author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. MICHAEL MYERS
    (AC 32026)
    Bishop, Beach and West, Js.

      Argued November 9, 2010
    officially released January 25, 2011

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Kevin Doyle, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Michael Myers, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a and 53a-55 (a) (1), carrying a pistol without a permit in violation of General Statutes § 29-35, tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that the trial court improperly (1) failed to admit a defense witness’ statement into evidence under the spontaneous utterance exception to the hearsay rule, (2) denied the defendant access to mental health records of a state’s witness following in camera review, (3) admitted a photograph of the victim into evidence, (4) instructed the jury that evidence of motive was “desirable and important,” and (5) denied his Batson challenge during jury selection. We affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. The defendant had a tempestuous relationship with Shaquita Alston, the mother of his child. On the night of June 2 and the early morning of June 3, 2005, Alston met the victim, William Corey, at a nightclub in New Haven, after which they had sexual relations at his apartment. Corey then drove her back to her residence, where they found the defendant waiting outside. The defendant advised Corey that he would talk to him later.

Over the next two days, the defendant argued with Alston, accusing her of having sexual relations with Corey, which she denied. Subsequently, in the early morning of June 5, 2005, she physically attacked the defendant when she saw him with another woman at his house. On the night of June 6, 2005, the defendant and Alston spent time together at his house, during which he telephoned Corey and arranged a meeting. He took a handgun with him when he and Alston left the house.

The defendant and Alston walked to meet Corey, who was waiting in his car. Both got into Corey’s car, which he then drove around New Haven, at which time the defendant asked questions about what had transpired between Corey and Alston on the morning of June 3. During this time, the defendant also telephoned a friend of Alston who had left the club with her and Corey on June 3. At some point, the defendant directed Corey to stop the car and exited on the passenger side after Alston. Standing outside the car, he fired one gunshot into Corey and ran from the scene. Corey died of internal bleeding caused by the single gunshot wound.

The defendant subsequently was arrested and charged with murder in violation of General Statutes § 53a-54a (a), carrying a pistol without a permit in violation of § 29-35, tampering with physical evidence in violation of § 53a-155 (a) (1) and criminal possession of a firearm in violation of § 53a-217 (a) (1). After a jury trial, the defendant was convicted of the lesser included offense of manslaughter in the first degree with a firearm in violation of §§ 53a-55a and 53a-55 (a) (1), carrying a pistol without a permit, tampering with physical evidence and criminal possession of a firearm. The court imposed a total effective sentence of fifty years incarceration. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant’s first claim is that the court improperly failed to admit a witness’ statement into evidence under the spontaneous utterance exception to the hearsay rule. He also argues, in the alternative, that the statement should have been admitted under the residual exception. We are not persuaded.

The following additional facts and procedural history are relevant to this claim. The defendant decided not to testify at his trial, but his recorded statement to the police of June 9, 2005, was in evidence. In that statement, he told the police that, after shooting Corey, he told “some lady outside” to call the police because “somebody been shot.” During the trial, the defendant sought to introduce the testimony of Sabrina Brown regarding that statement, and the state filed a motion in limine to preclude it. In an offer of proof, Brown testified that she lived close to the crime scene and knew the defendant. She testified that on June 6, 2005, he knocked on her door and stated his name, and, when she opened the door, he asked if she could call 911 because someone was hurt. She described his demeanor at the time as “[l]ike hi[m]self really. Flat. . . . Soft spoken.” She also testified that the police arrived “five to ten minutes” after the defendant left her front door.

The defendant argued that Brown’s testimony that the defendant asked her to call 911 was relevant to demonstrate that he lacked the intent to cause Corey’s death and was admissible under the spontaneous utterance and residual exceptions to the hearsay rule. The court found that the defendant’s statement was not a spontaneous utterance because, when he made it, he did not appear to be under the influence of a startling event and he had had the time and motive to fabricate the self-serving statement. For the same reasons, the court found that the statement lacked the requisite reliability to be admitted under the residual exception.

“The excited utterance exception is well established. Hearsay statements, otherwise inadmissible, may be admitted into evidence to prove the truth of the matter asserted therein when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. . . . Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge. . . . The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion.” (Internal quotation marks omitted.) State v. Kendall, 123 Conn. App. 625, 666, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010); see also Conn. Code Evid. § 8-3 (2).

Our Supreme Court first recognized the spontaneous utterance exception in Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924), and listed the following elements to guide the trial court’s factual determination: “The element of time, the circumstances and manner of the accident, the mental and physical condition of the declarant, the shock produced, the nature of the utterance, whether against the interest of the declarant or not, or made in response to question, or involuntary, and any other material facts in the surrounding circumstances, are to be weighed in ascertaining the basic conclusion whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.” Id., 484. With regard to the element of time, “there is no identifiable discrete time interval within which an utterance becomes spontaneous; [e]ach case must be decided on its particular circumstances.” (Internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 375, 908 A.2d 506 (2006).

None of Brown’s testimony tends to establish that the defendant’s statement was spontaneous and uncon-trived. Her testimony gave no indication that the defendant was under the influence of a startling event but, rather, described him as “[f]lat” and “[l]ike hi[m]self.” She also indicated that time had elapsed between the incident and the statement. Although the time interval appears to have been short, given Brown’s testimony that the statement occurred before the police arrived, the time span between the shooting and the defendant’s arrival at Brown’s residence was not so close in time as to negate the opportunity for deliberation. Moreover, given that the statement was unsolicited and self-serving, not a single element of the defendant’s offer of proof clearly indicated that the statement was rehable. The court, therefore, did not abuse its discretion in concluding that the statement was inadmissible under the spontaneous utterance exception.

Likewise, the court did not abuse its discretion in determining that the statement was not admissible under the residual exception to the hearsay rule. “A hearsay statement that does not fall within one of the traditional exceptions to the hearsay rule nevertheless may be admissible under the residual exception to the hearsay rule provided that the proponent’s use of the statement is reasonably necessary and the statement itself is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.” (Internal quotation marks omitted.) State v. Faison, 112 Conn. App. 373, 383-84, 962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009); see also Conn. Code Evid. § 8-9. “A court’s conclusion as to whether certain hearsay statements bear the requisite indicia of trustworthiness and reliability necessary for admission under the residual exception to the hearsay rule is reviewed for an abuse of discretion.” State v. Faison, supra, 384. Given the lack of indicia of reliability noted above, the court did not abuse its discretion in declining to admit the statement under the residual hearsay exception.

II

We next address the defendant’s claim that the court improperly failed to disclose materials relevant for cross-examination that were contained in Alston’s mental health records, which the court had reviewed in camera. We disagree.

The following additional procedural history is relevant to this claim. On April 4,2008, the defendant filed a motion for in camera review of Alston’s sealed medical, mental health, substance abuse and parenting evaluation records. The motion requested the disclosure of information relevant to her ability to comprehend, know or correctly relate the truth; her reliability, credibility, and ability to testify truthfully; and her sense of perception. She consented to the in camera review. Upon inspecting the records, the court determined that only one page was relevant to her testimonial capacity. The court disclosed that document to the defendant after the state had obtained Alston’s consent to do so. The court also determined that the remainder of the documents were not relevant to her capacity to testify and ordered that they be sealed as a court exhibit and preserved for appellate review.

“It is well established that [a] criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. . . . Thus, in some instances, otherwise privileged records . . . must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility. . . .

“We are mindful, however, that the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. . . . The need to balance a witness’ statutory privilege to keep psychiatric records confidential against a defendant’s rights under the confrontation clause is well recognized. . . . The test and the associated burdens imposed on a defendant are equally well chronicled. If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury’s presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. ... If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. . . .

“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. ... If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. . . . Once the trial court has made its inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb unless abused.” (Citations omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 379-81, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).

Our review of Alston’s records satisfies us that the sealed records either were not relevant to Alston’s capacity to observe, recollect or narrate the events surrounding the shooting or were cumulative of the record that the court disclosed to the defendant. Accordingly, the court did not abuse its discretion in not disclosing them to the defendant.

Ill

We turn next to the defendant’s claim that the court improperly admitted into evidence a photograph of Corey taken prior to the date of the offense and permitted an enlarged version to be displayed during the state’s closing argument. We are not persuaded.

The following additional procedural history is relevant to this claim. During trial, the court admitted as a full exhibit a studio portrait, measuring five inches by seven inches, of Corey wearing a shirt and tie taken prior to the date of his death. The state offered the photograph to assist in its identification of Corey and suggested General Statutes § 54-85e as a legal basis for its admissibility. The defendant objected on the ground that § 54-85e provides for a display of a photograph during opening and closing arguments but does not provide for its admission as an exhibit. The court admitted the photograph, instead, under the rules of evidence on the basis of its relevance to the state’s burden to prove that a person was killed and to identify that person, stating that the “permissive use” of a photograph not in evidence provided in § 54-85e does not preclude the admission of a photograph under the rules of evidence. The court also noted that the photograph was “of the proper size, not inflammatory, and a fair and accurate representation” of Corey. Following closing argument, during which the state again displayed the photograph, this time by a means of projection, the defendant objected that it had been enlarged to approximately four feet by two feet, exceeding the size permitted by § 54-85e. The court noted the obj ection and stated for the record that the display was not inflammatory or prejudicial; the photograph was displayed momentarily, then taken off; and neither § 54-85e nor “anything else” precluded the state’s use of the photograph.

On appeal, the defendant contends that because such a photograph likely inflames the emotions of the jury in a death related case, the legislature provided § 54-85e as the exclusive means for the presentation of an image of a deceased victim taken prior to the date of the offense. Because this claim entails statutory interpretation, our review is plenary. In re A.R., 123 Conn. App. 336, 339, 1 A.3d 1184 (2010). “In construing [a statute], we are mindful of General Statutes § l-2z, which instructs us that [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to determine that [intent and the meaning of a statute] ... § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Bank of New York v. Bell, 120 Conn. App. 837, 845, 993 A.2d 1022, cert. denied, 298 Conn. 917, 4 A.3d 1225 (2010).

In the case of § 54-85e, we need not look beyond the language of the statute because its language is clear and unambiguous. The statute pertains only to the non-evidentiary presentation of an image of a deceased victim and contains no restriction on the admission into evidence of a photograph of a deceased victim. Nor does it expressly abrogate or seek to supplant the rules of evidence adopted by the judiciary. The statute provides that such a photograph of a certain maximum size “may be shown to the jury dining the opening and closing arguments by the prosecutor.” General Statutes § 54-85e. Because the state’s opening statement precedes the presentation of evidence, a photograph displayed during the opening unquestionably is not in evidence. The statute, therefore, unambiguously pertains to the nonevidentiary presentation of an image of a deceased victim.

Consequently, the size restrictions provided in § 54-85e are inapplicable to the photograph at issue, which the court properly determined, in its discretion, to be admissible as a full evidentiary exhibit. “[0]ur Supreme Court consistently has held that the trial court’s determination on the admissibility of photographic evidence, including videotapes, will not be disturbed unless the trial court has abused its discretion. . . . [Photographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. . . . Therefore, it is not necessary to show that the photographic evidence is essential to the case in order for it to be admissible. ... In determining whether photographic evidence is admissible, the appropriate test is relevance, not necessity.” (Internal quotation marks omitted.) State v. Ervin, 105 Conn. App. 34, 38-39, 936 A.2d 290 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008). Additionally, with regard to the admissibility of an allegedly inflammatory photograph, “a trial court has broad discretion in weighing the potential prejudicial effect of a photograph against its probative value.” (Internal quotation marks omitted.) State v. Bowman, 289 Conn. 809,820,960 A.2d 1027 (2008). Likewise, the decision to allow enlarged photographs to be displayed rests in the sound discretion of the trial court. See, e.g., State v. Parsons, 28 Conn. App. 91, 107, 612 A.2d 73 (enlargements added evidentiary value and shed light on material inquiry because they allowed jury to see photographs better), cert. denied, 223 Conn. 920, 614 A.2d 829 (1992).

Here, the court did not abuse its discretion in finding that this unremarkable photograph of Corey was not inflammatory and was relevant to identifying him. Nor, for the same reasons, did the court abuse its discretion in admitting the photograph as a full exhibit and permitting the state to display briefly an enlarged version of the exhibit during closing argument. Accordingly, the claim fails.

IV

We next address the defendant’s claim that the court improperly instructed the jury that evidence of motive was “desirable and important.” We are not persuaded.

The following additional procedural history is relevant to this claim. In his supplemental request to charge of April 21, 2008, the defendant objected to any characterization of motive evidence as “desirable” or “important,” arguing that this language had been used in appellate analysis but never explicitly approved for use in a jury charge. In its instructions to the jury, the court nevertheless stated: “While motive is not an element of the crimes charged, such evidence is both desirable and important . . . .” Subsequently, the defendant repeated his objection for the record.

We begin with the applicable standard of review for a claim of instructional error, “[individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Dougherty, 123 Conn. App. 872, 885, 3 A.3d 208, cert. denied, 299 Conn. 901, 10 A.3d 521 (2010). Additionally, “[w]hile a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a court need not tailor its charge to the precise letter of such a request. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Citations omitted; internal quotation marks omitted.) State v. Aviles, 277 Conn. 281,309-10, 891 A.2d 935, cert. denied, 549 U.S. 840,127 S. Ct. 108,166 L. Ed. 2d 69 (2006). For nonconstitutional claims, if a jury instruction is determined to have been improper, it is grounds for reversal only if it is reasonably probable that the jury was misled. Id., 310.

The defendant contends that the jury instruction improperly weighed the evidence of motive, taking from the jurors the free exercise of their judgment in contravention of State v. Rome, 64 Conn. 329, 338, 30 A. 57 (1894) (“[t]he jurors are the sole judges of the credibility of the witnesses, the weight of evidence, and the facts that it establishes; and any form of charge, the effect whereof is to take these from them, or to obstruct the free exercise of their judgment in passing upon these, is erroneous” [internal quotation marks omitted]). Placing the allegedly improper language in the context of the entire charge, however, the record reveals that the court did not invade the province of the jury. “The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.” (Internal quotation marks omitted.) State v. Bardliving, 109 Conn. App. 238, 242, 951 A.2d 615, cert. denied, 289 Conn. 924, 958 A.2d 153 (2008).

Here, the court twice stated that the evidence could be weighed either way: the existence of motive may be evidence of guilt, but the lack of motive may tend to raise a reasonable doubt. Calling the jury’s attention to the state’s offer of evidence suggesting that the defendant believed that Alston had been intimate with Corey, the court commented that the jury did not have to believe or accept the evidence and emphasized that it was the jury’s task to weigh the importance, “if any,” of such a motive or the absence thereof. The overall instruction provided the jury with balanced and appropriate guidance on that issue and did not weigh the evidence in favor of either party. See, e.g., State v. Francis, 90 Conn. App. 676, 688-89, 879 A.2d 457 (approving similar instruction as balanced and fair), cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005). Viewed within the context of the entire charge, the court’s characterization of motive evidence as desirable and important was not improper.

V

We turn next to the defendant’s claim that the court improperly denied his Batson challenge to the prosecutor’s peremptory strike of D, an African-American venireperson, during jury selection. In this regard, the defendant makes two distinct claims: (1) the state’s acceptance of other venirepersons who were similarly situated to D indicates that D’s dismissal was race based and (2) the reasons articulated by the prosecutor for striking D were insufficient and pretextual. We are not persuaded.

The principles of law and standard of review applicable to this claim are well established. “In Batson [v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)] the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . The court concluded that [although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race ....

“Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. . . .

“We have identified several specific factors that may indicate that [a party’s removal] of a venireperson through a peremptory challenge was . . . motivated [by race or gender]. These include, but are not limited to: (1) [t]he reasons given for the challenge were not related to the trial of the case ... (2) the [party exercising the peremptory strike] failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race [or gender] were asked a question to elicit a particular response that was not asked of the other jurors ... (4) persons with the same or similar characteristics but not the same race [or gender] as the challenged juror were not struck ... (5) the [party exercising the peremptory strike] advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the [party exercising the peremptory strike] used a disproportionate number of peremptory challenges to exclude members of one race [or gender]. . . .

“In assessing the reasons proffered in support of the use of a peremptory challenge . . . [a]n explanation . . . need not ... be pigeon-holed as wholly acceptable or wholly unacceptable . . . and even where the acceptability of a particular explanation is doubtful, the inquiry is not at an end. In deciding the ultimate issue of discriminatory intent, the judicial officer is entitled to assess each explanation in light of all the other evidence relevant to prosecutorial intent. ... As with most inquiries into state of mind, the ultimate determination depends on an aggregate assessment of all the circumstances. . . .

“Finally, the trial court’s decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court’s evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. . . . Accordingly, a trial court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) State v. Holloway, 116 Conn. App. 818, 822-24, 977 A.2d 750, cert. denied, 294 Conn. 902, 982 A.2d 646 (2009).

During voir dire, the prosecutor and defense counsel both questioned D. In response to the prosecutor’s questions, D revealed that he had been arrested by the New Haven police nineteen years earlier but believed that he had been treated fairly because he was innocent and the case had been nolled. He indicated that he did not harbor any bias against the criminal justice system or against police officers. In response to defense counsel’s questions, D revealed that his son had been prosecuted and convicted in the Milford court for armed robbery and was serving a twenty year sentence. He stated that he writes to his son but that his son does not write back. He also stated that his son’s situation would not affect his impartiality because his son was a grown man and has to live with his decisions. D also revealed that, when he was a young adult in Texas, he “used to run with a pimp” and once had carried a gun but had not used it. He noted, “When I did that, I was young, and I’ve never likefd] it then, I don’t like it now.” He also indicated that he had turned his life around since his “wild” youth.

After D’s voir dire, the prosecutor exercised a peremptory challenge to excuse D, and defense counsel raised a Batson objection. The prosecutor articulated three race neutral reasons for exercising his challenge: (1) similar to the defendant, D had been arrested by the New Haven police; (2) his son had been prosecuted by the Milford state’s attorney’s office, and the prosecutor disclosed that he had formerly worked at that office; and (3) because of D’s stated wild youth, there was a possibility that he would empathize with the defendant’s circumstances despite his promises of impartiality. Defense counsel responded that these reasons were insufficient because D stated that he was not biased as a result of these experiences, and he demonstrated that he was thoughtful, candid, aware of a juror’s responsibilities, and committed to being impartial. The court found that D’s experiences created a risk that he might empathize with the defendant and also found that the state had not engaged in a pattern of questioning him that was different from its treatment of other venire-persons. It concluded that there was nothing to suggest that the prosecutor had a race based ulterior motive in exercising a peremptory challenge to excuse D.

A

We first address the defendant’s claim that D received disparate treatment from the state as compared with other venirepersons, which, in turn, provides support for his argument that the state’s proffered explanation for striking D was pretextual. To substantiate his claim, the defendant compares the state’s treatment of D to its treatment of two accepted jurors, C and F, and two venirepersons, V and L, who were accepted by the state before they were dismissed by the defendant. The state contends, however, that these “ ‘additional facts’ ” are not part of the record for review because they were not before the court at the time that it made its finding on the defendant’s Batson challenge. The voir dire of C occurred on March 6; the Batson challenge regarding D occurred on March 7; and the voir dire of the other three took place on March 17 and 20, 2008.

Our Supreme Court has set a bright line rule that a Batson challenge is timely if the defendant raises it at any time before the jury is sworn. State v. Robinson, 237 Conn. 238, 245-50, 676 A.2d 384 (1996). The court noted in Robinson that to make a claim of disparate treatment, the defense would need to compare the prosecutor’s treatment of venirepersons throughout the process of jury selection; hence, the extension of time to make a challenge. Id., 249-50. It also noted, however, that any Batson claim not timely raised is deemed to have been waived. Id., 245-46, 250. “Timely objection enables the parties and the trial court (1) to preserve an adequate record for appeal, and (2) to avoid prejudicial error by permitting reconsideration while it is still possible.” Id., 252.

The court subsequently applied this rule in State v. Hodge, 248 Conn. 207, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). In Hodge, the defendant asked the trial court to compare the voir dire of six other venirepersons to the voir dire of the minority venireperson who was struck. Id., 227-28. Our Supreme Court held that the disparate treatment claim was unpreserved as to three of the venire-comparators because their voir dire had taken place subsequent to the defendant’s Batson challenge, which he had not renewed after viewing their voir dire. Id. It concluded that “[bjecause a disparate treatment claim raises factual questions that must be decided by the trial court, the defendant’s failure to raise the claim in the trial court is fatal to his claim on appeal.” Id., 228. Accordingly, in State v. Jackson, 95 Conn. App. 400, 410-14, 896 A.2d 137, cert. denied, 279 Conn. 904, 901 A.2d 1226 (2006), we declined to review a claim that the trial court should have reconsidered its denials of three prior Batson challenges after it sustained a Batson challenge as to a fourth venireperson, stating that “[djefense counsel was obligated to make known to the court his new claim under Batson, which was predicated on additional facts that were unavailable at the time the court made its prior rulings.” Id., 413; accord State v. Haughey, 124 Conn. App. 58, 61 n.3, 3 A.3d 980 (2010) (“these [disparate treatment] claims were not properly preserved at trial, as defense counsel failed to identify adequately the alleged venire-comparators during or after voir dire”).

In the present case, therefore, the disparate treatment claim is not reviewable because the record reveals that it was not preserved. In short, once the prosecutor had accepted any of the jurors whom the defendant claims were similarly situated to D, it was the defendant’s burden to renew his Batson challenge regarding D based on his claim of disparate treatment. Here, three of the allegedly comparable venirepersons were questioned subsequent to the Batson challenge of D’s dismissal, and the defendant did not renew the challenge before the jury was sworn so as to include them in the court’s consideration of the challenge, as required by Robinson and its progeny. Furthermore, even though the voir dire of C was part of the record at the time the court made its finding with regard to D, the defendant failed to raise disparate treatment as a ground for sustaining the Batson challenge. Consequently, the court never had the opportunity to consider disparate treatment as part of its assessment of the defendant’s Batson claim regarding D. Because the claim is unpre-served, it is unreviewable on appeal.

B

Turning now to the defendant’s claim that the state’s explanation for exercising its peremptory strike on D was insufficient and pretextuai, we conclude that the court’s rejection of the defendant’s Batson challenge was not clearly erroneous. Although the defendant acknowledges that an arrest record constitutes a race neutral ground for a peremptory strike; see State v. Smith, 222 Conn. 1, 14, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); he argues that, for this rule to apply, the arrest record must be tied to the crime and the facts of the case at bar. Our appellate courts, however, have not added such a gloss to the rule in the past. See, e.g., State v. Acosta, 119 Conn. App. 174, 185-86, 988 A.2d 305 (venireperson arrested on drug charge dismissed from robbery trial), cert. denied, 295 Conn. 923, 991 A.2d 568 (2010); State v. Sells, 112 Conn. App. 775, 786, 964 A.2d 97 (venireperson convicted of failure to appear dismissed from burglary trial), cert. denied, 291 Conn. 908, 969 A.2d 173 (2009). Moreover, the New Haven police are common to both D’s arrest record and the defendant’s case; thus, the defendant’s suggestive gloss would be unavailing to his claim, regardless.

The defendant also acknowledges that having a close relative who has been prosecuted may constitute a race neutral ground for the exercise of a peremptory strike. See State v. Kendall, supra, 123 Conn. App. 658. Nevertheless, he argues that the state failed to connect D’s experience with his incarcerated son to his potential performance as a juror. Additionally, although the defendant acknowledges that a venireperson’s troubled past has been held to constitute a race neutral ground for questioning his or her ability to be impartial; see State v. Hamlett, 105 Conn. App. 862, 878-79, 939 A.2d 1256, cert. denied, 287 Conn. 901,947A.2d343 (2008); he argues that D’s troubled past was so distant, occurring nearly twenty years before, that it would not affect his ability to be impartial. He also claims that the prosecutor’s questioning of D was merely perfunctory, given that the information that became the grounds for the peremptory strike was elicited during defense counsel’s voir dire of D, not the prosecutor’s voir dire. He asserts that the record in this regard demonstrates an intention on the part of the prosecutor to exercise a peremptory challenge to excuse D even before he began to question him. Finally, he asserts that the prosecutor should have believed D’s assurances that he could be impartial.

None of these arguments is availing. “[A] prosecutor is not bound to accept the venireperson’s reassurances, but, rather, is entitled to rely on his or her own experience, judgment and intuition in such matters.” State v. Hodge, supra, 248 Conn. 231. Furthermore, as the defendant acknowledges, all of the proffered grounds for the peremptory strike in this case have been approved as race neutral in past cases. We note again that “the fact-bound determination concerning the propriety of the use of peremptory challenges is a matter that necessarily must be entrusted to the sound judgment of the trial court, which, unlike an appellate court, can observe the attorney and the venireperson and assess the attorney’s proffered reasons in light of all the relevant circumstances.” Id., 261. Based on our review of the record, we find ample support for the court’s finding that the prosecutor’s use of the peremptory challenge to excuse D was race neutral. We conclude, accordingly, that the court’s rejection of the defendant’s Batson challenge was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       The defendant also claims that the court improperly denied his motion for rectification of a gap in the voir dire transcript of one of the jurors. Because we determine that his Batson claim of disparate treatment of venirepersons during jury selection was not preserved, there is no need for the missing transcript, and we need not address the claim.

       In Ms brief, the defendant requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because he properly preserved the claim at trial pursuant to Practice Book § 60-5, we need not engage m Golding analysis, as he suggests.

       These included records subpoenaed from the department of children and families, the Grant Street Partnership, the Hospital of Saint Raphael and the Yale Child Study Center.

       General Statutes § 54-85e provides: “A photograph not to exceed eight inches by ten inches solely of a deceased victim prior to the date of the offense for which the defendant is being tried, that is a fair and accurate representation of the victim and is not of itself inflammatory in nature, may be shown to the jury during the opening and closing arguments by the prosecutor.”

       In commenting on the “proper size” of the photograph, the court seems to have been referring to the size restrictions provided in § 54-85e. We do not interpret this as a suggestion by the court that § 54-85e governs the admission of a photograph into evidence, given that the court simultaneously distinguished the statute from the rules of evidence. Rather, we view the comment as surplusage.

       The photograph appears to have been projected on a screen during the state’s closing argument. The record reveals that the state had used a projector as an aid in presenting its case.

       The court’s instruction on motive was as follows: “I’m going to talk a bit about motive. Motive is not an element of any crime, and, therefore, the state is not required to prove any motive to you. While motive is not an element of the crimes charged, such evidence is both desirable and important, as it may strengthen the state’s case if an adequate motive can be shown. . . . Therefore, an absence of evidence of motive may tend to raise a reasonable doubt of the guilt of the defendant, but a total lack of evidence of motive does not necessarily raise a reasonable doubt as long as there is other evidence produced that is sufficient to prove all the elements of a crime beyond a reasonable doubt. Conversely, proof of motive does not relieve the state from the burden of proving all the elements of a crime.
      “In this case, on the issue of motive, the state offered evidence that the defendant believed that Shaquita Alston had been intimate with William Corey. You may consider such evidence if you believe it and further find [that] it logically, rationally and conclusively supports that the defendant had a motive to commit the crimes charged. On the other hand, if you do not believe such evidence or, even if you do, if you find that it does not logically, rationally and conclusively support the claim that [the defendant] had a motive to commit the crimes charged, then you may not consider that testimony for any purpose at all. You cannot use it for any other purpose. You can accept it or reject it just like any other evidence. By allowing it in gives it no special weight. A jury should examine the conduct of an accused in the light of the surrounding circumstances, and, knowing how the human mind ordinarily operates, the jury should try to determine whether on all of the evidence it can reasonably be inferred that the defendant had a motive to commit the crimes in accordance with the rule of circumstantial evidence I have already given you. If the existence of a motive can be found, that may be evidence of guilt; on the other hand, if no motive can be found, that may tend to raise a reasonable doubt as to the guilt of the defendant. Whether a motive can be found in this case is the determination that you should make and, thereafter, decide upon the weight such a motive or absence thereof should have, if any.”
      The court also noted that the jury’s consideration of motive applied only to the charges of murder and carrying a pistol without a permit.

       References to venirepersons will be made by use of initials to protect their legitimate privacy interests. See, e.g., State v. Holloway, 116 Conn. App. 818, 822 n.4, 977 A.2d 750 (2009).

       D stated the following: “When I was in Texas about sixteen years ago, I used to run with a pimp. All right. And we was at a club and one of his girls came in, and this guy was trying to run him over downtown, so we ran over with the pimp’s girl downtown. ... So, then we went to the car, we popped the trunk and started pulling out guns. Well, I’m petrified, you know, so we riding and I’m praying that we never run up on this person. . . . And we never did.”

       The defendant mistakenly asserts in his reply brief that the foregoing precedents are inapt in the present case because they pertain to the review of claims raised pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Robinson, in fact, makes no mention of Golding. See State v. Robinson, supra, 237 Conn. 238. Likewise, Golding review was not at issue in Hodge and Jackson. Instead, those opinions cited Golding simply for the rule that an appellate court will not supply a predicate factual determination where the defendant did not ask the trial court to make one. See State v. Hodge, supra, 248 Conn. 227; State v. Jackson, supra, 95 Conn. App. 414.

        Furthermore, because Robinson set a strict time frame for Batson claims with the express purpose of preserving an adequate record for appeal, an untimely Batson claim is not amenable to Golding review, which requires an adequate record. See State v. Robinson, supra, 237 Conn. 252 (“[tjimely objection enables the parties and the trial court... to preserve an adequate record for appeal”); State v. Golding, supra, 213 Conn. 239 (“a defendant can prevail on a claim of constitutional error not preserved at trial only if . . . the record is adequate to review the alleged claim of error”); see also, e.g., State v. Haughey, 124 Conn. App. 58, 61 n.3, 3 A.3d 980 (2010) (repudiating defendant’s contention that Batson claims of disparate treatment are reviewable in first instance pursuant to Golding).

       The defendant also mistakenly asserts that the timely Batson claim rule in Robinson and Hodge was overruled by the decisions of the United States Supreme Court in Snyder v. Louisiana, 552 U.S. 472, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008), Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005), and Johnson v. California, 545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). In those cases, the court reviewed the entire record to find disparate treatment despite the fact that a disparate treatment claim had not been raised in the trial court. Miller-El is distinguishable, however, because the scope of review in that case expressly was defined by the rules of federal habeas procedure, which do not apply here. See Miller-El v. Dretke, supra, 241 n.2.

        Snyder and Johnson are also procedurally distinguishable. The court in Snyder noted that “[i]n Miller-El v. Dretke, [supra, 545 U.S. 239] the [c]ourt made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder v. Louisiana, supra, 552 U.S. 478; accord Johnson v. California, supra, 545 U.S. 170 (“we assumed in Batson that the trial judge would have the benefit of all relevant circumstances”). While this rule governs our substantive review of a properly preserved constitutional claim of disparate treatment of venirepersons, the preservation of such a claim remains a matter of state procedure. See Johnson v. California, supra, 168 (“we recognize that States do have flexibility in formulating appropriate procedures to comply with Batson”); see also State v. Robinson, supra, 237 Conn. 246 n.7 (“[t]he United States Supreme Court has expressly not determined the point in time by which a criminal defendant must raise a Batson claim”), citing Ford v. Georgia, 498 U.S. 411, 423, 111 S. Ct. 850, 112 L. Ed. 2d 935 (1991) (“we recognized [in Batson) that local practices would indicate the proper deadlines in the contexts of the various procedures used to try criminal cases, and . . . left it to the trial courts, with their wide Variety of jury selection practices, ’ to implement Batson in the first instance”).
      The following principle, articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and quoted in Hodge, is particularly instructive with regard to the preservation of a constitutional claim: “The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to makefactual determinations, in order to decide the defendant’s claim.” (Emphasis added.) Id., 240. Because, in the present case, the defendant did not ask the trial court to make a factual determination comparing the state’s treatment of D with its treatment of other venirepersons, the disparate treatment claim is unpreserved and unreviewable on appeal.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    NANCY GRISWOLD v. JEFFREY STERN
    (AC 31367)
    Harper, Bear and Mihalakos, Js.

      Argued September 21, 2010
    officially released January 25, 2011

      David R. Gronbach, with whom, on the brief, was Robert L. Keepnews, for the appellant (plaintiff).

      Jessica D. Meerbergen, with whom, on the brief, was William J. Scully, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Nancy Griswold, appeals from the summary judgment rendered by the trial court in favor of the defendant, Jeffrey Stem, a physician. On appeal, the plaintiff claims that the court improperly rendered summary judgment in favor of the defendant after the plaintiff had withdrawn her expert witness disclosure. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. The plaintiff filed this medical malpractice action on December 21, 2006, alleging that the defendant, who served as the plaintiffs primary care physician from 1992 through October, 2005, deviated from the standard of care by failing to investigate properly and to diagnose the plaintiffs thyroid abnormality. The plaintiff alleges that, as a result of the defendant’s negligence in failing to investigate her symptoms fully or to refer her to a specialist, she experienced a delay in diagnosis and resulting treatment for thyroid cancer.

On January 3, 2007, the defendant served the plaintiff interrogatories and requests for production that sought information concerning any expert testimony the plaintiff intended to produce at trial. On May 2, 2007, the plaintiff responded that no expert had yet been retained but that “[u]pon retention of an expert, this information will be provided to [the defendant].” After attending several status conferences, the parties agreed to a trial date of November 4, 2008.

On March 28, 2008, the defendant filed a motion to dismiss on the basis that the plaintiff had failed to set forth in a written opinion from a similar health care provider a causal link between the alleged deviation from the standard of care and the treatment that the plaintiff received from the defendant. The motion was argued before the court, Alvord, J., on June 23, 2008, and was denied. On September 15, 2008, the plaintiff moved to continue the trial, which was opposed by the defendant. The court, Agati, J., denied the plaintiffs motion. Thereafter, on September 18, 2008, the plaintiff disclosed her expert witness, Martin Surks, a physician, to testify that the defendant breached the standard of care owed to the plaintiff. The defendant objected to the plaintiffs disclosure and moved to preclude Sinks’ testimony on the ground that the disclosure was untimely and would be unduly prejudicial.

Because the defendant’s objection was still pending and trial had been set to commence on November 4, 2008, the court postponed the trial and did not set a new trial date. On November 10,2008, the court, Alvord, J., heard argument on the defendant’s motion to preclude. On November 12, 2008, the court issued four specific orders: “1. Court overrules Defendant’s objection to disclosure of Dr. Surks, [the plaintiffs] [e]xpert. 2. Court orders Plaintiff make Dr. Surks available for deposition, said deposition to be completed by 12-31-08. Counsel to provide Court date(s) of said deposition. 3. Court orders Defendant to make Dr. Stem available for deposition completion by 1-15-09. 4. Court orders Defendant to disclose [his] [e]xperts by 3-15-09.” On November 14,2008, the plaintiff filed a motion for modification of the court’s orders, requesting that the court reverse the deposition deadline dates so that the defendant would be deposed before Surks. On December 1, 2008, the motion was denied. Subsequently, after the plaintiff failed to produce Surks for deposition as required by the court’s order, on January 2, 2009, the defendant filed a second motion to preclude the testimony of Surks. On January 16, 2009, the plaintiff formally withdrew her disclosure of Surks as an expert witness. On the same day, the defendant filed a motion for summary judgment, alleging that the plaintiff legally could not sustain her medical malpractice claim without an expert witness. The plaintiff objected to the defendant’s motion, arguing that expert testimony may not be necessary and, alternatively, that the pertinent inquiry was whether the plaintiff could produce an expert at trial “with appropriate and necessary discov-eiy . . . .” On March 16, 2009, the court, Brunetti,./., heard argument on the defendant’s motion for summary judgment.

On April 2, 2009, the court granted the defendant’s motion for summary judgment and, in a memorandum of decision filed on April 6, 2009, rejected the plaintiffs two proffered reasons for her lack of an expert: “In support of his motion for summary judgment, the defendant argues that the plaintiff has failed to present any expert evidence establishing that he deviated from the standard of care in treatment of the plaintiff. In response, the plaintiff argues that expert testimony may not be necessary in the instant action, as an expert witness is unnecessary in cases involving gross negligence. In support of this assertion, she has presented the court with an affidavit detailing the defendant’s lack of record keeping in relation to the amount of times she visited with him. In the alternative, she argues that she was precluded from obtaining an expert because of an improper scheduling order set in place by Judge Alvord on November 12, 2008. She argues that she had an expert but because of the scheduling order in place, it would have been prejudicial to have her expert deposed prior to the defendant being deposed, so she withdrew her expert.”

The court concluded that expert testimony was necessary to prove the plaintiffs case: “In the present case, the procedures and the risk factors related to the diagnosis and treatment of stage IV-A papillary thyroid cancer does not fall within the common knowledge of laypersons. The record keeping of the defendant and his alleged failed diagnosis of cancer is not the equivalency of leaving a surgical instrument in a patient. It is not so obvious or common in everyday life, nor is it so grossly negligent as to be clear even to a layperson. The plaintiff needs expert testimony to establish her claim of medical negligence and has not done so.”

The court then set forth its basis for the entry of summary judgment in favor of the defendant: “Summary judgment is appropriate for the defense if expert testimony regarding any of the required elements of a medical malpractice action is lacking. ‘[The Appellate Court] has approved the grant of a summary judgment in a medical malpractice case when ... it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding [one of the required elements].’ Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn. App. 750, 766, 785 A.2d 588 (2001).” The plaintiff, thereafter, filed a motion for reargument, which was denied by the court. This appeal followed.

Before turning to the plaintiffs claims, we first set forth our well settled standard of review. “Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. . . . Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . .

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard.” (Internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn. App. 555, 564, 1 A.3d 137 (2010).

The plaintiff obtained a continuance of the long scheduled November 4, 2008 trial date after her late disclosure of her expert witness. In choosing not to preclude the plaintiffs expert witness on November 12, 2008, the court specifically required that Surks be deposed prior to the defendant. The court went on to deny the plaintiffs motion for modification of that order. Because the plaintiff disagreed with the sequence of depositions set forth in the scheduling order, she deliberately refused to comply with that order and eventually withdrew her only expert on the standard of care and liability. The plaintiff does not deny her failure to comply with the court’s order. As is plainly stated in her appellate brief, the “[p]laintiff withdrew her disclosure of . . . Surks to prevent his deposition prior to the deposition of the [defendant. Had [the] [p]laintiff not done so, she would have found herself in the same situation as the plaintiff in Sullivan v. Yale-New Haven Hospital, Inc., [supra] 64 Conn. App. 750 . . . ,”

The plaintiff admitted that she intentionally had refused to comply with the court’s order to the point where she withdrew her expert. A party is bound to obey a court order despite the party’s belief that it is erroneous. “The collateral bar rule, initially applied in the context of a contempt proceeding, holds that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed . . . and that there is no privilege to disobey a court’s order because the alleged [subject] believes that it is invalid. . . . The collateral bar rule has been extended to apply to situations in which . . . the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order. [A]n order issued by a court of competent jurisdiction must be obeyed by the parties until it is reversed by orderly and proper proceedings. ... [A] party has the duty to obey a court order however erroneous [the party may perceive] the action of the court [to] be . . . .” (Citations omitted; internal quotation marks omitted.) State v. Winter, 117 Conn. App. 493, 501, 979 A.2d 608 (2009), cert. denied, 295 Conn. 922, 991 A.2d 569 (2010).

Here, the plaintiffs disregard of the court’s discovery order was deliberate and left the court with no expectation that she ever intended to disclose a new expert witness. The plaintiff did not move for an extension of time to disclose another expert after she withdrew her disclosure of Surks as an expert witness and before the court’s rendering of summary judgment in favor of the defendant. At the hearing on the summary judgment motion, the plaintiffs attorney was quite clear as to why the plaintiff withdrew Surks as an expert witness: “Simply stated, Your Honor, the sequencing of depositions placed the plaintiff at extreme prejudice, and the choice that was afforded us was either produce . . . Surks and have him deposed under circumstances where he could not offer a definitive opinion, or withdraw his designation as an expert witness.” The plaintiff went on to argue that “once a disclosure is made, it is not carved in stone [nor does it] remain in the case permanently and forever.” After the court specifically pointed out that the plaintiff still had no expert, the plaintiff responded that she “didn’t have an expert because that expert was exposed to deposition without having the benefit of the deposition of [the defendant]. . . . [I]n fact, the Connecticut Supreme Court has recognized changing the status of an expert as ... an acceptable means of preserving the point for appeal, which is exactly what we were doing.”

The plaintiffs assertions to the court made it clear that, barring a modification to the court’s previous order regarding the sequence of depositions, which had already been denied, the plaintiff had no intention of disclosing any expert witness. A thorough review of the record reveals that at no point, either during argument or through her written objection to the defendant’s motion for summary judgment, did the plaintiff ever represent to the court that she intended to disclose a new expert witness absent a modification to the deposition scheduling order. The plaintiff had more than two years from the filing of the action to obtain and to disclose an expert. We agree with the court that expert testimony was required in this case, and, through the plaintiffs representations to the court, upon which the court properly could rely, the court properly determined that the defendant was entitled to summary judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       According to the plaintiff, neither party received notice of the court’s decision. For that reason, the plaintiff filed a motion for reassignment of what she believed to be the undecided motion to dismiss, which was withdrawn when the plaintiff learned at a pretrial conference that the motion to dismiss had been denied.

       The court never ruled on the defendant’s second motion to preclude the plaintiffs expert because Surks had been withdrawn as an expert witness.

       “To prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.” (Internal quotation marks omitted.) Vitone v. Waterbury Hospital, 88 Conn. App. 347, 351 n.5, 869 A.2d 672 (2005).

         Because the claim that a plaintiffs expert must be deposed prior to a defendant is not properly before this court, we do not review that claim, nor do we review the applicability of Sullivan.

       In her objection to the defendant’s motion for summary judgment, the plaintiff argued that the relevant inquiry was whether she would be able to produce expert testimony at trial. It is clear from a reading of her argument that she only intended to produce an expert witness if the court’s deposition sequencing order was modified according to her wishes.


author: ALVORD, J.

text:
    GINA MCCARTHY, COMMISSIONER OF ENVIRONMENTAL PROTECTION v. CUSTOM DESIGN SERVICES, INC., ET AL.
    (AC 31117)
    Harper, Alvord and Hennessy, Js.

      Argued November 10, 2010
    officially released January 25, 2011

      Kimberly P. Massicotte, assistant attorney general, with whom were ScottN. Koschwitz, assistant attorney general, and, on the brief, Richard Blumenthal, former attorney general, and Sharon A. Scully, assistant attorney general, for the appellant (plaintiff).

      Gerald Hecht, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Gina McCarthy, the commissioner of environmental protection, appeals from the judgment of the trial court denying her motion for contempt against the defendants, Custom Design Services, Inc., Sulim Limited Partnership and Robert J. Vetter, for alleged violations of a stipulated judgment. The plaintiff claims that the court improperly found that (1) the civil penalty provision in the stipulated judgment gave the defendants the option to pay a civil penalty in lieu of performing the injunctive relief provisions of the judgment, (2) the defendants were not in contempt because they no longer owned the property and (3) the defendants’ failure to perform was not wilful. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our determination of the plaintiffs appeal. On July 17, 2002, the department of environmental protection (department) issued two orders requiring that the defendants take a number of actions to bring their property, located at 46 South Street, Danbury, into compliance with our state’s water pollution and hazardous waste statutes. On January 13, 2005, the department filed a complaint against the defendants, alleging multiple violations of those administrative orders and seeking temporary and permanent injunctive relief.

On March 6, 2006, the defendants’ environmental engineer, Theodore J. Stevens, submitted a site investigation report, concluding that there was “little evidence of significant contamination of soil or groundwater at the site” and suggesting certain remedial actions. The department’s compliance engineer, Kevin Clements, responded on July 13, 2006 (Clements letter), stating in part that “[further investigation and sampling are necessary” before the department would approve the site investigation report.

Thereafter, on November 15, 2006, the court granted the parties’ joint motion for the entry of a stipulated judgment and rendered judgment thereon. The stipulated judgment included two sections, section A, “Injunctive Relief,” and section B, “Civil Penalty.” Section A of the judgment specified remedial actions to be taken by the defendants to bring the property into compliance. Section B assessed a civil penalty in the total amount of $150,000 “payable as follows: (a) The defendants shall pay the amount of $50,000.00 on or before November 30, 2006. (b) In the event the defendants fail to timely comply with any of the injunctive provisions outlined in [sjection A of this judgment or fail to pay the $50,000.00 as specified in paragraph B (1) (a) above, then the remaining $100,000.00 shall become due and payable within ten days of the defendants’ receipt of written notice from the Attorney General’s Office . . . .”

The November 15, 2006 stipulated judgment also required, among other things, that the defendants respond to the Clements letter, which highlighted a number of problems with the site investigation report. On November 30,2006, Stevens replied to each of Clements’ comments in a letter (Stevens letter). Two weeks later, the office of the attorney general, on behalf of the department, issued a demand letter for the entirety of the civil penalty in the amount of $150,000, plus interest and costs.

No action was taken by either the defendants or the department for two months. On February 13, 2007, the defendants moved to “reopen and/or vacate” the judgment on the ground that the department had not responded in a timely fashion to the Stevens letter. The defendants argued that they had complied with the judgment by providing the Stevens letter with the required revisions to the site investigation report and that the department’s “inaction constitutes a breach of the stipulation . . . .” The court sustained the department’s objection, in which the department argued, inter alia, that there was nothing in the judgment that required it to respond by a certain date.

Not until March 5, 2007, did the department’s engineer, Clements, respond to the Stevens letter by requesting that the defendants provide supplementary testing results before the department would approve the site investigation report. Neither party took any action for one additional year until, on May 16, 2008, the department filed the motion for contempt underlying this appeal. The motion for contempt alleged that the defendants had violated the stipulated judgment in failing to (1) submit a revised site investigation report, (2) perform remedial measures, (3) monitor those remedial measures and (4) pay the civil penalty.

The defendants argued in their opposition, inter alia, that (1) they could not take remedial measures because they did not own the property and had no access to the property, (2) they were unable to adhere to the court order because of the department’s inaction and had, in fact, filed a motion to open because of the department’s unresponsive behavior and (3) their inability to pay the civil sanctions did not amount to wilful disregard of a court order as required for an order of civil contempt.

On August 27,2008, in an effort to collect the $150,000 judgment, the department, as judgment creditor, served the. defendants, as judgment debtors, postjudgment interrogatories. Shortly thereafter, the defendants filed a supplemental opposition to the motion for contempt, arguing that the stipulated judgment, by its terms, entitled the department to elect only one remedy for noncompliance with the injunctive provisions, payment of the $150,000 civil penalty. The defendants claimed that the “[p]laintiff chose [her] remedy. [She] chose to pursue collection of a $150,000 ‘judgment,’ and, as such, there can be no contempt of a court order that, by its own terms, contains its own penalty and remedy.”

After hearing testimony on the motion for contempt on September 25, 2008, the court requested that the parties file posttrial briefs. The defendants again argued that (1) the stipulated judgment was self-enforcing because upon demanding that the civil penalty be paid, the department was exercising its available remedy and could not pursue contempt, and (2) the court could not compel the defendants to take remedial actions on property they did not own or to which they lacked access. The department argued that (1) the court had the authority to compel the defendants to seek access to the site, particularly because they did have access to the site until January 23,2008, and (2) the defendants’ failure to comply with the terms of the stipulation subjected them to the power of the court to enforce its orders.

On October 8, 2008, the court rendered judgment for the entire $150,000 penalty against the defendants. On March 16, 2009, the court denied the motion for contempt, finding that “[a]bsent wilful conduct by the defendants and in light of the plausible interpretation of the stipulated judgment as allowing a monetary judgment as an alternative to performance of remedial actions, [it] cannot find that the defendants are in contempt.” This appeal followed.

We first set forth the applicable standard of review. “Guided by the principles that limit our review, our analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citations omitted.) In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).

“Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts. . . . Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt because [t]he contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind. . . . This is a long-standing tenet of the law of contempt. ... It is also logically sound that a person must not be found in contempt of a court order when ambiguity either renders compliance with the order impossible, because it is not clear enough to put a reasonable person on notice of what is required for compliance, or makes the order susceptible to a court’s arbitrary interpretation of whether a party is in compliance with the order.” (Citations omitted; internal quotation marks omitted.) Id., 695.

Our initial inquiry is whether the stipulated judgment constituted a court order that was sufficiently clear and unambiguous so as to support an order of contempt. The department claims that the stipulated judgment was unambiguous and that the injunctive provisions were binding despite the civil penalty portion, which was meant only as an inducement to obtain compliance with the injunctive section. The defendants contend that the stipulated judgment was not clear and unambiguous. Specifically, the defendants argue that they interpreted the stipulation as a self-executing agreement that provided that the collection of the civil penalty for $150,000 was the sole punishment for noncompliance and that it allowed a monetary judgment as an alternative to performance of the remedial actions. The trial court found this to be a plausible interpretation and, thus, declined to find the defendants in contempt. We agree with the court’s analysis.

In undertaking our plenary review, the assessment of whether the stipulated judgment was sufficiently clear and unambiguous is guided by the tenets of contract law. “A stipulated judgment is not a judicial determination of any litigated right. ... It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction.” (Internal quotation marks omitted.) Rocque v. Northeast Utilities Service Co., 254 Conn. 78, 83, 755 A.2d 196 (2000).

“Where the language is unambiguous, we must give the contract effect according to its terms. . . . Where the language is ambiguous, however, we must construe those ambiguities against the drafter. ... A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. ... In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so. ... If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Citations omitted; internal quotation marks omitted.) Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 735, 873 A.2d 898 (2005).

The language of the stipulated judgment fails to reflect whether the obligations imposed under section A remain enforceable if the defendants become fully liable for the $150,000 civil penalty imposed by section B. Reasonable minds could differ as to whether the imposition of liability on the defendants for the full $150,000 under section B was meant to preempt the department’s ability to seek other possible penalties or its authority to demand implementation of the remedial measures in section A. Consequently, because the “language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Internal quotation marks omitted.) Id. Accordingly, we determine that the language of the stipulated judgment is not sufficiently clear and unambiguous so as to support a judgment of contempt.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the commissioner of environmental protection acts on behalf of the department of environmental protection, references in this opinion to the department include the commissioner.

       The complaint invoked General Statutes § 22a-114 et seq., governing the control of hazardous waste, and General Statutes § 22a-416 etseq., governing water pollution.

       The July 13, 2006 letter references previous correspondence between the parties. According to that letter, the initial response to the site investigation report was via an April 18, 2006 memorandum from the department to the defendants, which Stevens responded to on May 25, 2006. The April memorandum and May letter are not in the record except by reference.

       This first motion for contempt also alleged that the defendants transferred the land without informing the plaintiff. On October 6, 2008, the plaintiff filed an amended motion for contempt, removing allegations of purposeful transfer of the property.

       Prior to the filing of the stipulated judgment, creditors had commenced foreclosure proceedings against the property, which ultimately resulted in a judgment of foreclosure by sale and a transfer of the property. It is undisputed that the defendants no longer owned the property when the motion for contempt was filed.

       We acknowledge that the trial court cited Sablosky v. Sablosky, 258 Conn. 713, 723, 784 A.2d 890 (2001), for the proposition that a finding of ambiguity does not bar a finding of contempt. In In re Leah S., supra, 284 Conn. 685, our Supreme Court distinguished the holding in Sablosky. It stated that although the court determined in Sablosky that a finding of wilfulness is not, as a matter of law, precluded by an ambiguity in the order underlying a claim of contempt, the Sablosky decision was “necessarily limited by the factual and procedural context in which the alleged ambiguity arose”; id., 695 n.9; where “previously compliant parties stopped complying with court orders after changes in circumstances rendered the orders unclear without first seeking judicial clarification . . . .” Id., 700. The present appeal is not analogous to Sablosky, and, therefore, our inquiry stops upon the determination that, upon plenary review, the stipulated judgment was not sufficiently clear and unambiguous to support a judgment of contempt.


author: PER CURIAM.

text:
    IN RE EMILE L.

    (AC 32295)
    (AC 32330)
    Bishop, Beach and West, Js.
    Argued November 9, 2010
    officially released January 25, 2011

      Edward L., pro se, the appellant in AC 32295 (respondent father).

      Julie L., pro se, the appellant in AC 32330 (respondent mother).

      Tammy Nguyen-O’Dowd, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Melissa A. Federico, for the minor child.

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

   Opinion

PER CURIAM.

The respondent mother and the respondent father, appearing pro se, appeal separately from the judgment of the trial court terminating their parental rights as to their minor child, Emile. On appeal, the respondents appear to present the following collective claims: (1) the court improperly determined that they had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the child’s life pursuant to General Statutes § 17a-112 (j) (3) (B) and (2) this court should transfer guardianship of the child to the paternal grandmother. We affirm the judgment of the trial court.

The record discloses the following procedural history. On June 30,2009, the petitioner, the commissioner of children and families, filed a petition seeking the termination of the parental rights of the respondent parents. On November 30, 2009, the court, Esposito, J., held a one day hearing. After the completion of the trial, Judge Esposito became ill and died on January 9, 2010. Subsequently, each respondent filed a motion for a mistrial. On February 17, 2010, the petitioner filed a motion to appoint a successor judge. Following a hearing on March 1, 2010, the court, Baldwin, J., granted the petitioner’s motion. On April 14, 2010, the court, by way of a fifteen page memorandum of decision, granted the petition to terminate the respondents’ parental rights.

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Sole S., 119 Conn. App. 187,191, 986 A.2d 351 (2010).

I

In their first claim, both respondents appear to argue that the court improperly found by clear and convincing evidence that they had failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B) that would encourage the belief that within a reasonable time they could assume a responsible position in Emile’s life. We disagree and address each of the respondent’s claims in turn following our recital of relevant law.

“We have stated that [p]ersonal rehabilitation as used in [§ 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . Rehabilitate means to restore [a . . . delinquent person] to a useful and constructive place in society through social rehabilitation. ... It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) In re Devon W., 124 Conn. App. 631, 644, 6 A.3d 100 (2010).

A

The father argues with respect to this claim that, because “he completed most of the programs” ordered by the department of children of families (department), he satisfied the requirements of § 17a-112 (j) (3) (B). He also avers that the department mandated an excessively onerous rehabilitation program and “wanted him to do the impossible” and to participate in such programs at the expense of losing his employment. We are not persuaded.

In its memorandum of decision, the court found these arguments to be unavailing and concluded that the father had failed to participate seriously in any court-ordered treatment to address his significant mental health issues. Specifically, the court cited the father’s “continued excessive use of alcohol and illegal substances,” coupled with his unrelenting pattern of domestic violence, as conditions dispositive of his failure to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B). These findings of noncompliance were supported by evidence that the father frequently refused to submit to hair and urine drug screenings from June to November, 2009, and that he blatantly refused to participate in a treatment program for domestic batterers, notwithstanding his extensive, well chronicled, and ongoing history of domestic violence. Accordingly, the court’s finding that the father failed to achieve a sufficient degree of personal rehabilitation as required under the statute was not clearly erroneous.

B

The mother’s argument with respect to this claim also appears to rely on her participation in certain treatment programs, ordered by the department, as being indicative of her rehabilitation. In support of her claim, she argues that she “completed all of the programs” that were ordered by the department. She also appears to assert that the court failed to take into account a back injury that rendered her unable to walk as a mitigating factor in her rehabilitation efforts. These arguments are without merit.

Although the court acknowledged that the mother had attended scheduled visits with Emile and developed a relationship with her, it concluded ultimately that her enduring drug use, issues of domestic violence and her established history of prebirth abuse were dispositive factors in its conclusion that she had failed to achieve a sufficient degree of rehabilitation pursuant to the statute. See In re Trevon G., 109 Conn. App. 782, 791, 952 A.2d 1280 (2008) (rejecting claim that respondent’s compliance with rehabilitation program bars termination of parental rights). A close examination of the record reveals that there is ample evidence to support the court’s finding. The mother has a long-standing addiction to illegal substances. Since Emile’s birth, she has failed repeatedly to participate in any meaningful treatment, despite an abundance of services offered to her. She has continually attempted to evade any type of drug testing, and on the rare occasion that she did submit to a drug test, she tested positive for cocaine. Moreover, the mother has a significant history of being the victim of, and engaging in, domestic violence with the father, all the while refusing treatment regarding this maladaptive behavior. Accordingly, the finding that the mother failed to achieve a sufficient degree of personal rehabilitation as required under the statute is not clearly erroneous.

We have examined the record and briefs and have considered the arguments of the parties and see no useful purpose in further repeating the facts or reciting the applicable law, as the court thoroughly set forth the relevant facts and the applicable law in its thoughtful and well reasoned decision. Based on our careful review, we conclude that the record amply supports the factual determinations made by the court, and we conclude that the court correctly applied the law to the facts it properly found. See In re Mariah P., 109 Conn. App. 53, 55, 949 A.2d 1292, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008).

II

Next, the respondents claim, in the alternative, that in the event that this court should deny their appeals, we should transfer the guardianship of Emile to her paternal grandmother. Our thorough review of the record reveals that the respondents have failed to preserve this claim and that there is no record for our review. It is well settled that the appellants must provide this court with an adequate record for review. Here, the mother did not file a motion to transfer guardianship until February 9,2010, after the trial was completed and, moreover, failed to raise the issue during the hearing to appoint a successor judge. The mother declined to challenge the legal analysis underlying the court’s decision that the motion to transfer guardianship was moot and appears to raise on appeal an argument that was not addressed in the trial court. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us [respecting the respondents’ claim] would be entirely speculative.” (Internal quotation marks omitted.) In re Tayler F., 111 Conn. App. 28, 51, 958 A.2d 170 (2008), aff'd, 296 Conn. 524, 995 A.2d 611 (2010). Accordingly, we decline to review this claim.

The judgment is affirmed.

       In docket number AC 32330, the mother appeals from the court’s judgment terminating her parental rights. In docket number AC 32295, the father appeals from the court’s judgment terminating his parental rights. Although the respondents have filed separate appeals, the claims raised in each appeal are identical. Therefore, we will review these claims collectively. At trial, each respondent was represented by counsel.

       General Statutes § 17a-112 (j) (3) (B) provides for the termination of parental rights when the child “(i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner [of children and families] for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       In their appellate briefs, the respondents also make identical claims of ineffective assistance of counsel. “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) State v. Cotto, 111 Conn. App. 818, 820-21, 960 A.2d 1113 (2008). Self-represented parties are not afforded a lesser standard of compliance, and “[ajlthough we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” (Internal quotation marks omitted.) Edelman v. Page, 123 Conn. App. 233, 242, 1 A.3d 1188, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010).
      In this case, the respondents have not articulated any legal authority for their claims nor have they shown how the alleged incompetency of their respective counsel contributed to the termination of their parental rights. “We decline to undertake appellate review of claims where there is no reasoned legal argument nor any citation to legal authority.” In re Michael L., 56 Conn. App. 688, 700-701, 745 A.2d 847 (2000). Accordingly, review of the respondents’ ineffective assistance claim is denied.

       The mother filed a motion for a mistrial on February 9, 2010. The father filed a motion lor a mistrial on February 15, 2010.

       The court also found that there was no ongoing parent-child relationship between the father and Emile pursuant to § 17a-112 (j) (3) (D). Because we conclude that the evidence was sufficient to support the court’s finding that the father had failed to achieve sufficient personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (ii), we need not address this issue. See In re Melody L., 290 Conn. 131, 143 n.9, 962 A.2d 81 (2009).

       There is ample evidence in the record that the father was addicted to cocaine and marijuana and has engaged in an ongoing pattern of violent behavior for many years.

       A review of the record reveals two recent incidents that illustrate the respondents’ predilection toward violence. On April 12, 2008, each was arrested for breach of the peace for an incident in which both father and mother physically assaulted each other. This incident resulted in a protective order being issued, restraining them from engaging in further assaultive behavior toward one another. In August, 2008, the respondents admitted to another incident of physical violence at the home of the mother’s parents after police were called and discovered a blood trail leading into the residence.

       On February 9, 2010, after the close of evidence, the mother filed a motion for a mistrial in response to the petitioner’s motion to appoint a successor judge. That same day, the mother also filed a motion to transfer guardianship of Emile to the paternal grandmother. On March 1, 2010, a hearing was held on the petitioner’s motion to appoint a successor judge, and the court granted that motion. Our review of the record reveals that at no time during that hearing did the mother address her motion to transfer guardianship, nor did she move the court to open the evidence in order to rule on the motion. Subsequently, the court found the motion to transfer guardianship moot. Thereafter, the mother failed to seek an articulation regarding the court’s ruling and, thus, failed to provide this court with an adequate record for review. See Practice Book § 61-10 (“It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”).