author: PETERS, J.

text:
    PAUL MELANSON v. TOWN OF WEST HARTFORD ET AL.
    (AC 20399)
    Lavery, C. X, and Dranginis and Peters, Js.

      Argued November 28, 2000
    officially released February 13, 2001

      Walter R. Hampton, Jr., with whom was Laura A. Klein, for the appellant (plaintiff).

      Kevin J. O’Connor, corporation counsel, with whom was Patrick G. Adair, assistant coiporation counsel, for the appellee (named defendant).

      Scott M. Karsten, with whom, on the brief, was Nicole D. Dorman, for the appellees (defendant James Stril-lacci et al.).
   Opinion

PETERS, J.

A central feature of our statutory law of workers’ compensation; General Statutes § 31-275 et seq.; is the principle of the exclusivity of workers’ compensation benefits. Pursuant to General Statutes (Rev. to 1995) § 31-284, an employee who is covered by workers’ compensation is barred from bringing a personal injury action against his or her employer. Further, pursuant to General Statutes § 31-293a, a covered employee may not bring such an action against a fellow employee unless that employee’s wrongful conduct was “wilful or malicious.” The dispositive issue in this case is whether those statutes preclude recovery in a personal injury action brought by a police officer who, in the course of duty, was shot and injured because of the accidental discharge of a weapon fired by a fellow police officer. We agree with the trial court that the complaint in this case has not alleged facts that, if proven, would be sufficient to establish that the accidental shooting resulted from the intentional misconduct of either the town that employed the plaintiff or the police officers who directed the plaintiffs work. We therefore affirm the decision of the court granting the defendants’ motions to strike the relevant counts of the complaint and the consequent rendering of judgment in the defendants’ favor.

The plaintiff, Paul Melanson, a West Hartford police officer, filed an amended five count complaint to recover damages for the serious injuries that he sustained when he was shot by fellow officer Anthony Miele. As amended, the complaint does not allege that Miele intentionally discharged his weapon and does not name Miele as a defendant.

The complaint arises out of the following factual circumstances. On October 25,1995, the plaintiff and Miele were members of a tactical response team that was executing a search warrant at Cidra Auto Sales in West Hartford. In the course of entering the premises and securing its occupants, Miele accidentally discharged his weapon and fired a bullet that struck the plaintiff, injuring him severely.

The first count of the complaint charges the defendant town of West Hartford (town) with having responsibility for the accidental shooting because of the town’s intentional misconduct or its intentional creation of a dangerous condition that caused injury to the plaintiff. Principally, the plaintiff claims that the tactical response team was so poorly managed, informed, trained, equipped and staffed that the town can be charged with having intentionally created a situation that it knew, with substantial certainty, would cause the injuries sustained by the plaintiff to occur. Further, he claims that, because each of the defendant police officers should be characterized as alter egos of the town, the town itself can be charged with intentional misconduct by attribution.

The four remaining counts charge each of the named police officials with similar misconduct. The plaintiff claims that, knowing the inadequacy of the support available to the tactical response team, each of the defendants engaged in intentional misconduct by directing the search warrant execution to go forward.

The court granted the defendants’ motions to strike on the ground that the factual allegations in the complaint, if proven, were insufficient to show that any of the defendants had acted intentionally rather than negligently. The plaintiff has appealed.

Our standard of review is undisputed. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary. ... In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible .... We must, therefore, take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522-23, 753 A.2d 927 (2000). We conclude that the court properly granted the defendants’ motions to strike.

I

LIABILITY OF THE TOWN

By statutory design, our law makes it difficult for an employee to avoid the exclusivity of workers’ compensation benefits. See Driscoll v. General Nutrition Corp., 252 Conn. 215, 220-21, 752 A.2d 1069 (2000).

The plaintiff in this case seeks to escape from the preclusory impact of §§ 31-284 (a) and 31-293a on the ground that the town engaged in intentional misconduct that led to his injury. He does not dispute the proposition that, to support this argument, he must allege facts that, if proven, would establish that the town, directly or indirectly, engaged in misconduct that was “wilful or malicious.”

Under the test articulated in Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997), the plaintiff must allege facts to establish “either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur (substantial certainty standard).” Under either theory of employer liability, however, the “characteristic element [of wilful misconduct] is the design to injure either actually entertained or to be implied from the conduct and circumstances. . . . Not only the action producing the injury but the resulting injury also must be intentional.” (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). Because direct proof of an employer’s actually intended misconduct will rarely be available, the employer’s intention may be established by proof of the intentional misconduct of an employee who properly can be identified as the alter ego of the defendant employer. Suarez v. Dickmont Plastics Corp., supra, 275.

In this appeal, the plaintiff claims that the complaint alleges a sufficient factual basis for his recovery under the substantial certainty standard and, therefore, the court improperly granted the town’s motion to strike. We disagree.

A

The plaintiffs principal argument for town liability invokes the substantial certainty standard for conduct of the town itself. He argues that a trier of fact reasonably could infer intentional misconduct on the part of the town because the tactical response team to which the plaintiff belonged was inadequately staffed, trained, managed and supervised, despite warnings to the town that the team might be at risk. According to the plaintiff, by failing to take affirmative remedial action, the town could be found to have “intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur . . . .” Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 258.

The plaintiffs argument is unavailing for two reasons. First, as the trial court aptly observed, the alleged town failings on which the plaintiff rests his case are allegations of misconduct that address negligence rather than intentional misconduct. Failure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that causes personal injury. Second, even if the allegations somehow could be stretched to encompass a claim for intentional misconduct generally, the complaint provides no factual basis for a finding that the town was substantially certain that the specific injury that the plaintiff suffered would occur. In Suarez, one of the employer’s supervisors intentionally directed a particular employee, on several occasions, to use his bare hands to clean an industrial machine while it was still operating. Id., 260. Nonetheless, the court held that, even though the employer might be found to have created a substantial risk of injury to the employee, the employee could not prevail in the absence of a further showing that “the employer believed the injury was substantially certain to follow the employer’s acts or conduct . . . (Emphasis in original) Id., 280. The factual allegations in the plaintiffs complaint in this case cannot pass the Suarez test.

B

Alternatively, the plaintiff maintains that the complaint contains sufficient factual allegations that, if proven, would permit a finding that the town bore responsibility for the conduct of the individual defendants, who should each be considered to have acted as an alter ego of the town. He claims that the town’s actions were therefore sufficient to show that it knew that the plaintiffs injuries were substantially certain to occur. We disagree.

First, the plaintiffs argument assumes that he has sufficiently alleged facts to enable him to pursue a remedy against the individual defendants. Later in this opinion, we conclude that the plaintiffs assumption is mistaken.

Second, even if we had concluded otherwise, the plaintiff cannot prevail under the test of alter ego liability articulated in Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979). In that case, our Supreme Court held that, under the law of workers’ compensation, an employer generally is not liable in common-law tort for the intentional misconduct of a supervisory employee. Id. The alter ego theory of corporate responsibility permits access to tort remedies only if the person committing the intentional tort “can be characterized as the alter ego of the corporation. If the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity, then attribution of corporate responsibility for the actor’s conduct is appropriate. It is inappropriate where the actor is merely a foreman or supervisor.” Id. The Jett test was reaffirmed in Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 273-75. In the present case, the plaintiffs factual allegations merely describe the position of each defendant within the town police department. Such allegations do not suffice to demonstrate that any of the defendants had a determinative role within the corporate structure of the town.

For all of the reasons discussed, the court properly granted the town’s motion to strike, and we therefore affirm the judgment in favor of the defendant town.

II

LIABILITY OF THE INDIVIDUAL DEFENDANTS

In counts two, three, four and five of his complaint, the plaintiff alleges that each of the individual defendants engaged in “wilful or malicious” misconduct that inevitably led to the plaintiffs injuries. If the plaintiffs factual allegations are sufficient, if proven at trial, to support such a theory of tort liability, the plaintiffs claims are not precluded by § 31-293a.

The plaintiffs factual allegations in these counts of the complaint do not warrant extensive discussion. The relevant allegations are identical to those contained in the first count directed against the town. Like the allegations that we found insufficient when addressed to the town, the plaintiffs complaint again describes actions that each of the defendants allegedly failed to take rather than affirmative actions that each defendant did take. The bare assertions that a defendant “knew” or “should have known, to a substantial certainty” that his own conduct was “dangerous” and “would cause the injuries sustained by the plaintiff’ do not demonstrate that any defendant was wilful or malicious in his actions.

For a contrary view, the plaintiff relies on Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988), in which our Supreme Court described what is meant by the phrase “wilful or malicious” in § 31-293a. Quoting other cases, that court stated: “A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional. ... A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent. . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.” (Citation omitted; internal quotation marks omitted.) Id., 501.

The plaintiff seems to argue that the Borkowski standard is met by a bare allegation that a defendant engaged in conduct that was actually or impliedly designed to cause injury. We disagree.

A trier of fact cannot appraise the intentionality of a defendant’s conduct without factual allegations that describe the nature of the conduct of which the plaintiff complains. See Mingachos v. CBS, Inc., 196 Conn. 91, 101-102, 491 A.2d 368 (1985). Insofar as the plaintiffs complaint contains factual allegations, as we have noted in this opinion, those allegations would not, if proven, demonstrate the requisite intent or design to injure the plaintiff. Similarly, the factual allegations in the complaint do not suffice to establish that any of the individual defendants intentionally created or crafted a plan that made injury to the plaintiff inevitable.

For all of the reasons discussed, the court properly granted the individual defendants’ motion to strike, and we therefore affirm the judgment in favor of the individual defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 31-284 (a) provides in relevant part: "An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees as provided under this chapter . . . .”

       General Statutes § 31-293a provides in relevant part: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. . . .”

       Although the statute also refers to the misconduct of a fellow employee operating a motor vehicle, no claim has been made under that clause in this case.

       Although the defendants have not yet filed answers in response to the plaintiffs complaint, in their briefs they have not taken issue with these underlying facts.

       The police officials named as defendants are (1) James Strillacci, the chief of the town police department; (2) Stephen Lovett, the assistant chief of the same department; (3) Carl Rosensweig, a detective in the same department who was the acting commander of a special operations force; and (4) Brian Royce, a police sergeant in the same department who was the team leader of the same special operations force.

       For example, paragraphs seventeen and eighteen of the complaint contain allegations that the town “knew or should have known” that its alleged misconduct would cause injury to the plaintiff. The misconduct of which the plaintiff complains consists of a listing of the town’s alleged failures to take a variety of precautionary measures. See paragraph sixteen. A wrongful failure to act to prevent irqury is not the equivalent of an intention to cause injury.

       We agree with the court that the risk associated with the town’s allegedly wrongful inaction is not the equivalent, of “ordering [a] soldier to walk through a mine field all by himself just to see if it was working.”

       The plaintiff has argued alter ego liability only with regard to the substantial certainty standard.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    JANET MASTROLILLO ET AL. v. CITY OF DANBURY ET AL.
    (AC 19879)
    Foti, Dranginis and Dupont, Js.
    Submitted on briefs November 27, 2000
    officially released February 13, 2001

      John A. Brennan filed a brief for the appellant (named plaintiff).

      Michael C. Deakin filed a brief for the appellee (named defendant).
   Opinion

DRANGINIS, J.

The plaintiff Janet Mastrolillo appeals from the summary judgment rendered by the trial court in favor of the defendant city of Danbury (city). On appeal, the plaintiff claims that the court improperly (1) abused its discretion in denying her request for leave to amend the complaint and (2) granted the city’s motion for summary judgment as to count one of the complaint. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. As alleged in the complaint, on April 7, 1996, at approximately 6 p.m., the plaintiff was walking to her car, which was parked on Parker Street in Danbury. As the plaintiff was walking along the property adjacent to Parker Street, she tripped over and fell onto a metal post protruding from the ground and sustained personal injuries.

On April 3,1998, the plaintiff commenced this action for personal injuries against the city under General Statutes § 13a-149. The plaintiff alleged that her injuries were caused by the city’s failure to maintain safely and properly its roads.

On August 5, 1998, the city filed its answer to the plaintiffs complaint, denying all of the material allegations contained therein. On March 30, 1999, the city filed a motion for summary judgment, claiming that the plaintiff had failed to allege in the complaint that she had exercised due care. On April 13, 1999, the plaintiff filed an objection to the city’s motion for summary judgment and a request for leave to amend the complaint. On July 15,1999, the court issued a memorandum of decision denying the request for leave to amend the complaint and granting the motion for summary judgment in favor of the city. This appeal followed. Additional facts will be provided as needed.

I

The plaintiffs first claim is that the court abused its discretion in denying her request for leave to amend the complaint. Specifically, the plaintiff argues that she should have been permitted to amend the complaint to allege her exercise of due care as the case law interpreting § 13a-149 requires because the amendment was not a new cause of action, but merely an amplification of the original pleadings, and was not time barred.

Our standard of review of the plaintiffs claim is well defined. “A trial court’s ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion.” Constantine v. Schneider, 49 Conn. App. 378, 389-90, 715 A.2d 772 (1998). “Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [plaintiffs] burden in this case to demonstrate that the trial court clearly abused its discretion.” (Citation omitted; internal quotation marks omitted.) AirKaman, Inc. v. Groppo, 221 Conn. 751, 766-67, 607 A.2d 410 (1992).

“Under the statutes and rules of practice, the court may in its discretion, in a proper case, allow the filing of amendments to pleadings before, during and after trial.” (Internal quotation marks omitted.) Constantine v. Schneider, supra 49 Conn. App. 389, quoting Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968). “Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.” (Internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 364, 659 A.2d 172 (1995). “The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.” (Internal quotation marks omitted.) Mezes v. Mead, 48 Conn. App. 323, 337, 709 A.2d 597 (1998), quoting Esposito v. Presnick, 15 Conn. App. 654, 660, 546 A.2d 899, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988). “The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case.” (Internal quotation marks omitted.) Wassell v. Hamblin, 196 Conn. 463, 466-67, 493 A.2d 870 (1985), quoting Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983).

We are unable to discern the basis of the court’s decision on the record before us. In its memorandum of decision, the court stated: “After much consideration, this court sustains the defendant’s objection to the plaintiffs request to amend.” This comment immediately follows a citation to the three factors to be considered in passing on a motion to amend. The factors cited are the length of delay, the fairness to the opposing parties and the negligence, if any, of the party offering the amendment. See Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 142, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000). The court, however, never explained with specificity what factors it used in deciding this case. The plaintiff seeks review by this court of the trial court’s decision. The plaintiff, however, failed to request an articulation from the court of the basis for its ruling. Consequently, the inadequate record prevents us from deciding the issue.

It is the responsibility of the plaintiff to provide this court with an adequate record as to the issues raised for review. See Practice Book § 61-10. Where the trial court’s written decision does not include adequate findings of fact and conclusions of law, the appellant must “seek an articulation of the trial court’s decision as to the relevant facts it found and the underlying reasons for it.” DeVellis v. DeVellis, 15 Conn. App. 318, 322, 544 A.2d 639 (1988). Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the “trial court incorrectly applied the law or could not reasonably have concluded as it did . . . .’’Id.

The record reveals that the request to amend the complaint was made after the city filed a motion for summary judgment, one year after the filing of the original complaint. The city’s motion was based on the plaintiffs failure to allege due care. This motion alerted the plaintiff, and she filed her motion to amend to cure the deficiency. The record that was presented to this court, which lacked an articulation, fails to establish that the trial court incorrectly applied the law or could not reasonably have concluded as it did. The record is inadequate, and, therefore, we cannot say that the court’s conclusion denying the request for leave to amend was an abuse of discretion.

II

The plaintiffs next claim is that the court improperly granted the city’s motion for summary judgment. Specifically, the plaintiff argues that she raised a genuine issue of material fact when she alleged due care in the amendment to the pleadings.

We first state our standard of review in summary judgment matters. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . .” (Citations omitted; internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805, 679 A.2d 945 (1996).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994). Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).” (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 706-707, 755 A.2d 317 (2000).

The first count of the plaintiffs complaint alleged a breach of the city’s statutory duty under § 13a-149. The plaintiff, however, failed to allege due care in the first count of her complaint, and the court denied her request for leave to amend the complaint to include an allegation of due care. To establish liability under the defective highway statute, § 13a-149, the plaintiff had the burden of proving that she exercised due care. See Rodriguez v. New Haven, 183 Conn. 473, 476, 439 A.2d 421 (1981). Allegations of due care must be specifically pleaded in a defective highway claim brought against a municipality and cannot be presumed. See Janow v. Ansonia, 11 Conn. App. 1, 3-4, 525 A.2d 966 (1987). The trial court, having denied the plaintiffs request for leave to amend the complaint, properly determined that the plaintiff had failed to allege due care in the first count of the complaint as required by the case law interpreting § 13a-149. Therefore, there was an absence of any genuine issue of material fact, and the city was entitled to judgment in its favor as a matter of law.

The court’s conclusions are legally and logically correct and find support in the facts in the record. The court’s decision to grant the city’s motion for summary judgment motion was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other plaintiff in this action is MastroliUo’s husband, Patrick Mastrolillo. Only Janet Mastrolillo has appealed. We refer in this opinion to Janet Mastrolillo as the plaintiff.

       General Statutes § 13a-149 provides in relevant part: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. . . .”

       The complaint was brought in six counts. Only counts one and two were addressed to the city. Count one involves the plaintiffs defective highway claim against the city that, is the subject of this appeal. In count two, Patrick Mastrolillo alleged a derivative cause of action for loss of consortium based on the plaintiffs injuries. The trial court granted the city’s motion for summary judgment as to both counts. Patrick Mastrolillo does not appeal from that judgment. Counts three, four, five and six of the complaint are not addressed to the city and are not involved in this appeal.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. EDDIE A. RODRIGUEZ
    (AC 19654)
    Spear, Mihalakos and Zarella, Js.
    Argued December 1, 2000
    officially released February 13, 2001

      Avery S. Chapman, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were Michael Desiring Ion, state’s attorney, and Cecilia B. Wiederhold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Eddie A. Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (l), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) and 53a-59 (a) (l), robbery in the third degree in violation of General Statutes (Rev. to 1989) § 53a-136 (a), interfering with an officer in violation of General Statutes § 53a-167a (a) and carrying a dangerous weapon in violation of General Statutes § 53-206. He claims that the court improperly (1) failed to conduct a hearing to determine whether his attorney provided adequate representation, thus depriving him of his constitutional right to effective assistance of counsel, and (2) charged the jury on consciousness of guilt. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On October 23, 1990, the defendant became involved in a confrontation with the victim, his estranged girlfriend, who worked as a secretary-receptionist at the South Central Elderly Nutrition Project in New Haven. Although the victim had terminated their relationship one week earlier, the defendant went to her New Haven office on the day in question seeking to take her to lunch. The defendant had been drinking heavily that morning and, after he arrived at the office, he argued with the victim, tore a necklace from her neck and struck her in the face. Mathilda Gibbs, the victim’s supervisor, immediately ordered the defendant to leave the building.

In response to complaints from the victim’s coworkers, officers from the New Haven police department came to the building, conducted an investigation and issued a police radio broadcast that alerted other officers to be on the lookout for the defendant. After the officers departed, a supervisor locked all of the building’s doors and windows to keep the defendant out in the event that he should return.

Despite those precautions, the defendant appeared a short time later and crashed through a first floor window, kicked in the door to the victim’s office, pulled a knife from his pants, pinned her against the wall and threatened to kill her. Gibbs came to the victim’s assistance and grabbed the defendant’s aim. The handle of the knife fell to the floor, but the defendant maintained his grip on the eight inch to ten inch blade. The victim managed to escape to another office and called the police while Gibbs restrained the defendant.

Several other workers joined the victim in the office where she took refuge. The defendant ultimately escaped from Gibbs and made an unsuccessful attempt to kick in the door to the office in which the victim was hiding. He also threatened the victim’s coworkers, saying that he would “get” them. When police officers arrived for the second time that day, the defendant fled from the building.

The officers chased the defendant through the surrounding neighborhood and eventually apprehended and arrested him. Following his arrest, the defendant continued to call the victim and send her mail. On November 13, 1990, he also telephoned one of her coworkers, Phyllis Ford, who had seen the defendant kick in a glass window and enter the building on the day of the incident. In his call to Ford, the defendant said, “Hey, Phyllis, I understand you’re hanging around with [the victim] . . . And you know, I’m going to get you for that. . . . And if I don’t get you, I have friends who will get you.”

Thereafter, the defendant was charged with burglary in the first degree, attempt to commit assault in the first degree, robbery in the third degree, interfering with an officer and cariying a dangerous weapon. Following a jury trial, the defendant was found guilty as charged.

The defendant appealed from the judgment of conviction, but before the appeal could be heard, he withdrew it pursuant to a plea agreement in several unrelated matters. He subsequently filed a habeas coipus petition alleging ineffective assistance of counsel with respect to the withdrawal and seeking reinstatement of the appeal. The habeas court found that because the trial court had not advised the defendant of his right to appeal, he had not waived his appellate rights knowingly and voluntarily. The habeas court accordingly reinstated his right to appeal. This appeal followed.

I

The defendant first claims that the court improperly failed to conduct a hearing on the issue of inadequate representation, thus depriving him of his constitutional right to effective assistance of counsel. He claims that he informed the court prior to his trial that his attorney had been preoccupied defending himself against criminal charges and did not have sufficient time to prepare the defendant’s case. According to the defendant, that constituted a conflict of interest and, after he objected to his counsel’s lack of preparation, the court had an absolute duty to inquire further. He contends that when the court merely took notice of the defendant’s objection and proceeded with the trial, it failed in its duty.

The following additional facts are necessary for our resolution of this claim. A public defender initially represented the defendant. On May 15, 1991, the court denied the defendant’s pro se motion seeking permission to represent himself. Two weeks later, attorney Frank Cannatelli appeared on behalf of the defendant in lieu of the public defender. Immediately prior to jury selection in November, 1991, the defendant informed the court that Cannatelli recently had been a defendant himself in another criminal proceeding. The defendant claimed that this constituted a conflict of interest that prevented Cannatelli from adequately preparing for the defendant’s trial. The court took no action, and the defendant advised the court that he would proceed with the trial under “protest.”

We begin our discussion by noting that “[t]he United States and Connecticut constitutions have afforded individuals certain minimum rights in criminal proceedings. The trial court safeguards these rights and ensures that none is violated during a criminal prosecution. State v. Brown, 235 Conn. 502, 527, 668 A.2d 1288 (1995). The trial judge plays a crucial role in ensuring that a criminal defendant receives a fair trial by an impartial jury, and must be ever vigilant, throughout the course of the trial. ... In a criminal trial, the judge is more than a mere moderator of the proceedings. It is [the judge’s] responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). . . . State v. Brigandi, [186 Conn. 521, 542, 442 A.2d 927 (1982)]. . . . State v. Brown, [supra, 527]. As an appellate body, we are responsible for reviewing claims arising from the trial court’s acts or omissions that violate constitutional rights and affect the trial proceedings itself.

“The sixth amendment to the United States constitution, as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution guarantee a defendant the right to effective assistance of counsel in a criminal proceeding. Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932); State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982). Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); Festo v. Luckart, 191 Conn. 622, 626-27, 469 A.2d 1181 (1983). The underlying right to conflict free representation is effective assistance of counsel. See Phillips v. Warden, 220 Conn. 112, 134, 595 A.2d 1356 (1991).

“The importance of safeguarding this right led to the requirement that, under certain conditions, the trial court must explore the possibility of a conflict. Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Festo v. Luckart, supra, 191 Conn. 629. Moreover, one of the principal safeguards of this right is the rule . . . that [a trial] court must explore the possibility of a conflict . . . when it knows or reasonably should know of a conflict. . . . Festo v. Luckart, supra, 629; State v. Martin, 201 Conn. 74, 79, 513 A.2d 116 (1986). In order to safeguard these federal and state constitutional rights, the United States Supreme Court and Connecticut courts have placed a duty on a trial court to inquire about a possible conflict in certain circumstances. Its failure to do so can lead to a claimed violation of a constitutional right. Wood v. Georgia, [supra, 450 U.S. 261]; State v. Martin, supra, 78. Although rooted in the right to effective assistance of counsel, such a claim seeks to address the actions of the trial court during a criminal proceeding, not the actions of counsel.

“The difference between a claim of ineffective assistance of counsel brought in a habeas proceeding and a claim involving the failure of a trial court to safeguard a defendant’s right to effective assistance of counsel when questioned in a direct appeal is that the former requires a showing to the habeas court that the defendant in fact received ineffective assistance of counsel, whereas the latter requires an appellate determination that the trial court was alerted to a possible conflict and failed to investigate it. In State v. Martin, supra, 201 Conn. 81-83, after concluding on direct [appeal] that the trial court was alerted to a possible conflict by the defendant’s attorney and that the trial court failed to investigate the attorney’s claim, the Supreme Court ordered a new trial, but did not determine whether an actual conflict existed.

“The actions of a trial court axe unlike the trial strategy of counsel. The activities of counsel may not be apparent on the record but the words and rulings of a trial court are readily reviewable from the record itself. When a defendant, therefore, alleges that the trial court’s failure to inquire about a possible conflict of interest led to the deprivation of a constitutional right during the criminal prosecution, the claim is proper for a direct appeal.” (Internal quotation marks omitted.) State v. Phidd, 42 Conn. App. 17, 33-35, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997).

“There axe two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists .... A trial court’s failure to inquire in such circumstances constitutes the basis for reversal of a defendant’s conviction.” (Citations omitted; internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 686, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

“The extent of the [trial court’s] inquiry . . . lies within the discretion of the trial court. ... A trial court does not abuse its discretion by failing to make further inquiry where the defendant has already had an adequate opportunity to inform the trial court of his complaints.” (Citation omitted; internal quotation marks omitted.) State v. Ruffin, 48 Conn. App. 504, 514, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998).

After the defendant raised the possibility of a conflict of interest on the part of his counsel, the court queried him several times regarding his allegations. Initially, the court asked the defendant, “What’s a conflict of interest?” When the defendant replied that the conflict involved inadequate preparation because his attorney had been a criminal defendant himself within the previous three weeks, the court followed with, “You can’t point to anything specific that leads you to believe he’s not ready, can you?” The defendant answered that his attorney knew the basics, but not the specifics, of his case. The court attempted to elicit examples of his attorney’s inadequate preparation when it asked the defendant, “What are you talking about?” The defendant replied vaguely, “maybe talking to the doctors . . . [about] my mental status at the time.” The defendant then told the court; that he had “no objection” to proceeding with the trial, but that he wanted to register his objection to “the prosecution.” The court took notice of the defendant’s protest and the trial commenced.

The defendant never provided direct factual support for his allegations that a conflict of interest affected his attorney’s ability to represent him at trial, despite the court’s multiple attempts to elicit specific examples of inadequate preparation. Accordingly, we conclude that the court gave the defendant ample opportunity to describe his complaints and that the court did not abuse its discretion by failing to conduct a separate hearing as to a possible conflict of interest, thus resulting in a violation of the defendant’s constitutional right to effective assistance of counsel. See id.

The defendant cites Phillips v. Warden, supra, 220 Conn. 133, for the proposition that in cases in which there is an actual conflict of interest, as is claimed here, prejudice is presumed and the court has a duty to inquire further. In Phillips, however, the trial court made no inquiry as to whether a conflict of interest existed that gave rise to ineffective assistance of counsel. Id., 114-15. By contrast, the court in this case inquired of the defendant several times regarding his allegations that his counsel had a conflict of interest. The defendant, however, failed to provide any direct factual support for those allegations. We therefore conclude that the defendant had an adequate opportunity to inform the court of his complaint, and there was no need for the court to conduct a further hearing.

The defendant also argues that as the trial progressed, it became increasingly clear that his attorney was not adequately prepared and that the court had a duty to inquire further. In his brief, he points out that defense counsel conducted “inept cross-examination of critical prosecution witnesses,” was ignorant of the name, function and availability of a motion for judgment of acquittal at the close of the prosecution’s case, carelessly “ventur[ed] into areas of questioning filled with potential prejudice” to the defendant, failed to file any requests for jury instructions, even though he claimed to be pursuing a defense of intoxication to the specific intent charges, and failed to subpoena or otherwise obtain records and testimony from the alcohol treatment facilities that would have corroborated that defense.

The record discloses, however, that after his pretrial comments, the defendant never again raised the issue of inadequate representation. Had the defendant continued to be dissatisfied, he could have directed the court’s attention to alleged deficiencies in his attorney’s performance as they came to light. Moreover, on the record before us, which the defendant concedes is incomplete; see footnote 7; we cannot conclude that the court knew or reasonably should have known that his counsel’s representation was inadequate. The defendant’s charges of inept cross-examination, careless questioning, ignorance of motion practice and failure to obtain records are so lacking in specificity that they are beyond the ability of this court to assess and certainly do not form any basis for a conclusion that the trial court should have known that a conflict existed. We thus conclude that the court did not abuse its discretion by failing to inquire further regarding the defendant’s allegations of ineffective assistance of counsel as the trial proceedings progressed.

II

The defendant next claims that the court improperly instructed the jury on consciousness of guilt. He claims that there could be no conceivable link between the crimes charged and the alleged telephone call to Ford, in which he said that he would “get” Ford because she was “hanging around” with his former girlfriend. Although he did not take exception to the jury instruction at the time it was made, he now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The following additional facts are necessary to our resolution of this claim. The court instructed the jury on consciousness of guilt as follows: “There is a concept called consciousness of guilt. And there was testimony about actions or statements made by the defendant subsequent to the criminal act charged. And by that I’m referring to the phone call in November [1990]. Whenever a person is on trial for a criminal offense, it is proper to show that person’s conduct as well as any declarations made by him subsequent to the alleged criminal offense which may fairly have been influenced by that act. This conduct can be shown because such conduct or statements might tend to show a guilty connection by the defendant with the crime charged. If such evidence, however, is capable of two reasonable interpretations, one of which is consistent with innocence, the evidence is to be given that interpretation. It is up to you as judges of the facts to decide whether certain acts, statements or conduct of the defendant reflect a consciousness of guilt.”

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim.” State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998).

“On appeal, the claim for review must meet all four prongs of the Golding analysis to be successful. . . . We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” (Citation omitted; internal quotation marks omitted.) State v. Williams, 60 Conn. App. 575, 579, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).

We conclude that the defendant’s claim fails the second prong of Golding. “It has . . . been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the [Golding] standard. See State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Merritt, 36 Conn. App. 76, 96, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995). State v. Snead, 41 Conn. App. 584, 591, 677 A.2d 446 (1996). It is well settled that the trial court can be expected to rule only on those matters that are put before it. See Lee v. Lee, 174 Conn. 5, 7, 381 A.2d 529 (1977). With only a few exceptions . . . we will not decide an appeal on an issue that was not raised before the trial court. See State v. Golding, [supra, 213 Conn. 239], To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge. Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995). Mack v. LaValley, 55 Conn. App. 150, 157, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999); Flewellyn v. Hempstead, 47 Conn. App. 348, 353, 703 A.2d 1177 (1997).” (Internal quotation marks omitted.) State v. Gibson, 56 Conn. App. 154, 160-61, 742 A.2d 397 (1999). We therefore decline to review this unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.....”

       General Statutes (Rev. to 1989) § 53a-136 (a) provides: “Aperson is guilty of robbery in the third degree when he commits robbery.”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-167a (a) provides: “Aperson is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       General Statutes § 53-206 (a) provides in relevant part: “Any person who carries upon his person any . . . knife the edged portion of the blade of which is four inches or over in length . . . unless such person has been granted a written permit. . . authorizing such person to carry such weapon . . . shall be fined not more than five hundred dollars or imprisoned not more than three years or both. . . .”

       On July 1, 1999, the defendant ñled a statement indicating that the court reporter no longer had copies of the trial transcripts. Thereafter, on March 17, 2000, the defendant filed a motion for permission to file the brief previously filed in the earlier appeal. The appendix to the brief contains what appear to be the only surviving portions of the trial transcript. This court granted the motion on April 27, 2000.

       The defendant and the court engaged in the following colloquy:
      “[The Defendant]: I have a question. ... I get along with my attorney, but I just have a question about my lawyer’s ability as it appears for this trial right now.
      “The Court: What area do you think he’s lacking in preparation? What are you worried about, specifically?
      “[The Defendant]: I just believe that there’s a conflict of interest, Your Honor. The fact—
      “The Court: What’s a conflict of interest?
      “[The Defendant]: Well, Your Honor . . . the fact that he was a criminal defendant himself about three weeks ago, Your Honor; he didn’t prepare for my case when he should have been preparing for my case, but if—
      “The Court: You can’t point to anything specific that leads you to believe he’s not ready, can you?
      “[The Defendant]: Your Honor, the whole—all the facts—he knows the basics, he doesn’t know specifically.
      “The Court: What are you talking about?
      “[The Defendant]: My condition, like I thought maybe talking to the doctors, psychiatrists I saw a week before all this happened, indicating my mental status at the time.
      “If the state wishes to proceed .... I have no objection to that. But I do have objection to the prosecution, Your Honor, if it’s going to keep on, I want to protest, proceed with protest.
      “The Court: Your protest is noted.”

       The defendant remains free to seek habeas relief on the ground of ineffective assistance of counsel despite our determination that the court did not fail in its duty to inquire.

       In his brief, the defendant seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Because Evans has been further refined by Golding, however, he in effect seeks review pursuant to Golding.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOSEPH MOONEY
    (AC 20636)
    Foti, Schaller and Hennessy, Js.

      Argued November 29, 2000
    officially released February 13, 2001

      RichardE. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Joseph Mooney, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbeiy in the first degree in violation of General Statutes § 53a-134 (a) (l), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault in the first degree of a person sixty years of age or older in violation of General Statutes § 53a-59a (a) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). The trial court incoipo-rated the robbery and the burglary charges into the count of felony murder and sentenced the defendant to a term of sixty years imprisonment. On appeal, the defendant claims that the court improperly (1) accepted the verdict of guilty of assault in the first degree and robbery in the first degree because the former was predicated on a finding of reckless use of force while the later was predicated on intentional use of force, and, thus, the verdict was legally inconsistent in violation of his right to due process of law under the constitutions of Connecticut and the United States, (2) instructed the jury on burglary with the intent to commit assault as the predicate felony because the court instructed the jury only as to reckless assault and not as to burglary with the intent to commit assault and (3) denied him his right to a fair trial because two members of the jury allegedly observed the defendant wearing shackles during the course of the trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 28, 1997, the defendant and his accomplice, Irving Hemingway, had been drinking heavily in the course of an alcoholic binge that had started the previous day. When their supply of money and alcoholic beverages was depleted, they decided to rob Edward Samick, whom they knew kept alcohol and money in his apartment. Samick resided with his housemate, William Burks, in a two bedroom apartment located at 2352 Bamum Avenue, Stratford. Samick’s bedroom was located at the rear of the apartment near a sealed back door, and Burks’ bedroom was located in the front of the apartment near the apartment’s main entrance.

On that same day, at approximately 5 a.m., Burks heard someone pounding on the back door of the apartment. He then heard the door crash open and someone yell, “Give it up!” Burks then heard Samick yell out for him to call the police. The defendant and Hemingway held Samick down with a pillow over his face. They told Sarnick that they would not hurt him if he told them where he kept the money. When Samick would not speak, they punched him repeatedly. The defendant and Hemingway then ransacked Samick’s apartment in search of money that they knew that Samick kept there from the proceeds of his sales of alcohol and other items. Frightened by these events and dressed only in his underwear, Burks ran out the front door of the apartment. He went to a local newsstand where he unsuccessfully tried to contact the police. After a few minutes, he left the newsstand and went to a pay telephone outside a McDonald’s restaurant, where he was finally able to contact the police. When the defendant and Hemingway were unable to find any money, they took some beer and liquor from Samick’s apartment and fled. Samick died from the blunt trauma that he sustained during the attack.

Officer Donna Brennan of the Stratford police department was the first officer to arrive on the scene. She saw Burks standing in the road, dressed only in his underwear, waving his arms and pointing in the direction of two individuals walking on the sidewalk toward the city of Bridgeport. Upon observing the two suspects, Brennan notified headquarters and broadcast a description of the suspects to other police cmisers that were responding to the call. As she approached the suspects, the defendant started to flee, and a foot chase ensued. Brennan found the defendant hiding behind a fifty-five gallon drum located in back of a building. Additional facts will be provided as needed.

I

The defendant first claims that the court violated his due process rights under the state and federal constitutions because it accepted the jury’s verdict of guilty of both reckless use of force in committing assault in the first degree and intentional use of force in committing robbery in the first degree when the offenses have different mental elements, but were based on the same act. Thus, the defendant argues that the verdict finding him guilty of those charges was legally and logically inconsistent. We disagree.

The defendant argues that the court improperly permitted the jury to return a verdict of guilty on both counts because the charges require mutually exclusive mental states. Specifically, the defendant argues that an intent to use force is legally and logically inconsistent with an intent to cause serious physical injury when applied to the same physical act against the same victim. He argues, therefore, that the verdict of guilty on both counts is violative of the prohibition against an inconsistent guilty verdict. See State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993); State v. King, 216 Conn. 585, 594, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

The defendant concedes that he did not preserve this claim at trial. He seeks review, however, pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under the Golding doctrine, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

“The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim.” (Internal quotation marks omitted.) State v. Henry, 253 Conn. 354, 359, 752 A.2d 40 (2000). We review the defendant’s claim because the record is adequate for review and the claim is constitutional in nature. See State v. Hinton, supra, 227 Conn. 313-14 (reviewing similar claim under Golding). Because this is a question of law, our review is plenary.

“The general rule, to which we subscribe, was set forth by Judge Learned Hand in Steckler v. United States, 7 F.2d 59 (2d Cir. 1925), and was confirmed by Justice Holmes in Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932). . . . Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Id., 393. [Justice Holmes] went on to state: That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters. Id., 394.” (Internal quotation marks omitted.) State v. Harris, 54 Conn. App. 18, 23, 734 A.2d 1027, cert. denied, 250 Conn. 925, 738 A.2d 660 (1999).

“We employ a less limited approach, however, when we are confronted with an argument that the verdicts are inconsistent as a matter of law or when the verdicts are based on a legal impossibility. ... In response to such a claim, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge.” (Citations omitted.) State v. Hinton, supra, 227 Conn. 313.

“As is evident, however, the statutory definitions of ‘intentionally’ and ‘recklessly’ are mutually exclusive and inconsistent. ‘Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result.’ . . . Therefore, the transgression that caused the victim’s injuries was either intentional or reckless; it could not, at one and the same time, be both. . . . Where a determination is made that one mental state exists, to be legally consistent the other must be found not to exist. . . . ‘By no rational theory could the jury have found the defendant guilty of both crimes.’ . . . Logically then, the jury verdicts convicting the defendant of two offenses each of which requires a mutually exclusive and inconsistent state of mind as an essential element for conviction cannot stand.” (Citations omitted; emphasis added.) State v. King, supra, 216 Conn. 593-94.

The following additional facts are necessary to resolve the defendant’s claim. The state’s substitute information charged the defendant with, inter aha, robbery in the first degree in violation of § 53a-134 (a) (1) and assault in the first degree of a person sixty years of age or older in violation of § 53a-59a (a) based on the acts committed against Samick. Assault in the first degree “under circumstances evincing an extreme indifference to human life”; General Statutes § 53a-59 (a) (3); requires reckless conduct. Robbery in the first degree is a specific intent crime; State v. Truppi, 182 Conn. 449, 460, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); requiring a use of force for the purpose of compelling a victim to surrender his or her property. See General Statutes § 53a-133.

Hemingway testified that he held Samick down with a blanket and a pillow and stated that he told Samick that he would not hurt him if he told them where he kept the money. Hemingway further testified that he and the defendant started to beat Samick when Samick refused to tell them where he kept the money.

The defendant’s argument lacks merit because it presumes that the jury could have found only that the defendant committed one continuous act of force. “In State v. King, supra, [216 Conn. 593], the defendant was charged with the crimes of attempted murder and assault in the first degree. Both counts were predicated on the same act carried out against the same victim. Id. While the attempted murder charge required proof that the defendant intended to cause the victim’s death, however, the assault charge, as set forth in the information, required proof that the defendant recklessly created a risk of death to the victim. Id. The Supreme Court, noting the statutory definitions of ‘intentionally’ and ‘recklessly’ are mutually exclusive, vacated the convictions of assault in the first degree and attempted murder and ordered a new trial on both counts. Id., 603-604.” State v. Fernandez, 27 Conn. App. 73, 93-94, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). The guilty verdict in the present case is distinguishable from that in State v. King, supra, 585, because the jury here was not required to find that the different acts committed by the defendant were in effect one act with one mental state. The jury was free to conclude that the defendant’s actions constituted different crimes that occurred on an escalating continuum. Indeed, there is a compelling case for finding that the defendant committed multiple criminal acts against the same victim. See State v. Fernandez, supra, 92-94. For example, the jury reasonably could have found that the defendant acted intentionally when Hemingway held the pillow over Samick’s head and demanded that he “give it up.” Further, the jury could have found that that intent was transformed to recklessness when Sarnick refused to speak, and Hemingway and the defendant commenced the reckless assault by repeatedly striking Sarnick. Because the jury was not required to find that the defendant possessed the relevant mental states simultaneously, the verdict was not logically inconsistent.

II

The defendant next claims that the court improperly instructed the jury regarding burglary with an intent to commit assault as the predicate felony. Specifically, the defendant argues that it is logically impossible to intend to commit a reckless act, and, therefore, the court violated his right to a fair trial when it instructed the jury that it could find him guilty of felony murder under a predicate felony of burglary with intent to commit assault, but instructed the jury only on reckless assault. We disagree.

The defendant concedes that he did not preserve this claim. He contends, however, that he is entitled to Golding review. We will review the defendant’s claim because the record is adequate for review and the defendant alleges a violation of a fundamental right, that is, that he was convicted of a nonexistent offense. See State v. Toczko, 23 Conn. App. 502, 505, 582 A.2d 769 (1990) (“defendant convicted of an offense of which he was never given notice has been deprived of a fundamental constitutional right and of a fair trial”).

“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995). [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . State v. Figueroa, 235 Conn. 145, 170-71, 665 A.2d 63 (1995).” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).

We have thoroughly reviewed the charge in the present case and conclude that there is no reasonable possibility that the charge misled the jury. We further conclude that the defendant’s claim that the jury could not, as a matter of law, have found as it did is without merit.

Here, the court charged the jury that it could find the defendant guilty of felony murder on the basis of robbery or burglary as the predicate felony. To find the defendant guilty of felony murder on the basis of the predicate felony of robbeiy, the jury simply had to conclude that the defendant was guilty of causing a death during the commission of a robbery. The fact that it was robbery in the first degree is of no consequence. The only significance of robbery in the first degree is that serious physical injury occurred during the course of or flight from the robbery.

The information in the present case accused the defendant of robbery and burglary, and further alleged that in the course of and in furtherance of such crime or of flight therefrom, he or another participant did cause the death of Samick in violation of § 53a-54c. As stated in part I of this opinion, the jury reasonably could have found the defendant guilty of robbery. Robbery is an enumerated felony that qualifies as an element under our felony murder statute. See General Statutes § 53a-54c. The fact that the defendant was accused of robbery in the first degree does not change this result. Here, the state alleged that the defendant violated § 53a-134 (a) (1), and, to qualify under that section, the defendant must commit a robbery in violation of § 53a-133. We, therefore, reject the defendant’s claim because the jury reasonably could have concluded that the defendant committed robbery as the predicate for felony murder.

Ill

The defendant’s final claim is that the court denied him his right to a fair trial when, during a recess, two jurors observed him in shackles as two sheriffs were transporting him to the courthouse lockup.

The following additional facts are necessary for our resolution of this issue. Following a luncheon recess and prior to the jury’s return to the courtroom, the defendant’s attorney informed the court that, during the recess, two jurors observed the defendant in handcuffs and shackles being escorted in the elevator by two sheriffs. The court asked the defendant’s attorney if he thought that the jurors were surprised that the defendant was in custody, and the defendant’s attorney replied that he did not. The court further stated that it would instruct the jury to disregard the defendant’s status as a prisoner. The court then asked the defendant’s counsel whether he was moving for a mistrial on the basis of the incident. The defendant’s counsel replied, “No. ... I wouldn’t get it anyway.” The court later instructed the jury: “If during the course of the trial you—based on what you see in the courtroom or anywhere in the courthouse you come to believe that certain people might be in custody, whether it’s a witness or the defendant, it shouldn’t play any part in your deliberations whether someone’s incarcerated or not. The defendant is presumed innocent unless and until the evidence proves him guilty beyond a reasonable doubt.” The defendant did not object or pursue this issue again during the remainder of the trial.

The defendant concedes that he did not preserve this issue because he did not file a motion for a mistrial and did not object to the court’s curative instruction. He claims, however, that he is entitled to Golding review. State v. Golding, supra, 213 Conn. 239-40.

Here, the defendant did not request a mistrial or object to the court’s curative instruction. The record does not contain evidence that any of the jurors actually saw the defendant in shackles and, if they did, whether it prejudiced their capability to serve as jurors. Because the defendant has not provided this court with an adequate record relating to this claim, it fails under the first prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, [or] kidnapping . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . .
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up Ihe property or to engage in other-conduct. which aids in the commission of the larceny.”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-59a (a) provides: “A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under section 53a-59 (a) (2), 53a-59 (a) (3) or 53a-59 (a) (5) and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with the intent to ... (B) accomplish or advance the commission of a felony . . . .”

       Hemingway pleaded guilty to felony murder and received a sentence of thirty years imprisonment.

       Hemingway and the defendant referred to Samick as the “bootlegger” because he allegedly sold alcohol illegally.

       “Because the defendant has not analyzed any of his state constitutional claims separately from their federal counterparts, we shall consider only his federal constitutional claims. State v. McMurray, 217 Conn. 243, 248 n.6, 585 A.2d 677 (1991).” State v. Fernandez, 27 Conn. App. 73, 77 n.5, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992).

       The defendant also claims that the verdict of guilty of robbery in the first degree and kidnapping in the first degree, premised on the intentional use of force, and of reckless assault in the first degree is legally and logically inconsistent. The defendant further claims that the verdict of guilty of burglary in the first degree and reckless assault is legally and logically inconsistent. Finally, the defendant claims that the verdict of guilty of felony murder under the predicate felony of robbery or burglary with intent to commit robbery and of reckless assault is legally and logically inconsistent. Because we conclude that the law did not require the jury to base its verdict on the same act, we conclude that the verdict is not legally and logically inconsistent, and, therefore, we decline to address these claims.


text:
    STATE OF CONNECTICUT v. DEBRA GRACEWSKI
    (AC 19619)
    Foti, Landau and Pellegrino, Js.
    Argued December 8, 2000
    officially released February 13, 2001

      G. Douglas Nash, public defender, with whom were Jessica A. Ballou, certified legal intern, and, on the brief, Pamelas. Nagy, former assistant public defender, and Maria Cahill, certified legal intern, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Debra Gracewski, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, § l. On appeal, the defendant claims that the evidence as to her identity as the perpetrator was insufficient to sustain her conviction on either charge and that the evidence as to recklessness was insufficient to sustain her conviction of manslaughter in the first degree. The defendant also claims that the court’s alleged interference and misconduct during the trial deprived her of a fair trial, and that the court improperly instructed the jury. We disagree with the defendant’s claims and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant had been employed for several weeks prior to the incident underlying this action by her cousin, Shelley Rowe, as a baby-sitter for Rowe’s son, Shawn, the victim. Rowe worked away from home during the day. At the time of the incident at issue, September 18, 1996, the victim was three months old. Early in the day on September 17, 1996, Rowe took the victim to Harold Shapiro, his pediatrician, for a routine well-child examination. Despite the fact that Rowe thought the victim was behaving in a “fussy” manner during the previous evening, Shapiro found him to be in good physical health with no symptoms of head injury when he examined him. The defendant slept at Rowe’s home on the evening of September 17, 1996.

On the morning of September 18, 1996, Rowe found the victim to be behaving well, and after she changed and dressed him at approximately 7:30 a.m., she entrusted his care to the defendant. Soon after Rowe left for work, the defendant called her mother, Diane Gracewski, to request a ride to a bank. At 8:25 a.m., one of Rowe’s neighbors in her two-family duplex home overheard the victim screaming loudly. The defendant called Diane Gracewski a second time and told her that the victim was behaving poorly. When Diane Gracewski arrived at Rowe’s home, she found the victim crying and tensing his muscles. She noticed the victim’s pacifier, with blood on it, on a nearby table. Diane Gracewski later told the police, however, that when she arrived, the victim was sleeping. Despite the victim’s problems, Diane Gracewski took the defendant to a bank and left for work soon thereafter. The defendant called several relatives during the morning to solicit advice because she believed that the victim was not behaving well. Rowe called the defendant at 1 p.m. to check on her son. The defendant told Rowe that she saw blood on the victim’s pacifier and called the victim’s maternal grandmother, Pauline Rowe, to help her care for him.

Pauline Rowe arrived at Shelley Rowe’s house around 1 p.m. and found the victim in veiy poor condition. His body was so stiff that he could not be fastened in his car seat. Pauline Rowe immediately contacted Shapiro and took the victim to his office for treatment. Shapiro found him to be experiencing generalized active seizures and crying. Shapiro instructed Pauline Rowe and the defendant to take the victim to Rockville General Hospital. Shortly after his arrival at the hospital, the victim was transported to Connecticut Children’s Medical Center in Hartford and placed in the intensive care unit for treatment. He remained at the medical center until his death on September 22, 1996.

The defendant told the police that the victim had cried several times during the morning, and she admitted being “frustrated” with his behavior. She said that his stomach was bulging and that she “shook him for approximately five to ten seconds” in an attempt to “get him to burp.” She said that in addition to shaking the victim, she “may have hit his head.” She told the police that she did not intend to hurt him, did not shake him “seriously enough to cause any injury” and wanted only to help relieve the discomfort that was making him act so fussy.

The physicians who treated the victim at the Connecticut Children’s Medical Center found swelling of his brain and a subdermal hematoma in the back of his brain that resulted from tom blood vessels. He suffered from severe hemorrhaging in his eye and from generalized seizures. The physicians also noticed a small tear under his tongue that would have been consistent with an object having been shoved into his mouth. Experts who testified at trial agreed the victim’s injuries were caused by violent shaking, a condition medically called “shaken baby syndrome.” The victim’s injuries occurred because, after Shelley Rowe left for work, the defendant forcefully shook him for at least five to ten seconds, and slammed him down on a soft surface. Symptoms of his injuries manifested themselves relatively quickly, likely within several minutes after the shaking occurred. The injuries to his head and other internal injuries, symptoms of “shaken baby syndrome,” caused his death.

I

The defendant claims that the state failed to present sufficient evidence to prove beyond a reasonable doubt that she was the person who committed the crimes for which she was convicted. She also claims that the evidence was insufficient to support her conviction for the crime of manslaughter in the first degree because the state failed to sustain its burden of proving recklessness beyond a reasonable doubt. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).” (Internal quotation marks omitted.) State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Id., 134.

A

The defendant first claims that the evidence as to the identity of the perpetrator was insufficient to support the jury’s verdict. She argues that the evidence failed to show that she was any more likely to have caused the victim’s injuries than the other persons in contact with him that day, and that her mere presence and interaction with the victim is insufficient to support the conclusion that she caused his injuries. We disagree.

As we previously stated, in determining whether evidence is sufficient to support a verdict, we review the evidence in the light most favorable to upholding the verdict. State v. Pauling, 47 Conn. App. 483, 487, 706 A.2d 981 (1998).

“[I]n considering the evidence introduced in a case, [jJuries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 195, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997). “That the [trier of fact] might have drawn other possible inferences from [the evidence] is not sufficient to undermine its verdict, since proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt.” (Internal quotation marks omitted.) State v. Patterson, 229 Conn. 328, 332, 641 A.2d 123 (1994).

The evidence established that the victim enjoyed good health when Shapiro examined him on September 17, 1996, and that he was in fine health and spirit when Shelley Rowe left him with the defendant on the morning of September 18, 1996. The medical evidence, the defendant’s admission that she had shaken the victim that morning and all the other circumstantial evidence presented at trial sufficiently supported the conclusion that the defendant was the person who inflicted the victim’s fatal injuries.

B

The defendant also contends that there was insufficient evidence of recklessness to support the conviction of manslaughter in the first degree in that the state failed to prove that she subjectively was “aware of and consciously disregarded] a substantial and unjustifiable risk.” We disagree.

This court reviews a sufficiency of the evidence claim by determining “whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jones, 34 Conn. App. 807, 811, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994).

A conviction under § 53a-55 (a) (3) requires proof beyond a reasonable doubt that the defendant, under circumstances evincing extreme indifference to human life, recklessly engaged in conduct that created a grave risk of death to the victim and thereby caused the death of the victim.

Our review of the record discloses that the defendant had baby-sitting experience and that Rowe previously had warned the defendant never to shake or bounce the victim because that could cause him injury. Additional evidence enabled the jury to conclude that the defendant possessed the mental capacity to understand and to appreciate the gravity of the risk involved in violently shaking young children. From the evidence presented, which obviously was accepted as true by the jury, the defendant forcefully shook the victim for five to ten seconds and then slammed him down onto a mattress or other soft object, causing his head to decelerate rapidly. The jury also considered evidence of the defendant’s educational background, i.e., that she was a high school graduate, her IQ and her capacity to understand instructions and her mental condition in general.

In cases in which recklessness is an element of the crime, such as the crime of manslaughter in the first degree, a court may admit evidence of a defendant’s mental capacity to show that the defendant possessed the requisite mental state for the commission of the crime with which he or she is charged. See State v. Burge, 195 Conn. 232, 240, 487 A.2d 532 (1985). The court instructed the jury to consider the evidence regarding the defendant’s mental state. It was the jury’s duty to resolve the conflicting evidence as to that issue by evaluating the credibility of the witnesses on the basis of its firsthand observation of their conduct, demeanor and attitude. See State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). We conclude that the evidence presented sufficiently permitted the jury to find that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk.

II

The defendant claims that the court engaged in certain instances of misconduct, thus denying her a fair trial. She claims that “the court showed contempt for the defense attorney in the jury’s presence, acted as an advocate by questioning key witnesses and improperly characterized the evidence.” We disagree.

At no point during the trial did the defendant object to any of the court’s actions now alleged to have been improper or seek a mistrial. Additionally, the defendant did not object to any allegedly improper instruction that the court gave to the jury. We review this claim “only to determine whether the court’s actions deprived the defendant of his constitutional right to due process of Ism.” State v. Tatum, 219 Conn. 721, 739, 595 A.2d 322 (1991). “The risk of constitutional judicial misconduct is greatest in cases where the trial court has interceded in the merits of the trial.” State v. Woodson, 227 Conn. 1, 31, 629 A.2d 386 (1993).

We conclude, after reviewing the record, that the defendant’s claim of judicial misconduct is without merit. Although the defendant states in her brief that “[t]he record is replete with examples” of judicial misconduct, she points to five specific instances of allegedly impermissible interference by the court. Our review does not require us to set forth and discuss each separate claim. Our review of the entire record supports our conclusion that although the court during the trial may have demonstrated frustration, made attempts at wit or made an inappropriate comment, the defendant has failed to demonstrate a level of prejudice sufficient to affect, in any perceivable manner, the fairness of the trial. See State v. Mack, 197 Conn. 629, 643, 500 A.2d 1303 (1985). As our Supreme Court has stated, “[w]e are reluctant to award a new trial where those most concerned, better placed than we to assess the courtroom atmosphere, did not view the remarks to be so prejudicial as to warrant a new trial and preferred to stake the outcome on the trial under way.” Id., 642.

The defendant also contends that the court improperly questioned witnesses. A trial court possesses a discretionary right to intervene in the examination of witnesses for certain puiposes, such as to clarify confusing testimony, to restrain an obstreperous witness or to elucidate a witness’ understanding of a question. State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985). A court’s questioning of a witness is not necessarily improper, even if it draws attention to the strengths or weaknesses of a party’s case. State v. Echols, 170 Conn. 11, 14, 364 A.2d 225 (1975). The court should not fashion any question in a manner that reflects on the credibility of a witness. See State v. Fernandez, supra, 14-15. Our review of the record supports our conclusion that none of the court’s questions reflected on the credibility of any witness, nor did any of the court’s inquiries demonstrate partisanship.

The defendant also argues that the court highlighted for the jury certain unfavorable testimony from William Harrington, a pathologist, and “emphasized this harmful evidence over everything else that he said.” The defendant has neither specifically identified the challenged statements in her brief, nor furnished any type of analysis of that particular claim. “Assignments of error which axe merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Carano v. Moomey, 51 Conn. App. 382, 387, 721 A.2d 1240 (1998). The defendant cannot prevail on this unpreserved claim of judicial misconduct.

Ill

The defendant finally claims that the court improperly instructed the jury on the defense of diminished capacity. The defendant does not contend that the court misstated the law, but rather that the court should have provided more instruction to the jury concerning that defense. She asserts that the court did not explain who bears the burden of proof as to that defense and what the jury should do if it found that she had a diminished capacity. We disagree.

The following additional facts are necessary to our resolution of this issue. The court properly instructed the jury to hold the state to its burden of proving each element of the crimes charged beyond a reasonable doubt and instructed the jury about its duty to acquit the defendant if reasonable doubt concerning her guilt existed. As to diminished capacity, the court instructed: “The purpose of this particular instruction is to instruct you on diminished capacity. Evidence, if you believe it, was submitted to establish the defendant’s impaired cognitive ability. [A licensed psychologist, Bernard Pellet,] classified her as [having] borderline intelligence. You must determine whether the evidence of diminished capacity is sufficient to raise reasonable doubts as to the existence of general intent, the ability to perceive substantial and unjustifiable risks, acting recklessly, extreme indifference to human life and performing acts likely to impair the health of a child. You must be satisfied from the defendant’s presentation that there is direct evidence of the effects of her various mental disorders on her capacity to form a general intent, her ability to perceive substantial and unjustifiable risks, reckless conduct, extreme indifference to human life and doing acts likely to impair the health of a child.”

“A jury instruction is constitutionally adequate it if provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 781, 695 A.2d 525 (1997). “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the juiy so that no injustice will result.” (Internal quotation marks omitted.) State v. Ash, 231 Conn. 484, 494, 651 A.2d 247 (1994).

When viewed as a whole, the court’s charge sufficiently guided the jury as to the state’s burden of proof, the effect of a reasonable doubt and that evidence of a diminished capacity may be sufficient to raise such a reasonable doubt. The defendant presented direct evidence on the issue of diminished capacity and submitted a written request to charge with the following instruction: “It is requested that the court charge on the defense of diminished capacity, as evidence was presented that the defendant is of borderline intelligence, and lacks the comprehension possessed by the majority of the population.” The charge adequately instructed the jury that the defendant introduced evidence of her diminished capacity for the purpose of overcoming the element of recklessness, which the state was required to prove beyond a reasonable doubt to prove that the defendant committed the crime of manslaughter in the first degree. The court’s charge established that the state carried the burden of proving the defendant’s mental state beyond a reasonable doubt.

We conclude that the court’s instruction on diminished capacity did not mislead the jury or result in an injustice to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, § 1, provides: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or (he morals of such child axe likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the. age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”

       The defendant withdrew two additional claims at oral argument. The defendant had claimed that the court improperly admitted her statement as evidence at trial because (1) the police obtained it as a result of a custodial interrogation without advising her of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and (2) she did not give her statement voluntarily.

       General Statutes § 53a-3 provides in relevant part: “Except where different meanings are expressly specified, the following terms have the following meanings when used in this title . . .
      “(13) Aperson acts ‘recklessly’ with respect to aresult or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .”

       The defendant seeks review of this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).