Volume 219 — Connecticut Appellate Reports

Convicted, after a jury trial, of the crime of assault in the first degree in connection with his attack on H with a handsaw, the defendant appealed to this court. The defendant lived in a condominium owned by K, with whom the defendant had a relationship. Approximately two weeks before the assault on H, the relationship between the defendant and K became strained and the defendant began staying with his mother. However, the defendant retained keys to the condominium, kept per- sonal belongings there, and went to and from the condominium at will. The night prior to the assault, in a series of text messages between K and the defendant, K asked the defendant to return his keys and indicated to him that he was no longer allowed to live there. The next night, K went out for dinner and drinks with H, an acquaintance she met a few months earlier and with whom she had exchanged text messages. They returned to the condominium so H could wait for his car service. H and K were unaware that the defendant was in the condominium. When H exited the bathroom in the condominium, the defendant attacked him with a handsaw, severely injuring him. The defendant was charged with assault in the first degree, burglary in the first degree, and home invasion. Prior to trial, the court denied the defendant's request to present the testimony of K and himself in support of his motion to dismiss the charges of burglary in the first degree and home invasion. The trial court denied the motion to dismiss. At trial, the jury was unable to reach a unanimous verdict on the first degree burglary and home invasion charges and the court declared a mistrial as to those charges. Held: 1. The trial court properly denied the defendant's pretrial motion to dismiss the first degree burglary and home invasion charges: contrary to the defendant's claim that there was insufficient evidence to establish that the defendant had unlawfully entered or remained in the condominium, the proffered proof, viewed in the light most favorable to the state, warranted a person of reasonable caution to believe that the defendant unlawfully entered the condominium, as required for a conviction of first degree burglary and home invasion; moreover, a fact finder could reasonably find that whatever privilege the defendant previously held to enter K's condominium was expressly and clearly revoked by K on the day prior to the incident via the text messages she sent to the defendant in which she asked him to return his keys and informed him that he did not live there anymore; furthermore, although the defendant claimed that he retained his privilege to enter the condominium because, inter alia, he still had keys to the condominium and kept his personal belongings there, the text messages sent by K on the day prior to the incident illustrated that the defendant was no longer permitted to enter the condominium, and it was undisputed that he entered it on the night of the incident. 2. The trial court did not abuse its discretion in denying the defendant's requests to present testimony in support of his pretrial motion to dismiss the first degree burglary and home invasion charges because there was no factual dispute between the defendant and the state to warrant the evidentiary testimony of the defendant and K: it was clear from the parties' representations at the hearing on the motion that they agreed on 95 percent of the relevant factual predicate to the defendant's motion, which claimed that the facts themselves were insufficient to support the first degree burglary and home invasion charges against the defendant; moreover, because defense counsel provided a full and detailed proffer of the testimony he requested to present, which the state mostly accepted as true, a full evidentiary hearing to iterate those same facts would have been superfluous; furthermore, the defendant did not identify on appeal, how, if at all, his testimony or the testimony of K would have supple- mented or been different from the proffer articulated by defense counsel, and therefore, the defendant failed to demonstrate that, even if the court's ruling was incorrect, he was harmed by the ruling. 3. The defendant could not prevail on his unpreserved claim that the trial court judge improperly failed to disqualify himself from presiding over the defendant's trial because the judge was actually biased against him on the basis of the judge's use of the term ''victim'' to refer to H in various pretrial hearings and because the judge's denial of his motion to dismiss established the appearance of bias: the judge's use of the term ''victim'' in pretrial hearings did not objectively establish that he was actually biased against the defendant so as to constitute a due process violation depriving the defendant of a fair trial, the judge's reference to H as ''victim'' was not critical or hostile to the defendant, as the judge used the term victim merely to identify H, who indisputably sustained significant physical injuries as a result of the defendant's conduct, the judge did not refer to H as a victim in front of the jury, and the judge's use of the term did not establish that he had predeter- mined the defendant's guilt prior to the start of trial, nor did it reflect on the strength of the state's case or the defendant's claim of self- defense; moreover, the judge's use of the term could not support a claim of actual bias as the term was not derived from an extrajudicial source, but from judicial proceedings, and did not reveal a high degree of antago- nism so as to make a fair judgment impossible, and the defendant cited no conduct by the judge during the trial that suggested that he conducted the trial in a way that was biased against the defendant; furthermore, this court declined to review the defendant's unpreserved claim that the judge's denial of his motion to dismiss was sufficient to establish the appearance of bias because a claim of judicial bias based solely on the appearance of partiality was not of constitutional dimension. 4. The defendant could not prevail on his unpreserved claim that the trial court violated his confrontation clause rights by improperly restricting his ability to cross-examine H concerning the content of text messages between H and K in an effort to impeach H's credibility: the defendant, through his defense counsel, abandoned his effort to question H regard- ing the content of the text messages at trial and, thus, waived his appel- late claim; the record sufficiently demonstrated that, although the trial court had granted the state's motion in limine, without prejudice, to preclude the defendant from questioning H as to the content of the messages, defense counsel, at trial, outside the presence of the jury, expressed an intention to question H on the content of those messages, but, the next day, stated that he no longer sought to question H in that regard, and, instead, expressed his intention to question H regarding the volume of the messages, which the trial court permitted, and, ultimately, defense counsel never attempted to question H as to the content of the text messages. 5. The defendant could not prevail on his claim that the prosecutor's use of the term ''victim'' approximately fourteen times during the evidentiary portion of the trial and in closing argument constituted prosecutorial impropriety that deprived him of his constitutional right to a fair trial: the prosecutor's use of the term ''victim'' to refer to H was not sufficiently prevalent and chronic so as to be improper, as the number of instances the term was used was not sufficiently excessive in light of the length of the trial, which lasted six days and culminated in approximately 900 pages of transcript, the majority of the prosecutor's use of the term during the evidentiary portion of the trial occurred after witnesses used it for the first time, and the one time defense counsel objected to the prosecutor's use of the term victim, the court sustained the objection, the prosecutor rephrased the question and the prosecutor did not use the term throughout the remaining three days of evidence; moreover, even if this court were to assume that each of these uses of the term ''victim'' by the prosecutor was improper, the defendant failed to satisfy his burden of demonstrating that those improprieties were so egregious as to amount to a denial of due process, this court having concluded, after applying the factors set forth in State v. Williams (204 Conn. 523), that the alleged improprieties did not deprive the defendant of a fair trial because, although the alleged improprieties were not invited by defense counsel and no curative instructions were adopted by the trial court, and, although the term victim was central to the critical issue of the case, which was whether H was the victim of assault or an intruder, which supported the defendant's claim of self-defense, the use of the term was infrequent when compared to the length of the trial, the trial court repeatedly instructed the jury during various parts of trial that counsel's arguments did not constitute evidence, that the jurors were the sole arbiters of credibility, and that the jurors must confine themselves to the evidence in the record, the state's case was strong because there was an abundance of evidence that supported the charge of first degree assault, and, finally, although the jury deliberated for five days, their deadlock was on the unlawful entry element of the first degree burglary and home invasion charges, not on the assault charge. Argued September 7, 2022—officially released May 30, 2023

Pursuant to the rules of practice (§ 17-32 (b)), a motion for judgment shall not be filed ''before the expiration of fifteen days from the date of the notice of issuance of the default . . . .'' Pursuant further to the rules of practice (§ 17-33 (b)), a court, at or after the time it renders a default, may render judgment in foreclosure cases ''notwithstanding Section 17-32 (b) . . . provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial authority. . . .'' The plaintiff bank sought to foreclose a mortgage on certain real property owned by the defendant homeowner. The plaintiff filed a motion for default for failure to plead on September 6, 2019, which was granted by the clerk of court on September 17, 2019. The plaintiff then filed a motion for judgment of strict foreclosure on September 24, 2019, eigh- teen days after the motion for default was filed and seven days after the default had entered. The trial court denied the defendant's subsequent motion to set aside the default and rendered a judgment of foreclosure by sale. On the defendant's appeal to this court, held: 1. The defendant could not prevail on her claim that the trial court was required to set aside the default or, alternatively, that the default was set aside automatically when she filed her answer and special defenses, which was based on her claim that the plaintiff's motion for judgment of strict foreclosure was filed only seven days after the clerk of court granted the motion for default for failure to plead in violation of Practice Book § 17-32 (b): the trial court was not required to set aside the default because the fifteen day filing limitation in § 17-32 (b) is not controlling in foreclosure proceedings, as Practice Book § 17-33 (b) expressly autho- rizes a court to render judgment in foreclosure cases at or after the time default is rendered and, thus, the defendant's contentions found no support in the language of §§ 17-32 and 17-33 or this court's cases interpreting those provisions; moreover, nothing prevented the defen- dant from filing a timely pleading in the first instance or from filing a motion to set aside the default and making the requisite showing of good cause; furthermore, the record did not support the defendant's contention that the plaintiff was not prepared to proceed with its first motion for judgment of strict foreclosure when it was filed because the court ultimately rendered judgment on the plaintiff's second motion for judgment, as the second motion was filed because the defendant had sought reinclusion into the foreclosure mediation program after the first motion for judgment was filed. 2. The trial court did not abuse its discretion by denying the defendant's motion to set aside the default: because the default was not set aside automatically when she filed her answer and special defenses, it was incumbent on the defendant to file a motion to set aside the default and to demonstrate good cause for doing so, and the defendant's motion to set aside did not allege any facts demonstrating good cause; the plaintiff filed its motion for default for failure to plead approximately one year after it commenced this action, after the foreclosure mediation period had terminated due to the defendant's failure to appear at a scheduled mediation session and, instead of explaining in her motion to set aside the default why she did not timely file a responsive pleading, the defendant, through counsel, simply set forth the parties' mediation efforts and indicated that the mediation period had ended because she missed a session. Argued March 8—officially released May 30, 2023