author: HARPER, J.

text:
    LLOYD A. SATCHWELL v. COMMISSIONER OF CORRECTION
    (AC 29453)
    Harper, Robinson and Stoughton, Js.

      Argued October 29, 2009
    officially released March 2, 2010

      Joseph Visone, special public defender, for the appellant (petitioner).

      Robin S. Schwartz, special assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cynthia S. Serafini, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Lloyd A. Satchwell, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court (1) improperly failed to conclude that his trial counsel had rendered ineffective assistance and (2) improperly quashed a subpoena issued on behalf of the petitioner. We reject the petitioner’s claims and affirm the judgment of the habeas court.

The following facts and procedural history underlie the petitioner’s appeal. Following a jury trial, the petitioner was convicted of four counts of arson murder, one count of arson in the first degree and one count of conspiracy to commit arson in the first degree. The court sentenced the petitioner to a term of incarceration of 120 years without the possibility of parole. At the petitioner’s criminal trial, the state presented evidence that the petitioner intentionally set fire to a three-story duplex in Waterbury that, at the time of the fire, was owned by his wife, Esmay Notice, and occupied by two families, tenants of Notice. Four tenants perished in the fire as a result of smoke inhalation. At trial, Notice implicated the petitioner in the crimes and was a key witness for the state. Our Supreme Court affirmed the judgment of conviction following the petitioner’s direct appeal. State v. Satchwell, 244 Conn. 547, 710 A.2d 1348 (1998).

In 2000, the petitioner filed a petition for a writ of habeas corpus. He subsequently filed the operative third amended petition, on which the habeas court based its judgment. The petitioner asserted several grounds in support of his petition. We need only discuss those grounds, and the court’s resolution thereof, that are relevant to this appeal. Specifically, the petitioner alleged that his trial counsel, Alan D. McWhirter, rendered ineffective assistance in that “he failed to present evidence to show that [Notice] was given more consideration than she admitted to being given in exchange for testifying against the petitioner.” Further, the petitioner alleged that his constitutional rights were violated because “[t]he state failed to disclose material favorable evidence related to the consideration given to [Notice] in exchange for [her] testifying against [him].” The respondent, the commissioner of correction, denied these claims, and, in a thorough memorandum of decision issued following a trial, the court rejected them on their merits in denying the petition. After the court granted the petitioner’s petition for certification to appeal, this appeal followed.

I

We first address the petitioner’s claim of ineffective assistance of counsel. The petitioner claims that the court improperly failed to conclude that McWhirter was ineffective in that he failed “to develop testimony” from a defense witness to support the defense theory that, prior to the criminal trial, the state had reduced the charges it had brought against Notice for the purpose of inducing her to testify against the petitioner. Specifically, the petitioner asserts that McWhirter was ineffective in that he failed adequately to prepare the defense witness for trial and cross-examination by the state. We decline to review the petitioner’s claim.

At the habeas trial, the court heard evidence that, at the petitioner’s criminal trial, McWhirter attempted to demonstrate that Notice’s testimony was influenced by her self-interest. Specifically, McWhirter attempted to impeach Notice by arguing that she had been promised favorable consideration by the state in return for her trial testimony against the petitioner. To this end, McWhirter presented to the jury the state’s original and substitute informations brought against Notice. Originally, the state had charged Notice with the commission of more serious crimes but filed a substitute information prior to the petitioner’s trial charging her with less serious crimes. In an attempt to impeach Notice’s credibility, McWhirter presented testimony from Walter Scanlon, a former prosecutor, as an expert concerning plea negotiations in criminal trials.

The petitioner asserts that, during cross-examination of Scanlon and in argument, the prosecutor left the impression in the minds of the jurors that the state had reduced the charges on the basis of the evidence and not to induce Notice’s cooperation with the state. The petitioner asserts that McWhirter was ineffective in that he did not provide Scanlon with sufficient information, including discovery materials, upon which to opine that the evidence would have supported Notice’s conviction of the more serious charges and, presumably, that “the real reason the charges were reduced against [Notice] was to induce her to testify against the petitioner.” The petitioner’s claim on appeal is that McWhirter’s failure to prepare Scanlon for his testimony as to his expert opinion on this issue vitiated the petitioner’s defense strategy of demonstrating that Notice’s testimony was influenced by the state’s unilateral reduction in the charges against her prior to trial.

Our careful review of the record leads us to conclude that this precise claim related to McWhirter’s preparation of Scanlon was neither raised in the petitioner’s amended petition for a writ of habeas corpus, adequately addressed during the habeas proceeding or addressed in the court’s memorandum of decision. During the habeas proceeding, the petitioner’s counsel did not explore this subject during his examination of McWhirter. Scanlon was not called as a witness. As set forth previously, the petitioner alleged in his amended petition that McWhirter failed to present evidence to demonstrate that Notice had been given more consideration for her testimony than that to which she had admitted. This claim of an undisclosed agreement between the prosecutor and Notice is distinct from the claim briefed on appeal, which is that McWhirter was ineffective in his preparation of Scanlon and that he failed to demonstrate via Scanlon that Notice’s testimony was influenced by the prosecutor’s unilateral decision to reduce the severity of Notice’s charges prior to the petitioner’s trial. As the respondent aptly ar gues, the petitioner has changed the very theory on which this claim rests. The theory relied on at trial was that McWhirter failed adequately to impeach Notice concerning an agreement with the state pursuant to which she testified at trial. The theory pursued here is based on unilateral action by the prosecutor.

“It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.” (Internal quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn. App. 188, 194, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). “This court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the court adversely to the appellant’s claim. . . . To review [the claim] now would amount to an ambuscade of the [habeas] judge. . . . This court is not compelled to consider issues neither alleged in the habeas petition nor considered at the habeas proceeding . . . .” (Citation omitted; internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn. App. 120, 126, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009). Because the petitioner did not distinctly raise this claim before the habeas court and the habeas court did not address it in its thorough memorandum of decision, we decline to review the claim.

II

Next, the petitioner claims that the court improperly quashed a subpoena issued on his behalf at the habeas trial. We disagree.

The following additional facts underlie the petitioner’s claim. During the habeas trial, the petitioner’s attorney issued a subpoena ordering Waterbury state’s attorney John A. Connelly to appear at the petitioner’s habeas trial, to testify as to relevant facts and to produce “all documents and all other items” in his possession related to the petitioner’s earlier criminal prosecution as well as Notice’s earlier criminal prosecution, both arising out of the Waterbury fire. Connelly represented the respondent during the petitioner’s habeas trial; he also was the prosecutor during the petitioner’s criminal trial.

Asserting that the testimony sought by means of the subpoena was privileged and that Connelly was counsel of record in the habeas proceeding, the respondent moved to quash the subpoena. Following a hearing, the court granted the respondent’s motion without prejudice to the petitioner to renew his request to present Connelly’s testimony. The court concluded that the petitioner had not demonstrated that Connelly was likely to present relevant testimony.

Later, the petitioner filed a motion for permission to call Connelly as a witness. Essentially, the petitioner claimed that Connelly’s testimony was necessary to demonstrate that the state had filed a substitute information as to Notice, thereby subjecting her to less serious charges than those with which she had been initially charged, in exchange for her testimony at the petitioner’s trial. These facts, the petitioner argued, were relevant to prove his claim, in the habeas proceeding, that the state improperly had failed to disclose such material evidence concerning Notice, which was favorable evidence to the defense. Following a hearing, the court denied the motion on several grounds. First, the court stated that it was not necessary to elicit evidence of the claimed agreement (the bringing of less serious charges in exchange for Notice’s testimony against the petitioner) from Connelly. In this regard, the court observed that the petitioner had not called Notice as a witness at the habeas trial but had presented the testimony of her trial counsel. Notice’s trial counsel testified that he was wholly unaware of any agreement between Connelly and Notice but believed that the prosecutor had acted unilaterally in bringing the substitute information against Notice. Second, the court stated that, in its view, the prosecutor’s subjective motivation for bringing the substitute information was immaterial to any of the claims raised in the habeas petition. In this vein, the court observed that, at trial, McWhirter adequately had brought before the jury the fact that, as a result of her trial testimony against the petitioner, Notice was to receive favorable consideration from the state at the time of sentencing with regard to her pending charges and effectively had argued that this fact was relevant in assessing Notice’s credibility.

The petitioner’s attorney later asked the habeas court to reconsider its decision. He argued that even if Con-nelly’s decision to bring less serious charges against Notice was unilateral, and not part of an explicit agreement of which Notice had knowledge, there nonetheless was some type of an understanding between Connelly and Notice in an effort to procure her testimony. The petitioner argued that Connelly had left the impression in the minds of the jurors that there was no agreement between the state and Notice that involved the bringing of lesser charges but that the decision to bring lesser charges was warranted by the evidence. Denying the petitioner’s motion to reconsider, the court focused on the fact that the petitioner had not presented any evidence, but only had speculated, that the filing of the substitute information by Connelly was part of an agreement with Notice, rather than a unilateral decision on Connelly’s part. The court observed that the evidence presented, including the testimony of McWhirter and Notice’s trial counsel, supported a finding that there had not been any agreement concerning the substitute information. The court observed that the petitioner had not called Notice as a witness at the habeas trial. The court also discussed the “serious ramifications” of a decision to permit the petitioner to call Connelly as a witness, given his role as counsel for the respondent, and concluded that the mere speculation on the part of the petitioner that Con-nelly had entered into an undisclosed agreement with Notice did not warrant calling Connelly as a witness.

Challenging the court’s ruling, the petitioner argues that Connelly’s testimony was relevant to demonstrate that Connelly had brought the substitute information against Notice in an effort to entice her to testify against the petitioner during the criminal trial. The petitioner argues: “[T]he issue here is not whether there was a nondisclosed ‘deal’ with [Notice]. The issue here is whether [Connelly’s] unilateral action (which the habeas court properly recognized as such) in reducing the charges against . . . Notice was done in an effort to entice her into testifying favorably for the state or whether he did it because he did not have sufficient evidence to prosecute her on the original information . . . .” The petitioner argues that this evidence was relevant to impeach Notice’s credibility. The petitioner asserts that it was not sufficient that the jury understood that the charges against Notice had been reduced but that the jury should have been provided with an explanation from Connelly as to why he had reduced such charges. The petitioner argues that the court abused its discretion in quashing the subpoena because Connelly’s testimony at the habeas trial, concerning his reason for reducing the charges against Notice, was relevant to demonstrating the prejudice caused to the petitioner at his criminal trial.

We review the court’s decision to quash the subpoena under the abuse of discretion standard. See Curry v. Bums, 33 Conn. App. 65, 68-71, 633 A.2d 315 (1993). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The salient inquiry is whether the court could have reasonably concluded as it did. ... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. ... In determining whether there has been an abuse of discretion, much depends upon the circumstances of each case.” (Citations omitted; internal quotation marks omitted.) State v. Arbour, 29 Conn. App. 744, 748, 618 A.2d 60 (1992).

In considering the petitioner’s request to call Con-nelly as a witness, the court properly recognized that calling Connelly as a witness would have caused significant problems during the habeas trial because he was counsel for the respondent. See Rules of Professional Conduct 3.7 (generally prohibiting lawyer from acting as advocate in proceeding in which he or she likely to be necessary witness). The court, reasoning that permitting the petitioner to call Connelly likely would have resulted in a mistrial, carefully considered the reasons advanced by the petitioner for calling Connelly to the witness stand.

Certainly, the petitioner cannot demonstrate that the court abused its discretion if he cannot demonstrate that Connelly’s testimony was likely to be relevant to a material issue. The petitioner’s attorney set forth the basis for his request to subpoena Connelly. He explained that Connelly’s testimony concerning the basis of his unilateral decision to bring a substitute information against Notice was relevant to proving one or more grounds in the petitioner’s petition for a writ of habeas coipus. Having reviewed the amended petition, however, we, like the habeas court, are not persuaded that Connelly’s testimony was likely to have been relevant to any ground raised in the amended petition. In his amended petition, the petitioner claimed that he was deprived of a fair trial because “[t]he state failed to disclose material favorable evidence related to the consideration given to [Notice] in exchange for [her] testifying against [him].” There was no evidence as to why Connelly brought the substitute information. Additionally, we fail to see how the reasons underlying Con-nelly’s decision to bring a substitute information, if they were unbeknownst to Notice, constituted consideration for which Notice testified against the petitioner and, therefore, could logically have affected her decision to testify as she did. There was no evidence suggesting that Connelly and Notice had an agreement related to her testimony, let alone one that Connelly improperly had failed to disclose to the petitioner. Contrary to the position he took at the habeas trial, the petitioner no longer contends that any such agreement existed. This being the case, we do not conclude that Connelly’s testimony was likely to be relevant to any issue at the habeas trial and, thus, that the petitioner had demonstrated any need for Connelly’s testimony. Accordingly, we do not conclude that the decision to quash the subpoena reflected an abuse of the court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to the petitioner’s trial, Notice pleaded guilty to one count of aiding and abetting arson in the first degree and one count of conspiracy to commit arson in the first degree. Following the trial, Notice was sentenced to a term of twenty-five years imprisonment.

       The petitioner asserts that he had argued during the habeas proceeding that McWhirter was ineffective for failing to elicit evidence that the prosecutor had acted unilaterally in an effort to induce Notice to testify against the petitioner. Although we disagree with the petitioner, we note that even were this contention accurate, it would not alter the fact that the habeas court did not address this claim, leaving this court without any means of reviewing it. Furthermore, a consequence of the petitioner’s failure to raise this claim before the habeas court is that the petitioner’s analysis of this claim is wholly lacking with regard to reference to specific facts and evidence related to it.
      Specifically, the petitioner asks this court to conclude that McWhirter was ineffective in that he failed to provide Scanlon with “necessary discovery materials” upon which he might have opined that Notice reasonably could have been convicted of the more serious charges that the state initially had brought against her. Although this appears to be the gravamen of the claim, the petitioner fails to discuss what evidence supports this claim. Thus, there is no discussion of what discovery materials are at issue or on what evidence the habeas court should have concluded that McWhirter’s conduct with regard to Scanlon was constitutionally deficient.

       McWhirter testified as to similar facts at the habeas trial.

       The respondent asserts that, in evaluating the court’s decision to quash the subpoena, we should also consider Connelly’s role as prosecutor during the petitioner’s criminal trial. This court has stated: “In order for either side in a criminal case to call a prosecutor or a defense attorney to testify, who is or was involved in the case, a court must be satisfied that a compelling need for the testimony exists. . . . The establishment of a compelling need requires the exercise of the court’s discretion to determine whether the testimony is necessary and whether all other available sources of comparably probative evidence have been exhausted.” (Citation omitted.) State v. Smith, 85 Conn. App. 96, 112-13, 856 A.2d 466 (2004), afFd, 280 Conn. 285, 907 A.2d 73 (2006).
      The compelling need test has been applied in criminal jury trials as well as in criminal proceedings before the court. In State v. Colton, 234 Conn. 683, 702 n.17, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996), our Supreme Court observed that “the requirement of a threshold showing of compelling need is necessary to prevent frivolous attempts to call prosecutors or defense counsel as witnesses.” Although the present action is civil, rather than criminal, in nature; Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970); we nonetheless are persuaded that the rationale for the compelling need test applies in the present habeas trial, as well. Thus, we readily conclude that, in light of our conclusion that the petitioner had not demonstrated that Connelly was likely to present relevant testimony concerning a material issue in the habeas proceeding, he did not demonstrate that there was a compelling need for Connelly to testify.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JASON MANN
    (AC 27779)
    Gruendel, Beach and Alvord, Js.

      Argued October 21, 2009
    officially released March 2, 2010

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Marjorie L. Sozanski, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Jason Mann, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On appeal, the defendant challenges as improper the trial court’s instructions to the jury concerning (1) his consciousness of guilt and (2) his interest in the outcome of the case when assessing his credibility, which he alleges violated both his federal and state constitutional rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2:15 a.m. on October 18, 2004, the defendant entered a Mobil gasoline station (Mobil station) and convenience store in Derby. Mohammed Khan, the cashier working that morning, recognized the defendant as an occasional customer. Indeed, the defendant occasionally purchased from that Mobil station soda, cigarettes and gasoline for his green 1985 Chevrolet C20 truck (green truck). When the defendant entered the store that morning, he exchanged pleasantries with Khan, and the two engaged in small talk. As Khan entered the cashier’s booth, the defendant approached him from behind, brandished a silver folding knife and ordered Khan to open the cash register. Fearing for his safety, Khan complied, and the defendant removed most of the money, put it in his left jacket pocket and fled. Once the defendant was gone, Khan ran outside, used a telephone from a man in the parking lot and called the police, who responded shortly thereafter. Khan informed the police that he recognized the defendant as an occasional customer. He described the defendant as a “white male, approximately five foot eight . . . wearing a black jacket, underneath was a hooded gray sweatshirt, the hood was up over his head, but his face was visible, blue pants and described as having a . . . three to four day [beard] on his face.”

Another officer patrolling the area that morning searched for the defendant upon notification over the police radio of the defendant’s description. Approximately two blocks from the Mobil station, the officer observed an unshaven white male wearing a blue sweat suit, whom he approached and stopped because he partially matched the defendant’s description. Unbeknownst to the officer, that individual was, in fact, the defendant. The officer asked the defendant if he had recently been on Pershing Drive, where the Mobil station was located, to which the defendant responded in the negative. The defendant explained that he was returning from his friend’s house in Ansonia and that his friend was named “Black.” Despite alleging to have been returning from Black’s house, the defendant informed the officer that he neither knew Black’s address nor Black’s first name. The defendant claimed that while returning from Black’s house, his green Infin-iti automobile (green car) had run out of gasoline and that he was walking along the street in search of a gasoline station. The officer provided the defendant with directions to the two nearest gasoline stations open at that hour—the Mobil station and a Cumberland Farms store located across the street from the Mobil station.

As the defendant began to walk in the direction of the gasoline stations, the officer observed him enter Griffin Hospital, stand in the main entrance for approximately thirty seconds and then leave. Upon exiting the hospital, the defendant proceeded in the direction opposite the gasoline stations. The officer again approached the defendant and asked whether he understood the directions. The defendant responded to that query in the affirmative and indicated that he had entered the hospital to call a friend for a ride to a gasoline station, even though the stations were approximately only two blocks away. He further indicated that he was unable to procure a ride, at which time the officer offered to drive the defendant to a gasoline station. The defendant accepted, and they proceeded to the Mobil station, which the defendant had just robbed. Upon their arrival, another officer already at the Mobil station instructed Khan to take a look at the defendant, seated in the rear of the police cruiser. Khan identified the defendant as the robber, and the defendant was placed under arrest. Police searched the defendant and discovered $17 in cash in his front left pocket.

After being placed under arrest, the defendant proclaimed his innocence and told the officers that he could direct them to the location of the green car to show them that it had, in fact, run out of gasoline. The police obliged and, before returning with the defendant to police headquarters, they drove to the location where the defendant claimed the green car was located. Unable to find the green car, an officer telephoned the defendant’s home and spoke with Michael Mann, the defendant’s brother, who informed him that then-mother drives the green car. Mann also told the officer that his brother, the defendant, drives the green truck. The officer relayed that information to the Ansonia police department and, moments later, as the officers were en route to police headquarters with the defendant, they were notified that the green truck had been located nearby. They proceeded to that location, where they observed the truck with the keys in the ignition, a crumpled up dollar bill on the floor under the steering wheel, and a black jacket and gray sweatshirt between the driver’s seat and door. The officers removed those items and discovered $100 in cash in the left front jacket pocket. They also discovered a silver folding knife in the jacket. All of those items were transported to police headquarters, where they were processed and stored. Thereafter, a jury trial followed, at the conclusion of which the jury found the defendant guilty of robbery in the first degree, and the court rendered judgment accordingly. From that decision, the defendant appeals.

I

The defendant first claims that the court’s consciousness of guilt instruction was improper. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. The court instructed the jury on consciousness of guilt in pertinent part: “It is up to you as judges of the facts to decide whether the conduct of the defendant reflects a consciousness of guilt and to consider such in your deliberations in conformity with the instructions.

“False statements made by a defendant are circumstantial evidence from which the jury may, but is not required to, infer a guilty consciousness.

“In this case, you have heard evidence of statements made by the defendant after the time of the alleged offense, where the defendant when questioned by the Derby police on October 18, made statements that he had been driving a green [car] that ran out of gas on Olson Drive in Ansonia.

“First, you must determine whether the state has proven such statement and, if so, that such statement was false. You must then find proven that the defendant made such statement in connection with the crime. Any false statement, if proven false, tends to show a consciousness of guilt. It does not, however, raise a presumption of guilt.

“It is up to you as judges of the facts to decide whether any statement or conduct of the defendant reflects consciousness of guilt and to consider such in your deliberations in conformity with these instructions.”

In its concluding instruction, the court stated: “Please remember that when I pointed out certain evidence during the course of these instructions, that was only to illustrate how you might go about relating the evidence you have heard to these instructions on the law. You should not confine your deliberations to the evidence that I mentioned; rather, you should consider all of the evidence, and it is your own recollection of the evidence that controls. Furthermore, the fact that I may have mentioned certain evidence does not imply that I have any opinion, one way or the other, what your verdict should be.” At the conclusion of the court’s charge, the defendant took exception to the court’s reference to his statement about the green car, preserving his claim for our review. Cf. Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 591, 627 A.2d 443 (1993).

On appeal, the defendant argues that the court’s reference to the green car in its instruction was improper. Specifically, the defendant contends that a court’s “[i]nstructions should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over portions of the testimony on the other side which deserve equal attention.” State v. Rome, 64 Conn. 329, 339, 30 A. 57 (1894). Essentially, the defendant claims that the instruction was improper because it was not evenhanded with respect to possible innocent explanations concerning his statement about the green car.

In reviewing claims of instructional error, we are guided by the well settled standard that “[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The test to be applied is whether, when read as a whole, the charge presents the case to the jury in such a way that no injustice will result.” (Citation omitted; internal quotation marks omitted.) State v. Mastropetre, 175 Conn. 512, 524, 400 A.2d 276 (1978).

In considering consciousness of guilt instructions, our Supreme Court has observed: “Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence . . . inadmissible but simply constitutes a factor for the jury’s consideration. . . . The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction . . . erroneous. . . . Moreover, [t]he court was not required to enumerate all the possible innocent explanations offered by the defendant.” (Internal quotation marks omitted.) State v. Figueroa, 257 Conn. 192, 196, 777 A.2d 587 (2001); State v. Groomes, 232 Conn. 455, 472-73, 656 A.2d 646 (1995); State v. Freeney, 228 Conn. 582, 593-94, 637 A.2d 1088 (1994).

Based on our review of the court’s charge in its entirety, we are convinced that no injustice resulted from the court’s reference to the green car in its consciousness of guilt instruction. The court reminded the jury that it was the sole finder of fact, that it should rely on its own recollection of the evidence to determine the facts, that it should not confine its deliberation to the evidence mentioned by the court and that it should disregard any opinion allegedly suggested by the court concerning the facts. When read as a whole, the court’s instruction properly informed the jurors that the defendant’s consciousness of guilt was a permissive inference that the jury could draw from his statement concerning the green car. Moreover, the court was under no obligation to instruct the jury on possible innocent explanations offered by the defendant. Accordingly, we conclude that the court’s instruction was proper.

II

The defendant next claims that the court’s instructions unduly emphasized his interest in the outcome of the case, thereby undermining both his federal and state constitutional rights. We disagree.

The following additional facts are relevant for our consideration of the defendant’s claim. In its charge to the jury, the court instructed as follows: “In deciding what the facts are, you must consider all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none or a part of any witness’ testimony. That is up to you. In making that decision, you may take into account a number of factors, including the following: . . . Did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case?”

In addition, the court instructed the jury as to the defendant’s testimony as follows: “And in this case, the defendant testified. An accused person, having taken the [witness] stand, stands before you just like any other witness. He is entitled to the same considerations and must have his testimony tested and measured by you by the same factors and standards as you would judge the testimony of any other witness. That necessarily involves a consideration of his interest in the verdict that you will render. You have no right to disregard his testimony or to disbelieve his testimony merely because he is accused of a crime. You will consider my earlier instructions on the general subject matter of creditability that obviously pertain to the defendant’s testimony as well as the testimony of any other witness.”

Thereafter, the defendant took exception to the court’s instructions concerning his credibility, thereby, preserving his claim for appeal. See Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 8, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995). He now challenges the propriety of the instructions under the federal and state constitutions. We review each in turn.

A

Federal Constitutional Claim

The defendant argues that the court’s instructions undermined his federal constitutional rights to the presumption of innocence, to a fair trial and to testify in his defense. He further asserts that the court belabored the obvious by instructing the jury as to his credibility after having already instructed the jury on the credibility of witnesses in general. According to the defendant, this sent the jury the message of “don’t trust this defendant.” (Emphasis added; internal quotation marks omitted.) United States v. Dwyer, 843 F.2d 60, 63 (1st Cir. 1988). We do not agree.

In reviewing the defendant’s claim of instructional error, we apply the same standard of review as set forth in part I of this opinion. Particularly, we consider “whether, when read as a whole, the charge presents the case to the jury in such a way that no injustice will result.” State v. Mastropetre, supra, 175 Conn. 524.

“[T]he fact that the witness is a defendant in a criminal prosecution, or is a participant in the offense or in a related offense, creates an interest which affects his credibility. . . . Where a defendant in a criminal case testifies in his own behalf, his interest in the result is a proper matter to be considered as bearing on his credibility, and it has been considered that his position of itself renders his testimony less credible than if he were a disinterested witness, especially where he has a criminal record. . . . The rule is well settled in this state that the court may advise the jury that in weighing the credibility of an accused’s testimony [it] can consider his interest in the outcome of the trial. We have adhered to this rule in many cases.” (Citations omitted; internal quotation marks omitted.) State v. Bennett, 172 Conn. 324, 335, 374 A.2d 247 (1977); accord State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); State v. Smith, 65 Conn. App. 126, 144, 782 A.2d 175 (2001), rev’d on other grounds, 262 Conn. 453, 815 A.2d 1216 (2003); see also State v. Mack, 197 Conn. 629, 636, 500 A.2d 1303 (1985) (rejecting challenge to such instructions as “ ‘totally without merit’ ”); State v. Roos, 188 Conn. 644, 645, 452 A.2d 1163 (1982) (rejecting challenge to such instructions as “utterly without merit”); State v. Colon, 37 Conn. App. 635, 640, 657 A.2d 247 (noting our courts have rejected the claim that such instructions violate defendant’s constitutional right to fair trial and due process), cert. denied, 234 Conn. 911, 660 A.2d 354 (1995). Indeed, “the interest of the defendant in the result of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his testimony.” (Internal quotation marks omitted.) State v. Bennett, supra, 337, quoting Reagan v. United States, 157 U.S. 301, 310, 15 S. Ct. 610, 39 L. Ed. 709 (1895).

Connecticut appellate courts repeatedly have held that a court’s instruction that the jury evaluate the defendant’s testimony in the same manner as that of any other witness after pointing out the defendant’s interest in the outcome is neither improper nor transcends the bounds of evenhandedness. State v. Williams, 220 Conn. 385, 397, 599 A.2d 1053 (1991); State v. Mastropetre, supra, 175 Conn. 524-25; State v. Smith, supra, 65 Conn. App. 144. Juries are presumed to follow the court’s instructions in the absence of a fair indication to the contrary. State v. Anderson, 86 Conn. App. 854, 870, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005). Upon our review of the court’s instructions, we conclude that they were balanced and evenhanded. The court instructed the jury: “An accused person, having taken the [witness] stand, stands before you just like any other witness. He is entitled to the same considerations and must have his testimony tested and measured by you by the same factors and standards as you would judge the testimony of any other witness.” Such instructions are in harmony with those that consistently have been held proper by our courts. The defendant’s claim fails.

B

State Constitutional Claim

The defendant also claims that the court’s instructions concerning his interest in the outcome of the case undermined his state constitutional rights to a fair trial, to testify and to the presumption of innocence. We disagree.

In State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), our Supreme Court “set forth six factors that, to the extent applicable, are to be considered in construing the contours of our state constitution so that we may reach reasoned and principled results as to its meaning. These factors are: (1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies. . . .

“Although, in Geisler, we compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, we recognize that they may be inextricably interwoven. . . . [Moreover], not every Geisler factor is relevant in all cases. . . . Accordingly, our analysis of . . . the state constitution is informed by those Geisler factors that are relevant to the analysis, which are to some degree intertwined.” (Citations omitted; internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 641, 648-49, 980 A.2d 845 (2009).

We begin by noting that the defendant focuses on only four Geisler factors, which, he alleges, compel the conclusion that Connecticut’s constitution affords greater protection than its federal counterpart with regard to instructions concerning the defendant’s interest in the outcome. Because he does not address either the text of the operative constitutional provisions or contemporary economic and sociological considerations, including relevant public policies, our analysis is limited to an examination of Connecticut, sibling state and federal authority, and the history of the operative state constitutional provision.

The defendant relies on the dissents of two Connecticut jurists in his analysis of Connecticut authority. He first cites Justice Callahan’s dissent in State v. Cassidy, 236 Conn. 112, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), overruled in part by State v. Alexander, 254 Conn. 290, 296, 755 A.2d 868 (2000), a case in which the court found that the prosecutor’s argument to the jury that the defendant was present in court throughout the trial and was able to tailor his testimony, invited the jury to draw an adverse inference that violated his constitutional rights. Justice Callahan stated: “[T]he trial court routinely instructs the jury that the defendant’s interest in the outcome of the case may be considered in assessing his credibility. We have, moreover, consistently said that such an instruction was proper, concluding that it did not violate the defendant’s right to testify and did not constitute a due process violation. ... In fact, the instruction, coming as it does from the judge, probably has a greater tendency to induce a juiy to view a defendant’s testimony with heightened skepticism than a remark such as the prosecutor made . . . .” (Citations omitted.) Id., 153-54. The defendant asserts that Justice Callahan’s dissent indicates that the court’s instructions in the present case at least caused the jury to view the defendant’s testimony with heightened skepticism. We are not persuaded. The defendant overlooks that part of Justice Callahan’s dissent in which he plainly expressed that our courts have consistently held as proper jury instructions concerning the defendant’s interest in the outcome of the case when evaluating the defendant’s credibility. That dissent, we conclude, lends credence to the state’s position more so than the defendant’s.

The defendant also notes the dissents of Justice Bogdanski in State v. Mastropetre, supra, 175 Conn. 524, State v. Bennett, supra, 172 Conn. 324, and State v. Jonas, 169 Conn. 566, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976), in which Justice Bogdanski argued that the court’s instructions that the jury consider the defendant’s outcome in the respective cases in evaluating the defendant’s testimony denigrated the weight to be afforded the defendant’s testimony and deprived him of the presumption of innocence. The defendant, however, ignores the majority opinions of those cases, among others, in which our courts routinely have recognized such instructions as entirely proper; see part II A of this opinion; as well as Justice Callahan’s dissent in Cassidy, on which he relies.

Our Supreme Court’s decision in State v. Higgins, 201 Conn. 462, 518 A.2d 631 (1986), is also instructive. There, the court considered instructions on the defendant’s interest in the trial’s outcome under our state constitution. The defendant challenged the instructions as a denigration of the right of an accused under article first, § 8, of our state constitution “to be heard by himself.” (Internal quotation marks omitted.) Id., 475. Although the court underscored that “[t]he defendant assumes that this provision establishes a state constitutional right to testify,” the court determined that “[s]uch an assumption is doubtful . . . .” Id., 476-77. Nevertheless, in Higgins, the court held that even if the defendant’s state constitutional right to be heard was viewed as an additional source of the constitutional right to testify, as has been implicitly recognized under the aegis of state and federal due process provisions, “the scope of the right to testify would not necessarily be changed by virtue of its multiple origin. In any event, the nature of that right would not necessarily be so enhanced as to preclude fair comment upon the interest of [the defendant].” Id., 477. In light of the foregoing, we conclude that Connecticut authority weighs in favor of the state.

In examining sibling state authority, it is apparent that there is neither a clear majority nor a growing minority of states finding improper instructions concerning the defendant’s interest in the outcome when evaluating the credibility of his testimony, nor does the defendant claim as much. Rather, the defendant argues that because a series of cases from certain states have found such instructions improper, so, too, should we under our state constitution. See People v. Boren, 139 Cal. 210, 215, 72 P. 899 (1903); Alder v. State, 239 Ind. 68, 70-73, 154 N.E.2d 716 (1958); State v. Bester, 167 N.W.2d 705, 708 (Iowa 1969); State v. DeVries, 13 Kan. App. 2d 609, 617-19, 780 P.2d 1118 (1989); State v. Carroll, 134 La. 965, 967-71, 64 So. 868 (1914); Sumrall v. State, 343 So. 2d 481, 482 (Miss. 1977); Donner v. State, 72 Neb. 263, 269, 100 N.W. 305 (1904); Fletcher v. State, 2 Okla. Crim. 300, 322-23, 101 P. 599 (1909), overruled in part on other grounds by Parker v. State, 917 P.2d 980, 986 n.ll (Okla. Crim. App. 1996), cert. denied, 519 U.S. 1096, 117 S. Ct. 777, 136 L. Ed. 2d 721 (1997); State v. Boise, 146 Vt. 46, 49, 498 A.2d 495 (1985). At the same time, the defendant ignores a separate series of cases holding to the contrary. See, e.g., Bell v. State, 284 Ga. 790, 794-95, 671 S.E.2d 815 (2009); People v. Barney, 176 111. 2d 69, 74, 678 N.E.2d 1038 (1997); State v. Barry, 495 A.2d 825, 827 (Me. 1985); State v. Thompson, 293 N.C. 713, 719, 239 S.E.2d 465 (1977); Thompson v. State, 83 Wis. 2d 134, 148, 265 N.W.2d 467 (1978); People v. Seabrooks, 135 Mich. App. 442, 453, 354 N.W.2d 374 (1984); Pennsylvania v. Frye, 272 Pa. Super. 200, 205-206, 414 A.2d 1077 (1979); State v. Smith, 100 N.J. Super. 420, 426, 242 A.2d 49 (1968). It thus is fair to say that sibling authority is a neutral factor in our analysis.

In considering federal precedent, the defendant relies on certain decisions of the United States Courts of Appeal for the First and Second Circuits that have expressed disapproval of jury instructions highlighting the defendant’s personal interest in the outcome. See United States v. Gaines, 457 F.3d 238, 248 (2d Cir. 2006); United States v. Dwyer, supra, 843 F.2d 63; United States v. Rollins, 784 F.2d 35, 37 (1st Cir. 1986). Despite those decisions, the United States Supreme Court has indicated otherwise. See Reagan v. United States, supra, 157 U.S. 301 (approving court’s instruction that defendant’s deep personal interest in outcome should be considered in determining his credibility). The defendant contends that Reagan is of little import to our analysis because it addressed this issue in the context of a defendant’s right to testify, which at the time was not a constitutional right but a statutory right of then recent vintage. See id., 304. The defendant further notes that, more recently, courts have evaluated challenges to such instructions against the backdrop of the presumption of innocence. See United States v. Gaines, supra, 245; United States v. Dwyer, supra, 64 (“[i]t is hardly consistent for the court to charge the jury as to the presumption of innocence and at the same time indicate doubts about defendant’s credibility”). Nevertheless, in Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000), the United States Supreme Court reiterated its finding in Reagan, decided more than one century prior: “[T]his Court has approved of such generic comment before. In Reagan . . . the trial court instructed the jury that [t]he deep personal interest which [the defendant] may have in the result of the suit should be considered ... in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit. . . . [I]t simply set forth a consideration the jury was to have in mind when assessing the defendant’s credibility .... What Reagan permitted ... is in a long tradition that continues to the present day.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 70-73; see also United States v. Jones, 587 F.2d 802, 806 (5th Cir. 1979); United States v. Hill, 470 F.2d 361, 365 (D.C. Cir. 1972); State v. Bennett, supra, 172 Conn. 336 (approvingly citing Reagan in holding as proper court’s instructions that the jury consider defendant’s interest in outcome of case when assessing credibility of his testimony). In light of that body of law, we conclude that federal precedent, at best, favors neither party.

Finally, we examine the history of the operative constitutional provision, including the historical constitutional setting and debates of the framers. The defendant provides a historical analysis of a defendant’s right to testify in which he argues, inter alia, that “the law guards with anxious solicitude the rights of parties accused of crime.” State v. Coffee, 56 Conn. 399, 415-16, 16 A. 151 (1888). Furthermore, relying principally on State v. Branham, 171 Conn. 12, 368 A.2d 63 (1976), the defendant contends that if a judge cannot comment on the defendant’s decision not to testify but is still able to make special mention of a testifying defendant’s interest in the trial’s outcome, the nontestifying defendant’s interest is afforded greater protection. Id., 17. In studying this particular Geisler factor, our courts have looked to the historical period before and during the adoption of our state constitution. See Moore v. Ganim, 233 Conn. 557, 602, 660 A.2d 742 (1995) (considering historical evidence at time of adoption of 1818 constitution); State v. Linares, 232 Conn. 345, 384-85, 655 A.2d 737 (1995) (considering concerns and historical underpinnings immediately preceding our constitution’s enactment); State v. Sulewski, 98 Conn. App. 762, 775 n.12, 912 A.2d 485 (2006) (same); see also State v. Medina, 228 Conn. 281, 332, 636 A.2d 351 (1994) (considering treatise of Chief Justice Zephaniah Swift, leading jurist of 1818, in historical constitutional setting and debates of constitution’s framers). Significantly, the defendant presents no evidence as to the historical setting and debates of our framers at the time of the adoption of our state constitution but, instead, provides a historical analysis of a defendant’s right to testify, which first arose in 1867.

In State v. Higgins, supra, 201 Conn. 462, our Supreme Court doubted that the “right to be heard by himself and by counsel” provision of article first, § 8, of our state constitution established a constitutional right to testify because “at the time of the adoption of our state constitution in 1818, a defendant was unable to testify as a witness in his own case because of his interest, a disability that was not removed until 1867, when the common law rule was modified by the statutory predecessor of General Statutes § 54-84.” Id., 476-77. Still, the court found that even if that provision was regarded as providing an additional source of the constitutional right to testify under our state constitution, “the scope of the right to testify would not necessarily be changed by virtue of its multiple origin.” Id., 477. As an intermediate appellate court, we are unable to reconsider or to overrule the decisions of our Supreme Court. See Mazzuca v. Sullivan, 94 Conn. App. 97, 102, 891 A.2d 83 (axiomatic that appellate court is bound by decisions of our Supreme Court), cert. denied, 278 Conn. 905, 896 A.2d 107 (2006); State v. Colon, 71 Conn. App. 217, 245-46, 800 A.2d 1268 (same), cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). Although the defendant argues that history aids his position, his historical analysis is based solely on a defendant’s right to testify. Because the defendant has not provided historical analyses as to a defendant’s presumption of innocence or right to a fair trial, we do not consider such. See Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 181 n.4, 629 A.2d 1116 (1993) (refusing to entertain abstract assertions absent any analysis); State v. Adams, 117 Conn. App. 747, 753, 982 A.2d 187 (2009) (same). The defendant’s historical analysis is, therefore, unavailing.

In conclusion, the defendant’s Geisler analysis has not persuaded us that our state constitution affords greater protection than its federal counterpart as to the defendant’s interest in the outcome when assessing the credibility of his testimony. We therefore conclude that his claim under the state constitution must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, the defendant testified that his friend’s full name is Titus Black. He claimed that he was unable to recall Black’s first name when speaking with the officer but still maintained that he did not know Black’s address.

       In particular, the defendant calls attention to his testimony that his statement to the officer allegedly indicated that he drove the green car the day before the robbery.

       The defendant objected: “Our argument is, and I know that this has been rejected in the past, but we do make the argument that it puts too much of a burden on the defendant testifying. Calls attention to his interest in the case when that has already been called attention to prior in the charge and [credibility] of witnesses, so I’m going to ask that—I’m going to take an exception to the charge on defendant’s testimony.”

       The defendant also argues that the situation was further aggravated for two reasons. First, he asserts that the instructions were exacerbated by the prosecutor’s closing argument in which she stated: “Now, when you judge the credibility of the defendant, you can judge his credibility just like everybody else. You judge credibility by who has interest in the outcome of the case.” Our courts have held as proper instructions on weighing the credibility of the defendant’s testimony and prosecutorial comment concerning the defendant’s interest in the outcome. See p. 637 of this opinion; State v. Thompson, 266 Conn. 440, 466, 832 A.2d 626 (2003) (prosecutor may comment on witness’ motivation to be truthful or to lie); State v. Skidd, 104 Conn. App. 46, 66, 932 A.2d 416 (2007) (same). We thus conclude that this claim is without merit.
      Second, the defendant argues that impropriety of the court’s instructions as to his interest in the outcome of the trial was reinforced by the instruction concerning consciousness of guilt because, together, they allegedly increased the already substantial risk that the court intimated that his testimony should be specially examined. In support of this claim, the defendant provides no persuasive authority, and we deem it similarly unavailing.

       The defendant also supports his position with cases from Australia and Canada, as well as William Shakespeare’s Macbeth. We refuse to consider this in our review of sibling state authority.

        Portuondo considered “whether it was constitutional error for aprosecutor, in her summation, to call the jury’s attention to the fact that the defendant has the opportunity to hear all other witnesses and to tailor his testimony accordingly.” Portuondo v. Agard, supra, 529 U.S. 63.

       In United States v. Gonsalvez, 435 F.3d 64 (1st, Cir. 2006), cited by the defendant in his brief, the First Circuit also referenced Reagan. It stated: “In the past this court has held that certain instructions in this vein—but more egregiously phrased—amounted to error. . . . The caution is still good law in this circuit but cannot be pressed too far. Indeed, in Reagan . . . cited with approval in Portuondo . . . the Supreme Court expressly approved an instruction calling attention to the testifying defendant’s interest in the outcome.
      “In [Gonsalves], the reference to the defendant’s interest was no different than the instruction given in Reagan or standard instructions used elsewhere. ... It was immediately followed by the warning that [y]ou should not disregard or disbelieve [Gonsalves’] testimony simply because he is charged as a defendant in this case. We think the instruction was not error and decline to extend Dwyer beyond its present reach.” (Citations omitted; internal quotation marks omitted.) Id., 72.

       In his reply brief, the defendant concedes that his historical analysis concerns only the right to testify.


author: LAVINE, J.

text:
    ZELIHA SELIMOGLU v. MALY PHIMVONGSA ET AL.
    (AC 30607)
    Flynn, C. J., and Lavine and Foti, Js.

      Argued December 3, 2009
    officially released March 2, 2010

      Juri E. Taalman, with whom, on the brief, was David W. Bush, for the appellant (plaintiff).

      Kenneth J. Mastroni, for the appellees (defendants).
   Opinion

LAVINE, J.

The plaintiff, Zeliha Selimoglu, appeals from the judgment of the trial court, granting the motion to dismiss her second action filed by the defendants, Maly Phimvongsa and Eastern Psychological Services, LLC (Eastern). On appeal, the plaintiff claims that the court, in reaching its conclusion, improperly applied the prior pending action doctrine. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs appeal. The plaintiff commenced an action by filing with the Superior Court a three count complaint, returnable by February 12, 2008 (first case). The first complaint alleged the following facts. Phimvongsa was a licensed counselor employed by Eastern. The department of children and families (department), where the plaintiff worked as a social work supervisor, hired Eastern to be an outside contractor. In this role, Eastern provided case management services to the department, and Phimvongsa worked with a particular department client with mental health concerns.

On or about January 31,2006, Phimvongsa was working with a department caseworker attempting to find residential placement for the department client. Phim-vongsa and the caseworker were experiencing problems with the client and, some time after 5 p.m., called the plaintiff several times to ask for instruction. Department protocol prohibits outside contractors or department caseworkers from calling social work supervisors outside of normal business hours, which is from 8 a.m. until 5 p.m. The plaintiff instructed Phimvongsa to follow department protocol and to contact the department’s telephone hotline to resolve any problems. At approximately 8:30 p.m., Phimvongsa and the caseworker brought the client to an office area in the department, which was not meant for contact between department clients and caseworkers, where the client chased and attacked the plaintiff, causing her “severe personal and emotional injuries . . . .” The plaintiff complained that (1) Phimvongsa was negligent in her actions, (2) Eastern was responsible for Phimvongsa’s negligence pursuant to the doctrine of respondeat superior and (3) Eastern was negligent in its training of Phimvongsa and failing to inform her of department protocol. She requested monetary damages and costs.

The plaintiff thereafter brought a second action by filing a second complaint on May 7,2008 (second case). The first and second counts of the second complaint are identical to those found in the first complaint. The third count of the second complaint differs from its counterpart in the first complaint only in that it added three allegations of Eastern’s negligence and two paragraphs concerning the plaintiffs injuries and economic damages. The prayers for relief alleged in both complaints are identical. The most notable difference between the two complaints is that there is a “Statement of [a] Licensed Professional Counselor” and a “Good Faith Certificate” attached to the second complaint.

The defendants filed a motion to dismiss the second complaint, claiming that “(1) the plaintiff has a pending lawsuit against the same defendants before the same court, involving identical factual allegations, and (2) the plaintiffs lawsuit is untimely pursuant to the statute of limitations governing said cause of action.” The plaintiff filed an objection to the motion in which she claimed that the second complaint stated a cause of action in medical malpractice, whereas the first complaint espoused either an “unperfected malpractice” claim or, alternatively, a common-law negligence cause of action. The plaintiff also argued that she had filed a petition to extend the statute of limitations. Following argument, the court granted the defendants’ motion to dismiss on the ground that the plaintiff had a prior pending action against the defendants involving identical factual allegations. The plaintiff now appeals from the court’s dismissal of her second case.

Before we address the plaintiffs claim that the second complaint, purporting to allege medical malpractice, should not have been dismissed under the prior pending action doctrine, we first must articulate the relevant standard of review, which was recently clarified by our Supreme Court in Bayer v. Showmotion, Inc., 292 Conn. 381, 973 A.2d 1229 (2009). “[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. . . . Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998) ....

“The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state’s already crowded court dockets. . . . The rule, however, is not one of unbending rigor, nor of universal application, nor a principle of absolute law .... Accordingly, the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint. . . . We recognize that this statement of the scope of the doctrine’s application, on the one hand, provides that the existence of claims that are virtually alike does not require dismissal in every case . . . while also suggesting that the doctrine is always applicable where the two actions are virtually alike, and in the same jurisdiction. . . .

“This language in our case law appears to have its genesis in the case of Hatch v. Spofford, 22 Conn. 485, 494 (1853), in which this court stated that the doctrine is not a rule of unbending rigor, nor of universal application, nor a principle of absolute law ... it is rather a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. In Hatch, this court further recognized that a second suit is not, of course, to be abated and dismissed as vexatious, but all the attending circumstances are to be first carefully considered, and the true question will be, what is the aim of the plaintiff? . . . The only certain rule on this subject ... is, where the parties are the same and the second suit is for the same matter, cause and thing, or the same object is to be attained, as in the first suit and in the same jurisdiction, the second shall abate and be dismissed

“In order to determine whether the actions are virtually alike, we must examine the pleadings ... to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties. . . . The trial court’s conclusion on the similarities between the cases is subject to our plenary review.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. 395-98.

The plaintiff claims that the prior pending action doctrine is not applicable in this case because the two matters are dissimilar. Specifically, she argues that her second case sounds in medical malpractice, not negligence. She supports her contention by focusing on the fact that she attached an expert opinion and good faith certificate; see footnote 2 of this opinion; to her second complaint and that she labeled the claims differently on the respective summonses. Those differences are not sufficient to persuade us that the two actions are not virtually alike for purposes of the prior pending action doctrine.

“ [T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005). “Furthermore, in determining the nature of a pleading filed by a party, we are not bound by the label affixed to that pleading by the party.” Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 576, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

“The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. . . . [T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. . . . [T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.” (Citations omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002).

Although the plaintiff attached an expert opinion and good faith certificate to her second complaint, the second complaint, like the first, pleads mere negligence, not medical malpractice. The second complaint, which the plaintiff contends is a medical malpractice complaint, does not even mention a standard of care or a deviation from the applicable standard. The alleged negligence does not concern a medical diagnosis or treatment. Rather, the second complaint, like the first, focuses on Phimvongsa’s ignoring department protocol in bringing a patient to the office after hours and Eastern’s failure to train Phimvongsa properly and to inform her of department regulations.

There can be no question that these two actions are virtually alike, that is, the two complaints, both sounding in negligence, were brought to adjudicate the same underlying rights of the parties based on the same set of facts. In fact, as the court pointed out repeatedly in deciding the motion to dismiss, the complaints are nearly identical. Both complaints, regardless of how the plaintiff characterizes them, were brought to adjudicate the defendants’ liability for the plaintiffs injuries. The court properly applied the prior pending action doctrine in dismissing the second case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the allegations of the second action she filed were not barred by the applicable statute of limitations. The defendants, however, abandoned this claim during argument on their motion to dismiss and proceeded only on the ground that the complaint was barred by the prior pending action doctrine. As the argument was abandoned at trial, the court made no ruling on the statute of limitations issue, and thus the record on that issue is inadequate for our review. See Practice Book § 61-10 (“[i]t is the responsibility of the appellant to provide an adequate record for review”).

       Based on the numbering of the paragraphs of the first complaint, found in the appendix to the plaintiffs appellate brief, it appears that a page may be missing. The corresponding page in the second complaint contains the three allegations of Eastern’s negligence and two paragraphs concerning the plaintiffs injuries and economic damages referenced previously. Although we will not speculate as to whether a page is missing and whether that page contains the same text as the corresponding page of the second complaint, we note that the two complaints are identical in all other respects.

       General Statutes § 52-190a (a) requires that a party filing a medical malpractice complaint provide “a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . .”

       Although it was not the law at the time the court granted the defendants’ motion to dismiss, our Supreme Court, based on the language of Hatch v. Spofford, supra, 22 Conn. 485, recently concluded that the first step in the prior pending action doctrine analysis is that “the trial court must determine . . . whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine’s application. ... If the two actions are exactly alike or lacking in sufficient similarities, the trial court has no discretion. In the former case, the court must dismiss the second action, and in the latter instance, the court must allow both cases to proceed unabated. Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action.” (Citations omitted; emphasis in original.) Bayer v. Showmotion, Inc., supra, 292 Conn. 397-98. Here, the court noted the identical nature of the two actions. See footnote 5 of this opinion.
      In applying the prior pending action doctrine, however, the court in this case necessarily relied on the virtually alike standard, as the exactly alike standard had not yet been enunciated. We will, therefore, review the court’s decision in a manner consistent with its determination that the two actions were virtually alike.

       During argument, the court asked: “Well, how are they different? The parties are the same. And the language is exactly the same. How can it be said that they are different?” and, “[W]hat in the second complaint is different than the first complaint?” The court also stated: “You just filed the same complaint all over again without any of the allegations in it that would make it a malpractice action,” and, “[The complaints] are not similar. They’re exactly the same,” and, “Well, not only the factual allegations are the same, everything is the same.”


author: PELLEGRINO, J.

text:
    FRANKIE TRIMMER v. COMMISSIONER OF CORRECTION
    (AC 29539)
    Harper, Lavine and Pellegrino, Js.

      Argued December 1, 2009
    officially released March 2, 2010

      Mark M. Rembish, special public defender, for the appellant (petitioner).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Courtney Gates-Graceson, assistant state’s attorney, and Michael E. O’Hare, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PELLEGRINO, J.

The petitioner, Frankie Trimmer, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly concluded that his trial counsel provided effective assistance. We reject the petitioner’s claim and affirm the judgment of the habeas court.

The petitioner was charged with various offenses in multiple dockets, including attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49 (a) (2), assault in the first degree with a deadly weapon in violation of General Statutes §§ 53a-59 (a) (1) and 53-202k, criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1), violation of probation pursuant to General Statutes § 53a-32, two counts of tampering with a witness in violation of General Statutes § 53a-151 and two counts of witness bribery in violation of General Statutes § 53a-149.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. On March 11, 2001, at approximately 4:55 p.m. in the city of Hartford, the petitioner and his friend, Alvin Wilson, were arguing on a street comer when the victim, Wayne Tripp, came upon the scene. The victim said something to the petitioner, who then approached Tripp and, at close range, shot the victim in the leg, fracturing his femur and causing serious injuries.

The petitioner elected to have a trial by juiy, and trial commenced on June 7, 2002. He was represented by attorney M. Fred DeCaprio throughout the criminal proceedings. On the second day of trial, the state produced evidence that the petitioner had conspired to prevent the victim from testifying. The evidence included two letters and three audiotapes containing conversations between the petitioner and Kendall Bozeman, among others. In the letters and tapes, the petitioner indicated his desire to keep the victim from testifying and his willingness to pay the victim to keep quiet. At trial, the state used this evidence to demonstrate the petitioner’s consciousness of guilt.

After introducing this evidence, the state rested its case and offered the petitioner a plea deal that required him to plead guilty to assault in the first degree, criminal possession of a firearm and violation of probation, and to agree to plead guilty to the forthcoming charges of witness tampering and attempted witness bribery. In exchange, the state offered the petitioner a total effective sentence on all charges of fifteen years incarceration, with eight years of special parole.

According to DeCaprio, the petitioner’s trial was proceeding well until the state produced the consciousness of guilt evidence. DeCaprio informed the petitioner that the evidence would have a serious impact on his chance of receiving a positive outcome at trial and advised the petitioner to accept the state’s plea offer, which included a resolution of the tampering charges. DeCaprio also discussed the development in the case with the petitioner’s mother, who in turn spoke to the petitioner.

On June 12, 2002, the petitioner pleaded guilty to assault in the first degree, criminal possession of a pistol or firearm and violation of probation. On September 6, 2002, the petitioner pleaded guilty to conspiracy to tamper with a witness, tampering with a witness and conspiracy to commit bribery. Pursuant to the plea agreement, the trial court imposed a total effective sentence of fifteen years incarceration to be followed by eight years of special parole. The petitioner did not move to withdraw his guilty pleas or file a direct appeal.

On July 8, 2005, the petitioner filed a petition for a writ of habeas corpus, which was followed by an evidentiary hearing. The petitioner asserted that he had told DeCaprio that Alvin Wilson shot Tripp. According to the petitioner, an eyewitness named Germaine Syms would have verified this claim, but DeCaprio decided not to call Syms as a witness because Syms had told DeCaprio’s investigator that he did not see anything during the incident. At the habeas trial, Syms testified that he had spoken to an investigator about the shooting but that he did not give the investigator any information. In his testimony at the hearing, however, he confirmed the petitioner’s claim that Tripp was shot by Wilson and stated that he did not see the petitioner with a gun at any point during the incident. In its memorandum of decision, the court specifically stated that it did not find Syms’ testimony entirely credible. The petitioner also claimed that DeCaprio did not adequately attempt to find Bozeman in order to have him testify to rebut the state’s consciousness of guilt evidence.

On December 14,2007, the court issued its memorandum of decision rejecting the petitioner’s claims. The court reasoned that “[b]ased on the evidence presented, there is absolutely no indication that DeCaprio provided ineffective assistance to the petitioner. It is clear that the petitioner was actively involved in his defense. At the criminal trial, DeCaprio conducted an effective cross-examination of the victim’s testimony. DeCaprio investigated Syms and Bozeman as potential witnesses for the defense; however, Syms proved to be unhelpful to the petitioner’s case and Bozeman could not be located. Moreover, DeCaprio’s advice to plead guilty was entirely reasonable due to the likely effect of the consciousness of guilt evidence. The petitioner ended up with a rather good deal overall. Had the petitioner proceeded to trial, he faced a total exposure of forty-nine years incarceration.” After the court granted the petitioner’s petition for certification to appeal, this appeal followed.

We begin by setting forth our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Mock v. Commissioner of Correction, 115 Conn. App. 99, 103-104, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 490 (2009).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice. . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59,106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), which modified Strickland’s prejudice prong.” (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 721, 789 A.2d 1046 (2002). Therefore, because the petitioner accepted his trial counsel’s advice to plead guilty, to prevail on the ineffective assistance of counsel claim, the petitioner had the burden of (1) demonstrating that the advice was not within the range of competence demanded of attorneys in criminal cases and (2) showing “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Id., 722.

“To satisfy the performance prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases. . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses exist. . . . A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.” (Citations omitted; internal quotation marks omitted.) Id., 721-22. In light of the damaging evidence of witness tampering and bribery, and with the exposure to a forty-nine year sentence, we conclude, as did the habeas court, that DeCaprio’s advice to accept the plea agreement was “entirely reasonable . . . .”

The petitioner also alleges that DeCaprio’s representation was ineffective in a number of other ways. After considering the parties’ written and oral arguments to this court, and our own review of the record and transcript, we conclude that there is no indication in the record that DeCaprio’s performance was deficient; to the contrary, all indications are that he provided the petitioner with a careful and competent defense. We agree with the factual findings contained within the habeas court’s thoughtful and detailed memorandum of decision. The court found that DeCaprio adequately investigated the shooting and considered all potential witnesses, including Bozeman, provided the petitioner with the necessary materials to allow him to participate in his own defense and acted reasonably in advocating to the petitioner that the plea offer was a good one. The court appropriately canvassed the petitioner to ensure that his pleas were voluntary, and there is nothing in the record to suggest that DeCaprio coaxed the petitioner’s mother to pressure him into pleading guilty. The facts found by the habeas court were not clearly erroneous, and the petitioner failed to satisfy his burden that his attorney’s performance was ineffective. See Mock v. Commissioner of Correction, supra, 115 Conn. App. 103-104.

Because the petitioner has failed to satisfy the first prong of the Strickland test for ineffective assistance of counsel, we need not analyze whether counsel’s performance unfairly prejudiced the petitioner. We conclude that the court properly denied the petitioner’s petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record does not indicate whether the state put a time limit on its plea oiler.

       The petitioner’s maximum exposure on ail the charges to which he pleaded guilty was forty-nine years.

       The petitioner claimed that counsel failed (1) to investigate adequately, (2) to give the petitioner copies of police reports, (3) to call two witnesses for the defense, (4) to prepare for trial adequately and (5) to allow the petitioner to make a decision about his plea free from undue pressure.

       On appeal, the petitioner claims that DeCaprio failed (1) to investigate adequately the shooting of Tripp, (2) to provide the petitioner with police reports and other materials, (3) to locate and to subpoena Bozeman, (4) to prepare the petitioner’s criminal witness tampering case adequately and (5) to allow the petitioner to make a voluntary decision about whether to plead guilty by enlisting the petitioner’s mother to pressure him.

       The petitioner did not attempt to call Bozeman as a witness at the habeas trial.

       Despite this, the habeas court determined that the petitioner’s claim also failed to satisfy the prejudice prong of the Strickland test. See Strickland v. Washington, supra, 466 U.S. 687.

       Although it was not discussed in either party’s brief, the issue of procedural default, addressed in the court’s memorandum of decision, arose on appeal during oral argument. We do not reach this issue.