author: LAVINE, J.

text:
    LARRY PETTIT ET AL. v. HAMPTON AND BEECH, INC., ET AL.
    (AC 27156)
    Harper, Lavine and Dupont, Js.

      Argued December 7, 2006
    officially released June 5, 2007

      John H. Parks, for the appellants (plaintiffs).

      Paul W. Smith, for the appellees (defendants).
   Opinion

LAVINE, J.

The facts underlying this appeal concern the construction and sale of a new home. The plaintiffs, Larry Pettit and Bonnie Pettit, appeal from the judgment for money damages rendered in their favor, which they claim to be insufficient, following a trial to the court. The plaintiffs have raised nine claims on appeal, which we have grouped for purposes of analysis. The plaintiffs claim that the court (1) applied the wrong standard to determine whether there was substantial compliance with the contract, (2) improperly refused to apply General Statutes § 20-417a et seq., the New Home Construction Contractors Act (act), (3) abused its discretion in permitting the defendants’ expert witness to testify and (4) made erroneous findings of fact and failed to resolve allegations pleaded. We affirm the judgment of the trial court.

The plaintiffs commenced this action against the defendant David J. Frederick for damages they allegedly sustained in connection with the construction and sale of a new, single-family home at 9 Chamley Road, Enfield. The plaintiffs and Frederick were the signatories to the contract, but subsequent to the initiation of htigation, Frederick assigned the contract to the corporate defendant, Hampton and Beech, Inc. The parties stipulated that the assignment would not affect any liability the defendants might have.

The court found that the plaintiffs responded to a real estate advertisement for a house to be built similar to one depicted in the advertisement. On February 29, 2000, Frederick and the plaintiffs entered into an agreement. Later, the plaintiffs changed some of the plans, and a second contract was signed in March, 2000. The contract price was $242,455, and the date for closing title was July 30, 2000. The contract did not contain a clause stating that time is of the essence. The contract required the plaintiffs to sign the blueprints provided by Frederick. Rather than purchase a new set of blueprints, Frederick copied a set that was on file in the Enfield building department and modified it by hand to reflect the changes the plaintiffs wanted. The plaintiffs wanted their home to be a mirror, or reverse, image of the house depicted in the advertisement. They also modified the plans by widening the combination kitchen and great room and extending the rear of the house. The court found, pursuant to expert testimony, that reading and comprehending the blueprints provided by Frederick were difficult for the framers and probably led to some of the shortcomings in the construction process.

The plaintiffs had a contract to sell their former home and became concerned that their new house would not be ready by July 30, 2000. They extended the closing date on their former home to August 10, 2000, and moved into a motel, where they stayed until October, 2000. On July 31, 2000, one day after the date the contract called for closing, Frederick obtained a certificate of occupancy for the new home. The plaintiffs, however, refused to set a new closing date. Although they still wanted to purchase the house, the plaintiffs commenced this action on August 12, 2000. On August 21, 2000, the plaintiffs presented Frederick with a punch list of work to be completed, which Frederick attempted to resolve, but the lawsuit made a working relationship difficult. Counsel for the parties negotiated a closing date of October 7, 2000, and an escrow of $20,000 for completion of the punch list. Following trial, the court rendered judgment in favor of the plaintiffs on counts one and three of their complaint and on the counterclaim Frederick had filed and awarded the plaintiffs $14,152.34 in damages and attorney’s fees, as provided by the contract, to be satisfied by the escrow.

I

The plaintiffs’ first claim is that the court applied an improper standard to determine whether Frederick was in substantial compliance with the terms of the contract. The plaintiffs contend that the court based its decision on the building code, rather than on the specifications called for in the blueprints, which were incorporated by reference into the contract. We disagree.

The plaintiffs’ amended complaint alleged breach of contract and unworkmanlike performance but based its claim for damages on a failure to comply substantially with the contract. “The determination of [wjhether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine. . . . [Our Supreme Court has] long held that a finding of fact is reversed only when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Pisani Construction, Inc. v. Krueger, 68 Conn. App. 361, 364, 791 A.2d 634 (2002). “The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract. See 2 E. Farnsworth, Contracts § 8.12.” Miller v. Bourgoin, 28 Conn. App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992).

The court made the following findings with respect to the plaintiffs’ allegations that, as constructed, the home did not constitute substantial compliance with the contract. There were surface cracks in the concrete front porch because expansion joints were not installed, and the front steps, which were built to industry standards, had settled. On the basis of expert testimony, the court found that the porch could be repaired by resurfacing it and that the gap between the steps and the porch was a minor repair. The court awarded $3238 to repair both problems. There were cracks in the foundation, which are not uncommon postconstruction, and could be repaired for $700. Although the blueprint called for a two inch by twelve inch support beam to be built into the foundation, Frederick used an alternate construction that provided better structural support and complied with the building code. The court awarded $105 to attach a joist to an existing one to add additional support, although it might not be necessary structurally. The court found that a beam needed to be installed under the kitchen and awarded $250 for repair. Joint hangers were missing on the header and stringers of the stairway to the basement. Their omission was not a structural defect, and they easily could be installed at a cost of $75. Bridging and blocking were omitted or not nailed where ducts and pipes passed through joists, another nonstructural defect, and could be remedied at a cost of $60. Settlement cracks in the walls, a common postconstruction phenomena, could be repaired for $1265. The court also awarded the plaintiffs $219.34 to replace a window over the garage. In making its findings, the court cited the testimony of the plaintiffs’ expert witness, Robert W. Bounds, and also relied on the testimony of Frederick and the defendants’ expert witness, Jimmy W. Hodrinsky, and the building code.

“Although the issuance of a certificate of occupancy may be evidence of substantial performance, it is not dispositive of the question. . . . Other factors to be considered include the extent to which the injured party will be deprived of the benefit reasonably expected, the extent to which that party can be adequately compensated for the deficiency of performance, the extent to which the performing party will suffer forfeiture, the likelihood that the performing party will cure his failure in light of the circumstances and his reasonable assurances, and the extent of good faith and fair dealing on the part of the performing party.” (Citation omitted.) Id.; see also Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 59-60, 829 A.2d 102 (2003), citing 2 Restatement (Second), Contracts § 241 (1981).

“There is no reason why one who has substantially performed ... a [building] contract, but unintentionally failed of strict performance in the matter of minor details, should have imposed upon him as a condition of recovery for that of which the other party has received the benefit, the burden of showing by direct evidence its reasonable value, or why he should be deprived of all benefit of the contract which he has substantially performed.” (Internal quotation marks omitted.) Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (1982).

On the basis of our review of the court’s memorandum of decision, we conclude that the court’s finding that the defendants were in substantial compliance with the contract was not clearly erroneous. The court found that there were some deficiencies in Frederick’s performance, but that they could be remedied for “approximately $5000, which is less than 5 percent of the amount sought.” For these reasons, the plaintiffs cannot prevail on their claim for damages in excess of those found to be due by the court.

II

The plaintiffs’ second claim is that the court improperly refused to apply § 20-417a et seq., an act concerning new home construction contractors, to the evidence and erroneously awarded the defendants the balance of the escrow. In their brief, the plaintiffs also claim that the court improperly failed to find that Frederick had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a, as alleged in count two. The plaintiffs’ claims are without merit.

At paragraph twenty-two of their amended complaint, the plaintiffs alleged in relevant part: “Pursuant to a Motion for Order filed by the Plaintiffs herein, an agreement between the parties was signed on October 2, 2000, which agreement provided . . . (c) Assignment by the Defendant Frederick, which will not avoid liability under [General Statutes] §§ 47-116 et [seq.] and 20-418 et seq.” In their brief to this court, the plaintiffs contend that Frederick was engaged in the business of new home construction and had held himself out as a new home construction contractor with respect to the contract. The plaintiffs also alleged that Frederick did not have a certificate of registration as required by § 20-417a and that the contract failed to comply with certain provisions required by the act. They also represent that they brought this matter to the court’s attention in their posttrial brief. The problem with the plaintiffs’ claims in their posttrial memorandum and on appeal is that the claims are not consistent with the allegations of their complaint and the proof offered at trial.

“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . [T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. . . . [T]he modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 562, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006).

The court summarized the allegations of count two, which incorporated by reference the twenty-seven paragraphs alleged in count one, and which the plaintiffs alleged were a violation of CUTPA, as faulty construction or noncompliance with the blueprints. The court noted the plaintiffs’ representation in their posttrial brief, in addition to the allegations of construction defects, that the contract did not contain provisions required by the act.* ******* The court found, however, that the plaintiffs did not plead those facts. The court also found that the plaintiffs failed to present evidence that Frederick had failed to register as a home improvement contractor.

We have reviewed the plaintiffs’ amended complaint and agree with the court that the plaintiffs did not allege that the defendants violated the act because they failed to allege the statutory basis on which they were relying. See Practice Book § 10-3 (a) (“[w]hen any claim made in a complaint... is grounded on a statute, the statute shall be specifically identified by its number”). Count one of the plaintiffs’ amended complaint alleges common-law causes of action. Furthermore, there are no allegations in count one that the contract omitted notice provisions required by the act.

Count one does allege, however, that Frederick was not registered as a home improvement contractor, pursuant to § 20-418. The complaint does not allege that failure to register is a violation of the act. Failure to register as a contractor pursuant to the act is per se a CUTPA violation. See D’Angelo Development & Construction Co. v. Cordovano, 278 Conn. 237, 248, 897 A.2d 81 (2006). Despite the ambiguous pleading, the court found that the plaintiffs failed prove that Frederick had failed to register under § 20-417a or § 20-418. The plaintiffs do not claim that the court’s finding is clearly erroneous. The court, therefore, properly concluded that the allegations of count two and the evidence presented did not rise to the level of a CUTPA violation. For those reasons, the plaintiffs’ claims fail.

Ill

The plaintiffs claim that the court abused its discretion by permitting the defendants’ expert to testify. The substance of their claim is that they were harmed because, although the defendants disclosed the witness as a licensed home inspector, the witness, they believe, testified as a home improvement contractor. We disagree that the court abused its discretion and that the plaintiffs were harmed by the expert’s testimony.

The plaintiffs recited the following facts in their brief, which form the basis of their claim. On October 22, 2003, the defendants filed a request for examination pursuant to Practice Book § 13-9. The defendants sought to have Hodrinsky, a licensed home inspector, examine the house that is the subject of this litigation. After the examination took place, the defendants disclosed Hodrinsky as their expert, including his report. After Hodrinsky was qualified as an expert,* he offered testimony in accordance with his report. The plaintiffs objected to his testimony, claiming that because he was a home inspector, not a home improvement contractor, he was not qualified to provide estimates of the cost to repair the deficiencies in the plaintiffs’ home. The court overruled the objection stating, “Oh, I don’t think that’s true at all. I think he can quote work that he’seven if he’s not licensed to do it. He can quote, if he has some background and basis for offering the quote— or an estimated cost to do the work. ... It may go to the weight of it . . . .”

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Porter v. Thrane, 98 Conn. App. 336, 339-40, 908 A.2d 1137 (2006).

“With respect to expert testimony, this court has observed that [t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . . Further, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Internal quotation marks omitted.) Id., 340. Section 7-2 of the Connecticut Code of Evidence provides: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

“Except in malpractice cases, it is not essential that an expert witness possess any particular credential, such as a license, in order to be qualified to testify, so long as his education or experience indicate that he has knowledge on a relevant subject significantly greater than that of persons lacking such education or experience.” Conway v. American Excavating, Inc., 41 Conn. App. 437, 448-49, 676 A.2d 881 (1996). Once a witness has been qualified as an expert, any objection to his testimony pertains to its weight, not to its admissibility. In re David W., 254 Conn. 676, 687, 759 A.2d 89 (2000).

The plaintiffs claim that they were surprised that the court permitted Hodrinsky to testify about the estimated cost of repairs because he is not a licensed home repair contractor. They also claim that the court relied exclusively on Hodrinsky’s testimony. Practice Book § 13-4 provides in relevant part that “ [djiscovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Section 13-2 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

“(1) (A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. ...” The plaintiffs have not identified how or in what manner the defendants’ disclosure of Hodrinsky and his report is at odds with our rules of practice. The plaintiffs assert on appeal that the defendants disclosed Hodrinsky as a home inspector but that his testimony actually was that of a home improvement contractor. The plaintiffs have not cited in their brief, with accurate references to the transcript, any evidence to support that claim. See footnote 11.

If the plaintiffs were surprised that the court permitted Hodrinsky to testify, it apparently was due to their own interpretation of Hodrinsky’s report, in which he identified himself as a home inspector and also identified items in the house that needed to be repaired or improved upon and offered an estimate of the cost. The plaintiffs take no issue with Hodrinsky’s extensive experience as a home inspector. They take issue with the estimates of repair that he gave at trial, but on appeal, they have failed to identify what portion, if any, of Hodrinsky’s testimony is at odds with his report. It appears that the plaintiffs take exception to the court’s finding Hodrinsky’s testimony more credible than that of their own experts. As this court has said many times, credibility is for the trier of fact to determine. For these reasons, we conclude that the court did not abuse its discretion by permitting Hodrinsky to offer evidence as to the cost of repairing the subject home.

IV

Finally, the plaintiffs have made more than one dozen claims that the court’s factual findings are not supported by the record and that the court did not resolve all of the claims they alleged. None of these claims is meritorious. The court’s memorandum of decision is enumerated and discusses each of the items of the plaintiffs’ allegations of poor workmanship and other damages. There was contradictory evidence on all of the issues, and this court will not disturb the trial court’s factual determinations unless they are clearly erroneous. See Pisani Construction, Inc. v. Krueger, supra, 68 Conn. App. 364. Mere disagreement with the court’s findings is not a basis for reversal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint sounded in three counts: count, one alleged damages for negligent or fraudulent misrepresentations, breach of contract, breach of express or implied warranties, unworkmanlike construction, construction in violation of the building code and failure to register as a home improvement contractor pursuant to General Statutes § 20-418 et seq.; count two alleged a violation of the Connecticut Unfair Trade Practices Act; see General Statutes § 42-110a et seq.; and count three alleged that the corporate defendant is the alter ego of Frederick. In a counterclaim, Frederick alleged that he had performed fully and was entitled to the $20,000 escrow.

       The court awarded the plaintiffs $8000 in attorney’s lees and found that the plaintiffs contributed to the high attorney’s fees by delaying the closing after the certificate of occupancy was obtained and immediately bringing a lawsuit.

       In the counterclaim, Frederick alleged to have performed the contract fully and sought the $20,000 that had been placed in escrow at the time of closing. After the judgment and attorney’s fees were paid to the plaintiffs from the escrow, the court awarded the defendants the balance of the escrow.

       The court failed to award the plaintiffs damages for various claims of breach of contract. The court concluded that the plaintiffs failed to meet their burden of proving that Frederick had buried tree stumps on the property. The defective floor, which the plaintiffs insisted be installed without delay, was replaced, and the contract provided an allowance for the floor. The plaintiffs failed to substantiate various defects with the interior or the cost of remediation. They also failed to prove that double joists were necessary under partitions. They offered no evidence of the cost to install missing anchor bolts, which, according to Frederick, serves no purpose after a house is built. Frederick installed footing drains to the street, rather than leader drains.
      The court also found that although Frederick failed to construct some portions of the house according to the blueprint, the house was constructed in conformity with the building code. “The blueprint calls for double joists under partitions. The purpose is for added support under partition walls. While that was not done by [Frederick] for added support, the joists were in fact twelve inches on center instead of sixteen inches on center. The joists as installed did satisfy the building code, and according to the plaintiffs’ expert, Mr. Bounds, had sufficient load bearing capacity.”

       In count two of their amended complaint, the plaintiffs alleged that the defendants’ business practices violated CUTPA.

       General Statutes § 47-116 et seq. is an act concerning new home warranties.

       General Statutes § 20-418 et seq. is an act concerning home improvement contractors. We note that throughout their oral argument before this court, the plaintiffs used the terms new home contractor and home improvement contractor interchangeably.

       In its memorandum of decision, the court stated: “The court will consider whether or not breach of contract and claims of poor workmanship support a finding of an unfair trade or deceptive trace practice as those terms have been interpreted. This does not seem to be a case involving substantial misconduct by [Frederick]. As is typical of new construction, there were items throughout the house that were included in a punch list for [Frederick] to repair. He did repair some of the items, but, once suit started, it was difficult for a working relationship to continue. [Frederick] appeared to be acting in good faith in resolving the complaints, but where faced with claims of approximately $150,000 by the lawsuit, not all of the punch list items could be taken care of.”

       Our review of the record discloses that the contract at issue was a real estate contract copyrighted by the Greater Hartford Association of Realtors, Inc., to which construction specifications were affixed.

       In D’Angelo Development & Construction Co. v. Cordovano, supra, 278 Conn. 248, our Supreme Court held that “the legislature did not intend to render noncomplying contracts unenforceable under [the act].”

       In claiming that Hodrinsky testified as a home improvement contractor, the plaintiffs referenced Hodrinsky’s testimony: “I have a [bachelor of science] degree and a [master of arts] degree in vocational, technical and industrial education. . . . I’ve taken courses on the postgraduate level: University of Hartford School of Engineering. I’ve been to some of the vocational technical schools. I take seminars, continuing education seminars in home inspections. I’ve been a home inspector now going on thirty years. I have background in architecture and engineering, although I’m not . . . licensed in either of those areas. I’ve held a home improvement license for a number of years; gave that up because my home inspection business took too much of my time. I taught industrial education for thirty-five years; retired about two years ago—three years ago, actually now, and was department chairman for over twenty years in that school, and the courses I taught that are relative to this or in house construction, house design, home repair and maintenance.” Nowhere in the cited testimony did Hodrinsky testify that he was a home improvement contractor.

       “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.” (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 619, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).


source: Caselaw Access Project

license: Public Domain

text:
    RICHARD O’CONNELL v. DAWN O’CONNELL
    (AC 26816)
    Flynn, C. J., and DiPentrma and Lavine, Js.

      Argued December 12, 2006
    officially released June 5, 2007

      Dawn O’Connell Llaser, pro se, the appellant (defendant).
   Opinion

LAVINE, J.

The pro se defendant, Dawn O’Connell, appeals from two postdissolution judgments of the trial court. The defendant appealed first from the judgment of the court finding her in contempt for wilful failure to comply with various orders with respect to child support and medical expenses of the parties’ child. The defendant claims that the court abused its discretion by finding her in wilful contempt because (1) the contempt finding was based on ambiguous financial orders, (2) the motion for contempt filed by the plaintiff, Richard O’Connell, failed to comply with Practice Book § 25-27, (3) the court denied her repeated requests for a continuance and (4) the plaintiff intentionally misled the court. The defendant later amended her appeal to include the judgment of the court rendered when it denied her motion to vacate an order it issued on April 15, 2005. We affirm the judgments of the trial court.

We begin our resolution of this appeal by setting forth the relevant facts and procedural history. The marriage of the defendant and the plaintiff was dissolved on September 25, 1992. The parties had one minor child during their marriage. The judgment of dissolution awarded the parties joint custody of the child and provided that the child’s principal residence would be with the defendant, with the plaintiff paying her child support. The judgment of dissolution also provided that the parties would share equally the cost of all unreimbursed medical expenses for the child.

On February 4, 2004, the court, Hon. John R. Caruso, judge trial referee, granted the plaintiffs motion to modify the custody arrangement and ordered the child’s primary residence to be with the plaintiff, temporarily suspending his child support obligation. On March 10, 2004, the parties stipulated that the defendant was to pay the plaintiff $86 per week in child support. Also on that date, the defendant filed a motion for contempt, claiming that the plaintiff had failed to pay child support for some of the time that the child had resided with her. On April 20,2004, she filed a similar motion updating the amount she claimed was owed to her.

On May 10, 2004, Judge Caruso held a hearing on various motions, including the defendant’s contempt motions. On November 18, 2004, Judge Caruso issued a memorandum of decision resolving the issues raised at the May 10, 2004 hearing, in which he made three findings relevant to this appeal. First, he found that “the defendant should have paid and should be paying as current support $134 per week.” Second, he found that “ [i]f the defendant has continued to pay the plaintiff $86 per week, the child support arrearage due the plaintiff through the payment date November 17, 2004, amounts to $2532, and after deducting the arrearage due the [defendant] of $1845, there is a net due the plaintiff of $659, which the defendant is ordered to pay the plaintiff $27 per week in addition to the current order of $134 per week.” Third, Judge Caruso ordered the defendant to pay the plaintiff $295 at a rate of $25 per week for unreimbursed medical expenses.

On July 8, 2005, the plaintiff filed a motion for contempt, claiming that the defendant had violated Judge Caruso’s November 18, 2004 orders, as she had failed to pay (1) $27 per week, as ordered on the child support arrearage of $659, (2) $25 per week, as ordered on the unreimbursed medical expense arrearage of $295 and (3) some of her child support payments of $134 per week. The plaintiff also claimed that the defendant had violated the original judgment of dissolution because she had failed to pay one half of the child’s unreim-bursed medical expenses that had accrued subsequent to Judge Caruso’s orders.

On July 19,2005, the court, Hon. Herbert Barall, judge trial referee, held a hearing on the plaintiffs contempt motion. At the hearing, the plaintiff testified that the defendant had paid neither of the arrearages ordered by Judge Caruso. He also testified that she had not paid an additional $655 for unreimbursed medical expenses or five and one-half weeks of child support since Judge Caruso’s order. The defendant appeared pro se at the hearing. She asked several times throughout the hearing for a continuance, as she wanted to present additional evidence to the court. Judge Barall denied her requests.

Judge Barall found the defendant in contempt of both Judge Caruso’s November 18, 2004 order and the judgment of dissolution. With regard to the November 18, 2004 order, Judge Barall found that the defendant wil-fully had failed to pay (1) the child support arrearage of $659, (2) the unreimbursed medical expense arrear-age of $295 and (3) five and one-half weeks of her child support obligation of $134 per week, totaling $737. As to the judgment of dissolution, Judge Barall found that the defendant wilfully had failed to pay one half of the child’s recent unreimbursed medical expenses, amounting to $655. The defendant appealed from the judgment of contempt to this court on August 5, 2005. On November 8, 2005, the defendant filed a motion for articulation of the contempt finding. Judge Barall filed an articulation on November 16, 2005. Additional facts will be set forth as necessary.

Before turning to the merits of the defendant’s claims, we set forth the legal principles that guide our resolution of this appeal and identify the applicable standard of review. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [alleged contemnor] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . [T]he credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact. . . . We review the findings to determine whether they could legally and reasonably be found, thereby establishing that the trial court could reasonably have concluded as it did.” (Internal quotation marks omitted.) Gil v. Gil, 94 Conn. App. 306, 311, 892 A.2d 318 (2006). We now address each of the defendant’s arguments in turn.

I

The defendant’s first claim is that the court abused its discretion in finding her in wilful contempt of the November 18, 2004 order because that finding was based on Judge Caruso’s allegedly ambiguous financial orders. First, the defendant claims that the child support arrearage order was ambiguous because Judge Caruso miscalculated the amount due. Second, the defendant claims that Judge Caruso ordered her to pay the plaintiff $295 for unreimbursed medical expenses at a rate of $25 per week but never specified when the arrearage was to be paid. We conclude that the court’s finding of contempt was not an abuse of discretion.

In Sablosky v. Sablosky, 258 Conn. 713, 784 A.2d 890 (2001), our Supreme Court held that a finding of wilfulness as a predicate to a judgment of contempt of court is not barred, as a matter of law, by the fact that the terms of the judgment involved are ambiguous. Id., 715. The court stated that “[s]uch ambiguity is merely one of the factors for the trial court to take into consideration in exercising its discretion regarding a finding of wilfulness.” Id., 723. Moreover, the court reiterated the well established principle that “where there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather than resort to self-help.” Id., 720; see also Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994) (“a party has a duty to obey a court order however erroneous the action of the court may be” [internal quotation marks omitted]). “A different conclusion would not only frustrate clearly defined public policy regarding the parental obligation to support minor children . . . but it also would encourage parties to refrain from seeking clarifications of ambiguous court orders. The doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments.” (Citation omitted; internal quotation marks omitted.) Sablosky v. Sablosky, supra, 722.

Moreover, “[t]he fact that [a party] exercise[s] self-help when he was not entitled to do so . . . by disobeying the court’s order without first seeking a modification [is] a sufficient basis for the trial court’s contrary exercise of discretion. The court [is] entitled to determine that to exonerate the [contemnor] would be an undue inducement to litigants’ exercise of self-help.” (Emphasis in original; internal quotation marks omitted.) Id., 719-20.

Judge Barall set forth in detail the grounds for the contempt finding in his articulation of the July 19, 2005 judgment. In finding the defendant in contempt for failure to pay the child support arrearage order of $659, the court stated that “the defendant’s testimony as well as ... a letter from the defendant to the plaintiff clearly indicated that she knew what the order was but did, not pay it because she disagreed with Judge Caruso’s decision on her claim that the plaintiff actually owed her money.” (Emphasis added.) Likewise, as to the order that the defendant pay the plaintiff $134 per week in child support, Judge Barall stated that the “defendant clearly knew her obligation but held back money, intentionally claiming again money due her in opposition to Judge Caruso’s finding. The $134 per week support amount was an agreed figure. . . . [The defendant] acknowledged two weeks arrearage in testimony, and three and one-half weeks in her letter .... The Judge Caruso decision was not appealed. The defendant was obligated to follow it. There was no claim that she could not pay it. The court found the plaintiff more credible and found that the defendant did not pay five and one-half weeks of the child support order . . . .” (Emphasis added). We conclude that the court’s finding of contempt was legally reasonable and supported by the record.

Likewise, we are not persuaded by the defendant’s argument that finding her in contempt of the November 18, 2004 order requiring her to pay the plaintiff $295 for unreimbursed medical expenses was an abuse of discretion. The defendant admitted at the contempt hearing that she had been ordered to pay the plaintiff $295 in unreimbursed medical expenses in the November 18,2004 order and that she had not paid the amount. We have reviewed the order itself and conclude that Judge Barall did not abuse his discretion when he found the defendant in wilful contempt, despite her claim that she did not understand that she was supposed to start making payments on the arrearage immediately.

II

The defendant next claims that the court abused its discretion in finding her in contempt because the plaintiff did not specify the dates and amounts due in his motion for contempt as required pursuant to Practice Book § 25-27. Specifically, the defendant asserts that because the dates and amounts due were not identified in the plaintiffs motion, her due process rights were violated, as she was unable to provide the court with specific evidence that would prove that she was not in contempt.

“Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation.” (Internal quotation marks omitted.) Shapiro v. Shapiro, 80 Conn. App. 565, 569, 835 A.2d 1049 (2003). “Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity.” (Internal quotation marks omitted.) In re Donna M., 33 Conn. App. 632, 638, 637 A.2d 795, cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994).

The plaintiffs motion for contempt specifically referenced the defendant’s failure to pay both the child support arrearage and medical expenses that were ordered by Judge Caruso on November 18, 2004, indicating the amounts due. It also claimed that the defendant refused to share equally the child’s unreimbursed medical expenses as required by the judgment of dissolution. We conclude that the motion sufficiently placed the defendant on notice as to what actions and inactions would be the subject of the contempt hearing and, accordingly, satisfied the requirements of due process.

Ill

The defendant next claims that the court abused its discretion in denying her repeated requests for a continuance of the contempt hearing. We are not persuaded.

“A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . The burden of proof is upon the party claiming an abuse of discretion. . . . We are especially hesitant to find an abuse of discretion when the motion is made on the day of trial. . . . Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” (Internal quotation marks omitted.) Kennedy v. Kennedy, 83 Conn. App. 106, 109-10, 847 A.2d 1104, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Internal quotation marks omitted.) Kelly v. Kelly, 85 Conn. App. 794, 799, 859 A.2d 60 (2004).

In the present case, the defendant asked Judge Barall for a continuance several times in the middle of the contempt hearing so that she would have the opportunity to consult with an attorney and come back to the court with cancelled checks, which allegedly would prove that she did not owe the arrearage attributed to her. The transcript of the contempt hearing indicates that the court denied the defendant’s requests for a continuance because the defendant was given adequate notice of the hearing and she asked for the continuance only after the hearing was well underway, when she was informed that the evidence she wanted to present to the court was inadmissible. Given that the defendant had a meaningful opportunity to present testimony and cross-examine the plaintiff with regard to whether she had paid the arrearage owed, we conclude that the court’s denials of her requests for a continuance were not arbitrary and were not an abuse of discretion.

IV

The defendant also challenges the court’s finding her in contempt of the judgment of dissolution, which required her to pay one half of the child’s unreimbursed medical bills and the order that she reimburse the plaintiff $655 for bills that accrued subsequent to the November 18, 2004 order. The defendant alleges that this contempt finding was improper because it was based on the plaintiffs false testimony and fraudulently submitted medical reimbursement claims. We decline to address this argument, as the defendant did not raise it adequately at the contempt hearing. See Histen v. Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006).

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant has remarried and is now known as Dawn O’Connell Llaser.

       In the motion to vacate, the defendant challenged the propriety of the court’s April 15, 2005 order, which was issued in response to the plaintiffs motion for clarification and order postjudgment. We decline to address all claims relating to the denial of the motion to vacate, as the defendant never moved for an articulation of the judgment; accordingly, there is an inadequate record for us to review whether the court’s denial constituted an abuse of discretion. See Jezierny v. Jezierny, 99 Conn. App. 158, 160-61, 912 A.2d 1127 (2007).

       The defendant claims that Judge Caruso modified her child support obligation to $ 134 per week, an amount that was in line with the child support guidelines, given the parties’ financial situations. The record indicates that the court issued such an order on that date, but the defendant has not provided us with a transcript of the hearing.

       We note the arithmetic error, but it was not challenged by the defendant.

       The defendant has argued that Judge Caruso’s child support arrearage order was ambiguous because the language, “ [i]f the defendant has continued to pay the plaintiff $86 per week,” is “conditional and open to more than one possible meaning . . . Given the language of the order, this is not an unreasonable argument. Regardless, the defendant’s principal claim is not that she failed to obey the order because she did not understand it. Instead, she has maintained continuously that she did not pay the ordered child support arrearage and decided to suspend child support payments because she believed that Judge Caruso had calculated her arrearage incorrectly. She argues that had Judge Caruso calculated the amount she had not paid in child support properly, she would have been entitled to a credit when subtracting the plaintiffs arrearage from that amount. Accordingly, without the court’s approval, she decided to withhold sums owed to the plaintiff.
      “[T]he decision to allow or disallow credit lies within the sound discretion of the trial court. . . . The mere fact that [a party] . . . believe[s] that he was entitled to ... a credit does not excuse his nonpayment of support, nor does it constitute an abuse of the court’s discretion to hold him in contempt.” (Citation omitted; internal quotation marks omitted.) Lawrence v. Lawrence, 92 Conn. App. 212, 217, 883 A.2d 1200 (2005). Consequently, despite the defendant’s claims that Judge Caruso’s order was ambiguous and that she believed she was entitled to a credit, the fact remains that she never sought clarification or appealed from that judgment.

       Practice Book § 25-27 (a) provides in relevant part that “[e]ach motion for contempt must state (1) the date and specific language of the order of the judicial authority on which the motion is based; (2) the specific acts alleged to constitute the contempt of that order, including the amount of any arrears claimed due as of the date of the motion or a date specifically identified in the motion . . . .”

       We note that the plaintiffs motion did not indicate specifically the amount due for unreimbursed medical expenses that had accumulated subsequent to Judge Caruso’s orders. The defendant failed to object, however, at the contempt hearing when the plaintiff offered evidence of these expenses. See Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d 1273 (1990) (“[t]he proper way to attack a variance between pleadings and proof is by objection at the trial to the admissibility of that evidence which varies from the pleadings, and failure to do so at the trial constitutes a waiver of any objection to such variance” [internal quotation marks omitted]), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d on other grounds, 222 Conn. 233, 610 A.2d 574 (1992).

       The record reveals that the defendant brought a log with her to court in which she claimed to have recorded the payments she had made to the plaintiff. Judge Barall informed her that the log was inadmissible as evidence. Consequently, she wanted to present cancelled checks to the court. “[A]lthough 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.) Rivnak v. Rivnak, 99 Conn. App. 326, 332 n.4, 913 A.2d 1096 (2007).


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. ROGER P. COTE
    (AC 26152)
    Flynn, C. J., and DiPentima and McDonald, Js.

      Argued January 4
    officially released June 5, 2007

      Jennifer C. Vickery, special public defender, for the appellant (defendant).

      Melissa Streeto Brechlin, assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Bonnie R. Bentley, assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

In this appeal from the judgments of conviction following a jury trial, the defendant, Roger P. Cote, challenges the pretrial procedures surrounding his motion for a speedy trial and the denial of his motion to dismiss. On appeal, the defendant claims that (1) the trial court improperly denied his motion to dismiss on speedy trial grounds and (2) this court should exercise its supervisory powers to prohibit continuances in certain instances. We affirm the judgments of the trial court.

The following facts and procedural history are necessary for our resolution of the defendant’s claims. On December 23, 2002, as a result of an incident involving the defendant and his then girlfriend, the defendant was arrested and charged with assault in the second degree in violation of General Statutes § 53a-60 (a) (2), threatening in the second degree in violation of General Statutes § 53a-62 (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). On July 25, 2003, additional charges stemming from the December, 2002 incident were filed against the defendant. The defendant was unable to post bond and remained incarcerated from the date of his arrest on December 23, 2002, for a period of seventeen months and two weeks pending the commencement of his trial on July 14, 2004.

On March 8, 2004, the defendant filed a pro se motion for a speedy trial pursuant to General Statutes § 54-82m and Practice Book § 43-39 (d). Thereafter, the defendant filed a motion to dismiss pursuant to Practice Book § 43-41 on June 3, 2004. The court delayed ruling on the motion for a speedy trial and on July 14,2004, denied the defendant’s motion to dismiss after determining that the motion for a speedy trial was premature given the amount of time excludable in accordance with Practice Book § 43-40. After denying the defendant’s motion to dismiss, the court then granted the defendant’s motion for a speedy trial and began jury selection that day on all outstanding charges against the defendant.* **

On September 22, 2004, the jury returned a verdict of guilty on the charges of assault in the second degree, threatening in the second degree, unlawful restraint in the first degree and criminal violation of a protective order. The defendant was sentenced to a total effective term of twelve years incarceration, followed by six years special parole. At sentencing, the court also issued a standing criminal restraining order against the defendant as to his former girlfriend. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to dismiss. In support of his claim, the defendant challenges certain pretrial procedures and argues that the court improperly delayed ruling on the motion for a speedy trial until after ruling on the motion to dismiss. We disagree.

We note, initially, that although the defendant has framed his argument as a challenge to the court’s interpretation and application of the speedy trial statute, as was articulated more clearly during oral argument before this court, the defendant essentially challenges the court’s factual findings with respect to excludable time from speedy trial calculations. Our standard of review for this type of challenge is well established. “The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Internal quotation marks omitted.) State v. Jeffreys, 78 Conn. App. 659, 669-70, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003); State v. Rodriguez, 47 Conn. App. 91, 98, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998).

“The speedy trial statute [§ 54-82m] requires the judges of the Superior Court to adopt rules that are necessary to assure a speedy trial for any person charged with a criminal offense . . . .” (Internal quotation marks omitted.) State v. McCahill, 265 Conn. 437, 446-47, 828 A. 2d 1235 (2003). With respect to a defendant who is incarcerated in a correction institution of this state pending trial, § 54-82m requires the rules to provide: “(1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of a criminal offense shall commence . . . within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1).” General Statutes § 54-82m; see also Practice Book § 43-39 (d). “Practice Book § 43-40 then sets forth ten circumstances constituting those periods of time [that] shall be excluded in computing the [eight months] within which the trial of a defendant . . . must commence pursuant to Section 43-39 . . . . ” (Internal quotation marks omitted.) State v. McCahill, supra, 265 Conn. 447.

We will review the defendant’s challenges to the trial court’s exclusion of certain time periods from speedy trial calculations in turn.

A

The defendant first argues that certain time periods from January 7 through April 11, 2003, should not be considered as excludable because the continuances were not requested specifically by the defendant.

On December 24, 2002, the defendant was arraigned on charges involving the December 23, 2002 incident, and was represented by Mark Shapera, a public defender, for the purposes of a bond hearing only. The case was continued until January 7, 2003, when Matthew Davis, an assistant public defender, was present with the defendant. At that appearance, the state informed the court that the public defender’s office was appointed for bond purposes only and that the defendant had secured a private attorney, Brian Mead, who intended to file an appearance to represent the defendant. The state represented that Mead sought a continuance until February 11, 2003, which the court granted. At that point, Davis stated that he would inform Mead of the court’s decision.

On February 11, 2003, the defendant appeared again on the December, 2002 charges, and he was arraigned on another charge for violating his probation. Mead informed the court that he represented the defendant for the arraignment on the probation violation only. At that time, Mead also informed the court that the defendant wanted to consolidate his cases and that a public defender would be representing the defendant from thereon. Mead sought a continuance on behalf of the defendant until February 28, 2003. On February 28, 2003, Davis appeared with the defendant, sought and received appointment as defense counsel and requested a continuance until March 14, 2003. On March 14, 2003, Davis sought appointment to represent the defendant on the two additional matters and sought a further continuance until April 11, 2003.

As stated previously, “Practice Book § 43-40 (7) expressly provides for the exclusion of time resulting from a continuance granted by the judicial authority at the personal request of the defendant. The applicable language provides: ‘The following periods of time shall be excluded in computing the time within which the trial of a defendant charged by information with a criminal offense must commence pursuant to Section 43-39 . . . (7) The period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant.’ Practice Book § 43-40.” State v. Jeffreys, supra, 78 Conn. App. 671. In Jeffreys, we rejected the argument that continuances made on behalf of the defendant by defense counsel did not toll the speedy trial time period. Id., 673-74; see also State v. Stewart, 64 Conn. App. 340, 349-50, 780 A.2d 209 (“[a]bsent some indication to the contrary, a court is entitled to rely on counsel’s representations on behalf of his or her client”), cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001).

In State v. Jeffreys, supra, 78 Conn. App. 659, we stated that where “[t]he delays were occasioned by the defendant’s counsel for the defendant’s advantage” and “[t]he defendant took advantage of the numerous continuances requested on his behalf by counsel,” the “defendant cannot stand by mute while his counsel continues the proceedings on his behalf and then, when the speedy trial clock runs out, claim that counsel did not have the authority to request those continuances. Although mere silence is not enough from which to infer a waiver of a constitutional right, such a waiver may be found in the defendant’s course of conduct.” Id., 673; see also State v. Holloway, 147 Conn. 22, 25-26, 156 A.2d 466 (1959) (“[w]aiver may be implied where the defendant, in court, interposes no objection to a continuance”), cert. denied, 362 U.S. 955, 80 S. Ct. 869, 4 L. Ed. 2d 872 (1960).

In the present case, the record shows that the continuances now being challenged on appeal were requested on behalf of the defendant. The record does not indicate that the defendant was not present, nor does the defendant argue that he was absent when the requests were made. We conclude, therefore, that the time period being challenged was appropriately determined by the court to be excludable from speedy trial calculations.

B

The defendant next challenges the exclusion of certain time periods from September 5 through October 17, 2003. Specifically, the defendant argues that the time period during which the defense awaited discovery material from the state should not be excludable. This challenge is without merit.

On May 2, 2003, the court ordered that the defendant be examined and evaluated for drug and alcohol dependency. By June 27, 2003, a course of treatment was recommended, which included long-term inpatient drug and alcohol rehabilitation. On July 25, 2003, the defendant was arrested on a warrant on three additional charges involving the December 23, 2002 incident. On September 5, 2003, the defendant filed a motion to suspend prosecution in order to obtain the recommended treatment and to gather discovery materials relating to all charges, including the more recent charges from his July 25, 2003 arrest. On October 17, 2003, the court denied the defendant’s motion to suspend prosecution.

Practice Book § 43-40 (1) (D) expressly provides for the exclusion of time “between the commencement of the hearing on any pretrial motion and the issuance of a ruling on such motion . . . .” Here, the defendant filed a pretrial motion to suspend prosecution on September 5, 2003, which was not resolved by the court until October 17, 2003. This was a pretrial motion on which the court required time to reflect prior to deciding the time at issue and, as such, was properly excludable under Practice Book § 43-40 (1) (D). Accordingly, we conclude that the court properly determined the challenged time periods to be excludable time from speedy trial calculations.

C

Because we conclude that the court properly excluded certain time periods from speedy trial calculations, we reject the defendant’s claim that the court improperly delayed ruling on the motion for a speedy trial until after ruling on the motion to dismiss. Under the speedy trial statute and accompanying rules of practice, a defendant can file a motion for a speedy trial only after expiration of the speedy trial time frame. Practice Book § 43-41. In the present case, that would be “within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later . . . .” General Statutes § 54-82m; see also Practice Book § 43-39 (d). Furthermore, a defendant is entitled to a dismissal of all charges with prejudice only after the passage of the statutory speedy trial time period plus the thirty days required by § 54-82m and after his filing a motion to dismiss on speedy trial grounds. In the present case, those required time periods were not met.

On March 8, 2004, the defendant filed his pro se motion for a speedy trial. On March 30, 2004, the state indicated that special public defender Mark Hauslaib was appointed to the defendant’s case but was out of the country. The court continued the case to April 20, 2004. On April 20, 2004, the defendant and his counsel appeared and sought a two week continuance. The court asked the defendant if such a continuance was in accord with his speedy trial motion, to which the defendant assented that it was. On May 7,2004, defense counsel requested a further continuance to June 11, 2004. On June 3, 2004, the defendant filed a pro se motion to dismiss all pending matters. On June 21,2004, defense counsel sought a continuance to July 16, 2004, in order to discuss a state’s plea offer with the defendant. On July 14, 2004, after determining that there were nine periods of excludable time from speedy trial calculations, the court denied the defendant’s motion to dismiss as premature and granted his motion for a speedy trial.

First, we note that the defendant’s March 8, 2004 motion for a speedy trial would have been denied as premature due to the excludable time periods that the court determined tolled the speedy trial statute. See General Statutes § 54-82m. The defendant’s subsequent motion to dismiss on speedy trial grounds would necessarily have been denied as premature as well. In State v. DeClaybrook, 60 Conn. App. 480, 759 A.2d 1046, cert. denied, 255 Conn. 920, 763 A.2d 1042 (2000), this court concluded that where a motion for a speedy trial had been denied as premature, any subsequent filing of a motion to dismiss on the speedy trial motion would have been premature and necessarily would have been denied as well. Id., 486. Similarly, here, the defendant’s motion to dismiss on speedy trial grounds would have been denied as premature irrespective of the order in which the court made its ruling.

Second, the court properly delayed ruling on the defendant’s motion for a speedy trial to account for the absence in representation and continuances that were requested on behalf of the defendant, which are excludable time periods from speedy trial calculations. See Practice Book §§ 43-39 and 43-40. On the basis of facts and circumstances of the present case, the court’s delay in ruling on the motion for a speedy trial was not improper. The motion for a speedy trial was premature, and, thus, the motion to dismiss was premature as well. Accordingly, we conclude that the court properly denied the defendant’s motion to dismiss.

II

The defendant’s final claim on appeal is that the court improperly granted various continuances at the request of attorneys appearing on his behalf for limited purposes only. The defendant concedes that this unpre-served claim is not a constitutional claim but requests that this court exercise its supervisory power to direct trial courts to adopt a procedure that would preclude continuances when requested by attorneys who have filed limited appearances on behalf of the defendant. “Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Emphasis in original; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998). Because the issue as presented under the factual circumstances of this case does not rise to the extraordinary level described previously, we do not consider this an appropriate case in which to exercise our supervisory powers. Accordingly, we decline the defendant’s request to invoke our supervisory powers.

The judgments are affirmed.

In this opinion the other judges concurred.

       Practice Book § 43-41 provides: “If the defendant is not brought to trial within the applicable time limit set forth in Sections 43-39 and 43-40, and, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period. For the purpose of this section, good cause consists of any one of the reasons for delay set forth in Section 43-40. When good cause for delay exists, the trial shall commence as soon as is reasonably possible. Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.”

       Implicit in the court’s ruling are the findings that as to the December 23, 2002 charges, there were nine periods of excludable time resulting in a period less than the required eight months for calculation of a motion for a speedy trial. As for the July 25, 2003 charge, at the time the motion for a speedy trial was filed, only seven months and fifteen days had passed without calculating periods of excludable time. On appeal, the defendant challenges only the periods of January 7 through April 11, 2003, September 5 through October 17, 2003, and February 17 through April 20, 2004.

       Practice Book § 43-40 provides in relevant part: “The following periods of time shall be excluded in computing the time within which the trial of a defendant charged by information with a criminal offense must commence pursuant to Section 43-39:
      “(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to:
      “(A) delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant. . .
      “(D) the time between the commencement of the hearing on any pretrial motion and the issuance of a ruling on such motion;
      “(E) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the judicial authority . . .
      “(2) Any period of delay resulting from the absence . . . of . . . counsel for the defendant ....
      “(3) Any period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial.
      * * *
      “(7) The period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant.
      “(8) The period of delay resulting from a continuance granted by the judicial authority at the request of the prosecuting authority, if . . .
      “(B) the continuance is granted to allow the prosecuting authority additional time to prepare the state’s case and additional time is justified because of the exceptional circumstances of the case. . . .”

       Voir dire commenced on July 14, 2004, but that jury subsequently was dismissed and a new jury was selected.

       The defendant also was charged in a part B information with being a persistent serious felony offender, which resulted from a prior conviction. He pleaded nolo contendere to the persistent serious felony offender charge.

       The state contends that this claim is not reviewable because the defendant filed his motion to dismiss pro se while he was represented by counsel. This argument warrants little discussion.

        “Although a represented defendant does retain the absolute right to make a limited number of choices regarding his case . . . neither the United States Supreme Court, nor this court, has ever expanded that extremely narrow class to include the choice of whether to file a motion to dismiss for lack of a speedy trial. Indeed, such a choice clearly is one of the vast panoply of trial decisions for which one retains an experienced and competent attorney.” (Citation omitted.) State v. Gibbs, 254 Conn. 578, 610-11, 758 A.2d 327 (2000). That stated proposition, however, does not affect reviewability based on the facts and circumstances of the present case. In Gibbs, the Supreme Court held that the defendant had no authority to make a pro se oral motion to dismiss on speedy trial grounds while he was represented by counsel.
      In the present case, however, the defendant first filed his motion for a speedy trial pro se while he was unrepresented by counsel and filed a subsequent pro se motion to dismiss while he was represented by counsel. See id. As we noted in State v. Gaston, 86 Conn. App. 218, 222 n.3, 860 A.2d 1253 (2004), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005), a defendant preserves his claim simply by his motion for a speedy trial; therefore it is inconsequential that he filed his subsequent pro se motion to dismiss while represented by counsel as long as his motion for a speedy trial was filed properly.

       Practice Book § 43-39 (d) provides: “The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
      “(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
      “(2) the defendant is not subject to the provisions of General Statutes § 54-82c.”

       During oral argument, the defendant conceded that the initial period of December 23,2002, through January 7,2003, was excluded properly pursuant to Practice Boole § 43-40 (7).

       Prior to that appearance, Davis informed the court that Mead still held an appearance on the defendant’s December 23, 2002 charge and that the matter had been resolved, allowing Davis to file an appearance on behalf of the defendant.

       With respect to the defendant’s assertion that the court failed to follow Practice Book § 43-41, we note that Practice Book § 1-8 specifically dictates that the rules of practice are to be interpreted liberally to achieve their intended effect of facilitating the business of the courts and advancing justice. Practice Book § 1-8 provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Therefore, it was within the court’s discretion to facilitate the administration of justice and to revive the defendant’s motion for a speedy trial after denying his motion to dismiss.


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. AHMAAD LANE
    (AC 27257)
    Bishop, Harper and Dupont, Js.

      Argued March 13
    officially released June 5, 2007

      Robert E. Byron, special public defender, for the appellant (defendant).

      Christopher T. Godialis, senior assistant state’s attorney, with whom, on the brief, were John A. Con-nelly, state’s attorney, and Terence D. Mariani, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Ahmaad Lane, appeals from the judgment of conviction, rendered after a jury verdict, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant claims that the trial court improperly (1) allowed the jury to be selected in a racially discriminatory manner in violation of his rights to equal protection of the law and a fair trial and (2) denied his motion to suppress evidence of an out-of-court photographic identification. We affirm the judgment of the trial court.

I

The defendant first claims that the manner in which the jury was chosen violated his rights to equal protection and a fair trial. Specifically, he argues that the state impermissibly exercised two of its peremptory challenges in a racially discriminatory manner, that the court impermissibly prevented him from bringing a claim pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and that the court excused a juror on the basis of race after the jury had been selected.

In this case, voir dire lasted four days. The jury panel selected was comprised of six jurors and two alternates. The race of the first juror chosen, T, is identified in the record as black. Both the state and the defendant found her acceptable, and the record reveals little comment at the time she was chosen. The state’s first peremptory challenge was used against K. K was raised in the Virgin Islands and had been living in the United States since the late 1980s. His race is not explicitly identified in the record, although he is identified as being a racial minority. The record reflects that K was the only potential juror interviewed for this trial who previously had been arrested by the Waterbury police department, members of which the state planned to have testify. Although K indicated that, overall, his interaction with Connecticut’s criminal justice system “wasn’t a bad experience,” he did state that he did not believe he was treated fairly by the police at the time. He further stated that the police had “roughed me up a little.” After K left the witness stand, the state indicated that it wanted to exercise a peremptory challenge. See Practice Book § 16-5. The court then questioned: “All right, anything else?” The following colloquy ensued between the court and the parties:

“The Court: Just to—I mean, we all know that when a minority juror is excused, that the court should be mindful of the fairness of that. And there is some pressure on a defense attorney to make a Batson challenge. You don’t have to. If you did in this case, just for the record, and this is what we’re all thinking about without saying it—

“[Defense Counsel]: Right.

“The Court: You know, you’re probably thinking, should I make a Batson challenge. If you had, I think, and I don’t want to speak for [the prosecutor], but I think there are solid reasons why—solid race neutral reasons why [the prosecutor] might exercise a challenge here, and most of them concerning this nice gentleman’s unfortunate experience with the Waterbury police, who are going to be witnesses in this case. So, that would—am I misstating your position?

“[The Prosecutor]: No, Judge. I mean, that’s my primary concern, obviously.

“The Court: And it’s never wrong to talk about these issues. And [the prosecutor], without hesitation, when the first minority juror was questioned, he asked the same questions that he asked this gentleman, and accepted [T].

“[Defense Counsel]: Yes.

“The Court: He accepted her without hesitation, and he was the first questioner. So, he didn’t have to wait to find out if you would accept her. So, I don’t see any problem here, and I’m sure that everybody was wondering how this would be handled, and that’s the way it would have been handled. There’s a clearer record of that so everybody feels better now.

“[Defense Counsel]: Thank you.”

On the third day of jury selection the state exercised its third peremptory challenge against D. D’s race is not reflected in the record. D was raised in Jamaica, one of twelve children. D indicated that she had previously been the victim of a robbery while living in New York. She said that she had no problems with the performance of the police at the time. She indicated that she had had no prior dealings with the Waterbury police department. She also stated that she had been in a court previously when she filed for bankruptcy. Defense counsel did not object to the state’s exercise of its peremptory challenge against D.

Eventually, the parties selected six jurors and two alternates. Immediately preceding commencement of the trial, it was brought to the court’s attention that T had not yet arrived. The record reveals the following:

“The Court: So, now, the issue of the missing juror. ... I can’t wait for this juror. It’s a minority juror, but that doesn’t make any difference. People can’t follow simple orders of the court and show up on time. And I can’t delay the case waiting for this juror to come to court. So, she’s excused. You want to be heard?”

Defense counsel then requested that the court wait a few minutes to see whether T would arrive. She represented that T was on her way. The court then checked with the clerk:

“The Court: I don’t know if she ever—did she ever indicate she was on her way?

“The Clerk: She said she could be on her way. She said she was over an hour away.”

The court further asked the clerk whether T had been informed within a day or two of the day of trial. The clerk replied that she had. The court noted the defendant’s objection and chose one of the alternates to replace T.

On the basis of this record and the precepts of Batson v. Kentucky, supra, 476 U.S. 79, we must determine whether the jury was selected in a racially discriminatoiy manner. “In Batson . . . the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . [T]he Equal Protection Clause [of the fourteenth amendment] forbids the prosecutor to challenge potential jurors solely on account of their race.” (Internal quotation marks omitted.) State v. Monroe, 98 Conn. App. 588, 590-91, 910 A.2d 229 (2006), cert. denied, 281 Conn. 909, 916 A.2d 53 (2007). “Discrimination in the selection of a jury . . . harms the litigants, the excluded jurors, and the community. . . . Litigants are harmed because the discriminatory selection process may affect the fairness of the proceedings. . . . The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights it is selected or summoned to determine. . . . Individual jurors are harmed because all persons, when granted the opportunity to participate in the judicial process, have the right not to be excluded based on stereotypical presumptions about their abilities and attitudes. ... A person’s competence to serve as a juror is determined by an assessment of individual qualifications, not by stereotypical assumptions about those abilities. . . . Finally, [t]he community is harmed by the State’s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.” (Citations omitted; internal quotation marks omitted.) Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 224, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994). “Furthermore, because the only direct contact most Connecticut citizens have with our justice system is as venirepersons, the process by which jurors are selected plays a major role in the public perception of this branch of government.” State v. Hodge, 248 Conn. 207, 271, 726 A.2d 531 (Berdon, J., dissenting), cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999).

“Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination.” (Internal quotation marks omitted.) State v. Monroe, supra, 98 Conn. App. 591. “The trial court’s determination on the question of discriminatory intent represents a finding of fact .... Accordingly, a . . . court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous.” (Internal quotation marks omitted.) Id., 592.

Generally, “ [t]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion. ... A trial court may dismiss a juror who is unable to perform his or her duties upon a finding of cause.” (Citation omitted; internal quotation marks omitted.) State v. Diaz, 94 Conn. App. 582, 588, 893 A.2d 495, cert. denied, 280 Conn. 901, 907 A.2d 91 (2006). The requirements of due process, however, prohibit a court from excusing jurors for racially discriminatory reasons. Ex Parte Virginia, 100 U.S. 339, 347-49, 25 L. Ed. 676, (1880); see also Powers v. Ohio, 499 U.S. 400, 402, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).

The defendant first argues that the state’s challenge of K was impermissible. The defendant’s trial counsel did not raise a Batson claim when K was excused. The record reveals that the court itself, in the absence of objection by the defendant, or, perhaps, in the absence of time for an objection, raised the Batson issue after the state exercised a peremptory challenge. On the basis of the seriousness of the claim and the court’s clear recognition of the possibility of a Batson claim, the issue is sufficiently preserved for our review.

When the court raised the Batson issue, it stated: “I think there are . . . solid race neutral reasons why [the prosecutor] might exercise a challenge here, and most of them concerning [K’s] unfortunate experience with the Waterbury police, who are going to be witnesses in this case.” The prosecutor acknowledged that this was the state’s primary concern with K but did not otherwise comment on the reasoning the court imputed to the state. Defense counsel did not then raise any argument that this concern was merely pretextual or attempt to argue that the state struck K from the panel for some improper reason. Not asked to consider any countervailing argument by the defendant, the court determined that the state did exercise its peremptory challenge in a permissible manner. In light of the fact that the defendant asserted no argument before the court that the state’s reasons for excusing the juror were pretextual after the court raised the issue, and that the defendant has failed, on appeal, to show that any other prospective juror had had a similar interaction with the Waterbury police department but was accepted nevertheless as a juror, we conclude that it was not clearly erroneous for the court to determine that the prosecutor did not act with an impermissible motive.

The defendant next argues that the state’s peremptory challenge against D was impermissible. The defendant did not raise a Batson claim at the time the state excused D. Therefore, the state was not called on to provide a justification for its use of the peremptory challenge. The record does not reflect D’s race. We conclude that we cannot review any Batson claim as to D that the defendant may have had regarding the state’s use of its peremptory challenge against D because of a lack of a sufficient record. See State v. Owens, 63 Conn. App. 245, 263, 775 A.2d 325, cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001).

Finally, the defendant argues that he was denied a fair trial because the court allegedly prevented him from raising a Batson objection when K and D were excused and dismissed T because she failed to arrive at court. Regarding the peremptory challenges, the defendant relies principally on the court’s statements of the prosecutor’s probable reasons for exercising a peremptory challenge as to K before the prosecutor provided them, and the court’s statement, with reference to a potential Batson issue, that “I don’t see any problem here . . . .” It is true that the court’s review of the potential Batson issue did not strictly conform to the procedure outlined by our Supreme Court and that the trial court may have determined the outcome of the issue before the defendant had an opportunity to raise it. Though the court did state, “I don’t see any problem here,” it also clearly stated that “it’s never wrong to talk about these [Batson] issues,” and defense counsel provided the court with no reason to conclude that there was a problem with the state’s action. As to the excusal of K, therefore, the defendant has not proven that the court attempted to dissuade defense counsel from raising Batson objections.

Regarding the dismissal of T, the record shows that T was not at court when she was required to be there. The court conferred with the clerk and learned that T was more than one hour away, was not on her way to the court at the time and had been previously notified of the court date. Although the court did acknowledge the race of T at the time it dismissed her, the defendant has not provided any evidence that this was a factor in the court’s decision to proceed to trial with an alternate juror. The court, to the contrary, clearly stated that race was not a factor and subsequently invited the defendant to object to the decision, which the defendant did. The defendant does not appear to have raised any argument that the court’s dismissal of T was racially discriminatory. On appeal, the defendant makes no argument that any other juror was late to court but treated differently. We conclude that the defendant has not shown that the court violated his right to equal protection of the law or a fair trial.

II

The defendant next claims that the court improperly denied his motion to exclude evidence of a prior out-of-court identification of him made from a photographic array. The defendant argues that the court’s determination constituted both a violation of his due process rights and an abuse of the court’s discretion pursuant to our rules of evidence.

The following facts are relevant to the defendant’s argument. The defendant filed a motion to suppress evidence of the prior photographic identification. The court heard argument on the motion on September 13, 2005. At the hearing, the defendant conceded that the identification procedure was not suggestive. The victim was handed a collection of photographs in a book, which resembled a photograph album. Defense counsel focused her argument on the ability of the victim to make a reliable identification due to his injury and his treatment in the intensive care unit. The defendant presented no evidence during the hearing, however, that the victim was not sufficiently mentally competent to make a reliable identification.

The state presented three witnesses in connection with the defendant’s motion. The first witness was the victim. The state asked the victim about his mental condition at the time of the identification. The victim stated that he was able to communicate with the police. The prosecution further asked whether the victim had any difficulty understanding the police or explaining his answers to them. The victim indicated that he had no communication difficulties. During cross-examination, defense counsel asked whether the victim was on medication when he made the identification. The victim indicated that he was given morphine intravenously to ease the pain he suffered after a bullet was removed from his back. He also testified, however, that he “felt like [he] was functioning normally” and again asserted that he had no trouble understanding the police.

The state then called the two investigating officers who witnessed the identification. Both testified that although they could not recall whether the victim was being administered morphine at the time, the victim was lucid, well aware of his surroundings and appeared to be thinking normally. Finding the identification sufficiently reliable to be admitted, the court denied the motion to suppress.

Out-of-court identifications of a defendant, whether by photographic arrays, lineups or otherwise, are admissible in some instances. State v. McClendon, 199 Conn. 5, 9-10, 505 A.2d 685 (1986). The requirements of due process, however, limit the admissibility of such evidence in certain circumstances. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). For example, the state is prohibited from suggesting to a witness during a photographic identification which photograph is of the individual that the state suspects is the perpetrator of the crime. See id., 112. When such a suggestion is made, evidence of the subsequent identification is not admissible unless the state can show that the identification is otherwise reliable. State v. Elliston, 86 Conn. App. 479, 483-84, 861 A.2d 563 (2004), cert. denied, 273 Conn. 906, 868 A.2d 746 (2005).

The defendant here concedes that the procedures employed during the out-of-court identification were not suggestive. Instead, the defendant argues that the victim’s medicated state at the time of the identification rendered his identification so unreliable that its admission constituted a violation of due process. The defendant cites no case law supporting this proposition.

We need not determine whether the demands of due process would, in other circumstances, prohibit identification evidence from being admitted based solely on the victim’s lack of competency at the time of the identification. The court, on the basis of the evidence before it, properly concluded that the victim’s medication did not prevent the victim from providing a reliable identification. The court heard testimony from the victim and two witnesses to the identification that the victim was able to make an identification, even though he was in the hospital’s intensive care unit at the time. The defendant did not produce testimony of attending medical staff or any other evidence contradicting this testimony. We conclude that the defendant has not demonstrated that the admission of this prior identification infringed on his constitutional right to a fair trial.

This does not end the inquiry, however, because an out-of-court identification of the defendant is hearsay, and, as a matter of the law of evidence, to be admissible, it must satisfy an exception to the rule against hearsay. State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992). The applicable exception is recognized in Connecticut Code of Evidence § 8-5, which provides in relevant part: “The following are not excluded by the hearsay rule, provided the declarant is available for cross-examination at trial ... (2) The identification of a person made by a declarant prior to trial where the identification is reliable.” The determination of reliability is a question for the trial court and our review is limited to a determination of whether the court’s determination constitutes an abuse of discretion or whether an injustice has occurred. State v. Salmon, 66 Conn. App. 131, 135, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002). This is so because whether evidence of a pretrial identification is admissible depends on a fact bound determination. Id.

As stated previously, the court heard testimony from the victim that he was able to comprehend and communicate with the police at the time of the identification. Both of the officers who witnessed the victim make the identification testified that he appeared able to make a reliable identification at the time. We conclude that it was not an abuse of the court’s discretion to conclude from these facts that the identification was sufficiently rehable to be admitted into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record does not reflect the race of most of the members of the jury, or of the venire, but the state does not contest the defendant’s assertion that the jury, which ultimately decided the defendant’s guilt, was made up entirely of white jurors.

       We refer to the jurors by initial to protect their legitimate privacy interests. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).

       The defendant characterizes the court’s next statement as following “immediately” after the court asked whether there was anything else. The record does not reflect the time duration between the two statements.

       The state had exercised a second challenge on the second day of jury selection. That challenge is not at issue in this appeal.

       Specifically, the record reflects the following exchange:
      “[Defense Counsel]: May I have a moment, Judge?
      “The Court: You may.
      “[Defense Counsel]: Accepted.
      “[The Prosecutor]: I would exercise a challenge, Judge.
      “The Court: All right. You’ve been excused from service on this case. Thank you for coming down and answering the questions. You are all set. You are excused for the day.”

       The record does reflect that D was raised in the Caribbean. The defendant, however, raised no argument at trial and makes no argument here that the state impermissibly used its peremptory challenge against D on the basis of her place of birth. See State v. Rigual, 256 Conn. 1, 10, 771 A.2d 939 (2001) (^discrimination on the basis of ancestry or national origin clearly is in violation of the equal protection clause of the federal constitution”).

       Because we conclude that the record does not support the defendant’s contention that the court discouraged defense counsel from raising a Batson objection, we need not determine at what point a court’s reluctance to hear a Batson objection would have violated the defendant’s right to a fair trial. See Smulls v. Roper, 467 F.3d 1108, 1115 (8th Cir. 2006) (ordering further proceedings by habeas court because there was evidence trial court antagonistic toward Batson objection).

       Additionally, the defendant claims that the court used an improper standard when determining that the evidence should be admitted. The defendant highlights the court’s statement that “the whole idea of suppression, keeping evidence from coming in, is to make a point with the police if they do something wrong,” as proof that it was using an improper legal standard. The defendant did not, however, object to the court’s statement at trial. Further, the court did conduct the analysis that the defendant, on appeal, asserts it should have conducted; instead, it considered whether the testimony was reliable enough to be admitted, stating that “from the testimony I’ve heard, I don’t think that even the fact that the victim was taking pain medicine interfered with the procedure.” We conclude that the defendant has waived this argument. State v. Patterson, 230 Conn. 385, 392-93, 645 A.2d 535 (1994).

       The defendant also asks this court, in reviewing his claim that the identification made by the victim was impermissibly unreliable, to consider that the victim was unable to identify the defendant in court during the trial. The defendant does not argue that positive identification in court is a prerequisite to the admissibility of out-of-court identifications. He also has not presented any precedent indicating that the inability of a witness to identify the defendant in court, several years after the incident, after the witness’ memory is likely to have faded and the defendant’s physical appearance may have altered considerably, is compelling evidence to prove that the witness’ identification madeonlyafewshort days after the incident was unreliable.