author: BEACH, J.

text:
    STATE OF CONNECTICUT v. ANTHONY LITTLE
    (AC 33383)
    Gruendel, Beach and Schaller, Js.

      Argued May 17
    officially released September 11, 2012

      Martha Hansen, special public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert F. Mullins, Sr., assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Anthony Little, appeals from the judgment of conviction, rendered after a trial to the court, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and interfering with an emergency call in violation of General Statutes § 53a-183b (a). The defendant claims that (1) the state adduced insufficient evidence to sustain his conviction of (a) assault in the second degree and (b) interfering with an emergency call, and (2) the trial court abused its discretion by admitting a recording of the complaining witness’ 911 call, in addition to her written statement to the police, that together constituted cumulative evidence. We affirm the judgment of the trial court.

The following facts, which reasonably could have been found by the court, and procedural history are relevant to the disposition of the defendant’s appeal. On the evening of August 30, 2009, the defendant was spending his birthday with his former girlfriend, Carola Demaio. The defendant and Demaio had previously been in a relationship for approximately three years, but they were not dating exclusively at the time. At about 1:30 a.m., after drinking together for some time, the defendant and Demaio proceeded to the Hartford apartment of Channelle Ashley, the defendant’s daughter. There were about eight people there, and the atmosphere was noisy and chaotic.

At about 4 a.m., one of the female guests told the defendant that Demaio had slept with the guest’s boyfriend, causing the defendant to become “a little irate.” The defendant began swinging apocketknife at Demaio from across a kitchen table, cutting her left cheek. He subsequently pushed her to the floor.

Following this altercation, Ashley became upset and attempted to call the police, but the defendant knocked the cell phone from her hands. The defendant and Demaio abruptly left the party together in his car for Demaio’s home in Wethersfield. As they were driving away, Ashley again called 911. She told the dispatcher that her father had cut Demaio’s face with a knife and then forced her into his car. Ashley feared for Demaio’s safety and urged the police to respond quickly. She also asked the police not to inform the defendant that she had reported the incident because she did not want him to “come after [her].” Hartford police consequently responded to Ashley’s apartment at about 6 a.m.

Among the officers responding to the scene were Corey Somoskey and Robert Hathaway. The defendant called Ashley twice from his car while he and Demaio were en route to Wethersfield. During the first call, which was placed on speakerphone so the officers could hear, Somoskey asked the defendant to return to the apartment with Demaio. The defendant refused, stating that he was almost to Massachusetts. When the defendant called again, Demaio spoke to the officers; she told them that she was already at home, and assured them that she was fine and did not need their assistance.

Somoskey subsequently took a sworn written statement from Ashley, which documented the incident between the defendant and Demaio. The statement was corroborated by a party guest who preferred to remain anonymous. Ashley stated that the defendant had “slashed” Demaio’s cheek with a pocketknife following an argument. She further asserted that the defendant had knocked her cell phone from her hand to prevent her from calling 911 before forcing Demaio into his car to leave. She also averred that the defendant had threatened Somoskey and Hathaway over the telephone when they asked him to return to the apartment with Demaio.

Wethersfield police officers, whose assistance had been requested by the Hartford police, were waiting at Demaio’s home when she and the defendant arrived at approximately 6 a.m. Somoskey and Hathaway arrived shortly thereafter. The officers noticed a fresh laceration on Demaio’s cheek, which she had covered with makeup during the drive from Hartford because she “didn’t want [the defendant] to get in trouble.” When questioned about the source other cut, Demaio alternatively attributed it to a cat scratch and a fight with Ashley.

The defendant was arrested and frisked. No pocketknife was recovered. He was charged with assault in the second degree in violation of § 53a-60 (a) (2) and interfering with an emergency call in violation of § 53a-183b (a). A full protective order in favor of Demaio was issued against the defendant at his arraignment.

After a two day trial to the court on December 2 and 3,2010, the defendant was convicted of violating §§ 53a-60 (a) (2) and 53a-183b (a). The court imposed a total effective sentence of six years incarceration, execution suspended after two years, with three years of probation. This appeal followed.

I

The defendant’s first two claims challenge the sufficiency of the evidence adduced at trial to sustain his conviction of assault in the second degree and interfering with an emergency call. We begin by setting forth the applicable standard of review. “The standard of review employed in a claim of insufficient evidence is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the [finding of guilt]. Second, we determine whether upon the [evidence] so construed . . . the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“[E]vidence is not insufficient [merely] because it is conflicting or inconsistent. [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject. . . . As a corollary, [questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) State v. Altayeb, 126 Conn. App. 383, 387, 11 A.3d 1122, cert. denied, 300 Conn. 927, 16 A.3d 628 (2011).

“In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s finding] of guilty.” (Internal quotation marks omitted.) State v. Santos, 104 Conn. App. 599, 612, 935 A.2d 212 (2007), cert. denied, 286 Conn. 901, 943 A.2d 1103, cert. denied, 565 U.S. 851, 129 S. Ct. 109, 172 L. Ed. 2d 87 (2008).

A

The defendant first claims that there was insufficient evidence to sustain his conviction of assault in the second degree. Specifically, the defendant argues that inconsistencies in Demaio’s and Ashley’s various accounts of what happened at Ashley’s apartment created reasonable doubt as to whether he had the requisite intent to cause physical injury to Demaio, or, alternatively, whether he was responsible for her injury at all. This claim can be reduced to a challenge to the trial court’s credibility determinations. The defendant essentially contends that the court should have accepted as plausible Demaio’s testimony that her injury was inflicted negligently, instead of crediting Ashley’s written statement and 911 call, which, together with circumstantial evidence, reasonably could support a finding beyond a reasonable doubt that the act was intentional. This claim is unavailing.

The following additional facts are necessary for the resolution of this claim. Both Demaio and Ashley— respectively, the defendant’s former girlfriend and daughter — were subpoenaed by the state to testify at trial. Ashley testified that she would rather go to jail than continue to testify against her father. Demaio candidly asserted that she cared deeply for the defendant and was conscious of the fact that he had small children and a family; thus, she admitted taking steps to mitigate any consequences that might result from her injury. The state also adduced evidence that, despite the issuance of the protective order, approximately one month after the defendant’s arrest, he arranged to have dinner with Demaio at a Hartford restaurant. The two discussed “the whole situation,” and the defendant apologized for cutting Demaio’s face. During this meeting, the defendant pressured Demaio into authoring a letter asking the state’s attorney to drop the charges against the defendant because the incident had been “a huge misunderstanding” and she had not in fact been assaulted with a weapon.

At trial, Ashley claimed that her ability to recall the altercation was compromised by alcohol and the passage of time. Even after reviewing her written statement and listening to a recording of her 911 call, Ashley declined to testify in complete conformity with her prior assertions. Specifically, she would not state that she had actually seen the defendant slash Demaio, or that he had interfered with her first attempt to call 911. The most Ashley would concede at trial was that “at the end of the scuffle I saw my dad with a knife and [Demaio] was cut.”

Demaio, for her part, repeatedly sought to minimize the degree of her injury, preferring to characterize it as a “scrape,” a “little scratch,” or a “nick” that might have been caused unintentionally. Instead of testifying that the defendant had deliberately cut her, Demaio described the defendant as carelessly swinging his pocketknife in her direction.

Focusing on these inconsistent narratives, at the close of the state’s case, the defendant moved for a judgment of acquittal on the assault charge. The defendant argued that, although the evidence may have supported a conclusion of recklessness, there was insufficient evidence to establish that he intended to cause physical injury to Demaio. From the defendant’s perspective, the evidence merely demonstrated that he was “flailing a knife around” and that he may have “reached over” toward Demaio and accidentally injured her. The court denied the motion.

Construing the evidence in the light most favorable to sustaining the court’s finding of guilt, there was clearly a reasonable view of the evidence that permitted the court to hold that the defendant intended to injure Demaio. As the defendant acknowledges, the intent of the accused is a question for the fact finder, and the fact finder’s conclusions in this regard cannot be disturbed unless they are unreasonable. See State v. Turner, 24 Conn. App. 264, 268, 587 A.2d 1050 (“when the conclusion [regarding intent] is one that is dependent on the resolution of conflicting testimony, it should ordinarily be left to the [fact finder] for its judgment”), cert. denied, 218 Conn. 910, 591 A.2d 812 (1991). Although the testimony regarding the defendant’s intent was inconsistent, the court was not obligated to accept Demaio’s characterization of events. Demaio explicitly stated that, given her relationship with the defendant, she was uncomfortable testifying against him. The state also adduced evidence that the defendant had taken steps to discourage Demaio from cooperating with the state. The court therefore had good reason to view aspects of her testimony with skepticism.

Moreover, the salient facts concerning Demaio’s assault were undisputed in the trial testimony. Both Ashley and Demaio testified that the defendant was wielding a knife; there was a fight or “scuffle” involving the defendant and Demaio; and an injury to Demaio resulted. Thus, it was not unreasonable or illogical for the court to infer that the injury had been intentionally inflicted, consistent with the narrative in Ashley’s written statement and 911 call. See State v. Virgo, 115 Conn. App. 786, 805, 974 A.2d 752 (intent to cause physical injury can be inferred from “the events leading up to and immediately following the incident” [internal quotation marks omitted]), cert, denied, 293 Conn. 923, 980 A.2d 914 (2009). For these same reasons, the theory that Demaio’s injuries were the result of a fight with Ashley was reasonably rejected.

B

The defendant next claims that the state adduced insufficient evidence to demonstrate that he had the specific intent to interfere with an emergency call. The defendant specifically argues that the state failed to prove beyond a reasonable doubt that he knew that Ashley was calling 911, thereby negating a finding of intent to interfere with such a call. This claim also lacks merit.

The following additional facts are relevant to the disposition of this claim. Like the defendant’s challenge of the evidence supporting his assault conviction, his argument here is largely based on the divergence of the various accounts of what occurred at Ashley’s apartment. At trial, Demaio testified that she did not see Ashley call 911. Ashley, despite the assertions in her written statement, testified that she could not remember whether the defendant had obstructed her first 911 call; in fact, she stated that she recalled making only one such call, which she placed after the defendant had left her apartment with Demaio. After her memory was refreshed with her inconsistent written statement, Ashley asserted, “I don’t want to do this no more. Can I just go to jail?” Even when confronted with the written statement, Ashley would not testify that the defendant had interfered with her first 911 call; she responded, “I [only] remember bits and pieces of that night. I mean, if that’s what I said that night at that moment.”

At the conclusion of the state’s case, the defendant also moved for a judgment of acquittal on the charge of interference with an emergency call. He specifically argued that the state had not established what he termed the “acknowledgment” element of the statute; that is, there was no evidence that Ashley expressly announced her intention to call 911 before the defendant allegedly knocked the cell phone from her hands. Thus, the defendant contended that the state had failed to prove that he had knowledge that Ashley was summoning law enforcement assistance and therefore could not have possessed the intent to interfere with such a call. The court denied the motion. The essence of this argument is reprised on appeal. The defendant additionally asserts that, because Demaio claimed not to know that Ashley had called 911, it was unlikely that the defendant knew, either. We find this theory of imputed ignorance unpersuasive.

Section 53a-183b (a) is a specific intent crime. See General Statutes § 53a-183b (a). Specific intent requires that the “defendant must have the conscious objective to cause the specific result.” State v. Chasse, 51 Conn. App. 345, 369, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). Therefore, liability can be imposed under § 53a-183b (a) only where the state proves that the defendant had the conscious objective to prevent “another person from making or completing a 9-1-1 telephone call or a telephone call ... to any law enforcement agency to request police protection or report the commission of a crime . . . .” General Statutes § 53a-183b (a).

“It is well established that the question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence .... Intent may be and usually is inferred from [conduct. . . . Whether] such an inference should be drawn is properly a question for the [fact finder] to decide.” (Citations omitted; internal quotation marks omitted.) State v. Torwich, 38 Conn. App. 306, 314, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995).

In the context of a sufficiency of the evidence challenge, “it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Sherman, 127 Conn. App. 377, 382, 13 A.3d 1138 (2011).

The evidence, taken in the light most favorable to sustaining the court’s finding of guilt, indicates conduct by the defendant consistent with his awareness that Ashley had become sufficiently concerned after witnessing his assault of Demaio that she decided to call the police. Indeed, Ashley’s anxiety following the assault was apparent to others at the party. For example, Demaio recounted at trial that “[Ashley] got very upset and thought that something was going to happen. She became very paranoid.” When Ashley attempted to call the police, the defendant swatted her cell phone from her hand and then quickly absconded with Demaio. After the defendant had pushed Demaio onto the floor, Ashley helped Demaio to stand and tried to prevent the defendant from further harming Demaio by telling the defendant “to go.” Immediately after the defendant slashed Demaio’s cheek with a pocketknife, Ashley “grabbed” her cell phone and “proceeded to call [the] police.” The defendant’s physical act of preventing Ashley from using her cell phone combined with his abrupt departure permitted the reasonable inference that the defendant was aware of circumstances in which she would likely attempt to contact the police and that he considered it expedient not to linger at the scene of the crime. While driving to Demaio’s home in Wethers-field, the defendant contacted Ashley in an apparent attempt to smooth things over. This attempted intervention provides further circumstantial evidence that the defendant knew that Ashley was considering summoning the police. Undergirding this circumstantial evidence was Ashley’s written statement, which expressly alleged the defendant’s interference with her 911 call.

It was not necessary for the state to prove that Ashley had expressly announced an intention to call 911; “[i]t was within the province of the [trier] to draw reasonable and logical inferences from the facts proven.” (Internal quotation marks omitted.) State v. Turner, supra, 24 Conn. App. 268. Given the facts adduced at trial, it was not unreasonable or illogical for the trial court to infer that the defendant knew that Ashley was making a telephone call to summon police assistance and that his conscious objective was to prevent her from making the telephone call.

n

The defendant’s final claim is that the admission of the recording of Ashley’s 911 call, in addition to her written statement to the police, constituted cumulative evidence and thus should not have been admitted. We do not agree.

The following additional facts are relevant to this claim. Andrew Jaffee, civilian director of Hartford’s 911 dispatch center, testified at trial that he received a subpoena requesting the preservation of Ashley’s 911 call from the morning of August 31, 2009, and that he consequently copied the recording of the call onto a compact disc (CD). The state adduced testimony that all calls received by the state’s 911 system are recorded and retained for thirty days, that the CD was made in conformity with the standard procedures observed by the dispatch center and that it was a complete and accurate recording of the call.

At the end of Jaffee’s direct examination, the state moved to admit the CD as a full exhibit. Defense counsel responded: “No objection. I’ve heard it.” The prosecutor then asked to publish the recording to the court, and the court granted permission. Defense counsel then objected, stating that he had agreed only to the admission of the CD containing the recording, but not to its contents. The state responded that defense counsel had missed his opportunity to object and, further, that the recording was being offered only to prove that the Hartford police were dispatched to Ashley’s apartment. The state additionally argued that, in light of Jaffee’s testimony, the substance of the recording should be admissible under the business record exception to the hearsay rule. The court subsequently admitted the recording under this exception, but only for the limited purpose proffered by the state. The court assured defense counsel that he could renew his objections if the recording were later offered for substantive purposes.

During Ashley’s subsequent testimony, the state played the recording again to refresh her memory of what she had told the 911 dispatcher. When Ashley did not testify in complete conformity with her prior statements, the state sought to admit Ashley’s written statement under State v. Whelan, 200 Conn. 743, 763, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 697, 93 L. Ed. 2d 598 (1986). Defense counsel objected. He argued that if the court were to admit the statement, the recording of the 911 call, if ultimately admitted for substantive purposes, would constitute cumulative evidence because the statement “says everything the tape says plus more.” The state contended that both pieces of evidence were necessary for it to prove the two charges against the defendant. Specifically, the state noted that the written statement included Ashley’s allegation that the defendant had prevented her from calling the police, information that she did not convey to the 911 dispatcher.

The court admitted both the recording and the written statement under Whelan. As to whether the recording was cumulative, the court noted that, although it was in some ways duplicative of the written statement, the recording was uniquely valuable because it allowed the court as the fact finder to assess Ashley’s state of mind when she called 911. The court also noted that it was able to determine “what’s cumulative and what’s not” after having reviewed the two pieces of evidence.

As a preliminary matter, the state argues that the defendant waived at trial his claim that Ashley’s 911 call constituted cumulative evidence. We disagree. At the time of the purported waiver, Ashley’s statements could not properly have been admitted under the business record exception. See General Statutes § 52-180; Conn. Code Evid. § 8-4 (a). “Statements and information obtained from . . . persons outside the ‘business’ are not admissible even though they are included in a business record because it is the duty to report in a business context that provides the reliability [that] justif [ies] this hearsay exception. . . . [I]nformation in a business record if obtained from a person with no duty to report is . . . admissible [only if it falls] within another hearsay exception . . . .” (Citations omitted.) C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.28.7, pp. 673-74; see also State v. Berger, 249 Conn. 218, 231, 733 A.2d 156 (1999); State v. Torelli, 103 Conn. App. 646, 660-62, 931 A.2d 337 (2007) (noting that 911 statements from citizens are admissible only where they fall within hearsay exception other than business record exception). Thus, under the foundation laid by the state when it first sought to admit the recording as a full exhibit, Ashley’s statements to the dispatcher constituted inadmissible hearsay, and the state had not identified another exception that would render them admissible. The court implicitly recognized this distinction by initially limiting the state’s use of the 911 call to prove that the Hartford police had been dispatched to Ashley’s apartment — a use of the recording that would not have required consideration of the truth of Ashley’s statements. The court assured the defendant that, if the state later sought to admit the recording for substantive purposes, his objections could be renewed. When the state later sought admission of the recording under Whelan, the defendant timely objected on the additional ground that it was cumulative of the written statement. We therefore turn to the merits of the defendant’s claim.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 670-71, 31 A.3d 1012 (2011).

Relevant evidence may be excluded if it will cause “undue delay, waste of time or needless presentation of cumulative evidence.” Conn. Code Evid. § 4.3. “In excluding evidence on the ground that it would be only cumulative, care must be taken not to exclude merely because of an overlap with evidence previously received. To the extent that evidence presents new matter, it is obviously not cumulative with evidence previously received.” (Emphasis in original; internal quotation marks omitted.) State v. Parris, 219 Conn. 283, 293, 692 A.2d 943 (1991), quoting 2 D. Louisell & C. Mueller, Federal Evidence (1985) § 128. Multiple statements by an individual recounting the same event, made to different people at different times, may be relevant to show that the statements were consistent. See State v. Parris, supra, 294. “Rather than [being] prejudicially cumulative . . . [such overlapping evidence] demonstrates] . . . that the victim previously had reported the incident she described on direct examination in a constant and consistent fashion.” Id. Relevant cumulative evidence is properly excluded when, in the court’s exercise of discretion, it is unfairly cumulative and, thus, is more prejudicial than probative. Id., 293.

In the present case, the court did not abuse its discretion by admitting both Ashley’s 911 call and written statement. Although there was some overlap between the two sources, the written statement did not contain all of the factual information conveyed in the recording of the 911 call. The recording included details about the defendant’s treatment of Demaio during their departure that the statement did not and also allowed the court to assess Ashley’s state of mind immediately after the assault of Demaio. The recording demonstrated that Ashley feared the defendant, which may have accounted for her reluctance to testify candidly, and her urgent tone demonstrated her genuine concern for Demaio’s safety. Moreover, the defendant placed Ashley’s veracity squarely in issue. Having done so, the defendant could not also remove from the fact finder the very tools by which to make a credibility determination; the consistency between the 911 call and the written statement was relevant for this purpose. See id. Finally, even if these two pieces of clearly relevant evidence were cumulative, the defendant has not alleged any unfair prejudice that resulted from their admission. He asserts only that the 911 call strengthened the case against him, but it is axiomatic that evidence is not unfairly prejudicial merely because it is incriminating. See State v. James G., 268 Conn. 382, 399, 844 A.2d 810 (2004) (“[a]ll adverse evidence is [by definition] damaging to one’s case, but [such evidence] is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted” [emphasis in original; internal quotation marks omitted]).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claimed that the prosecutor inappropriately characterized the incident at trial. The defendant did not develop this allusion to prosecutorial impropriety in his brief; therefore, we decline to address it. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 100-101, 709 A.2d 14 (1998).

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury ... by means of a deadly weapon or a dangerous instrument . . . .”

       The state contends, as a threshold matter, that the defendant’s first claim was inadequately briefed and consequently forfeited. As the state correctly points out, the defendant erroneously stated in his opening brief that there was insufficient evidence adduced at trial to establish that he had intended to cause serious physical injury to Demaio, a requirement of § 53a-60 (a) (1) but not § 53a-60 (a) (2). The state argues that this error should result in the abandonment of the defendant’s first claim. Despite the defendant’s misstatements regarding the degree of ir\jury required under § 53a-60 (a) (2), the crux of his claim is that he did not intend to cut the victim at all. Therefore, notwithstanding this semantic error, this issue has been sufficiently briefed and is not abandoned.

       Although the defendant adduced testimony at trial that Demaio told Somoskey that her injuries were the result of a fight with Ashley, Demaio disclaimed this explanation at trial, and the defendant did not ask Ashley on cross-examination if such a fight occurred. Demaio testified that she was like an aunt or mother to Ashley.

       General Statutes § 53a-183b (a) provides in relevant part: “A person is guilty of interfering with an emergency call when such person, with the intent of preventing another person from making or completing a 9-1-1 telephone call or a telephone call ... to any law enforcement agency to request police protection or report the commission of a crime, physically or verbally prevents or hinders such other person from making or completing such telephone call . . . .”

       There was some inconsistency as to who initiated the first telephone call between Ashley and the defendant. Somoskey and Ashley testified that the defendant initiated the call, and Somoskey’s police report said the same. Demaio, on the other hand, testified that Ashley had called the defendant.

       On the facts of this case, we need not decide whether, in order to sustain a conviction, there must be evidence that the defendant had reason to infer that an emergency call was being placed at the time of his preventive act.

       There were several issues that were raised by the defendant at trial regarding this recording, including the proper basis for its admissibility and whether it was reliable. The sole issue raised on appeal is whether the recording was cumulative of Ashley’s written statement.

       The state contends that when the prosecutor “sought to admit the audio recording . . . under the business record exception to the hearsay rule, it laid the appropriate foundation for so doing, and the trial court admitted it as such.” This characterization suggests a clarity that was absent from the colloquy regarding the admissibility of the recording. When the state initially moved to admit the CD as a full exhibit, it did not articulate a basis for admitting Ashley’s hearsay statements. As noted previously, without an additional hearsay exception, Ashley’s statements were not admissible under the business record exception. Because the state had not proffered a basis for admitting these statements, it was not unreasonable for the defendant to have consented to the admission of the physical CD, but not to its contents. That the court ultimately admitted the recording under Whelan undermines the state’s position that the full recording had already been admitted for its truth under the business record exception when the defendant first objected.

       The defendant additionally argues that under State v. Bermudez, 95 Conn. App. 577, 897 A.2d 661 (2006), it was improper for the court to permit the prosecutor to present extrinsic evidence of Ashley’s written statement and the recording of her 911 call. See id., 585 (“the appellate courts in this state have established that when a witness admits to making a prior inconsistent statement, additional evidence of the inconsistency is merely cumulative”). Although § 6-10 of the Connecticut Code of Evidence generally precludes the use of extrinsic evidence of a prior inconsistent statement once the witness admits making such statement, Ashley never adopted material aspects of her prior statements. She testified that she did not witness the defendant cut Demaio and that she had made only one 911 call. In the absence of an admission, evidence of the prior inconsistent statements is not cumulative. See State v. Daskam, 10 Conn. App. 50, 54, 521 A.2d 587 (where witness refuses to admit to making prior material statements, extrinsic evidence of prior inconsistency not merely cumulative), cert. denied, 203 Conn. 806, 525 A.2d 520 (1987). Moreover, the Bermudez court “emphasizejd] that the decision to admit extrinsic evidence for impeachment purposes is vested in the liberal discretion of the trial court.” State v. Bermudez, supra, 586.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SCOTT A. CRAWLEY
    (AC 32610)
    Gruendel, Bear and Bishop, Js.

      Argued May 14
    officially released September 11, 2012

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Kathleen A. Dwyer, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Scott A. Crawley, appeals from the judgments of conviction, rendered following a jury trial, of various offenses related to two separate incidents. On appeal, the defendant claims that the trial court (1) improperly proceeded with the trial in his absence without ascertaining that he validly waived his right to confrontation, (2) failed to grant a continuance to allow him to obtain alternative counsel and (3) failed to hold a second competency hearing. We affirm the judgments of the trial court.

The defendant’s appeal involves two files for offenses committed during two separate incidents. The first file pertained to charges against the defendant arising from a May 23, 2002 incident (first case), with docket numbers CR-02-0183551-S and MV-02-0346006-S, and the second file pertained to those charges against the defendant arising from a September 5, 2002 incident (second case), with docket numbers CR-02-0185248-S and MV-02-0383935-S. The two files were consolidated and were to be tried jointly before a jury. On March 9, 2004, after the jury had been selected and just before the presentation of evidence was to begin, the defendant appeared before the court outside of the presence of the jury. He informed the court that attorney Terri Bayer represented him in the first case, and not attorney Donald Freeman, who was present. The courtroom clerk noted that there was an undated appearance from Bayer and that Freeman had filed an appearance on October 24, 2002, in lieu of attorney John Hyde, a colleague of Bayer’s. The defendant reiterated that Bayer was his lawyer, that he had written her a letter and that Freeman was not his lawyer. Freeman stated that in October, he had conversations with the defendant and Hyde and agreed to file an appearance in lieu of Hyde in the first case. The state agreed that the only appearance in its file was for Freeman and that it was for both cases.

The court took a ten minute recess and requested that the court clerk’s office contact Bayer’s office to determine whether either Bayer or Hyde represented the defendant. The defendant began “acting up” with the courtroom marshal, and the court instructed the marshal to remove the defendant from the courtroom. Following the recess, the court warned the defendant that his behavior earlier interrupted the proceedings, and that continued disturbances would not be tolerated. The court told the defendant that if he continued to conduct himself in such a manner, he would be removed from the courtroom and would not be able to participate in the trial. The court also asked the defendant if he understood. The defendant replied that he did.

The court then informed the defendant that the clerk’s office had reached Hyde and that it was his position that neither he nor Bayer represented the defendant in the matter. The defendant stated that Freeman did not represent him, either, and that he needed to obtain new counsel. The court informed the defendant that Freeman did represent him, as he had filed an appearance. The defendant disputed that, stating that he had a say in who would be his attorney. The court informed the defendant that he indeed did have a say in who would be his attorney, but only up until the time of trial, after which he needed a continuance from the court to hire new counsel. The defendant stated that he wanted to hire different counsel. The court denied the request because (1) the case had been pending since May, 2002, (2) Freeman’s appearance had been in the file since October 24, 2002, (3) the case already had been continued thirteen or fourteen times and (4) Hyde did not appear for the defendant on any of those continuances, nor did anyone else from his firm. The court concluded that because the jury had been selected and the presentation of evidence was to commence that morning, Freeman would continue to represent the defendant.

Thereafter, a discussion ensued about whether the defendant wanted to accept the state’s plea offer rather than proceed to trial. The defendant did not accept the offer. The court then asked the parties whether there was anything further before it brought in the jury. The court and the defendant had another exchange about Freeman that culminated in the defendant’s leaving the courtroom. Freeman subsequently made an oral motion for a competency examination pursuant to General Statutes § 54-56d (c), which the court denied.

The defendant was not present during the direct or cross-examination of any of the witnesses. As to the first case, the jury found the defendant guilty of possession of marijuana in violation of General Statutes § 21a-279 (c), possession of drug paraphernalia in violation of General Statutes § 21a-267, operation of a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 (a) and two counts of interfering with a police officer in violation of General Statutes § 53a-167 (a). The jury also found the defendant guilty of possession of narcotics in violation of § 21a-279 (a), possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and operation of a motor vehicle while his license was under suspension in violation of § 14-215 (a) related to the second case.

Pursuant to a part B information, the court found that the defendant committed the offenses related to the second case while on release, thereby subjecting him to a sentence enhancement pursuant to General Statutes § 53a-40b. On June 3, 2004, the court imposed a total effective sentence of twenty-seven years incarceration. Following a trial on the merits, a habeas court restored the defendant’s appellate rights on May 17, 2010. This appeal followed. Additional factual and procedural history will be set forth as necessary.

I

The defendant claims first that the court improperly continued the trial in his absence without ascertaining that he validly waived his sixth amendment right to confrontation. We disagree.

The defendant affirmatively requests review of this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Peeler, 271 Conn. 338, 369 n.29, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). We determine, however, that the defendant waived his right to be present during the trial and conclude that the alleged constitutional violation therefore fails to satisfy the third prong of Golding.

“It has long been settled that an accused enjoys a right both at common law and pursuant to the sixth amendment’s confrontation clause to be present at all stages of trial. ... It is also well settled that under the due process clauses of the fifth and fourteenth amendments a defendant must be allowed to be present at his trial to the extent that a fair and just hearing would be thwarted by his absence. . . . Nevertheless, the defendant’s presence is not required when the right is waived. Waiver in this context is addressed both in our rules of practice and in our case law.

“Under our rules of practice, the trial court in its discretion may exclude the defendant if it determines that the defendant waived his right to be present or if the defendant’s absence is justified due to his or her conduct. Practice Book § 44-8 provides in relevant part: The defendant must be present at the trial and at the sentencing hearing, but, if the defendant will be represented by counsel at the trial or sentencing hearing, the judicial authority may: (1) Excuse the defendant from being present at the trial or a part thereof or the sentencing hearing if the defendant waives the right to be present; (2) Direct that the trial or a part thereof or the sentencing hearing be conducted in the defendant’s absence if the judicial authority determines that the defendant waived the right to be present ....

“Relevant cases instruct that [a] defendant in a criminal prosecution may waive one or more of his or her fundamental rights. ... In [State v.] Patterson, [230 Conn. 385, 396, 645 A.2d 535 (1994)], our Supreme Court stated that [i]n some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. ... In other circumstances, waiver can be implied. . . . Our Supreme Court has . . . held that a defendant may waive his constitutional right to be present dining trial merely by an unexplained absence. . . .

“In discussing the circumstances in which a valid waiver might be present, our Supreme Court noted that [w]hether there has been an intelligent and competent waiver of the right to presence must depend, in each case, upon the particular facts and circumstances surrounding that case. ... [A] waiver of the right to be present at a criminal trial may be inferred from certain conduct engaged in by the defendant after the trial has commenced.” (Citations omitted; internal quotation marks omitted.) State v. Vines, 71 Conn. App. 751, 767-68, 804 A.2d 877 (2002), aff'd, 268 Conn. 239, 842 A.2d 1086 (2004). “[A] trial court need not engage in a colloquy with a defendant expressly focused on the defendant’s understanding of his right to be present to determine that a waiver of the right of presence was valid. Rather, the court may infer the defendant’s waiver from the totality of his acts and conduct, so long as the defendant has been adequately informed that the trial would continue in his absence.” State v. Gonzalez, 205 Conn. 673, 689, 535 A.2d 345 (1987).

The record in this case is sufficient to support the conclusion that the defendant waived his right to be present during the trial. When the defendant’s behavior initially interrupted the proceedings, the court warned the defendant that further interruptions would not be tolerated, and that if he continued to behave in such a manner, he would be removed from the courtroom during the trial and would not be able to participate in the trial. The court asked the defendant if he understood, and he said yes. Although the defendant was not removed because of his disruptive conduct, that statement informed him that the trial could continue in his absence. When the defendant later refused to accept Freeman as his attorney, he told the court that he was leaving the courtroom and that “[y]ou all can do whatever you all want to do, I’m leaving.” The defendant’s statement indicates that he understood the proceedings would continue in his absence. The court informed the defendant that it was his choice to leave, and the defendant then voluntarily asked to be removed from the courtroom. The court instructed the marshal that the defendant could be removed “since [the defendant] does not want to be present during the proceedings.” This statement again indicated to the defendant that the proceedings would continue in his absence. The court also informed the defendant that if he changed his mind and wanted to come back, he should let the marshal know. The defendant did choose to return to the proceedings and was present when the court delivered its charge to the jury.

We appreciate that the defendant’s right to be present at all stages of his trial is “scarcely less important to the accused than the right of trial itself. ” Diaz v. United States, 223 U.S. 442, 455, 32 S. Ct. 250, 56 L. Ed. 500 (1912). However, “[w]e cannot permit an accused to elect one course at the trial and then ... to insist on appeal that the course which he rejected at the trial be reopened to him . . . .” (Internal quotation marks omitted.) State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987). “If a defendant deliberately leaves the courtroom after his trial has begun, he forfeits his right to be present at trial. . . . Having forfeited that right, he cannot be allowed to claim any advantage because of his absence.” (Citation omitted.) Id.

Where, as here, the court indicated to the defendant that the trial would continue in his absence and he voluntarily left, the defendant’s waiver may be inferred from his conduct. See State v. Gonzalez, supra, 205 Conn. 689. Because the defendant waived his right to be present for the trial, we conclude that he has failed to demonstrate that the alleged constitutional violation clearly deprived him of a fair trial. The defendant, therefore, has failed to satisfy his burden pursuant to the third prong of Golding.

n

The defendant claims next that the court abused its discretion in refusing to grant a continuance to allow him to obtain alternative counsel. We disagree.

Although the original appearance forms are not in the record before us, the transcripts of various proceedings offer some indication of the appearances that were made on behalf of the defendant. On September 19, 2002, Freeman and Hyde appeared before the court. The defendant also was present. Freeman told the court that he represented the defendant in docket number CR-02-0185248-S, the second case, and Hyde told the court that he represented the defendant in the first case, docket number CR-02-0183551-S. Freeman explained at the start of the trial that in October, he had conversations with the defendant and Hyde and, on the basis of those conversations, he agreed to file his appearance in lieu of Hyde in the first case. On October 24, 2002, both attorneys again appeared before the court, and Hyde told the court that Freeman was going to file an appearance in lieu of his appearance in the first case. From that point on, neither Hyde nor Bayer appeared in court on the defendant’s behalf.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . After the commencement of trial, neither a right to be represented by counsel of choice nor a right to due process entitle a defendant to a continuance on demand. . . .

“Among the factors that may enter into the court’s exercise of discretion in considering a request for a continuance are the timeliness of the request for continuance; the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request . . . the timing of the request; the likelihood that the denial would substantially impair the defendant’s ability to defend himself; [and] the availability of other, adequately equipped and prepared counsel to try the case. . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial. ... In order to work a delay by a last minute [replacement] of counsel there must exist exceptional circumstances.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Ross V., 110 Conn. App. 1, 7-8, 953 A.2d 945, cert. denied, 289 Conn. 939, 958 A.2d 1247 (2008).

The defendant argues that, because Freeman stated that there had been a breakdown in communication, the court improperly denied his request for a continuance to find new counsel. Our Supreme Court has observed that “[although under some circumstances a complete breakdown in communication between a defendant and his counsel may warrant appointment of new counsel ... a defendant is not entitled to demand a reassignment of counsel simply on the basis of a breakdown in communication which he himself induced.” (Citation omitted; internal quotation marks omitted.) Sekou v. Warden, 216 Conn. 678, 688, 583 A.2d 1277 (1990). In moving for a competency evaluation, Freeman stated that there had been a breakdown in communication because the defendant “listens to nothing. And not only does he not listen, he doesn’t allow me to speak.” The court reasonably concluded that the defendant was responsible for whatever lack of communication existed at the outset of his trial. Accordingly, the defendant cannot now rely on a breakdown in communication that he induced to argue that his motion for a continuance to find new counsel should have been granted.

The defendant additionally argues that, because Bayer’s and Hyde’s firm still appears as counsel of record on the Judicial Branch’s website in MV-02-0383935-S, the motor vehicle docket associated with the second case, there was sufficient cause to grant a continuance. We cannot discern whether Freeman had an appearance in the motor vehicle file associated with the second case from the record before us. We reiterate that both attorneys represented to the court that although Hyde initially represented the defendant in the first case and Freeman in the second, Freeman filed an appearance in lieu of Hyde in the first matter. There is no indication in the transcripts or the record before us that Hyde, nor his colleague Bayer, ever filed an appearance in the second case. At no time was it brought to the court’s attention that Freeman did not have an appearance filed for docket number MV-02-0383935-S. The court ascertained that Freeman was the only attorney with an appearance filed on the defendant’s behalf and confirmed that neither Hyde nor Bayer represented the defendant in any of the pending matters. Both Freeman and the prosecutor confirmed that Freeman was the counsel of record in both cases. On the basis of our review of the record, we cannot conclude that the court abused its discretion by denying the request for a continuance because of the confusion caused by the various appearances. The defendant has not demonstrated that there existed the exceptional circumstances necessary to warrant a delay by a last minute replacement of counsel. See State v. Ross V., supra, 110 Conn. App. 8.

We also note the court’s finding that the defendant’s request was an attempt to delay the proceedings. In ruling on Freeman’s motion for a competency evaluation, the court noted that “the whole issue with attorney Bayer representing him, he decided to bring this morning just as we’re about to start the evidence in this case, even though neither Ms. Bayer, nor Mr. Hyde nor anyone from their office had been in court with him for the last thirteen or fourteen court appearances. If [the defendant] truly believed that . . . Ms. Bayer represented him or Mr. Hyde, then that’s something that he would have made known to the court sometime in advance. So, what I discern from that is that the defendant [is] not liking where we are at in terms of this trial, in other words . . . [he] is now doing everything he can to disrupt the orderly presentation of evidence in this case.” “A court need not permit the replacement of counsel upon a defendant’s mere whimsical demand and certainly not where it is evident that a professed disenchantment with his lawyer is a subterfuge to secure an unwarranted delay in the trial.” (Internal quotation marks omitted.) Sekou v. Warden, supra, 216 Conn. 686-87. The record supports the court’s finding that the defendant had other opportunities to make known to the court that Freeman was not his counsel of choice in the first case. For example, the defendant was present in court with Freeman on March 2, 2004, for jury selection, at the outset of which the court informed the jury panel that the case involved charges related to two files from two incidents. In light of the court’s finding that the defendant’s request for a continuance to find new counsel was merely a delay tactic, we cannot conclude that the court abused its discretion in denying such a request.

III

The defendant also claims that the court abused its discretion and denied him due process of law by proceeding with the trial without further determining whether he was competent to stand trial. We disagree.

After the defendant left the courtroom, Freeman made an oral motion for a competency evaluation pursuant to § 54-56d. Freeman argued that the defendant’s behavior suggested that he was “not in touch with reality.” He argued that there had been a breakdown in communication and that there is “a mental process that prevents [the defendant] from cooperating with counsel.” The court denied the motion and concluded, based on its observations of the defendant, that he merely was attempting to disrupt the orderly presentation of evidence in this case. It did not find that he was unable to understand the proceedings or unable to assist counsel, and determined that there was no psychiatric component to the defendant’s behavior.

“As a matter of constitutional law, it is undisputed that the guilty plea and subsequent conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. . . . This constitutional mandate is codified in our state law by ... § 54-56d (a), which provides that [a] defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense. . . . [Section] 54-56d (b), however, posits a presumption in favor of a defendant’s competence. . . . Every criminal defendant is presumed to be competent. General Statutes § 54-56d (b). During the course of the criminal proceedings, however, if it appears that the defendant is not competent, either party or the court may request an examination to determine the defendant’s competency. General Statutes § 54-56d (c).

“The provisions of § 54-56d state that if it appears that the defendant is not competent, and if the trial court finds that a request for a competency evaluation is justified, the court must order a competency examination. We have interpreted this standard as requiring a competency evaluation any time a reasonable doubt is raised regarding the defendant’s competency. ... To establish such reasonable doubt, the defendant must present substantial evidence, not merely allegations, that he is incompetent. . . . Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency ....

“We review the court’s ruling on a motion for a competency evaluation under the abuse of discretion standard. ... In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) State v. Kendall, 123 Conn. App. 625, 650-51, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).

The defendant argues that the court improperly rejected his counsel's representations that his “behavior suggests . . . that he is not in touch with reality” and that “there’s something not quite right in his head.” We disagree. “Although the opinion of defense counsel is a factor to be considered when considering a § 54-56d motion, the court need not accept counsel’s opinion without question.” State v. Collazo, 113 Conn. App. 651, 663, 967 A.2d 597, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). The court denied the motion on the basis of its own observations of the defendant. See State v. DesLaurier, 230 Conn. 572, 590, 646 A.2d 108 (1994) (trial court may rely on its own observations of defendant, including demeanor, tone and attitude). The court’s observation of the defendant in this case was that his lack of cooperation with counsel was an attempt to delay or disrupt the proceedings. Such behavior is insufficient to establish incompetence. See State v. Johnson, 22 Conn. App. 477, 489, 578 A.2d 1085 (defendant’s “obstreperous, uncooperative or belligerent behavior” including refusal to return to court and hostility toward attorney did not require competency evaluation), cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). The court did not abuse its discretion in denying the motion for a competency evaluation.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the court deprived him of his right to a juiy trial by enhancing his sentence pursuant to General Statutes § 53a-40b based on its finding that he committed the offenses while out on bond. The defendant concedes that this claim is bound by State v. Fagan, 280 Conn. 69, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). In Fagan, our Supreme Court rejected the claim that a trial court deprives a defendant of his constitutional right to a jury trial when it enhances its sentence pursuant to § 53a-40b. Id., 89-102. Accordingly, we do not address this claim.

       The following colloquy transpired between the court and the defendant:
      “The Defendant: He’s not my lawyer, so I’m leaving the courtroom. You all can do whatever you want to do, I’m leaving. You’re not my lawyer. You’re not representing me. So, I’ll leave the courtroom.
      “The Court: Mr. Crawley, if you want to voluntarily absent yourself from the proceedings, that’s your choice.
      “The Defendant: I want to leave the courtroom. He’s not my lawyer. You can’t force him to represent me on this case. You can’t force him. So, I’m leaving the courtroom.
      “The Court: Okay.
      “The Defendant: You can’t force him to represent me on this case.
      “The Court: Okay.
      “The Defendant: He’s not my lawyer. I paid Terri Bayer for this case, so she’s supposed to be here.
      “The Court: All right, you can remove the defendant since he does not want to be present during the proceedings.
      “The Marshal: Yes, Your Honor.
      “(WHEREUPON, THE DEFENDANT VOLUNTARILY ASKED TO BE REMOVED FROM THE COURTROOM.)

        “The Court: If you change your mind, Mr. Crawley, and you want to come back—
      “The Defendant: As long as Terri Bayer is here, I’ll change my mind. I’ll come back.
      “The Court: — please let the marshal know.
      “(WHEREUPON, THE DEFENDANT WAS TAKEN BACK TO LOCKUP).”

       Under Golding, “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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Recognizing that importance, we agree with our Supreme Court’s statement in State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987), that “[w]hile we have not required the procedure of bringing the defendant personally before the court, advising him of his right to be present, and then permitting a knowing and intelligent waiver ... we do believe that a defendant should be warned of the consequences of his failure to attend trial.” (Citation omitted.) The court concluded, however, that “it is sufficient if the trial court indicates to the defendant that the trial will continue in his absence”; id.; and it is therefore that standard that we apply in the present case.

       The record before us does not reflect whether the defendant was present for this proceeding, as he was for the September 19, 2002 proceeding.

       In ruling on Freeman’s motion for a competency evaluation, the court stated: “I don’t find that he’s unable to understand the proceedings, or unable to assist counsel. I just find that he’s a management problem in that he doesn’t like what he’s hearing and so he’s acting out accordingly.”