their motion for an additur and to set aside the verdict as to damages. We disagree.

Before analyzing the issue before us, we first set forth the appropriate standard of review. “The trial court’s refusal to set aside the verdict is entitled to great weight and eveiy reasonable presumption should be given in favor of its correctness. ... In reviewing the action of the trial court in denying [a motion for additur and], ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did. . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Citation omitted; internal quotation marks omitted.) Hunte v. Amica Mutual Ins. Co., 68 Conn. App. 534, 541, 792 A.2d 132 (2002).

Moreover, “[t]he existence of conflicting evidence limits the court’s authority to overturn a jury verdict. The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given. . . . From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.” (Citations omitted; internal quotation marks omitted.) Beverly v. State, 44 Conn. App. 641, 647, 691 A.2d 1093 (1997).

In the present case, the jury was presented with conflicting evidence concerning the nature and extent of Robert Mazzacane’s injuries. The jury heard evidence that he had a prior history of neck pain and had undergone lower back surgery two weeks prior to the accident. It also heard that in the year following the accident, he had been involved in another motor vehicle accident after which he brought an action for neck and lower back injuries.

As to his lost wages, Robert Mazzacane admitted that he was not working at the time of the accident due to his prior lower back surgery. He also admitted that his lower back surgery contributed to his inability to return to work after the subject accident.

On the basis of the conflicting evidence before it, the jury could have reasonably concluded that Robert Mazzacane’s injuries were caused or aggravated by factors other than the 1995 accident. Given the evidence before it, the jury reasonably could have attributed only a portion of the plaintiffs’ alleged injuries and damages to that accident. Therefore, the court did not abuse its discretion in denying the plaintiffs’ motion to set aside the verdict and for additur.

II

The plaintiffs next claim that the court improperly directed a verdict in favor of Parker X-Ray. We dismiss the plaintiffs’ claim as moot.

“Mootness deprives this court of subject matter jurisdiction. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Citations omitted; internal quotation marks omitted.) Williams v. Ragaglia, 64 Conn. App. 171, 174-75, 779 A.2d 803 (2001), aff'd, 261 Conn. 219, 802 A.2d 778 (2002).

In this case, the issue is moot because a successful appeal will not provide the plaintiffs any practical relief. Under the theory of vicarious liability advanced by the plaintiffs, Parker X-Ray could be liable only if Favreau, its employee, were found liable. Because the juiy found that Favreau was not liable for the accident, the plaintiffs would not be able to recover damages from Parker X-Ray.

Ill

The plaintiffs’ last claim is that the court improperly tainted the entire trial by directing a verdict in favor of Parker X-Ray. We decline to review that claim.

To prevail, plaintiffs must do more than assert unsubstantiated claims in their brief. Szczerkowski v. Karmel owicz, 60 Conn. App. 429, 436, 759 A.2d 1050 (2000). The minds of appellate judges are swayed by thorough and rigorous legal analysis supported by citations to competent authority. Quickpower International Corp. v. Danbury, 69 Conn. App. 756, 760, 796 A.2d 622 (2002). When plaintiffs have failed to brief their claims adequately, this court repeatedly has declined to review them, as we deem them abandoned. Strobel v. Strobel, 64 Conn. App. 614, 623, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

In the present case, the plaintiffs cite no instances of jury confusion, no competent legal authority and offer no arguments to support their claim. Under those circumstances, we decline to accept the plaintiffs’ invitation to review their claim and to speculate as to whether the court’s decision to direct a verdict in favor of Parker X-Ray affected the jury’s ultimate determinations.

The judgment is affirmed.

In this opinion the other judges concurred.

       In their revised complaint, filed October 30, 2000, the plaintiffs alleged in relevant part: “On or about July 8, 1995, at approximately 2:40 p.m., the plaintiff, Robert, George Mazzacane, was a passenger occupying the right, front passenger seat of a 1992 Isuzu pick-up truck owned by the defendant, Parker X-Ray and Solution Service Inc. and being operated with the permission and consent of its owner, by the defendant, Warren C. Favreau . . . .” See also Alvarez v. New Haven Register, Inc., 249 Conn. 709, 710-11, 735 A.2d 306 (1999) (“release executed in favor of an employee operates as a matter of law to release the employer whose sole liability is premised on the doctrine of respondeat superior”).


text:
    STATE OF CONNECTICUT v. IRVIN D. ROSE
    (AC 21512)
    Flynn, Bishop and Healey, Js.
    Argued September 18 —
    officially released November 26, 2002

      James M. Fox, special public defender, for the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Richard J. Colangelo, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Irvin D. Rose, appeals from the judgment of conviction, rendered after a jury trial, of twenty counts of credit card theft in violation of General Statutes § 53a-128c (a) and one count of larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b. The defendant’s sole claim on appeal is that the trial court violated his federal and state constitutional rights to self-representation when it denied his motion to waive counsel and to represent himself. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. On December 13, 1998, the defendant was charged with the previously identified crimes as well as with being a persistent larceny offender in violation of General Statutes § 53a-40. On January 15, 1999, a special public defender was appointed to represent him.

By April 19, 1999, a third public defender, James Ginocchio, was appointed to represent the defendant after claims by the defendant that the prior two attorneys had been ineffective. Ginocchio, after consulting with his client, petitioned the court to order a competency examination pursuant to General Statutes § 54-56d. Initially, Ginocchio did not expand on his reasons for requesting such an evaluation. The defendant objected to Ginocchio’s request and asserted that he would not comply with the court’s order. He insisted on being allowed to represent himself.

Subsequently, multiple evaluations were scheduled for the defendant in which he failed to cooperate. By the end of November, 1999, he had missed four scheduled appointments. That same month, Ginocchio sought to withdraw as counsel, citing a breakdown in communication with the defendant. Attorney Michael E. Paris was appointed as a special public defender to replace Ginocchio. Paris soon encountered difficulties in communicating with the defendant.

The defendant thereafter informed the court that his refusal to cooperate with Paris and his prior attorneys was due to his belief that they were not representing his best interest and that they were withholding vital records from him, especially reports detailing the charges against him. He added that his attorneys’ failure to provide him with the relevant information regarding his defense caused him to file his own discovery motion, with which, he claimed, the state was not complying. The court advised the defendant that he should correspond with the state through his counsel and that he could represent himself if the court were satisfied that he was competent.

Paris filed a motion on the defendant’s behalf to vacate the order to have him evaluated for competency to waive counsel. Before Paris’ motion to vacate was decided, the defendant sent a letter to the state, criticizing Paris’ performance, his prior counsel and the entire defense process. That letter caused the state to question the defendant’s ability to understand the nature of the proceedings and to assist in his defense.

The record amply demonstrates that throughout the remainder of the proceedings, the defendant continuously disrupted the court proceedings and refused to cooperate with his counsel in preparation for his defense. Furthermore, the defendant never attended any of seven scheduled competency examinations. At one point, the defendant agreed to be evaluated, but only if the sessions were videotaped. The court viewed his request as an attempt to avoid complying with a court order. The defendant also filed a complaint against one of the trial judges with the judicial review council, which was dismissed.

Finally, on July 18, 2000, the court vacated its prior order to have the defendant evaluated after it concluded that he had been found to be competent to stand trial in a prior case. Additionally, the court found that Ginocchio had failed to establish a proper foundation to support his motion for a competency examination, as required by law.

One month later, on August 22, 2000, a hearing was held regarding the defendant’s motion to represent himself at trial. At the hearing, the defendant was disruptive. The court became concerned with the defendant’s demeanor while appearing before it and also took the defendant’s statement that all of his attorneys were incompetent as an indication that he did not understand the judicial process. Accordingly, the court denied the defendant’s motion to represent himself. Thereafter, the defendant proceeded to trial and was found guilty on all charges and sentenced to a total effective term of three years imprisonment.

The defendant’s sole claim on appeal is that the court violated his federal and state constitutional rights to self-representation when it denied his motion to waive counsel and to represent himself. We disagree.

At the outset, we note that “[t]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. . . . This important decision rests within the discretion of the trial judge.” (Citation omitted; internal quotation marks omitted.) State v. Varricchio, 10 Conn. App. 265, 269-70, 522 A.2d 843 (1987). Our inquiry, therefore, is to determine whether the court abused its discretion in denying the defendant’s request to discharge his counsel and to represent himself.

It is settled law that “[b]oth the federal constitution and our state constitution afford a criminal defendant the right to [forgo] the assistance of counsel and to choose instead to represent himself or herself at trial. As a matter of federal constitutional law, the right to self-representation is premised on the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged. . . . The Connecticut constitution is more explicit, stating directly that [i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .” (Citations omitted; internal quotation marks omitted.) State v. Day, 233 Conn. 813, 820, 661 A.2d 539 (1995).

Although it may be settled law that a criminal defendant has “an absolute right to self-representation, that right is not self-executing. A trial court in this state must satisfy itself that several criteria have been met before a criminal defendant properly may be allowed to waive counsel and proceed pro se.” Id., 822. Those criteria include a determination by the court (1) that the defendant is competent to waive counsel, and (2) that his waiver is knowing, intelligent and voluntary. See Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993); Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Day, supra, 233 Conn. 822.

A defendant is deemed competent to waive counsel when it is shown that he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.” (Internal quotation marks omitted.) Godinez v. Moran, supra, 509 U.S. 396. We need not address that point because the defendant was found to be competent.

After a determination by the court that a criminal defendant is competent, its next task is to determine whether his decision to waive the right to counsel is knowing, intelligent and voluntary. State v. Day, supra, 233 Conn. 822. A defendant has knowingly and intelligently waived the right to counsel if the trial judge finds that he “(1) [h]as been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) [possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) [comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) [h]as been made aware of the dangers and disadvantages of self-representation.” Practice Book § 44-3.

In the present case, the court correctly determined that the defendant’s decision to represent himself was neither intelligent nor voluntary. Specifically, the court noted in its memorandum of decision, dated January 25, 2002, that approximately five public defenders had been appointed to represent the defendant and that he had found all of them to be incompetent. Furthermore, the defendant’s demeanor in court raised questions in the court’s mind as to whether his claims of ineffective assistance were indications of his lack of understanding of the judicial process. Moreover, the court noted that the “defendant was disruptive and exhibited an inability to conform his behavior or to follow courtroom procedures and decorum while in his current state, i.e., represented by counsel.”

Our Supreme Court has made clear that the right to self-representation can be forfeited when a criminal defendant engages in disruptive behavior that demonstrates his inability to follow courtroom procedures and decorum. State v. Johnson, 185 Conn. 163, 178-80, 440 A.2d 858 (1981) (pro se defendant had to be removed from courtroom due to his disruptive behavior), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); see also Faretta v. California, supra, 422 U.S. 834 n.46; Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).

Our review of the record reveals that the defendant was not deprived of his right to self-representation by the actions of the court. Indeed, it was the defendant himself, through his disruptive behavior, who forfeited his right to self-representation. He disobeyed court orders that he did not agree with, refused to communicate with the court through his attorneys and refused to cooperate with his attorneys in preparation for his defense. Given all of those disruptive events, the court did not abuse its discretion in denying the defendant’s motion to represent himself because those events indicate that the defendant could not conform his behavior and brought into question his comprehension of the judicial process.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record reveals that competency examinations were scheduled for the defendant on seven occasions.

       The court stated that it “had the opportunity to review the transcript of the proceedings on April 19, 1999 . . . that date, of course, being the date which triggered the initial court order for a competency evaluation. The transcript of those proceedings does not provide this court with guidance as to the reason for the request for an evaluation by defense counsel Ginocchio.”

       The court stated: “Since I’ve had the opportunity to evaluate a prior competency evaluation of [the defendant], and since [the defendant] continues to request that the court rely on the presumption of competence in maMng his request that this court vacate the order [for a competency examination], among other factors, that [the defendant] waives his right to the protection of that competency evaluation, this court vacates the order.”


author: PER CURIAM.

text:
    JEFFREY I. DONTIGNEY v. CLINTON ROBERTS
    (AC 21972)
    Lavery, C. J., and Dranginis and Bishop, Js.
    Submitted on briefs September 16 —
    officially released November 26, 2002

      Jeffrey I. Dontigney, pro se, the appellant (plaintiff), filed a brief.

      Janis C. Jerman filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The pro se plaintiff, Jeffrey I. Dontigney, appeals from the summary judgment rendered by the trial court in favor of the defendant, Clinton Roberts. The plaintiff claims, inter alia, that the court acted improperly in concluding that his action was barred under the doctrine of res judicata and, therefore, should not have granted the defendant’s motion for summary judgment. We disagree and affirm the judgment of the trial court.

In reviewing the plaintiffs claim that the court acted improperly in granting the defendant’s motion for summary judgment, we recognize that “[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993). We recognize also that summary judgment is the appropriate method for resolving a claim of res judicata. See id. (“[bjecause res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment was the appropriate method for resolving a claim of res judicata”). “Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim.” (Internal quotation marks omitted.) Milford v. Andresakis, 52 Conn. App. 454, 460, 726 A.2d 1170, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).

In the present case, the court, in granting the motion for summary judgment, concluded that the present action was barred under res judicata by a final judgment in a small claims action that the plaintiff had commenced against the defendant. In so doing, the court stated: “Contrary to the plaintiffs assertion, the small claims session of the Superior Court is a court of competent jurisdiction for purposes of res judicata. Orselet v. DeMatteo, 206 Conn. 542, 539 A.2d 95 (1988). The principle of res judicata bars relitigation of claims which were brought or could have been brought in the first action and extinguishes the plaintiffs rights to remedies against the defendant with respect to any part of the transaction or series of connected transactions out of which the original action arose. Id., 545. I have examined the small claims record and the pleadings in this case and conclude that this action is barred by res judicata.”

The evidence, when viewed in the light most favorable to the plaintiff, supports the court’s decision. In his small claims action against the defendant, the plaintiff, in his complaint, alleged that the defendant had breached a contract, defrauded him and violated his human rights and civil rights. The small claims court held a trial and, afterward, concluded (1) that the plaintiff did not have standing to bring a breach of contract claim against the defendant because the plaintiff was not a party to the contract at issue and (2) that “the plaintiff [had] failed to prove, by a fair preponderance of the evidence, any other claim.” The complaint in the plaintiffs present action against the defendant is similar to the small claims complaint except that it includes additional claims arising out of the same alleged transaction. We conclude that the court acted properly in rendering summary judgment in favor of the defendant on the basis of res judicata. See id., 545 (“‘[i]f the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made’ ”); see also Practice Book § 24-28 (“[ejxcept as provided in Section 24-31, the judgments and decisions rendered in the small claims session are final and conclusive. [See General Statutes § 51-197a]”).

We decline to review the plaintiffs remaining claims because they either are unintelligible or briefed inadequately.

The judgment is affirmed.

       Briefly, the facts of this case are as follows. The plaintiff was an inmate at the MacDougall-Walker correctional institution who sought to receive the services of the defendant, a sentencing consultant. The plaintiffs aunt sent the defendant a check for $1000. Subsequently, the plaintiff no longer wanted to avail himself of the defendant’s services. The defendant returned $600 to the plaintiffs aunt, as it determined that it had provided $400 worth of services. The plaintiff then filed a small claims action seeking the return of the $400.


author: MIHALAKOS, J.

text:
    JENNIFER SCHIAVONE v. RICHARD K. SNYDER, CONSERVATOR (ESTATE OF ESTHER HASELTINE SCHIAVONE)
    (AC 21704)
    Foti, Mihalakos and Hennessy, Js.
    Argued September 10 —
    officially released November 26, 2002

      John R. Williams, for the appellant (plaintiff).

      David W. Schneider, for the appellee (substitute defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Jennifer Schiavone, appeals from the judgment of the trial court dismissing her appeal from the order of the Probate Court approving the interim account filed by the conservator of her late mother’s estate. On appeal, the plaintiff claims that the trial court improperly held that (1) she was not an aggrieved party and had no standing to appeal and (2) she was precluded from raising issues not set forth in her reasons of appeal. After examining the record and considering the briefs and oral arguments of the parties, we conclude that those claims are moot and, therefore, dismiss the appeal.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff is the daughter of Esther Haseltine Schiavone, now deceased. Prior to her death, an application to appoint a conservator of the person and estate of Esther Haseltine Schiavone was filed with the Probate Court for the district of North Haven by her son, Michael Schiavone. On November 19, 1998, following a hearing on the conservatorship application in which the plaintiff actively participated, a decree was entered appointing the defendant Richard K. Snyder as conservator of the estate of Esther Haseltine Schiavone (ward).

On February 6, 2000, Snyder filed an interim account covering a period of approximately one year. Although the plaintiff raised numerous objections to the expenditures detailed in the interim account, on November 1, 2000, the Probate Court approved the account by order and decree. In the decree, the Probate Court noted that the ward’s guardian ad litem had accepted the interim account. Thereafter, the plaintiff filed a motion for an appeal from the order and decree approving the interim account, and the Probate Court allowed the appeal.

On January 4, 2001, the plaintiff filed her reasons of appeal with the Superior Court. Snyder then filed a motion to dismiss the appeal for lack of subject matter jurisdiction on the ground that the plaintiff was not an aggrieved party and lacked standing to pursue the appeal. On February 21, 2001, the court granted the motion to dismiss. This appeal followed.

While this appeal was pending, Snyder proceeded with the administration of the ward’s estate and ultimately filed his final account covering the period ending on January 28, 2002, the date of the ward’s death. On May 7, 2002, this court granted the motion to substitute Charles C. Kingsley, who had been appointed administrator of the ward’s estate, as the defendant. On July 22, 2002, the Probate Court approved Snyder’s final account by order and decree, which directed that the assets in the conservator estate be distributed to the substitute defendant as the administrator of the probate estate.

Subsequently, on September 9, 2002, the substitute defendant filed a motion to dismiss this appeal for lack of subject matter jurisdiction. See Practice Book § 66-8. He argues that all of the issues involved in the approval of the interim account became moot once the final account was approved. He maintains that we should take judicial notice of the Probate Court’s order and decree approving the final account, from which no appeal has been taken, and concludes that the plaintiffs appeal should be dismissed as moot because it raises issues relating only to the approval of the interim account.

In response, the plaintiff argues that the Probate Court lacks jurisdiction to render an appeal to this court moot.* *** She maintains that by allowing her appeal, the Probate Court lost jurisdiction over the particular issues involved in the appeal. The plaintiff concludes, therefore, that any subsequent approval of a final account or other order by the Probate Court was subject to the issues over which it no longer had jurisdiction.

Our standard of review regarding mootness is well settled. “Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93-94, 671 A.2d 345 (1996).

The dispositive issue in the present case is whether the plaintiffs appeal from the Probate Court’s order and decree approving the conservator’s interim account was rendered moot by the Probate Court’s subsequent approval of the final account and order of distribution.

In Murphy’s Appeal from Probate, 22 Conn. App. 490, 578 A.2d 661, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990), we held that the trial court properly dismissed as moot the plaintiffs appeal in that case from two orders of the Probate Court involving the administration of his late mother’s estate because, among other reasons, during the pendency of the appeal, the Probate Court had approved a final account and ordered distribution. Id., 493-97. In so holding, we explained that “[a]ny actual controversy as to the plaintiffs claims ceased to exist upon the Probate Court’s approval of the final account and the granting of the order of distribution. . . . The mere taking of an appeal from a probate order does not in and of itself vacate or suspend the order.” (Citation omitted.) Id., 495. Furthermore, we took judicial notice that an appeal taken from the approval of the final account and distribution did sufficiently protect the plaintiffs rights. Id., 496-97.

In the present case, we take judicial notice of the Probate Court’s order and decree dated July 22, 2002,* *** approving the conservator’s final account, from which no appeal has been taken during the time period prescribed by General Statutes § 45a-187. See Murphy’s Appeal from Probate, supra, 22 Conn. App. 496. General Statutes § 45a-24 precludes a collateral attack on any order, judgment or decree of a Probate Court “from which no appeal is taken . . . ,” Thus, the Probate Court’s order and decree approving the final account “continues in full force unless and until the appellate tribunal, i.e., the Superior Court, determines otherwise.” Murphy’s Appeal from Probate, supra, 495. As previously stated, the plaintiff has not appealed from the approval of the final account. The Probate Court’s order and decree approving the final account, therefore, supplants and vitiates the approval of the interim account. Any actual controversy as to the plaintiffs claims ceased to exist upon the Probate Court’s order approving the final account and her failure to appeal therefrom. Consequently, the plaintiffs claims on appeal involving the order and decree approving the interim account are rendered moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       An evaluation filed with the Probate Court provided medical evidence that Esther Haseltine Schiavone was incapable of caring for herself and managing her affairs by reason of moderately advanced Alzheimer’s disease and arteriosclerosis. The evaluation indicated that total assistance and care was required and in place.

       Esther Haseltine Schiavone died on January 28, 2002, during the pendency of this appeal. Upon her death, the position of the original defendant, Richard K Snyder, as conservator, terminated. On April 2,2002, the Probate Court issued a decree approving and appointing Charles C. Kingsley as administrator of the estate of Esther Haseltine Schiavone. On May 7,2002, we granted a motion to substitute Kingsley as the party defendant in this appeal.

       Specifically, the interim account covered the period from November 19, 1998, the date of the conservator’s appointment, to December 31, 1999.

       The court dismissed the appeal on the ground that the plaintiffs status as the daughter of the ward and the subject of a specific bequest in the ward’s will was insufficient to confer on her the standing necessary to maintain her appeal. Citing Fitzhugh v. Fitzhugh, 156 Conn. 625, 627, 239 A.2d 513 (1968), and Doyle v. Reardon, 11 Conn. App. 297, 304, 527 A.2d 260 (1987), the court reasoned that a person has no legally protected interest in the estate of another solely by virtue of a blood relationship between the two or because of any putative inheritance that may come to her after such other person’s death, by will or intestacy. Furthermore, despite the plaintiffs argument that she had standing to appeal from the Probate Court’s denial of her claim for attorney’s fees, the court reasoned that even if the denial of attorney’s fees was part of the decree appealed from, a fact disputed by the defendant-conservator, the plaintiff had abandoned any such claim by failing to include it in her reasons for appeal, citing Berkeley v. Berkeley, 152 Conn. 398, 401, 207 A.2d 579 (1965), and Boschen v. Second National Bank of New Haven, 130 Conn. 501, 504, 35 A.2d 849 (1944). The court, concluded that the plaintiff was not an aggrieved party and dismissed her appeal.

       Although we granted the plaintiff an opportunity to file a brief in opposition to the substitute defendant’s motion to dismiss, the plaintiff waived that opportunity on September 10,2002, during oral argument of this appeal, opting instead to address the issue of mootness orally.

       The first order appealed from by the plaintiff in Murphy’s Appeal from Probate involved the Probate Court’s denial of his petition seeking, among other things, the removal of a coexecutor of his late mother’s estate, a new appraisal of a parcel of real property included in the estate and an order restricting the sale of two parcels of real properly included in the estate. Murphy’s Appeal from Probate, supra, 22 Conn. App. 493. The second order appealed from by (he plaintiff removed him from his position as a coexecutor of the estate. Id.

       Although that document was not pari, of the original record on appeal, we reason that “[t]he true concept, of what is judicially known is that it is something which is already in the court’s possession or, at any rate, is so accessible that it is unnecessary and therefore time wasting to require evidence of it.” (Internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338, 351, 718 A.2d 470 (1998), cert. denied, 248 Conn. 915, 734 A.2d 568 (1999).

       General Statutes § 45a-24 provides in relevant part: “All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.”

       See generally Gaynor v. Payne, 261 Conn. 585, 598, 804 A.2d 170 (2002) (all claims Probate Court has jurisdiction to adjudicate in passing on validity of accounting cannot be relitigated after approval of final account; plaintiffs claims against former executor of decedent’s estate were barred by res judicata because they could have been brought in Probate Court).


author: FOTI, J. FLYNN, J.,

text:
    DANIEL D’AMICO v. DEPARTMENT OF CORRECTION
    (AC 22242)
    Foti, Dranginis and Flynn, Js.

      Argued September 13 —
    officially released November 26, 2002

      Harvey L. Levine, for the appellant (plaintiff).

      Douglas L. Drayton, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Daniel D’Amico, appeals from the decision of the workers’ compensation review board (board) affirming the August 28,2000 finding and award of the workers’ compensation commissioner for the fifth district (commissioner), in which the commissioner dismissed the plaintiffs claim for total disability benefits. The plaintiff claims that the board improperly affirmed the dismissal because (1) the commissioner could not reasonably or legally deny the claim for total disability benefits on the basis of the record before him, and (2) the commissioner improperly denied the plaintiffs motion to correct the commissioner’s findings. We disagree and affirm the decision of the board.

The following facts and procedural history are relevant to the plaintiffs appeal. The plaintiff was injured on September 24,1992, in an altercation with an inmate while employed as a correction officer with the department of correction. The plaintiff suffered physical injuries to his neck, back, shoulders and arms. In addition to his orthopedic injuries, the plaintiff sought workers’ compensation benefits for related medical conditions, namely, hypertension, fibromyalgia and reflex sympathetic dystrophy of the right arm, as well as for related psychiatric conditions, including posttraumatic stress disorder and depression.

The commissioner issued an initial finding and award on April 12, 1999. He found that in addition to the compensable orthopedic injuries, the defendant department of correction should pay for all reasonable and necessary medical expenses resulting from the fibromyalgia and the reflex sympathetic dystrophy. Further, the commissioner found that the plaintiff was entitled to treatment for posttraumatic stress disorder and depression, including treatment to be received at the Spaulding Rehabilitation Center, a Massachusetts inpatient pain management facility. The commissioner denied the plaintiffs claim for compensation benefits for hypertension.

Pursuant to an approved form 36, the state discontinued its payment of total disability benefits and began paying the plaintiff permanent partial disability benefits as of March 28,1995. The commissioner found that this was an appropriate action. Only one physician, Mario Leicach, believed that the plaintiff was completely disabled physically. The commissioner found that as to work capacity and disability, the opinions of Steven Beck, the plaintiffs treating physician, and Donald Grayson, a psychiatrist, and an evaluation conducted on behalf of the state at Gaylord Hospital were more credible.

Gaylord Hospital had conducted its evaluation on March 28, 1993, and recommended that the plaintiff receive psychological treatment along with vocational training, but that the plaintiffs physical condition should not preclude employment. On January 5, 1995, Beck opined that the plaintiff had reached maximum medical improvement and should pursue a limited work return. Grayson, who evaluated the plaintiff on March 11, 1996, at the request of the commissioner, indicated that the plaintiffs depression would not preclude him from working.

The commissioner also found that since the injury, the plaintiff had finished his bachelor’s degree and completed a master’s degree in business administration through correspondence courses, including researching and typing lengthy research papers. On the basis of those opinions and the plaintiffs ability to further his education, the commissioner found that the plaintiff had reached maximum medical improvement from a physiological standpoint and that the plaintiff had some work capacity.

Because there was no evidence, however, that the plaintiff had reached a psychiatric maximum medical improvement point, the commissioner made his conclusion approving the reduction to permanent partial disability without prejudice and subject to a possible later claim of total disability “based upon a change in the [plaintiffs] condition and/or the opinions of [Robert F.] Swords,” the plaintiffs appointed treating physician for posttraumatic stress and depression. The plaintiff did not seek review of that first finding and award.

Consequently, the plaintiff later sought to have the commissioner award him total disability benefits because of the plaintiffs alleged lack of work capacity due to his psychiatric condition. The commissioner conducted another formal hearing on April 3,2000, in which he found the following additional facts.

Swords testified by deposition that the plaintiffs condition had “waxed and waned” during the course of treatment. He admitted that there might well have been periods of time in which the plaintiff was capable of work, although more often than not he was unemployable. Swords’ written report of October 22,1998, stated that as of the time of the report and into the indeterminate future, the plaintiff was unemployable.

Beck, who earlier had been supportive of the plaintiffs work capacity, found that as of January 29, 2000, the plaintiffs capabilities were severely limited. When pressed, however, he did believe him capable of “part-time, infrequent employment [that] was self-directed.”

The plaintiff testified that he had been searching for work for the last eight years. He had found a flexible job entering information into a computer. He further testified that he was able to drive a car, help his children with schoolwork, occasionally shop for groceries and, at times, do other household chores.

On August 28, 2000, the commissioner produced another formal finding and award, which is the subject of this appeal. The commissioner concluded, on the basis of the plaintiffs testimony regarding his activities, the testimony of Swords and Beck, and the evidence underlying the April 12, 1999 finding and award, that the plaintiffs condition had not changed in such a way as to support a claim for total disability. On the basis of that conclusion, the commissioner dismissed the plaintiffs claim for total disability.

The plaintiff filed a motion to correct the commissioner’s August 28, 2000 finding and award, which the commissioner denied. The plaintiff sought review by the board of both that decision and the August 28, 2000 finding and award. The board affirmed the commissioner’s decisions in an opinion dated August 3, 2001. The plaintiff then appealed to this court. We now affirm the board’s decision.

Before reaching the substance of the plaintiffs appeal, we first set out our well settled standard of review in workers’ compensation cases. “As a preliminary matter, we note that when a decision of a commissioner is appealed to the review division, the review division is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.” (Internal quotation marks omitted.) Ricigliano v. J. J. Ryan Corp., 53 Conn. App. 158, 160, 728 A.2d 1161 (1999), appeal dismissed, 252 Conn. 404, 746 A.2d 787 (2000). “It is the power and the duty of the commissioner, as the trier of fact, to determine the facts.” Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). “[T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . .” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286, 714 A.2d 60 (1998).

“The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990). In other words, “[t]hese conclusions must stand unless they could not reasonably or logically be reached on the subordinate facts.” Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 145, 291 A.2d 743 (1972).

“Our scope of review of the actions of the review [board] is similarly limited.” (Internal quotation marks omitted.) Ricigliano v. J. J. Ryan Corp., supra, 53 Conn. App. 161. “The decision of the review [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” DeBarros v. Singleton, supra, 21 Conn. App. 110.

I

The plaintiffs essential claim on appeal is that the board improperly affirmed the commissioner’s conclusion that the plaintiff had some degree of work capacity and was not entitled to total disability benefits because the commissioner’s findings were unreasonable and legally inconsistent with the subordinate facts. We disagree.

The plaintiff is entitled to total disability benefits under General Statutes § 31-307 (a) only if he can prove that he has a “total incapacity to work.” General Statutes § 31-307 (a). “The plaintiff [bears] the burden of proving an incapacity to work . . . .” Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454, 774 A.2d 992 (2001). Our Supreme Court has defined total incapacity to work as “the inability of the employee, because of his injuries, to work at his customary calling or at any other occupation which he might reasonably follow.” (Emphasis added.) Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456, 78 A.2d 339 (1951).

In the April 12, 1999 finding and award, the commissioner found that the plaintiff was not entitled to total disability benefits on the basis of his physical condition, but left open the question of whether the plaintiff might be entitled to them on the basis of his psychological condition. In the August 28, 2000 finding and award, the commissioner made reference to medical evidence supporting both sides of that issue. As previously stated, however, it is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses; see Keenan v. Union Camp Corp., supra, 49 Conn. 286; and the commissioner’s conclusions cannot be reversed simply because the plaintiffs own evaluation of the findings causes him to reach a contrary conclusion. Unless the factual findings on which the commissioner bases his conclusion are clearly erroneous, or there is no evidence in the record to support the conclusion, the conclusion must stand.

The plaintiff argues that although he presented competent psychological evidence that he was totally unemployable, the state offered no competent evidence to the contrary on which the commissioner legally and reasonably could base his conclusion. On the basis of our review of the findings, however, we disagree.

The plaintiff may have provided evidence capable of proving his incapacity, but that does not compel the commissioner to accept that evidence as fact. See Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195-96, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999). “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. . . . The trier may accept or reject, in whole or in part, the testimony of an expert.” (Citation omitted.) Id., 195.

There was sufficient evidence from which the commissioner as the trier of fact could have concluded that the plaintiff had some work capacity or capacity for employment and, therefore, that the plaintiff was not entitled to total disability benefits. Both Swords and Beck, although finding that the plaintiff was practically unemployable, did recognize the possibility of employ-ability. Grayson believed that the plaintiffs psychological condition did not make him unemployable. Perhaps the most significant evidence that the plaintiff had some capacity for employment was his testimony as to his daily activities, to which the commissioner reasonably could have attached great weight in reaching his conclusion not to extend benefits. Contrary to the plaintiff’s assertion, therefore, there was competent evidence on which the commissioner could have legally and reasonably based his conclusion.

The plaintiff makes much of typographical errors in the commissioner’s findings. The plaintiff argues that the commissioner’s findings incorporated dates that have no basis in the record. For example, paragraph A of the commissioner’s August 28, 2000 finding and award of dismissal states:

“Based upon the [plaintiff’s] testimony with regard to his activities, as well as his desire and efforts to secure work since September 24, 1992, the testimony of Dr. Swords and Beck, as well as the April 12, 1999 finding and award, the [plaintiffs] condition, subsequent to March 28, 1999, has not significantly changed sufficient to support a claim for total disability.”

The plaintiff argues that the date March 28, 1999, is an arbitrary date that appears nowhere in the record. He argues that because the date “has no factual significance,” the commissioner’s conclusion as to disability is unreasonably based on a fact not in the record. Upon review of the record and when read in context, however, the date at issue likely was a result of a typographical error.

In his April 12, 1999 finding and award, the commissioner found that the plaintiff’s total disability benefits properly were discontinued as of March 28, 1995, at which time the plaintiff began receiving partial disability benefits. In paragraph A of the August 28, 2000 finding and award, the commissioner’s language should be read to refer to March 28, 1995, which was the date when full benefits were received last. Logically, then, March 28,1999, was not a random date with no basis in the record, but rather should have been March 28,1995.

Because there was adequate evidence in the record to support the commissioner’s conclusion, which was legally and reasonably based on his judgment of the credibility of the testimony of the witnesses and his evaluation of the medical evidence, the board was correct to affirm the decision of the commissioner.

II

Finally, the plaintiff claims that the commissioner improperly denied the plaintiffs motion to correct the commissioner’s August 28, 2000 finding and dismissal and that the board should have ordered the commissioner to correct his finding. We are not persuaded.

In his motion to correct, the plaintiff asks the commissioner to change his findings in the following ways: (1) that the commissioner add the phrase, “he just couldn’t do it anymore,” to his finding that the plaintiff had found a job inputting information into a computer, (2) that the commissioner change a typographical error in his finding concerning Swords’ October 22,1998 report, (3) that the commissioner find that there was significant change to support a claim for total disability and (4) that total disability be granted, not denied.

“We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. ... It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted.” (Citation omitted; internal quotation marks omitted.) Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 782, 712 A.2d 436 (1998). “A material fact is one that will affect the outcome of the case.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 599, 630 A.2d 136 (1993), appeal dismissed, 229 Conn. 587, 642 A.2d 721 (1994).

In his motion to correct, the plaintiff merely seeks to have the commissioner conform his findings to the plaintiffs view of the facts. It is the commissioner, however, who must determine which portions of a witness’ statement or what medical opinions are credible and, therefore, helped form the basis of the commissioner’s conclusion. It was within the discretion of the commissioner to evaluate the plaintiffs statement that he “just couldn’t do it anymore” and to decide whether to include that statement in his findings. The plaintiff cannot expect the commissioner to substitute the plaintiffs conclusions for his own.

Arguably, the plaintiffs only valid claim in his motion to correct addressed a typographical error in paragraph sixteen of the commissioner’s findings, which reads: “On October 22, 1998, Dr. Swords issued a report indicating that the [plaintiff] remains totally employable at this time and for the indeterminate future.” The record shows that Swords’ report actually stated that the plaintiff “remains totally unemployable.” Arguably, if the commissioner actually had found that Swords’ report stated “employable” and relied on that in making his determination that the plaintiff had a work capacity, then the plaintiff might argue that the commissioner had relied on a clearly erroneous fact and that his conclusions must be overturned as an unreasonable factual inference.

The commissioner’s ultimate conclusion, however, states that it was the testimony of Swords — perhaps his deposition statement that the plaintiff had “periods of employability” — and not the report of Swords that the commissioner states he in part relied on in finding that there was no significant change in the plaintiffs condition to warrant a claim for total disability. Consequently, even if we were to infer such an argument from the plaintiffs brief, the plaintiff still would fail to show that the commissioner had relied on any erroneous material facts in reaching his conclusion.

As the board points out in a footnote to its opinion, however, and as the plaintiff states in his brief to this court, the language at issue appears to be nothing more than a typographical error. The paragraphs preceding that statement show that Swords had testified in an early 1998 deposition that the plaintiff was unemployable and that Swords had testified that there may have been periods of employability, but, on the whole, the plaintiff was unemployable. Therefore, given those findings, the wording of paragraph sixteen that the plaintiff “remains totally employable” is logically inconsistent and clearly suggests that it was a typographical error.

The plaintiff offers no legal precedent or argument as to why the commissioner must grant a motion to correct to change something that both sides recognize as a typographical error. We agree with the board that scrivener’s errors should generally be overlooked on review. As previously explained, the typographical error regarding Swords’ report does nothing to change the fact that other evidence supports the commissioner’s conclusion. Even if the commissioner had made the proposed changes or additions to his findings, they would not have changed his final conclusion that the plaintiff had some work capacity and, therefore, should not receive full disability benefits.

We conclude that the commissioner did not abuse his discretion in denying the plaintiffs motion to correct and that the board did not improperly affirm that decision. Therefore, because the August 28, 2000 finding and award of dismissal was legally and reasonably supported by the subordinate facts and included all material facts that were admitted or undisputed, we hold that the commissioner did not improperly conclude that the plaintiff was not entitled to continued total disability benefits.

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

In this opinion DRANGINIS, J., concurred.

FLYNN, J.,

dissenting. I respectfully dissent.

The principal issue before the commissioner was whether the plaintiff was totally disabled from employment arising out of and in the course of his employment as a correction officer. His work-related injury resulted from an attack by a prisoner. The commissioner, in an earlier proceeding, had found that the plaintiff suffered from posttraumatic stress syndrome.

In his findings of subordinate facts, the trial commissioner found, as a fact, that Dr. Swords, the plaintiffs physician, determined that the plaintiff was employable. This was simply not the case. Dr. Swords, instead, had opined the opposite. Swords stated that the plaintiff was unemployable. The commissioner’s finding about Dr. Swords’ opinion was, therefore, clearly erroneous and found without evidence.

Such a finding would, nonetheless, stand unless the plaintiff moved to correct it in accordance with § 31-301-4 of the Regulations of Connecticut State Agencies. See Vanzant v. Hall, 219 Conn. 674, 679, 594 A.2d 967 (1991); Mack v. Blake Drug Co., 152 Conn. 523, 525, 209 A.2d 173 (1965). Here, however, the plaintiff did request the commissioner to correct what all parties to this case agree was an erroneous finding concerning the opinion of Dr. Swords. However, the commissioner refused to do so. Once the commissioner so refused, he became wedded to the error. The plaintiff properly preserved this error for review by the compensation review board.

In its written decision, the board attempted to dismiss this appellate issue in a footnote, stating that Dr. Swords’ finding was an obvious typographical error. This perfunctory dismissal, however, does not correct the commissioner’s finding, which was clearly erroneous. Although the board recognized, as did all of the parties in this case, that Swords was of the opinion that his patient was unemployable, it would be logically impossible for the board or this court to conclude that the commissioner also recognized this error, especially in light of the fact that he denied the plaintiffs motion to correct. If, as the board implicitly assumed, the commissioner recognized his error, why would he not correct it once moved to do so?

A mistaken belief in the existence of a fact that does not truly exist is an error. Such an error is not grounded in reality but is contrary to the actual fact. Mistakes of another kind can occur where one accurately apprehends the reality of a situation but in recording that apprehension unintentionally either hits the wrong key or misspeaks using a word opposite to that intended. This latter kind of error is often called a typographical error. See American Heritage Dictionary of the English Language (4th Ed. 2000). The commissioner’s use of the word employable to describe Dr. Swords’ report about the plaintiffs condition lost any claim to being an unintentional typographical error when he refused to correct this erroneous finding in response to a motion to correct, which brought to his attention that Dr. Swords had said the opposite of what the commissioner had recorded in his finding. Since there was no dispute about what Dr. Swords had said in his report, as an undisputed material fact, it should have been correctly found.

This court has no way of knowing, nor did the board, what weight the commissioner gave his erroneous finding or whether his decision rose or fell based upon it. Because there is no way for us to make this determination, I would reverse the decision of the board and remand the case to the workers’ compensation commissioner for rehearing.

Our workers’ compensation law is remedial and intended to confer benefits the law provides for those suffering injuries arising out of and in the course of their employment, whether these sequelae are physical or mental. See Gartrell v. Dept. of Correction, 259 Conn. 29, 40-43, 787 A.2d 541 (2002) (act must be liberally construed, and mental injury that arises from compensable work-related physical injury is covered).

A decision denying these benefits must rest on facts that reasonably could be found or inferred from the evidence. Clearly erroneous findings of fact cannot support a denial of those benefits.

Accordingly, I dissent.

       An appeal to the board from that prior finding and award was brought by the defendant, which argued that there was insufficient evidence to support the commissioner’s authorization of treatment at that facility. The board affirmed the commissioner’s decision, and no subsequent appeal to this court was taken. See D’Amico v. Dept. of Correction, 4029 CRB-5-99-4 (May 18, 2000).

       “Form 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes §§ 31-296, 31-296a, 31-300.” Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 120 n.4, 612 A.2d 82, cert. denied, 223 Conn. 920, 615 A.2d 507 (1992).

       Section 31-301-3 of the Regulations of Connecticut State Agencies provides: “The finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions. The opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.”

       Section 31-301-4 of the Regulations of Connecticut State Agencies provides: “If the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.”