author: DUPONT, J. FLYNN, J.,

text:
    NICOLE ANN THIBODEAU v. DESIGN GROUP ONE ARCHITECTS, LLC
    (AC 20724)
    Schaller, Flynn and Dupont, Js.
    Argued April 4
    officially released July 31, 2001

      Gary E. Phelan, with whom, on the brief, was Elaine Rubinson, for the appellant (plaintiff).

      Michael D. O’Connell, with whom were Diane C. Mokriski and on the brief, Julia B. Morris, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff, Nicole Ann Thibodeau, appeals from the summary judgment rendered in favor of the defendant, Design Group One Architects, LLC. On appeal, the plaintiff claims that the trial court improperly determined as a matter of law that the statutory scheme of the Fair Employment Practices Act (act), General Statutes § 46a-51 et seq., bars a cause of action for wrongful discharge based on pregnancy if an employer has fewer than three employees. We hold that there is a public policy in Connecticut against sex discrimination in employment sufficiently expressed in statutory and constitutional law to allow a cause of action for discrimination based on pregnancy. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are necessary to our resolution of the plaintiffs appeal. In April, 1997, the defendant hired the plaintiff as a receptionist, secretary and bookkeeper. She was an at-will employee. At all times relevant, the defendant employed two individuals and had three principals. The act applies only to those employers with three or more employees. General Statutes § 46a-51 (10).

The plaintiff notified the defendant of her pregnancy in December, 1997. The defendant terminated the plaintiffs employment on or about April 28, 1998. The plaintiff filed a two count complaint on November 5, 1999, alleging wrongful termination of her employment in violation of public policy and a violation of the duty of good faith and fair dealing. The complaint alleged that the defendant had terminated the plaintiff “as a result of her doctor appointments,” which reason contravened public policy. In its answer, the defendant alleged that the plaintiffs termination stemmed from her performance deficiencies. The defendant, alternatively, denied that the plaintiff could avail herself of Connecticut’s public policy or federal public policy against pregnancy discrimination as embodied in General Statutes § 46a-60 (a) (7) and in 42 U.S.C. § 2000e (k), respectively.

On January 14, 2000, the defendant filed a motion for summary judgment, claiming that the public policy proffered by the plaintiff did not apply to the facts of the case and, therefore, that the defendant was entitled to judgment as a matter of law. On March 31, 2000, the court granted the defendant’s motion and rendered judgment as a matter of law in favor of the defendant as to count one, which alleged wrongful discharge. Because the court determined that the defendant did not wrongfully discharge the plaintiff in violation of public policy, the second count, alleging a violation of the duty of good faith and fair dealing, necessarily failed. See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984). Thus, the court rendered summary judgment as to both counts. This appeal followed.

We first set forth the applicable standard of review. Summary judgment is appropriate “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.” Practice Book § 17-49. Where, as here, the court has rendered judgment as a matter of law, our review of that conclusion is plenary. Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 356, 764 A.2d 203, cert. granted on other grounds, 255 Conn. 948, 769 A.2d 64 (2001). As a reviewing court, we must therefore determine whether the trial court’s legal conclusions are legally and logically correct, and find support in the record. Id. Mindful of those basic principles, we now consider the issue on appeal.

The plaintiff argues that although the number of employees that the defendant employs has precluded her from statutory redress, she nonetheless can maintain a cause of action for wrongful termination of employment in violation of public policy. The plaintiff argues that Connecticut has a public policy against pregnancy discrimination in employment irrespective of the number of employees. That public policy finds its derivations, according to the plaintiff, in both statutory and constitutional law.

The defendant agrees that a public policy against pregnancy discrimination in employment exists, but counters that such policy does not extend to every employee in the state. The defendant maintains that the court correctly held that the relevant provisions of the act articulate a more limited public policy against such job discrimination, restricting the breadth of the policy to employers with three or more employees. The defendant also argues, as the court stated in its memorandum of decision, that the constitution of Connecticut cannot provide the basis for any public policy against pregnancy discrimination in this case because no state action was involved. We disagree with the characterization by the court and by the defendant of Connecticut’s public policy.

In its memorandum of decision, the court recognized the existence of a factual dispute concerning the plaintiffs termination. The plaintiff asserted that her pregnancy precipitated her discharge, whereas the defendant insisted that it was her poor job performance. The court held, however, that even if the plaintiffs allegation accurately identified the reason for her termination, an at-will employee has no cause of action for wrongful discharge when an employer of fewer than three persons fires her on the ground of pregnancy. Our examination and consideration of existing case law lead us to a different conclusion.

In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability. Beginning in the late 1950s, however, courts began to carve out certain exceptions to the at-will employment doctrine, thereby giving rise to tort claims for wrongful discharge. Certain employer practices provoked public disfavor, and unlimited employer discretion to fire employees eventually yielded to a more limited rule. In Connecticut, the traditional employment at-will doctrine is subject to certain limitations. The present case implicates a public policy exception similar to the one that our Supreme Court recognized in Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980).

In Sheets, the plaintiff was a quality control director and operations manager. During the course of his employment, the plaintiff noticed certain deviations from specifications on the defendant’s product labels. Those deviations violated statutory provisions, and the plaintiff notified his employer of the mislabeling of products. The defendant terminated the plaintiff several months later. The plaintiff alleged that his dismissal violated an implied contract of employment, violated public policy and was malicious. Id., 473-74.

Our Supreme Court addressed “whether to recognize an exception to the traditional rules governing employment at will so as to permit a cause of action for wrongful discharge where the discharge contravenes a clear mandate of public policy.” Id., 474. The court found it significant that the plaintiff in Sheets had responsibility for product quality control. Id., 479. Moreover, the legislature had established a public policy of consumer protection. Id. The court did not rest the decision on the violation of a statute governing public policy, stating: “We need not decide whether violation of a state statute is invariably a prerequisite to the conclusion that a challenged discharge violates public policy. Certainly when there is a relevant state statute we should not ignore the statement of public policy that it represents.” Id., 480. Even in the absence of a state statute, there is a growing receptivity to recognize as actionable tort claims for wrongful discharge by an employer arising out of termination for an employee’s refusal to commit perjury, for filing a workers’ compensation claim, for engaging in union activity or for serving on a jury. Id., 476-77. The court determined that a cause of action for wrongful discharge will lie when the former employee can demonstrate an improper reason for the discharge, “a reason whose impropriety is derived from some important violation of public policy.” Id., 475. Sheets warns, however, that courts should proceed cautiously in their consideration of whether a public policy violation exists. Id., 477.

Later cases test and define the limits of “an important violation of public policy.” Id., 475. Because of the vagueness that inheres in the concept of public policy; Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986); we must make a case-by-case analysis of employee claims in such cases. Faulkner v. United Technologies Corp., 240 Conn. 576, 588-89, 693 A.2d 293 (1997). As background for the present case, we discuss cases in which the factual scenarios legitimately implicate public policy concerns and cases that do not.

In Morris, the defendant employer cited misappropriation of company funds as its reason for the plaintiff employee’s termination. The plaintiff had brought an action in tort for wrongful discharge, claiming that his employer’s false accusations of criminal conduct violated public policy. Our Supreme Court determined that the plaintiffs claim of wrongful discharge did not fall within the narrow Sheets exception to the terminable at-will rule because the plaintiff had not identified any public policy that was ‘ ‘affronted by his termination. ” Morris v. Hartford Courant Co., supra, 200 Conn. 680. The plaintiff failed to allege a violation of any explicit statutory or constitutional provision. Id. Moreover, the plaintiff did not allege the contravention of any judicially conceived notion of public policy. Id. Our Supreme Court, therefore, held that an accusation of criminal conduct does not derive from an important violation of public policy and denied the plaintiffs requested relief. Id.

In Faulkner, our Supreme Court again considered the issue of wrongful termination, specifically, whether a federal statute could provide the source for a public policy violation. In Faulkner, the plaintiff employee sought to recover for the allegedly wrongful termination of his employment, claiming that his refusal to participate in a scheme to defraud the federal government by using defective parts in the production of helicopters prompted his termination. The plaintiff relied on a federal statute for his claim of a public policy violation.

Our Supreme Court sanctioned a cause of action for wrongful discharge in violation of public policy where that public policy derived from federal law rather than state law. The court held, therefore, that “claims brought pursuant to the public policy limitation on the at-will employment doctrine can be predicated on the violation of a public policy expressed in a federal statute.” (Emphasis added.) Faulkner v. United Technologies Corp., supra, 240 Conn. 585-86. Notably, our Supreme Court did not require the violation of a statute, federal or state, to maintain the cause of action, just a violation of a public policy expressed in a statute. The holdings of Sheets, Faulkner and Morris recognize that explicit statutory or constitutional provisions as well as judicial decisions can define public policy. Id., 585.

In Parsons v. United Technologies Corp., 243 Conn. 66, 700 A.2d 655 (1997), our Supreme Court again revisited the public policy limitation on the employment at-will doctrine. In Parsons, the plaintiff was an at-will employee for the defendant corporation, which was engaged in the business of manufacturing, distributing and servicing helicopters. The plaintiff worked as an instructor of aircraft maintenance. After several years of employment, the defendant assigned the plaintiff to train several members of a Bahrain helicopter crew, which would require him to reside at a Bahrain military base. Shortly before his scheduled assignment, the United States Department of State issued a travel advisory that counseled against all nonessential travel to Bahrain due to military activity in the Persian Gulf. The plaintiff then notified the defendant that he would not travel to Bahrain because of the perceived threat to his health, safety and welfare. The defendant terminated the plaintiffs employment within two hours of receiving his refusal.

The plaintiff thereafter brought an action for wrongful discharge, claiming that his termination for refusal to travel to Bahrain violated Connecticut public policy requiring an employer to provide its employees with a reasonably safe workplace. The plaintiff relied on several state statutes regulating workplace safety. Our Supreme Court determined that the statutory provisions cited by the plaintiff “reflectfed] a broad legislative concern for the physical welfare and safety of Connecticut employees. Consequently, we are persuaded that the mandate of public policy that these statutes embody gives a Connecticut employee a cause of action for wrongful discharge against an employer transacting business in Connecticut if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee’s duties.” Id., 80. It again is noteworthy that our Supreme Court did not look only for the violation of a statute to find a public policy violation. The Parsons court considered broad legislative concerns and public policies expressed in statutes, not strictly statutory violations.

Another recent Supreme Court case addressed the public policy exception to the at-will employment doctrine. Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 734 A.2d 112 (1999). The plaintiff in Daley had circulated an internal memorandum detailing her dissatisfaction with her employer’s arrangements and accommodation for working parents. The employer terminated the plaintiffs employment shortly after the memorandum’s circulation. The plaintiff alleged that her termination violated the public policy of the state of Connecticut not to discriminate against individuals in employment because of their choice to have and raise children, and the public policy to promote employment opportunities for women by encouraging family friendly workplace policies. Our Supreme Court affirmed the trial court’s judgment in favor of the employer and found no public policy violation. “We recognize the important public policy embodied in the express provisions of the Connecticut Family and Medical Leave Law [General Statutes § 31-51kk et seq.], the federal Family and Medical Leave Act of 1993 [29 U.S.C. § 2601 et seq.], and [General Statutes] §§ 46a-60 (a) (7) and 17a-101 (a), and underscore every employer’s duty to comply with those provisions”; id., 804; but there is no public policy in Connecticut for employers to provide family friendly workplaces. Id., 802.

In light of the principles we glean from those cases, we must now decide whether the act itself, or the act coupled with other statutory or constitutional provisions, expresses a sufficiently clear mandate of public policy to support a cause of action for wrongful discharge despite its limiting definition of “employer.” We answer that question in the affirmative.

We first look to the act itself. It declares certain employment practices discriminatory, including “refus[al] to hire or employ or to bar or to discharge from employment any individual . . . because of the individual’s . . . sex . . . .” General Statutes § 46a-60 (a) (1). The act also specifically forbids “termination of] a woman’s employment because of her pregnancy . . . .” General Statutes § 46a-60 (a) (7). Pursuant to the act’s definitions, an “ ‘[ejmployer’ includes the state and all political subdivisions thereof and means any person or employer with three or more persons in his employ”; General Statutes § 46a-51 (10); and “ ‘[discrimination on the basis of sex’ includes but is not limited to discrimination related to pregnancy [or] childbearing capacity . . . .” General Statutes § 46a-51 (17). The act, through the creation of a commission on human rights and opportunities, establishes an administrative mechanism for an employee to lodge a discrimination complaint in Connecticut.

Prior cases have noted that the General Assembly, in adopting the act, sought to make state law coextensive with federal antidiscrimination laws. See Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976). As with the goals of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the object of our state statutory counterpart “is the prohibition of discrimination based on immutable characteristics such as race, color, national origin, or sex. Equal employment opportunity may be secured only when employers are barred from discriminating against employees on the basis of immutable characteristics . . . .” (Emphasis in original; internal quotation marks omitted.) Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, supra, 331.

In its effort to bring state law into harmony with federal law, our legislature has announced a clear public policy against employment discrimination in Connecticut. The question presented in this case, however, is whether employers with fewer than three employees are exempt from the mandate of the fundamental public policy embodied in the state and federal statutory schemes. The court concluded that such an exemption exists. The defendant claims that § 46a-51 (10) is plain and unambiguous, and must therefore be enforced as written. In its brief, the defendant argues that “[t]o allow the plaintiff to circumvent what was clearly in the minds of the legislators would be inappropriate and without basis.”

We do not attempt to construe the act to allow the plaintiff a statutory remedy for its violation, for clearly she is without such remedy. The plaintiff seeks a remedy based on public policy. We read the statute to obtain its purpose. As such, the legislature announced a general public policy against sex discrimination in employment. If it were not for the act’s application to employers of fewer than three employees, there is no doubt that the firing of the plaintiff for her pregnancy, if true, would violate the act.

We find it significant that our Supreme Court never has stated explicitly that a statutory violation is an absolute prerequisite for alleging a public policy violation. The defendant relies on Daley to argue that we should not impute a statement of public policy beyond that which a relevant statute states because that would “subject the employer who maintains compliance with express statutory obligations to unwarranted litigation for failure to comply with a heretofore unrecognized public policy mandate.” Daley v. Aetna, Life & Casualty Co., supra, 249 Conn. 804.

As we discussed previously, neither Sheets nor Faulkner required a statutory violation to support a claim of wrongful discharge. Sheets, in fact, specifically declined to hold that such violation is required. See Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 480. Moreover, one cannot argue that the eradication of pernicious sex discrimination in employment is a novel concept or a “heretofore unrecognized public policy mandate.” Similarly, the Parsons court did not rest its decision on the violation of a specific statute. Instead, it examined the “language, history, and public policy underlying the statutory provisions cited by the plaintiff’; Parsons v. United Technologies Corp., supra, 243 Conn. 79; and acknowledged the existence of a “broad legislative concern for the physical welfare and safety of Connecticut employees” embodied in several statutes. Id., 80; see also Emerick v. Kuhn, 52 Conn. App. 724, 741, 737 A.2d 456 (“issue before us is whether the plaintiffs dismissal violated an important public policy derived from [several state statutes, a federal regulation or an executive order]” [emphasis added]), cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999). We conclude that the language, history and public policy underlying the act in the present case reflect a cognizable legislative and societal concern for eliminating discrimination on the basis of sex in Connecticut.

The act both embodies a public policy, which is universal for all employees, and provides a statutory remedy, which is limited to employees who work for employers with three or more employees. There are public policy considerations inherent in the question of whether we should uniformly and blindly follow § 46a-51 (10) regardless of the fact situation of the particular case. We determine that the statutory subsection must be read within the boundaries imposed by our public policy as expressed elsewhere in the same statute, other statutes and our constitution.

A distinction exists between the policy underlying a statute and the remedy provided by the statute to accomplish that policy. We are not alone in identifying that distinction. In a case involving an action for wrongful discharge on the basis of sex discrimination in which the defendant employed fewer than the minimum number of employees required by the state antidiscrimination law, the Washington Supreme Court recently stated: “By [the statutory section defining employer] the legislature narrows the statutory remedies but does not narrow the public policy which is broader than the remedy provided. Thus, the statutory remedy is not in itself an expression of the public policy, and the definition of ‘employer’ for the purpose of applying the statutory remedy does not alter or otherwise undo to any degree this state’s public policy against employment; discrimination. ... If it is argued that the exclusion of small employers from the statutory remedy is itself apublic policy, that policy is simply to limit the statutory remedy, but is not an affirmative policy to ‘exempt[] small employers from [common law] discrimination suits.’ ” (Citation omitted.) Roberts v. Dudley, 140 Wash. 2d 58, 70, 993 P.2d 901 (2000) (en banc). We find the language from Roberts persuasive and its reasoning sound.

In its brief, the defendant attempts to distinguish Roberts on the ground that “Washington has a different, and clearly more expansive, public policy exclusion than does Connecticut.” In Roberts, the Washington Supreme Court enumerates the sources for the public policy against sex discrimination. That court first noted that “the purpose of the law [against discrimination] is to deter and to eradicate discrimination in Washington, which has been recognized as a ‘policy of the highest priority.’ ” (Internal quotation marks omitted.) Id., 66. That court then identified several statutoiy bases for the public policy against discrimination. Those statutes include one headed “Women may pursue any calling open to men” and a general antidiscrimination statute that also contains a specific provision regarding employment discrimination. Id., 67-68.

We agree with the defendant that the Washington legislature has enacted more explicit antidiscrimination statutes than the Connecticut legislature, but our Supreme Court, as well as the Washington Supreme Court, has recognized the importance of ending discrimination. See Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, supra, 170 Conn. 331. We do not necessarily equate a more explicit statute with a more comprehensive fundamental public policy. Our public policy has existed with decisional force for nearly three decades. The firing of an employee because of pregnancy, of course, applies to women only. Connecticut has abolished sex discrimination by its constitution and by legislation. Our history “evidences a firm commitment ... to do away with sex discrimination altogether.” Evening Sentinel v. National Organization for Women, 168 Conn. 26, 34, 357 A.2d 498 (1975). Sex classification in some instances constitutes a per se violation of Connecticut law. Evening Sentinel held that such classification in help wanted advertising is such a violation. Id.

Certain other state statutes, federal statutes and the constitution of Connecticut provide further support for our conclusion that a public policy against sex discrimination, including discrimination based on pregnancy, exists. Encompassed within chapter 814c of the General Statutes, which is titled “Human Rights and Opportunities,” for example, are numerous other statutory provisions that prohibit discrimination based on sex in certain circumstances. Federal laws, which we do not attempt to list exhaustively and which, under Faulkner, can provide the source for a public policy, such as Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., and the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e (k), similarly announce a public policy against sex discrimination.

Furthermore, our own constitution announces a public policy against sex discrimination. The equal protection clause of the constitution of Connecticut, article first, § 20, as amended by article twenty-one of the amendments to the constitution, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of . . . sex . . . .” All protections contained in article first are fundamental civil liberties. Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977). The right to be free from discrimination is, therefore, a fundamental civil liberty.

The court rejected the plaintiffs argument that the constitution of Connecticut could provide the basis for a recognition of a public policy against pregnancy discrimination by small employers. It determined that the plaintiffs termination did not involve any state action necessary to trigger protection under our constitution because the defendant is a private actor. In its brief, the defendant agrees with the court and argues that “[a]rticle first, § 20 of the Connecticut constitution is irrelevant to the present argument because, although it does prohibit pregnancy discrimination, both the Connecticut Supreme Court and the United States District Court for [the District of] Connecticut have held that article first, § 20, requires state action and does not apply to private conduct as alleged here.”

The Supreme Court of California considered and rejected a similar argument in Rojo v. Kliger, 52 Cal. 3d 65, 90, 801 P.2d 373, 276 Cal. Rptr. 130 (1990). We find the argument unavailing for the same reasons as did the Supreme Court of California, which stated: “For our purposes here, however, whether article I, section 8 [of the California constitution] applies exclusively to state action is largely irrelevant; the provision unquestionably reflects a fundamental public policy against discrimination in employment — public or private — on account of sex. . . . Regardless of the precise scope of its application, article I, section 8 is declaratory of this state’s fundamental public policy against sex discrimination . . . .” (Citations omitted; emphasis in original.) Id. We reach the same conclusion with respect to article first, § 20, of the constitution of Connecticut as amended by article twenty-one of the amendments.

The statutes and the constitutional amendment that we have discussed evidence a strong legislative intent to end discrimination on account of sex. A statute, such as the act involved in this case, that simply limits redress to fewer individuals does not circumscribe or undermine that strong public policy. Rather, the act excludes certain employers from the administrative process, but not from the fundamental policy declared in that statute, other statutes and the state constitution.

The law of several other states is in harmony with our decision. The Supreme Court of Ohio reached a similar result in Collins v. Rizkana, 73 Ohio St. 3d 65, 652 N.E.2d 653 (1995). That court found a sufficient expression of public policy in two statutes that protect sexual bodily security and integrity, prohibit offensive sexual contact and prohibit prostitution to override another statute that exempted a defendant employer from liability because he employed fewer than the minimum number of employees. In its brief, the defendant argues that the Supreme Court of Ohio referred only to those specific statutes and did not interpret a statute such as the one that exists in Connecticut.

To the contrary, the Ohio court based its finding of a public policy against sexual harassment on the two statutes and on an antidiscrimination civil rights statute similar to the act at issue in the present case. As with its Connecticut counterpart, the Ohio statute declares it an unlawful discriminatory practice for an employer to discriminate because of race, color, religion, sex, national origin, handicap, age or ancestry. Id., 72. The Ohio court, therefore, did interpret a similar statute and did not premise the finding of a violation of public policy uniquely on the two statutes governing prostitution and sexual bodily integrity.

We do not interpret § 46a-51 (10), which defines “employer” as one hiring fewer than three employees, as evincing an intent by the General Assembly to grant small businesses a license to discriminate against their employees, however few, with impunity. Instead, we can only read that section as evidencing an intention to exempt small businesses from the burdens of other provisions of the act, not from its antidiscrimination policy. See Kerrigan v. Magnum Entertainment, Inc., 804 F. Sup. 733, 736 (D. Md. 1992); Collins v. Rizkana, supra, 73 Ohio St. 3d 74.

The defendant also argues that Williamson v. Greene, 200 W. Va. 421, 490 S.E.2d 23 (1997), and Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996), both of which recognize a cause of action for wrongful discharge in violation of public policy despite the employers’ exclusion from the respective state antidiscrimination statutes, are distinguishable from the present case because the preamble to those statutes includes specific language that it is the public policy of the particular state to end discrimination. We find that distinction of little importance. That the legislatures in those states chose to identify with specificity the public policy of their respective states does not alter the effect of less specific expressions of public policy that have been made by our General Assembly in other statutes. The existence of a public policy does not hinge on the use of precise phraseology such as “it is the public policy of this state.” See Payne v. Rozendaal, 147 Vt. 488, 520 A.2d 586 (1986) (recognizing public policy against age discrimination despite state statute not including age and employer having too few employees to trigger federal statute).

In its brief, the defendant cites Jennings v. Marralle, 8 Cal. 4th 121, 876 P.2d 1074, 32 Cal. Rptr. 2d 275 (1994), as supportive of its position and states that “ Jennings is the closest analogy.” In its memorandum of decision, the court also cited Jennings as support for its decision not to recognize a cause of action. We disagree that Jennings applies to the facts of the present case.

In Jennings, the Supreme Court of California determined that a terminated employee without a statutory remedy may not maintain a common-law tort action for damages for wrongful discharge in violation of a public policy against age discrimination. The California court stated that “while the Legislature has made a broad statement of policy, it has not extended that policy to small employers.” Id., 130. The decision in Jennings rests, however, primarily on the fact that “no other statute or constitutional provision bars age discrimination . . . .” (Emphasis added.) Id., 125. The court, therefore, concluded that there presently exists no “fundamental policy” that precludes age discrimination by a small employer.

Subsequent California cases and a recent Utah Supreme Court case explain the rationale driving the Jennings decision and highlight the reasons for which that case is inapposite here. In Badih v. Myers, 36 Cal. App. 4th 1289, 43 Cal. Rptr. 2d 229 (1995), the California Court of Appeal recognized a cause of action for wrongful discharge in violation of the public policy against pregnancy discrimination despite the fact that the employer fell outside the definition of the term employer under the state antidiscrimination statute. The court found Jennings inapplicable and determined that the California constitution expressed a fundamental public policy against sex discrimination in employment. The court agreed with the plaintiff employee that “ Jennings is distinguishable on the ground that pregnancy discrimination in employment is a form of sex discrimination, and, as such, is prohibited not only by the [state antidiscrimination law] but also by article I, section 8 of the California Constitution.” Id., 1293.

Similarly, in both Green v. Ralee Engineering Co., 19 Cal. 4th 66, 960 P.2d 1046, 78 Cal. Rptr. 2d 16 (1998), and Stevenson v. Superior Court, 16 Cal. 4th 880, 941 P.2d 1157, 66 Cal. Rptr. 2d 888 (1997), the Supreme Court of California reviewed the relevant case law concerning exceptions to the at-will employment doctrine in California. In both cases, the court, recognizing the limited application of the Jennings rationale, cited specific portions of Jennings that emphasized the absence of other state laws barring discrimination on the basis of age. Green v. Ralee Engineering Co., supra, 79; Stevenson v. Superior Court, supra, 893.

A recent Utah Supreme Court case has also elucidated the rationale of Jennings. In Burton v. Exam Center Industrial & General Medical Clinic, Inc., 994 P.2d 1261, 1266 (Utah 2000), the Utah Supreme Court, relying on Jennings, stated: “There is no such constitutional or statutoiy declaration of public policy in Utah against discrimination on account of age in the termination of employment of employees of small employers.”

Those cases establish the inapplicability of Jennings to this case, which involves a public policy against sex discrimination, because, unlike age discrimination, many statutory and constitutional provisions address the need to end sex discrimination.

There are a “myriad of employees without the bargaining power to command employment contracts for a definite term,” and they are “entitled to a modicum of judicial protection” when their rights, as established in the public policy of the state, are contravened. Sheets v. Teddy’s Frosted Foods, Inc., supra, 179 Conn. 477. We hold that there is a public policy against sex discrimination in employment sufficiently expressed in statutory and constitutional law to permit a cause of action for wrongful discharge. As stated many years ago in Evening Sentinel, sex classification is a per se violation of Connecticut law. Although § 46a-51 (10) excludes many employers from the requirements of the act, our clear public policy as to sex discrimination transcends such an exclusion.

Here, the plaintiff has stated a cause of action against the defendant. According to the affidavit filed with the defendant’s motion for summary judgment and the plaintiffs counteraffidavit, a question of fact as to whether the defendant fired the plaintiff for ineptitude or pregnancy remains to be resolved.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion SCHALLER, J., concurred.

FLYNN, J.,

concurring. I concur with the result and most of the rationale of the majority’s opinion. Certainly, there is a strong public policy in our state that women should be treated equally with men under our laws. I agree that policy is strongly and clearly expressed in article twenty-one of the amendments to the constitution of Connecticut, the resolution of our General Assembly approving the federal Equal Rights Amendment, provisions of federal laws cited by the majority and by our Supreme Court in Evening Sentinel v. National Organization for Women, 168 Conn. 26, 357 A.2d 498 (1975). Not only is that policy a strong and clear one, but it is a fundamental one when a person’s claim of deprivation of those equal rights arises out of her pregnancy. Both sexes cooperate in the procreation of the human race, but only women become pregnant, carry precious human life within them and give birth. To discriminate against persons because of pregnancy is to discriminate against women. Newport News Shipbuilding & Dry Dock Co. v. Equal Employment Opportunity Commission, 462 U.S. 669, 684, 103 S. Ct. 2622, 77 L. Ed. 2d 89 (1983). The guarantee of equal rights for pregnant women is not only a strong and clear public policy, but a fundamental one that addresses the very continuance of the human race. If the need to uphold the public policy expressed in our pure food and drug laws justified an exception to the at-will status of the employee in Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), the right to equal protection of our laws enjoyed by a woman in the workplace who is pregnant and wrongfully terminated from employment for that reason is stronger. But more — it is fundamental to any system of jurisprudence worthy of the name.

I write separately because I would not ground the public policy used to make the Sheets claim in the very statute, the Fair Employment Practices Act, General Statutes § 46a-51 et seq., which also makes the legislative determination that it will not permit a remedy under that act against an employer with fewer than three employees. Instead, I would look to the act only to ensure that its policy is not at odds with the public policy we find elsewhere, conclude that the act’s statutory policy is consistent with the strong, clear and fundamental public policy we find in the other sources, and permit a Sheets type remedy if the at-will employee in the small workplace can prove her claim that she was wrongfully discharged because of pregnancy.

       A motion to strike for failure to state a cause of action could have resolved that question. See Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (1997); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980). The motion for summary judgment, and the affidavit and counteraffidavit filed in connection therewith, raised a question of fact that would have precluded summary judgment if the plaintiff had stated a cause of action.

       Our Supreme Court requires an at-will employee to challenge his or her dismissal on the basis of a public policy violation whether the plaintiff frames the claim in tort or in contract. Therefore, if the plaintiffs tort claim fails because there was no public policy violation, an alleged violation of the implied covenant of good faith and fair dealing similarly fails. See Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 558.

       Specifically, the plaintiff in Faulkner alleged that his discharge violated the public policy against government contract fraud as embodied in the federal Major Frauds Act. 18 U.S.C. § 1031.

       The plaintiff in Parsons relied principally on General Statutes §§ 31-49 and 31-370. See Parsons v. United Technologies Corp., supra, 243 Conn. 77 n.14 (listing other statutes on which plaintiff relied).

       The plaintiff in this case, prior to commencing this action in the Superior Court, filed a complaint with the commission, which the commission dismissed because the defendant had fewer than three employees.

       The plaintiff also argued to the trial court that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provided the basis for a public policy against pregnancy discrimination. In a footnote, the court dismissed that argument, applying the same rationale as it did in rejecting the plaintiffs claim under General Statutes § 46a-51 et seq. Title VII only forbids pregnancy discrimination by employers of fifteen or more persons. See 42 U.S.C. § 2000e (b) and (k). That federal statute, therefore, according to the court, does not articulate a public policy against pregnancy discrimination by employers who hire fewer employees.

       The tort of wrongful discharge in contravention of public policy applies uniquely to terminations, not to the broad range of discriminatory practices regulated by the act.

       As part of the defendant’s statutory construction argument, it maintains that the legislative history of the act confirms that the legislature intended to exempt small employers from the requirements of the act. The defendant cites a statement from a representative of the League of Women Voters of Connecticut, who urged coverage for all employers in the state. Conn. Joint Standing Committee Hearings, Labor, 1967 Sess., p. 142. Because we do not read the act to grant the plaintiff statutory redress, we find it of little importance that certain individuals pushed for adoption of a broader definition of the term employer.
      We do note, however, that the legislative history of the 1967 amendment, which added sex as a classification, supports our finding of a public policy against sex discrimination embodied in that act. Representative James J. Kennelly stated: “This bill is in furtherance of this legislature’s commitment to trae equality of opportunity employment. No period in Connecticut legislative achievements has been more enlightened, or more dedicated in the field of human rights .... This bill represents continued and expanded implementation of sound and realistic ‘human rights’ legislation and I respectfully urge its adoption.” 12 H.R. Proc., Pt. G, 1967 Sess., pp. 2567-68. Representative Thomas F. Dowd, Jr., stated: “We on this side of the aisle are very pleased to support this bill for further testimony to Connecticut’s committment to non-discriminatory practices in what ever form.” Id., p. 2568. Although we find neither of those comments dispositive of the issue, they support a general public policy in Connecticut against sex discrimination.

       General Statutes § 46a-58 (prohibiting deprivation of rights on account of sex); General Statutes § 46a-64 (prohibiting discriminatory public accommodations practices); General Statutes § 46a-64c (prohibiting discriminatory housing practices); General Statutes § 46a-66 (prohibiting discriminatory credit practices); General Statutes § 46a-70 (guaranteeing equal employment in state agencies); General Statutes § 46a-71 (prohibiting discriminatory practices by state agencies); General Statutes § 46a-72 (prohibiting discrimination in job placement by state agencies); General Statutes § 46a-73 (prohibiting discrimination in state licensing and charter procedures); General Statutes § 46a-75 (prohibiting discrimination in educational and vocational programs); General Statutes § 46a-76 (prohibiting discrimination in allocation of state benefits).

       In Rojo, the Supreme Court of California did not address the precise issue presented by the facts of our case because the employer fell within the scope of the relevant antidiscrimination statute. In its determination of whether sex discrimination in employment may support a claim of tortious discharge in contravention of public policy, however, it needed to consider the existence of a fundamental public policy.

       It is noteworthy that the Supreme Court of California has interpreted the relevant California constitutional provision as applying to both state and private action. Commodore Home Systems, Inc. v. Superior Court, 32 Cal. 3d 211, 220, 649 P.2d 912, 185 Cal. Rptr. 270 (1982).

       House J.R. No. 1, Jan. Sess., Pt. 1, Vol. 1, 1973 Public Acts, p. LXXIV.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALKEITH GAYLE
    (AC 20881)
    Lavery, C. J., and Schaller and Flynn, Js.
    Argued March 20
    officially released July 31, 2001

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

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Alkeith Gayle, appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a), conspiracy to sell narcotics in violation of General Statutes §§ 2 la-277 (a) and 53a-48, sale of narcotics in violation of General Statutes § 21a-277 (a), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2), and felony murder in violation of General Statutes § 53U-54C. The trial court sentenced him to a total effective term of sixty-five years imprisonment. The defendant claims on appeal that (1) the evidence was insufficient to support his conviction for sale of narcotics, (2) the court improperly instructed the jury on the elements of felony murder, (3) the court improperly instructed the jury on the concepts of reasonable doubt and presumption of innocence, and (4) the evidence was insufficient to support his conviction for felony murder. We agree with the defendant’s first claim and reverse the court’s judgment with respect to his conviction for sale of narcotics, but affirm the court’s judgment as to the conviction of the remaining charges.

The jury reasonably could have found the following facts. In the early morning hours of May 16, 1996, the defendant and his friend, Jason Jeter, were present in a park near the comer of Chapel and Day streets in New Haven. The defendant and Jeter planned to rob passersby, as they apparently had on previous occasions. The defendant was armed with a .38 caliber snub-nosed revolver. The two met with an acquaintance, Robert Pinkston, and the three then sat down on benches near the edge of the park.

Shortly thereafter, the victim, Thomas Harris, approached the park near to where the defendant, Jeter and Pinkston were sitting. The defendant and Jeter walked toward Harris while Pinkston remained seated. Harris asked the defendant and Jeter whether they were “working,” i.e., selling drugs, to which the two replied in the affirmative. Jeter asked Harris, “How many?” and Harris replied, “Four.” Jeter reached into the defendant’s jacket pocket and removed four individually wrapped pieces of a substance subsequently alleged by the state to be crack cocaine. Harris paid the defendant $40 for the drugs.

Jeter turned to head back toward Pinkston, and the defendant told Harris to “run it,” meaning that Harris was to return the alleged crack cocaine and to surrender his other valuables to the defendant. Harris replied, “I don’t have time for this,” and started to leave. A brief scuffle ensued between Harris and the defendant. Harris broke free and began to walk quickly away. Jeter had stopped to watch this encounter. The defendant took a revolver from his pocket and aimed it at Harris. The defendant looked over at Jeter, who told the defendant to shoot Harris. The defendant fired one shot, which struck Harris in the back of the head. Harris fell to the ground, bleeding profusely. Jeter and the defendant fled the park, running past Harris. Pinkston fled on his bicycle in a different direction.

Jeter and the defendant ran to a nearby group of apartment houses on Day Street, one of which was the defendant’s residence. The defendant went to the back steps of the apartment, and Jeter, after some time, returned to the park and retrieved the four pieces of alleged crack cocaine, some of which were in the victim’s hand, the rest on the sidewalk nearby. Jeter returned to the apartment houses and met the defendant, who by then had entered his residence on the second floor. The defendant gave Jeter money in exchange for the alleged crack cocaine.

Jeter remained at the defendant’s residence until later in the evening. When Jeter left the defendant’s apartment, Harris still lay on the ground in the park where he had fallen. Sometime thereafter, a neighborhood resident summoned police and medical personnel. The victim had lost a large amount of blood and died of his gunshot wound en route to the hospital. The defendant later was arrested and was convicted after a jury trial as previously outlined. Additional facts will be set forth as we consider each of the issues he raises on appeal.

I

The defendant first claims that the state’s evidence at trial was insufficient to support his conviction for sale of narcotics. Specifically, he argues that the state failed to prove that the substance the defendant sold to Harris was in fact crack cocaine, a narcotic substance. We agree with the defendant.

The defendant did not testify at trial. The only evidence submitted that pertained to the drug transaction between the victim, Jeter and the defendant was Jeter’s testimony recounting the event. Because Jeter had returned to the murder scene to retrieve the crack cocaine, it no longer was on Harris’ person when police and medical personnel arrived at the scene. Additionally, the defendant was not in possession of the crack cocaine at the time of his arrest. As such, no substance was available for analysis and introduction into evidence at trial.

“We first articulate the standard of review applicable to the defendant’s claim. ‘In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.’ . . . State v. Murray, 254 Conn. 472, 478-79, 757 A.2d 578 (2000).” State v. Green, 62 Conn. App. 217, 225, 774 A.2d 157, cert. granted on other grounds, 256 Conn. 927, 928, 776 A.2d 1147, 1148 (2001).

To prove sale of a narcotic substance, “[t]he state [must] prove . . . [beyond a reasonable doubt] that the defendant knowingly sold the substance to another person and that the substance sold was a narcotic.” State v. Mahon, 53 Conn. App. 231, 236, 729 A.2d 242 (1999). “Proof of the exact nature of the substances upon which the prosecution is grounded, of course, is necessary, and the nature of the examinations essential for such proof with a high degree of scientific exactitude mandates the opinion of one competent to conduct such examinations.” State v. Clemons, 168 Conn. 395, 402, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975).

In the present case, the only evidence admitted to prove that the defendant had sold a narcotic substance was Jeter’s testimony recounting the incident. Jeter, fourteen years old at the time, was not shown to have any particular expertise in identifying crack cocaine by visual inspection, if such an identification is even possible. Neither the defendant nor Pinkston testified as to the transaction. No sample of the alleged narcotic substance ever was retrieved from the victim, the defendant or Jeter. Consequently, nothing was available for field testing or laboratory analysis. There was no testimony concerning the use of the alleged narcotic and its subsequent effect on the user.

“A jury may not engage in speculation and conjecture to reach a factual result . . . and any inferences that are drawn must be rational and arise out of the evidence that has been presented. . . . Although proof beyond a reasonable doubt does not require proof beyond a possible doubt ... it does require that the proof be such as to preclude every reasonable hypothesis except that which it tends to support, and that it be consistent with the defendant’s guilt and inconsistent with any other rational conclusion. . . . Further, this obligation of proof beyond a reasonable doubt extends to every essential element of the crime charged.” (Citations omitted.) State v. Mierez, 24 Conn. App. 543, 552, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991).

Absent resort to speculation and conjecture, the jury in this case could not reasonably have inferred that the defendant sold a narcotic substance to the victim because there was no evidence to support a finding that the substance transferred was in fact crack cocaine. Given the lack of evidence as to the character of the substance, there is no way that the jury could have concluded beyond a reasonable doubt that the defendant was guilty of sale of a narcotic substance. We reverse the judgment as to the defendant’s conviction of sale of a narcotic substance in violation of § 21a-277 (a) and vacate the portion of his sentence associated therewith.

II

The defendant next claims that the court improperly instructed the jury on the elements of felony murder, thereby broadening the range of behavior contemplated by the felony murder statute. Specifically, the defendant argues that the charge as given did not sufficiently convey the connection between the attempted robbery and Llarris’ death necessary for the jury to convict him of felony murder. We disagree.

The court instructed the jury on the elements of felony murder as follows: “A person is guilty of murder when, acting either alone or with one or more persons, he attempts to commit robbery and, in the course of and in furtherance of such crime, he, or another participant, causes the death of a person other than one of the participants. That’s felony murder.

“Okay. There [are] three elements here. First, the accused either alone or acting with another committed an attempted robbery.

“Second, the death of Mr. Harris was caused by the accused or another participant, and the person whose death was caused was not a participant in the attempted robbery.

“Third, the accused or another participant caused the death of Mr. Harris in the course of and in furtherance of the attempted robbery.

* * *

“The third element of felony murder is that the death was caused in the course of and in furtherance of the attempted robbery. This means that during the commission of the attempted robbery and in the course of carrying out its objective, the death was caused or the chain of events such as the shooting resulting in the death was set in motion.

“In furtherance of an attempted robbery means the killing must be causally related to the attempted robbery. It must be done to somehow further the purpose of the attempted robbery. If one commits the attempted robbery, [and] the natural and probable consequences of which involve the consequences of taking a life, that person is responsible for a homicide committed while acting in pursuance of the attempted robbery if he caused the death during the attempted robbery.

“In other words, in the course of the attempted robbery means during any part of the defendant’s participation in the attempted robbery. Thus, the shooting causing death must have occurred somewhere within the time span of the occurrence of the facts which constituted the attempted robbery.

* * *

“To summarize, you must find that the state has proven beyond a reasonable doubt that, one, the accused either alone or with another participant committed an attempted robbery.

“Two, Mr. Harris’ death was caused by the accused or another participant in the attempted robbery and that Mr. Harris was not a participant in the attempted robbery.

“And, three, that his death was caused in the course of and in furtherance of the attempted robbery.” (Emphasis added.)

The defendant did not request a different charge on the elements of felony murder nor did he take exception to the charge as given. He therefore requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the trial transcript contains the court’s entire charge to the jury, the record is adequate. Further, “ ‘[i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.’ . . . State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). A claim that the trial court failed to instruct the jury adequately on an essential element of the crime charged necessarily involves the defendant’s due process rights and implicates the fairness of his trial. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989).” State v. Mahon, supra, 53 Conn. App. 234. We therefore will review the defendant’s claim because the first two elements of Golding are satisfied.

“The standard of review for an improper instruction on an element of an offense is whether it is reasonably possible that the jury was misled. State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995); State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994). In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982). . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978) .... The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977) .... The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 47 Conn. App. 333, 344-45, 705 A.2d 554 (1997), cert. denied, 244 Conn. 902, 710 A.2d 175 (1998).

The defendant takes issue with the court’s instruction as to the third element of felony murder, particularly the previously stated portion that is italicized. According to the defendant, the court failed to convey that “a distinct, logical nexus between the homicide and the underlying felony must be present.” He claims that the instruction as given allowed the jury to find him guilty of felony murder for a killing that was insufficiently connected to the underlying felony of attempt to commit robbery. We disagree.

The defendant in making his claim asks us to focus on isolated portions of the instruction to find it deficient overall, a mode of analysis prohibited by our standard of review. Even if the portions of the instructions complained of could be read to convey to the jury that a more attenuated relationship between the attempted robbery and Harris’ death would satisfy the third element of the felony murder statute, the instruction as a whole sufficiently conveyed the proper standard.

The court instructed the jury three times that Harris’ death must have occurred “in the course of and in furtherance of the attempted robbery,” and, additionally, that “the killing must be causally related to the attempted robbery” and that the killing “must . . . somehow further the purpose of the attempted robbery.” The court also charged that the defendant should be held responsible under the felony murder statute for Harris’ death if the defendant “caused the death during the attempted robbery,” or, “[i]n other words . . . during any part of the defendant’s participation in the attempted robbery . . . [i.e.,] somewhere within the time span of the occurrence of the facts which constituted the attempted robbery.” We conclude that these parts of the jury instruction clearly and sufficiently conveyed the requisite connection between the attempted robbery and Harris’ death.

Because it is not reasonably possible that the juiy was misled by the court’s charge on the third element of felony murder, the defendant has not shown that a constitutional violation clearly exists and that it clearly deprived him of a fair trial. Consequently, he has not satisfied the third prong of Golding, and his claim must fail.

Ill

The defendant also claims that the court improperly instructed the jury on the concepts of reasonable doubt and the presumption of innocence. We disagree.

Again, the defendant failed to preserve properly his claim of instructional error and requests review pursuant to State v. Golding, supra, 213 Conn. 239-40. Because the record is adequate and because a claim of error regarding instruction on the burden of proof is of constitutional magnitude; State v. Morant, 242 Conn. 666, 687, 701 A.2d 1 (1997); State v. Green, supra, 62 Conn. App. 242; we will review the claim.

The court’s instructions to the jury as to the presumption of innocence and reasonable doubt in relevant part were as follows: “[E] very person charged with the commission of a crime is presumed to be innocent until proven guilty. This means that when the accused appeared for trial, he came free from any bias, prejudice or burden arising from his position as the accused. As far as you are concerned, he then was innocent and he continues to be innocent unless the evidence produced in the case satisfies you beyond a reasonable doubt that he is guilty of one or more of the charges.

“This means that if all the evidence offered is capable of two reasonable constructions, one of which is consistent with innocence, it is to be given that construe- lion. The accused does not have to prove that he did not commit the offenses charged, the state must prove that he did. And that burden of proof remains at all times the obligation of the state.

“The presumption of innocence applies to all the elements necessary to constitute the offenses charged, and there is more than one element in each of these charges. This presumption of innocence, however, does not have the effect of evidence itself. Its only effect is to place on the state the burden of establishing the elements necessary to prove guilt beyond a reasonable doubt.

“A reasonable doubt is not a doubt raised by one questioning simply for the sake of a doubt, nor is it a surmise, a guess, speculation, conjecture or a doubt not founded upon the evidence. It’s not hesitation arising from feelings of sympathy or pity for the accused or his family members, it’s not a frivolous doubt or a doubt without support from the evidence.

“A reasonable doubt is one based upon reason which grows out of the evidence or lack of evidence in the case. A reasonable doubt is one that is reasonable in the light of all the evidence, one honestly entertained after thorough evaluation and careful examination of all the evidence, testimony of witnesses on direct and cross-examination, any stipulations, all the exhibits and any reasonable inferences you draw therefrom.

“In summary ... [a] reasonable doubt is one that a reasonable person can reasonably entertain after a fair evaluation of all the evidence. In effect, the state need not eliminate every possible doubt from your mind, only a reasonable doubt.

“If the proven facts are reasonably consistent with innocence, you cannot find the defendant guilty; but if those facts do not lead to any theory reasonably consistent with innocence, but only with guilt, you should find the defendant guilty.” (Emphasis added.)

Again, we must review the court’s instruction as a whole, eschewing critical dissection, to determine whether it had the desired effect of guiding the jury to a proper verdict. State v. Ortiz, supra, 47 Conn. App. 344-45. We may reverse the judgment of the trial court on the basis of this claim only if it is reasonably possible that the jury was misled such that a constitutional violation clearly exists and clearly deprived the defendant of a fair trial. Id.; State v. Golding, supra, 213 Conn. 240.

The defendant claims that the court improperly instructed the jury when it recited the italicized portions of the charge. He argues that the court improperly instructed the jury by conveying that a reasonable doubt is a doubt that “has a foundation in the evidence or lack of evidence presented in the case,” rather than that such doubt need only be “consistent with the evidence.” We disagree.

We are unpersuaded by the defendant’s attempts to explain the vital difference between the phrases “grows out of the evidence or lack of evidence” and “is consistent with the evidence,” and why it is reasonably possible that the jury was misled by the court’s use of the former phrase rather than the latter in explaining the concept of reasonable doubt, thereby calling into question the very fairness of the trial. Our Supreme Court recently rejected a constitutional challenge to similar language in a jury instruction, holding that, in the context of the overall charge, it “did not dilute the state’s burden of proof.” State v. Montgomery, 254 Conn. 694, 730, 759 A.2d 995 (2000); see also State v. Griffin, 253 Conn. 195, 207, 749 A.2d 1192 (2000) (noting that language repeatedly has been upheld). Because the court’s charge on reasonable doubt as a whole in this case was proper, the defendant’s claim must fail.

The defendant also argues that the court improperly conveyed that the jury should apply a lesser standard to the state’s burden of proof by instructing the jury that, if it found the evidence capable of two reasonable constructions, it should choose the construction consistent with innocence. Specifically, he claims that this instruction, which is known as a “two-inference” instruction; id., 208; had the effect of directing the jury to apply the preponderance of the evidence standard rather than the beyond a reasonable doubt standard. We disagree.

Our Supreme Court in Griffin, a decision released subsequent to the defendant’s trial, expressed disfavor with the so called “two-inference instruction” and invoked its supervisory powers to direct trial courts to refrain from using the language in future jury charges. Id., 209-10. The court, nonetheless, noted its prior approval of the charge and frequent rejections of challenges thereto, and refused to find error in the case before it because “the two-inference charge, when viewed in the context of an otherwise proper instruction on reasonable doubt, does not impermissibly dilute the state’s burden of proof.” Id., 209. The situation in this case is similar. The court’s instruction, overall, clearly conveyed to the jury that the state was responsible for proving the defendant’s guilt beyond a reasonable doubt and that the defendant was not required to prove his innocence.

Because it is not reasonably possible that the jury was misled by the court’s charge on the presumption of innocence and reasonable doubt, the defendant has not shown that a constitutional violation clearly exists and that it clearly deprived him of a fair trial. As a result, he has not satisfied the third prong of Golding, and his claims must fail.

IV

The defendant’s last claim is that the evidence adduced at trial was insufficient to support his conviction of felony murder. Specifically, he claims that Harris’ death bore an insufficient relationship to the underlying attempted robbery to satisfy the requirements of the felony murder statute. We disagree.

Our standard of review is the same as that articulated in part I. We must construe the evidence in the light most favorable to sustaining the defendant’s conviction, then ask whether, given the facts so construed and the associated inferences, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt. State v. Green, supra, 62 Conn. App. 225.

The defendant claims that Harris was shot not in the course of and furtherance of the attempted robbery, but after the attempted robbery was complete and for a reason wholly unrelated to that attempted robbery. He argues that Harris died because, in failing to comply with the defendant’s demand to relinquish his valuables, Harris offended and angered the defendant, prompting the shooting. In other words, “[t]he victim was shot because he disrespected the defendant, not as part of the robbery.” We emphatically reject this claim.

“In order to obtain a conviction for felony murder the state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, [here, attempted robbery] and in addition, that a death was caused in the course of and in furtherance of that felony. State v. Castro, 196 Conn. 421, 428-29, 493 A.2d 223 (1985).” (Internal quotation marks omitted.) State v. Burke, 51 Conn. App. 798, 807, 725 A.2d 370 (1999), aff'd, 254 Conn. 202, 757 A.2d 524 (2000); General Statutes § 53a-54c.

“Felony murder occurs when, in the course of and in furtherance of another crime, one of the participants in that crime causes the death of a person who is not a participant in the crime. . . . The two phrases, ‘in the course of and ‘in furtherance of,’ limit the applicability of the statute with respect to time and causation. . . .

“The phrase ‘in the course of focuses on the temporal relationship between the murder and the underlying felony. . . . We previously have defined the phrase ‘in the course of for purposes of § 53a-54c to include ‘the period immediately before or after the actual commission of the crime . . . .’

“[T]he phrase ‘in furtherance of was intended to impose the requirement of a relationship between the underlying felony and the homicide beyond that of mere causation in fact, similar to the concept of proximate cause in the law of torts. Primarily its purpose was to limit the liability of a person whose accomplice in one of the specified felonies has performed the homicidal act to those circumstances which were within the contemplation of the confederates to the undertaking . ” (Internal quotation marks omitted.) State v. Montgomery, supra, 254 Conn. 734.

The defendant, in making his claim, ignores common sense and attempts to slice finely the series of events that transpired in the park, characterizing them as distinct and wholly unrelated incidents. He buttresses his argument by citing selective testimony, which is taken out of context. The attempted robbery and the shooting of the escaping victim, however, are not completely independent acts. In Montgomery, our Supreme Court rejected a claim that a defendant’s killing of a resisting attempted kidnapping victim was not “in the course of and in furtherance of’ the attempted kidnapping because the killing necessarily implied that the attempt to kidnap had ceased. Id., 731-34. Similarly, we reject the argument that the killing of this victim, who resisted an attempted robbery, was not committed “in the course of and in furtherance of’ the attempted robbery because the attempted robbery had ceased.

Viewing the evidence in the light most favorable to sustaining the defendant’s conviction, we hold that the jury reasonably could have concluded that Harris’ death occurred in the course of and in furtherance of the defendant’s commission of an attempt to commit robbery and, therefore, that the defendant was guilty of felony murder.

The judgment is reversed only as to the conviction of the crime of sale of narcotics and the case is remanded with direction to render judgment of not guilty of that crime and to vacate the portion of the defendant’s sentence associated therewith. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant was acquitted on an additional count charging him with murder in violation of General Statutes § 53a-54a.

       The defendant also argued that the court improperly granted the state’s motion in limine, barring him from questioning police officers about statements that he had made to them prior to his arrest. The defendant withdrew that issue in his reply brief.

       Jeter testified that when he and the defendant spent time together, they would “[s]ell drugs, steal cars [and] rob people.”

       In response to the state’s question as to whether Jeter waited for “[a] short period of time,” Jeter replied that it “[c]ould have been. It seemed kind of lengthy.”

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter . . . shall be imprisoned . . . and may be fined ... or be both fined and imprisoned . . . .”

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .” (Kmphasis added.)

       Pursuant to Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The challenged portion of the court’s instruction was that “[a] reasonable doubt... is a real doubt, an honest doubt, a doubt which has its foundation in the evidence or the lack of evidence.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 729, 759 A.2d 995 (2000).

       We note that the court, prior to the start of trial, also instructed each venire panel as to the burden of proof in a criminal trial, specifically conveying that the state must prove each element of the charged offenses “beyond a reasonable doubt,” that the defendant did not need to prove his innocence and that a “preponderance of the evidence” standard was not to be employed.

       Further, the defendant focuses on Jeter’s testimony that, when Jeter told the defendant to shoot Harris, “It wasn’t really over the money. . . . When you’re robbing somebody, it’s like respect of authority; you got the gun. For them to run on you is in the sense of disrespect; you think I won’t shoot you, so shoot him.” Jeter, however, also testified that, as Harris began to walk away, “[the defendant] look at me like, he looked at me as in what do I do now, he’s running, and I said shoot him, as in hit him in his legs, back, stop him, to get the things back.”
      Even if we were to accept the defendant’s contention, which we do not, that a killing based on anger that an attempted robbery is not proceeding as planned is not really committed “in furtherance of’ that attempted robbery, the evidence still was sufficient for the jury to find that the defendant killed Harris not out of anger, but to stop him from leaving with the alleged crack cocaine and his other valuables. Although Jeter’s testimony in this respect is inconsistent, “[i]t is without question that the jury is the ultimate arbiter of fact and credibility. ... As such, it may believe or disbelieve all or any portion of the testimony offered. ... It is also the absolute right and responsibility of the jury to weigh conflicting evidence . . . .’’(Citation omitted; internal quotation marks omitted.) Stuart v. Stuttig, 63 Conn. App. 222, 226, 772 A.2d 778 (2001).


author: LANDAU, J.

text:
    KEVIN STROBEL v. ROSE LI-HWA STROBEL
    (AC 20269)
    (AC 20276)
    Landau, Flynn and Daly, Js.
    Argued April 3
    officially released July 31, 2001

      Rose Li-Hwa Strobel, pro se, the appellant (defendant).

      Sandra P. Lax, with whom, on the brief, was Daniel J. Roberts, student intern, for the appellee (plaintiff).
   Opinion

LANDAU, J.

These consolidated appeals are two more links in a seemingly endless chain of litigation between the parties that destructively centers on their only child. The defendant’s appeals concern numerous postdissolution judgments rendered by the trial court with respect to various motions filed by the parties and the attorney for the minor child. In her main and supplemental briefs, the defendant raises seventeen claims of error with respect to the judgments. We dismiss appeal AC 20276 and affirm the judgments in appeal AC 20269.

We glean the following facts from the record and the transcripts of the various hearings on the motions at issue. The parties were married in September, 1989, and their only child, a son, was bom in March, 1990. The trial court rendered a judgment of dissolution in July, 1997. The judgment, in part, granted the parties joint custody of their son. The defendant mother was given primary physical custody of the child, but the visitation schedule permitted him to see the plaintiff father about 50 percent of the time. The judgment also provided that if the parties were not able to reach mutual custody decisions, the defendant’s decision was controlling.

Prior to the dissolution, the child resided with the plaintiff and attended the Fairfield public schools. Following the dissolution, the child lived with the defendant in Stamford and went to a public school in that city. Apparently, the child experienced transitional difficulties when he changed schools. On August 10, 1999, after the plaintiff learned that the defendant was planning to move to a two bedroom home in Wilton and to enroll the child in the school system there, he filed a motion requesting that the court order the child to attend school in Fairfield during the 1999-2000 school year. The defendant objected to the motion. The motion was not presented to the court until the eve of the defendant’s move to Wilton. Following a hearing on November 15, 1999, the court, Brennan, J., modified the judgment of dissolution, ordering that the child be enrolled in the Fairfield school system for the remainder of the school year and awarding physical custody of the child to the plaintiff.

On November 10, 1999, the defendant filed a motion to disqualify the child’s counsel, claiming that he was adversarial toward her and sided with the plaintiff. The court denied the motion. By motion dated January 5, 2000, the defendant sought to have the court find the plaintiff in contempt for allegedly not caring for the child properly and for interfering with the mother-son relationship. The court denied the motion. The court also denied the defendant’s January 14, 2000 motion to discard the family relations report and granted the plaintiffs motion to accept the report “within the confines of changes recited on the record.” The court also denied the defendant’s January 14,2000 motion seeking a judicial reprimand of two family relations counselors, as well as the defendant’s February 3, 2000 motion for contempt in which she claimed that the plaintiff had violated the visitation schedule. The court granted the plaintiffs January 6, 2000 motions regarding child support, terminating the plaintiffs child support obligation and imposing a support obligation on the defendant. The defendant filed two appeals related to the court’s rulings, which were consolidated.

We are mindful that the defendant primarily has represented herself in the trial court and here. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999). “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.) Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996).

As noted, the defendant has identified seventeen issues on appeal. “Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one [issue], . . . [Multiplying assignments of error will dilute and weaken a good case and will not save a bad one. . . .

“Most cases present only one, two, or three significant questions. . . . Usually ... if you cannot win on a few major points, the others are not likely to help. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Citations omitted; internal quotation marks omitted.) State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989).

The issues raised by the defendant fall into two categories: whether the court improperly (1) denied her motion to disqualify the child’s attorney and (2) modified the judgment of dissolution by ordering the child to attend school in Fairfield, by granting the plaintiff physical custody of the child and by ordering the defendant to pay child support.

I

AC 20276

We dismiss the defendant’s appeal with respect to the court’s decision refusing to disqualify the child’s counsel because the defendant lacks standing to raise the issue. “The issue of standing implicates the court’s subject matter jurisdiction. . . . Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard.” (Citation omitted; internal quotation marks omitted.) Taff v. Bettcher, 35 Conn. App. 421, 424-25, 646 A.2d 875 (1994). “Our case law is also clear that a person cannot gain standing by asserting the due process rights possessed by another individual. It is axiomatic that due process rights are personal, and cannot be asserted vicariously. . . . Thus, once the court finds it appropriate to appoint counsel for the minor child, the representation is the child’s entitlement, not the parent’s.” (Citations omitted; internal quotation marks omitted.) Id., 425-26. Generally, the defendant has no standing to raise a claim on behalf of her child. Lord v. Lord, 44 Conn. App. 370, 375, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125 (1998). The defendant did not claim that her request was made to prevent prejudice to her own case. See id., 375-76. The defendant, therefore, has no standing to pursue her claim that the court improperly denied her motion to disqualify her child’s counsel. See Taff v. Bettcher, supra, 428.

II

AC 20269

In her amended appeal, the defendant claims, inter alia, that the court improperly modified the judgment of dissolution by ordering the child to attend school in Fairfield, by granting the plaintiff physical custody of the child and by ordering the defendant to pay child support. We affirm the judgments of the trial court.

A

With respect to the judgment modification related to the child’s school, physical custody of the child and child support, the court did not write memoranda of decision, and the defendant did not submit a signed copy of any oral decisions. See Practice Book § 64-1. The defendant also did not file motions for articulation.

“The duty to provide this court with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061 [now § 60-5] .... It is not the function of this court to find facts.” (Citations omitted.) State v. Rios, 30 Conn. App. 712, 715-16, 622 A.2d 618 (1993). “Our role is ... to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 608-609. “We have, on occasion, reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” Bank of America, FSB v. Franco, 57 Conn. App. 688, 691 n.1, 751 A.2d 394 (2000). Where the transcript does not reveal the basis of the court’s factual conclusion, we will not review the appellant’s claims. See Centerbank v. Gross, 31 Conn. App. 38, 39-40, 622 A.2d 1066 (1993).

With respect to the defendant’s claims that the court improperly changed the child’s school, gave the plaintiff physical custody of the parties’ son and awarded the plaintiff child support, we are unable to discern the factual bases of the court’s decisions from the transcript and decline to review the defendant’s claims. The same is true with respect to the court’s rulings on other motions, except those noted in part IIB of this opinion.

“The trial court did not prepare a written memorandum of decision and did not sign the transcript of its oral decision, as required by Practice Book § 64-1. The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant. . . . We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review.” (Citation omitted; internal quotation marks omitted.) Bank of America, FSB v. Franco, supra, 57 Conn. App. 691 n.1; see Centerbank v. Gross, supra, 31 Conn. App. 39-40 (no review because unsigned transcript did not reveal basis of trial court’s factual conclusion). We therefore decline to review the defendant’s claims.

B

With respect to the defendant’s claims that the court improperly denied three of her motions, the court’s handwritten notations on the order section of the respective motions are sufficient to merit our review. The defendant’s briefs, however, contain only her sometimes distorted presentation of the facts and statements of her claims. The briefs contain no standards of review or legal analysis.

“[F]or this court judiciously and efficiently to consider claims of error raised on appeal; Karanian v. Maulucci, 185 Conn. 320, 321, 440 A.2d 959 (1981); the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . Krondes v. O'Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995). . . . New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 100, 709 A.2d 14 (1998). The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. Id.; see also Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996). [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Fitzgerald v. Fitzgerald, 16 Conn. App. 548, 554, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988). Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994). . . . New London Federal Savings Bank v. Tucciarone, supra, 101. Where the parties cite no law and provide no analysis of their claims, we do not review such claims. Id.” (Internal quotation marks omitted.) Mullen & Mahon, Inc. v. Mobilmed Support Services, LLC, 62 Conn. App. 1, 10, 773 A.2d 952 (2001).

Appeal AC 20276 is dismissed.

In appeal AC 20269, the judgments are affirmed.

In this opinion the other judges concurred.

       See Strobel v. Strobel, 60 Conn. App. 908, 761 A.2d 803 (2000), cert. denied, 255 Conn. 929, 767 A.2d 103 (2001). At the time of the appeals at issue here, there were more than 230 entries in the trial court’s file, and there is yet another appeal pending, Strobel v. Strobel, AC 21567. Between the time of the dissolution and the events that are the subject of these appeals, the parties filed dozens of motions and objections, which are not at issue here. At times, they have represented themselves and, at other times, they have retained the services of counsel.

       The judgments were rendered following the trial court’s granting of the plaintiffs motions for order dated August 10, 1999, to accept the family relations report, to terminate child support and requesting child support; the court’s denial of the defendant’s motions to disqualify dated November 10,1999, for contempt dated January 5, 2000, to discard the family relations report, for order dated January 14, 2000, and for contempt dated February 3, 2000; and the court’s granting of the child’s attorney’s motion for fees.

       We have reviewed thoroughly the transcripts of each of the hearings in question.

       On the basis of our review of the transcripts provided, we understand that the first effort to have the motion heard was in late October, 1999, and that there were procedural and communication problems that occurred before the court was able to give both parties a full hearing on November 15, 1999.

       Judge Brennan retained jurisdiction over the case and decided all of the remaining motions at issue in these appeals.

       The defendant first appealed from the court’s judgment concerning the child’s school and physical custody, which was assigned docket number AC 20269. She next appealed from the court’s denial of her motion to disqualify the child’s counsel, which was assigned docket number AC 20276. The defendant subsequently appealed from the judgments rendered following the court’s rulings on motions filed by the parties, which appeal was designated an amendment to AC 20269. See footnote 2.

       In her briefs, the defendant identified the issues as whether the court improperly (1) ordered the child to attend school in Fairfield and granted the plaintiff primary physical custody of the child without reasonable notice and a proper opportunity to be heard, (2) denied the motion to disqualify the child’s attorney when the record demonstrates that the child’s attorney consistently misled the defendant and the court, (3) modified the July 22, 1997 judgment concerning custody without a substantial change in circumstances, (4) changed the primary physical custody of the minor child and ordered the child to attend school in Fairfield when it did not have sufficient evidence to make a finding as to how the existing custody arrangement would affect the minor child, (5) changed the primary physical custody of the minor child where the motion for order acted on did not seek to change primary physical custody, (6) found that the defendant had to come to court for permission to change residence, when the final judgment ordered by the court clearly stated that “[njeither parent shall move the child out of the state of Connecticut without further order of the court” and that “[n]either parent shall move the child from their current residence to a geographical area that is greater distance than to the other parent’s current address until further order of the court,” (7) changed primary physical custody of the minor child and ordered the child to go to school in Fairfield based on the defendant’s alleged failure to follow the court’s direction to continue for at least twelve months in parenting skill consultations, (8) found that it was unreasonable for the defendant to select the psychologist for the minor child where the plaintiff chose not to be involved in the decision, (9) denied the defendant’s motion to discard the family relations report dated January 14, 2000, and granted the plaintiffs motion for acceptance of the family relations recommendations, (10) denied the defendant’s motion for order dated January 14,2000, where the family services unit violated General Statutes § 46b-3 and Practice Book § 25-61, (11) denied the defendant’s motion for contempt and order dated January 5, 2000, (12) ordered the defendant to pay the fees of the child’s attorney without requesting financial affidavits from both parties, (13) modified the visitation schedule ordered by the court on July 22, 1997, when the court had no jurisdiction, i.e., no authority to modify the visitation schedule, (14) granted the plaintiffs motions to terminate child support dated January 26, 2000, and for child support dated January 26, 2000, where the court, had no jurisdiction, i.e., no authority to modify custody, (15) punished the defendant for not showing up in court, which punishment was not in the best interests of the minor child, (16) modified custody without a complete family relations report and ordered the family relations counselor to “tailor” her report to the court’s wishes, and gave the family relationships counselor a suspicious letter addressed to Judge Cutsumpas without first establishing its credibility and (17) marked off with prejudice the defendant’s objection to a motion for order dated January 14, 2000, which was not pursued.

       “The requirements of Practice Book § 64-1 are not met by simply filing with the appellate clerk a transcript of the entire trial court proceedings. ... A transcript is not even required to be filed in all appeals. See Practice Book § 63-4 (a) (3) . . . . Moreover, a transcript of colloquies between the trial court and counsel is of limited, if any, assistance to the reviewing court. Thus, we have held that the signature of the trial court on an entire trial transcript does not satisfy Practice Book § 64-1. . . . Perhaps of greater significance is the fact that the Appellate Court is not even required to consult a transcript, although it may do so in a proper case. Practice Book § 67-1 . . . (Citations omitted; internal quotation marks omitted.) Summerbrook West, L.C. v. Foston, 56 Conn. App. 339, 346, 742 A.2d 831 (2000).

       The motions in question are the defendant’s motions for contempt and order dated January 5, 2000, for order dated January 14, 2000, and for contempt dated February 3, 2000.

       We reviewed all of the transcripts submitted by the defendant. We note that the defendant’s statement of the facts often misconstrues statements in the transcripts or takes them out of context.

       Although we do not reach the merits of the defendant’s claims, we share the trial court’s concern for the welfare of the parties’ child, as reflected in the transcripts, where the court advised the parties in open court of the potentially tragic consequences this protracted litigation may have for their son.