text:
    Jeanine T. Dixon v. United Illuminating Company
    (13594)
    Dupont, C. J., and Foti, Lavery, Landau and Heiman, Js.
    Considered September 21
    decision released November 1, 1994

      William F. Gallagher, for the appellee (plaintiff).

      Edward T. Falsey, for the appellee (defendant).
   Per Curiam.

This appeal comes to us from the compensation review board pursuant to General Statutes § 31-324, which authorizes the board to reserve a case to this court if the board is “of the opinion that the decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the appellate court, in order that a definite rule be established applicable to future cases . . . .” The statute additionally provides that this court shall reserve the case for the opinion of the Supreme Court unless it is this court’s opinion that “the principles of law involved in the decision are in fact free from reasonable doubt and the public interest does not in fact require that they be determined by the supreme court . . . .” In such event, we may, in our discretion, hear and determine the controversy as in other cases. General Statutes § 31-324; see Practice Book § 4165.5. Having examined the questions reserved by the board, we conclude that the decision involves principles of law that are not, in fact, free from reasonable doubt and that the public interest does, in fact, require that the questions be determined by the Supreme Court.

In 1987, Kenneth Dixon injured his back and neck while employed by United Illuminating Company. United Illuminating paid Dixon workers’ compensation benefits for treatment of those injuries. In 1993, Dixon committed suicide. The plaintiff, Dixon’s widow, sought further benefits, claiming that her husband’s suicide was due to his injuries. United Illuminating contested the compensability of her claim, and the matter was assigned to the fourth district of the workers’ compensation commission. While the case was pending, Jesse M. Frankl, chairman of the commission, was approached by a representative of United Illuminating who claimed that the company was not being treated fairly in the fourth district and identified this case as an instance of such treatment. The representative was not the lawyer representing United Illuminating in this matter. As a result of this conversation, the chairman ordered that the case, which had been the subject of several informal conferences, be transferred to the third district. Thereafter, the plaintiff requested by motion that a hearing be held concerning the transfer and that the transfer order be stayed pending the outcome of the hearing. The motion was denied and no hearing was held.

In a ruling dated April 12, 1994, the chairman set forth his reasons for transferring the case to the third district. He reasoned that General Statutes § 31-280 provides administrative authority for such transfers and that the legislative history of the statute indicates that workers’ compensation districts cannot be viewed as isolated, autonomous jurisdictions. He stated that General Statutes § 31-278, as amended by Public Acts 1991, No. 91-339, eliminated any jurisdictional link between the filing of a claim and the district in which it is heard and he concluded that the district “where a claim is heard is entirely an administrative matter committed to the sound discretion of the chairman.” The chairman thus denied the motion for hearing and stay, and directed the third district to proceed with the case. The plaintiff subsequently filed a motion to correct, which was denied.

The plaintiff appealed to the board from the denial of the motion for hearing and stay and the denial of the motion to correct. The board thereupon reserved to this court the following questions: (1) (a) Did the chairman of the workers’ compensation commission properly deny the claimant’s motion for hearing on order of transfer and motion to stay? (b) Was that denial a proper exercise of the chairman’s authority pursuant to General Statutes § 31-280, specifically subdivisions (6), (14) and (16) of subsection (b)? (2) Does the compensation review board have jurisdiction over appeals taken from the chairman’s exercise of powers conferred to him by General Statutes § 31-280? Or in the alternative: May a party aggrieved by the chairman’s ruling on a motion relating to an order of transfer seek review and redress before the compensation review board given the limitations of General Statutes § 31-301 as to the compensation review board’s appellate jurisdiction?

This case raises important and previously unanswered questions regarding the administration of Connecticut’s workers’ compensation scheme. As the chairman pointed out in his decision, the legislature in 1991 made sweeping changes to the portions of the Workers’ Compensation Act that involve the basic structure of the system. See Public Acts 1991, No. 91-339. The ramifications of these revisions have yet to be considered by either this court or the Supreme Court. We, therefore, conclude that this matter raises issues of first impression that are not, in fact, free from reasonable doubt and that the public interest does, in fact, require that they be determined by the Supreme Court.

The case is reserved for the opinion of the Supreme Court.

       In 1993, the legislature made further extensive changes to the Workers’ Compensation Act. Public Acts 1993, No. 93-228. The 1993 amendments do not have any significant impact on the statutory provisions at issue in this case.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert Gelormino et al. v. Alexander Liberman Alexander Liberman v. Robert Gelormino et al.
    (12671)
    Foti, Landau and Hennessy, Js.
    Argued September 26
    decision released November 1, 1994

      Zbigniew S. Rozbicki, for the appellants (plaintiffs in the first case, defendants in the second case).

      John P. Febbroriello, for the appellee (defendant in the first case, plaintiff in the second case).
   Per Curiam.

This appeal by Robert Gelormino and Shirley Gelormino is from two judgments of the trial court, one denying the application by the Gelorminos to correct an arbitration award in part, to vacate it in part and to affirm it in part, and the other granting the application by Alexander Liberman to confirm the same award.

The trial court did not set forth any facts, reasons or law to support its decision. The Gelorminos failed to move for an articulation of the decision and, in oral argument before this court, requested that we remand the matter to the trial court for the purpose of having the court explain the facts it found and the law it relied on. This we decline to do.

It is the appellants’ duty to take the necessary steps to provide us with an adequate record for appellate review. Practice Book § 4061. The Gelorminos could have ensured the adequacy of the record by filing a motion for articulation pursuant to Practice Book § 4051 asking the trial court to set forth the basis for and reasoning behind its decision. They elected not to do this. Without an adequate record, we are left to guess or speculate as to the existence of a factual predicate. See State v. Rosedom, 34 Conn. App. 141, 145-46, 640 A.2d 634 (1994). As it is not the function of this court to find facts, we decline to review this claim.

The judgments are affirmed.

       Robert Gelormino and Shirley Gelormino also challenge the trial court’s denial of their motion to postpone and to strike the case from the trial list. The record, however, contains no indication that this motion was ever acted on. Furthermore, even if we presume the motion was denied, the trial court provided no basis for its decision and the Gelorminos failed to move for articulation. Therefore, we are unable to review this claim.


text:
    Robert Fromer v. Freedom of Information Commission et al.
    (12763)
    O’Connell, Foti and Spear, Js.
    Argued September 30
    decision released November 8, 1994

      Robert Fromer, pro se, the appellant (plaintiff).

      Victor A. Perpetua, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Martin R. Libbin, for the appellee (defendant Jeffrey Feldman).
   Per Curiam.

The plaintiff appeals from the trial court’s judgment dismissing his administrative appeal from the decision of the defendant freedom of information commission. General Statutes §§ l-21i (d) and 4-183.

The plaintiff claims that the trial court (1) improperly determined that a court monitor’s tape recording of a trial is not subject to the public disclosure requirements of the Freedom of Information Act and (2) improperly determined that the denial of access to such a tape recording is a constitutional violation of the first amendment to the United States constitution.

The plaintiff also claims that the trial court improperly failed to rule on the jurisdiction of an administrative agency to decide constitutional issues. This issue was not briefed. “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.” (Internal quotation marks omitted.) Fitzgerald v. Fitzgerald, 16 Conn. App. 548, 554, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988). We affirm the judgment of the trial court.

The facts are not in dispute. The plaintiff here was also the plaintiff in a prior case, Fromer v. Boyer-Napert Partnership, Superior Court, judicial district of New London, Docket No. CV89-0509836 (November 19, 1990), aff’d, 26 Conn. App. 185, 599 A.2d 398 (1991). The August 31, 1990 proceedings in that case were recorded on tape by a court monitor. On August 1,1991, the plaintiff filed a written request with the defendant Jeffrey Feldman, chief clerk of the judicial district of New London, to hear the tape recording. The plaintiff did not seek to remove the tape from the court but was willing to listen to it within the confines of the court facility. The clerk denied the request on August 13,1991, and the plaintiff appealed to the freedom of information commission on September 5, 1991. The commission dismissed the appeal on August 26, 1992, by notice of its final decision. The defendants on appeal to this court are the commission and Feldman.

We are persuaded by our examination of the record, briefs and arguments of the parties that the judgment of the trial court should be affirmed. In a thoughtful, detailed and comprehensive memorandum of decision, the trial court, Leuba, Janalyzed the law in a manner consistent with our statutes and case precedents. Fromer v. Freedom of Information Commission, 43 Conn. Sup. 246, 649 A.2d 542 (1994). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Daw’s Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993); Bank of Boston Connecticut v. Brewster, 32 Conn. App. 215, 217, 628 A.2d 990 (1993).

The judgment is affirmed.

       General Statutes § l-21i (d) provides in pertinent part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. . . . The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. . . .”
      General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       The commission reached the following facts and conclusions of law: “1. By letter of complaint filed September 5,1991, the complainant appealed to the Commission, alleging that his request to hear a tape recording in the custody of the Clerk of the Superior Court had been denied.
      “2. It is found that the complainant by letter dated August 1, 1991, requested from the Chief Clerk of the Superior Court for the Judicial District of New London an opportunity to hear the tape recording of an August 31, 1990 hearing before Judge Burns in G.A. 10 to which he was a party.
      “3. It is found that the Chief Clerk denied the request by letter dated August 13, 1991.
      “4. In relevant part, [General Statutes] § l-18a (a) defines public agency as ‘any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.’
      “5. Chapter 873 of the General Statutes provides that court clerks are officials of the superior court.
      “6. The Commission takes administrative notice of the fact that tape recordings of court proceedings are made principally for the purpose of creating transcripts, and that transcripts are created and maintained principally to ensure a fair and just trial, to provide a full record for appellate review, and for use in collateral proceedings.
      “7. It is therefore concluded that a tape recording of a court proceeding is a matter involving in the adjudication of cases.
      “8. It is additionally concluded that the requested hearing tape is a record of a judicial official performing a nonadministrative function, and is not subject to the disclosure provisions of §§ 1-15 and 1-19, G.S.
      “9. The complainant also maintains that the denial of access to the tape denies his right of access to judicial proceedings and records as guaranteed by the First Amendment, pursuant to Globe Newspaper Co. v. Pokaski, [868 F.2d 497 (1st Cir. 1989)].
      “10. It is concluded, however, that the Commission lacks jurisdiction to decide the complainant’s constitutional claim.”


text:
    Jamie A. Akerson v. City of Bridgeport
    (13761)
    Dupont, C. J., and Foti, Laveky, Landau and Heiman Js.
    Considered September 21
    decision released November 8, 1994

      James O. Gaston, in support of the motion.
   Per Curiam.

The plaintiff filed a motion to dismiss the defendant’s appeal for lack of a final judgment. Because the appeal was taken from the denial of a motion to dismiss the action, we conclude that no final judgment exists and that the appeal must be dismissed.

The procedural history of this case is not in dispute. The plaintiff brought this personal injury action against the defendant pursuant to General Statutes § 13a-149 for injuries he sustained when he slipped and fell on a sidewalk. The trial court granted the plaintiff s motion for default based on the defendant’s failure to plead. Before a scheduled hearing in damages was held, the defendant filed a motion to open the default, which the trial court denied. The defendant then moved to dismiss the plaintiffs action on the basis of an alleged lack of subject matter jurisdiction. The trial court denied the defendant’s motion to dismiss. This appeal and the plaintiffs cross appeal followed. The plaintiff now moves to dismiss the defendant’s appeal for lack of a final judgment.

“The lack of a final judgment is a threshold question that implicates the subject matter jurisdiction of this court.” Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). Where there is no final judgment, we cannot reach the merits of the appeal. General Statutes § 52-263; Practice Book § 4000; Smith v. Otis Elevator Co., 33 Conn. App. 99, 102, 633 A.2d 731 (1993).

“It is undisputed that the denial of a motion to dismiss is not ordinarily a final judgment.” Sasso v. Aleshin, 197 Conn. 87, 90, 495 A.2d 1066 (1985); State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); Kioukis v. Kioukis, 185 Conn. 249, 251 n.1, 440 A.2d 894 (1981); Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974); State v. Boucher, 119 Conn. 436, 437, 177 A. 383 (1935); State v. Harris, 4 Conn. Cir. Ct. 534, 536, 236 A.2d 479 (1967). The appeal in this case was taken from the denial of the defendant’s motion to dismiss. The denial of the motion did not terminate the plaintiff’s action. On the contrary, no final judgment has been rendered because the issue of damages remains unresolved and is scheduled for hearing before the trial court. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 45 n.4, 478 A.2d 601 (1984); Automotive Twins v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951). Because the trial court’s denial of the defendant’s motion to dismiss is not a final jdugment, the appeal is dismissed for lack of jurisdiction.

We turn, sua sponte, to whether the plaintiff’s cross appeal is properly here. The plaintiff filed a cross appeal raising the following issue: “Whether the granting of a default against the appellee city of Bridgeport in favor of the appellant Jamie Akerson deems the jurisdictional allegations of fact in the complaint admitted, and, therefore, conclusively finds subject matter jurisdiction.”

A cross appeal is an independent appeal and, therefore, may be viable under certain circumstances even though the main appeal is no longer before the court. See Schurman v. Schurman, 188 Conn. 268, 270, 449 A.2d 169 (1982). In this case, however, the cross appeal cannot stand independently because it is jurisdiction-ally improper. First, the cross appeal was taken from the denial of the motion to dismiss, which is not a final judgment. Even if the cross appeal had been taken from a final judgment, the plaintiff was not aggrieved by the denial of the motion to dismiss as required under Practice Book § 4005. The issue that the cross appeal seeks to raise cannot properly be addressed until a final judgment is rendered in the trial court. The cross appeal, therefore, must be dismissed.

The appeal and the cross appeal are dismissed.

       One exception to this rule is that interlocutory appeals may be taken from denials of motions to dismiss based on double jeopardy claims. See Sasso v. Aleshin, 197 Conn. 87, 90 n.3, 495 A.2d 1066 (1985). That exception is grounded in constitutionally guaranteed rights and does not apply to this appeal.

       Practice Book § 4005 provides in relevant part: “Any appellee or appellees aggrieved by the judgment or decision from which the appellant has appealed may jointly or severally file a cross appeal within ten days from the filing of the appeal. . .


author: Landau, J.

text:
    State of Connecticut v. David William Salerno
    (12348)
    La very, Landau and Schaller, Js.
    Argued September 29
    decision released November 15, 1994

      Gary A. Mastronardi, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Devin T. Stilson, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, David William Salerno, appeals from a judgment of conviction, rendered after a jury trial, of criminal attempt to possess a narcotic substance with intent to sell in violation of General Statutes §§ 53a-49 and 21a-277 (a). On appeal, the defendant claims that the trial court (1) improperly denied his motion to dismiss the prosecution on the grounds of “outrageous governmental conduct,” and (2) abused its discretion in denying his motions for a mistrial and for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 17,1992, the defendant purchased, for $8000 and a promise to pay an additional $7000, what he believed was one kilogram of cocaine from a Danbury police operative. His arrest on that day was the culmination of a reverse sting operation conducted by the police. In November, 1991, the defendant became friendly with Johnny Soto, who accompanied Diego Builes, a drug dealer, on his cocaine delivery rounds. The defendant was a customer of Builes. In February, 1992, the defendant contacted Soto and asked for his help in obtaining some cocaine. The defendant did not know that Soto was an informant for Detective Daniel Trompetta of the Danbury police. Soto told the defendant that he knew a cocaine supplier named A1 (Alfonso Estubinian, another informant for the Danbury police) and it was agreed among the parties that the defendant would purchase one kilogram of cocaine from Estubinian for $9000 and a promise to pay another $6000. The delivery was to be made on February 15, 1992, at the parking lot of the Ramada Inn in Danbury. Soto and the defendant met Estubinian, who was wearing a transmitter that was monitored by the police, at the agreed time and place, but the transaction was not completed because the defendant did not have the $9000. Another meeting was scheduled for February 17.

On February 17, Soto and the defendant again met and drove in separate vehicles toward the meeting place. Before arriving there, the defendant joined Soto in his car so that they could arrive together. Estubinian was outfitted with a transmitter and the police again monitored and recorded the conversation. The defendant showed Estubinian $8000 and Estubinian went to retrieve the kilogram of cocaine, signaling to the police that the deal was imminent. When Estubinian handed the package to the defendant, the police converged on the scene, arrested the defendant with the kilogram on his lap, and seized the money. The kilogram was flour packaged as narcotics.

At trial, the defendant argued entrapment as a defense. He maintained that the police had induced him to commit the crime and that he was not otherwise predisposed to being an upper level drug dealer. The jury, instructed by the trial court on the defense of entrapment, returned a conviction and this appeal followed.

I

The defendant first claims that the trial court improperly declined to dismiss the prosecution against him on the grounds of “outrageous governmental conduct.” This assertion subsumes two contentions: (1) that the actions of the police were so outrageous as to be fundamentally unfair and therefore a denial of federal constitutional due process; and (2) that the actions of the police were so outrageous as to be fundamentally unfair and therefore a denial of state constitutional due process.

On October 28,1992, during the state’s case-in-chief, the defendant moved to dismiss the prosecution against him. The basis of the defendant’s due process arguments was that the charges against him were the result of illegal conduct by state law enforcement officials. The state responded that the actions of the police in this case were not fundamentally unfair, and that although the defendant was entitled to seek suppression of evidence, he was not entitled to a dismissal of the charges.

Initially, the trial court denied the motion to dismiss as premature because the state had yet to rest its case. The court did, however, discuss State v. Fleming, 198 Conn. 255, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), and stated that the appropriate remedy for the defendant in this case would be a motion to suppress. The defendant did not question the court’s comments. At the conclusion of the state’s case-in-chief, the defendant renewed his motion to dismiss, again asserting outrageous governmental conduct. The trial court ruled that “[t]he court has heard a lengthy argument on this particular proposition before. And while it indicated it was not the proper time to make it, this certainly is. And the court again rules that the motion to dismiss is denied.”

The state asserts that the record is inadequate for review of this issue. We agree. It is the responsibility of the appellant to provide this court with an adequate record for review. Practice Book § 4061; State v. Rosedom, 34 Conn. App. 141, 144, 640 A.2d 634 (1994). A lack of pertinent factual findings and legal conclusions will render a record inadequate. State v. Rios, 30 Conn. App. 712, 719-20, 622 A.2d 618 (1993) (O’Connell, J., concurring). Similarly, ambiguity in a record can render it inadequate. State v. Murray, 225 Conn. 524, 527, 624 A.2d 377 (1993).

After reviewing the record, we cannot discern the reasoning of the trial court when it denied the motion to dismiss. The trial court’s discussion of Fleming suggests that its ruling was based on its interpretation and application of that decision. On the other hand, the trial court’s comment that it “has heard lengthy argument on [the outrageous governmental conduct] proposition before” suggests that the court ruled on the substance of the motion. There are, however, no articulated factual findings or legal conclusions regarding outrageous governmental conduct. We disagree with the defendant’s contention that “it is abundantly clear” that the trial court “obviously perceived the issue raised by his motion as a suppression issue going to the legality of his arrest.” It is just as clear from the trial court’s comments that it may have ruled on the substance of the motion.

This court’s role “ ‘is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.’ ” State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). The record regarding the defendant’s claim of outrageous governmental conduct is inadequate because the basis of the challenged ruling is ambiguous; see State v. Murray, supra, 225 Conn. 527; and because it is devoid of necessary factual findings and legal conclusions. “When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate.” State v. Rosedom, supra, 34 Conn. App. 145-46. As it is not the function of this court to find facts, we decline to review this claim.

II

The defendant’s second claim is that the trial court improperly denied his motions for a mistrial and a new trial. The following facts are necessary for the resolution of this claim. During cross-examination by the state, the defendant testified that he did not know Builes and had never met him. He further testified that he had not been with Montenaro in a pickup truck at a McDonald’s restaurant off exit five of Interstate 95 on December 4, 1991, and that he had not left that truck, or approached a car occupied by Soto and Builes or taken possession of a package from Builes.

In rebuttal, the state recalled Trompetta who testified that on December 4,1991, while assisting Bridgeport police officers in a surveillance of McDonald’s off exit five of Interstate 95, he had observed a car occupied by Soto and Builes enter the parking lot and park next to a pickup truck. The truck was occupied by three males, one who Trompetta believed was Montenaro and another, the defendant.

On cross-examination, Trompetta testified that he personally did not know who owned the truck, but that the Bridgeport police had informed him that it belonged to Montenaro. Trompetta further responded that he knew what Montenaro looked like and described him to the jurors. He then testified that he saw someone in the truck “who the Bridgeport police told me was Gary Montenaro.” The defendant moved to have Trompetta’s testimony stricken. The trial court granted the defendant’s motion and immediately gave a cautionary instruction to the jury.

Outside of the presence of the jury, the defendant orally moved for a mistrial, claiming that the damage done by Trompetta’s stricken testimony could not be “cleansed” from the minds of the jurors by the instruction. The court denied this motion. The defendant neither requested that a second curative instruction be included in the final charge to the jury, nor took an exception to the absence of any such instruction.

“Due process requires that a criminal defendant be given a fair trial before an impartial jury. U.S. Const., amend XIV; Conn. Const., art. I, § 8; State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). A new trial, however, is not required every time ‘ “a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” ’ Rushen v. Spain, 464 U.S. 114, 118, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983), quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).

“The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. State v. Hancich, 200 Conn. 615, 624-25, 513 A.2d 638 (1986); State v. Gaston, 198 Conn. 490, 495-96, 503 A.2d 1157 (1986); State v. Ubaldi, 190 Conn. 559, 562, 464 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). The trial court enjoys wide discretion in deciding whether a mistrial is warranted; Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); and its evaluation as to events occurring before the jury is to be accorded the highest deference. United States v. Grasso, 600 F.2d 342, 343 (2d Cir. 1979). Every reasonable presumption will be given in favor of the trial court’s ruling; State v. Rodriguez, 10 Conn. App. 176, 179, 522 A.2d 299 (1987); because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure has prejudiced a defendant. See, e.g., United States v. Wiley, 846 F.2d 150, 157 (2d Cir. 1988); State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989); State v. Fleming, [supra, 198 Conn. 264].” State v. Harvey, 27 Conn. App. 171, 177-78, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992).

The trial court was well aware of the effect of Trompetta’s testimony. It found, on the basis of its own observations, that the jurors were not “particularly attentive to, interested in or affected in any way by [Trompetta’s] testimony.” It nonetheless struck the testimony and instructed the jury to disregard any and all of Trompetta’s testimony. The court was “satisfied that its curative instruction [had] in fact solved the problem.” In the court’s articulation directed to the defendant’s motion for a new trial, it reiterated its earlier statement and stated that the court “also note[s] that the jury’s reaction to the curative instruction was that two jurors nodded their heads less than enthusiastically on being told to disregard [Trompetta’s testimony] and not to consider it in any way whatsoever. Assuming, arguendo, the existence of some prejudice from this testimony, any such prejudice was minimized, if not eliminated.” The trial court occupied the best vantage point for assessing courtroom events. We, therefore, must afford great deference to its conclusions.

We cannot say that the conduct at issue, in light of the curative measures administered by the court, so jeopardized the defendant’s right to a fair trial that the trial court abused its discretion in denying his motion for a mistrial or for a new trial. The defendant’s right to a fair trial was more than adequately protected and his claim to the contrary must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 21a-277 (a) provides in pertinent part: “Any person who . . . possesses with the intent to sell ... a narcotic substance ... for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned . . . .”

       A reverse sting occurs when a suspected drug dealer is introduced to a police operative posing as a supplier of controlled substances who attempts to sell the dealer simulated narcotics.

       In his brief, the defendant claimed a third issue — that the actions of the police were so outrageous as to constitute entrapment as a matter of law. In his reply brief, in light of State v. Lee, 229 Conn. 60, 640 A.2d 553 (1994), he withdrew all statutory claims relating to “objective entrapment” or “entrapment as a matter of law.”

       At the hearing, the defendant asserted that “[t]he claim is due process. It’s based on fundamental fairness. And the gist of the claim ... is over involvement of law enforcement in the illegal conduct. And — in other words, Your Honor, in a situation where the government or the state or law enforcement in essence places its imprimatur — its stamp of approval on conduct— involves the defendant into the situation and then ultimately makes an arrest.” Salerno also pointed out that the cases on which his claim relied were decided “not on entrapment.”

       Convicted of the crime of felony murder in connection with the death of an individual during the robbery of a package store, Fleming appealed to the Supreme Court claiming that the charges against him should have been dismissed because his arrest was illegal. The court held that an illegal arrest imposes no jurisdictional bar, under either the state or federal constitutions, to a defendant’s subsequent prosecution where the fairness of that prosecution has not been impaired by that illegal arrest, and that State v. Licari, 153 Conn. 127, 214 A.2d 900 (1965), to the extent that it holds to the contrary, was overruled.

       The defendant baldly concludes that outrageous governmental conduct exists. Without the trial court’s findings of fact, the defendant’s claim of outrageous governmental conduct cannot be resolved without this court’s finding facts drawn from the conflicting testimony of the several witnesses.

       The rules of practice offer assistance to the appellant in providing a reviewing court with an adequate record. See State v. Rios, supra, 30 Conn. App. 716-20. The defendant did not avail himself of this option.

       The trial court stated: “The motion is well taken. The jury will disregard it at this point. He is reporting hearsay. It’s excluded and I’m directing you not to consider it — any part of it. And you’re obligated to follow that instruction. It is ordered stricken. You will not consider it.”

       The defendant, in his brief, alleges that “at the time Trompetta testified on the state’s rebuttal case, he and the prosecutor deliberately led the court, the jury and the defense to believe that he was testifying based upon his own personal knowledge.” In his reply brief, the defendant asserts that Trompetta’s testimony was “offered with full advance knowledge on the part of either the prosecutor, or Trompetta, or both.” The defendant, however, made no claim of prosecutorial misconduct at the time of trial. In fact, he stated to the trial court, “I didn’t know if [the prosecuting attorney] knew [of Trompetta’s lack of personal knowledge] or not when he put the witness on the stand.” The defendant pressed no claim of prosecutorial misconduct at the time of trial; moreover, his present suggestion of prosecutorial misconduct is unsupported and speculative. He has suggested no exceptional circumstances to warrant departure from the general rule that limits appellate review to those issues on which the trial court has had an opportunity to rule. Knight v. Bourbeau, 194 Conn. 702, 704 n.3, 485 A.2d 919 (1984).

       The trial court ruled: “This evidence was [admitted] for the limited purpose of challenging the credibility of [the defendant] on a particular point. It is not an essential element of the case, to be sure. And the court is satisfied that its curative instruction has in fact solved the problem. At this point your motion for mistrial is denied.”

       Prior to the verdict, on November 23,1992, the defendant filed a written motion for mistrial requesting that the trial court reconsider its denial of his oral motion for mistrial. This was denied in court on November 23,1992. On November 25, 1992, the defendant filed a motion for judgment of acquittal based on the theory of “legal impossibility” and “insufficiency of evidence.” The trial court denied this motion on March 23, 1993. On November 25,1992, the defendant filed a motion for a new trial based on Trompetta’s stricken testimony that repeated the reasons set forth in his written motion for mistrial.
      On April 29,1993, the defendant requested an articulation on his motion for a new trial. On July 27, 1993, the trial court filed its articulation, in which it reiterated its earlier denial of the motions for mistrial and stated: “[U]pon the objection by [the defendant] to the testimony of Detective Trompetta as hearsay, and hearing counsel fully on the objection, the court sustained it and immediately instructed the jury to disregard it. The court perceived no change in the facial expressions of any of the jurors much less any change in posture that might suggest that the individual members thereof were particularly attentive to, interested in or affected in any way by that testimony. The court is satisfied that it made no impression upon them whatsoever. It might also note that the jury’s reaction to the curative instruction on being told to disregard the evidence and not to consider it in any way whatsoever. Assuming, arguendo, the existence of some prejudice from this testimony, any such prejudice was minimized, if not eliminated.”
      On August 6,1993, a hearing was held “[i]n view of the representation that no ruling was ever entered on the defendant’s motion for a new trial.” On September 17,1993, the trial court issued a memorandum of decision in which it reiterated its observations of the jury’s reaction to the stricken testimony and the court’s curative instruction, and denied the defendant’s motion for a new trial.


text:
    First Trust National Association, Trustee v. William C. Hitt et al.
    (12918)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued September 29
    decision released November 15, 1994

      Arthur M. Field, pro se, the appellant.

      Andrew J. McDonald, for the appellee (plaintiff).
   Landau, J.

This is an appeal from a trial court order affirming the denial of the appellant’s motion for a protective order, which sought to quash discovery of trustee account records. The appellant, Arthur M. Field, an attorney appearing pro se, filed the motion for a protective order in response to a subpoena duces tecum served by the plaintiff on Shawmut Bank Connecticut, N.A., formerly Connecticut National Bank (Shawmut Bank) requesting Field’s attorney trustee banking records. Field sets out in twelve claims an assault on the trial court’s rulings resembling “[t]he wolf on the fold,” the gist of which is that (1) the trial court, J. Walsh, J., improperly summarily denied the motion for protective order in Field’s absence, (2) the court, Gaffney, J., improperly heard reargument on a motion originally heard and decided by another judge, (3) both judges improperly permitted to be subpoenaed information that was overbroad and properly precluded from discovery, (4) both improperly failed to examine material in camera before permitting discovery so as to determine potential violations of privileges and rights, (5) both improperly denied Field and his clients their federal and state constitutional rights, (6) both improperly applied the burden of proof with regard to Field’s constitutional arguments, and (7) the court, J. Walsh, J., failed to furnish an adequate record of the proceedings.

The appellee, First Trust National Association, as trustee (First Trust), argues (1), that should this court find that this appeal is moot, the “capable of repetition, yet evading review” exception is justification for reviewing the appeal, (2) that Field lacks standing to appeal the trial court’s order in that he is not a party to the underlying action, and (3) that this court lacks subject matter jurisdiction in that the trial court’s order is not a final judgment for purposes of an appeal.

The following facts provide context for appellate review. The underlying action, commenced in February, 1993, involves the foreclosure of a residential mortgage. While Field is not a party to that action, he represented at least one of the defendants at the time the mortgage note was executed. In response to special defenses filed by Barbara Izzo and Alphonse Izzo, First Trust commenced discovery proceedings to determine the details and extent of an alleged fraud. As a result of information gleaned from other proceedings, First Trust claims to have determined that moneys were given to and retained by Field.

First Trust served Field with a notice of deposition and a subpoena duces tecum and deposed him on three occasions. During the depositions, Field advanced claims of attorney-client privilege, personal privacy rights, and a fifth amendment right against self-incrimination. First Trust then served a notice of deposition and a subpoena duces tecum on an officer of Shawmut Bank for certain of Field’s trustee bank records. The notice and subpoena also were served on Field pursuant to General Statutes § 36-9L In response to the subpoena, Field filed a motion for a protective order, which the trial court denied. Although he was not present at the hearing when the motion was denied, the trial court permitted him to argue at a subsequent hearing on the protective order. The court again denied the motion and Field appealed. At oral argument in this court, it was agreed by Field and First Trust that Shawmut Bank had complied with the subpoena and that all records sought under that subpoena were in the possession of counsel for First Trust.

Mootness implicates the jurisdiction of this court, and we first determine whether this appeal is moot. Good- son v. State, 228 Conn. 106, 114, 635 A.2d 285 (1993). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In the absence of an actual and existing controversy for us to adjudicate . . . the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal. . . (Citations omitted; internal quotation marks omitted.) Delevieleuse v. Manson, 184 Conn. 434, 436, 439 A.2d 1055 (1981). Because the subpoena in this case has been complied with, no practical relief can follow from this appeal. We therefore conclude that the appeal is moot.

A well established exception to the mootness rule is where the issue is “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911). Appeals that fit within the exception are those in which the challenged action is “in duration too short to be fully litigated prior to its cessation or expiration . . . and there was reasonable expectation that the same complaining party would be subjected to the same action again.” (Internal quotation marks omitted.) Board of Education v. Board of Labor Relations, 205 Conn. 116, 126, 530 A.2d 588 (1987).

“The time dimension that the name of the exception implies is necessary but not itself sufficient to invoke our appellate jurisdiction. Rather, we must look to additional factors to determine whether we should decide the issue even though it may have no immediate practical consequences to a party. . . . Some of those factors include whether the issue (1) could affect an ongoing program of the state penal or civil system, (2) could affect the complaining party in the future, and (3) involves a matter of public importance. ... No one factor is controlling, nor must all of the above factors be present. To decide the applicability of the exception, we must instead review the circumstances of each case.” (Citations omitted.) Goodson v. State, supra, 228 Conn. 115.

Like mootness, the capable of repetition, yet evading review exception is fact sensitive. Therefore, in our inquiry to decide whether circumstances mitigate in favor of reviewing an appeal under the exception, we must place the facts of the case against the template of Goodson and its progenitors.

This appeal is in a curious position in that both the appellant and the appellee urge the court to review the appeal under the capable of repetition, yet evading review exception to the mootness rule. In support of its suggestion that the appeal is reviewable, First Trust states, in an allegation bare of any evidence, analysis or claims of law, that “the trial court’s ruling and its application of General Statutes § 36-91 could potentially have a significant effect on the way in which civil litigation in general, and the pretrial process in particular, is conducted in this state.” The lack of authority or reasoning relating to this assertion leaves us unpersuaded that this issue implicates a matter of public importance.

It is also difficult for us to discern how our decision that the appeal is moot could affect the complaining party in the future. Shawmut already has given all of Field’s checks to First Trust. At argument, First Trust alluded to the possibility of a future interest in “wire transfers in Field’s account.” This allusion, standing alone, does not allow us to conclude that there is a likelihood of any effect on Field in the future, or that he will be unable to seek or obtain relief under § 36-9L

We conclude that there is no justification to review this appeal under the capable of repetition, yet evading review exception to the mootness doctrine. Because there no longer exists an actual controversy between the participants and this court can no longer provide any practical relief, we conclude the appeal is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       Lord Byron, Hebrew Melodies, “The Destruction of Sennacherib.”

       The defendants in the foreclosure action are William Hitt, Barbara Izzo and Alphonse Izzo. The Izzos allegedly sold their interest in the real property to Hitt on July 10, 1991, at which time Hitt mortgaged the property to the Prudential Home Mortgage Company. The Izzos contend that they rescinded the transaction within forty-eight hours. Field was present during the transaction and the Izzos claim that he was their attorney at that time. Field claims that he represented Hitt and not the Izzos during that transaction.
      The Izzos filed eight special defenses alleging, inter alia, fraud, lack of title in Hitt, and rescission. Hitt filed special defenses alleging laches, a violation of the truth in lending law, and lack of mitigation. He also filed a counterclaim alleging eight causes of action against the Izzos. Prudential Home Mortgage Company assigned its interest to the appellee First National, as trustee.

       Field did not appear at the first deposition and, although he presented himself at the rescheduled deposition, he failed to bring all of the documents that First Trust requested. At no time did Field file a motion to quash this subpoena.

       General Statutes § 36-9Z provides in pertinent part: “(a) [A] financial institution shall disclose financial records pursuant to a lawful subpoena, summons, warrant or court order served upon it if the party seeking the records causes such subpoena, summons, warrant or court order or a certified copy thereof to be served upon the customer whose records are being sought, at least ten days prior to the date on which the records are to be disclosed, provided a court of competent jurisdiction, for good cause, may waive service of such subpoena, summons, warrant or court order, or certified copy thereof, upon such customer. . . .
      “(b) A customer of a financial institution shall have standing to challenge a subpoena of his financial records, by filing an application or motion to quash in a court of competent jurisdiction within the ten-day notice period required by subsection (a) of this section. Upon the filing of such application or motion by the customer, and service of such application or motion upon the financial institution and the person issuing the subpoena, production of the records shall be stayed, without liability to the financial institution, until the court holds a hearing on the motion or application and an order is entered sustaining, modifying or quashing the subpoena.....”

       General Statutes § 36-9Z requires that an application or motion to quash be filed, rather than a motion for protective order. See footnote 4. Because, however, the trial court and parties treated Field’s motion for protective order as a motion to quash, we will do so as well.

       Prior to oral argument, First Trust filed a motion to dismiss the appeal for lack of a final judgment, which motion was denied by this court. In its brief and at argument of the appeal itself, First Trust again seeks a dismissal on the ground of the lack of a final judgment. We do not reach this question because of our conclusion that the appeal is moot.


author: Heiman, J.

text:
    State of Connecticut v. Mark C. Lyons
    (11299)
    Heiman, Schaller and Freedman, Js.
    Argued September 13
    decision released November 15, 1994

      Jerome J. Rosenblum, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Bruce Hudock, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 and burglary in the third degree in violation of General Statutes § 53a-103. The defendant was found not guilty of a separate count of sexual assault in the first degree. On appeal, the defendant claims that the trial court improperly (1) failed to conduct an inquiry into alleged jury misconduct and (2) twice gave the jury a so called “Chip Smith” charge. The defendant’s claim concerning the absence of the trial judge from the bench during the voir dire was withdrawn at the time of the oral argument.

The jury could reasonably have found the following facts. In September, 1990, the victim met the defendant at a nightclub in Port Chester, New York. Thereafter, a relationship developed between them, and for the next three weeks the defendant and the victim saw each other almost daily. At that time, the victim and the defendant began a voluntary sexual relationship.

In October, 1990, the defendant began looking for an apartment with a friend. In the interim, the victim allowed the defendant to move into her apartment in Greenwich, which she occupied with two roommates. By December, the defendant had stopped working and the relationship began to deteriorate. The financial strain of supporting herself and the defendant eventually became unbearable for the victim. In addition, the defendant began to show signs of jealousy and would become outraged when male friends or exboyfriends called the victim. In order to alleviate their situation, the victim encouraged the defendant to look for work and often loaned him her vehicle so that he could get to job interviews.

By January, 1991, the relationship between the defendant and the victim had become more strained. They fought frequently and the victim decided that she wanted the defendant to leave the apartment, but the defendant refused. On or about February 20,1991, the victim received a telephone call from the White Plains, New York, police department. She was informed that the defendant had been arrested and that her car had been used in the commission of a crime. The news of the defendant’s criminal activities upset the victim sufficiently for her to tell the defendant that their relationship was at an end. The victim collected the defendant’s belongings from her apartment and had them removed by a friend of the defendant.

Throughout February, the defendant continued to call the victim, attempting a reconciliation. He claimed that if she would not see him at her apartment, he would follow her to work or to her parents’ house. He began sleeping in the victim’s basement, and the victim became frightened of the defendant’s obsessive behavior.

On three occasions in March, 1991, the defendant appeared uninvited at the victim’s apartment and forced her to have sexual intercourse with him. The victim did not report'any of these instances to the police because she was afraid of the defendant and because she believed that the defendant would soon be going to jail for the incident in White Plains. She did, however, tell the police that the defendant had been physically abusive and that he had come into her apartment uninvited. On March 27,1991, she obtained a restraining order against the defendant.

On April 15,1991, the defendant entered the victim’s apartment through a window while she was asleep. The victim awoke to see the defendant standing in the doorway of her bedroom. The defendant entered the room and locked the door. He then turned on the radio and turned up the volume. The victim hurried to pull on a pair of jeans that were on the floor by her bed, but the defendant restrained her from getting dressed. WTien the victim reminded the defendant that she had a restraining order against him, he laughed and said, “I am going to jail anyway. ... It doesn’t matter if I have a rape on my record.” When she asked him if he was going to rape her, he replied, “Yes.”

The victim curled herself into a ball on the bed so that the defendant could not touch her in a sexual manner. The defendant grabbed her from behind and covered her mouth. He then pulled off her shirt and brassiere, climbed on top of her, and had sexual intercourse with her.

After the defendant ejaculated, he got up from the bed while the victim lay crying. When she got up to go to the bathroom, the defendant followed her and watched her. He then walked her back into the bedroom and had sexual intercourse with her again, despite her sobbing and asking him to stop. As soon as the defendant left, the victim called the police to report that she had been sexually assaulted.

Jury deliberations commenced on November 19,1991. On November 21, 1991, at approximately 12:10 p.m., the trial court received a note from the jury foreperson stating: “Currently we are at an impasse. We can agree on one count and are not in agreement on the other two counts. There appears to be no movement by the jurors to agree.” As a result of the indication of possible jury deadlock, the trial court gave the jury a “Chip Smith” charge. State v. Smith, 49 Conn. 376, 386 (1881).

At approximately 2:20 p.m., the proceedings resumed and the jury foreperson presented the trial court with another note. This note read as follows: “One of the jurors has made it plain that he/she had made up her mind prior to the trial how he/she would vote based on the presence or absence of specific testimony. He/she claims to have made her stand clear to the prosecuting attorney in the voir dire. This specific testimony is not in the evidence that has been presented to us. He/she is basing his/her decision on the fact that specific testimony has not been introduced in evidence. We are at an impasse.” The trial court instructed the jurors that they were not to consider anything not in evidence. The trial court stated in part: “It’s not a popularity contest to be determined by which lawyer you think has done a better job. That’s not what this is about. It’s not about that at all. . . . It’s not about what hasn’t been introduced as evidence. It’s only about what has been introduced as evidence. And you’re not entitled to draw any inferences from the lack of any evidence.”

The trial court then repeated the Chip Smith charge and concluded, “Now with that additional instruction I would ask you to retire to the deliberating room and see if you can’t agree on a unanimous verdict on all three counts.” Once the jury had retired, the trial court asked counsel whether there were any exceptions to its answer to the jury’s questions. Counsel for the defendant took exception only to the reference of the court to the case’s not being a “popularity contest” between the lawyers but offered no objection to the second Chip Smith charge.

At approximately 4:38, the jury returned with a verdict, finding the defendant guilty of one count of sexual assault in the first degree and one count of burglary in the third degree. The jury returned a not guilty verdict on the second count of sexual assault in the first degree. This appeal followed.

I

The defendant first asserts that the trial court improperly failed to make an inquiry into possible jury misconduct, thereby violating his constitutional right to a fair trial by an impartial jury. The defendant contends that the court should have made such an inquiry, sua sponte, upon receipt of the note concerning possible jury misconduct. Because the issue was not properly preserved at trial and does not meet the requirements for review enumerated in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), we decline to review the defendant’s claim.

A

Generally, when evidence of possible juror misconduct is brought to the attention of the trial court, the court should determine whether the defendant has been prejudiced. State v. Migliaro, 28 Conn. App. 388, 396, 611 A.2d 422 (1992). “ ‘There is no magic formula that the trial court must follow in conducting this inquiry. Rather, it must use whatever inquisitorial tools are necessary and appropriate to determine whether there was a “reasonable possibility” of prejudice.’ ” Id., quoting United States v. Savage, 701 F.2d 867, 871 (11th Cir. 1983).

Counsel for the defendant did not, however, request any inquiry of the jury. Upon receipt of the note that a juror considered basing her decision on the absence of specific testimony, the trial court repeated its instruction that the jury consider only that evidence that had been properly admitted at trial. After dismissing the jury for further deliberations, the trial court gave counsel an opportunity to object to its response to the note. Counsel for the defendant objected only to a comment by the trial court that the trial was not a “popularity contest” between the lawyers and that the jury’s decision should not turn on which lawyer the jury thought did a better job. Counsel did not request that the jury be polled or that the court make further inquiry into what the juror was considering.

The defendant posits, however, that an inquiry into the possible misconduct should have been undertaken by the trial court sua sponte, thus relieving him of his burden to request such action. In support of this contention, the defendant relies on State v. Migliaro, supra, 28 Conn. App. 388, and State v. Gonzalez, 25 Conn. App. 433, 596 A.2d 443 (1991), aff’d, 222 Conn. 718, 609 A.2d 1003 (1992). Although both cases support the proposition that an inquiry should be made to determine whether the defendant was prejudiced, in neither case did the court act in the absence of a request by counsel. In State v. Migliaro, supra, 392, counsel for the defendant specifically stated his concern about the possibility that a juror had been exposed to extrinsic evidence and asked the court the proper way to handle the situation. In State v. Gonzalez, supra, 438, counsel for the defendant and the state both objected to the trial court’s refusal to address the jury’s concern that one of its members had been exposed to extrinsic evidence. Neither case mandates any action by the trial court to investigate misconduct absent a request by counsel.

Here, the defendant neither requested an inquiry to clarify the reason behind the note from the jury, nor objected to the trial court’s failure to make such an inquiry sua sponte. The defendant’s objection was limited to the trial court’s comments regarding the trial’s not being a popularity contest.

Practice Book § 4185 provides in part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .’’To preserve this claim for appellate review, the defendant should have either requested that the trial court conduct an inquiry to determine the juror’s conduct or taken an exception to the trial court’s decision not to act sua sponte. The defendant failed to do either.

B

The defendant asserts that even if his claim was not properly preserved at trial, it is entitled to review under the standards enunciated in State v. Golding, supra, 213 Conn. 233. “Under Golding, a defendant can prevail on an unpreserved claim of constitutional error ‘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.’ ” State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994), quoting State v. Golding, supra, 239-40.

“The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Crosby, supra, 34 Conn. App. 264. This court “remain[s] free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 756, 778, 601 A.2d 521 (1992). Here, by not providing us with an adequate record to review his claim, the defendant has failed to satisfy the first condition enunciated in Golding.

The note from the jury was ambiguous in that it did not describe the conduct at issue. The defendant assumes that the juror was considering extrinsic evidence, while the note also permits an inference that the juror was considering the effect of the absence of particular evidence. Without such essential information, it is impossible for us to determine whether the actions of the trial court were sufficient under the circumstances.

“Our Supreme Court has stated in Golding that, ‘[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.’ ” State v. Strikcani, 34 Conn. App. 691, 693, 642 A.2d 1228 (1994). We, therefore, will not afford review of this unpreserved claim.

II

■The defendant next asserts that the trial court improperly repeated the Chip Smith charge to the jury. The defendant failed to preserve this claim properly at trial and we conclude that it is not entitled to review under State v. Golding, supra, 213 Conn. 233.

As stated in part I, the transcript shows that the defendant objected only to the trial court’s reference to the proceedings not being a popularity contest. The defendant did not object to the substance of the second Chip Smith charge, nor did he claim that repetition of the charge was coercive to dissenting jurors. The defendant did not, therefore, properly preserve this claim.

The defendant claims, however, that he is entitled to review under Golding. In support of his claim of entitlement to a Golding review, the defendant posits that the repetition of the Chip Smith charge deprived him of his constitutional right to a jury that has not been coerced into determining his guilt or innocence. His claim is, in essence, that the second charge, combined with the trial court’s instruction to the jurors to “retire to the deliberating room and see if you can’t agree on a unanimous verdict,” coerced them into returning a verdict that the defendant considers to be a compromise.

Despite the constitutional labels attached to this claim by the defendant, we conclude that the defendant has failed to meet the second prong of Golding. “Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” Id., 240.

This court and our Supreme Court have consistently upheld various forms of the Chip Smith charge designed to overcome possible jury deadlock. State v. Pinnock, supra, 220 Conn. 795, citing State v. O’Neill, 200 Conn. 268, 281-84, 511 A.2d 321 (1986); State v. Jones, 193 Conn. 70, 91-92, 475 A.2d 1087 (1984); State v. Avcollie, 188 Conn. 626, 641-42, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Stankowski, 184 Conn. 121, 145-47, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Martinez, 173 Conn. 541, 378 A.2d 517 (1977); State v. Ralls, 167 Conn. 408, 425, 356 A.2d 147 (1974); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925). Such a charge does not coerce a jury, but rather reminds jurors of their duties in the deliberative process. State v. Ralls, supra, 424. The Chip Smith charge is a balanced statement that “makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors . . . .” Id., 424-25.

The charge given here closely resembles the Chip Smith charge developed in State v. Smith, supra, 49 Conn. 386. It in no way coerces dissenting jurors into subverting their opinions to those of the majority, but urges each juror to consider the questions before the jury with “due regard and deference to the opinions of each other” in an effort to arrive at a unanimous verdict. Although the charge does call on dissenting jurors to reevaluate their conclusions, such a charge is not coercive when considered in its totality.

In addition, despite the defendant’s claims, repetition of an otherwise appropriate charge does not ere-ate an atmosphere of coercion that may threaten a defendant’s constitutional right to a fair trial. See State v. Pinnock, supra, 220 Conn. 796 (upholding actions of trial court that read Chip Smith charge to jury twice in immediate succession); State v. Ralls, supra, 167 Conn. 423-25 (repetition of Chip Smith charge viewed by Supreme Court as corrective of other remarks allegedly coercing jury to agree on verdict).

“Just as every claim of evidentiary error by the trial court is not truly constitutional in nature; see, e.g., [State v. Golding, supra, 213 Conn. 241]; every claim of instructional error is not truly constitutional in nature. We have recognized, for example, that claimed instructional errors regarding the elements of an offense; see, e.g., State v. Boles, 223 Conn. 535, 543, 613 A.2d 770 (1992); and claimed instructional errors regarding the burden of proof or the presumption of innocence; see, e.g., State v. Adams, 225 Conn. 270, 289, 623 A.2d 42 (1993); are constitutional in nature, so as to satisfy the second Golding requirement.” State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993). On the other hand, claimed instructional errors regarding general principles of credibility of witnesses have been held to be nonconstitutional in nature; State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991); as have claimed instructional errors regarding the jury’s duty objectively to consider the evidence before them. State v. Walton, supra, 64-65.

The Chip Smith charge from State v. Smith, supra, 49 Conn. 386, resembles those instructions held to be nonconstitutional in nature in State v. Tatum, supra, 219 Conn. 738, and State v. Walton, supra, 227 Conn. 64-65. The Chip Smith charge does not concern the elements of a crime, but deals only with the role of the jurors and their duties during the deliberative process. We, therefore, conclude that the defendant’s claim is not of constitutional magnitude and does not allege the violation of a fundamental right. State v. Golding, supra, 213 Conn. 239.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person . . . which reasonably causes such person to fear physical injury to such person . . . .”

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       The “Chip Smith” charge was developed in the case of State v. Smith, 49 Conn. 376, 386 (1881), to instruct the jury as to its duties in the event of deadlock. The jurors are charged, inter alia, to “pay proper respect to each other’s opinions, and listen with candor to each other’s arguments” in order to arrive at an unanimous verdict. Id.

       See State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994), reversing this court’s holding that the absence of the trial judge from the courtroom during voir dire in a criminal trial is per se reversible error.

       The supplemental charge was as follows: “Although the verdict to which each of you agrees must express Ms or her own conclusion and not be a mere acquiescence in the conclusions of your fellow jurors, yet in order to bring six minds to a unanimous result you should consider the questions you have to decide not only carefully but also with due regard and deference to the opinions of each other.
      “In conferring together you ought to pay proper respect to each other’s opinion and listen with an open mind to each other’s arguments. If much the larger number of you reach a certain conclusion, a dissenting juror or jurors should consider whether his or her opinion is a reasonable one when the evidence does not lead to a similar opinion in the minds of the other jurors, men and women who are equally honest and equally intelligent, who have heard the same evidence with the same attention, with equal desire to arrive at the truth and under the sanction of the same oath.
      “If a majority of you are for one position, the minority ought to seriously ask themselves whether in reason they should adhere to their own conclusion when those conclusions are not concurred in by most of those with whom they are associated and whether it might not be well to distrust the weight or sufficiency of the evidence upon which the minority rely when that evidence fails to bring the minds of their fellow jurors to the same conclusion they have reached.”

       The objection by counsel for the defendant was as follows:
      “The Court: Does the defense have any objection?
      “Counsel: I have some exception I think to Your Honor’s last charge.
      “The Court: Very well.
      “Counsel: Not the — the charge on consent was actually my request, so I have no exception to that, but—
      “The Court: Very well. But I’d like to hear what that is . . .
      “Counsel: I think that there were references that the court made that may create the wrong impression or give the wrong inference to the jury—

        “The Court: Well, tell me what they were—
      “Counsel: All right. Specifically—
      “The Court: — and if they are valid I’ll bring them out again.
      “Counsel: — your reference to it not being a popularity contest between attorneys and it’s not a question of evaluating whether an attorney is doing a good job—
      “The Court: Right.
      “Counsel: — in presenting certain evidence. We don’t really even know if that is the problem.
      “The Court: No, we don’t.
      “Counsel: And I think it’s injecting another train of thought really into the problem here when you’ve got a jury who’s been out not two days trying to work this out and I think that I have to take exception to those remarks because I really don’t think they were called for based on the problem that was presented to us.
      “The Court: Very well. Obviously I do not agree with you, but I agree wholeheartedly with your ability to take an exception and your exception is noted for the record.
      “Counsel: Thank you, Your Honor.
      “The Court: Is there anything else?
      “Counsel: No, Your Honor.”