text:
    NATH ATTA OPOKU v. DENNIS L. GRANT
    (AC 20368)
    Schaller, Spear and Daly, Js.
    Argued February 16
    officially released June 12, 2001

      Michael A. Lockaby, with whom, on the brief, was Robert J. McKay, for the appellant (plaintiff).

      Leo J. McManus, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff, Nath Atta Opoku, appeals to this court following the denial of his motion to open the judgment of nonsuit that had been rendered against him as a result of his failure to comply with a discovery order. The plaintiff claims that the court improperly concluded that he failed to file the affidavit required by General Statutes § 52-212 and Practice Book § 17-43 in a timely fashion. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On August 6, 1995, a motor vehicle operated by the plaintiff collided with a motor vehicle operated by the defendant, Dennis L. Grant. The plaintiff brought an action seeking to recover damages for injuries suffered due to the defendant’s alleged negligence. Following the plaintiffs response to the defendant’s interrogatories and request for production, the defendant attempted to depose the plaintiff on October 8, 1997. Counsel for both parties agreed, however, to suspend the deposition. The defendant claims that the plaintiffs discovery responses were incomplete, at best, and that additional time was necessary to supplement the written disclosure and production. The plaintiff claims that complete records concerning his prior accidents, claims and medical treatment were not available.

The defendant filed a motion to compel discovery on October 20, 1998, after the plaintiff failed to provide him with any additional information. The plaintiff did not respond. On November 2, 1998, the court granted the motion and ordered the plaintiff to “fully comply with defendant’s written discovery requests on or before 12/11/98 or nonsuit shall enter.” The plaintiff did not comply. On February 18, 1999, the defendant filed a motion for a judgment of nonsuit. On March 8, 1999, the court granted the motion and rendered judgment for the defendant. The court issued notice to the parties on March 19, 1999.

On April 27, 1999, the plaintiff sent by facsimile a letter to the defendant containing the names of several physicians together with a written medical authorization for the release of records in conjunction with his prior related injuries or accidents. The defendant’s counsel responded by letter, stating that the fist of names and the medical authorization were insufficient to achieve full compliance with the defendant’s discovery requests and that a written authorization could not be used in lieu of answering interrogatories under oath. The plaintiff did not reply to the letter.

On June 2, 1999, the plaintiff filed a motion to open the judgment of nonsuit, claiming that he had “fully complied with the defendant’s written discovery as of this date.” On June 7, 1999, the defendant objected on the ground that the plaintiff had not complied with the discovery order and that the court had no authority to act because the plaintiffs motion had not been verified by the plaintiffs oath or that of the plaintiffs attorney. The plaintiff did not respond. On June 22, 1999, the court denied the plaintiffs motion and sustained the defendant’s objection. The court issued notice of those rulings on June 30, 1999.

On July 19, 1999, the plaintiff timely filed a motion to reargue the motion to open, which was granted by the court. A hearing was held on October 7, 1999. At the hearing, the plaintiff claimed that the motion to reargue tolled the four month time limitation for the motion to open. The court requested that the parties brief that issue and agreed to schedule a second hearing. On October 20 and October 29, 1999, the plaintiff filed an affidavit and a revised affidavit, respectively. On December 7, 1999, the court again heard the parties and then affirmed its June 22,1999 ruling on the motion to open, reasoning that the plaintiff had failed to file an affidavit or verified complaint before the statutory deadline and that, therefore, the court was without “jurisdiction” to grant the motion. This appeal followed.

I

The plaintiff first claims that the court improperly denied his motion to open the judgment of nonsuit because the motion, together with his subsequent motion to reargue, fully complied with the statutory requirements and the rules of practice. He claims that the court did not lack “jurisdiction” to grant the motion because he filed both motions within four months of the judgment of nonsuit, and the motion to reargue contained a copy of his sworn deposition testimony in satisfaction of the affidavit requirement. We disagree.

Our standard of review is well settled. Whether a court has authority to grant a motion to open requires an interpretation of the relevant statutes. Statutory construction, in turn, presents a question of law over which our review is plenary. State v. Smith, 63 Conn. App. 228, 237, 775 A.2d 313 (2001). “According to our longstanding principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 272-73, 752 A.2d 1023 (1999).

Section 52-212 provides in relevant part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.

“(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney . . . .”

“Practice Book § 377 [now § 17-43 (a)] is almost identical to the statutory language [of § 52-212], To obtain relief from a judgment rendered after default a two pronged test must be satisfied. The aggrieved person must show reasonable cause, or that a good defense existed at the time of the judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense.” (Internal quotation marks omitted.) McLaughlin v. Smoron, 62 Conn. App. 367, 372, 771 A.2d 201 (2001). Practice Book § 17-43 (a) also provides that the “written motion shall be verified by the oath of the complainant or the complainant’s attorney . . . .”

In G. F. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn. App. 119, 123-24, 679 A.2d 32 (1996), the plaintiff did not file affidavits in support of its motion to open within the four month statutory period, and we reversed the trial court’s granting of the plaintiffs motion to open the judgment. We concluded that “[u]nless the parties waive this time limitation, the trial court lacks [authority] to entertain a motion to open filed more than four months after a decision is rendered.” (Internal quotation marks omitted.) Id.

We conclude that the court properly denied the plaintiffs motion to open. The plaintiff did not meet the statutory requirements or those of the rules of practice, and there is no evidence of waiver by the defendant. The court rendered a judgment of nonsuit on March 8, 1999. The plaintiff filed his motion to open and set aside the judgment on June 2, 1999. On June 7, 1999, the defendant objected on several grounds, including the plaintiffs failure to file the required affidavit. Although the plaintiff thus received notice that the motion was procedurally flawed, he failed, even then, to file a timely affidavit. On June 22,1999, the court denied the motion and sustained the defendant’s objection. The plaintiff did not file an affidavit until October, 1999. Accordingly, the court properly denied the plaintiffs motion to open for lack of statutory authority to grant relief.

The plaintiffs claim that the court had authority to open the judgment because he timely filed a motion to reargue containing his sworn deposition testimony from nearly two years earlier is completely without merit. We reach that conclusion because a motion to reargue cannot be used to correct the deficiencies in a prior motion and, even if it could, the plaintiffs sworn deposition testimony fails to satisfy the affidavit requirement. See Northwestern Mutual Life Ins. Co. v. Greathouse, Superior Court, judicial district of Stamford-Norwalk, Docket No. 164835 (June 27, 2000).

“[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.” (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790 (1995). It also may be used “to address alleged inconsistencies in the trial court’s memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court.” K. A. Thompson Electric Co. v. Wesco, Inc., 24 Conn. App. 758, 760, 591 A.2d 822 (1991). “[A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.” (Internal quotation marks omitted.) Northwestern Mutual Life Ins. Co. v. Greathouse, supra, Superior Court, Docket No. 164835.

The plaintiff in this case did not claim in his motion to reargue that the court overlooked a decision or principle of law that might have had some controlling effect on its prior ruling, or that there was a misapprehension or incorrect understanding of the facts. He also did not point to inconsistencies in the court’s ruling or to other deficiencies in its analysis. He attempted, instead, to take the proverbial “second bite of the apple” by attaching to the motion to reargue prior deposition testimony intended to satisfy the affidavit requirement for the motion to open.

Even if we were to conclude that the submission was proper, the plaintiffs sworn deposition testimony clearly fails to satisfy the affidavit requirement. Both General Statutes § 52-212 (b) and Practice Book § 17-43 (a) provide that the “written motion shall be verified” by the oath of the complainant or his attorney. The term “verification” is defined as “[Confirmation of correctness, truth, or authenticity . . . .” Black’s Law Dictionary (6th Ed. 1990). The plaintiffs sworn deposition testimony was taken on October 8, 1997, approximately twenty months before he filed the motion to open. Accordingly, the court did not abuse its discretion in concluding that his oath on that date failed to satisfy the affidavit requirement. The oath was not related to the truth of the information contained in the motion to open, but to the truth of his deposition testimony almost two years earlier.

II

In the alternative, the plaintiff claims that the court’s granting of the motion to reargue tolled the four month limitation period set forth in General Statutes § 52-212 (a) for filing a motion to open to the date of the second hearing, December 7,1999, thus validating the October, 1999 affidavit. He argues that because Practice Book § 63-1 (c) (1) provides that certain motions toll the time to appeal, those motions also should toll the four month time limit of General Statutes § 52-212. We disagree.

Practice Book § 63-1 (c) (1) provides in relevant part: “If a motion is filed within the appeal period that, if granted, would render the judgment . . . ineffective, a new twenty-day period for filing the appeal shall begin on the day that notice of the ruling is given on the last such outstanding motion ....

“Motions that, if granted, would render a judgment . . . ineffective include, but are not limited to, motions that seek: the opening or setting aside of the judgment [and] . . . reargument of the judgment or decision

“Motions that do not give rise to a new appeal period include those that seek . . . reargument of a motion listed in the previous paragraph.” (Emphasis added.)

As Practice Book § 63-1 (c) (1) makes absolutely clear, a motion to open a judgment does give rise to a new appeal period, but a motion to reargue a motion to open does not. Because the motion to reargue did not toll the appeal period, we conclude that the plaintiff cannot prevail on his claim that the motion to reargue tolled the four month limitation period set forth in General Statutes § 52-212 (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       In their briefs and papers, and at various times throughout the proceedings, the parties and the court referred to the motion as a motion to set aside, a motion to reopen and a motion to open. The plaintiffs original motion was entitled “Motion to Set Aside Judgment.” In this opinion, we refer to the motion as a motion to open the judgment.

       Both parties improperly interpreted the court’s conclusion that it lacked jurisdiction to grant the motion to open to mean that the court lacked subject matter jurisdiction. That the court did not intend to base its decision on a lack of subject matter jurisdiction is clear from its reliance on G. F. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn. App. 119, 123, 679 A.2d 32 (1996). In that case, we addressed the issue of the trial court’s authority, not its subject matter jurisdiction, to open a judgment of nonsuit; id.; even though we ultimately concluded that the court lacked “jurisdiction” to entertain the motion. Id., 124.
      In Kim v. Magnotta, 249 Conn. 94, 101, 733 A.2d 809 (1999), our Supreme Court noted that the use of jurisdictional terms sometimes may engender confusion, and it explored “the recurrent difficulty of distinguishing between two kinds of challenges to a tribunal’s exercise of its statutory authority. On the one hand, a challenge may allege that a tribunal’s action exceeds its statutory authority. . . . Such a challenge raises a jurisdictional claim. On the other hand, a challenge may allege that a tribunal’s action misconstrues its statutory authority. Such a challenge raises a claim of statutory construction that is not jurisdictional. In Kim, [the court] relied on this distinction to conclude that the statutory limitation on motions to open judgments contained in ... § 52-212a was not jurisdictional.” (Emphasis added.) Cantoni v. Xerox Corp., 251 Conn. 153, 162, 740 A.2d 796 (1999). We therefore agree with the trial court that the plaintiffs claims are challenges to that court’s general statutory authority to grant relief, and we will refer to them as such in the remainder of this opinion.

       See footnote 2.

       We note that Practice Book § 63-1 (c) was revised, effective January 1, 2000, to clarify language in effect at the time the plaintiff filed his motion to open and his motion to reargue in 1999. The revision does not constitute a substantive change to the former rule; therefore, the revised rule applies in the present case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MERI-WEATHER, INC., ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL. MERI-WEATHER, INC. v. MICHAEL KELLEY ET AL.
    (AC 20731)
    Lavery, C. J., and Dranginis and Ilennessy, Js.
    Argued April 30
    officially released June 12, 2001

      David L. Metzger, for the appellants (plaintiffs).

      Victor R. Perpetua, appellate attorney, with whom, on the brief, were Clifton A. Leonhardt, chief counsel, and Mitchell W. Pearlman, general counsel, for the appellee (defendant freedom of information commission).

      ChristopherP. Hankins, deputy city attorney, for the appellee (defendant Mark Benigni).
   Opinion

PER CURIAM.

The plaintiff Meri-Weather, Inc. (Meri-Weather), appeals from the judgments of the trial court rendered in favor of the defendants, the freedom of information commission (commission) and Mark Benigni in the first case, and Michael Kelley, the Record-Journal Publishing Company and the commission in the second case, dismissing the plaintiffs administrative appeals from two decisions by the commission. The commission found in each case that Meri-Weather was subject to the Freedom of Information Act (act), General Statutes § 1-200 et seq., as the functional equivalent of a public agency. Meri-Weather is the plaintiff in both matters, and the issues involved in those cases on appeal are identical. The cases were joined for purposes of appeal pursuant to Practice Book § 61-7 (a) (l).

On appeal, the plaintiff claims that the court improperly (1) determined that the “extent of government involvement” factor of the functional equivalent test of a public agency was met even though the core activities of the plaintiff were not subject to government involvement or regulation, (2) relied on the alter ego doctrine in determining that the plaintiff was the functional equivalent of a public agency, (3) determined that the plaintiff was created by the government and (4) determined that the plaintiff was the functional equivalent of a public agency subject to the act.

The defendants respond that the court correctly concluded that (1) the plaintiff is the functional equivalent of a public agency subject to the act, (2) there was substantial evidence on the record to support a conclusion that Meri-Weather was created by the government, (3) there was substantial evidence on the record to support a conclusion that the Meriden community action agency (agency) had dominant control of Meri-Weather, (4) the agency satisfied the functional equivalent test because the court gave particular weight to its domination of Meri-Weather and (5) public policy considerations support disclosure by a nominally private corporation performing a governmental function related to community development to promote accountability concerning those critical governmental functions.

Our examination of the record and briefs persuades us that the judgments should be affirmed. The court’s memorandum of decision in the first case, which the court adopted as its decision in the second case, is detailed, thoughtful and comprehensive. Its analysis is consistent with our applicable law and precedents, and we therefore adopt the court’s well reasoned decision. See Meri-Weather, Inc. v. Freedom of Information Commission, 47 Conn. Sup. 113, 778 A.2d 1038 (2000). It would serve no useful puipose to repeat the discussion contained therein. See Sansone v. Nationwide Mutual Fire Ins. Co., 62 Conn. App. 526, 528, 771 A.2d 243 (2001).

The judgment is affirmed.

       Gregory P. Haskins, the chief executive officer of Meri-Weather, also was a plaintiff in the first case. We refer in this opinion to Meri-Weather as the plaintiff.

       Benigni, a Meriden city councilor, and Kelley, a managing editor for the Record-Journal Publishing Company in Meriden, each had sought certain financial documents from Meri-Weather prior to filing complaints with the commission seeking disclosure of those documents.

       The plaintiff filed separate appeals in the Superior Court from the commission’s decisions. The Superior Court dismissed the plaintiffs appeals in separate memoranda of decision. In its memorandum in the second appeal, the court adopted its decision that is contained in its memorandum in the first case. We adopt the court’s memorandum of decision in the first case as a correct statement of the law in both cases.

       Practice Book § 61-7 (a) (1) provides in relevant part: “Two or more plaintiffs or defendants in the same case may appeal jointly or severally. Separate cases heard together and involving at least one common party may as of right be appealed jointly, provided all the trial court docket numbers are shown on the appeal form . . . .”


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. WILLIAM JAMES
    (AC 20272)
    Lavery, C. J., and Flynn and O’Connell, Js.

      Argued April 24
    officially released June 12, 2001

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, arid Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

This matter is before us following a resentencing pursuant to State v. James, 54 Conn. App. 26, 734 A.2d 1012, cert. denied, 251 Conn. 903, 738 A.2d 1092 (1999). On appeal, the defendant claims that the trial court failed to impose the specific sentence directed by our decision in State v. James, supra, 26. We dismiss the defendant’s appeal as moot.

The following facts are relevant to this appeal. The defendant was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), use of a firearm in the commission of a class A, B or C felony in violation of General Statutes § 53-202k and criminal possession of a weapon in violation of General Statutes § 53a-217. “The defendant was sentenced as follows: manslaughter in the first degree — twenty years imprisonment, suspended after ten years, followed by three years probation; use of a firearm in the commission of a class A, B or C felony — five years imprisonment to run consecutively; and criminal possession of a firearm — two years imprisonment to run concurrently with count one.”,State v. James, supra, 54 Conn. App. 50. The defendant was therefore sentenced to a total effective sentence of twenty-five years imprisonment, execution suspended after fifteen years, followed by three years of probation. On appeal, we vacated the defendant’s conviction for the use of a firearm in the commission of a class A, B or C felony in violation of § 53-202k. We held, pursuant to State v. Dash, 242 Conn. 143, 150, 698 A.2d 297 (1997), that “although the total effective sentence in this case was proper, it must be modified to reflect the fact that § 53-202k was not a separate offense.” State v. James, supra, 50. We then remanded the case to the trial court to resentence the defendant for manslaughter in the first degree and criminal possession of a weapon to a total effective sentence of twenty-five years imprisonment, execution suspended after ten years, with three years of probation to follow.

At the resentencing, the court, following argument by counsel, resentenced the defendant on the manslaughter conviction to twenty years imprisonment, execution suspended after fifteen years, with three years of probation, to run concurrently to a term of two years imprisonment on the possession of a firearm conviction. The defendant then filed the present appeal.

On appeal, the defendant argues that the court improperly refused to impose a sentence of twenty-five years, execution suspended after ten years, followed by three years of probation, as directed by State v. James, supra, 54 Conn. App. 50. The defendant argues that, pursuant to James, the effective sentence should be suspended after he serves ten years, rather than fifteen years. The state argues in response that in resen-tencing the defendant, the court properly corrected an obvious clerical error in the mandate of this court.

We note initially that “[i]n carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.” (Citations omitted; emphasis in original; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 312, 541 A.2d 858 (1988); see also State v. Graham, 45 Conn. App. 12, 16, 692 A.2d 1306, cert. denied, 241 Conn. 923, 697 A.2d 360 (1997). The trial court “may correct a clerical error in the mandate; it cannot render a new or different judgment.” Mazzotta v. Bomstein, 105 Conn. 242, 244, 135 A. 38 (1926).

The trial court, therefore, has the authority to correct a clerical error in following a mandate from this court. We need not decide whether the court properly did so in this case, however, because events subsequent to the defendant’s resentencing render the defendant’s appeal moot. On April 18, 2001, this court issued an amended rescript that corrected the clerical error in the original rescript. The case has been remanded to the trial court with direction to sentence the defendant to a total effective sentence of twenty-five years imprisonment, execution suspended after fifteen years, with three years of probation.

“When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) State v. Pressley, 59 Conn. App. 77, 80-81, 755 A.2d 929 (2000). In the present case, by virtue of the amended rescript, there is no practical relief that this court can provide to the defendant, and, therefore, the appeal is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       The judgment was affirmed in all other respects. State v. James, supra, 54 Conn. App. 50.

       The amended rescript provides as follows: “The judgment is reversed in part and the case is remanded with direction to vacate the defendant’s conviction for use of a firearm in the commission of a class A, B or C felony in violation of General Statutes § 53-202k and to resentence the defendant for manslaughter in the first degree and criminal possession of a weapon to a total effective sentence of twenty-five years imprisonment, execution suspended after fifteen years, with three years of probation to follow. The judgment is affirmed in all other respects.”

       A corrected page was filed in the Connecticut Law Journal on May 22, 2001, to reflect this change. See State v. James, supra, 54 Conn. App. 50.


author: DRANGINIS, J.

text:
    WILLIAM H. HONAN ET AL. v. JOSEPH DIMYAN ET AL.
    (AC 20340)
    Spear, Dranginis and Peters, Js.
    Argued February 27
    officially released June 12, 2001

      Nancy Burton, for the appellants (plaintiffs).

      Joseph DaSilva, Jr., with whom, on the brief, was Joseph Dimyan, for the appellee (defendant Joseph Dimyan).
   Opinion

DRANGINIS, J.

The plaintiffs appeal from the judgment of the trial court granting the defendants’ bill of costs. On appeal, the plaintiffs claim that the court abused its discretion because it (1) failed to disqualify itself, and (2) awarded costs for subpoenas that were not shown to have been served and from which no testimony resulted. We affirm the judgment of the trial court.

This appeal arises from a long-standing and contentious dispute between the plaintiffs, William H. Honan and his three children, and the defendants, attorney Joseph Dimyan and his law firm, Coury and Dimyan. The dispute centers on the defendants’ representation of June Burton and Milton Burton, the maternal grandparents of the plaintiff children, in an action that was brought in 1990 in which the grandparents claimed that Honan and his wife, Nancy Burton, had denied the grandparents reasonable visitation with their grandchildren. The grandparents did not prevail in that action. The plaintiffs then filed an action against Dimyan and his law firm, the grandparents’ attorneys, alleging, inter alia, abuse of process, intentional infliction of emotional distress and invasion of privacy. The jury returned a verdict for the defendants on all counts. The plaintiffs subsequently appealed, claiming, inter alia, judicial misconduct by the presiding judge, Stodolink, J. This court affirmed the judgment in Honan v. Dimyan, 52 Conn. App. 123, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999), which, for purposes of clarity, we refer to as Honan I.

On September 9, 1999, Dimyan filed a bill of costs in the trial court pursuant to General Statutes § 52-257 seeking recovery, amounting to $1588.50, for costs before and during the trial, which included subpoenas and depositions, costs associated with the appeal and costs for “difficult/extraordinary cases.” On September 20, 1999, the plaintiffs objected to the bill of costs on the ground that the defendants and their counsel, Thomas F. Maxwell, Jr., had engaged in various misconduct before and during the trial.

Following a proceeding on November 10, 1999, the trial court clerk taxed costs in the amount of $1088.50, denied costs for the appeal ($300) and directed the defendants to file a bill of costs with the appellate clerk for costs relating to the appeal. The clerk further informed Dimyan that his request for $200 for a “difficult/extraordinary ’ ’ case would be referred to Judge Stodolink for consideration at a hearing to be held on November 23,1999. Prior to the hearing, the defendants withdrew their “difficult/extraordinary case” claim for the $200.

On November 10 and 24, 1999, the plaintiffs filed motions for review of the taxation of costs and for a hearing pursuant to Practice Book § 18-5. On December 7, 1999, the day of the hearing, the plaintiffs filed a supplemental objection to the bill of costs and a motion to disqualify Judge Stodolink from the proceedings for review of the defendants’ bill of costs. The court, Stodol-ink, J., denied the motion for disqualification, proceeded with the hearing and upheld the clerk’s taxation of costs. This appeal followed.

I

The plaintiffs first claim that the court, Stodolink, J., improperly denied their motion for the judge to disqualify himself. The plaintiffs claim that Judge Stodolink should have recused himself because, at a deposition taken on January 28, 1999, in Monsky v. Moraghan, United States District Court, Docket No. 3:97CV01616 (PCD) (D. Conn. April 21, 1999), aff'd, United States Court of Appeals, Docket No. 99-7822 (2d Cir. June 1, 2000), he testified that he harbored prejudice against the plaintiffs’ counsel, Nancy Burton, stemming from her motion to disqualify him from the jury trial in Honan I. He further stated in that deposition that he would have recused himself from that trial were it not a jury trial and that he would not preside over any proceedings involving Nancy Burton in the future. The plaintiffs further claim that Judge Stodolink should have recused himself from hearing the matter involving the bill of costs because he permitted misconduct to occur in the course of Honan I. Finally, the plaintiffs claim that Judge Stodolink should have recused himself because he is a named defendant in an action brought by Nancy Burton that is pending in the United States District Court for the District of Connecticut. We decline to review the plaintiffs’ claim.

We conclude that this court resolved the issue of the alleged judicial misconduct on the part of Judge Stodolink in the plaintiffs’ previous appeal and that the plaintiffs’ claim, is, therefore, barred. Because we previously decided this issue, premised on the same factual allegations, we need not address the plaintiffs’ claim.

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. . . . Furthermore, [t]he judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. . . . The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily. We further emphasize that where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding. But the scope of matters precluded necessarily depends on what has occurred in the former adjudication.” (Citations omitted; internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 685-86, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998).

“The transactional test measures the preclusive effect of a prior judgment, which includes any claims relating to the cause of action that were actually made or might have been made. ... A cause of action for the purpose of the transactional test is the group of facts which is claimed to have brought about an unlawful injury to the plaintiff . . . .” (Citations omitted; internal quotation marks omitted.) Legassey v. Shulansky, 28 Conn. App. 653, 657, 611 A.2d 930 (1992). “The fact that a prior judicial determination may be flawed ... is ordinarily insufficient, in and of itself, to overcome a claim that otherwise applicable principles of res judicata preclude it from being collaterally attacked. ... If the judgment [in the prior action] is erroneous, the unsuccessful party’s remedy is to have it set aside or reversed in the original proceedings.” (Internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., supra, 50 Conn. App. 686. It is well settled that “[a] judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest.” (Internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowd-hury, 239 Conn. 375, 397, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 155, 735 A.2d 333 (1999). Thus, res judicata may operate to preclude a claim decided in a previous proceeding within the same case. See id., 397-98, and cases cited therein. “[F]or purposes of res judicata, a judgment will ordinarily be considered final if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court, short of any steps by way of execution or enforcement that may be consequent upon the particular kind of adjudication.” (Internal quotation marks omitted.) Id., 398-99.

In Honan I, the plaintiffs argued on appeal that the trial court, Stodolink, J., improperly denied their motion for a new trial, which they had based on the purported misconduct of the trial court judge and defense counsel. In that case, the plaintiffs argued that Judge Stodolink “bears a serious animus against the Honan family,” referring to several alleged incidents that they claimed involved harassment and intimidation. After hearing oral argument, we concluded that the plaintiffs had failed to provide any legal analysis in support of their claim of judicial misconduct; Honan I, supra, 52 Conn. App. 136; and we were not persuaded that the incidents were so prejudicial as to deprive the plaintiffs of a fair trial. Id. Honan I is a final judgment for purposes of res judicata because it concluded the rights of the plaintiffs and the defendants such that further proceedings could not affect them.

On February 2,1999, before we rendered our decision in Honan I, the plaintiffs moved to stay the appeal and to farther develop the record. In their motion, the plaintiffs informed the court of Judge Stodolink’s January 28, 1999 deposition testimony. The motion, however, was denied.

The plaintiffs again argue, in the present appeal, that Judge Stodolink was prejudiced against them and, therefore, should have been disqualified from this case, specifically, from the hearing on the bill of costs. The plaintiffs’ prior claim of judicial misconduct and the one presently before us are virtually identical. In essence, the plaintiffs reiterate their previous claim, but now ask that we also consider the January 28, 1999 deposition testimony of Judge Stodolink, which was taken after oral argument was heard in Honan I, but before that appeal was decided. The plaintiffs cannot reassert their claim by proffering additional or new evidence. See Tirozzi v. Shelby Ins. Co., supra, 50 Conn. App. 686-87.

Furthermore, we note that after we rendered a decision in Honan I, the plaintiffs did in fact petition our Supreme Court for certification to appeal from our decision. See Honan v. Dimyan, 249 Conn. 909, 733 A.2d 227 (1999). The plaintiffs claimed, inter alia, that this court improperly (1) found that there was no judicial misconduct, and (2) denied their motion to stay the appeal and to further develop the record. Thus, the plaintiffs argued that Judge Stodolink should have been disqualified because he had admitted that he was prejudiced against Nancy Burton. The plaintiffs also raised the issue of this court’s denial of their motion to stay the appeal. Our Supreme Court denied the petition for certification to appeal. Id.

We conclude that the plaintiffs’ claim is barred. The plaintiffs had the opportunity to litigate fully the matter of judicial misconduct. Both parties submitted appellate briefs on the issue in Honan I, and both parties participated in oral argument. Whether Judge Stodolink should have been disqualified for allegedly permitting misconduct to occur during trial was decided by this court in the plaintiffs’ previous appeal. In that case, we concluded that the alleged misconduct was not so prejudicial as to deprive the plaintiffs of a fair trial. Honan I, supra, 52 Conn. App. 136. We will not permit the plaintiffs to relitigate the matter.

We similarly decline to review the plaintiffs’ claim that Judge Stodolink should have recused himself from hearing the bill of costs matter because he allegedly permitted misconduct to occur in the course of the Honan I trial.

The plaintiffs also claim that Judge Stodolink should have recused himself because he is a defendant in an action brought by Nancy Burton that is pending in the United States District Court for the District of Connecticut. Although that action was filed on July 29, 1998, well before the appeal in Honan I was argued in this court, the plaintiffs did not point to that fact in support of their claim of judicial misconduct in Honan I. The doctrine of res judicata, precludes “any claims relating to the cause of action that were actually made or might have been made(emphasis added; internal quotation marks omitted) Legassey v. Shulansky, supra, 28 Conn. App. 657; and “prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.” (Internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., supra, 50 Conn. App. 685. Moreover, the plaintiffs fail to provide either a factual basis regarding the pendency of the federal court action or a legal analysis as to how it would disqualify Judge Stodolink.

II

The plaintiffs next claim that the court abused its discretion in awarding costs for subpoenas that were not shown through evidence of sheriffs’ bills to have been served and that resulted in no testimony, and for duplicate depositions allegedly taken to harass and intimidate the deponents. We disagree.

The plaintiffs claim that of the twenty subpoenas for which the defendants sought costs, only one individual, John Burton, testified pursuant to a subpoena, and therefore the plaintiffs should not have been taxed for the other nineteen subpoenas. The plaintiffs argue that the costs should not have been taxed because of alleged misconduct by the defendants before and during the trial. Specifically, the plaintiffs contend that the subpoenas were malicious, abusive litigation tactics on the part of Dimyan. They further argue that costs for the subpoenas should not have been taxed because the defendants did not offer proof of service of the subpoenas. Finally, the plaintiffs claim that costs for the depositions of June Burton and Milton Burton should not have been taxed because they were taken under harassing and abusive conditions in that the trial court intimidated the Burtons, an elderly couple, into traveling two hours in stormy weather to give duplicate depositions.

The costs subject to taxation in civil actions are fixed by statute. General Statutes § 52-257. As our Supreme Court aptly stated in Fengler v. Northwest Connecticut Homes, Inc., 215 Conn. 286, 291, 575 A.2d 696 (1990), “[a]n examination of General Statutes § 52-257, entitled ‘[f]ees of parties in civil actions,’ reveals that most of the awards are automatic assessments, not involving the discretion of the court. The principal exceptions to this general rule are subsection (d) concerning minor specific matters [applicable to costs on appeal] and subsection (e) reserving to the court its time-honored discretion in taxing costs in actions in which equitable relief is granted.” Among those provisions of § 52-257 that provide for automatic assessments is subsection (b) (6), which provides that parties shall also receive costs “for copies of records used in evidence, bonds, recognizances and subpoenas, court and clerk’s fees

We reject the plaintiffs’ claim that the award of costs for the nineteen subpoenas was an abuse of discretion because the statute provides for the automatic taxation of costs for subpoenas. Furthermore, under that statutory provision, it is clear that the prevailing party may receive costs for subpoenas. The plaintiffs provide no legal support for their contention that costs for the subpoena of a witness not used in a party’s case-in-chief are not recoverable and we can find none. We conclude, therefore, that the costs fall within § 52-257 (b) (6) because that subdivision allows a prevailing party to recover costs for subpoenas, and no statute or case law limits the application of that subsection. Although subdivision (b) (7) provides that there is no recovery allowed for return of a subpoena to court, there are no subpoenas in the court file and, therefore, it appears that the subpoenas are taxable to the plaintiffs.

We further reject the plaintiffs’ claim that there is no evidence of the subpoenas because the record contains invoices for each subpoena and an affidavit by Dimyan in which he attests that the items in the bill of costs were expenses incurred in the case.

Finally, we reject the plaintiffs’ claim that the depositions of Milton Burton and June Burton are not taxable. The applicable statute, § 52-257 (b) (2), clearly provides for the automatic taxation in the amount of $30 for each deposition taken within the state. See Fengler v. Northwest Connecticut Homes, Inc., supra, 215 Conn. 291.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other plaintiffs are Edith Honan, Daniel Honan and Bradley Honan.

       The defendant law firm Coury and Dimyan is not a party to this appeal. We therefore refer in this opinion to Dimyan as the defendant unless otherwise indicated.

         Nancy Burton was a party in a matter involving a petition for visitation that was brought by June Burton and Milton Burton, but was not a party to the action that gave rise to this appeal. She is, however, trial and appellate counsel for the plaintiffs, who are her husband and three children.

       The plaintiffs claimed that the defendants had tainted the proceedings before trial and at trial by (1) stealing an exhibit from a public library, (2) harassing and intimidating witnesses, (3) obstructing and interfering with the plaintiffs’ depositions, (4) conspiring with a judge of the Superior Court, Moraghan, J., to interfere with the plaintiffs’ case and (5) subpoenaing individuals who did not testify. The plaintiffs further claimed misconduct by Judge Stodolink for failing to disqualify himself from the trial due to his alleged prejudice against the plaintiffs. The plaintiffs also claimed that they had “proved at trial that the defendants abused [the] legal process, instituted vexatious litigation, tortiously invaded the plaintiffs’ privacy and defamed the plaintiffs by lying to the news media.” We note that the jury found for the defendants in the underlying action.

       The defendants filed a bill of costs with the appellate clerk on December 2,1999. The appellate clerk subsequently denied the bill of costs as untimely pursuant to Practice Book § 71-2.

       In that action, the plaintiff alleged that Judge Moraghan violated her civil rights by engaging in conduct against the plaintiff and the plaintiffs counsel, Nancy Burton, in retaliation for the plaintiffs having brought a previous action against him.

       Judge Stodolink was deposed as a witness for the defendant.

       The plaintiffs have failed to provide this court with a transcript of the deposition.

        Burton v. Moraghan, United States District Court for the District of Connecticut, Docket No. 3:98CV1490 (AHN).

       “Res judicata, as a judicial doctrine . . . should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose . . . .” (Internal quotation marks omitted.) Statewide Grievance Committee v. Presnick, 216 Conn. 135, 139, 577 A.2d 1058 (1990) (res judicata applicable to presentment proceedings).

       In his brief, the defendant claims that the plaintiff raised the same ground for disqualification in her appeal from the jury award. The plaintiff, in her reply brief, addressed the defendant’s assertion that the claim had been disposed of by this court in Honan I.

       The court in Honan I heard oral argument on December 8, 1998, and rendered its decision on March 2, 1999.

       See footnote 9.

       For the nineteen subpoenas at issue, the plaintiffs argue that one individual appeared at the courthouse, but did not testify; six testified, but as plaintiffs’ witnesses; five were employed at the plaintiff children’s school; one was the plaintiff children’s pediatrician; one was the plaintiffs’ former counsel; one was the former counsel for Milton Burton and June Burton; two were family friends of the plaintiffs; and two were unknown to the plaintiffs.
      We note that at the hearing, the plaintiffs’ counsel stated that she also would object to taxation of costs for the subpoena for John Burton because there was no evidence clearly demonstrating the amount attributable to that individual subpoena. The plaintiffs’ brief on appeal, however, addresses only the nineteen aforementioned subpoenas, and we therefore limit our review to issues pertaining to them.


author: FOTI, J.

text:
    IN RE SHEENA I. ET AL.

    (AC 21021)
    Foti, Dranginis and Flynn, Js.
    Argued May 2
    officially released June 12, 2001

      Matthew T. Gilbride, for the appellant (respondent mother).

      Jose A. Suarez, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

FOTI, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her two minor children, S and J. On appeal, the respondent mother claims that the court improperly concluded that (1) she failed to achieve personal rehabilitation within the meaning of General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B) and (2) termination of her parental rights was in her children’s best interests. We affirm the judgments of the trial court.

In a comprehensive memorandum of decision dated June 12, 2000, the court recited the following facts and procedural history. On May 7, 1999, the commissioner of children and families (commissioner) filed petitions for the termination of the respondent mother’s parental rights with respect to her two children, S and J. The petitions alleged that the children were being denied proper care and attention and that they were being permitted to live in conditions, circumstances or associations that were injurious to their health. The petitions further alleged that J was uncared for and that his home could not provide the specialized care that he required. The petitions also alleged that the respondent had failed to achieve personal rehabilitation after the court had previously adjudicated the children neglected. Additionally, the petitions stated that the children have “been denied, by reason of an act or acts of commission or omission, including but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse by [each of the parents] the care, guidance or control necessary to [their] physical, educational, moral or emotional well-being.”

Following a hearing in which the commissioner presented evidence in support of the petitions, the court found the following facts. The respondent’s childhood was characterized by family problems. She attempted suicide at age thirteen, underwent psychiatric treatment for several years and reported that she was the victim of multiple rapes. She also has a history of using illegal drugs and engaging in acts of prostitution; this behavior continued through the time of the present proceedings. She gave birth to four children-prior to giving birth to S and J. After those children had been removed from her care and placed with other family members, the respondent’s husband instituted divorce proceedings and secured an order of custody for them.

There were eleven substantiated referrals of abuse or neglect to the department of children and families (department) concerning the respondent and her family. J was bom on July 1, 1995, and at that time he tested positive for the presence of cocaine. In August, 1996, police reported that the respondent used crack cocaine and that her children were hungry and unkempt.

In November, 1996, J suffered bums to over 60 percent of his body resulting from a fire at the respondent’s home. J’s twin sister, D, died in the fire. J has received extensive medical care for his Ufe threatening injuries. S was three years old and was left unsupervised in a room with J when the fire started. At subsequent counseling sessions, S revealed that she lit the fire because she was upset with her parents. The traumatic experience continues to affect S psychologically.

The commissioner filed neglect petitions after the fire, and the court adjudicated the children neglected in April, 1997. The court ordered protective supervision of the children, and they remained in the respondent’s care. Until the supervision period terminated in January, 1998, the department continued to receive reports of abuse and neglect. S’s sister, A, told school personnel that the respondent mother had struck A with a belt. S’s day care provider reported bruises on her face. In August, 1998, the department of social services reported that the respondent arrived at its office under the influence of Ulegal drugs.

The commissioner commenced the present proceedings after department social workers visited the respondent’s home in October, 1998, and found her children to be very dirty. The children were sleeping on inappropriate mattresses that were badly stained and soaked with urine. Officials at J’s school reported that J came to school exhibiting very poor hygienic habits, despite the fact that Ihe proper care of his fire-related injuries required proper hygiene. Department workers found numerous health code violations in the respondent’s home, including a hole in the floor of the stairway, no smoke alarms, electrical hazards, broken windows and the use of a propane grill in the kitchen.

The state ceased providing the family with public assistance benefits, as the respondent had not complied with her obligation to obtain employment. The home had no electricity. The respondent continued living a drug-addicted lifestyle; she left her children in the care of others for days at a time. On November 5, 1998, the commissioner again filed neglect petitions.

In March, 1999, while in court for hearings on the neglect petitions, the respondent was arrested for possession of drug paraphernalia. She admitted using illegal drugs earlier that morning and also admitted to a department worker that by February, 1999, she was injecting as many as eleven bags of heroin daily. The court thereafter granted the commissioner an order of temporary custody for J, S and their hall-sister A, and none of the children has been in the care of a biological parent since that time.

The respondent testified at trial that J’s father frequently hit her and that she stayed away from the home for several days at a time. She was not aware of the significant problems with the living conditions in her home. She was incarcerated in October, 1999, and was released in May, 2000. She intended to reside with her mother following her release. In April, 1999, a court-appointed psychologist conducted a family evaluation. She stated in her report that during her evaluation the respondent was under the influence of some illegal substance and was unable to remain alert for even a few minutes. The psychologist concluded that the respondent had emotional difficulties and substance abuse problems, was not the psychological mother of either of the children and should not be allowed even to visit with them until she ceased using illegal drugs.

In September, 1999, Richard Sadler, a psychiatrist, performed a psychiatric evaluation of the respondent. Sadler found her to be “entirely self-absorbed” and essentially unconcerned about her behavior and its effect on her children. He concluded that her children should not be entrusted to her care and that she had provided no indications that she was taking any steps to provide even minimally adequate care for her children.

After the children were removed from the respondent’s care, A related accounts of physical and sexual abuse directed at her and her siblings that had occurred in the home. She reported that J’s father had hit her with a belt and that the respondent had placed her arms, as well as S’s arms, over open flames on the stove as a form of discipline. She also reported that J’s father had sexually abused her at bath time and at night.

These accounts were corroborated by S’s conversations with her foster mother. She recounted that J’s father took baths with her and her half-sister, A. She also told her foster mother that J’s father “put things in her behind.” S recalled that the respondent and J’s father regularly tied her and J to their beds. The respondent acknowledged tying her children to their beds. S told a social worker that she had lit the fire that caused her sister’s fatal injuries and severely injured J. She explained that she lit the fire in the bed where J’s father had done “bad things” to her, and that she did so because she was mad at J’s father and the respondent mother because of the abuse that she was sustaining in the home.

In April, 1999, an official at the Child Guidance Center in Bridgeport interviewed both J and S after their foster parents observed that the children were exhibiting unusual behaviors. The official testified that S disclosed sexual abuse by J’s father and the respondent. The children also were evaluated at the Yale Child Sexual Abuse Clinic beginning in June, 1999. The social worker at the clinic concluded that S had been sexually abused. During her evaluation, S consistently depicted, in both stories and drawings, the various forms of sexual abuse that J’s father had inflicted on her. Her brother, J, did not engage interviewers at the clinic, however, the social worker at the clinic noted that the “sexualized behavior” J’s foster parent observed in the home added credibility to the allegations of sexual abuse that occurred in the respondent’s home.

At the time of trial, S was seven years old, and her foster mother testified that since S had come to live with her, S had made significant progress in both her education and in regard to her self-esteem. J was four-years old at the time of trial, and his therapist testified that he had made progress both in terms of allowing others to interact with and care for him, and in terms of controlling his behavior. When they first began living in their foster homes, both children initially engaged in acts of inappropriate touching, anger and hostility, consistent with the abuse that they had suffered. Both the department and the respondent presented various proposals for the children’s care to the court during the neglect and termination proceedings.

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)].

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 181 Conn. 222]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). In re Kezia M., 33 Conn. App. 12, [17], 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).... In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771 [(1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999)].” (Internal quotation marks omitted.) In re Sheila J., 62 Conn. App. 470, 476-77, 771 A.2d 244 (2001).

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under General Statutes (Rev. to 1999) § 17a-112 (c)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. ... In re Danuael D., 51 Conn. App. 829, 835-37, 724 A.2d 546 (1999); In re Roshawn R., 51 Conn. App. 44, 51-52, 720 A.2d 1112 (1998). . . .

“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the parents’ parental rights is not in the best interests of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes (Rev. to 1997) § 17a-112 (e) .... In re Denzel A., 53 Conn. App. 827, 831-33, 733 A.2d 298 (1999).” (Citations omitted; internal quotation marks omitted.) In re Deana E., 61 Conn. App. 185, 189-90, 763 A.2d 37 (2000). At the time of the filing of the petitions in the present case, the applicable statutory provisions appeared at General Statutes (Rev. to 1999) § 17a-112 (c) and (d).

I

The respondent first claims that we should reverse the court’s judgment because it improperly considered her conduct subsequent to the adjudicatory date in this case. We disagree.

In the adjudicatory phase of a termination proceeding, the court is limited to considering events that precede the date of the filing of the petition or the latest amendment to the petition, also known as the adjudicatory date. Practice Book § 33-3 (a). The court may consider, however, events occurring after the adjudicatory date during the dispositional phase of a termination proceeding. Practice Book § 33-5.

In the present case, the adjudicatory date was May 7, 1999. The respondent argues that the court’s finding that she failed to achieve personal rehabilitation was clearly erroneous because the court noted that it considered her behavior occurring after the adjudicatory date. The respondent further asserts that the consideration of this evidence “tainted the adjudicatory phase of this proceeding.”

The petitions to terminate the respondent’s parental rights rested on two distinct statutory grounds. First, the petitions alleged, pursuant to General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B), that the respondent had failed to achieve personal rehabilitation. The court found, by clear and convincing evidence, that the respondent had not achieved a sufficient degree of rehabilitation, if any, as of the adjudicatory date. The court found persuasive the opinion of the court-appointed psychiatrist who had examined the respondent. He unequivocally stated that “no amount of services would ever be able to restore [the respondent] to a useful parental role.” The court further found, by clear and convincing evidence, that the respondent’s conduct both prior to and following the adjudicative date demonstrated that “she cannot be rehabilitated as a parent of these children within the reasonably foreseeable future, consistent with their needs for permanency.”

Second, the petitions alleged acts of parental commission or omission by the respondent pursuant to General Statutes (Rev. to 1999) § 17a-112 (c) (3) (C). In regard to this ground for termination of parental rights, the court found, by clear and convincing evidence, that the respondent had burned S’s arms and that she had engaged in acts of parental commission and omission in terms of her lengthy absences from home, her knowledge of the neglect and abuse inflicted on her children by J’s father and her failure to take steps to protect her children from such abuse. The court further found, by clear and convincing evidence, that those acts seriously injured the children.

Because the court needed to find that only one statutory ground for termination existed in the adjudicative phase of the proceeding before moving to the dispositional phase of the proceeding, we find no merit to the respondent’s claim. We need not address the respondent’s argument that the court improperly considered her conduct after the adjudicatory date in its analysis concerning rehabilitation for purposes of § 17a-112 (c) (3) (B). Even if that ground of the court’s decision were improper, the respondent mother does not challenge the propriety of the court’s conclusion that her parental rights should be terminated pursuant to § 17a-112 (c) (3) (C).

“We need uphold only one statutory ground found by the court to affirm its decision to terminate parental rights. In re John G., 56 Conn. App. 12, 20 n.4, 740 A.2d 496 (1999). To prevail on her claim that the court improperly terminated her parental rights, the respondent must successfully challenge all of the bases of the judgment terminating her parental rights. If [any] of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand. ... Id. Because one statutory ground for termination properly exists . . . we need not reach the respondent’s claim . . . .” (Internal quotation marks omitted.) In re Mariah S., 61 Conn. App. 248, 267-68, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).

II

The respondent next claims that the court’s decision in the dispositional phase of the termination proceeding that termination of her parental rights was in the best interests of her children was clearly erroneous. We disagree.

The respondent argues that the court improperly terminated her parental rights by appointing the commissioner as the children’s statutory parent. She argues that the court should have placed the children in long-term foster care or transferred their guardianship either to the children’s maternal grandmother or to their maternal aunt. She argues that this court previously has recognized the importance of maintaining contact between a child and his or her biological parent and that the court could have achieved a sense of permanency for her children without severing her parental rights.

As we explained earlier, a court may proceed to the dispositional phase of a termination proceeding only after finding by clear and convincing evidence that one or more of the statutory grounds for termination exists. In re Deana E., supra, 61 Conn. App. 189. In the dispositional phase, the court determines whether termination is in the best interests of the children. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes (Rev. to 1999) § 17a-112 (d). In re Kasheema L., 56 Conn. App. 484, 490, 744 A.2d 441, cert. denied, 252 Conn. 945, 747 A.2d 522 (2000); In re Tabitha P., supra, 39 Conn. App. 362.

In the present case, the court made the required statutory findings delineated in § 17a-112 (d). It found, by clear and convincing evidence, that both S and J required permanency and stability in their lives. Relying on the ample testimony and evidence presented to the court by expert witnesses, the court determined that the respondent had failed to make any changes in her life “to accommodate the care and nurturing of these children.” The court further found that “permanent placement or adoption by a family that understands and can accommodate their needs is the avenue most likely to accomplish permanency for them.”

Reviewing the court’s findings and conclusions under the clearly erroneous standard; In re Tricia A., 55 Conn. App. 111, 116, 737 A.2d 974 (1999); we cannot disturb its decision to terminate parental rights where “the totality of the evidence, including reasonable inferences [drawn] therefrom, supports the [court’s] verdict . . . .” (Internal quotation marks omitted.) In re Quanitra M., 60 Conn. App. 96, 106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).

Ample evidence in the record supports the court’s conclusion that termination was in the children’s best interests. The respondent asks us, essentially, to substitute our judgment for that of the court. We will not do so. While there axe cases where a court may deem it appropriate for a child to maintain contact with his or her biological parent, the court did not so find in this case. In the dispositional phase of a termination proceeding, the court properly considers only whether the parent’s parental rights should be terminated, not where or with whom a child should reside following termination. See In re Denzel A., supra, 53 Conn. App. 834-35. The record overwhelmingly supports the fact that both S and J need to be “raised in a safe, predictable, caring and nurturing home.” Ample evidence supports the court’s findings that the respondent did not provide her children with this type of home in the past and is incapable of providing them with this type of home in the future. The court specifically found that a transfer of guardianship either to the children’s maternal grandmother or to their aunt would not suit the children’s best interests, and we conclude that the record supports this conclusion.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court’s memorandum of decision also addressed the termination of the parental rights of the respondent father, who is the father of J. After the commissioner had filed the termination petitions, paternity testing established that the respondent father was not S’s biological father. The respondent mother thereafter named G as S’s biological father. Paternity testing established that G also was not S’s biological lather. Thereafter, the court ordered publication of notice of the termination proceedings to S’s unknown biological father, John Doe. The court ultimately terminated the respondent mother's parental rights with respect to S and J. The court terminated the parental rights of the respondent father of J and the parental rights of John Doe as to S. This appeal concerns only the termination of the respondent mother’s parental rights. We refer in this opinion to the respondent mother as the respondent.

       General Statutes (Rev. to 1999) § 17a-112 (c) (3) (B) provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that “the parent of a child who (1) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, or (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       General Statutes (Rev. to 1999) § 17a-112 (c) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Non-accidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .”

       We note, however, that while the court did refer to conduct occurring aft er the adjudicatory date, the court found by clear and convincing evidence that the respondent had failed to achieve personal rehabilitation as of the adjudicatory date.

       The respondent also argues that the court somehow “tainted” the entire adjudicatory phase of the termination proceeding by improperly considering her conduct after the adjudicatory date. We find this argument to be without merit. The respondent offers no authority, and we are not aware of any, to support her argument that any error in this regard tainted that phase of the trial. The court made explicit findings concerning her conduct that occurred prior to the adjudicatory date and that violated General Statutes § 17a-112 (c) (3) (C). It is well established that parties seeking relief before our state appellate courts must not merely assert claims without adequately briefing them. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 436, 759 A.2d 1050 (2000).


author: PELLEGRINO, J.

text:
    CLINTON MILNER v. COMMISSIONER OF CORRECTION
    (AC 19130)
    Mihalakos, Pellegrino and Peters, Js.

      Argued October 24, 2000
    officially released June 19, 2001

      Adam A. Laben, special public defender, with whom, on the brief, was Denise Ansell, special public defender, for the appellant (petitioner).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Carl E. Taylor, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PELLEGRINO, J.

The petitioner, Clinton Milner, appeals from the judgment dismissing his petition for a writ of habeas corpus following his conviction, after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the petitioner claims that the habeas court improperly concluded that (1) his right to due process was not violated by the state’s failure to conduct more specific and timely testing of blood evidence and (2) he was not denied effective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of this appeal, hi 1984, at the murder trial, the state presented circumstantial evidence that the petitioner had murdered Susan Kennedy. Susie Jackson testified that she saw the petitioner, who was wearing a red T-shirt and blue jeans, and who had been carrying a knife, during the hours immediately preceding Kennedy’s murder. Paul Cooper, Laurie Phil-brick and William Campbell testified that they had witnessed a man, fitting the petitioner’s description, wearing a red T-shirt, blue jeans and sneakers at the scene of the crime or in its immediate vicinity. Furthermore, Barbara Floyd, Santo Biondo, Felix Acevedo, Carolyn Hatchett and Henry Ellis testified that they had observed the petitioner, who was wearing a red T-shirt, blue pants and sneakers, running away from the murder scene shortly after the crime was committed. Subsequent to the murder, while the petitioner was being held at the Hartford Correctional Center, he told fellow inmates Carl Blair and Edward Watts that he had committed the murder.

The petitioner was convicted of having murdered Kennedy. The judgment of conviction was affirmed on direct appeal. State v. Milner, 206 Conn. 512, 539 A.2d 80 (1988). In his direct appeal to our Supreme Court, the petitioner did not challenge the sufficiency of the evidence against him. The petitioner commenced this habeas corpus proceeding on February 27, 1991.

The following additional findings of fact by the habeas court are relevant to our disposition of this appeal. Both the victim and Robert Torres, an initial suspect, have type O blood. The petitioner has type B blood. The knife used to commit the murder was covered with type O blood. Water taken from the kitchen sink trap in Torres’ apartment indicated the presence of blood and other human body fluids. The blood type, however, could not be identified because the blood was mixed with water. Both type O and type B blood were found on the victim’s clothing. Scrapings under the victim’s unbroken fingernails indicated the presence of type O blood. The court also found that isoenzyme testing was not performed until approximately eleven months after the crime was committed and, therefore, the results were inconclusive.

Testimony given at the habeas hearing indicated that in 1984, ABO typing and isoenzyme testing were the only tests available to analyze blood samples. Unlike isoenzyme testing, ABO typing can differentiate between types of blood, but cannot distinguish between donors. The habeas court also found that isoenzyme testing is of value only on fresh bloodstains and that dried blood samples may provide no useful information or, in some cases, misinformation. Enzyme testing of blood samples will not pinpoint the actual donor of blood, but it can exclude a certain percentage of the population. Furthermore, the accuracy of isoenzyme testing deteriorates according to the age and the conditions of the storage of the sample. Therefore, the habeas court concluded that “it is possible that, if the testing had been done at a time shortly after the samples were collected at the scene, they may have excluded the petitioner as the donor. Equally possible, however, is that such testing may have yielded no results or even misinformation.”

On November 25,1998, the court filed a memorandum of decision, rejecting the petitioner’s claims and denying his petition for a writ of corpus. In its well reasoned memorandum of decision, the court concluded that the strong and persuasive circumstantial evidence presented at the criminal trial precluded the unlikely possibility that had isoenzyme blood testing been performed in August, 1984, it would have produced exculpatory evidence. The court on December 10, 1998, granted the petitioner’s petition for certification to appeal. Thereafter, the petitioner timely filed this appeal.

I

Before we address the merits of the petitioner’s claims, we must first determine whether the habeas court properly found that the state failed to raise the defense of procedural default in a timely manner, which eliminated the petitioner’s obligation in the present habeas action to prove cause and prejudice before pursuing claims that were not raised on direct appeal.

The petitioner has raised, in the present appeal, a constitutional claim that he did not bring in his direct appeal from the judgment of conviction. See id. Generally, “[bjecause habeas corpus proceedings are not an additional forum for asserting claims that should properly be raised at trial or in a direct appeal, a petitioner must meet the ‘cause and prejudice’ standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), for determining the reviewability of habeas claims that were not properly pursued on direct appeal. S eeJacksonv. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993).” Tillman v. Commissioner of Correction, 54 Conn. App. 749, 755, 738 A.2d 208, cert. denied, 251 Conn. 913, 739 A.2d 1250 (1999).

It is clear that the petitioner bears the burden of proof to establish cause and prejudice. “Unless the petitioners can satisfy that standard, they are not entitled to review of their claims on the merits.” Johnson v. Commissioner of Correction, 218 Conn. 403, 419, 589 A.2d 1214 (1991). It is not so clear, however, as to which party has the burden of raising the issue of the petitioner’s procedural default and as to how the issue should properly be raised.

In the present case, the habeas court found that the petitioner was relieved of his burden of showing cause and prejudice because the state had failed to raise the petitioner’s procedural default as a defense. The court based its decision on Practice Book § 23-30 (b), which requires the respondent to raise as a defense any procedural default in its return. After finding that the state had failed to raise the defense of procedural default, the court concluded that the petitioner was not required to show cause and prejudice. Accordingly, the court considered the petitioner’s constitutional claims.

We first note that there is no Connecticut appellate authority that has squarely determined which party bears the initial burden of raising procedural default in a habeas action before the petitioner must establish cause and prejudice. Accordingly, we look to the case law of our federal and sister jurisdictions for guidance. In Trest v. Cain, 522 U.S. 87, 89, 118 S. Ct. 478, 139 L. Ed. 2d 444 (1997), the United States Supreme Court stated that “procedural default is normally a defense that the State is obligated to raise and preserv[e] if it is not to lose the right to assert the defense thereafter. Gray v. Netherland, 518 U.S. 152, 166 [116 S. Ct. 2074, 135 L. Ed. 2d 457] (1996); see Jenkins v. Anderson, 447 U.S. 231, 234 n.1 [100 S. Ct. 2124, 65 L. Ed. 2d 86] (1980). We are not aware of any precedent stating that a habeas court must raise such a matter where the State itself does not do so.” (Emphasis in original; internal quotation marks omitted.) Furthermore, in Gray v. Netherland, supra, 166, the court stated that, had the petitioner’s claim been heard in a previous appeal, “the [state] would have been obligated to raise procedural default as a defense, or lose the right to assert the defense thereafter.” In United States v. Canady, 126 F.3d 352, 359-60 (2d Cir. 1997), cert. denied, 522 U.S. 1134, 118 S. Ct. 1092, 140 L. Ed. 2d 148 (1998), the United States Court of Appeals for the Second Circuit refused to consider the government’s defense of procedural default because the government had failed to raise it originally in the United States District Court. Although none of the previously cited cases held that the state must first plead the petitioner’s procedural default before the petitioner is required to show cause and prejudice, the principles they advance, albeit in dicta, are instructive to our analysis.

Commentators on federal habeas practice have stated that petitioners “generally need not raise waiver and procedural default matter in their initial pleading and briefs, because the burden to raise and prove those defenses is on the state.” 1 J. Liebman, Federal Habeas Corpus Practice & Procedure (1988) § 24.5 (e), p. 361. “If the state fails to apprise the federal courts in a timely fashion of a state procedural bar, the procedural default rule does not bar federal habeas corpus relief.” 2 J. Liebman & R. Hertz, Federal Habeas Corpus Practice & Procedure (3d Ed. 1998) § 26.2 (a), pp. 1043-44 & n.2.

That view also is supported by Engle v. Isaac, 456 U.S. 107, 124-25 n.26, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982), in which the United States Supreme Court stated that “[i]n some cases a State’s plea of default may come too late to bar consideration of the prisoner’s constitutional claim.” Similarly, language found in our own case law supports the view that the state must first plead the procedural default before the petitioner is required to show cause and prejudice. In Daniel v. Commissioner of Correction, 57 Conn. App. 651, 652-53 n.1, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000), we elected to review the petitioner’s constitutional claim, which he did not raise at trial or on direct appeal, because the record was unclear as to whether a claim of procedural default had been brought to the attention of the habeas court.

Our rules of practice also support the view that the state has the burden of pleading procedural default and are instructive on how the defense should be raised. As the habeas court found, and we agree, Practice Book § 23-30 (b) requires the state to raise the affirmative defense of procedural default in its return. Section 23-30 (b) clearly states, in pertinent part, that “[t]he return . . . shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief.” Accordingly, we conclude that the plain language of Practice Book § 23-30 (b) requires the state to plead procedural default in its return or it will relinquish the right to assert the defense thereafter. See Phelps v. Director, Nevada Dept. of Prisons, 104 Nev. 656, 659, 764 P.2d 1303 (1988) (holding that state rules of practice require government to assert procedural default as affirmative defense before petitioner is required to show cause and prejudice); Medley v. Warden, Superior Court, judicial district of Tolland at Somers, Docket No. CV92-0001485 (August 10, 1993) (9 Conn. L. Rptr. 621, 622) (same), aff'd, 35 Conn. App. 374, 646 A.2d 242 (1994), rev’d on other grounds, 235 Conn. 413, 667 A.2d 549 (1995).

We, therefore, are persuaded that in Connecticut, although the petitioner has the burden of proving cause and prejudice; see Johnson v. Commissioner of Correction, supra, 218 Conn. 419; that burden does not arise until after the respondent raises the claim of procedural default in its return. Accordingly, we conclude that the habeas court properly concluded that the petitioner was not required to prove cause and prejudice because the state had failed to plead the defense of procedural default in its return as mandated by Practice Book § 23-30 (b). Thus, we will address the merits of the petitioner’s claims.

II

The petitioner claims that his right to due process was violated when the state failed to conduct timely isoenzyme blood testing on samples taken from the victim’s clothing, scrapings from under the victim’s fin-gemails and from blood evidence found at Torres’ apartment. The petitioner argues that if the state had conducted those tests while the blood samples were fresh, the results would have excluded the petitioner as a possible suspect. The petitioner concludes that the failure to conduct timely testing effectively amounts to the withholding of potentially exculpatory evidence by the prosecution. Because the results of timely performed isoenzyme tests may not have produced exculpatory evidence, we are unpersuaded that the petitioner’s claim presents us with the issue of the failure to produce or preserve potentially exculpatory evidence. We therefore agree with the state that the petitioner’s claim mistakenly seeks to place an affirmative obligation on the state to perform particular tests on evidence during its investigation and prosecution of a criminal defendant.

Our standard of review of habeas proceedings is well settled. “[A] habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . .” (Citation omitted; internal quotation marks omitted.) Crump v. Commissioner of Correction, 61 Conn. App. 55, 58, 762 A.2d 491 (2000); Morrison v. Commissioner of Correction, 57 Conn. App. 145, 147, 747 A.2d 1058, cert. denied, 253 Conn. 920, 755 A.2d 215 (2000). Whether the petitioner’s right to due process of law was violated by the nonproduction of possibly exculpatory material, however, is a mixed question of law and fact that warrants plenary review. Quintana v. Commissioner of Correction, 55 Conn. App. 426, 436, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999).

The due process clause of the federal constitution is not violated when the police fail to employ a particular investigatory tool. Arizona v. Youngblood, 488 U.S. 51, 59, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). “[T]he police do not have a constitutional duty to perform any particular tests.” (Internal quotation marks omitted.) State v. Conn, 234 Conn. 97, 118, 662 A.2d 68 (1995), quoting Arizona v. Youngblood, supra, 59; see also Commonwealth v. Richenburg, 401 Mass. 663, 669, 518 N.E.2d 1143 (1988) (failure to perform blood-typing analysis permissible ground on which to build defense, but does not constitute suppression of evidence in violation of due process within doctrine of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,10 L. Ed. 2d 215 [1963]); Everroad v. State, 570 N.E.2d 38, 46-47 (Ind. App. 1991) (rejecting claim that failure to test contraband for fingerprints constituted destruction of potentially exculpatory evidence), rev’d on other grounds, 590 N.E.2d 567 (Ind. 1992). Furthermore, the state does not have a federal constitutional obligation to conduct tests at an earlier date only because, in hindsight, there was a mere possibility that such tests may have produced exculpatory material. State v. Conn, supra, 118-19.

In the present case, we cannot conclude that the petitioner’s right to due process under the federal constitution was violated. The habeas court found that the state conducted ABO type testing on the blood evidence collected during the investigation of the murder. At the murder trial, the petitioner was convicted on the basis of the presentation of strong circumstantial eyewitness testimony. The habeas court further found that, even if the isoenzyme tests had been timely performed, the results may not necessarily have produced exculpatory evidence. Those factual findings by the habeas court are not clearly erroneous. Therefore, considering that the state has no affirmative duty to perform any one particular test on blood evidence and that the performance of isoenzyme tests could possibly have produced inculpatory, rather than exculpatory evidence, the petitioner was not denied due process by the nonperformance of such tests.

Upon our review of the record as a whole, we conclude that the petitioner’s right to due process was not violated by the untimely performance of isoenzyme testing on certain blood evidence.

Ill

The petitioner finally claims that he was denied his right to effective assistance of counsel pursuant to the federal and Connecticut constitutions because his counsel prevented him from testifying at his criminal trial and failed to apprise him fully of his right to take the witness stand. We disagree.

Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. “Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court, unfettered by the clearly erroneous stan-daxd.” (Citation omitted; internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 61 Conn. App. 58.

A “criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, supra, 466 U.S. 686. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 61 Conn. App. 58-59. “In order ... to prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice.” (Internal quotation marks omitted.) Id., 59, quoting Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). To prove that his counsel’s performance was deficient, the petitioner must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 317, 759 A.2d 118 (2000). Furthermore, the petitioner “must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra, [694].” (Internal quotation marks omitted.) Crump v. Commissioner of Correction, supra, 59.

In the present case, the habeas court found that the petitioner had failed to meet his burden of satisfying either prong of the Strickland test. The court found that the petitioner failed to present credible evidence that his counsel had prevented him from testifying in his own defense. The court further found that, on the basis of the strength of the state’s case, it was reasonably probable that had the petitioner testified on his own behalf, he still would have been convicted. This court cannot conclude that those factual findings are clearly erroneous.

Upon review of the record as a whole, we conclude that the habeas court properly found that the petitioner failed to satisfy his burden of establishing that his trial counsel provided ineffective assistance under the Strickland test. We therefore must affirm the judgment of the habeas court.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the present appeal, the petitioner has also claimed that his right to a fair trial was violated when the state failed to present at trial a pack of cigarettes found at the murder scene. In his direct appeal, the petitioner argued that he was deprived of a fair trial because the state had either lost or misplaced, among other items of evidence, the package of cigarettes. See State v. Milner, 206 Conn. 512, 540-41, 539 A.2d 80 (1988). We agree with the state that, because those two claims are functionally identical, the doctrine of res judicata bars us from addressing the merits of the petitioner’s claim. “Res judicata is a doctrine grounded in public policy, whose primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction. . . . The doctrine applies to criminal as well as civil proceedings and to state habeas corpus proceedings . . . .” (Citation omitted.) Brown v. Commissioner of Correction, 44 Conn. App. 746, 750, 692 A.2d 1285 (1997) (holding that habeas court properly dismissed petition because claims had been fully litigated in petitioner’s direct appeal). We therefore decline to address the petitioner’s claim.

       The petitioner has suggested that Torres, a witness at the criminal trial, was the perpetrator. The habeas court found, however, that no evidence of any significance was produced at the criminal trial or at the habeas hearing to support that claim.

       In Febraaty, 1997, the habeas court ordered further DNA testing of the available blood samples. As a result of those DNA tests, the petitioner was excluded as a source of the blood on the knife. The tests, however, were inconclusive with respect to the jeans, and no sample was available for testing from the victim’s underpants.

       We note that it was unnecessary for our Supreme Court to address the issue of which party has the initial burden of pleading procedural default in Johnson v. Commissioner of Correction, supra, 218 Conn. 403, because the state had specifically pleaded procedural default in its return.

       Practice Book § 23-30 (b) provides: “The return shall respond to the allegations of the petition and shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief.”

       We note that in Trest v. Cain, supra, 522 U.S. 89, the United States Supreme Court’s discussion of procedural default is premised on the federal notion of the independent and adequate state ground doctrine, which “ ‘is grounded in concerns of comity and federalism.’ ”

       We note that in his brief, the petitioner makes a blanket allegation that he was denied due process, but has failed to identify any particular constitutional right, that was violated by the state’s nonperformance of the isoenzyme tests. Furthermore, the petitioner has failed to provide an independent analysis of the state constitutional issues. See State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992) (setting forth appropriate factors to be addressed when raising state constitutional claim). “We have repeatedly apprised litigants that, we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim .... State v. Robinson, 227 Conn. 711, 721-22, 631 A.2d 288 (1993); see also State v. Williams, 231 Conn. 235, 245 n.13, 645 A.2d 999 (1994); State v. Joyner, 225 Conn. 450, [458-59] n.4, 625 A.2d 791 (1993); State v. Rosado, 218 Conn. 239, 251 n.12, 588 A.2d 1066 (1991). . . . State v. Ellis, 232 Conn. 691, 692 n.1, 657 A.2d 1099 (1995).” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). Therefore, we decide this issue on the more limited grounds of the federal constitution. State v. Geisler, supra, 684.