author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. NANA BONSU
    (AC 17315)
    Foti, Spear and Hennessy, Js.
    Argued January 13
    officially released July 13, 1999

      Raul Davila-Carlos, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a). He claims that his constitutional right to a fair trial was violated by prosecutorial misconduct that consisted of (1) inquiring into the defendant’s misdemeanor criminal record in violation of the trial court’s order and (2) urging the jury to draw a negative inference from the defendant’s inability to recall the last names of certain persons, in violation of the trial court’s prohibition against any “missing witness” argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim went on a double date with the victim’s best friend and the defendant’s roommate. After seeing a movie, the two couples went to the defendant’s apartment, where they planned to eat a meal that was to be prepared by the defendant and his roommate.

While the couples were at the apartment, the defendant’s roommate and his date retired to a bedroom. The defendant and the victim danced and the defendant started kissing the victim. When the defendant pulled the victim to her knees and tried to unbuckle her belt, she told him to stop because she did not want to have sexual relations with him. The defendant then went to a closet and got a comforter, which he spread on the floor. He asked the victim to lie down next to him and assured her that nothing was going to happen.

Once the victim was on the comforter, the defendant got on top of her, pinned her hands above her head, held her down and sexually assaulted her. After biting the defendant on the lip, the victim was able to free herself and run into the bathroom. The victim came out of the bathroom and knocked on the bedroom door where the other couple was. She told them that she wanted to go home immediately. The defendant apologized to the victim and begged her not to go to the police.

Later that morning, the victim told her friend that the defendant had raped her. She went to the East Hartford police department and thereafter to Hartford Hospital for an examination. The defendant was subsequently convicted, and this appeal followed.

I

The defendant first claims that the prosecuting attorney committed misconduct when she inquired into the defendant’s misdemeanor criminal record. The defendant claims a certain “line of questions” violated the trial court’s order, particularly, the question regarding “more than one criminal offense,” which improperly elicited evidence that the defendant had been convicted of more than one offense. We are unpersuaded.

Certain additional facts are necessary for the resolution of this issue. The trial court granted the defendant’s motion in limine to preclude the state from inquiring into the defendant’s record of three prior misdemeanor convictions. At the time that the court granted the motion, the court advised the state that it would reconsider the ruling if the defendant opened the door as to his character or if the state could demonstrate that the convictions were otherwise admissible. The court also advised the assistant state’s attorney that, if she intended to get into the misdemeanor convictions, she was first to advise the court so that the jury could be excused during argument on the issue.

While cross-examining the defendant, the assistant state’s attorney inquired into the defendant’s application to become a state licensed security guard. The defendant admitted that he lied in response to the question on the application that asked whether he had ever been convicted of a criminal offense and he also admitted that he had been convicted of a criminal offense in Connecticut. The assistant state’s attorney then asked: “You’ve been convicted of more than one criminal offense in Connecticut?” The trial court sustained an objection to that question. The defendant claims that this line of questioning was a violation of the court’s order precluding inquiry into his misdemeanor criminal record.

The state first asserts that the claim is not reviewable because there was no objection to the line of questioning and the claim does not warrant review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because it is not of constitutional magnitude. Even if we conclude that the claim is reviewable, the state asserts that it complied with the court’s order because the prosecuting attorney, as instructed, advised the court that it intended to delve into this subject during a sidebar conference. The state also argues that the defendant’s failure to raise any objection to the questions after the sidebar conference gives rise to a fair inference that the trial court permitted the state to expose the prior conviction to show that the defendant had previously lied in a sworn statement. The state further asserts that the trial court admitted the evidence as to the issue of credibility and properly instructed the jury that the evidence of the defendant’s conviction was to be used only for assessing his credibility. We agree with the state that the claim is unpreserved and we also decline to afford Golding review.

The state conferred with the trial court prior to asking the challenged questions, as the defendant concedes. There was no objection to the line of questioning until the assistant state’s attorney attempted to establish whether there was more than one criminal conviction in Connecticut. The defendant successfully objected to that particular question and never mentioned that line of questioning or moved to strike those answers. We conclude that the claim with respect to those questions is unpreserved and, therefore, we will not review it.

The defendant does not seek review of this issue pursuant to Golding. Even if we could conceivably view his claim that the assistant state’s attorney’s “blatant disregard” of the trial court’s order violated the defendant’s right to due process as a claim for Golding review, such a claim must fail for lack of a factual predicate.

Nothing in the record indicates that the questions, to which no objections were raised, violated the trial court’s order. To the contrary, because the questions were put after a sidebar conference that the assistant state’s attorney requested, it fairly can be inferred that the assistant state’s attorney obtained the court’s permission to ask the questions. Although we have no record of the sidebar conference, “ [ajbsent any showing by the defendant to the contrary, we must presume the regularity of the proceedings off the record . . . .” State v. Jones, 193 Conn. 70, 89 n.13, 475 A.2d 1087 (1984).

The defendant claims that the assistant state’s attorney committed misconduct in two other respects. First, he claims that the assistant state’s attorney’s question regarding other convictions in Connecticut was misconduct because it improperly elicited evidence that the defendant was convicted of more than one criminal offense. He also asserts that posing the question violated the trial court’s order. We disagree.

There was no answer to the question because of the successful objection. We must presume that the jury followed the trial court’s instructions to rely only on the evidence that was presented. Moreover, questions are not evidence. See State v. Lasky, 43 Conn. App. 619, 635-36, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997); see also In re Michelle G., 52 Conn. App. 187, 190, 727 A.2d 226 (1999). There simply is no factual basis for the claim that evidence of more than one conviction was elicited.

Even if we assume, arguendo, that the question violated the trial court’s order, such a violation does not rise to the level of misconduct. Initially, we note that this question was a logical extension of the line of questions, to which there were no objections, regarding the defendant’s lack of veracity on the employment, application. Multiple convictions would tend to negate any claim that the answer on the application, although untrue, was an oversight of one misdemeanor rather than a deliberate untruth. We discern no bad faith by the prosecuting attorney in putting the question to the defendant. Although a showing of good faith is not dispositive, “the absence of bad faith by a prosecutor is to be accorded considerable weight in a given case . . . .” State v. Binet, 192 Conn. 618, 629, 473 A.2d 1200 (1984).

We conclude that this one instance does not constitute misconduct. Our Supreme Court has given us recent guidance in this area in State v. Satchwell, 244 Conn. 547, 569, 710 A.2d 1348 (1998). In rejecting a claim of prosecutorial misconduct during closing argument, the court stated: “Under all of the circumstances, therefore, we are satisfied that the challenged remarks did not adversely affect the defendant’s right to a fair trial. Furthermore, the defendant has failed to establish that the state’s attorney’s comments were so offensive to the judicial process as to require reversal of the defendant’s convictions, nor has he demonstrated that the remarks were part of a pattern of prosecutorial misconduct for which a new trial is required.” Id. When we apply that analysis here, it is clear that the defendant falls far short of establishing that the challenged question constitutes prosecutorial misconduct.

II

The defendant also claims that the prosecutor committed misconduct when, contrary to the court’s instructions, she argued in summation that the jury should draw a negative inference from the defendant’s inability to recall the last names of certain persons. The defendant claims that that violates the trial court’s order that neither side could make a “missing witness” or “Secondino argument.” We agree with the state that this claim was waived at trial and Golding review is not warranted.

The defendant did not object to the argument with respect to the defendant’s being unable to recall certain last names. Moreover, at the close of final arguments, the trial court, sua sponte, instructed the jury to disregard the comments regarding the defendant’s failure to remember the last name of an individual whom the defendant had identified only as Frank. After the jury was excused, the defendant’s counsel indicated that she was satisfied with the curative instruction regarding the Secondino reference.

The defendant attempts to clothe this unpreserved claim in constitutional garb by asserting that his right to a fair trial was violated by the prosecutor’s closing argument. “A prosecutor’s failure to secure the trial court’s permission to refer to missing witnesses, however, fails to reach constitutional magnitude. See State v. Taylor, 239 Conn. 481, 490, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).” State v. Clark, 48 Conn. App. 812, 831, 713 A.2d 834, cert. denied 245 Conn. 921, 717 A.2d 238 (1998).

Although the trial court did prohibit any Secondino arguments, we conclude that the remarks in question here did not amount to a violation of the trial court’s order. There is no factual basis for the claim because the prosecuting attorney did not ask the jury to draw any adverse inference from the defendant’s failure to call any witness; rather the prosecutor commented on the state’s inability to call the witnesses. A review of the record reveals that the prosecutor’s reference to the missing witnesses was not for the purpose of asking the jury to draw an adverse inference. The prosecutor’s remarks were made for the purpose of drawing the jury’s attention to the defendant’s credibility. The state did not argue that the witnesses’ testimony would have contradicted that of the defendant, but argued that, contrary to the defendant’s testimony, there were no witnesses who could testify. Therefore, the prosecutor’s comments were appropriate.

Again, even if we were to view the evidentiary claim that the prosecutor violated the trial court’s order under the guise of prosecutorial misconduct, the defendant cannot prevail. “We will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . . [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument.” (Citation omitted; internal quotation marks omitted.) State v. Rogers, 50 Conn. App. 467, 477-78, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998). “[Moreover . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial. . . .” (Internal quotation marks omitted.) State v. Cox, 50 Conn. App. 175, 179, 718 A.2d 60, cert. granted on other grounds, 247 Conn. 928, 719 A.2d 1170 (1998).

Here, the argument to the jury, even in conjunction with the question regarding other convictions fails to evince a pattern of egregious conduct. The defendant, in essence, asserts that any violation of a trial court’s order by a prosecutor is misconduct, per se, and necessarily violates the defendant’s right to a fair trial. To the contrary, “[i]n determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Aponte, 50 Conn. App. 114, 126, 718 A.2d 36, cert. granted on other grounds, 247 Conn 926, 719 A.2d 1169 (1998).

We conclude that the defendant has failed to establish a violation of the trial court’s order or prosecutorial misconduct sufficient to trigger Golding review. The conduct to which the defendant points is not egregious, nor is a pattern of misconduct evident.

The judgment is affirmed.

In this opinion the other judges concurred.

      The defendant also claims that the trial court improperly denied his motion for a new trial. In that motion, the defendant alleged that the trial court improperly admitted evidence that he had been convicted of more than one criminal offense. This issue is subsumed in our resolution of the defendant’s other claims; therefore, we will not address it separately.

       Prior to defense counsel’s objection, the following colloquy occurred between the assistant state’s attorney and the defendant:
      “Q. Sir, does question number seven ask if you’ve ever been convicted of a criminal offense in this state or elsewhere?
      “A. Yes.
      “Q. And what did you answer to that?
      “A. No.
      “Q. And that was not true, was it?
      “A. Yes.
      “Q. It was true?
      “A. No.
      “Q. It was not true. You have been convicted of a criminal offense.
      “A. Yes.
      “Q. In Connecticut?
      “A. Yes.”

       “In State v. Golding, [supra, 213 Conn. 239-40], [our Supreme Court] reformulated the standard announced in State v. Evans [165 Conn. 61, 327 A.2d 576 (1973)], for appellate consideration of constitutional claims that were not preserved at trial. [Our Supreme Court] stated that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . [Our Supreme Court] noted that [it] would remain free to dispose of the claim by focusing on whichever condition is most relevant [in] the particular circumstances.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 768 n.26, 670 A.2d 276 (1996).

         Practice Book § 60-5 provides in relevant part that “the court shall not be bound to consider a claim unless it was distinctly raised at the trial. . . .”

       The argument complained of is as follows: “You should also consider that the defendant either couldn’t or wouldn’t give us the name of the various people he named in his defense. For example, this friend who also took him to church named Frank, I think he told me something to the effect that it was not for him to know what his last name was. Well, do you think maybe he didn’t want me to know the last name so that I couldn’t find these people and bring them in and testify? Think about that ladies and gentlemen.”

       “The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. State v. Santangelo, 205 Conn. 578, 596, 534 A.2d 1175 (1987); State v. Anderson, 212 Conn. 31, 41, 561 A.2d 897 (1989). [T]he two requirements for a Secondino adverse inference instruction against a party are that the witness: (1) is available; and (2) could reasonably be expected, by his relationship to the party or the issues, to have peculiar or superior information material to the case that, if favorable, the party would produce. Hines v. St. Vincent’s Medical Center, 232 Conn. 632, 641, 657 A.2d 578 (1995) (Borden, J., concurring); State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Shashaty, 205 Conn. 39, 43, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); Secondino v. New Haven Gas Co., [147 Conn. 672, 165 A.2d 598 (1960)]. The party seeking the adverse inference instruction bears the burden of proving both prongs of the test, and the trial court must make a preliminary determination that there is evidence in the record to support these elements.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 813-14, 717 A.2d 1140 (1998).

       The defendant also claims that the prosecutor was argumentative in her questioning of the defendant and improperly repeated his answers to some questions. The court made a “strong suggestion” that the prosecuting attorney not repeat the defendant’s answers and if she disagreed with his answer, “not to demonstrate any revulsion toward those answers. That’s best reserved for argument.” The defendant asserts that this amounts to egregious conduct, but cites to no authority and offers no legal analysis in support of his contention. We fail to see how this claim involved anything more than the usual give and lake of any hotly contested trial. Not infrequently, trial courts are called on to rein in exuberant counsel, but such intervention does not necessarily bespeak misconduct. The defendant does cite State v. Williams, 204 Conn. 523, 541, 529 A.2d 653 (1987), in support of his claim that the prosecutor improperly expressed her opinion of the victim’s credibility by arguing to the jury that she had “yet to see a witness’ statement that didn’t contain something that we w'ould like to see in there, that something wasn’t left out.” There was no objection to this statement. We conclude that the statement could fairly be read not as an endorsement of the victim’s credibility, but as a general observation that seldom do oral or written statements about events incorporate every single detail of the events. As discussed previously, this would hardly rise to the level of misconduct.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. THYATIRA U. DRAKEFORD
    (AC 18400)
    Lavery, Landau and Spear, Js.
    Argued March 23
    officially released July 20, 1999

      M. Donald Cardwell, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael Gailor, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Thyatira U. Drakeford, appeals from the judgment of conviction, rendered after her guilty plea, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). On appeal, the defendant claims that the trial court abused its discretion in denying her motion to withdraw her guilty plea. We affirm the judgment of the trial court.

The following facts are necessary for our review of this appeal. On April 21, 1995, the defendant and the victim, Cherry Rodriquez, were patrons at Club Mirage in Rocky Hill. Prior to that date, while they were in high school together, the defendant and the victim had argued. The animosity between the two women had lingered. While they were at Club Mirage, the defendant and the victim encountered one another and exchanged words. During the course of their exchange, the defendant slashed the victim’s face with a sharp object, causing her serious injury. The defendant fled the scene but was later apprehended and confessed to having injured the victim. The defendant pleaded not guilty to the information.

Prior to trial, the defendant and the state entered into a plea agreement pursuant to which the defendant would plead guilty to assault in the first degree in return for a sentence of twenty years, suspended after eight years, with five years probation and the opportunity to argue for less prison time. On December 8, 1997, the trial court canvassed the defendant regarding her plea. During the course of the canvass, the defendant told the trial court that she understood that she was waiving her constitutional rights and that she understood the charges against her. When asked if she agreed with the facts related to the charge, the defendant admitted to having slashed the victim’s face, but claimed that she had acted in self-defense. The defendant told the trial court that she was pleading guilty because of certain statements that she had given to the police and because she did not think she would prevail at trial. The trial court told the defendant that self-defense was a total defense to the charge of assault in the first degree. The defendant also said that she did not want to proceed to trial. The trial court indicated that the defendant’s plea could be accepted under the Alford doctrine. The defendant affirmatively responded that she understood all of the rights she was waiving by pleading under the Alford doctrine. The trial court accepted the defendant’s guilty plea, set a date for sentencing and informed her that she could not come back to court with another attorney or by herself and withdraw the plea unless she had a valid legal reason to do so.

Prior to her being sentenced, the defendant retained private counsel, who filed a motion to withdraw her guilty plea. In her motion, the defendant claimed that her plea was accepted without substantial compliance with Practice Book § 39-19 because she did not fully understand the nature of her right to persist in her plea of not guilty and her right to be tried by a jury or a judge. The defendant also claimed that her plea was not voluntary because she believed that no effective defense could be offered on her behalf and that her only alternative was to relinquish her right to trial and to enter a guilty plea. Also, the defendant claimed that the trial court did not ask whether her willingness to plead guilty resulted from prior discussions between the prosecutor and the defendant or her counsel as required by Practice Book § 39-20.

The trial court held a hearing on the defendant’s motion to withdraw on March 11, 1998. After hearing testimony from the defendant and her brother, Jamie Scott, and arguments of counsel, the trial court denied the defendant’s motion. During cross-examination by the state, the defendant admitted that she had discussed self-defense with her counsel prior to making her plea. The court then imposed a sentence of fifteen years, suspended after five years, with five years of probation. The defendant appealed, claiming the trial court abused its discretion in denying her motion to withdraw because she did not understand the law in relation to the facts and, therefore, her plea was not voluntarily and intelligently made. The defendant argues that the record is devoid of evidence that the trial court or her attorney informed her of the elements of self-defense.

“A guilty plea, once accepted, may be withdrawn only with the permission of the court. State v. Rish, 17 Conn. App. 447, 451, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, 493 U.S. 818, 110 S. Ct. 72, 107 L. Ed. 2d 38 (1989). The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § 721 [now § 39-27], State v. Collins, 207 Conn. 590, 597, 542 A.2d 1131 (1988); State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983). Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused. State v. Crenshaw, [210 Conn. 304, 308-309, 554 A.2d 1074 (1989)]; Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974).” State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140, cert. denied, 215 Conn. 818, 576 A.2d 547 (1990).

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983). By entering a guilty plea, the defendant waives his constitutional rights to a jury trial and to confront his accusers as well as his privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 288, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Wright, 207 Conn. 276, 542 A.2d 299 (1988). It is well settled that the record must affirmatively disclose that the defendant’s choice was made intelligently and voluntarily. State v. Childree, supra, 120.” (Internal quotation marks omitted.) State v. Ramos, 23 Conn. App. 1, 3-4, 579 A.2d 560 (1990).

The essence of the defendant’s claim on appeal is that her guilty plea was not made voluntarily and intelligently because neither the trial court nor her attorney informed her of the elements of self-defense and, therefore, she did not understand the law in relation to the facts. The defendant, however, has not cited any law to support her contention that the trial court must explain the elements of a defense to a criminal defendant during its canvass of the defendant prior to accepting a guilty plea. The defendant also has not brought to our attention any facts in the record that would lead us to conclude that her trial counsel did not explain the elements of self-defense to her. Indeed, the record indicates that she discussed self-defense with her counsel. See footnote 8. When the trial court told her that self-defense was a total defense to the charge, she said that she understood. In response to the trial court’s canvass, the defendant indicated that she had had enough time to discuss her case with her attorney, a public defender, and that she was satisfied with the legal advice she received. As the defendant correctly noted in her brief to this court, the trial court may presume that defense counsel has explained the nature of the charges to the defendant. State v. Alicea, 41 Conn. App. 47, 56, 674 A.2d 468 (1996). Nothing presented to us by the defendant leads us to conclude that the trial court improperly relied on that presumption.

On the basis of our review of the record, we conclude that the trial court fulfilled the requirements of Practice Book §§ 39-19 and 39-20 when it accepted the defendant’s guilty plea pursuant to the Alford doctrine. The trial court canvassed the defendant in open court. The defendant said that her plea was voluntary and not the result of force or threats. The trial court explained to the defendant the nature of the charge of assault in the first degree, the maximum twenty year sentence and the mandatory minimum five year sentence required by the statute, that the defendant had the right to plead not guilty or to persist in that plea, the right to be tried by a jury or a judge, the right to confront and cross-examine witnesses and the right not to incriminate herself. In addition, the trial court explained that the defendant had the right to have the state prove her guilt beyond a reasonable doubt and to present a defense of any kind and that self-defense was a total defense to the charge. When asked, the defendant said that she understood all of the questions that were put to her and that she had no questions.

At the hearing on her motion to withdraw her guilty plea, the defendant testified that she, in fact, had lied about understanding what was going on during the canvass because she was scared and confused. The trial court found the defendant’s testimony to be less than credible. The defendant is a high school graduate, who has worked as a claims representative for one of the major insurance companies in this state. During the canvass, the defendant had no trouble speaking up when asked if she agreed with the facts as the trial court represented them. She told the court that she had, in fact, assaulted the victim but that she had done so in self-defense. The trial court found the defendant to be the type of person who understood the questions put to her and who would have spoken up if she felt that she was forced, threatened or dissatisfied.

The defendant claims that the trial court failed to relate the law with respect to self-defense to the facts of this case. Such explanations are to be given by defense counsel. See State v. Torres, 182 Conn. 176, 184, 438 A.2d 46 (1980). The trial court is not to assume the role of defense counsel unless it is constitutionally required to do so. See State v. Gilnite, 202 Conn. 369, 383-84, 521 A.2d 547 (1987); State v. Brown, 18 Conn. App. 716, 721, 559 A.2d 1179 (1989). The language “an understanding of the law in relation to the facts” pertains to the elements of the crime with which the defendant is charged, not the elements of a defense to the crime. State v. Wideman, 38 Conn. App. 581, 585-87, 663 A.2d 409 (1995); see State v. Childree, supra, 189 Conn. 119-21.

We conclude, therefore, that the trial court properly canvassed the defendant and did not abuse its discretion in denying the defendant’s motion to withdraw her guilty plea, which the trial court found to be voluntarily and intelligently made.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such iryury to such person or to a third person by means of a deadly weapon or a dangerous instrument. . . .
      “(b) Assault in the first degree is a class B felony provided (1) any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court . . . .”

       The following colloquy took place between the trial court and the defendant during her plea canvass.
      “The Court: All right. And you’re employed at the present time?
      “The Defendant: Yes.
      “The Court: Where are you working?
      “The Defendant: At the U.S. Health Care.
      “The Court: And what are you doing there?
      “The Defendant: I’m a claims/benefit specialist.
      “The Court: How long have you been employed in that capacity?
      “The Defendant: For almost six months.
      “The Court: All right. How far did you go in school, ma’am?
      “The Defendant: I graduated high school.
      “The Court: All right. Are you presently under the influence of any alcohol, drugs or medication as you stand before me today?
      “The Defendant: No.
      “The Court: Have you had enough time to discuss what you’re doing today with your lawyer?
      “The Defendant: Yes.
      “The Court: Are you satisfied with the legal advice that you’ve received?
      “The Defendant: Yes.
      “The Court: Are you entering your plea of guilty here voluntarily and of your own free will?
      “The Defendant: Yes.
      “The Court: Are you being forced or threatened in any way by any person to cause you to enter this plea today?
      “The Defendant: No.
      * ** *
      “The Court: All right. Do you understand by pleading guilty that you’re giving up certain rights. You’re giving up your right to continue to plead not guilty and to require that the state prove your guilt beyond a reasonable doubt at a trial before a judge or a jury while you’re represented by your lawyer. You’re giving up your right to confront and cross-examine witnesses, the right to present any kind of defenses that you might have had to this and also the right not to be a witness against yourself. Do you understand you’re giving up those various rights here today by pleading guilty?

        “The Defendant: Yes.
      “The Court: The state would have had to have proven that with the intent to cause serious physical injury to another person that you caused such injury to such person by means of a dangerous instrument. Do you understand that’s what they’d have to prove beyond a reasonable doubt?
      “The Defendant: Yes.
      “The Court: That is punishable by a sentence a maximum of twenty years, but there is a minimum sent once of five years that cannot be suspended. Do you understand that?
      “The Defendant: Yes.
      “The Court: Do you understand that although that is the maximum, twenty years under this indicated sentence from the court is obviously being somewhat limited. The most that you can get under this agreement at the time of sentencing is twenty years suspended after you serve eight years in prison followed by five years probation with whatever conditions I might want to put on the probation. Your lawyer, obviously, is going to be arguing for less. But once again, there is a five year minimum mandatory on that. So really what we’re arguing over is between five to eight years. Do you understand that?
      “The Defendant: Yes.
      “The Court: Do you have any questions at all about that?
      “The Defendant: No.
      “The Court: All right. You heard a summary of the facts. This was a straight guilty plea. Do you agree essentially with those facts or substantially with those facts?
      “The Defendant: No.
      “The Court: All right. Well, what is it you disagree with? I mean are you disagreeing that you actually caused the injury to her?
      “The Defendant: No, I am not disagreejing] that I caused the injury to her. I’m disagreeing that she made it seem like she doesn’t—she didn’t do anything to me. I was only protecting myself. That’s why I did it. I’m not saying that I didn’t do it because I did do it. I’m saying that I did it because I was acting in self-defense.
      “The Court: Well, see, self-defense would be a total defense to being convicted on this. I mean I just told you what the state would have to prove. That the slate would have to prove that you intended to cause serious physical injury to her and that you caused it by means of a dangerous instrument.
      “The Defendant: I understand that. But also my statement that I did not make is going to incriminate me, so I know I cannot win. So I’m going to accept the—
      “The Court,: It sounds like—
      “The Defendant:—twenty after eight.

        “The Court:—it sounds like a part of an Alford plea in a way. It sounds like she’s saying that she’s pleading guilty, she does not agree with everything that the state claims because she feels she did this in some kind of a self-defense. But based on the nature of the proof and the statements she made to the police, she feels that she’s better off pleading guilty under this arrangement, rather than going to trial, because she feels if she went to trial she probably would be found guilty and would probably receive a more severe sentence. Is that—that basically it?
      “The Defendant: That’s exactly right.
      “The Court: Well, I think it should be accepted under the Alford.

      “[Defense Counsel]: Could it be accepted—
      “The Court: All right.
      “[Defense Counsel]:—under the Alford doctrine?
      “The Court: It can be accepted under that. Do you understand that we’re going to continue this for sentencing? And they’re going to order a presentence report. And you’re going to be interviewed by a probation officer. The court is going to have some more material at the time of sentencing. But you can’t come back here on that day with [defense counsel], by yourself or with another lawyer and decide to change your mind and now you want a trial. That can only be done for a valid legal reason and with the permission of the court. Do you understand that?
      “The Defendant: Yes.
      “The Court: Obviously, if I felt the sentence wasn’t adequate and you should receive a greater sentence than what I’ve indicated, I would allow you to withdraw your plea and you could still have a trial. Do you understand that?
      “The Defendant: Yes.
      “The Court: And if you’re not a citizen of the United States, do you realize that conviction can have the consequences of deportation, exclusion from admission to the United States or denial of naturalization. Do you understand that?
      “The Defendant: Yes.
      “The Court: Have you understood the questions I’ve asked you, ma’am?
      “The Defendant: Yes.
      “The Court: Do you have any questions at all you want to ask me or anything you want to ask your lawyer before I accept your plea?
      “The Defendant: No.
      “The Court: Either lawyer know any reason why the guilty plea should not be accepted or anything they feel the court should place on the record?
      “[Assistant State’s Attorney]: No, sir.
      “[Defense Counsel]: No.
      “The Court: The plea is found to be voluntary and understandably made with the assistance of competent counsel. There’s a basis for it. I will accept it. A finding of guilty is made.”

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The defendant was represented by a public defender in the prior proceedings.

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       The defendant did not raise this issue on appeal.

       Practice Book § 39-20 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       The following exchange took place during the defendant’s cross-examination.
      “[Assistant State’s Attorney]: Didn’t you tell [the assistant public defender] up front that you had a defense of self-defense?
      “[The Defendant]: Yes.
      “[Assistant State’s Attorney]: Okay. So you talked to him about that, right?
      “[The Defendant]: Yes.
      “[Assistant State’s Attorney]: Okay. And you talked to him about that in 1996, right?
      “[The Defendant]: I don’t understand what you’re saying.
      “[Assistant State’s Attorney]: You talked to him about your claim of self-defense in 1996?
      “[The Defendant]: Yes.
      “[Assistant State’s Attorney]: Okay. So he knew and you told him what the witnesses were, right?
      “(The Defendant]: I don’t remember.

        “[Assistant State’s Attorney]: Okay. You told him who was at the club with you, didn’t you?
      “[The Defendant]: He knew it was me and my cousin. As far as other witnesses, I don’t remember.
      “[Assistant State’s Attorney]: Okay. You don’t remember if you told him about anybody else?
      “[The Defendant]: I don’t remember.
      “[Assistant State’s Attorney]: Olcay. But you told him at least you and your cousin were there?
      “[The Defendant]: Yes.
      “[Assistant State’s Attorney]: Okay. And you told him that it was your claim that you had injured this woman in the action of—in the act of self-defense, right?
      “[The Defendant]: Yes.
      “[Assistant State’s Attorney]: Okay. So he knew all that right up front?
      “[The Defendant]: Yes.
      “[Assistant State’s Attorney]: Okay. Now, when you pleaded guilty on December 8, 1997, you told the court that you didn’t agree with the facts, correct? . . .
      “[Assistant State's Attorney]: You told the court that you didn’t agree with the facts read by the prosecutor, right?
      “[The Defendant]: Yes.
      “[Assistant State’s Attorney]: You told the court that you were acting in self-defense, right?
      “[The Defendant]: Yes.
      “[Assistant’s State’s Attorney]: Okay. And the court indicated to you that self-defense would be a total defense to be convicted of the crime of assault in the first degree, didn’t it?
      “[The Defendant]: Yes, but he didn’t elaborate on that.
      “[Assistant State’s Attorney]: And in response to that you indicated that, T understand that. But also a statement that I did not malee is going to incriminate me so I know I cannot win.’ Do you remember making that statement?
      “[The Defendant]: I was—I was repeating what was told to me by [the assistant public defender].
      “[Assistant State’s Attorney]: Do you remember making that statement in court?
      “[The Defendant]: Yes.”


author: DUPONT, J.

text:
    TERRY ANN WILLIAMS v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 17948)
    Foli, Landau and Dupont, Js.
    Argued March 3
    officially released July 20, 1999

      Philip L. Steele, for the appellant (plaintiff).

      Charles Krich, with whom, on the brief, was Philip A. Murphy, Jr., commission counsel, for the appellee (named defendant).
   DUPONT, J.

This appeal arises out of an employment dispute between the plaintiff employee and her employer, the defendant Shawmut Bank Connecticut N.A. (Shawmut), now Fleet Bank of Connecticut. The plaintiff, Terry Ann Williams, claims that her employment was terminated in violation of General Statutes § 46a-60 (a) (1), which prohibits discrimination based on present or past history of mental disorder, and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., due to “an adjustment disorder with depressed mood as a result of harassment on the job.” The plaintiff filed a complaint with the named defendant, the commission on human rights and opportunities (commission), which was dismissed by the commission pursuant to General Statutes § 46a-82 (e) on the ground that the plaintiffs complaint had not been filed within 180 days of the alleged discriminatory act. The plaintiff appealed from the commission’s decision to the Superior Court, which upheld the dismissal. We affirm the judgment of the trial court.

The plaintiff raises several issues on appeal relating to the timeliness of the filing with the commission and whether an untimely filing would deprive the commission of subject matter jurisdiction.

The plaintiffs complaint to the commission, dated February 10, 1994, was filed with the commission on February 14, 1994, and alleged that the plaintiff was employed by Shawmut from October, 1979, until January 29, 1991. She was given a written warning about her work by Shawmut on January 28, 1991, worked January 29, 1991, called in sick on January 30, 1991, and never returned to work thereafter. The plaintiff filed a workers’ compensation claim alleging work-related stress, which she claimed commenced on January 28, 1991. She also claimed disability benefits, alleging a disablement beginning January 29, 1991. After she stopped working, Shawmut advised her on March 22, 1991, that her job had been filled and that she had been replaced. On April 15,1991, the plaintiff refused an offer of another position at the bank at her former pay rate. She continued to receive a full salary until May 21,1991. The plaintiffs disability payments ceased on January 30, 1993. The plaintiff began employment with another employer, Colt Firearms, on January 4,1993. She settled her workers’ compensation claim against Shawmut on July 7,1993, and received $17,000. The plaintiff received a letter from Shawmut on August 3, 1993, advising her of her federal rights to continue health insuran ce coverage. The letter noted that her termination of employment date was January 23, 1993. On October 15, 1993, the plaintiff wrote to Shawmut requesting that she be allowed to return to work. Shawmut, by letter dated December 17, 1993, indicated that more time was needed to respond to her request and agreed not to asseit a “time based or defense of statute of limitations which might arise after your initial claim letter.”

The trial court concluded that the employer’s agreement as expressed in its letter of December 17, 1993, did not prevent the commission from conducting a review of the timeliness of the plaintiffs complaint and that the doctrine of equitable tolling of the statute should not be invoked to save the plaintiffs complaint from dismissal. Accordingly, the trial court dismissed the plaintiffs appeal.

The plaintiff sought an articulation, claiming that the trial court had not determined the issues presented to it. The court articulated its memorandum of decision, and stated that it did not decide whether the 180 day limitation of § 46a-82 (e) was jurisdictional because even if it assumed the time limitation was not jurisdictional and, therefore, subject to the application of the doctrine of equitable tolling, that doctrine should not be invoked on the facts. The court further stated that the timeliness of the claim is not supported by the record, that the plaintiffs claim that she remained an employee of Shawmut from January, 1991, through October, 1993, is not supported by the evidence, and that the commission, on the substantial evidence presented, correctly determined that the plaintiff was not an employee in October of 1993 when she attempted to file a claim to return to work at Shawmut.

The plaintiffs primary argument is that even if her complaint were filed untimely, the commission did not lose jurisdiction and her claim could still be considered because the limitations period should be tolled on equitable grounds, or because Shawmut had waived the defense of the statute of limitations or is estopped from raising it.

Section 46a-82 (e) provides that any complaint must be filed with the commission within 180 days after the alleged act of discrimination. The question first to be determined is whether the time limitation of that section is jurisdictional. See W. v. W., 248 Conn. 487, 493, 728 A.2d 1076 (1999). If it is a jurisdictional hurdle for the plaintiff to overcome because of an untimely filing, she would not be entitled to claim a waiver of the statutory time limits, or equitable tolling, and the case must be dismissed. We conclude that § 46a-82 (e) is a mandatory time limitation that ousted the commission of jurisdiction.

The jurisdictional issue has not yet been specifically decided by our Supreme Court, but existing decisions substantiate our conclusion. On the basis of the facts as found by the trial court and as they appear in the record, we note that the plaintiffs complaint to the commission was not filed within 180 days after the alleged act of discrimination. The act of discrimination of which the plaintiff complains is her “harassment on the job.’’’ (Emphasis added.) She terminated her employment in January, 1991, was replaced in March, 1991, refused another position with Shawmut in April, 1991, and received no regular salary after May 21, 1991. She received disability payments for two years and began employment with another company in January, 1993. Her complaint was filed on February 14, 1994, more than 180 days after any alleged act of discrimination could have occurred.

A number of cases, while not using the word “jurisdiction,” have called the period of time in which to file a complaint with the commission as provided in § 46a-82 (e), formerly General Statutes § 31-127, vital to a legitimate complaint or necessary in order to obtain redress for an injury suffered during that time period. State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 472, 559 A.2d 1120 (1989); Veeder-Root Co. v. Commission on Human Rights & Opportunities, 165 Conn. 318, 330-31, 334 A.2d 443 (1973); Scovill Mfg. Co. v. Commission on Civil Rights, 153 Conn. 170, 175, 215 A.2d 130 (1965).

Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 674 A.2d 1300 (1996), unlike the cases previously mentioned, discusses other sections of the same legislation that is the subject of the present case in terms of jurisdiction. We conclude that Angelsea Productions, Inc., is determinative of the issue we must decide. The court in that case concluded that General Statutes §§ 46a-83 (b) and 46a-84 (b) contain mandatory deadlines, which, if not complied with, oust a tribunal of jurisdiction. The opinion cites Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764-65, 628 A.2d 1303 (1993), and Bridgeport v. Debek, 210 Conn. 175, 188, 554 A.2d 728 (1989), with approval. Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, supra, 700 n.13. The legislature, in imposing a time limitation, can manifest an intent to make a time constraint mandatory and not waivable; that is, the legislature’s intent can be found to impose a subject matter jurisdictional requirement on a statutory right. Ambroise v. William Raveis Real Estate, Inc., supra, 764-65. A legislative provision for a time constraint can be a subject matter jurisdictional requirement if that is the apparent intent of the legislature. See Kim v. Magnotta, 249 Conn. 94, 103, 733 A.2d 809 (1999).

The factors that led to the court’s conclusion in Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, supra, 236 Conn. 681, that the time limits of §§ 46a-83 (b) and 46a-84 (b) were jurisdictional were the use of the words “must” or “shall” in the statutory language, the prior interpretation of the words “must” or “shall” in other sections of the same legislation as mandatory, the essence of the thing to be accomplished by the statute requires promptness or a time limitation, the purpose of the statute would be compromised without a time limitation, the time limitation is contained within the statute that establishes the remedy, the statute provides a cause of action unknown to the common law, and the scope of the legislation manifests a legislative intent to make the time constraints mandatory.

The reasoning of Angelsea Productions, Inc., applies to § 46a-82 (e) as well as to §§ 46a-83 (b) and 46a-84 (b). The “entire discriminatory practice complaint procedure . . . can be implemented only through strict enforcement of the time limits.” (Citations omitted; emphasis added.) Id., 692. The entire complaint procedure includes § 46a-82 (e), which establishes the methodology for beginning an action to prohibit discriminatory practices and creates the right to claim aggrievement for them and the right to relief from them.

Cases involving time constraints in legislation other than the discriminatory practice complaint procedure, §§ 46a-82 through 46a-96, also support our conclusion that § 46a-82 (e) is jurisdictional. When time constraints or limits relate to the essence of the purpose of legislation, which legislation is unknown to the common law, and effectuate the legislative intent, the time limits mandate compliance and are jurisdictional. Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 766-67; Dugan v. Milledge, 196 Conn. 591, 595, 494 A.2d 1203 (1985); see also Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978); Koskoff v. Planning & Zoning Commission, 27 Conn. App. 443, 446-48, 607 A.2d 1146, cert. granted, 222 Conn. 912, 608 A.2d 695 (1992), appeal withdrawn November 10, 1992; Cocivi v. Plan & Zoning Commission, 20 Conn. App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). Where a statute creates a right that did not exist at common law and limits the time for enforcement of the right, the time fixed attaches to the right and is a limitation on the liability as well as the remedy. Davenport v. Quinn, 53 Conn. App. 282, 292, 730 A.2d 1184 (1999).

All of the factors discussed in Angelsea Productions, Inc., and the previously cited cases are present here, and we conclude that because the plaintiff did not file her complaint within 180 days after the alleged act of discrimination, the commission had no jurisdiction to entertain the plaintiffs complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46a-82 (e) provides in relevant part: “Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . . .”

       This question is different from that decided in Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 248 Conn. 392, 727 A.2d 1268 (1999). After oral argument in the present case, our Supreme Court held in Angelsea Productions, Inc., that the time limitations imposed on the commission were not jurisdictional because of the enactment of Public Acts 1996, No. 96-241, codified as General Statutes §§ 46a-82b (a), 46a-82d (a) and (b), and 46a-82e. Id., 405. We are dealing in this case with the jurisdiction of the commission over a complaint that has been filed untimely by a claimant, not the jurisdiction of the commission to proceed in cases in which the commission has failed to meet the statutory time requirements imposed on it. This case is governed by § 46a-82 (e), rather than the sections involved in Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, supra, 392. Section 46a-82 (e) was not amended by Public Act 96-241, nor does the legislative history of that statute indicate any legislative intent to affect anything other than the jurisdiction of the commission over actions in which the commission has failed to act timely. See 39 H.R. Proc., Pt. 15, 1996 Sess., pp. 5185-5201.

       The plaintiff claims that Shawmut’s letter of December 17, 1993, was a waiver by it of the 180 day time limit. By 1 hat date, the time to file a complaint had long expired. Furthermore, the letter applied only to a limitations defense that might arise after the plaintiffs letter of October 15, 1993.

       The case of Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 362 A.2d 1359 (1975), did not resolve the issue of whether § 46a-82 (e) was jurisdictional, although the trial court had determined that the commission lacked jurisdiction because the complaint was not timely filed. The Supreme Court instead upheld the trial court’s dismissal of the plaintiffs action on the basis that the death of the complainant employee ousted the court of jurisdiction.

       The cases cited in the text are to be distinguished from those cases dealing with subject matter jurisdiction where the issue is whether the particular tribunal has authority to act to decide the class of case, and there is no legislative time constraint. See Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999); see also W. v. W., supra, 248 Conn. 493.

       Although we affirm the trial court’s judgment of dismissal on the ground that the commission lacked jurisdiction, and need not discuss the basis on which the trial court dismissed the case, namely, the failure of the plaintiff to prove either waiver of the time requirement or equitable tolling; see Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975); we note that the plaintiff has not shown a meaningful waiver. Whether Shawmut agreed not to defend the plaintiffs complaint against it by raising a timeliness defense is irrelevant. It is the commission that must determine if the complaint is timely, not the employer of the complainant.
      There is little or no merit to the plaintiffs claim of equitable tolling. Nothing in the record suggests that her employer caused her to refrain from filing a timely complaint. We also note that she has been represented by counsel since January or February, 1991.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. PATRICK J. FITZGERALD
    (AC 16687)
    O’Connell, C. X, and Sullivan and Dupont, Js.

      Argued October 26, 1998
    officially released July 20, 1999

      Michael W. Murray, for the appellant (defendant).

      Lisa Herskowitz, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and John Cashmon, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, Patrick J. Fitzgerald, appeals from the judgment of conviction, rendered after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). Because this was the defendant’s third conviction of the same offense within ten years, he was subject to the enhanced penalties of § 14-227a (h) (3). Due to his previous convictions, special arraignment procedures were mandated by Practice Book §§ 36-14, 37-10 and 37-11, formerly §§ 619, 647 and 648, respectively. The defendant filed a motion for a new trial claiming a violation of Practice Book § 37-11 that was denied. The sole issue on appeal is whether a new trial is required when the trial court is apprised of part B of the information prior to the trial. We answer in the affirmative and, accordingly, reverse the judgment of the trial court.

The relevant procedural history is as follows. The defendant, in a two part information, was charged in part A with operating a motor vehicle while under the influence of intoxicating liquor and in part B with having two prior convictions of the same statute. After the defendant elected to be tried by the court, but before the trial began, the state’s attorney informed the trial court that there was a part B of the information. After the trial court found the defendant guilty of the crime charged in part A of the information, the defendant raised the issue of this case relating to the disqualification of the trial court and asked for a new trial. The defendant argues that informing the trier of fact of the existence of part B of the information is a violation of the spirit of Practice Book § 37-11 and improperly informs the trial court of the defendant’s prior convictions.

The state treats this as a belated claim of judicial disqualification and urges us to reject it under the precedent of State v. Kohlfuss, 152 Conn. 625, 628, 211 A.2d 143 (1965). The state argues that the defendant should have filed a motion to disqualify the judge, and, since no such motion or judicial bias claim was raised before the trial began, the violation of § 37-11 was waived and should not be reviewed on appeal. We are not persuaded.

Due to the potential for a deprivation of constitutional rights when a trial is not conducted before an impartial tribunal and the obvious implications of bias inherent in the mistake of informing the trier of the existence of a part B information prior to a trial to the court, we examine the claim under the plain error doctrine. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987); State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); State v. Ralph, 17 Conn. App. 247, 249, 551 A.2d 774 (1989); Barca v. Barca, 15 Conn. App. 604, 606, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988).

When proof of a defendant’s prior conviction is used to enhance the punishment for a contemporaneous conviction of a substantive offense, our rules of practice require the state to draft the information in two parts. State v. Jones, 234 Conn. 324, 339, 662 A.2d 1199 (1995). “In a two-part information, the proof of part [A] relates only to the commission of the crime charged . . . not until part [B] of the information has been determined does the penalty attach to the crime proven under part [A].” State v. LaSelva, 163 Conn. 229, 233-34, 303 A.2d 721 (1972). It is important to recognize that a two part information does not charge one crime in the first part and a second crime in the second part; there is only one information charging one crime, and the second part is presented for sentence enhancement purposes only. Id.

Practice Book § 37-11 requires that part B of the information must be read to the defendant “in the absence of the judicial authority . . . .” (Emphasis added.) At this point, a defendant has not yet pleaded or made his election as to whether he will be tried by a judge or jury. The defendant’s pleas and elections both may be affected by the knowledge that he may be facing severely enhanced penalties because of the exposure to part B. The only reasonable ground for requiring part B to be read outside of the presence of the judicial authority is to prevent the judicial authority from being prejudiced by the information regarding prior convictions in the event the defendant elects a trial to the court. Compliance with this rule helps avoid bias and prejudice and ensures a fair trial. Because it is for sentence enhancement purposes only, a part B information is not to be presented to the trier of fact, whether it is a judge or jury, before trial because it is entirely conceivable that the trier, even unconsciously, could determine the factual questions presented in part A based upon its knowledge of part B.

The requirements we discuss here are not a mechanism recently devised by the judges. The procedure became part of our substantive case law three quarters of a century ago when our Supreme Court adopted the procedure prescribed by an English statute. State v. Ferrone, 96 Conn. 160, 175, 113 A. 452 (1921). After describing the two part information system, the Ferrone court declared that “[i]t cannot be believed that an accused man would ever have a fair trial, resulting in a verdict not affected by prejudice” if the two part procedure was not followed. Id., 173. This procedure ensures a fair judgment of whether the defendant committed the current offense with which he is charged. The trier cannot be influenced by the fact that the defendant previously had been convicted of the same crime. Id.

In Ferrone, our Supreme Court established the bright line rule that to avoid the possibility of prejudice when an information includes a defendant’s history of prior convictions as a basis for increasing a sentence, the trier of fact that hears the evidence concerning the current charge cannot be advised of any prior convictions until after it has first decided the issue of guilt as to the current charge. Id.

“It follows that, until the verdict of the juiy on the principal issue has been rendered, no knowledge of the alleged previous convictions should reach them . . . by reading that part of the information in which they are recited . . . .” Id., 174-75. In an unusual display of pride, the Supreme Court has expressly referred to the kudos that Connecticut’s two part procedure has received from other jurisdictions. State v. LaSelva, supra, 163 Conn. 233 n.4.

In State v. Jones, supra, 234 Conn. 324, our Supreme Court reiterated that mention of the defendant’s prior criminal conduct to the trier of fact, a jury in that case, was manifestly unjust. “[T]he probability of a jury inferring a predisposition to commit the crime with which the defendant stands charged is logically increased when the evidence pertains to misconduct similar to that involved in the case on trial . . . .” Id., 345. “[N]o reasonable man can doubt that the [trier of fact] not only may have been, but most probably was, so unfavorably influenced against the accused [by the prosecutor’s reference to prior convictions] as to deprive him of a fair trial. This is sufficient reason to grant a new trial. Williams v. United States, 168 U.S. 382, [18 S. Ct. 92, 42 L. Ed. 509 (1897)]; People v. Aikin, 66 Mich. 460, 33 N.W. 821 [1887]; Anderson v. State, 104 Ala. 83, 16 So. 108 [1894]; McDonald v. The People, 126 Ill. 150, 18 N.E. 817 [1888]; State v. Greenleaf, 71 N.H. 606, 54 Atl. 38 [1902]; People v. Fong Sing, 38 Cal. App. 253, 175 Pac. 911 [1918]; State v. Martel, 103 Me. 63, 68 Atl. 454 [1907]; People v. Fielding, 158 N.Y. 542, 53 N.E. 497 [1899].” State v. Ferrone, supra, 96 Conn. 164.

The state argues that the transcript shows that during the part A trial the court had forgotten that it had been improperly informed of the existence of a part B of the information. This argument is not persuasive. The issue before us is the legal effect of a violation of the substantive rule of State v. Ferrone, supra, 96 Conn. 172-76, as codified by Practice Book § 37-11. It would be irrational for us to hold that a case-by-case determination must be made, the determining factor being how good a memory each trial judge possessed. The state’s contention would create the bizarre situation in which it would be proper to mention part B before a judge with a poor memory but would be cause for reversal to mention part B before a judge with a good memory.

Refusal to rely on a trial judge’s mental processes after hearing improper material is well established in our case law. “Although it may be true that the decision at which the court arrived upon the merits of the case might have been unaffected by this improper [statement], we cannot be certain of it. ... A judge has not such control over his mental faculties that he can definitely determine whether or not inadmissible evidence he has heard will affect his mind in making his decision.” (Internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 748, 638 A.2d 1060 (1994), quoting Barbieri v. Cadillac Construction Corp., 174 Conn. 445, 451, 389 A.2d 1263 (1978); see also Kovacs v. Szentes, 130 Conn. 229, 232, 33 A.2d 124 (1943); Peck v. Pierce, 63 Conn. 310, 320, 28 A. 524 (1893); see Buckingham’s Appeal from Probate, 60 Conn. 143, 160, 22 A. 509 (1891). “Since we cannot speculate as to the degree of influence which the objectionable [material] had in the final result. . . ‘the safer rule is to grant a new trial.’ ” Barbieri v. Cadillac Construction Corp., supra, 451.

The Barbieri precedent is directly on point here where the trial court was apprised of improper material in violation of substantive case law and the intended purpose of the rules of practice. This rule of law and procedure does not harm the state and protects the defendant from unnecessary prejudice. State v. Jones, supra, 234 Conn. 337. Accordingly, we conclude that the remarks of the state’s attorney referring to the part B information tainted the entire case and constituted plain error requiring a new trial. The trial court should have granted the defendant’s motion for a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. . . .”

       General Statutes § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third violation within ten years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and have his motor vehicle operator’s license or nonresident operating privilege suspended for three years . . . .”

       Practice Book § 36-14 provides in relevant part: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. . . .”
      Practice Book § 37-10 provides: “Where the information is in two parts pursuant to Section 36-14 and alleges, in addition to the principal offense charged, a former conviction or convictions, the plea and the election of a method of trial shall first be taken only on the first part of the information.”
      Practice Book § 37-11 provides: “Prior to the time the defendant enters a guilty plea or, if the defendant pleads not guilty, prior to the commencement of trial, the clerk shall notify the defendant, in the absence of the judicial authority, of the contents of the second part of the information. The clerk shall enter on the docket the time and place of the giving of such notification and, where necessary, shall include entry thereof in the judgment file.” (Emphasis added.)

       On November 5, 1996, the state’s attorney filed a substitute information to which the defendant entered a plea of not guilty. Immediately following, 1he prosecutor stated for the record that the defendant “was previously advised of part B of 1he information on April 11 .... I just wanted that on the record.” The court responded, “Okay, so noted.”

       The fact pattern in Kolfuss involved a question of disqualification of a judge because the judge had sat as a member of the sentence review division reviewing a previous and unrelated crime. That is not the situation in this case.

       See footnote 3.

       The court clerk properly performed his duty of reading part B to the defendant in the absence of the judicial authority.

       24 and 25 Vict. c. 90, § 37; Reg. v. Martin, L.R.1 Cr. C. 214 (1861).

       This distinguishes State v. Brunori, 21 Conn. App. 331, 574 A.2d 222 (1990), in that two different judges were involved.

       “Our procedure has been praised repeatedly for its fairness to defendants. See Spencer v. Texas, 385 U.S. 554, 567, 87 S. Ct. 648, 17 L. Ed. 2d 606, rehearing denied, sub. nom. Bell v. Texas, 386 U.S. 969, 87 S. Ct. 1016, 18 L. Ed. 2d 125 [1967]; Lane v. Warden, 320 F.2d 179, 183 (4th Cir. [1963]); Higgins v. State, 235 Ark. 153, 159, 357 S.W.2d 499 [1964], dicta rejected in Miller v. State, 239 Ark. 836, 841, 394 S.W.2d 601 [1965]; Heinze v. People, 127 Colo. 54, 58-59, 253 P.2d 596 [1953]; People v. Sickles, 156 N.Y. 541, 545, 51 N.E. 288 [1898].” State v. LaSelva, supra, 163 Conn. 233.


author: LANDAU, J.

text:
    DEAN SANFORD v. CLINTON PUBLIC SCHOOLS ET AL.
    (AC 18240)
    Foti, Landau and Hermessy, Js.
    Argued April 22
    officially released July 20, 1999

      Penn Rhodeen, for the appellant (plaintiff).

      JosephE. Shelly, Jr., for the appellees (defendants).
   Opinion

LANDAU, J.

The plaintiff, Dean Sanford, appeals from the decision of the workers’ compensation review board (board) affirming the workers’ compensation commissioner’s (commissioner) dismissal of the plaintiffs claim for workers’ compensation benefits on the ground that it lacked subject matter jurisdiction. On appeal, the plaintiff claims that the board improperly (1) ruled that his claim for mental illness, which did not arise from a physical injury or occupational disease, was precluded by General Statutes (Rev. to 1993) § 31-275 (16), as amended by No. 93-228, § 1, of the 1993 Public Acts (P.A. 93-228), and (2) failed to grant an amended motion to correct. We affirm the decision of the board.

The commissioner found the following facts. The named defendant, Clinton Public Schools, employed the plaintiff as a teacher from 1968 until October 12, 1993. In 1989, he began to experience difficulties with the principal in the school where he taught and, in the following year, began having difficulties with other teachers. In 1991, the plaintiff was transferred to another school in Clinton. At the new school, the plaintiff found the administration unresponsive and also found that there was a lack of accountability or discipline. In 1992, he was treated with medication by Mary Scully, an internist. The plaintiff continued teaching, completing the school year in June, 1993. He returned to his teaching position in September, 1993.

On October 2,1993, the plaintiff consulted with Jonathan Swift, a clinical social worker and psychotherapist, who diagnosed depression and referred the plaintiff to Aaron Tessler, a psychiatrist, for medication. Tessler diagnosed the plaintiff as suffering from depression and anxiety. The commissioner also found that Tessler and Swift were both of the opinion that the plaintiff suffered from depression in June, 1993.

The plaintiff left his teaching position on October 12, 1993. In April, 1994, he submitted a workers’ compensation claim for his diagnosed condition of depression. In 1995, the defendants had the plaintiff examined by Mark Rubinstein, a psychiatrist. Rubinstein opined that the plaintiff suffered from depression in October, 1993. The commissioner concluded that he did not have jurisdiction over the plaintiffs claim because P.A. 93-228, § 1, became effective July 1, 1993, and excluded from the definition of “personal injury” a mental illness unless it is related to physical injury or occupational disease. See General Statutes § 31-275 (16) (B) (ii). After the board affirmed the commissioner’s decision, the plaintiff appealed to this court.

The plaintiff first argues that the board improperly ruled that his claim for mental illness, which did not arise from a physical injury or occupational disease, was precluded by General Statutes (Rev. to 1993) § 31-275 (16), as amended by P.A. 93-228, § 1. We conclude that the board properly determined that the plaintiffs claim is precluded by that statute.

“We first note our standard of review. The commissioner has the power and the duty to determine the facts. Fair v. People's Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. Id., 538-39. The board must determine whether there was any evidence in the record to support the commissioner’s findings. Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979). The role of this court is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).” (Internal quotation marks omitted.) Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 776-77, 712 A.2d 436 (1998).

In reviewing the issues that are presented in this case, “we are mindful of the remedial purposes of the Workers’ Compensation Act and that it should be broadly construed to accomplish its humanitarian purpose. . . . Nevertheless, we also recognize that the legislature did not intend ... to transform the Workers’ Compensation Act into a general health and benefit insurance program . . . .” (Citations omitted; internal quotation marks omitted.) Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 433, 675 A.2d 1377 (1996).

It is axiomatic that a tribunal must have jurisdiction over the subject matter that it hears and that subject matter jurisdiction is the power of the tribunal to hear and determine cases of the general class to which the proceeding in question belongs. Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). “Administrative agencies [such as the workers’ compensation commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon . . . statutes . . . .” (Internal quotation marks omitted.) Id. In workers’ compensation cases, the applicable statutes are those in effect at the time of the plaintiffs date of injury. Kluttz v. Howard, 228 Conn. 401, 404 n.3, 636 A.2d 816 (1994). “We adhere to the date of injury rule as the applicable date for determining the rights and obligations as between parties . . . .” Id. Furthermore, we note that our Supreme Court has stated that our appellate courts give “great deference to the construction given to [workers’ compensation law] by the commissioner and the review [board] because they are both charged with its enforcement. Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993).” (Internal quotation marks omitted.) Dorsey v. United Technologies Corp., 243 Conn. 949, 951-52 n.4, 704 A.2d 795 (1997) (Berdon, J., concurring).

Public Act 93-228, § 1, which amended General Statutes (Rev. to 1993) § 31-275 (16), effective July 1, 1993, eliminates compensability related to claims for “mental or emotional impairment, unless such impairment arises from a physical iryury or occupational disease . . . .” See also footnote 1. Our Supreme Court has concluded that a claim for workers’ compensation benefits brought by a school teacher on the basis of mental stress is deemed to be due to repetitive activity at work rather than an “occupational disease.” See Crochiere v. Board of Education, supra, 227 Conn. 352-53. Furthermore, in the present case, we note that the commissioner did not make any factual finding regarding a physical injury suffered by the plaintiff nor does the plaintiff allege that his mental illness arises from a physical injury. See General Statutes § 31-275 (16) (B) (ii).

Having set out these basic principles, we now consider the application of the facts to these standards. The plaintiff maintains that he was rendered clinically depressed and disabled as a result of repetitive trauma during the course of his employment. “[I]n repetitive trauma cases, it is settled law that the date of injury is the last day of exposure to the work related incidents of repetitive trauma, or the last day worked, whichever is later.” Crochiere v. Board of Education, supra, 227 Conn. 354; see also Discuillo v. Stone & Webster, 43 Conn. App. 224, 226-27, 682 A.2d 145 (1996), aff'd, 242 Conn. 570, 698 A.2d 873 (1997) (last day of work is usually last day of employment). It is undisputed that the plaintiff did not become disabled from teaching until October 12, 1993. This date is the plaintiffs last day of exposure to work-related stress and, as such, is the date of injury for the purpose of determining entitlement to benefits under the Workers’ Compensation Act. As of the date of the plaintiffs injury, that statute no longer afforded compensation for mental illness claims that were not associated with an occupational disease or with a physical injury.

The essence of the plaintiffs argument is that the elimination by P.A. 93-228, in 1993, of mental illness claims—unless accompanied by a physical injury or as a result of an occupational disease—from the definition of personal injury should not bar one who claims he suffered mental illness prior to that date from maintaining his claim, even though his last day of exposure came after the repeal. The flaw in this contention, however, is that in addition to finding that his last day of exposure occurred after July 1, 1993, when the change in the applicable statute took effect, the commissioner also found that the diagnosis of depression and the first day of disability occurred subsequent to July 1, 1993. We conclude, therefore, that the commissioner’s factual conclusions are reasonably supported by the evidence in the record and will not be disturbed on appeal.

Because the plaintiffs claim for benefits is predicated on compensability for mental stress not related to a physical injury or to an occupational disease and therefore does not fit within the parameters of § 31-275 (16) (B) (ii), we conclude that the commissioner properly dismissed the claim for jurisdictional reasons. The board, therefore, properly concluded that the plaintiffs claim is precluded by § 31-275 (16) (B).

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

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 31-275 (16), as amended by P.A. 93-228, § 1, provides in relevant part: “(B) ‘Personal injury’ or ‘injury’ ” shall not be construed to include . . . (ii) A mental or emotional impairment, unless such impairment arises from a physical injury or occupational disease . . . .”

       We note that ITT Hartford Insurance Group, as insurer of the named defendant, is the other defendant in this action.

       Although the plaintiff contends that Scully prescribed medication for his depression since 1992, the commissioner found that “[t]here was no evidence presented to indicate that Dr. Scully diagnosed depression.”

       General Statutes (Rev. to 1993) § 31-275 (16) provides for the recovery of workers’ compensation benefits for repetitive trauma. General Statutes (Rev. to 1993) § 31-275 (16), designated as subparagraph (A) by P.A. 93-228, § 1, provides in relevant part: “ ‘Personal injury’ or ‘injury’ includes ... an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment . . . .”

       Were we to hold otherwise, we would essentially create a situation whereby employees could choose a date of injury that would enable them to obtain the most favorable compensation rate. Specifically, employees could claim that they were injured during a certain period of time but continued to work and did not become disabled until a later date. We are mindful of the great deference accorded to the agencies that are charged with the enforcement of workers’ compensation law and decline the invitation to create such a degree of uncertainty in the current state of the law.

       The plaintiff, seeking support for his position that the last day of exposure rule does not bar coverage for the injury suffered before the change in the law, relies on Bennett v. Beiersdorf, Inc., 889 F. Sup. 46 (D. Conn. 1995). This reliance, however, is misplaced. After setting out the rule that the law in effect on the date of injury controls in a claim for workers’ compensation benefits, the Bennett court stated that “to the extent it is based on injury occurring before July 1, 1993, it is barred by the exclusivity provision of the [Workers’Compensation Act], . . . [E]ven after the amendment, plaintiffs claim is partially barred, because it seeks compensation not only for mental or emotional impairment, but also for physical ailments, including hypoglycemia, fatigue, aggravation of the stomach, and weight loss.” (Internal quotation marks omitted.) Id., 51. The Bennett decision, however, did not discuss the plaintiffs date of injury; the court merely stated that “to the extent it is based on injury” it was barred by the Workers’ Compensation Act. Id. In the present case, we have concluded that the commissioner properly determined that the plaintiffs date of injury was October 12, 1993. As such, the plaintiffs injury, which did not arise from physical injury or occupational disease, is not barred by the exclusivity provision of the Workers’ Compensation Act. See General Statutes § 31-284 (a).

       Because of our conclusion that the board properly concluded that the plaintiffs claim is precluded by § 31-275 (16) (B) (ii), we need not address the merits of the plaintiff’s second claim.


author: PER CURIAM.

text:
    REKAN SHRITAH v. STOP AND SHOP COMPANIES, INC.
    (AC 18181)
    O’Connell, C. J., and Landau and Sullivan, Js.
    Submitted on briefs May 4
    officially released July 20, 1999

      Arthur S. Wells filed a brief for the appellant (plaintiff).

      Dion W. Moore and Suzannah K. Nigro filed a brief for the appellee (named defendant).
   Opinion

PER CURIAM.

The plaintiff, Rekan Shritah, appeals from the judgment for the defendants after the trial court granted the named defendant’s motion to dismiss pursuant to Practice Book § 15-8. On appeal, the plaintiff claims that the trial court improperly found that the plaintiff failed to establish aprima facie case. We affirm the judgment of the trial court.

The transcript shows that the underlying action for personal injuries arises out of a slip and fall that occurred on June 28,1993, at a store located in Fairfield and owned by the named defendant, Stop and Shop Companies, Inc. (Stop & Shop). At trial, testimony was introduced from two witnesses, the plaintiff and a Stop & Shop employee. The plaintiff testified that he entered the store late in the evening and, after he selected some items, he slipped and fell. The plaintiff testified that he neither saw anything on the floor before he fell, nor did he- know what caused him to fall. He testified that after he fell, he saw some fruit on the floor, but was unable to state that it was the fruit that actually caused his fall.

The second witness, Henry Niestemski, a Stop & Shop employee, was in charge of the night maintenance crew and responsible for overseeing the store from 11 p.m. to 7 a.m. Niestemski testified that he remembered the incident, although he did not remember the plaintiff specifically. Moreover, he testified that he did not know whether the outside maintenance crew had begun to clean and that he did not recall seeing any fruit on the floor. The plaintiff subsequently rested his case, and Stop & Shop made a motion for a judgment of dismissal that the trial court granted.

The record before us does not contain either a written memorandum of decision or a transcribed copy of an oral decision, signed by the trial court, stating its reason for granting the motion to dismiss. Further, the plaintiff never sought to have the trial court articulate the basis upon which it granted the motion to dismiss. “The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); see Practice Book § 61-10.

This court has declined to review claims where the appellant has failed to provide the court with an adequate record for review. Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 48 Conn. App. 609; Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997).

“To prove a claim of negligence or negligence per se, the [injured party] had to prove by a preponderance of the evidence each of the following elements: duty, breach, proximate cause and damages.” Close, Jensen & Miller, P.C. v. Lomangino, 51 Conn. App. 576, 588, 722 A.2d 1224, cert. denied, 248 Conn. 905, 731 A.2d 306 (1999). The plaintiff had to show that the defendant breached a duty owed to the plaintiff, and that there existed a causal connection between the breach and the plaintiffs injury. Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982). We decline to speculate from the transcript what findings the trial court may have made and what was the basis for the motion to dismiss. Because the plaintiff has failed to provide us with an adequate record for review, we decline to review this claim.

The judgment is affirmed.


text:
    OCWEN FEDERAL BANK FSB v. JAMES T. DWYER ET AL.
    (AC 18730)
    O’Connell, C. J., and Spear and Hennessy, Js.
    Argued April 29
    officially released July 20, 1999

      Eileen O’Shaughnessy-Smith, with whom, on the brief, was Philip L. Eiker, for the appellant (plaintiff).

      Dwight Owen Schweitzer, pro se, the appellee (defendant).
   Opinion

O’CONNELL, C. J.

This is a mortgage foreclosure action in which the plaintiff, Ocwen Federal Bank FSB, appeals from the trial court’s denial of its motion to open the judgment of foreclosure by sale for the purpose of correcting the plaintiffs affidavit of debt to include sewer and water assessments it had paid on the real estate that had been mortgaged to it by the named defendant, James T. Dwyer, and the defendant Patricia M. Dwyer. The defendant Dwight Owen Schweitzer, a subsequent encumbrancer who had redeemed the property, opposed the motion to open. We affirm the judgment of the trial court.

The record discloses that the trial court heard oral argument on the motion to open on July 27, 1998. The transcript of that proceeding reveals that, following argument by counsel, the trial court’s sole comment was “I’ll take the papers.” There is nothing from which we can divine the trial court’s reason for any action that it took.

The duty to provide this court with a record adequate to afford review rests with the appellant. Practice Book § 60-5; Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). In this case, the record is inadequate for review because we have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision, signed by the trial court, stating its reasons for refusing to open the judgment. See Practice Book § 64-1 (a).

Practice Book § 64-1 (b) clearly establishes the procedure to be followed by an appellant in the event that the trial court fails to comply with § 64-1 (a). In the present case, the plaintiff did not avail itself of this procedure, thereby failing to ensure an adequate record for review.

“We, therefore, are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997).

Because the trial court did not articulate the factual or legal basis for its decision on the plaintiffs motion to open, we are precluded from reaching the issue of whether the trial court acted properly. The record is inadequate for our review of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       These amounts are referred to by the parties as water and sewer assessments and as taxes. The variance is immaterial because the same law applies to both.

       Schweitzer is a practicing member of the Connecticut bar, but appears pro se in this case.

         The motion bears the following notation: “The foregoing motion is hereby ORDERED: Denied.”