author: BORDEN, J.

text:
    STATE OF CONNECTICUT v. MIA MCSWAIN
    (AC 26956)
    DiPentima, Lavine and Borden, Js.

      Argued October 18, 2007
    officially released January 15, 2008

      Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. Robert Satti, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Mia McSwain, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The defendant claims that the trial court improperly (1) excluded evidence of her state of mind that was relevant to her defense of self-defense and (2) violated her federal and state constitutional rights to counsel of her choice for purposes of her sentencing proceeding. We affirm the judgment of the trial court.

The state originally charged the defendant with assault in the first degree and conspiracy to commit assault in the first degree. Before submitting the case to the jury, the court granted the defendant’s motion for a judgment of acquittal on the conspiracy count. Thus, the state’s information charged the defendant with causing serious physical injury to the victim, Betsy Ocasio, with a dangerous instrument, namely, a razor blade, in violation of § 53a-59 (a) (1). The jury found the defendant guilty, and the court sentenced her to a period of incarceration of eight years, execution suspended after five years, and five years of probation. This appeal followed.

The jury could reasonably have found the following facts. In September, 2003, Ocasio was the mother of a child by Raphael Valle, who had a new girlfriend, the defendant. Ocasio was still friendly, however, with Raphael’s mother, Paula Valle, who was her child’s grandmother. On September 15, 2003, Ocasio went to Marina Village, a housing project in Bridgeport, to visit Paula. While Ocasio was there, Raphael arrived, and she and he argued outside of Paula’s first floor apartment. Raphael then called the defendant on his cellular telephone, and the defendant arrived soon thereafter. Ocasio went into Paula’s apartment, and the defendant knocked loudly on both the back and front doors, calling for Ocasio to come out. Ocasio locked the doors.

After the defendant and Raphael left the area in Raphael’s car, Ocasio and Paula went outside, and Raphael and the defendant then returned. The defendant left Raphael’s vehicle and approached Ocasio, who was sitting on the front steps of Paula’s apartment. The defendant asked Ocasio if she was going to hit her, and then the defendant began to swing her right hand at Ocasio’s face, cutting her with what Ocasio assumed was a razor, although she did not actually see one in the defendant’s hand and did not realize until later that she had been cut. Ocasio kicked the defendant back with her legs, and they began fighting. Ocasio got on top of the defendant and ripped her shirt off, while the defendant continued to cut Ocasio’s face. Meanwhile, several people from the neighborhood had gathered around the fighting women. The defendant then stopped fighting, walked to Raphael’s car and left with Raphael. Paula took Ocasio to a hospital, where she received seventy-four stitches to her face and head. Her wounds were consistent with having been cut with a razor. She suffered pain and disfigurement as a result of these injuries.

I

The defendant first claims that the court improperly excluded her testimony that she offered to support her defense of the justified use of force to defend herself, as provided in General Statutes §§ 53a-16 and 53a-19. More specifically, the defendant claims that the court (1) abused its discretion and (2) deprived her of her constitutional right to present a defense by excluding her testimony that she had been sexually assaulted on a prior occasion, which she offered to show that her fear of death or great bodily harm was reasonable. We disagree.

The following facts and procedural history are relevant to the defendant’s claim. Shortly before the trial began, the defendant filed a request to charge on the issue of self-defense. In addition, prior to the offer in question, the defendant’s attorney responded to an inquiry by the court regarding the relevance of certain evidence regarding a restraining order, arguing that it was relevant “[t]o prove the fact that our claim is self-defense, Your Honor, and my claim is that . . . Ocasio is so obsessed with Raphael Valle and [the defendant] that she was consistently harassing her to the point in the final end of everything, she attacked my client and my client had no . . . choice but to do what she did to her.” Thus, the court was aware, prior to the offer in question, that the defendant’s defense was self-defense.

Prior to the offer in question, the defendant testified as follows. Before the defendant and Raphael became involved with each other, Raphael had fathered a child with Ocasio, who was very jealous of the defendant and her relationship with Raphael. The defendant often went to Paula’s apartment. For months, Ocasio had been telephoning the defendant, who called the police to complain about harassment. Ocasio had even harassed the defendant outside of the defendant’s obstetrician’s office, calling the defendant’s baby a “nigger . . . .” The defendant testified further that she and Raphael went to the court clerk’s office and secured a restraining order against Ocasio. Subsequently, Raphael withdrew the order, but the defendant did not know that and believed that it was still in effect to protect her from Ocasio.

On the day before the fight, the defendant walked by Paula’s apartment on the way to a store. Ocasio was there and yelled obscenities at the defendant, who ignored her and continued to walk to the store. On the day of the fight, the defendant walked to Paula’s apartment. She found Ocasio sitting on the front step and decided to talk with her, to persuade Ocasio to keep the defendant out of any problems she had with Raphael. As she approached Ocasio, she saw that Ocasio had a hammer in her hand and was tossing it from hand to hand in a threatening manner. The defendant asked Ocasio if she was going to hit the defendant with the hammer. Ocasio responded by pushing the defendant backward, kicking her in the chest, which caused her to fall to the cement sidewalk, and jumping on top of her and hitting her repeatedly with her hands while the defendant was flat on her back. Ocasio then put all of her weight on the defendant, with her knee on the defendant’s chest. The defendant tried to get away from Ocasio but could not because Ocasio’s weight was on her. At that point, they had moved across the cement sidewalk away from the front stairs.

The defendant testified further that Ocasio then began to rip the defendant’s clothes off of her as Ocasio continued to hit her. She testified: “I had on a tank top and the whole side of my tank top was ripped like this and there was a little piece that was trying to survive on the top, and it somehow ended up around my neck. She ripped off my bra, which . . . fastened in the back, and the front of my bra was ripped open. She had broken my bra open. She continued to just push her weight on me and her knee was in the center of my chest. I could not breathe. I could not get up. I never hit her. I just— all I tried to do was try to get away from her. Away from her. She just dragged my body across the ground. She just kept hitting me and hitting me, and she was pulling my shirt around my neck. She just kept pulling it and I could not breathe.”

At that point, the defendant offered the testimony at issue. The defendant’s counsel asked: “[N]ow, I want to take you back in time a little bit, a few years ago. Does this incident remind you of anything?” The state objected, and the court sustained the objection, stating: “I don’t see the relevance.” The defendant’s counsel asked to be heard in the absence of the jury, and the jury was excused.

The defendant’s counsel then stated: “Your Honor, the defendant was raped before, and I think it’s very relevant as to what happened. There was a crowd standing there. Her shirt was ripped off. Her bra was wide open. People are cheering them on, cheering [Ocasio] on. I think it’s very relevant.” The state then objected on the grounds that it was irrelevant and that the prejudicial effect outweighed its probative value. The court then asked: “Why is it relevant that she was a victim of a crime?” The defendant’s counsel stated that “[a]bout four years ago . . . [s]omebody threw her down the stairs on a cement floor, dragged her across the cement just like she was being dragged on cement • • • [r]ipped her clothes off in the exact same way.” The court asked: “Except for a specific plea of sympathy to the jury, why is it relevant?” The defendant’s counsel replied: “Because it tends to show what position, what state of mind she was in at the time.”

The state repeated its objection of lack of relevance. The defendant’s counsel stated that “[t]he definition, the very definition of relevancy is something that is able to prove ever so slightly, which is able to tip the scales.” The court replied: “Ever so slightly a material issue in the case.” The defendant’s counsel replied: “Right.” The court then asked: “Why is her state of mind an issue?” The defendant’s counsel replied: “Intent.”

The court then turned to the prosecutor with the comment: “We’re talking about whether or not it’s relevant to the issue of intent.” The prosecutor replied: “On the issue of relevance to intent, the only issue is ongoing sympathy, and it’s not relevant to the intent. She can say that there was an incident in [her] life that happened earlier, but not the fact of it. I mean, the only way this comes in is really for sympathy, and it’s got no other purpose in this case.”

The court then ruled as follows: “The specific conduct of rape, at least at this point in the examination, I don’t believe is relevant except on the issue of sympathy. If there was an unspecified, specific incident that caused her distress at this time, then . . . she may so relate to that. But we’ll keep the incident out, at least at this point in time.”

After the jury returned, the defendant continued to testify as follows. When asked what Ocasio did when the defendant was on the ground and Ocasio was on top of her, the defendant stated: “She just kept hitting me. She kept pulling my shirt around my neck. She kept putting her weight in my chest. I didn’t have any clothes on. She just dragged me across the cement.” When asked whether there were any spectators to the incident, the defendant stated: “There was a lot of people around cheering her on.” When asked how this made her feel, the defendant replied: “When she was on top of me and when she was dragging my body across the ground, I felt like I was being raped by this girl. I felt exactly like I did when I was younger.”

The defendant then testified as follows: “I wasn’t trying to fight her back. I was just trying to get up and I couldn’t. I couldn’t breathe, and everything just started turning dark around me. And she had pushed my face in the ground, and I saw something by us that was shiny and I grabbed it and I closed my eyes and I just swung my arms and I just tried to get the girl off of me. I couldn’t get her off of me. She was on top of me from the beginning when I fell down the stairs. She kicked me off the stairs. She was on top of me from that point to the very end and when she got off of me. I just closed my eyes and swung. I couldn’t get up.”

The defendant testified further that Ocasio then got off of her, and when she got up and ran away, Ocasio threw the hammer at her. She also testified that she did not learn that she had cut Ocasio until, as she was running away, someone in the crowd that had gathered yelled to her that she had cut Ocasio. She then went to a friend’s house to clean up and stayed there because she was very upset.

A

With this factual and procedural background in mind, we turn first to the defendant’s claim that the court abused its discretion in precluding her from testifying about the prior incident of rape. We reject this claim.

It is important to note the precise basis raised by the defendant on appeal for the admission of this testimony. That basis is that the testimony of the prior incident of rape was relevant to her claim of self-defense because it supported her assertion that she had a subjective fear of great bodily harm that was reasonable when viewed from the perspective of a reasonable person in the defendant’s situation. See State v. Prioleau, 235 Conn. 274, 285-87, 664 A.2d 743 (1995) (defense of self-defense requires that jury determine whether defendant had subjective fear of great bodily harm and that such fear was reasonable when viewed from perspective of reasonable person in defendant’s situation). We agree with the state that the court’s ruling did not constitute an abuse of discretion.

It is the obligation of the party offering the evidence to establish its relevance, and “[e]very reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Vines, 71 Conn. App. 359, 366, 801 A.2d 918, cert. denied, 261 Conn. 939, 808 A.2d 1134 (2002).

First, the defendant failed to convey clearly to the court the purpose for which she intended to use the evidence, even after the court indicated that it believed that the defendant’s only purpose was to stir the jury’s sympathy. When first asked by the court for the relevance of the proffered testimony, the defendant’s counsel responded that “the defendant was raped before, and I think it’s very relevant as to what happened.” Counsel then stated that there was a crowd at the scene of the fight cheering Ocasio on and that Ocasio had ripped the defendant’s shirt off and her bra open. Counsel then reiterated: “I think it’s very relevant.” At that point, however, despite the assertion of relevance by her counsel, the relevance of a prior rape of the defendant was not immediately apparent, and the court justifiably asked counsel: “Why is it relevant that she was a victim of a crime?”

Counsel then responded by stating that four years prior to this incident, the defendant had been dragged across cement, and her clothes had been ripped off “in the exact same way” and that the prior incident showed “what state of mind she was in at the time” of the present incident. At that point, arguably the court could have made the connection that the defendant urges on appeal, namely, that the state of mind to which her counsel was referring was the subjective fear of great bodily harm in support of her claim of self-defense; this was not, however, the only connection or an inevitable connection for the court to make because the general reference to the defendant’s “state of mind” could also have referred to the defendant’s state of mind regarding the charge of assault in the first degree, namely, the intent to cause serious physical injury to another person. See footnote 1. Thus, the defendant’s response was ambiguous, and the court was justified in asking: “Why is her state of mind an issue?”

Defense counsel’s response was: “Intent.” This response was also ambiguous, however. It could have signaled to the court, as the defendant suggests, her intent to defend herself and, therefore, by implication, her subjective fear of great bodily harm. It could also have been justifiably understood, however, to refer to the specific intent necessary to the charge of assault in the first degree. In fact, the specificity of this response, if anything, led the court in the latter direction. The defendant does not claim on appeal, moreover, that the prior incident was relevant to the issue of the specific intent necessary for the charge of assault in the first degree.

Furthermore, at no time during the proffer of the testimony at issue did the defendant’s counsel refer specifically to the issue of self-defense. At no time did she alert the court to the connection between the proffered testimony and her subjective and reasonable fear of great bodily harm as a basis for her claim of self-defense.

Thus, the defendant did not sufficiently alert the court to the claim that she urges on appeal. Put another way, although arguably the court could have inferred that she was offering the testimony on the issue of her state of mind for her defense of self-defense, it was reasonable for the court to understand the purpose of the proffer in accord with her specific second response, namely, on the issue of the specific intent necessary for the charge of assault in the first degree.

Indeed, the defendant’s testimony immediately subsequent to the proffer confirmed the understanding that the evidence was being offered on the issue of the state of mind necessary for the charge of assault in the first degree. The gist of that testimony was that, as the defendant lay on the ground underneath Ocasio, perceiving that things were going “dark,” and unable to breathe, she simply grabbed something shiny at hand and closed her eyes and swung her arms at Ocasio in order to get Ocasio off of her and that she did not even realize that she had cut Ocasio until she started to run away. This testimony, although consistent with her defense of self-defense, was also consistent with a claim that, although she had cut Ocasio, she did not have the requisite specific intent for the charge of assault in the first degree.

Second, the defendant did not avail herself of the opportunity to present evidence regarding the prior incident to the extent permitted by the court’s ruling. As noted, during her offer of proof, the defendant testified about a number of events that occurred during the rape that were similar to the facts in the present assault, as alleged by the defendant. For example, the defendant testified that on both occasions, she was dragged across concrete and that her clothes were ripped off “in the exact same way,” in front of a cheering crowd. After hearing this testimony, as well as arguments of counsel, the court ruled: “The specific conduct of rape ... I don’t believe is relevant except on the issue of sympathy. If there was an unspecified, specific incident that caused her distress at this time, then . . . she may so relate to that. But we’ll keep the incident out . . . .” (Emphasis added.) The court was clearly concerned that the defendant wanted to present only the fact of the prior rape to stir the jury’s emotions. Its ruling addressed that concern by allowing the defendant to testify about “an unspecified, specific incident that caused her distress” during the prior incident, but not identify “the specific conduct of rape . . . .” In other words, the ruling allowed the defendant to testify that, for example, on a prior occasion she had been dragged across concrete and had her clothes ripped off while an onlooking crowd cheered. When the jury returned, however, rather than provide any testimony regarding these specific incidents, the defendant, instead, offered only the evidence that the court specifically ruled she could not, i.e., that she had been previously raped. The defendant testified: “I felt like I was being raped by this girl. I felt exactly like I did when I was younger.” The state did not object to this testimony, and after the defendant testified to the occurrence of the rape, she moved on to other subjects.

Finally, the court’s ruling that the defendant could not identify the prior incident as rape was provisional. The court stated: “The specific conduct of rape, at least at this point in the examination, I don’t believe is relevant .... [W]e’ll keep the incident out, at least at this point in time." (Emphasis added.) Therefore, the court allowed the defendant to offer the testimony that the prior incident was rape at a later point when her defense was more fully developed. This the defendant did not do.

Thus, the defendant’s responses to the court’s inquiries were insufficient to alert the court to the basis of her claim, namely, that the “state of mind” and “intent” to which she was referring were her subjective fear of great bodily harm resulting from the prior incident, as opposed to the state of mind necessary for the charge of assault in the first degree; the defendant was given the opportunity to testify about particular incidents that occurred during the preceding incident and draw similarities to her encounter with Ocasio but did not; she was allowed the opportunity to raise the issue again after she had more fully developed her defense but did not; and, despite the court’s ruling, she actually did testify that she had been raped and that she felt like she had on that prior occasion. Seen in that light, and in light of the defendant’s obligation to establish the relevance of the evidence, we conclude that the court did not abuse its broad discretion in ruling that the evidence of the prior incident was irrelevant.

B

We turn next, therefore, to the defendant’s argument that even if she did not make her claim sufficiently clear in the court, the court’s ruling deprived her of her constitutional right to present a defense and that she may prevail on this argument pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We reject this argument because we conclude that the defendant has not established that the court’s ruling deprived her of her constitutional right to present a defense. Thus, she has failed to satisfy the third prong of the Golding test.

“When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded. ... At the same time, the right to present testimony that is relevant and material may not be denied arbitrarily.” (Citation omitted; internal quotation marks omitted.) State v. Griffin, 98 Conn. App. 821, 826-27, 912 A.2d 520 (2006), cert. denied, 281 Conn. 915, 917 A.2d 999 (2007).

We agree with the defendant that the evidence of the prior incident was relevant to her defense of self-defense because, had she made her claim of relevance more clearly to the trial court, the evidence could have been admissible and could have supported the element of her defense of self-defense that she had a subjective fear of great bodily harm that was reasonable. We disagree, however, that the exclusion of this evidence deprived her of her right to present her defense.

The defendant testified in detail regarding her claim of self-defense. She testified about the history of animosity between her and Ocasio as a basis for a motive in Ocasio to have been the initial aggressor. In addition, in connection with her specific self-defense testimony regarding the fight, she testified as to facts supporting a subjective and reasonable fear of great bodily harm at the hands of Ocasio. She testified that Ocasio started the fight by attacking her, kicking her to the ground and jumping on top of her; that all of Ocasio’s weight was on her with Ocasio’s knee on her chest; that she was unable to get away from Ocasio, who dragged her across the cement and ripped her clothes off; that she could not breathe; that everything “started turning dark around [them]”; and that she grabbed something shiny and swung at Ocasio in an attempt to get Ocasio off of her. In addition, she testified that as Ocasio was dragging her across the cement surface, she felt “like I was being raped by this girl. I felt exactly like I did when I was younger.” This testimony, taken as a whole, presented to the jury evidence from which the defendant could argue, and the jury could find, that she had a subjective fear of great bodily harm that was reasonable. Furthermore, we note again that the defendant did not avail herself of the opportunity to compare the specific things that occurred during the prior incident with specific things that occurred during the defendant’s confrontation with Ocasio. Thus, although the excluded evidence would have further supported the defendant’s defense of self-defense in that regard, in light of the fact that she did not avail herself of the opportunity to link the specifics of the prior incident to the incident in question, that she did not attempt to raise the issue of a prior rape in accord with the court’s provisional ruling, and that she was able to testify as to the other underlying facts supporting her claim of a subjective fear of great bodily harm, we cannot conclude that the proffered evidence was so critical to her defense of self-defense that its exclusion deprived her of her constitutional right to present a defense.

II

The defendant next claims that “in combination, the defendant’s federal and state [constitutional] rights to counsel of choice and her rights as an indigent to have counsel appointed entitled her to remove incapable counsel and to have substitute counsel appointed.” More particularly, she “seeks review of the trial court’s [postverdict] motion to remove retained counsel and have the public defender appointed.” We conclude that it is not appropriate to consider this claim on this appeal and that it must be presented, instead, by way of a petition for habeas corpus.

The following procedural history is relevant to the defendant’s claim. At her initial arraignment in part B of the Superior Court and after the case was transferred to part A, the defendant was represented by the public defender. Subsequently, however, two private counsel entered appearances on her behalf and jointly represented her at trial.

The jury returned its verdict on March 14,2005. Thereafter, the defendant filed a motion for a judgment of acquittal and a new trial, which the court denied on April 14, 2005, and the court set a sentencing date of June 24, 2005. Meanwhile, however, on March 17, 2005, another private counsel filed an appearance for the defendant, but that counsel subsequently withdrew apparently because he also represented Raphael in a companion case.

On May 10, 2005, the trial counsel for the defendant moved to withdraw “because . . . the [defendant has terminated [c]ounsel.” The motion also noted the sentencing date of June 24, 2005, and stated that “it is unclear that the [defendant is represented at this time.” The court heard this motion on May 20, 2005. At that hearing, the defendant’s counsel told the court that the defendant had decided to terminate her employment as counsel, that they “still communicate, but I believe she wants a public defender.”

The court then addressed the defendant, who told the court that “I feel that I wasn’t represented correctly. I feel that there was a lot that could have been done differently. Miss [Tina Sypek D’Amato, the defendant’s trial counsel] could not get a lot of my evidence in. I also feel that I think it would be better for me to continue with a public defender. I think that things might happen differently if I were to have a public defender from the beginning. I don’t know what else to say; that’s basically it. There [were] a lot of comments that were made that I didn’t like.” The defendant then stated that her counsel had not subpoenaed certain witnesses that she had wanted to testify and complained about a comment that her counsel had made regarding whether to request an instruction from the court concerning lesser included offenses.

After further responses by her counsel and the state, the defendant addressed the court again. She reiterated her complaint that her counsel had not subpoenaed a certain witness and had not obtained a certain document until after the trial was over. She stated that her counsel “did not represent me at all in the way that an attorney should represent a client.”

The court then denied the motion to withdraw and continued the case for sentencing on June 24, 2005. In doing so, the court stated that the matters brought up by the defendant “really relate to postjudgment matters,” that they did not present an issue of conflict of interest, that if another lawyer is “ready to go forward” on the sentencing date, that lawyer could represent the defendant, and that, given the fact that there was no such other counsel “in the case at this time . . . your trial lawyer will be here with you on June 24 for sentencing .. . .” Sentencing occurred on June 24, 2005, with D’Amato representing the defendant.

On appeal, the defendant mounts an elaborate challenge to the court’s ruling on May 20, 2005. As a legal matter, the defendant claims that under both the federal constitution and independently under the state constitution, she was denied her “counsel of choice and her rights as an indigent to have counsel appointed . . . to remove incapable counsel, and to have substitute counsel appointed.” As a factual basis for this legal claim, the defendant presents a long list of alleged inadequacies of trial counsel, some of which were, and many of which were not, presented to the trial court at the May 20, 2005 hearing. It is not necessary to detail here that list of claimed inadequacies.

It is clear that the factual basis of the defendant’s legal claim is the assertion that her counsel did not represent her in a constitutionally effective manner. Although the defendant has cast her legal claim in terms of a denial of her constitutional right to counsel of her choice, that claim rests entirely on her factual allegation that the counsel whom she did choose was ineffective, in a constitutional sense, to represent her.

Therefore, the reasoning of our Supreme Court in State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), applies directly to the present case. In Leecan, the court held that claims of ineffective assistance of trial counsel should be presented by way of a habeas corpus petition because there can be an evidentiary hearing disclosing whether considerations of trial strategy were involved, and the counsel whose conduct is questioned will have an opportunity to testify. Id. In addition, such a claim may also require expert testimony regarding the quality of trial counsel’s conduct. See, e.g., Johnson v. Commissioner of Correction, 34 Conn. App. 153, 158, 640 A.2d 1007, cert. denied, 229 Conn. 919, 644 A.2d 914 (1994). A limited exception to this procedural requirement that claims of ineffective assistance of counsel must be brought by way of habeas corpus exists when the defendant challenges the action of the trial court on the basis of claims of a conflict of interest by counsel, rather than the conduct of trial counsel, and when the issue presented is a question of law that may be decided on the basis of the existing record. State v. Crespo, 246 Conn. 665, 687-89, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

In the present case, the defendant’s factual challenges to the conduct of her trial counsel will require a full evidentiary hearing. A petition for habeas corpus is the appropriate forum for such a hearing. We decline, therefore, to consider this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       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 . . . by means of ... a dangerous instrument . . . .”

       Ocasio testified that when the defendant swung at her, she felt stings on her face and that it was not until after the fight was over that she realized that she was bleeding and had been cut.

       General Statutes § 53a-16 provides: “In any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense."
      General Statutes § 53a-19 (a) provides in relevant part: “[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”
      There is no dispute that by swinging at Ocasio with a razor, the defendant used deadly physical force. See General Statutes § 53a-3 (4) and (5).

       The state did not object to this testimony.

       Pursuant to Golding-. “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the s1 ate failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Blango, 103 Conn. App. 100, 117, 927 A.2d 371, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007).

       The defendant does no! present an independent analysis of the constitutional right to present a defense under the state constitution. We therefore consider her claim only under the federal constitution. See State v. Canales, 281 Conn. 572, 592 n.12, 916 A.2d 767 (2007).

       The defendant, argues that the exclusion of the evidence was critical to her defense because it would have explained her feeling of being “raped” by another female. This argument, however, overlooks the chronology of her testimony. After the court’s ruling, the defendant did testify, without objection, that she felt like she was being raped, similar to when she was younger. Thus, it was the defendant’s subsequent testimony that arguably created the need for an explanation that was lacking because of the court’s prior ruling. The defendant, however, did not at that point bring such a need to the court’s attention and ask it to reconsider its provisional prior ruling in light of her subsequent testimony. Furthermore, the defendant did not take advantage of the court’s ruling permitting' her to testify about the prior incident without mentioning it as a rape. In light of the defendant’s failure to do so, we reject her claim that the court’s prior ruling deprived her of her constitutional right to present a defense on the basis of her subsequent testimony.

       The two counsel were Tina Sypek D’Amato and Nicholas D’Amato.

         Although the motion was filed only by attorney Tina Sypek D’Amato, the trial court, as well as the state and the defendant both in the trial court and on appeal, have treated it as having been filed by both counsel. Accordingly, we do the same but refer herein to Tina Sypek D’Amato as the defendant’s counsel because she is the counsel who appeared in court on the motion to withdraw.

       Although on May 20, 2005, the defendant was still represented by two private counsel and a third private counsel had entered an appearance on her behalf, who had apparently withdrawn, the defendant asserts that “[i]n circumstances that included the defendant’s historical indigency and [the court’s] knowledge of retained counsel’s incapability, the court should have conducted an adequate inquiry [into the defendant’s indigency] and then appointed new counsel.”
      There are two short answers to this argument. First, there was nothing in the record, as noted, to suggest that the defendant was then indigent, and she made no such claim to the trial court. Second, the basis for her claim for new counsel rested on her claim of inadequacy of her then current counsel, a claim that must be presented by way of habeas corpus.

       Although not discussed by either party, we axe aware that, our determination that the claim is unreviewable may appear to be in tension with our determination in State v. Wright, 76 Conn. App. 635, 638-40, 820 A.2d 1111, cert. denied, 265 Conn. 902, 829 A.2d 421 (2003). That case is distinguishable, however.
      In Wright, the defendant had moved, during trial, for a mistrial on the ground of alleged inadequate performance by counsel. The court performed an ineffective assistance of counsel analysis; see Strickland v. Washington,
        466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); concluded that counsel’s performance in the court was not constitutionally inadequate, denied the motion for a mistrial, and instead granted a continuance and allowed the defendant to retain new counsel. The defendant was subsequently convicted and, on appeal, argued that the court had improperly denied her motion for a mistrial. This court considered the appeal because, we noted, the “precise question” was not “whether the performance of counsel was deficient in some respect . . . but whether the court abused its discretion in denying the motion for a mistrial . . . .” State v. Wright, supra, 76 Conn. App. 640. Further, we noted that the factual predicate of the motion related to counsel’s performance before the court and on the record, and that the court did not have to go beyond the record to make its determination.
      In the present case, in contrast, although the defendant asserts that she is attacking only the determination of the court in denying her counsel’s motion to withdraw, the factual allegations that the defendant relied on in support of that motion in the trial court consisted of as much off the record conduct as on the record conduct, and in her argument on appeal, she adds to the off the record incidents supporting her argument, thus disclosing the true nature of her complaint, i.e., that she was denied effective assistance of counsel pursuant to the sixth amendment, a claim that is more appropriate for review before a habeas court.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PATRICK D. SMITH
    (AC 28188)
    Bishop, McLachlan and Pellegrino, Js.

      Argued September 5, 2007
    officially released January 15, 2008

      Auden Grogins, special public defender, for the appellant (defendant).

      Timothy F. Costello, special deputy assistant state’s attorney, with whom, on the brief, were John A. Con-nelly, state’s attorney, and Robin Lipsky, former senior assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Patrick D. Smith, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). After further findings by the jury on a second part of the criminal information and a subsequent hearing by the court, the trial court enhanced the defendant’s sentence for being a persistent dangerous felony offender in violation of General Statutes § 53a-40. On appeal, the defendant claims that (1) the court improperly denied his motion to suppress evidence seized as the result of an illegal warrantless search, (2) the one-on-one identification procedure used by the police violated his due process rights, (3) the court improperly permitted the state to introduce a witness’ prior inconsistent written statement as substantive evidence and (4) the imposition of the enhanced sentence for being a persistent dangerous felony offender was contrary to our Supreme Court’s recent holding in State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007). We reverse the judgment of conviction only as to the sentence imposed and affirm the judgment of the trial court in all other respects.

The jury reasonably could have found the following facts. Sometime around midnight on January 29, 2002, Andrew Cormier, a sergeant with the United States Army working as a recruiter in the Waterbury area, stopped to refuel his government van at a gasoline station in Waterbury. With him was his girlfriend, Catherine O’Brien, who went into the station’s convenience store to purchase sodas. Cormier had finished filling the gasoline tank and was in the driver’s seat when O’Brien returned to the vehicle. After she entered the passenger side of the van, but before she closed the door, the defendant appeared at the door and grabbed her with his right arm. He held a knife to her throat. Cormier briefly struggled with the defendant in an attempt to force the knife away from O’Brien, but the defendant had more leverage and Cormier ceased his resistance.

The defendant indicated that he needed a ride and assumed the front passenger seat, allowing O’Brien to move to the back bench seat behind Cormier. From the time the defendant entered the van, he never relinquished either of the two knives that he brandished throughout the ordeal. Most of the time, he pointed one at or held it against O’Brien. At some point, the defendant began making demands for money. Cormier had no money in his wallet, but the defendant took his automated teller machine (ATM) card and driver’s license. O’Brien indicated that she had left her wallet and checkbook in her own vehicle parked at Cormier’s office. They then proceeded to Cormier’s office and drove into the parking lot. The defendant instructed Cormier to retrieve O’Brien’s belongings from her vehicle and warned Cormier that he would hurt O’Brien if he tried “anything funny.” O’Brien had no money in her wallet, but the defendant took her checkbook, credit card and driver’s license.

The defendant became agitated. He told Cormier that he needed $300 to pay his drug dealer and that Cormier had better get the money for him. Cormier said that he could telephone his supervisor, Donald Jemigan, but that Jemigan certainly would become suspicious at a request for such a large sum of cash at that early hour in the morning. The defendant directed him to ask for $100. Cormier called Jemigan on O’Brien’s cellular telephone and made that request, with the defendant listening to the conversation while holding the knife to Cormier’s throat. Jemigan stated that he had only $60, and the defendant nodded his head in agreement. Cor-mier drove them to Jemigan’s apartment and, after parking the van, exited the vehicle at the defendant’s direction and proceeded to retrieve the money. The defendant again threatened O’Brien and held one of the knives to her wrists until Cormier returned to the van.

After putting the $60 in his pocket, the defendant directed Cormier to drive to the north end of Waterbury. At the intersection of Johnson and Sperry Streets, the defendant exited the van. Before he left, he also took O’Brien’s cellular telephone. The entire incident, from the time the defendant entered the van until he exited and walked away, lasted approximately one hour and fifteen minutes to one hour and thirty minutes.

Cormier and O’Brien remained at the intersection for a few minutes to collect themselves and then drove to the Waterbury police station. At the station, they gave a physical description of the perpetrator. Cormier indicated that he had been wearing a black, knit hat with an emblem on it, a scarf around the face, a dark jacket, a red T-shirt and gloves. According to Cormier, the perpetrator was a middle-aged man in his forties or fifties, had white hair and very blue eyes. Although the hat was pulled down over the perpetrator’s forehead, Cormier could see hair sticking out from beneath the hat and also noticed his large, unkempt eyebrows. O’Brien concurred with Coimier’s description.

A radio dispatch relayed the information provided by Cormier and O’Brien, and shortly thereafter a patrolman noticed the defendant walking in the vicinity of Willow and Johnson Streets. Approximately forty-five minutes to an hour after the defendant had exited the van, Cor-mier and O’Brien were driven to the intersection where the defendant had been detained by the patrolman. From the backseat of the police vehicle, Cormier and O’Brien viewed the defendant, who then was standing in the road in the presence of several police officers. After Cormier and O’Brien identified the defendant as the peipetrator, he was arrested and taken to the police station.

At the time the defendant was detained, he indicated that he lived in an apartment at 80 Willow Street. After the defendant was arrested, Waterbury police officers went to the address he provided. When they arrived, Sergeant Timothy Wright knocked on the door to the apartment. Mark Casella, disheveled but dressed in street clothes, answered the door and indicated that the defendant lived at that apartment. Casella stated that he had been staying there, as a guest, for approximately three to four weeks. He allowed the officers into the apartment, where they saw two knives on top of the coffee table in the main room or living room. Wright then radioed another officer and asked her to dial the number of the cellular telephone taken from O’Brien. The officer did so, and the sound of a ringing phone was heard in the defendant’s apartment, coming from the area of a mattress lying on the floor in the living room. Casella indicated that he had been sleeping on that mattress when the defendant, who had been out for the evening, returned to the apartment at approximately 1 a.m. and put something under the mattress. Wright then turned over the investigation to the detective unit in order that an application for a search warrant could be prepared.

Lucinda Lopes, a crime laboratory supervisor employed by the Waterbury police department, assisted in the execution of the search warrant at the defendant’s apartment. In addition to the cellular telephone and the two knives located in the apartment, Lopes seized a black coat, black scarf and black gloves identified at trial as having been worn by the perpetrator. From a wastebasket located in the living room, Lopes seized a checkbook, driver’s license and credit card belonging to O’Brien and a driver’s license and an ATM card belonging to Cormier.

The jury returned its verdict on May 11, 2004, finding the defendant guilty of the crimes of robbery in the first degree and kidnapping in the first degree. At that point, additional evidence was presented to the jury on the second part of the information, charging the defendant with being a persistent dangerous felony offender in violation of § 53a-40. On May 12, 2004, the juiy returned its verdict finding the defendant guilty of that charge. The court accepted the verdicts and rendered judgment accordingly. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress the evidence seized pursuant to the search warrant. Specifically, the defendant argues that the issuance of that warrant was based on information gathered by the police by virtue of their illegal warrantless entry and search of his apartment that was made after his arrest and without his consent. The defendant claims that (1) the Waterbury police did not obtain consent to enter or to search his apartment, (2) Casella did not have the authority to consent to the entry or search of the apartment, (3) if Casella had the authority to consent, that consent was not given voluntarily and (4) any items seized pursuant to the search warrant issued on the basis of an illegal entry and search of his apartment should have been suppressed as the “fruits of the poisonous tree.”

The defendant filed his pretrial motion to suppress on March 30, 2004. After hearing testimony over the course of three days and oral argument by counsel, and after reviewing the briefs submitted by the parties, the court issued an oral decision on April 30, 2004, granting in part and denying in part the motion. That decision was followed by a written memorandum of decision filed on July 22, 2004.

At the suppression hearing, Wright testified that in the early morning hours of January 29, 2002, he and another officer went to the address given by the defendant as his place of residence. The defendant already had been transported to the Waterbury police department. No one asked for the defendant’s consent to enter or to search his apartment at that time.

Wright knocked on the door to the apartment several times, and, after a short delay, Casella opened the door. Casella’s hair and clothing were disheveled, but he was dressed in street clothes. After Wright identified himself and the purpose for the visit, Casella invited him into the apartment with words to the effect of “[c]ome on in.” After Wright entered the apartment, he asked Casella if the defendant lived in that apartment, and Casella stated that he did. Wright asked him if he also lived there, and Casella answered that he had been staying there for three or four weeks. Wright spoke with Casella for approximately twenty-five minutes inside the defendant’s apartment, which was very small and had one main room. Casella indicated that the defendant had been out that evening, but had returned at around 1 a.m. and put something under a mattress.

While at the apartment, Wright had a conversation with the investigating officer over the police radio and was informed that a cellular telephone had been taken from one of the victims of the robbery. The investigating officer then dialed the number of that cellular telephone, and ringing was heard in the apartment coming from the direction of a mattress on the floor. Wright asked Casella what was under the mattress, and Casella lifted its comer and displayed the cellular telephone. While in the apartment, Wright also saw two knives on the table in the living room. Other law enforcement personnel arrived at the apartment, and, sometime after that, Casella was taken to the Waterbury police station to give a statement.

Kenneth Borer, a patrolman with the Waterbury police department, also testified at the suppression hearing and indicated that he had been at the defendant’s apartment with Wright. Borer recalled that Casella stated that he lived in the defendant’s apartment. When he entered the apartment, Borer noticed two knives on a table in the living room. At one point, Casella specifically pointed out a wastebasket in that room and told Borer that the defendant had made several trips to it. Borer looked inside but saw nothing. Casella insisted that the defendant had gone into the wastebasket, prompting Borer to look once again. Borer then saw some items between the side of the plastic liner and the side of the wastebasket. It was from that wastebasket that Lopes, in executing the search warrant, retrieved O’Brien’s checkbook, driver’s license and credit card, and Cormier’s ATM card and driver’s license.

Casella also testified at the suppression hearing. His recollection of the events on January 29, 2002, differed greatly from that of the police officers. Casella indicated that he was awakened by an officer kicking the mattress on which he was sleeping. The police told him to get up, and Casella noticed that the door to the apartment had been forced open and that officers were going through the apartment. He testified that he heard no ringing cellular telephone and that he did not recall telling the police that the defendant put something under his mattress. One of the officers told him that his friend, the defendant, was not coming back and that Casella had to accompany them to the police station. Casella admitted that he gave a written statement at the station, which he signed, but stated that he did so because he was told that he could not leave the station until he gave one. Casella also indicated that he had at least fifteen felony convictions and had been incarcerated for all but twenty months between 1985 and his testimony in 2004.

In rebuttal, Lopes testified that after she had completed the search of the defendant’s apartment and returned to the station, she noticed that she had left an original page of a form that she needed at the apartment. She returned to the defendant’s apartment. The door was locked, however, and she could not enter because she had no key. The landlord was contacted and unlocked the door. At that time, there was no damage to the door or to the locks on the door on the outside or on the inside of the defendant’s apartment.

In its memorandum of decision, the court found that Casella consented to the entry of the police officers into the defendant’s apartment, that Casella had authority to give that consent and that the consent was given voluntarily. The court further found that the officers were lawfully within the apartment and that the knives were in “plain view.” The ringing of the cellular telephone was not suppressible because the officers were lawfully in a position to hear it, which the court compared to objects being within “plain view.” The items in the wastebasket were discovered as the result of Casella’s insistent actions, calling Borer’s attention to the wastebasket and stating that the defendant made repeated trips to that wastebasket. The court found that Casella, by those actions, freely consented to Borer’s inspection of the wastebasket. In making those findings, the court specifically stated that it found the testimony of the officers to be credible and that it did not find Casella’s testimony credible because of his “inconsistent testimony, felony convictions and convoluted presentation of facts.” Accordingly, except for the actual cellular telephone, which the court suppressed, the court denied the defendant’s motion to suppress the evidence seized from the defendant’s apartment. We agree with the court’s ruling.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... Under the clearly erroneous standard, [w]e cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Ortiz, 101 Conn. App. 411, 416-17, 922 A.2d 244, cert. denied, 283 Conn. 911, 928 A.2d 538 (2007).

The defendant claims that the first warrantless entry into and search of his apartment was illegal. “Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality.” (Internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997), quoting Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). “The Fourth Amendment [to the United States constitution] does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. . . . Searches and seizures inside a home without a warrant are presumptively unreasonable. . . . However, [i]t is . . . well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. . . . Therefore, a warrantless search or entry into a house is not unreasonable . . . under the fourth amendment to the United States constitution . . . when a person with authority to do so has freely consented.” (Citations omitted; internal quotation marks omitted.) State v. McColl, 74 Conn. App. 545, 559, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003). “The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so.” (Internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 69, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007).

A

We first address the defendant’s claim that the Waterbury police did not obtain consent to enter or to search the defendant’s apartment. It is undisputed that the defendant was not asked for his consent to enter or to search the apartment at 80 Willow Street at the time he was arrested or transported to the Waterbury police station. The court found, however, that Casella consented to the entry of the police when they appeared at the apartment door in the early morning hours of January 29, 2002.

The defendant argues that Casella’s testimony established that the police were already inside the apartment when they awakened Casella by kicking the mattress on the floor. He further argues that even if Casella’s testimony is not believed, the testimony of the officers established only that the police followed Casella into the apartment and that he did not protest their entry. “[Cjonsent may not be established by mere acquiescence to police authority.” (Internal quotation marks omitted.) State v. Janulawicz, 95 Conn. App. 569, 575, 897 A.2d 689 (2006).

The court specifically stated in its decision that it did not find Casella’s testimony to be credible. It also stated that it did find credible the testimony of Wright and the other police officers. Wright testified at the suppression hearing that after he knocked on the apartment door and Casella answered, Wright identified himself and the purpose for his presence. At that point, Wright indicated that Casella invited them in with words to the effect of “[c]ome on in.” “[I]t is axiomatic that [w]here there is conflicting testimony, it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of witnesses.” (Internal quotation marks omitted.) State v. Janulawicz, supra, 95 Conn. App. 576. It was within the province of the court, as the fact finder in the motion to suppress hearing, to find the officers’ testimony more credible than that of Casella.

The record, therefore, supports the court’s determination that Casella gave consent for the officers to enter the apartment, and that finding was not clearly erroneous.

B

The defendant next claims that Casella did not have the authority to consent to the entry into or the search of the defendant’s apartment. In support of that claim, he argues that Casella was a temporary guest of the defendant and that he did not pay any rent. He further argues that Casella testified that he told the police that the apartment was the defendant’s apartment and that he did not invite the officers into the apartment.

“[W]hen the prosecution seeks to justify a war-rantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. . . . Common authority is . . . not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. ... In addition, a warrantless search is valid when it is based on the consent of a third party who the police, at the time of the search, reasonably believe possesses common authority over the premises but who in fact does not have such authority.” (Citation omitted; internal quotation marks omitted.) State v. Vazquez, 87 Conn. App. 792, 803-804, 867 A.2d 15, cert. denied, 273 Conn. 934, 875 A.2d 544 (2005).

“[Wjhether the individual providing consent possessed the requisite authority ... is a question of fact to be determined from the totality of all the circumstances. ... As a question of fact, it is normally to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence. . . . We may reverse [the trial court’s factual] findings on appeal only if they are clearly erroneous.” (Internal quotation marks omitted.) State v. Azukas, 278 Conn. 267, 275, 897 A.2d 554 (2006).

In reaching its determination that Casella had the authority to consent to the warrantless entry into the defendant’s apartment, the court noted that the police informed Casella that they were investigating a robbery in which the defendant may have been involved, that Casella invited them into the apartment, that Casella indicated that he had been staying at that apartment for three to four weeks, that Casella informed them that several visitors had come and gone while he was staying there and that the apartment had one large, main living area in which Casella slept on a mattress located on the floor. From those facts, the court found that it was reasonable for the Waterbury police to infer that Casella had common authority over that apartment. We conclude that the court’s finding that Casella possessed the requisite authority to allow the police into the defendant’s apartment was not clearly erroneous.

C

The defendant next claims that if Casella gave consent to enter the apartment, that consent was not given freely and voluntarily. Specifically, the defendant argues that the state did not prove and the record did not establish that Casella gave his voluntary consent to enter or to search the apartment.

In support of his claim, the defendant references testimony that the officers followed Casella into the apartment, testimony of Casella that he had consumed alcohol and drugs that evening, testimony of Casella that he never gave the officers his consent to enter or to search the apartment and testimony of Casella that the officers forced their way into the apartment. Again, the defendant challenges the factual findings of the court. The court specifically found that Casella was not credible. The court found credible Wright’s testimony that Casella invited them into the defendant’s apartment. Borer, one of the officers with Wright, testified at the suppression hearing that Casella was open, talkative and very willing to tell Wright everything he knew. We will not retry the facts or pass on the credibility of witnesses.

D

The defendant’s final argument with respect to his claim that the court improperly denied his motion to suppress is that the search warrant, pursuant to which evidence from his apartment was seized, was based on the initial illegal warrantless entry and search. Any items seized pursuant to that warrant, he claims, must therefore be suppressed as the fruit of prior police illegality. This argument is cumulative of his previous claims and fails for the reasons already discussed.

Casella gave the officers his voluntary consent to enter the defendant’s apartment. He had the requisite authority to do so. When the officers were inside the living room, they saw clothing and two knives in “plain view.” “[T]he police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized.” (Emphasis added; internal quotation marks omitted.) State v. Thomas, 98 Conn. App. 542, 552, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007). They also were lawfully in a location in which they could hear the ringing of O’Brien’s cellular telephone.

With respect to the items in the wastebasket, Casella directed the attention of one of the officers to that wastebasket. As the court found, Casella’s insistent actions in pointing out the wastebasket and his statement that the defendant made several trips to it, amounted to conduct that indicated his consent was freely given. Casella, “through words, acts and conduct revealed that his consent was freely given.” State v. McColl, supra, 74 Conn. App. 560. Furthermore, as noted by the court, Casella was not a neophyte in dealing with the criminal justice system. He had extensive experience with the police and, here, aided and cooperated with them. See State v. Boyd, 57 Conn. App. 176, 183, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000).

For all of those reasons, the court’s findings that Casella vohmtarily consented to the entry of the defendant’s apartment and the search of the wastebasket were not clearly erroneous. Accordingly, the evidence seized pursuant to the search warrant, issued as the result of the officers’ observations during their war-rantless entry and search of the wastebasket, was not the “fruit of the poisonous tree.” See Wong Sun v. United States, supra, 371 U.S. 485.

II

The defendant next claims that the one-on-one procedure used by the Waterbury police to obtain his identification by Cormier and O’Brien violated his right to due process under the federal and state constitutions. Specifically, the defendant argues that the identification procedure was unnecessarily suggestive and that the resulting identification was unreliable.

The defendant concedes that his claim was not preserved properly at trial. He did not challenge the out-of-court and subsequent in-court identifications at trial. He now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). 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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40.

We will review the defendant’s claim because he has satisfied the first two prongs of Golding. The record in this case, although scant due to the fact that no suppression hearing was held on the pretrial identification, is adequate for us to review. The alleged violation is of constitutional magnitude. “[A] claim that an unnecessarily suggestive pretrial identification procedure tainted a subsequent identification made at trial is one of constitutional magnitude.” State v. Tatum, 219 Conn. 721, 726, 595 A.2d 322 (1991). The defendant nevertheless cannot prevail on his claim because he has failed to satisfy the third prong of Golding.

“In determining whether identification procedures violate a defendant’s due process rights, [t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 246, 710 A.2d 732 (1998). “[Reliability is the linchpin in determining the admissibility of identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is rehable, we must weigh the corrupting effect of the suggestive procedure in light of certain factors such as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [that person’s] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” (Citation omitted; internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 687-88, 631 A.2d 271 (1993).

“[Generally a one-to-one confrontation between a victim and the suspect presented to him for identification is inherently and significantly suggestive because it conveys the message to the victim that the police believe the suspect is guilty.” (Internal quotation marks omitted.) State v. Tatum, supra, 219 Conn. 727. “An in court identification must be excluded, as violative of due process, only if it is the product of an unconstitutional pretrial identification procedure.” Id., 726-27. Here, the defendant claims that the one-on-one pretrial identification procedure was unconstitutional and tainted the subsequent in-court identification of him by Cormier and O’Brien. We disagree.

A review of the record indicates that the defendant was detained at the intersection of Willow and Johnson Streets. Cormier and O’Brien, who still were at the police station at the time of his detention, were told that a person matching the description of the perpetrator had been found, and they were asked to accompany two officers in a police sport-utility vehicle to make an identification. Sitting in the backseat of the vehicle, which had tinted windows, they were transported to that location. The vehicle in which they were seated then parked in a direction facing opposite two other parked police cruisers. The defendant was led from one of the cruisers and stood in the road in front of the two cruisers, with several police officers standing around him. The defendant was approximately twenty-five to thirty feet away from Cormier and O’Brien. Very bright lights on top of the sport-utility vehicle, known as take down lights, were directed at the defendant and illuminated him. Cormier and O’Brien could see the defendant clearly, and they both positively identified him as the person who had kidnapped and robbed them that evening.

Even if the one-on-one pretrial identification procedure used by the police was unnecessarily suggestive, we conclude that the identification in this case was nonetheless rehable under the totality of the circumstances. See State v. Wooten, supra, 227 Conn. 687-88. Cormier and O’Brien were in the presence of the perpetrator for more than one hour. During that time, he was very close to them, holding a knife to their throats or wrists while inside the government van. Cormier testified that in the course of his military training, he had been instructed in identification techniques during stressful situations. Further, the description of the perpetrator given by Cormier and O’Brien to the police prior to the challenged identification procedure was detailed and accurate. The description of the perpetrator’s age, build, eye and hair color and the clothes that he had been wearing matched that of the defendant. Cormier and O’Brien displayed no degree of uncertainty when they identified the defendant at the one-on-one confrontation. Finally, less than two hours had passed from the time the incident ended, with the defendant exiting the government van, until Cormier and O’Brien positively identified the defendant as the perpetrator at the show-up identification.

After our review of the record, we conclude that the identification was reliable under the totality of the circumstances, and, thus, the defendant’s due process rights were not violated. Because the defendant was not deprived of a fair trial, the third prong of Golding has not been satisfied.

III

The defendant also claims that the court improperly permitted the state to introduce Casella’s signed, prior inconsistent written statement as substantive evidence at trial pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Specifically, the defendant argues that Casella’s statement should not have been admitted because it was unreliable and untrustworthy. He claims that Casella was intoxicated at the time he gave the statement, that he felt pressured by the police to give the statement and that he believed that he could not leave the police station until he had given a statement.

The Whelan rule allows the substantive use of a prior inconsistent written statement if it is signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. Id., 753. While testifying at trial, Casella made several statements that were inconsistent with the written statement he had given police shortly after the incident. He admitted that he had given a written statement and verified his signature on that statement. The state began to question Casella about the inconsistencies in the statement. The defendant objected and asked that the jury be excused.

With the jury excused, the state indicated that it was offering Casella’s written statement for substantive purposes. The court stated that although the statement satisfied the requirements of Whelan, it had to make an additional finding as to the reliability of the statement before it could be admitted for substantive purposes. The court then conducted a hearing, outside of the jury’s presence, to allow testimony on that issue.

At that hearing, Eugene Coyle, a sergeant employed by the Waterbury police department in the detective division, testified that he spoke with Casella about the robbery on January 29, 2002, at approximately 7 a.m. or 8 a.m., and took his statement. He was the only detective to speak with Casella at that time. He testified that he would ask Casella a question and then type Casella’s response on his computer at a desk. Casella was seated next to Coyle and could see the monitor with his responses as they were being typed. After Casella had given his entire statement, Coyle printed the statement and asked Casella to review it again. He did and made no changes to the statement.

Coyle testified that he was with Casella for approximately thirty minutes. Coyle stated that Casella appeared to be tired, but did not have difficulty staying awake, and that he was cooperative and understood the questions being asked. Coyle did not notice the odor of alcohol on Casella’s breath and stated that he appeared to be sober when he was giving the statement.

The only other witness to testify at the hearing addressing the reliability of the statement was Casella. He testified that the police told him that he could not leave the station until he signed a statement. He indicated that some of the information in the statement was accurate and that some of the information was false. Casella testified that he was “basically telling the man what he wanted to hear” and signed the statement so that he could leave.

The court found that the circumstances under which Casella’s statement was made did not render it unreliable and permitted the state to introduce a redacted version of Casella’s signed, prior inconsistent written statement as substantive evidence. The defendant challenges the court’s ruling, citing State v. Mukhtaar, 253 Conn. 280, 750 A.2d 1059 (2000). In Mukhtaar, our Supreme Court noted that “a prior inconsistent statement that fulfills the Whelan requirements may have been made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of the witness. In such circumstances, the trial court must act as a gatekeeper to ensure that the statement does not go to the jury for substantive purposes.” Id., 306.

A statement that satisfies the Whelan requirements is, however, presumptively admissible. Id. The Mukhtaar court would not exclude such a statement unless a strong showing is made as to its unreliability. The court emphasized, however, that “the linchpin of admissibility is reliability: the statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. In the absence of such a showing by the party seeking to exclude a statement that meets the Whelan criteria, the statement is admissible as substantive evidence; like all other evidence, its credibility is grist for the cross-examination mill. Thus, because the requirements . . . established in Whelan provide a significant assurance of reliability, it will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury.” Id., 306-307.

In this case, the court followed the procedure established in Mukhtaar and fulfilled its gatekeeping responsibility to ensure the reliability of Casella’s statement. Having done so, the court allowed the state to introduce the statement into evidence for substantive purposes. “The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the wide discretion of the trial court.” (Internal quotation marks omitted.) State v. Camacho, 92 Conn. App. 271, 289, 884 A.2d 1038 (2005), cert. denied, 276 Conn. 935, 891 A.2d 1 (2006). On the basis of our review of the record, including the transcript of the testimony at the Mukhtaar hearing, we conclude that the court did not abuse its discretion in admitting Casella’s signed, prior inconsistent written statement into evidence for substantive purposes.

IV

After the jury returned a verdict of guilty on the charges of robbery in the first degree and kidnapping in the first degree, additional evidence was presented to it on the second part of the information, charging the defendant with being a persistent dangerous felony offender in violation of § 53a-40. The jury returned a verdict on May 12, 2004, finding him guilty of that charge. On July 22, 2004, the court, at the defendant’s sentencing hearing, made the following finding in accordance with § 53a-40 (h): “[Y]our character and the nature and circumstances of [your criminal] conduct causes this court to make a finding that extended incarceration will best serve the public interest.” The court then sentenced the defendant to a period of incarceration of twenty-five years on the charge of robbery in the first degree and being a persistent dangerous felony offender. The defendant was also sentenced to twenty-five years on the charge of kidnapping in the first degree, and the court ordered that the sentences run consecutively, for a total effective term of fifty years incarceration.

Subsequent to the defendant’s conviction, our Supreme Court decided State v. Bell, supra, 283 Conn. 748. The court concluded that “§ 53a-40 (h) is unconstitutional, to the extent that it does not provide that a defendant is entitled to have the juiy make a required finding [that] expose [s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict . . . .” (Internal quotation marks omitted.) Id., 810.

The parties filed supplemental briefs after oral argument before this court to address any issues as to the effect of Bell on the trial court’s imposition of the enhanced sentence on the charge of robbery in the first degree. The defendant requested review pursuant to State v. Golding, supra, 213 Conn. 239-40, because, as he concedes, no issue was raised at trial with respect to his sentence. We conclude that the issue is appropriate for Golding review.

As in Bell, the jury’s finding of guilt in the present case and its finding of the defendant’s prior felony convictions did not necessarily encompass a finding that extended incarceration would best serve the public interest. Here, the court, rather than the jury, made the requisite public interest finding. Because our Supreme Court has determined that the juiy must make that finding, the defendant is entitled to a new sentencing proceeding wherein the jury shall make the determination, beyond a reasonable doubt, whether, upon consideration of the relevant factors under § 53a-40 (h), extended incarceration will best serve the public interest.

The judgment of conviction is reversed only as to the sentence imposed and the case is remanded for further proceedings according to law; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

         Bell was decided after the parties’ appellate briefs had been filed but before oral argument. At oral argument, we invited the parties to file supplemental briefs addressing this issue.

       The defendant claims that the warrantless entry and search of his apartment was in violation of his state and federal constitutional rights. Because he has not briefed a state claim separately, we consider only a claim of a federal constitutional violation. See State v. Mulero, 91 Conn. App. 509, 514 n.3, 881 A.2d 1039 (2005), cert. denied, 277 Conn. 912, 895 A.2d 792, cert. denied, 549 U.S. 862, 127 S. Ct. 149, 166 L. Ed. 2d 108 (2006).

       The only evidence excluded by the court was the cellular telephone. The court, found that after it rang and the sound was determined to be coming from under the mattress, Wright asked Casella what was under the mattress, and Casella lifted the comer to display the telephone. The court considered Wright’s request to Casella to be a search and seizure without a warrant.

       Because the defendant has not briefed a state claim separately, we consider only a claim of a federal constitutional violation. See State v. Mulero, 91 Conn. App. 509, 514 n.3, 881 A.2d 1039 (2005), cert. denied, 277 Conn. 912, 895 A.2d 792, cert. denied, 549 U.S. 862, 127 S. Ct. 149, 166 L. Ed. 2d 108 (2006).

       Without more in the record to support the defendant’s argument, we cannot come to a definite conclusion that the identification procedure was unnecessarily suggestive under the circumstances of this case. The state argues that the detaining officers acted diligently to pursue a means of investigation that was likely to confirm or to dispel their suspicions quickly. An immediate viewing enabled the police to focus their investigation and gave them greater assurance that innocent parties would not be unjustly detained. The incident had happened recently, and the memories of Cormier and O’Brien would be fresh. Further, the defendant had not been arrested, and it was after 1 am. when he had been detained. Alternative identification procedures, such as a lineup with similar looking males, may have been impractical. For those reasons, exigent circumstances may have existed that precluded the one-on-one identification procedure from being unnecessarily suggestive. See State v. Ledbetter, 275 Conn. 534, 549, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

       The additional evidence consisted of the defendant’s prior felony convictions and the time he served in connection with those convictions, in accordance with § 53a-40.

       General Statutes § 53a-40 provides in relevant part: “(a) A persistent dangerous felony offender is a person who: (1) (A) Stands convicted of manslaughter, arson, kidnapping, robbery in the first or second degree, or assault in the first degree, and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death ... for any of the following crimes: (i) The crimes enumerated in subparagraph (A) of this subdivision or an attempt to commit any of said crimes; or (ii) murder, sexual assault in the first or third degree ... or an attempt to commit any of said crimes ... or
      “(2) (A) Stands convicted of sexual assault in the first or third degree, aggravated sexual assault in the first degree or sexual assault in the third degree with a firearm, and (B) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death ... for any of the following crimes: (i) Murder, manslaughter, arson, kidnapping, robbery in the first or second degree or assault in the first degree, or an attempt to commit any of said crimes ....
      “(h) When any person has been found to be a persistent dangerous felony offender, and the court is of the opinion that such person’s history and character and the nature and circumstances of person’s criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1,1981, shall sentence such person to a term of imprisonment not more than forty years and, if such person has, at separate times prior to the commission of the present crime, been twice convicted of and imprisoned for any of the crimes enumerated in subdivision (2) of subsection (a) of this section, sentence such person to a term of imprisonment of not more than life. . . .”

       The jury found that the state proved beyond a reasonable doubt that the defendant had been convicted of the crimes of kidnapping and robbery in the first degree on August 7,1981, and sentenced to a term of imprisonment of one year or more, and that the state proved beyond a reasonable doubt that the defendant had been convicted of the crimes of robbery in the first degree and sexual assault in the first degree on November 12, 1980, and sentenced to a term of imprisonment of one year or more.

       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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 233 Conn. 239-40.

       Both the defendant and the state have conceded in their supplemental briefs that the case must be remanded to the trial court for a new sentencing proceeding.