author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. CRAIG WILSON
    (AC 28554)
    DiPentima, Lavine and Dupont, Js.

      Argued September 15
    officially released December 16, 2008

      Norman A. Pattis, with whom, on the brief, was Kim Coleman, for the appellant (defendant).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Brian F. Kennedy, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Craig Wilson, appeals from the judgment of conviction, rendered after a jury trial, of six crimes, namely, sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of marijuana in violation of § 21a-279 (c). On appeal, the defendant has raised three claims: (1) the trial court improperly denied his motion to suppress the evidence seized during a search of his vehicle; (2) certain comments made by the prosecutor in closing argument constituted prosecutorial impropriety; and (3) the court’s jury instructions regarding reasonable doubt were constitutionally infirm. We disagree. Accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the night of February 24, 2004, six members of the Bridgeport police department’s tactical narcotics team were conducting an undercover operation at the comer of Connecticut and Union Avenues, an area known for drug trafficking. At approximately 11:30 p.m., Officer Clive Higgins, who was undercover, approached a male standing in front of a restaurant located on that comer and asked him if he had any “slabs.” The male told him to wait a few minutes because his “man” would be arriving with some. Higgins joined a group of people who were also waiting for this man in front of the restaurant.

A few seconds later, a dark colored four door sedan was driven onto Union Avenue and parked near an unmarked police car occupied by Officer Sean Ronan. The defendant got out of the sedan and walked toward the restaurant. The male standing in front of the restaurant pointed toward the defendant and announced: “That’s the dude right there.” The defendant then walked into the restaurant, and the “customers” waiting outside, including Higgins, followed him.

Inside the restaurant, Higgins obseived the defendant making hand-to-hand dmg transactions with the other “customers.” When it was his turn, Higgins gave the defendant a $20 bill he had previously marked and photocopied; in return, the defendant gave Higgins some crack cocaine. Higgins then left the restaurant and returned to his unmarked police car. He gave a description of the defendant to other officers through the use of a listening device.

Meanwhile, Ronan watched the defendant leave the restaurant and walk back toward the vehicle in which he had arrived. Before reaching the vehicle, however, the defendant turned and started to walk back down Union Avenue in the opposite direction. Ronan believed that the defendant had recognized him as a police officer. Ronan then radioed police officers William Reilly and John Andrews and directed them to move in and arrest the male standing on the west side of the road on Union Avenue, north of Connecticut Avenue.

Reilly and Andrews drove their cruiser onto Union Avenue and drove next to Ronan. As they approached, the defendant ran toward an alley to the left of the house located at 651 Union Avenue. Andrews and Reilly gave chase down the alley. The defendant threw two cellular telephones to the ground and jumped over a fence into the yard of an auto body shop. Andrews radioed the location of the defendant to police officers Chris Lamaine and Keith Ruffin and followed the defendant over the fence. Reilly stopped to pick up the two telephones. Inside one of the telephones, Reilly found eight small bags of a substance he suspected to be crack cocaine.

By the time Andrews got over the fence, Lamaine had apprehended the defendant. Ruffin searched the defendant and found a plant like substance he suspected to be marijuana and $120, which included the $20 bill Higgins had given the defendant in exchange for the crack cocaine. Andrews, Lamaine and Ruffin lifted the defendant, who was now handcuffed, back over the fence, with Reilly assisting from the other side. The defendant was placed in a patrol car and driven back to his vehicle on Union Avenue.

Reilly also patted down the defendant. He found the key to the defendant’s vehicle in the defendant’s right front pocket. Reilly used the key to unlock the defendant’s vehicle to perform a search. Inside the vehicle, he found forty-five bags of suspected crack cocaine in the center console and $984 and another cellular telephone in the backseat. After the search, Reilly drove the vehicle to the narcotics unit on River Street. The car eventually was towed from that unit.

Rafal Mielgj, an analytical chemist with the department of public safety, tested the bag of suspected crack cocaine the defendant sold to Higgins, the eight bags of suspected crack cocaine found in the cellular telephone and the forty-five bags of suspected crack cocaine found in the defendant’s vehicle. Each item was found to be freebase cocaine, or crack. Mielgj also tested the plant material located on the defendant’s person and found it to be marijuana.

During the evidentiary portion of the defendant’s trial, the court held a hearing outside the presence of the jury on the defendant’s motion to suppress the narcotics, money and cellular telephone that were seized from the defendant’s vehicle. At the hearing, the court heard testimony from Reilly. On the basis of that testimony and Ronan’s testimony before the jury, the court denied the motion to suppress on the ground that an exception to the warrant requirement for a search and seizure applied. The court, however, did not specify which exception applied, and neither party requested an articulation.

I

The defendant first claims that the court improperly denied his motion to suppress the evidence seized from his automobile because the warrantless search of the vehicle did not fall within any of the exceptions to the warrant requirement, and, as such, his rights under the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the constitution of Connecticut were violated.

“[0]ur standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s memorandum of decision .... Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Foreman, 288 Conn. 684, 691-92, 954 A.2d 135 (2008); State v. Williams, 110 Conn. App. 329, 332-33, 954 A.2d 878 (2008).

In the present matter, the defendant asserts that he is challenging the court’s legal conclusion that the motion to suppress should be denied, not the court’s factual findings. Accordingly, it is this court’s duty to determine whether the denial of the motion to suppress was legally and logically correct “in light of the [trial court’s] findings of fact.” (Internal quotation marks omitted.) State v. Kaminski, 106 Conn. App. 114, 125, 940 A.2d 844, cert. denied, 287 Conn. 909, 950 A.2d 1286 (2008). The court, however, did not set forth the facts it found in support of its ruling. The parties indicate that this is of no importance because they agree that the facts are not in dispute. They fail, however, to cite any authority in support of this proposition.

Consequently, before reaching the question of the constitutionality of the search and seizure, we must first determine whether we may review that ultimate legal question without the benefit of any findings of fact by the court when the parties agree that the facts are not in dispute. Simply stated, the question is whether there are limited instances in which fact-finding by the trial court is not necessary to obtain appellate review of a constitutional issue. To find the answer, we have reviewed decisional and treatise authority.

“[A] judge must disclose the factual bases of his [or her] decision in [ruling on a motion to suppress].” C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 8.10, p. 308; see also Practice Book § 64-1. “Where a transcript of an oral decision of the trial court fails to set forth the factual basis of the trial court’s decision, the [burden is on the defendant to] perfect the record on appeal either by filing a motion to compel the trial court to file a memorandum of decision ... or by filing a motion for articulation . . . .” State v. Fontanez, 37 Conn. App. 205, 207, 655 A.2d 797 (1995). “Without any specific findings of fact ... we cannot determine the basis of the court’s ruling and thus cannot review the merits of [a] defendant’s claim.” (Internal quotation marks omitted.) Id. “ [T]his court will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” (Internal quotation marks omitted.) State v. Beliveau, 52 Conn. App. 475, 482 n.4, 727 A.2d 737, cert. denied, 249 Conn. 920, 733 A. 2d 235 (1999); see also C. Tait & E. Prescott, supra, § 8.8, p. 305 (“the Connecticut appellate courts are without authority to find facts or remake factual findings of a judge”).

Nevertheless, even though the function of an appellate court is to review findings of fact, not make factual findings, an appellate court can draw “ [conclusions of fact . . . where the undisputed facts or uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court’s decision.” (Internal quotation marks omitted.) State v. Mullins, 288 Conn. 345, 359, 952 A.2d 784 (2008); State v. Reagan, 209 Conn. 1, 8-9, 546 A.2d 839 (1988). In the present case, the court explicitly stated that it was relying on the testimony of Ronan and Reilly. This court has the complete transcripts of their testimony, and the parties have agreed that the facts elicited from that testimony are not in dispute. As such, the factual conclusion of the court is so obvious that it is inherent in its decision. We conclude, therefore, that we can review the defendant’s claim.

We next engage in a plenary review of the court’s denial of the defendant’s motion to suppress. The fourth amendment to the United States constitution protects the right of people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .’’U.S. Const., amend. IV; see also Conn. Const., art. I, § 7. “Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause.” (Internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 434, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d. 144 (2008). “Under both the federal and the state constitutions, a warrantless search and seizure is per se unreasonable, subject to a few well defined exceptions.” (Internal quotation marks omitted.) Id., 444. “These exceptions have been jealously and carefully drawn . . . and the burden is on the state to establish the exception.” (Internal quotation marks omitted.) Id., 434.

“[The] . . . four recognized situations where a warrantless search of a car may lead to the conclusion that such a search was reasonable under the United States or [Connecticut constitution] . . . are: (1) it was made incident to a lawful arrest; (2) it was conducted when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime; (3) it was based upon consent; or (4) it was conducted pursuant to an inventory of the car’s contents incident to impounding the car.” (Internal quotation marks omitted.) State v. Garcia, 108 Conn. App. 533, 544-45, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008). If none of these exceptions applies to a warrantless search of a vehicle, “[u]nder the exclusionary rule, [the] evidence must be suppressed [as] it is . . . the fruit of prior police illegality.” (Internal quotation marks omitted.) Id., 543.

The state, in this appeal, argues that the warrantless search of the defendant’s vehicle and the seizure of the money, drugs and cellular telephone found within the vehicle was legal pursuant to the following three exceptions to the warrant requirement: (1) there was probable cause to believe that the vehicle contained contraband, (2) the search was incident to a lawful arrest, and (3) the search was conducted to inventory personal property lawfully taken into police custody.

The first theory put forward by the state to justify the warrantless search of the defendant’s vehicle is often referred to as the “automobile exception.” See State v. Smith, 257 Conn. 216, 228, 777 A.2d 182 (2001), on appeal after remand, 94 Conn. App. 188, 891 A.2d 974, cert. denied, 278 Conn. 906, 897 A.2d 100 (2006). “The justification for . . . [the] automobile exception is twofold: (1) the inherent mobility of an automobile creates exigent circumstances; and (2) the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” (Internal quotation marks omitted.) Id., 228-29. “This exception to the warrant requirement demands that the officers have probable cause to believe that the vehicle contains contraband. . . . The probable cause determination must be based on objective facts that could have justified the issuance of a warrant by a neutral magistrate at the time the search was made. . . . The absence of probable cause, despite the exigency created by the ready mobility of automobiles and the lesser expectation of privacy in them, will render any warrantless search unreasonable. . . . Probable cause to search exists if (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Citations omitted; internal quotation marks omitted.) State v. Badgett, 200 Conn. 412, 429, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

As previously stated, in denying the defendant’s motion to suppress on the basis of an exception to the warrant requirement, the court relied on the testimony of Ronan and Reilly. Their testimony revealed that the following factual information was available to the officers at the time they conducted the search of the defendant’s vehicle: (1) an individual standing outside of the restaurant told an undercover police officer that a man would be arriving with crack cocaine for sale; (2) the defendant arrived on the scene moments later in the vehicle in question; (3) the defendant walked into the restaurant and sold suspected crack cocaine to several persons, including the undercover officer; (4) the defendant left the restaurant and immediately walked back toward the vehicle in question, yet turned around when he saw a police officer; (5) the defendant fled the scene, discarding two cellular telephones in the process, one of which contained eight packets of what officers suspected to be crack cocaine; (6) the defendant was apprehended and during the search of his person, the key to the vehicle in question was found in the front pocket of his shut; and (7) the key was used to access the defendant’s vehicle.

The state claims that those facts established probable cause to search the defendant’s vehicle for narcotics. We agree. “[A] police officer is certainly entitled to utilize his training and experience in ascertaining probable cause”; id., 430; and in this case, we conclude that the totality of these facts are sufficient to “ ‘warrant a man of reasonable caution in the belief ”; State v. Olah, 60 Conn. App. 350, 358, 759 A.2d 548 (2000); that more narcotics would be found in the vehicle. The defendant drove his vehicle to the scene to sell narcotics. Evidently, there were narcotics in the vehicle when he arrived because he had narcotics on him when he went inside the restaurant. The defendant immediately returned to his vehicle after leaving the restaurant. The fact that the defendant was able to provide narcotics for all of the “customers” inside the restaurant indicated that he was in possession of a substantial quantity of narcotics that were not for his personal use. The narcotics found in the cellular telephone showed that he had even more narcotics to sell had there been more “customers” at the restaurant. From all of this, it was reasonable for the officers to infer that there was a fair probability the defendant was storing even more narcotics in his vehicle for future sales.

The court does not find persuasive the defendant’s argument that “there is no probable cause in the case at hand” because the defendant did not sell drugs directly from his vehicle. Although this is a common factual scenario in cases involving search and seizures that are based on the automobile exception to the warrant requirement; see State v. Mounds, 81 Conn. App. 361, 363, 840 A.2d 29, cert. denied, 268 Conn. 914, 845 A.2d 416 (2004); State v. Glenn, 30 Conn. App. 783, 787, 622 A.2d 1024 (1993); this court does not deem it to be a necessary prerequisite to a determination that probable cause existed in this case. In State v. Patterson, 31 Conn. App. 278, 309, 624 A.2d 1146 (1993), rev’d on other grounds, 230 Conn. 385, 645 A.2d 535 (1994), for example, this court held that the factual information available to officers at the time they conducted the search of the defendant’s vehicle was adequate to establish probable cause when, as in the present case, the defendant was outside of his vehicle when he made the drug transaction.

Consequently, we conclude that the warrantless search of the defendant’s vehicle and the seizure of the items found within was constitutionally valid pursuant to the “automobile exception,” and, thus, the court properly denied the defendant’s motion to suppress. Accordingly, we need not consider the applicability of the search incident to arrest or inventory exceptions to the warrant requirement.

n

The defendant next claims that the state engaged in prosecutorial impropriety dining its closing argument and, therefore, deprived him of his due process right to a fair trial. Specifically, he maintains that the prosecutor improperly alluded to the defendant’s decision not to testify, thereby violating his fifth amendment privilege against self-incrimination.

The following additional facts are relevant to the defendant’s claim. During closing argument to the jury, the prosecutor stated: “Now, I’m going to talk about . . . how you determine whether or not there was the intent to sell. The court has an instruction as far as circumstantial evidence versus direct evidence. I want you to listen to that instruction. I anticipate that the instruction will indicate that circumstantial evidence is just as good, if you find it believable and proved, as direct evidence. And oftentimes, since a person won’t come in and say, ‘Hey, those drugs there, I intend to sell those,’ you actually have to infer intent through circumstantial evidence. And that’s what the state is asking you to do in this case.” (Emphasis added.)

At the conclusion of the prosecutor’s closing argument, defense counsel stated outside the jury’s presence: “When [the prosecutor] was talking in reference to . . . intent to sell, he indicated a person won’t come in and testify as to intent or something similar to that. I believe that that’s objectionable and puts in the minds of the jurors the fact that [the defendant] . . . did not testify. So, I would ask that—and it’s a curative instruction—for that comment [to] be read, that something to the effect of, in determining the intent, the statement concerning a person won’t come in and testify should not be construed as—whatever Your Honor wants to frame it as, but some way to indicate to the jurors that the inference could be that because [the defendant] didn’t testify it’s because he’s guilty, and would just explain his intent.”

After rehearing the prosecutor’s comment, however, defense counsel withdrew his request for a curative instruction, stating: “Well, in reviewing it and thinking about it, I don’t know whether, even if Your Honor . . . agrees with me to read something, I don’t know what that something should be and if that some—I mean, we could have some options, but that something may highlight it even more. So, upon reflection, I think that it’s—I think that it does . . . sort of tread on the issue of whether [the defendant] testified or not. However, I think that Your Honor’s instructions in the full instructions should cure that, and we don’t need to do an additional, separate thing.”

The court informed defense counsel that it would give the jurors the standard instructions that “arguments and statements by the attorneys are not evidence” and that they should “not draw any . . . inference” regarding the defendant’s decision not to testify. The defendant agreed that these instructions would “be fine.” Accordingly, in its final instructions, the court stated: “Certain things are not evidence, and you may not consider them in deciding what the facts are. These include, number one, arguments and statements by attorneys. The attorneys are not witnesses. What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the attorneys have stated them, it is your memory of the facts that controls.” The court also instructed: “[T]he defendant has not testified in this case. An accused person has the option to testify or not to testify at the trial. He is under no obligation to testify. He has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant not testifying.” The defendant’s counsel did not take exception to either instruction.

The state, in its brief, argues that the prosecutor’s remark was not improper because it did not encroach on the defendant’s constitutional right to remain silent, and, even if it had, the defendant waived his claim that the remark deprived him of a fair trial when he withdrew his request for a curative instruction and agreed that the court’s standard instructions would be sufficient to cure any possible prejudice. At oral argument in this court, the defendant maintained that the comment improperly drew the jury’s attention to the fact that he did not testify and argued that we should review his claim that the remark deprived him of a fair trial because it was not affirmatively waived, only “tactically” waived and, therefore, not waived at all.

“In analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. . . . Only if we conclude that prosecutorial [impropriety] has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Thomas, 110 Conn. App. 708, 723, 955 A.2d 1222, cert. denied, 289 Conn. 952, 961 A.2d 418 (2008).

We are also guided by additional legal principles regarding claims of prosecutorial impropriety during closing argument. “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . When making closing arguments to the jury, [however] [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . .

“Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, 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 [is] 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 [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.” (Internal quotation marks omitted.) State v. Rowe, 279 Conn. 139, 158-59, 900 A.2d 1276 (2006).

With these principles in mind, we now turn to the first step of the analysis, which requires us to determine whether the challenged comment in the present case did, in fact, constitute an impropriety. “[T]he [fifth [a]mendment, in its direct application to the [federal [g]ovemment, and in its bearing on the [s]tates by reason of the [fourteenth [a]mendment, forbids either comment by the prosecution on the accused’s silence or instructions by the corut that such silence is evidence of guilt. Griffin v. California, [380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)]____” (Internal quotation marks omitted.) State v. Rowe, supra, 279 Conn. 159. “Our legislature has given statutory recognition to this right by virtue of its enactment of . . . [General Statutes] § 54-84.” (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 269, 833 A.2d 363 (2003). In determining whether a prosecutor’s comment has encroached on a defendant’s right to remain silent, we ask: “Was the language used manifestly intended to be, or was it of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 539, 944 A.2d 947, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008). “To determine the natural and necessary impact on the jury, the court looks to the context in which the statement was made.” State v. Hicks, 56 Conn. App. 384, 393, 743 A.2d 640 (2000).

We are not persuaded that the comment challenged here was improper. The remark was made during the prosecutor’s description of an element of the crime of intent to sell by a person who is not drug-dependent. In discussing that element of that crime, namely, intent, the prosecutor attempted to explain to the jurors that they can infer intent through circumstantial evidence. It would have been clear to the jury that the prosecutor used the remark, “since a person won’t come in and say, ‘Hey, those drugs there, I intend to sell those,’ ” to provide them with an example of direct evidence to better help them understand the difference between it and circumstantial evidence. Moreover, it is notable that the prosecutor did not say: “Since the defendant won’t come in and say.” Therefore, although it was a questionable choice of an example by the prosecutor, the jury would not naturally and necessarily interpret this remark as a comment on the defendant’s failure to testify. Accordingly, the prosecutor did not impinge on the defendant’s right against self-incrimination.

Because we conclude that the remark was not improper, we need not proceed to the second step of the analysis used in reviewing a claim of prosecutorial impropriety, i.e., the determination of whether the remark amounted to a denial of due process. See State v. Rowe, supra, 279 Conn. 161; State v. Smalls, 78 Conn. App. 535, 540, 827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d 806 (2003).

Ill

The defendant’s final claim is that the court improperly instructed the jury on the concept of reasonable doubt.* ******* Specifically, he argues that the court unconstitutionally diluted the state’s burden of proof by instructing the jnury that “absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty.” We do not agree.

Prior to the court’s charge to the jury, the defendant objected generally to the reasonable doubt instruction and asserted that he was resting on his jury charge submission. The court overruled the defendant’s objection, reasoning that the charge as given was a “correct statement of the law.” We acknowledge that the state takes issue with the fact that the defendant did not draw the court’s attention to the particular language he now challenges on appeal. Nevertheless, we conclude that because the defendant objected to the entire reasonable doubt instruction and stated that he was resting on his submission, which did not include this particular language, fair notice was given to the court of the defendant’s view governing reasonable doubt and of any disagreement he may have had with its charge. See State v. Ross, 269 Conn. 213, 335-36, 849 A.2d 648 (2004) (“the essence of the preservation requirement is that fair notice be given to the trial court of the party’s view of the governing law and of any disagreement that the party may have had with the charge actually given”). Therefore, we will review the defendant’s claim.

“It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. . . . The [reasonable doubt concept] provides concrete substance for the presumption of innocence—that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. ... At the same time, by impressing upon the [fact finder] the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. . . . [Consequently] [t]he defendants in a criminal case are entitled to a clear and unequivocal charge by the court that [their] guilt . . . must be proved beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 334, 929 A.2d 278 (2007).

“[T]he perfect definition of reasonable doubt, however, is as uncertain as its place in American jurisprudence is certain. . . . Aside from imposing the general standard of reasonable doubt as a constitutional mandate, the United States Supreme Court has not provided a clear and simple definition, expressing instead a reluctance to impose a specific jury instruction. Indeed, the court has explained that the [constitution does not require that any particular form of words be used in advising a jury of the government’s burden of proof. Victor v. Nebraska, [511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994)]. As a consequence, the major constraint on trial courts that formulate reasonable doubt instructions is that they avoid certain language that categorically has been rejected. . . . [T]he court generally has left the formation of an appropriate reasonable doubt instruction to the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Jackson, 283 Conn. 111, 117-18, 925 A.2d 1060 (2007). Connecticut courts “are not receptive to quibbling attacks on the reasonable doubt instruction . . . .” State v. DelVecchio, 191 Conn. 412, 421, 464 A.2d 813 (1983).

The standard of review for constitutional claims of improper jury instructions is well established. “[I]individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Internal quotation marks omitted.) State v. Jackson, supra, 283 Conn. 117.

Again, in the present case, the defendant challenges the court’s instruction that “absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty.” Both this court and our Supreme Court, however, have previously upheld the employment of identical or nearly identical language. See State v. Lemoine, 256 Conn. 193, 202, 770 A.2d 491 (2001); State v. Ryerson, 201 Conn. 333, 342 n.2, 514 A.2d 337 (1986); State v. Gooden, 89 Conn. App. 307, 323, 873 A.2d 243, cert. denied, 275 Conn. 918, 919, 883 A.2d 1249 (2005); State v. Howard, 88 Conn. App. 404, 428 n.9, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005); State v. Jones, 82 Conn. App. 81, 87, 841 A.2d 1224, cert. denied, 269 Conn. 912, 852 A.2d 741 (2004); State v. Dubose, 75 Conn. App. 163, 167-69, 815 A.2d 213, cert. denied, 263 Conn. 909, 819 A.2d 841 (2003). In Jones, we held that “[t]his statement is not an improper component of an instruction on reasonable doubt because it accurately states the law . . . .” State v. Jones, supra, 87.

Accordingly, we conclude that the court’s instruction did not reduce the state’s burden of proving the defendant guilty beyond a reasonable doubt and, therefore, did not mislead the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court sentenced the defendant to a total effective term of thirty years imprisonment, execution suspended after twenty-six years, and five years probation.

       In State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007), our Supreme Court concluded that the term “prosecutorial impropriety” is more appropriate than the traditional term “prosecutorial misconduct.” Although the parties briefed and argued the defendant’s claim utilizing the nomenclature of “prosecutorial misconduct,” we have used the term “prosecutorial impropriety” in our analysis of the defendant’s claim.

       The six members of the team were Clive Higgins, Sean Ronan, William Reilly, John Andrews, Keith Ruffin and Chris Lamaine.

       “Slabs” is a street name for crack cocaine.

       At trial, Reilly could not remember whether he patted down the defendant at the auto body shop or at the defendant’s sedan.

       The defendant, in his brief, notes that although in certain cases, article first, § 7, of the constitution of Connecticut affords greater protection than the fourth and fourteenth amendments to the United States constitution, the relevant analysis in the present case is the same under either our state or federal constitution.

       It is the italicized portion of the prosecutor’s remarks that the defendant claims violated his privilege against selfdncrimination.

       Consequently, we do not need to decide whether the state is correct in its assertion that we cannot review the defendant’s claim that he was deprived of his due process right to a fair trial on the ground that he waived that claim at trial. Because we are not deciding whether the defendant waived this constitutional claim, we need not resolve the issue of whether a defendant can effectively waive a prosecutorial impropriety claim in light of State v. Stevenson, 269 Conn. 563, 849 A.2d 626 (2004).
      In Stevenson, our Supreme Court held that prosecutorial impropriety claims that are not objected to at trial are nonetheless reviewable. Id., 572-73. The court stated that it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the determination of whether the defendant was deprived of a fair trial must involve the application of the factors set out in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). State v. Stevenson, supra, 573. Nevertheless, because a waiver carries consequences different from a mere failure to object; see State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007), State v. Nichols, 81 Conn. App. 478, 484-85, 840 A.2d 54 (2004); the answer to whether Stevenson also applies to a waived claim of prosecutorial impropriety is not obvious. It is not, however, essential for us to resolve this issue in the context of the present case.

       The court charged the jury on reasonable doubt as follows: “[T]he state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged .... Now, the meaning of reasonable doubt can be arrived at by emphasizing the word ‘reasonable.’ It is not a surmise, a guess or mere conjecture. It is not a doubt suggested by counsel, which is not warranted by the evidence. ... [It is] such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other persons who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is the kind of doubt, which, in the serious affairs which concern you in everyday life, you would pay heed and attention to. It is a doubt that is honestly entertained and is reasonable in light of the evidence, after a fair comparison and careful examination of the entire evidence.
      “Now, of course, absolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty on the part of the jury before you return a verdict of guilty. Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    HARRY EBERHART ET AL. v. MEADOW HAVEN, INC.
    (AC 29173)
    DiPentima, McLachlan and Lavine, Js.

      Argued September 24
    officially released December 16, 2008

      GenevieveP. Salvatore, for the appellant (defendant).

      Vincent T. McManus, Jr., for the appellees (plaintiffs).
   Opinion

DiPENTIMA, J.

The defendant, Meadow Haven, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiffs, Harry Eberhart and Adele Eberhart. On appeal, the defendant claims that the court improperly (1) concluded that the plaintiffs had established legal title to the disputed property by adverse possession, (2) shifted the burden of proof to the defendant by resolving the issue of consent as a defense raised by the defendant rather than as an element of adverse possession to be proven by the plaintiffs by clear and convincing evidence and (3) failed to conclude that a grantor-grantee relationship between the parties defeated the plaintiffs’ claim of adverse possession. We disagree and, accordingly, affirm the judgment of the trial court.

This case involves a dispute over the ownership of land under a driveway. The defendant conveyed a parcel of land described as lot seven to the plaintiffs by warranty deed dated October 5, 1966. Lot seven is located in a subdivision of approximately thirty lots in Meriden. It sits on the comer of Sandy Lane, a public way, and Shaker Court, an unpaved right-of-way. After the conveyance, the plaintiffs moved into the single-family residential house located on lot seven and began using the appurtenant driveway, installed by the defendant, which connected the house with Sandy Lane. There are two areas in dispute. The first, described as parcel B, is comprised of a portion of the driveway that is not located on lot seven but runs for a significant distance on the abutting piece of land, between lot seven and Shaker Court. The second, described as parcel D, also is comprised of a portion of the driveway that is not located on lot seven but runs onto Shaker Court. The defendant is the title owner of both parcel B and parcel D.

The plaintiffs’ amended complaint, dated February 21, 2006, sought a declaratory judgment that they are the legal owners of parcels B and D by operation of the doctrine of adverse possession. In its answer, the defendant denied that the plaintiffs had established the elements of adverse possession and asserted a special defense, stating that to the extent that the plaintiffs used or occupied the land, particularly parcel D, it was done with a license from or the consent of the defendant. Following a two day trial to the court, the court issued a memorandum of decision in which it found that the plaintiffs had presented clear and convincing evidence in support of their claim of ownership by adverse possession and rendered judgment declaring the plaintiffs to be the legal owners of parcels B and D. The court also found against the defendant on its special defense, stating in its memorandum that no license to use the property had existed. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly concluded that the plaintiffs had established legal title to the disputed property by adverse possession. Specifically, the defendant argues that the court improperly determined that the plaintiffs’ use of the disputed property was exclusive, under a claim of right and without the consent of the defendant, and that the plaintiffs adversely possessed the disputed property for the requisite time period of fifteen years. The defendant also argues that the court’s failure to find that the plaintiffs “ousted” the defendant for the requisite time period is fatal to a finding of adverse possession and that the plaintiffs did not present clear and convincing evidence of each of the elements of adverse possession sufficient to establish their claim. We address each of the defendant’s claims in turn.

The following additional facts are relevant. In 1967, one year after the plaintiffs purchased lot seven from the defendant, a city worker informed them that the driveway connecting their house with Sandy Lane was not located on lot seven but, instead, was comprised of a substantial portion of the abutting lot, parcel B. The plaintiffs informed Joseph Carabetta, a principal in the defendant corporation, of the problem, and he assured them that he would “take care of it.” Carabetta commissioned a survey of the land and subsequently resubdivided parcel B with the intention of moving the plaintiffs’ property line to encompass the driveway. A deed reflecting the enlargement of lot seven as a result of the resubdivision was not filed in the land records, and, therefore, the revised subdivision never went into effect. The plaintiffs relied on Carabetta’s representation, made on two separate occasions, that the problem had been fixed. The plaintiffs had exclusive use of the driveway as the sole means of ingress and egress between their garage and Sandy Lane. Over time, the plaintiffs planted and maintained a hedge that runs the length of the disputed area of the driveway, installed and maintained light posts and planters and maintained the driveway and lawn.

We first identify our standard of review and the applicable legal principles. “[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner.” (Internal quotation marks omitted.) Schlichting v. Cotter, 109 Conn. App. 361, 364-65, 952 A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008); see also General Statutes § 52-575. “A finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof. . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . The burden of proof is on the party claiming adverse possession.” (Citation omitted; internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, 101 Conn. App. 762, 767, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007).

“Despite [this] exacting standard, our scope of review is limited. . . . Because adverse possession is a question of fact for the trier . . . the court’s findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... A trial court’s findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court . . . .” (Citation omitted; internal quotation marks omitted.) Mulle v. McCauley, 102 Conn. App. 803, 809, 927 A.2d 921, cert. denied, 284 Conn. 907, 931 A.2d 265 (2007). With these principles in mind, we turn to the defendant’s claims on appeal.

The defendant contends that the court improperly determined that the plaintiffs’ use of the disputed property was exclusive. In support of its argument, the defendant relies primarily on the fact that there is a telephone pole located on parcel D, in the middle of the hedge installed and maintained by the plaintiffs. We are not persuaded.

Our Supreme Court has explained that “[i]n general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others. . . . Thus, the claimant’s possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use. ... It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.” (Citations omitted; internal quotation marks omitted.) Roche v. Fairfield, 186 Conn. 490, 502-503, 442 A.2d 911 (1982); Mulle v. McCauley, supra, 102 Conn. App. 817; 16 R. Powell, Real Property (2007) § 91.06.

The record reflects, and the court found, that from the time the plaintiffs purchased lot seven in 1966 and began using the disputed property, they (1) planted and maintained hedges and trees, (2) maintained the lawn, (3) installed lamp posts and a flag pole and (4) used the driveway exclusively, with the exception of invited guests. These activities are consistent with open acts of ownership by the plaintiffs.

We are not persuaded by the defendant’s argument that the placement of a telephone pole on the disputed property is fatal tó establishing exclusivity. As we noted previously, “the claimant’s possession need notbe absolutely exclusive; it need only be a type of possession which would characterize an owner’s use.” (Emphasis added; internal quotation marks omitted.) Roche v. Fairfield, supra, 186 Conn. 502; see also Boccanfuso v. Conner, 89 Conn. App. 260, 289 n.23, 873 A.2d 208 (“[i]n adverse-possession doctrine, the exclusivity requirement describes the behavior of an ordinary possessor and serves to give notice to the owner” [internal quotation marks omitted]), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005). The placement of a public utility pole on the disputed property does not negate more than fifteen years of behavior, on the part of the plaintiffs, that the owner of property ordinarily undertakes. After reviewing the record, we conclude that the court’s findings were logically and legally consistent with the evidence before the court, and therefore not clearly erroneous.

The defendant next claims that the court improperly determined that the plaintiffs’ use of the disputed property was under a claim of right because there is no evidence to support such a finding. The defendant finds fault with the court’s reasoning in its memorandum of decision that “[w]hen the [plaintiffs] purchased their house, it was in full accord with a claim to the driveway as their own with the intention to hold it for the period that they owned the house.” We are not persuaded that this finding was clearly erroneous.

“Possession under a claim of right means that the entry by the claimant must be in accordance with a claim to the property as the claimant’s own with the intent to hold it for the entire statutory period without interruption.” 16 R. Powell, supra, § 91.05 [4]. Here, the court found that the plaintiffs had used the property as their own. Evidence supporting this finding included testimony that the plaintiffs maintained a manicured lawn and installed lights and a flag pole, as well as trees and shrubbery. The plaintiffs planted and maintained hedges, shoveled snow from the driveway and believed that the driveway was part of the purchased lot. The court’s conclusion that the plaintiffs established that their use of the disputed property was under a claim of right was not clearly erroneous, as it is adequately supported by the evidence.

The defendant next claims that the court improperly found that the plaintiffs used the disputed property without the consent of the defendant. In support of its argument, the defendant states that at trial, it “was unequivocal that [the] plaintiffs’ use of the [disputed [a]rea was solely pursuant to [the] defendant’s permission . . . .” We disagree.

At trial, Hariy Eberhart testified that he never received Carabetta’s permission or consent to use the driveway. In contrast, Carabetta testified that there was a consensual agreement that the plaintiffs could use the disputed property. Here, the court was faced with conflicting evidence. It is well established that evaluating witness’ credibility is the exclusive function of the trier of fact. Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008). “Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Id. Accordingly, in choosing to credit the testimony of Harry Eberhart over that of Carabetta, the court acted well within its province. The defendant, in citing Carabetta’s testimony, essentially urges us to reevaluate the conflicting testimony, which we cannot do. Boccanfuso v. Conner, supra, 89 Conn. App. 292. Therefore, we conclude that the court’s finding was not clearly erroneous.

The defendant next claims that the court did not find that the plaintiffs “ousted” the defendant from possession of the disputed property and that such a finding is a necessary element of a claim of adverse possession. The defendant argues, without citation to legal authority or analysis, that “[i]n order to meet the first requirement for adverse possession, it must be demonstrated, and found by the court, that the purported adverse possessor ‘ousted’ the true owner from possession.” The defendant further states that “based on the evidence adduced at trial, [the court] could make no such finding.” We disagree.

Our Supreme Court has defined ouster clearly. “By ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title .... As otherwise stated: [a]n entry ... on the land of another, is an ouster of the legal possession arising from the title ... if made under claim and color of right . . . otherwise it is a mere trespass. . . . The intention guides the entry, and fixes its character.” (Internal quotation marks omitted.) Lucas v. Crofoot, 95 Conn. 619, 623-24, 112 A. 165 (1921); see also Boccanfuso v. Green, 91 Conn. App. 296, 313-14, 880 A.2d 889 (2005); Black’s Law Dictionary (7th Ed. 1999) (ouster defined as “[t]he wrongful dispossession or exclusion of someone . . . from property”).

“Again, the question of whether the elements of an adverse possession claim have been established by clear and convincing evidence is a factual one subject to the clearly erroneous standard of review.” (Internal quotation marks omitted.) Mulle v. McCauley, supra, 102 Conn. App. 817. In its memorandum of decision, the court noted that the plaintiffs exclusively possessed the disputed property and used the property as their own. The court further found that the plaintiffs possessed the disputed property under a claim of right. Although the court did not make a specific finding using the term “ouster,” the court did find that the plaintiffs had “possession [of the disputed property] attended with such circumstances as to evince a claim of exclusive right and title.” (Internal quotation marks omitted.) Lucas v. Crofoot, supra, 95 Conn. 624. Accordingly, we reject the defendant’s claim.

Similarly, the defendant claims that the court improperly found that the plaintiffs were in possession of the disputed property for the requisite fifteen years. We disagree.

As discussed previously, the court’s finding that the plaintiffs used the disputed property as their own beginning in 1966 was amply supported by the testimony before the court. As almost forty years had passed between 1966 and the time of litigation, the fifteen year requirement for adverse possession was easily satisfied in this case. See General Statutes § 52-575 (fifteen year statute of limitations for claim of adverse possession). The defendant urges us to conclude that the plaintiffs acknowledged the defendant’s ownership of the disputed property, and, as a result, their use was not hostile and therefore insufficient to commence the statute of limitations. As the court found, however, the plaintiffs learned that the driveway was not located on lot seven but were told by the defendant that a resubdivision of the adjacent lot had “fixed the problem.” “[A] claimant’s mistaken belief that he owned the property at issue is immaterial in an action for title by adverse possession, as long as the other elements of adverse possession have been established.” (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640, 653, 905 A.2d 1256 (2006); see also 16 R. Powell, supra, § 91.05 [3] (majority rule is that mistaken belief as to boundary does not bar claim of right or negate essential element of hostility). Thus, the court’s finding that the plaintiffs adversely possessed the disputed property was not clearly erroneous.

The defendant further argues that the plaintiffs failed to establish each element of adverse possession by clear and convincing evidence. In light of our analysis of the defendant’s other claims, we disagree. The court did not err in finding each of the elements of adverse possession by clear and convincing evidence.

II

The defendant’s second claim is that the court improperly shifted the burden of proof to the defendant by resolving the issue of consent as a defense raised by the defendant rather than as an element of adverse possession to be proven by the plaintiffs by clear and convincing evidence.

The following additional procedural history is relevant to the resolution of the defendant’s claim. In its answer to the plaintiffs’ complaint, the defendant alleged a special defense in which it claimed that “to the extent that [the] plaintiffs have used or occupied a portion of the said parcels, particularly parcel ‘D’, they have done so by way of license and/or consent of [the] defendant.” In its claim that the court improperly required the defendant to prove that consent existed, the defendant appears to rely on the fact that “[d]efense of license/consent” is addressed in a separate subsection of the memorandum of decision.

“The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. . . . As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.) Moasser v. Becker, 107 Conn. App. 130, 135, 946 A.2d 230 (2008); see Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 773-74, 890 A.2d 645 (2006). In its memorandum of decision, the court listed use “under a claim of right without the owner’s consent” as the final element of adverse possession and noted that “[t]he standard of proof required in a claim for adverse possession is clear and convincing.” In concluding its memorandum, the court wrote: “For the foregoing reasons the court finds that the plaintiffs . . . have presented clear and convincing evidence supporting their claim for ownership by adverse possession.” In construing the judgment, we conclude that the court did not improperly shift the burden of proof on the issue of consent to the defendant but, rather, correctly placed it squarely on the plaintiffs.

Ill

The defendant’s third and final claim is that the court improperly failed to conclude that a grantor-grantee relationship between the parties defeated the plaintiffs’ claim of adverse possession. Specifically, the defendant argues that under this court’s decision in Woodhouse v. McKee, 90 Conn. App. 662, 879 A.2d 486 (2005), the plaintiffs were required to make an “explicit disclaimer of the subservient relation of a grantor to a grantee . . . .” (Internal quotation marks omitted.) Id., 674. We disagree.

As noted previously, “[b]ecause adverse possession is a question of fact for the trier . . . the court’s findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” (Internal quotation marks omitted.) Porter v. Morrill, 108 Conn. App. 652, 666, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008).

In Woodhouse v. McKee, supra, 90 Conn. App. 676, this court determined that the trial court improperly had found that the plaintiffs had obtained the disputed property by adverse possession because the court did not “consider the relevance of the initial grantor-grantee or parent-child familial use of the disputed property.” In its discussion of the grantor-grantee aspect of the parties’ relationship, this court, quoting 3 Am. Jur. 2d 124, Adverse Possession § 195 (2002), stated: “[A] grantor may, by adverse possession, acquire title to land which the grantor has conveyed . . . [but the] hostility of the grantor’s holding must be brought to the grantee’s attention in such manner as to put the latter on notice of the grantor’s intention to occupy the property in the grantor’s own right. Nothing short of an explicit disclaimer of the subservient relation of a grantor to a grantee and a notorious assertion of right in the grantor will be sufficient to change the character of the grantor’s possession and render it adverse to the grantee.” (Internal quotation marks omitted.) Woodhouse v. McKee, supra, 673-74.

In the present matter, the disputed parcels were never transferred by the defendant to the plaintiffs. Indeed, the fact that the driveway, which comprises much of the disputed parcels, was not located on the land the plaintiffs had purchased from the defendant formed the impetus for this litigation. Because the parties do not share a grantor-grantee relationship as to the disputed parcels, the analysis in Woodhouse is inapplicable here. Additionally, in Woodhouse, the plaintiff-grantor claimed ownership of property it had previously conveyed to the defendant-grantee. Id., 673 (“a grantor may, by adverse possession, acquire title to land which the grantor has conveyed” [emphasis added; internal quotation marks omitted]). Here, in contrast, the plaintiffs were the grantees of land, although as noted previously, that land did not include the disputed area. The present matter does not involve a circumstance, where, as in Woodhouse, a grantor was seeking to reclaim possession by adverse possession to property previously conveyed to a grantee. Accordingly, the defendant’s third claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.


author: BORDEN, J.

text:
    ST. JOHN URBAN DEVELOPMENT CORPORATION v. MABEL CHISHOLM
    (AC 29202)
    McLachlan, Gruendel and Borden, Js.

      Argued October 28
    officially released December 16, 2008

      Abram Heisler, for the appellant (plaintiff).

      Mabel Chisholm, pro se, the appellee (defendant).
   Opinion

BORDEN, J.

The plaintiff, St. John Urban Development Corporation, appeals from the judgment of the trial court in favor of the defendant, Mabel Chisholm, in this summary process action. The plaintiff claims that the court improperly concluded that the plaintiff could not evict the defendant because it had proven that the defendant had materially breached the lease. We affirm the judgment of the trial court.

The plaintiff pursued this summary process action in two counts: (1) under count one, nonpayment of rent; and (2) under count three, violation of the lease by failing to maintain the service of electricity to the unit, “thereby creating a dangerous and unsafe condition.” The defendant denied the allegations of the complaint and asserted that she could not be evicted because she was protected by the provisions of General Statutes § 47a-23c. The court found in favor of the defendant on both counts of the complaint and rendered judgment accordingly. This appeal followed.

Section 47a-23c, in general, protects from eviction certain tenants who are either older than age sixty-two or disabled, except in the circumstances provided in § 47a-23c (b) (l). It is undisputed that the defendant is a tenant afforded protection under the general terms of the statute because the complex in which she resides consists of more than five units and she is both older than age sixty-two and physically disabled. See General Statutes § 47a-23c (a) (1). In the third count of the complaint, the plaintiff alleged that the “[defendant violated Section 10 of [the] lease by failing to maintain electricity service to the unit thereby creating a dangerous and unsafe condition.” Thus, the principal issue at trial under this count was whether the plaintiff could evict the defendant under § 47a-23c (b) (1) (C) because it had proven that she committed a violation of the lease that “materially affects the health and safety of the other tenants or . . . the physical condition of the premises . . . .” General Statutes § 47a-23c (b) (1). The plaintiff also contended at trial that the failure of the defendant to pay the electricity bill was itself a material noncompliance with the lease, thereby permitting the eviction of the defendant pursuant to § 47a-23c (b) (1) (D).

The court found, in an oral decision, that the defendant had violated § 10 of the lease by failing to maintain electrical service, that the electrical service had been shut off for one day and that the plaintiff had assumed payment for the service, but that the plaintiff had not proven that there was a dangerous or unsafe condition created. The court also found that failing to pay the electricity bill alone did not constitute a material breach of the lease. The plaintiff did not seek further articulation of the court’s decision.

On appeal, the plaintiffs only claim is that the court improperly rendered judgment in favor of the defendant on the ground that the plaintiff had not proven a violation of § 47a-23c (b) (1) (D); see footnote 3; because, the plaintiff asserts, the court had ruled in its favor on the third count. More specifically, the plaintiffs entire legal argument on appeal is that “ [t]his was precisely the ruling of the court on [c]ount [t]hree of the complaint,” namely, that by failing to pay the electricity bill, the defendant—materially had breached the lease. We disagree.

Although the court initially declared that “the defendant violated § 10 of the lease by failing to maintain electrical service . . . and therefore [the court] finds in favor of the [plaintiff] on count three of the complaint,” it later clarified its finding, stating that it “only found that the electrical service was shut off and that the [plaintiff] took over the payment of the bill.” Additionally, the court noted that the electrical service was terminated for only one day and that no evidence of a safety hazard resulting from the nonpayment and service cutoff was presented by the plaintiff. In the absence of a motion for articulation, we read an ambiguous trial record to support, rather than to undermine, the judgment. Thompson v. Orcutt, 70 Conn. App. 427, 441, 800 A.2d 530, cert. denied, 261 Conn. 917, 806 A.2d 1058 (2002). Furthermore, the court later specifically stated that in the absence of proof of a safety hazard, it did not regard the failure to pay the electricity bill, resulting in a one day shutoff of service, as a material noncompliance with the lease. Therefore, contrary to the plaintiffs claim, the court did not find that the defendant had committed an act of material noncompliance with the lease.

Finally, whether a tenant’s default under a lease constitutes a material breach of the lease is a question of fact, subject to reversal only if it is clearly erroneous. Miller v. Guimaraes, 78 Conn. App. 760, 767-68, 829 A. 2d 422 (2003). The plaintiff has not attempted to persuade us why failure to pay one month’s electricity bill, a one day shutoff of service and the landlord’s subsequent assumption of payment of the electricity bill must, under these circumstances, constitute as a matter of law a material breach of the lease. As noted previously, the plaintiffs entire legal argument on appeal is the one sentence quoted previously.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff withdrew count two, namely, that the defendant had faded to keep the rental unit in a clean and sanitary condition.

       The plaintiff does not challenge the court’s finding that it had not proven nonpayment of rent under the first count.

       General Statutes § 47a-23c (b) (1) provides in relevant part: “No landlord may bring an action of summary process or other action to dispossess a tenant . . . except for one or more of the following reasons: (A) Nonpayment of rent; (B) refusal to agree to a fair and equitable rent increase . . . (C) material noncompliance [of the tenant’s lawful responsibilities], which materially affects the health and safety of the other tenants or which materially affects the physical condition of the premises; (D) voiding of the rental agreement ... or material noncompliance with the rental agreement; (E) material noncompliance with the rules and regulations of the landlord . . . (F) permanent removal by the landlord of the dwelling unit of such tenant from the housing market; or (G) bona fide intention by the landlord to use such dwelling unit as his principal residence.”

       The plaintiff does not challenge the court’s finding that it did not prove an actual safety hazard. Thus, to the extent that the plaintiffs claim on appeal can be construed as an attempt to revive its claim at trial under § 47a-23c (b) (1) (C), which addresses a material noncompliance that involves threats to the health and safety of others or the physical condition of the premises, we decline to consider it because the plaintiff has not briefed its claim under that statutory subparagraph.


author: PER CURIAM.

text:
    RANDALL IVERS v. COMMISSIONER OF CORRECTION
    (AC 28595)
    Bishop, Gruendel and Lavery, Js.
    Argued October 10
    officially released December 16, 2008

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Randall Ivers, appeals following the denial of his petition for certification to appeal from the summary judgment rendered in favor of the respondent, the commissioner of correction, on his amended petition for a writ of habeas corpus. We dismiss the appeal.

In 1995, the petitioner was arrested and charged with murder in connection with a homicide that occurred in 1984. The petitioner entered into a plea agreement and pleaded guilty to substituted charges of reckless manslaughter in the first degree and attempt to commit burglary in the first degree. In doing so, the petitioner waived his statute of limitations defense to those charges. The petitioner subsequently was sentenced to two consecutive fifteen year terms of incarceration.

The petitioner filed a petition for a writ of habeas corpus, alleging that his plea was not voluntary because, due to sleep deprivation, he was coerced into waiving his statute of limitations defense. He also alleged that he was denied the effective assistance of counsel. By memorandum of decision dated December 1, 2000, the court denied the petition. The petitioner then appealed, and the appeal was dismissed. See Ivers v. Commissioner of Correction, 68 Conn. App. 911, 796 A.2d 634 (2002).

The petitioner subsequently filed the present habeas action. In his three count, second amended petition, the petitioner claimed ineffective assistance of his habeas counsel for failure to raise the statute of limitations defense with regard to his conviction of attempt to commit burglary. The petitioner also asserted that his sentence is illegal and that the court lacked jurisdiction to sentence him on the attempt to commit burglary charge on the basis of the expiration of the statute of limitations for that offense. On December 17, 2002, the respondent filed a motion for summary judgment as to the petitioner’s ineffective assistance claims. Several years later, on May 3, 2006, the petitioner filed an opposition to the motion for summary judgment. On May 4, 2006, the court rendered summary judgment in favor of the respondent. The court subsequently denied the petition for certification to appeal, and this appeal followed.

The respondent’s motion sought summary judgment “as to the petitioner’s claim that first habeas counsel rendered ineffective assistance in failing to challenge trial counsel’s failure to raise a statute of limitations defense.” In rendering judgment in favor of the respondent, the court expressly granted the motion for summary judgment as presented. The court did not address or dispose of the petitioner’s claims that he was illegally sentenced and that the court had no jurisdiction to impose a sentence on him.

On appeal, this court raised the question of whether a final judgment exists in light of the summary judgment rendered solely on the ineffective assistance claims. The parties filed supplemental briefs in which the petitioner has conceded, and this court agrees, that the court did not render a final judgment on the second amended petition.

Because this court has jurisdiction to hear an appeal only if the appeal is taken from a final judgment; General Statutes §§ 51-197a and 52-263; Practice Book § 61-1; this appeal must be dismissed. See State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983).

The appeal is dismissed.

       The charges to which the petitioner pleaded guilty were subject to a five year statute of limitations. See General Statutes § 54-193 (b).


author: MIHALAKOS, J.

text:
    DEAN B. HOLLIDAY v. STATE OF CONNECTICUT
    (AC 28741)
    DiPentima, Graendel and Mihalakos, Js.

      Argued April 23
    officially released December 23, 2008

      Dean B. Holliday, pro se, the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

MIHALAKOS, J.

The pro se petitioner, Dean B. Holliday, appeals, following the denial of his petition for certification to appeal, from the judgment of the trial court denying his petition for a new trial, which was rendered upon the granting of the motion for summary judgment filed by the respondent, the state of Connecticut. On appeal, the petitioner claims that the court abused its discretion in denying the petition for certification to appeal and improperly determined that his petition for a new trial was time barred because it was filed outside the three year statute of limitations. Specifically, he claims that the court improperly found that he had failed to present evidence that the statute of limitations should be tolled because the state department of veterans’ affairs had fraudulently concealed evidence. We dismiss the appeal.

Following the court’s granting of the respondent’s motion for summary judgment, the petitioner filed a petition for certification to appeal, pursuant to General Statutes § 54-95 (a), which certification was denied by the court.

The petitioner first claims that the court improperly denied certification to appeal from the denial of his petition for a new trial. “It is well established that we apply the abuse of discretion standard when reviewing a court’s decision to deny a request for certification to appeal from a denial of a petition for a new trial.” Daniels v. State, 88 Conn. App. 572, 576, 870 A.2d 1109 (2005), cert. denied, 274 Conn. 902, 876 A.2d 11 (2005). Therefore, the threshold issue that we must now decide is whether the court abused its discretion in denying the petition for certification to appeal. Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), establishes the framework for satisfying the criteria necessary to show an abuse of discretion. “A petitioner satisfies that burden by demonstrating: [1] that the issues are debatable among jurists of reason; [2] that a court could resolve the issues [in a different manner]; or [3] that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Seebeck v. State, 246 Conn. 514, 534, 717 A.2d 1161 (1998).

In our review of whether the court abused its discretion in denying certification to appeal, we examine the petitioner’s underlying claim that the court improperly rendered summary judgment because genuine issues of material fact existed. We conclude, after an exhaustive review of the record, that the court properly rendered summary judgment because there was no genuine issue of material fact. The record clearly supports the court’s finding, and, therefore, the petitioner has failed to demonstrate that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised merit encouragement to proceed further. Accordingly, there was no abuse of discretion by the court in denying the petition for certification to appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. In April, 2001, the petitioner entered the Veterans Administration Federal Credit Union in Newington wearing a dust mask over his face, latex gloves, heavy clothes and a backpack. Concerned employees alerted Diane Jarvis, the chief executive officer of the credit union, of the petitioner’s appearance. She approached the petitioner, and they had a brief conversation concerning the ability of a nonmember to cash a check at the credit union. The petitioner then exited the credit union.

The next day, on the basis of the incident with the petitioner the previous day, Jarvis informed her employees to be prepared for trouble. By chance, an employee of the credit union, Stacey Rechenberg, was walking to the front door of the credit union when she saw the petitioner and another man exit a car parked in a no parking zone wearing dust masks and latex gloves. Rechenberg then saw the petitioner reach into the backseat of the car and remove a black bag. Cognizant of the earlier warning, she closed and locked the door. Another employee contacted Jarvis, who in turn activated an alarm and telephoned the police.

The petitioner and his accomplice fled the scene in an automobile, which they subsequently abandoned, and then fled on foot. A police canine tracked the pair to a dumpster approximately two miles from the car. The petitioner was arrested and thereafter was convicted, after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), and attempt to commit robbery in the second degree in violation of General Statutes §§ 53a-49 and 53a-135 (a) (2). On June 18, 2002, he was sentenced to forty years incarceration. This court subsequently affirmed the decision of the trial court. State v. Holliday, 85 Conn. App. 242, 856 A.2d 1041, cert. denied,. 271 Conn. 945, 861 A.2d 1178 (2004).

On November 23, 2004, the petitioner, while incarcerated, filed a Freedom of Information Act request with the United States Department of Veterans Affairs in West Haven, seeking, among other things, any reports generated by the federal agency’s police department concerning the attempted robbery of the “Newington V.A. Credit Union.” Nelly McCrory, the Freedom of Information Act officer who responded to the petitioner’s request, advised the petitioner by letter dated December 6, 2004, that there were no responsive records pertaining to his request. The petitioner thereafter appealed from that determination to the general counsel for the United States Department of Veterans Affairs, located in Washington, D.C.

By letter dated November 15, 2005, the general counsel for the United States Department of Veterans Affairs notified the petitioner that his appeal was granted in part and denied in part. Enclosed with the letter were two redacted United States Department of Veterans Affairs police reports. On March 27, 2006, the petitioner filed a petition for a new trial on the basis of this newly discovered evidence pursuant to General Statutes § 52-270 and Practice Book § 42-55. He claimed that the police reports showed that the Newington police department and the Veterans Administration Federal Credit Union in Newington were alerted to a potential robbery of the credit union, unrelated to the attempted robbery of which he was convicted, and that in response they had set up a sting operation. The petitioner asserted that because of the sting operation, the credit union employees were on heightened alert concerning a possible robbery and, therefore, overreacted to his parking in a no parking zone, exiting his car wearing a dusk mask and latex gloves and removing a black bag from the back of his vehicle. He claimed that the jury would have understood the employees’ alarm at his presence and peculiar dress if they had seen the police reports. The petitioner also claimed that because this newly discovered evidence arose after the conclusion of his trial, he was entitled to a new trial.

The respondent thereafter filed a motion for summary judgment, claiming that the petition for a new trial was filed by the petitioner after the applicable three year statute of limitations. At oral argument on the motion for summary judgment, the petitioner claimed that the delay in filing his petition for a new trial was caused by the respondent’s misrepresentation and concealment of the two United States Department of Veteran Affairs police reports. Specifically, he claimed that the state had failed to provide him with copies of the police reports and had denied that the reports existed in response to his initial Freedom of Information Act request. He claimed that the respondent’s conduct amounted to fraudulent concealment and tolled the statute of limitations.

The court, in its memorandum of decision, found that the period for filing a petition for a new trial ended June 18, 2005, which was three years from the petitioner’s June 18, 2002 sentencing. The petitioner’s March 27, 2006 petition, therefore, was outside the limitations period. Moreover, the petitioner failed to present any evidence that the respondent, rather than the United States Department of Veterans Affairs, had engaged in any conduct that would warrant the tolling of the statute of limitations. On this basis, the court concluded that the petition for a new trial was barred by the applicable statute of limitations. Accordingly, the court granted the respondent’s motion for summary judgment.

We now set forth the applicable standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).

The opportunity for a new trial when new evidence comes to light provides a criminal defendant an important procedural mechanism for remedying an injustice. Seebeck v. State, supra, 246 Conn. 531. A critical limitation on the exercise of the trial court’s discretion in passing on such a petition for a new trial, however, is the statute of limitations. See General Statutes § 52-582. “The three year statute of limitations on a petition for a new trial based on newly discovered evidence is the product of the legislature’s balancing of the interests of the petitioner against the interests of the public and the state. . . . Thus, for a petition for a new trial, within the three year limitations period, the petitioner’s interests trump those of the public and the state. Beyond that period, however, the interests of the public and the state trump those of the petitioner.” (Citations omitted.) Summerville v. Warden, 229 Conn. 397, 426-27, 641 A.2d 1356 (1994). The three year period begins to run from the date of rendition of judgment by the trial court; Varley v. Varley, 181 Conn. 58, 61, 434 A.2d 312 (1980); which, in a criminal case, is the date of imposition of the sentence by the trial court. State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987).

It is undisputed in this case that the petition for a new trial was filed more than three years after the imposition of his sentence by the trial court. The petitioner argues, nevertheless, that his petition was timely because the statute of limitations was tolled by the respondent’s fraudulent concealment of evidence. We conclude, however, that the petitioner failed to present evidence that the respondent, rather than the United States Department of Veterans Affairs, fraudulently had concealed evidence.

The only argument advanced by the petitioner on the issue of fraudulent concealment was that the state department of veterans’ affairs delayed in providing him with copies of certain police reports. He argued that these reports were in the possession of the state department of veterans’ affairs and, therefore, necessarily were in the possession of the respondent. To support this argument, he submitted to the court documents that he claims are communications between himself and the state department of veterans’ affairs. Specifically, he submitted (1) his November 23, 2004 Freedom of Information Act request, (2) the December 6, 2004 reply letter from McCrory, (3) the September 13, 2005 reply letter from the office of the general counsel for the United States Department of Veterans Affairs stating that it was in the process of obtaining records related to his appeal, (4) the November 15, 2005 letter from the office of the general counsel for the United States Department of Veterans Affairs granting in part and denying in part his appeal and (5) copies of the redacted police reports that he had received from the United States Department of Veterans Affairs. Contrary to the petitioner’s claims, however, the documents he submitted do not create a genuine issue of material fact because they are not evidence of fraudulent concealment by the respondent.

The petitioner’s erroneous assumption in this case is that the documentary evidence he submitted in support of his fraudulent concealment claim originated from the state department of veterans’ affairs. As the court found, however, the evidence he submitted clearly originated from the United States Department of Veterans Affairs, not the Connecticut department of veterans’ affairs. His initial Freedom of Information Act request was directed to the veterans affairs police service for the United States Department of Veterans Affairs. The subsequent response letter from McCrory contained the United States Department of Veterans Affairs seal at the top of the letterhead and directed the petitioner to file any appeal with the general counsel for the United States Department of Veterans Affairs in Washington, D.C. The communications from the office of the general counsel contain the same United States Department of Veterans Affairs seal at the top of the letterhead and have a return address in Washington, D.C. Although it is true that the state and federal departments in this case have similar names, thereby making the source of the petitioner’s confusion understandable, the petitioner has presented no evidence that the respondent, rather than, a federal agency, fraudulently had concealed evidence. Accordingly, there is no genuine issue of material fact, and the court properly granted the respondent’s motion for summary judgment. We therefore conclude that the issue presented by the petitioner is not debatable among jurists of reason, that a court could not properly resolve the issue in a different manner and that it is not adequate to deserve encouragement to proceed further. As a result, the court did not abuse its discretion by denying certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner also claims that there are disputed issues of material fact related to the merits of his petition. Like the trial court, however, we need not address these claims because we find that his petition was time barred by the applicable statute of limitations.

       The petitioner’s request sought: “Any reports or statements concerning viewing of surveillance tapes by Diane Jarvis, Danielle Gallagher, and Stacey Rechenberg for N.P.D. case # 01-04-1655. Any and all reports concerning attempted robbery of Newington V.A. Credit Union before 4-4-01 and after 4-4-01. Any reports of viewing surveillance tapes from N.P.D. case # 01-04-1655 on 3-22-02 submitted to [assistant] [s]tate’s [a]ttomey [Paul N.] Rotiroti.”

       General Statutes § 52-582, titled “Petition for new trial,” provides in relevant part: “No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of . . . .”

       The petitioner did file two timely petitions for a new trial, both of which were based on alternate grounds not raised in his current petition. Because the prior, timely petitions did not allege the same grounds as the present petition, they are irrelevant in determining whether the statute of limitations bars the present petition.

       To prove fraudulent concealment, the petitioner would have been required to show that the respondent (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the cause of action, (2) intentionally concealed these facts from the petitioner and (3) concealed the facts for the purpose of obtaining delay on the petitioner’s part in filing a complaint on their cause of action. Falls Church Group v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007). Moreover, the petitioner would have been required to prove that the respondent had concealed the cause of action by the more exacting standard of clear, precise and unequivocal evidence. Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).

       The state department of veterans’ affairs is established pursuant to General Statutes § 27-102Í.

       The petitioner advances an alternative argument, which we summarily reject. He claims that “the prosecuting attorney, Paul N. Rotiroti, knew of the cause of action and failed to bring this information to the appellant’s attention before his criminal trial, during or after.” Our review of the record, however, reveals that the petitioner failed to present any evidence that Rotiroti knew of the existence of the United States Department of Veterans Affairs police reports or failed to inform the petitioner of their existence. The petitioner’s bare assertion that Rotiroti knew of the reports does not create a genuine issue of material fact. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

       The petitioner appears to advance an agency theory of liability. We note, however, that the petitioner has cited no case law supporting his argument that the state, in its role in prosecuting criminal cases, is responsible for ensuring the timely production of documents from other state agencies.