author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. VELMON DANNY BRASWELL
    (AC 33053)
    Lavine, Alvord and Schaller, Js.

      Argued June 3
    officially released September 10, 2013

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michelle Manning, assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Velmon Danny Braswell, appeals from the judgment of conviction, rendered after a jury verdict, of kidnapping in the second degree in violation of General Statutes § 53a-94 and interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that the trial court (1) violated his federal and state constitutional rights to represent himself (a) before trial and (b) during the course of trial, and (2) improperly denied his motion to suppress evidence seized from his (a) home and (b) person. We conclude that the court properly denied the defendant’s motion to suppress evidence but erred by denying on improper grounds his motion to represent himself. We reverse the judgment and remand the case for a new trial.

The jury reasonably could have found the following facts. At dusk on October 21, 2009, Emily Person was walking her dog on Stone Street in Stamford. As she passed 58 Stone Street, her dog ran up to the defendant, whom Person knew as Danny King. The defendant petted the dog and then picked it up. He lured Person closer to him by telling her that there was something in the dog’s mouth. When Person approached him, the defendant grabbed her wrist, lifted her up, and carried her toward the rear of 58 Stone Street. When Person screamed, the defendant put his hand over her mouth and told her to be quiet. Person bit hard on one of the defendant’s fingers. The defendant released Person, who ran to her home at 50 Stone Street. Person told her older sister, Tasha, what had transpired and reported the incident to police.

Officers James McGrath and Henry Wendel responded and interviewed Person at her home. Person described the individual who had grabbed her as a black male with a bald head and no facial hair, who was wearing a blackish shirt. She also told the police that she knew the man as Danny King. Thereafter, the officers went to 58 Stone Street and knocked on the front door, which was a common entry to the first and second floors. A door in the entryway led to the second floor. Two women answered the door and informed the officers that a person who fit their description of the suspect lived on the second floor. The police knocked on the door to the second floor, but no one answered. The women took the police to the rear of the building, where there was an entrance to the first floor and a back stairway. McGrath noticed the light in the back foyer quickly turn on and off. He also heard someone running up the stairs. He called for police backup. While he was waiting for additional officers to arrive, McGrath and Wendel heard someone running and doors slamming on the second floor. McGrath also heard a loud bang, as if something had been dropped.

After the backup officers arrived, the police entered the second floor apartment. McGrath noticed blood on the knob of the door leading to the second floor apartment, on a light switch, and on a wall. On the second floor, the officers saw a common area consisting of a living room, kitchen, and dining room with bedrooms around the perimeter. The officers also observed a chair that had been moved from the dining table and placed under a hatch to the attic. The officers believed that the defendant was hiding in the attic and instructed him to come out. The defendant did not respond to the officers’ commands. To enter the attic, which was dark, the officers secured the assistance of the fire department, which provided a ladder and lights. Five officers entered the attic and observed an arm and leg protruding from under insulation placed between the joists. The defendant ignored the officers’ commands to “come out.” The officers therefore removed the defendant from between the joists. The defendant made his body tense, which required the officers to use force to handcuff him. The officers noticed a laceration on the defendant’s finger that was consistent with Person’s account of having bitten the defendant’s finger. The officers took the defendant to the front of 58 Stone Street where Person, after asking the defendant to speak, identified him as the man who had attacked her.

The defendant was taken to the police station to be “processed.” In the meantime, Officer Edward Rondano collected evidence from the second floor of 58 Stone Street and from the blood on the exterior of the door leading to the second floor. Rondano also collected evidence from the defendant’s bloodied finger. The blood samples were analyzed for the presence of Person’s DNA.

At trial, Patricia Johannes, a forensic science examiner, testified about the results of the DNA testing. The blood evidence taken from the door to the second floor of 58 Stone Street and the defendant’s finger contained Person’s DNA. After the jury found the defendant guilty, the court imposed an effective sentence of twelve years incarceration followed by eight years of special parole. Additional facts will be provided as needed.

I

The defendant claims that the court violated his state and federal constitutional rights to self-representation by denying his motion to dismiss his appointed counsel and to represent himself. The defendant contends that his requests to represent himself were timely, clear and unequivocal; the state does not disagree. We conclude that the court denied the defendant’s motion to represent himself on improper grounds. When ruling on a motion for self-representation, the court must determine whether the criminal defendant’s waiver of the constitutional right to counsel is knowingly and intelligently made. See Practice Book § 44-3.

We begin with a recitation of the principles regarding a criminal defendant’s right to represent himself. “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense. The sixth amendment right to counsel is made applicable to state prosecutions through the due process clause of the fourteenth amendment. . . . [T]he United States Supreme Court [has] concluded that the sixth amendment embodies a right to self-representation and that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Flanagan, 293 Conn. 406, 417, 978 A.2d 64 (2009).

“[T]he [constitution does not force a lawyer upon a defendant. He may waive his [constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942). Our Supreme Court has recognized “the inviolability of the right of self-representation.” State v. Brown, 256 Conn. 291, 302, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001). “To force a lawyer on a defendant can only lead him to believe that the law contrives against him. . . . The right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel.” (Citation omitted; internal quotation marks omitted.) State v. Flanagan, supra, 293 Conn. 418.

“Although a defendant need not have the skill and expertise of an attorney to competently and intelligently choose to proceed pro se, a record that affirmatively shows that [he] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will sufficiently supports a waiver.” (Internal quotation marks omitted.) Id., 419. “[0]nce there has been an unequivocal request for self-representation, a court must undertake an inquiry [pursuant to Practice Book § 44-3], on the record, to inform the defendant of the risks of self-representation and to permit him to make a knowing and intelligent waiver of his right to counsel.” (Internal quotation marks omitted.) State v. Jordan, 305 Conn. 1, 14, 44 A.3d 794 (2012). “[W]hether the defendant’s request was clear and unequivocal presents a mixed question of law and fact, over which . . . our review is plenary.” State v. Flanagan, supra, 293 Conn. 420.

Practice Book § 44-3 “was adopted in order to implement the right of a defendant in a criminal case to act as his own attorney .... Before a trial court may accept a defendant’s waiver of counsel, it must conduct an inquiry in accordance with § [44-3], in order to satisfy itself that the defendant’s decision to waive counsel is knowingly and intelligently made. . . . Because the § [44-3] inquiry simultaneously triggers the constitutional right of a defendant to represent himself and enables the waiver of the constitutional right of a defendant to counsel, the provision of § [44-3] cannot be construed to require anything more than is constitutionally mandated.” (Internal quotation marks omitted.) Id., 419.

“[Assuming . . . that a defendant’s request to [represent himself] is informed, voluntary and unequivocal, [his right] to act as his own lawyer is unqualified if invoked prior to the start of the trial.” (Emphasis in original; internal quotation marks omitted.) Id., 431. “Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to harmless error analysis. The right is either respected or denied; its deprivation cannot be harmless.” (Internal quotation marks omitted.) Id., 434.

The following facts are relevant to our resolution of the defendant’s self-representation claim. Attorney Benjamin Aponte of the public defender’s office had been appointed to represent the defendant. Pursuant to the trial schedule, jury selection was to begin on April 28, 2010, and the presentation of evidence was to begin on May 26, 2010. On March 1, 2010, the defendant filed pro se a motion for a speedy trial. On April 6, 2010, the defendant filed pro se a handwritten motion entitled “Motion for [Removal] Attorney and Motion to go [p]ro-[s]e in Case.” On April 23, 2010, the defendant filed another motion for a speedy trial. Aponte and the prosecutor appeared in court on April 28, 2010. When the case was called, the court inquired whether the defendant was present. The following colloquy occurred:

“[Defense Counsel]: He is, Your Honor. Benjamin Aponte on behalf of [the defendant]. . . . [The defendant] is currently incarcerated. He’s informed me that he does not wish to come out and have me represent him. He’s indicated to me that he . . . would prefer to go pro se, with regard to this matter. In addition thereto, he’s informed me that if the court . . . were to force him to come out and proceed forward with this trial, that he would be disruptive throughout the process.
“The Court: Well, let’s bring him out. I’m not going to conduct a trial in his absence. I’d be happy to hear anything he’d like to say. And then, I’ll rule accordingly. All right. Good morning, Mr. Braswell.
“The Defendant: Good morning, Judge.
“The Court: All right. Now, Mr. Braswell, just before you came out, Attorney Aponte told me that you did not wish to go forward this morning. You either did not wish to go forward, or you did not wish to use Attorney Aponte as your counsel.
“The Defendant: There’s a conflict of interest between me and Attorney Aponte. ... I don’t feel ... he has enough time to spend with me on my case.”

The defendant complained that he had not yet received certain discovery that he had requested. The court explained that, although a jury was to be selected that day, the presentation of evidence would not begin until May 26, 2010, and that it would address various motions filed by the defense that day. The court also assured the defendant that it would ensure that Aponte provided him with the discovery materials he wanted.

Nonetheless, the defendant stated that he still had a problem with Aponte, whom he claimed was overworked. He stated: “I believe they’re stalling. ... I want to be able to prepare myself for this case. And I also put the motion in to go pro se, if I have to. I do not trust the public defender’s office, at this point. Because I feel they’ve been pulling punches. . . . [Aponte has] tried. But I don’t see him trying hard enough in my particular case. ... I don’t trust him, at this point. ... It just seems he goes to the other side. So, he’s not being impartial to me. . . . There is a prejudice that I went through in the last six months, that’s put me in hardship. And right now, I don’t trust it. And I would leave the courtroom, because I would hate to make a scene in here, in front of the jury. And I’m going to respect you. . . . And I’m going to ask to remove myself from the courtroom and protest that I don’t want this attorney on my case. And, it’s simple.”

The court stated: “[W]hat I hear you telling me, it’s not a problem with this attorney .... He’s a good attorney. Your concern is really that he doesn’t have the time . . . .” The court asked the defendant if he had substitute counsel ready to come in. The defendant replied that he did not because he had no discovery, particularly the police report, to prepare the case.

In response to the court’s inquiry, Aponte represented that he had not provided the defendant with a redacted copy of the police report, but that he would do so that day. Aponte also represented that he had reviewed the police report with the defendant when he visited with him in jail and in the courthouse; that he took notes of the things with which the defendant disagreed and investigated the issues; and that he had informed the defendant of the results of his investigations. Although the defendant did not have physical copies of reports and investigations, he had been informed of their contents. Aponte stated that the state had complied with its discovery obligations. It has an open file policy, and the prosecutor had met with Aponte and given him copies of police reports.

The court stated to the defendant that “the real world in which we operate ... [a] lot of the preparation for trial . . . occurs the closer the trial gets.” On the basis of what it had heard from Aponte and the prosecutor, the court concluded that the defendant’s receipt of information had not been unfairly delayed and that there was no prejudice to him. The court therefore denied the defendant’s request to continue the trial.

The defendant acknowledged that Aponte had shown him discovery materials, but he continued to complain that he did not have copies of discovery. The defendant stated that he had filed numerous motions for a speedy trial, but complained that he did not know that he was to appear in court that morning because Aponte never told him.

“The Court: Well, Mr. Braswell, really what I’m hearing from you is just a kind of a generalized complaint about the amount of time that Attorney Aponte has spent with you. And what you perceive as his level of activity. I don’t have any specific information that would enable me to make a finding, or even to think that there’s a reasonable basis for that. So, I’m going to deny your request to proceed pro se. I’m happy to talk to you further about that.

“What I need to know, if you want to proceed pro se, your educational background; what experience you have in handling legal matters; whether you’re prepared on the issues you anticipate coming up in this case. . . . [T]hese are serious charges, and ones where the assistance of competent and trained counsel really is all but essential. And I strongly encourage you to use counsel. And I haven’t heard anything, as to why this attorney would be inappropriate. . . .

“The Defendant: My background is that I got fourteen years of school, two years of law enforcement. And I wrote the basic motions I can file. I can do things like that. I also know about trials—a little bit about trials. I’ve been on one before. Other than that, I don’t trust Mr. Aponte to this point. And again, I will not sit in this courtroom. I will not—I will ask to leave. If I’m not— to get my motions in, or my discovery.”

The court asked the defendant to elaborate on his two years in law enforcement. The defendant stated that he worked as a campus police officer at Western Connecticut State University, had power to arrest, and has an understanding of the law. He stated that in that capacity he testified in three trials. The defendant represented himself against charges brought against him by the commonwealth of Pennsylvania and was acquitted. The court asked the defendant to explain those charges, but the defendant refused to do so. The defendant then requested a one month postponement to prepare for trial after he received copies of all discovery.

The court informed the defendant that it was going to deny his motion to remove his attorney and proceed pro se, but that it would discuss the status of discovery with the state and create a strict time line to get discovery to Aponte. The court again informed the defendant that evidence was not going to begin until May 26, 2010. If the defendant had substitute counsel who was ready to proceed between jury selection and May 26, 2010, or if there were more discovery issues, the court would reconsider the motion to remove his attorney and proceed pro se. The court also informed the defendant that it was important for him to be present during jury selection to consult with Aponte.

The defendant stated that he understood the importance of being present for jury selection, but that he wanted the marshals to take him out of the courtroom at that time. The court stated that the marshals look to the court for guidance, that jury selection was going to start, and that if the defendant became disruptive, he would be removed from court. The defendant stated that he wanted to leave then and that it was his right not to stay in the courtroom. The defendant spoke over the court, and was told by the court not to interrupt. The defendant sought to leave the courtroom, and the court ordered the marshal to hold him. The court wanted to ensure that the defendant understood the decision he was making. The defendant stated: “I made a decision, sir, and I understand. I’ve done this before. It’s not the first time, sir.”

The court ordered the marshal to seat the defendant, who continued to protest and asked to remove himself from the courtroom. Eventually, the defendant stated: “I give up that right. Do the trial without me. That’s what you want to hear? Now, I’m leaving. All right? Do the trial without me, please. In all due respect, Judge. You’ve been fair to me. I’m being fair to you. Let me walk out of the courtroom because I will get—there’ll be a mistrial. Every time I get here, you will have to gag me. Simple as that.”

After the court again asked the defendant if he knew that he had the right to be present, the defendant stated: “I understand the fact that this is a racist court. And I understand the fact that I’m not gonna sit here and take this. You know, I just got manhandled for no reason at all.” The court then ordered the marshals to remove the defendant to an observation room where he could view the proceedings. The defendant stated that he did not want to see the court proceedings.

After the defendant was removed, the court stated for the record that it had attempted to review the defendant’s rights but had not been able to review all of them and that the defendant had been removed from the courtroom. The court ordered the marshal to make sure that the window in the observation room was open so that the defendant could observe jury selection. The court also instructed the marshals that if the defendant wanted to return to the courtroom to inform the court immediately.

In response to the court’s inquiry as to how he would like to proceed, Aponte stated that he found himself in a difficult position in that the defendant did not trust him and that the defendant did not want to be part of the proceedings. Aponte also expressed concerned that the defendant may create some sort of commotion in the observation room that would prejudice him to the venire panel. Thereafter, the court took a brief recess.

When court reconvened, the court stated that the defendant had reported feeling pain in his arm and requested medical attention. In an exercise of caution, emergency medical personnel were called, and the defendant was taken to an emergency room for examination. The court canceled jury selection for the remainder of the day. The court and counsel discussed the difficult issue of resuming jury selection in light of the defendant’s speedy trial motion and his request for a continuance to review discovery. The court ordered that jury selection would continue in one week, with the expectation that the defendant would be feeling better at that time.

The court concluded the session, stating: “I hope [the defendant] is feeling better. And hopefully, he’s going to be more receptive to participating in this. If he wishes to request a continuance, I’m going to require that he withdraw his speedy trial motion. And then I’d be happy to consider a reasonable delay for him to review discovery and get comfortable, either with continued representation, or make arrangements for new representation. But I can’t have him going both ways. He can’t demand a speedy trial, and then obstruct the trial. So, we’re going to have to get a decision on that front.”

We agree with the defendant that he clearly and unequivocally asserted his right to represent himself when he filed a motion entitled “Motion for [Removal] Attorney and Motion to go [p]ro-[s]e in Case” and, on April 28, 2010, addressed the court and stated that he wanted to represent himself. When a defendant seeks to represent himself, the court is required to canvass the defendant pursuant to Practice Book § 44-3 to determine whether the defendant’s waiver of the constitutional right to counsel is knowing and intelligent. See State v. Flanagan, supra, 293 Conn. 418.

Our review of the transcript of April 28, 2010, reveals that the defendant filed a motion for a speedy trial without having informed Aponte, who only learned that he was to begin trial in this case the previous day. It is true that, from the beginning, the defendant’s behavior demonstrated a lack of decorum; he was not present in the courtroom when the court called his case. He directed Aponte to inform the court that he did not want to come into court and have Aponte represent him, and that he preferred to represent himself. Moreover, Aponte stated: “In addition thereto [the defendant] informed me that if the court . . . were to force him to come out and proceed forward with this trial that he would be disruptive throughout the process.” The defendant therefore was threatening the court that, if he did not get his own way, he would be disruptive. The court ordered that the defendant be brought into the courtroom so that it could determine whether he did not want to go forward or that he did not want Aponte to represent him.

The defendant claimed a conflict of interest with Aponte and that he had not received the discovery materials he had requested. The court noted the defendant’s motion for a speedy trial and the state’s attempt to accommodate that request. The court informed the defendant of its efforts to resolve his presumed conflict regarding discovery. Nonetheless, the defendant stated that he did not trust Aponte. The court opined that, given the facts regarding discovery as presented, Aponte had reasonable access to the defendant.

We agree with the defendant that whether Aponte’s representation of him was adequate was not relevant to whether he should be permitted to represent himself. A defendant’s request to represent himself may not be denied on the basis of the trial court’s perception of the adequacy of trial counsel’s representation. See State v. Flanagan, supra, 293 Conn. 424-25, citing United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2d Cir. 1965), cert. denied sub nom. DiBlasi v. McMann, 384 U.S. 1007, 86 S. Ct. 1950, 16 L. Ed. 2d 1020 (1966). “[0]nce there has been an unequivocal request for self-representation, a court must undertake an inquiry [pursuant to Practice Book § 44-3], on the record, to inform the defendant of the risks of self-representation and to permit him to make a knowing and intelligent waiver of his right to counsel.” (Internal quotation marks omitted.) State v. Jordan, supra, 305 Conn. 14.

In this case, the timing of the court’s ruling on the defendant’s motion to “go [p]ro-[s]e” was unclear. Although the court stated that it was denying the defendant’s motion to “go [p]ro-[s]e” after discussing the defendant’s dissatisfaction with Aponte, it also stated that it was open to reconsidering the matter at a later time. The court then attempted to canvass the defendant pursuant to Practice Book § 44-3. The court was not able to complete its canvass because the defendant refused to answer certain questions about a criminal action against him in Pennsylvania.

On appeal, the state contends that, although the court technically did not comply with the canvass required by Practice Book § 44-3, the defendant was not entitled to a full and complete canvass because he was uncooperative and disruptive. See State v. Jones, 281 Conn. 613, 647-50, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). We do not dispute that a defendant who is uncooperative and disruptive is not entitled to represent himself; id., 648; however, the court here denied the defendant’s request to represent himself on the basis of his relationship with counsel and the state of discovery. Those two factors were not relevant to the defendant’s motion to represent himself because trial had not yet commenced. See State v. Flanagan, 293 Conn. 431. When the defendant filed his motion to “go [p]ro-[s]e” and indicated to the court that he wanted to pursue that motion, the court was required to canvass him pursuant to Practice Book § 44-3, regardless of the state of affairs between the defendant and Aponte.

We have reviewed the entire transcript of the pretrial proceedings, jury selection, and trial. We agree with the state that, subsequent to April 28, 2010, the defendant was at times disruptive, sought continuances in the face of his speedy trial motions, failed to cooperate with the marshals and even threatened to fight with them. Our Supreme Court has recognized “that a trial court properly may deny a request for self-representation when it is merely a tactic for delay ... or an impulsive response ... or is made in passing anger or frustration ... or to frustrate the orderly administration of justice ... or is an insincere ploy to disrupt the proceedings . . . .” (Internal quotation marks omitted.) State v. Jordan, supra, 305 Conn. 22. The defendant’s post-April 28, 2010 behavior would, unquestionably, have provided a basis for the court to deny the defendant the right to represent himself; see State v. Jones, supra, 281 Conn. 648 (well established that defendant through his disruptive behavior may forfeit right to self-representation); but that was not the situation on the day the court first was presented with the defendant’s clear and unequivocal motion to represent himself. When presented with the defendant’s request to represent himself before trial, the court was required to canvass him pursuant to Practice Book § 44-3, and to exercise its discretionary ruling on the basis of the defendant’s response to the canvass. Instead, the court denied the defendant’s clear and unequivocal request to represent himself on the basis of the court’s assessment of counsel’s performance and the state of discovery. This was improper.

We are well aware of the trial management challenges a court faces when confronted with difficult situations such as the one presented in this case. We also understand that trial judges sometimes, with the best of intentions, seek to protect defendants from the adverse consequences of what judges perceive to be an ill-advised desire to represent themselves. The right of self-representation, however, is of constitutional magnitude, and competent defendants who are properly canvassed must be left free to exercise it. When the defendant clearly and unequivocally requested to “go [p]ro-[s] e,” the court was required to canvass him pursuant to Practice Book § 44-3 to determine whether he was knowingly and intelligently waiving his right to counsel. We conclude that the court improperly denied the defendant’s motion to “go [p]ro-[s]e” for reasons not relevant to that rule. The court’s improper ruling is not subject to harmless error analysis; see State v. Jordan, supra, 305 Conn. 23 (violation of sixth amendment right to self-representation is structural error); and we therefore are required to reverse the judgment of conviction.

II

The defendant claims that the court improperly denied his motion to suppress evidence that the police obtained from (1) his home and (2) his person without a warrant or his consent. We do not agree.

On February 1, 2010, Aponte filed a motion to suppress from evidence the fruits of searches and/or seizures of the defendant’s person, house, papers, and effects, including physical evidence, tests, observations by law enforcement officers, and testimony. The defendant based his claim on his constitutional rights to privacy. The defendant claimed to be a tenant of the apartment at 58 Stone Street and that the police had not obtained a search warrant before they entered his home.

The defendant argued that there were no exigent circumstances to prevent the police from obtaining a warrant before swabbing the defendant’s injured finger for DNA evidence. The defendant sought to suppress any statements he made when the police entered his home, any physical evidence seized, and observations the police made while in his home. The court heard the arguments of counsel on July 27, 2010, but neither party presented any evidence. The matter was continued until August 9, 2010.

On August 9, 2010, the state called Officer Rondano to testify. On the evening in question, Rondano had been dispatched to 58 Stone Street where he observed blood on the door outside the second floor apartment. When Rondano returned to the police station, Sergeant James Van Allen directed him to collect a sample, which could contain Person’s DNA, from the defendant’s bloodied left index finger. Rondano described the manner in which he obtained the sample and also stated that any delay in obtaining the sample increased the possibility that DNA evidence, if any, could have been destroyed, intentionally or inadvertently, given that it was on the defendant’s finger.

The state also called Van Allen, who testified that he had observed the defendant, who was covered with dust and insulation when he was brought to the police station. He also saw a bloody wound on the defendant’s left index finger. Van Allen believed that the defendant’s bloodied finger might contain evidence of the victim’s DNA, if she had bitten him there. Van Allen also testified as to the procedure for obtaining a search warrant and the length of time it takes to secure a search warrant, particularly at night. On the basis of his training and experience, Van Allen testified that he believed that the evidence needed to be preserved and that every hour that passed created a risk that the evidence could be destroyed.

The defendant presented no evidence, but argued that the DNA evidence taken from his finger should be suppressed because he did not consent to have the evidence collected from his finger, and the police had not obtained a warrant to take the sample. The defendant also wanted the court to suppress any statements he made to the police. The defendant, however, failed to present any evidence as to whether he was in police custody at the time he uttered his statements.

The state argued, on the basis of the evidence presented, that the police had an objective, reasonable belief that exigent circumstances existed with respect to the potential evidence on the defendant’s injured finger. The officers who testified stated that it would have been inappropriate for the police to restrain the defendant until a warrant was obtained, thus delaying medical treatment for the defendant’s injury. Moreover, due to the nature of the defendant’s injury, a bloodied cut on his finger, any evidence easily could have been lost or destroyed inadvertently or intentionally. The court denied the defendant’s motion to suppress.

“Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” (Internal quotation marks omitted.) State v. Owen, 126 Conn. App. 358, 364, 10 A.3d 1100, cert. denied, 300 Conn. 921, 14 A.3d 1008 (2011). “Our law recognizes that there will be occasions when, given probable cause to search, resort to the judicial process will not be required of law enforcement officers. [For example], where exigent circumstances exist that make the procurement of a search warrant unreasonable in fight of the dangers involved ... a warrant will not be required. . . .

“The term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. . . . [T]he test for the application of the doctrine is objective, not subjective, and looks to the totality of the circumstances. . . . Specifically, [t]he test of exigent circumstances for the making of an arrest for a felony without a warrant ... is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe. . . . The reasonableness of a police officer’s determination that an emergency exists is evaluated on the basis of facts known at the time of entry.” (Citations omitted; internal quotation marks omitted.) Id., 365-66.

“The scope of review when analyzing the application of the exigent circumstances doctrine is well established.” State v. Kendrick, 132 Conn. App. 473, 481, 31 A.3d 1189 (2011), cert. granted on other grounds, 303 Conn. 925, 35 A.3d 1076 (2012). “The trial court’s finding of facts will stand unless they are clearly erroneous. Its legal conclusion regarding the applicability of the doctrine, however, is subject to de novo review. . . . The burden is on the state to establish the facts that justify the application of the exigent circumstances doctrine.” (Citation omitted.) State v. Aviles, 277 Conn. 281, 292, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006).

A

The defendant claims that the court improperly denied his motion to suppress evidence that was obtained without a warrant and without his consent when the police unlawfully entered his home and made an unconstitutional arrest. The state claims that the defendant abandoned this claim. We need not determine whether the defendant abandoned this claim at trial because we conclude that he failed to demonstrate that he had a reasonable expectation of privacy with regard to the second floor of 58 Stone Street. See footnote 3 of this opinion. The court therefore properly denied the defendant’s motion to suppress with regard to evidence found at 58 Stone Street and the defendant’s statements.

The defendant’s claim concerns the following facts. On February 1, 2010, the defendant filed a general motion to suppress evidence. The defendant sought “to suppress from evidence the fruits of searches and/or seizures of the defendant’s person, house, papers . . . .” Following the hearing on the defendant’s motion to suppress, the court denied the motion as to the DNA evidence obtained by swabbing the defendant’s injured left index finger. Thereafter, the defendant filed a motion for articulation with regard to evidence obtained from “his home.”

In its articulation, the court stated in part: “Throughout the [August 9, 2010] hearing, the great majority of the evidence and argument was directed toward a DNA sample, taken from the defendant’s finger wound .... At various points during the hearing, the court tried to ascertain exactly what other items of evidence the defendant was actually trying to suppress. Though at the start of the hearing, [the] defendant indicated [that he] wished to suppress ‘any and all evidence that the Stamford Police Department received when it entered into the home of [the defendant]’ ... no specific item of evidence, other than the DNA sample, was ever identified. . . . The court again inquired if [the motion to suppress] pertained to the DNA, and the defendant stated [that] it went to the DNA sample ‘as well as any statements made by [the defendant] ... at the time he was arrested in the attic.’ . . . [The] [defendant did not identify any other item of evidence which he wished to suppress. [The] [defendant's failure to identify any items of evidence which he wished the court to suppress, other than the DNA and statements made by [the] defendant, led the court to limit its ruling to only those items which were addressed.” (Citations omitted; footnotes omitted.)

The court also stated that “there had been little testimony offered by either side during the suppression hearing as to any circumstances which occurred other than at the Stamford Police Department. Defense counsel’s argument was made in terms of a search of [the] defendant’s ‘home,’ but no such home was ever described in the hearing. There were references to an apartment and then, to just a room. [The] [defendant offered no testimony as to his expectation of privacy in any area which might have been searched. ‘The application of the fourth amendment prohibition against unreasonable searches and seizures requires the defendant to establish that he had a legitimate expectation of privacy in the invaded area.’ State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145 [cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270] (1991). The testimony given by the police officers also did not establish such expectation. Here, the testimony introduced by officers was that one officer had processed the ‘crime scene.’ . . . Another officer said, ‘We weren’t processing his room, we were processing the outside.’ . . . There was testimony about a blood smear seen on the doorknob on the outside of the defendant’s apartment. ... It was never established whether these areas were ones in which [the] defendant claimed an expectation of privacy or that evidence had been taken from other than public areas. In light of such testimony, it did not appear that any evidence had been secured in an area where the defendant had a legitimate expectation of privacy.” (Citations omitted.)

On the basis of our review of the transcript, we conclude that the court properly denied the defendant’s motion to suppress. The defendant failed to establish that he had a reasonable expectation of privacy in the doorknob on the outside of the second floor “apartment” at 58 Stone Street. Evidence of the defendant’s relationship with the location is necessary to establish a reasonable expectation of privacy. See State v. Boyd, 57 Conn. App. 176, 185, 749 A.2d 637 (relationship with location personal; relationship more than sporadic, irregular or inconsequential; location and items within maintained in private manner at time of search), cert. denied, 253 Conn. 912, 754 A.2d 162 (2000). Our review of the record discloses no evidence that the defendant had a reasonable expectation of privacy with respect to the second floor of 58 Stone Street. See id. We also see no evidence that the defendant had an expectation of privacy in the attic where the police found and arrested him. See id. The court therefore properly denied the defendant’s motion to suppress evidence.

B

The defendant’s second suppression claim is that the court improperly denied his motion to suppress DNA evidence that was obtained without a warrant and without his consent resulting in a violation of his constitutional rights. We disagree.

At the conclusion of the suppression hearing, the court issued its ruling from the bench. The court stated in part with regard to evidence collected from the defendant’s finger: “I find that exigent circumstances did exist at the time at which the DNA evidence was secured, necessitating immediate retrieval of the DNA sample. I note there was a significant risk here of destruction of the evidence, either intentionally by the defendant or unintentionally through natural perspiration, blood flow at the site of the wound, or inadvertent rubbing or processing of the defendant. Even in the process of seeming fingerprints, that portion of the finger could have been impacted.

“So, the location of the wound here, at the end of the left index finger, made it impossible to preserve possible evidence at the site. I note that there was a noninvasive and painless procedure used to secure the evidence. And this was evidence that could exonerate as well as incriminate the defendant. Even now, I don’t know what the result of that DNA sample was.

“Also, evidence was needed to be secured promptly to allow the defendant to receive medical treatment for the wound, and also to resume the natural use of bathroom facilities, other personal needs. Given the time of day, the availability of a warrant, it would not have taken more than a few seconds of further delay. At any time, this evidence might have been lost. So, in light of all the circumstances, I’m going to make a finding that exigent circumstances did exist and that they justified the absence of a warrant.

“With regard to any statements, there hasn’t been any evidence to demonstrate that the defendant was in custody at the time of any statements. There hadn’t really been any evidence on that or that the defendant was subject to police interrogation. That’s the burden of the defendant, and the defendant can renew that motion as evidence comes in of particular statements. But as of now, there’s no basis to grant that motion. The motion is denied.”

On the basis of our review of the evidence presented at the suppression hearing, we agree with the court that exigent circumstances existed with regard to the collection of DNA evidence, which was at risk of being lost, either intentionally or inadvertently. The state met its burden of establishing exigent circumstances by an objective reasonable grounds standard. See State v. Aviles, supra, 277 Conn. 292.

With regard to the defendant’s statements which he sought to suppress, our review of the record reveals facts consistent with the court’s findings that the defendant never established that he was in police custody or that he was being interrogated by the police at the time he made statements in their presence. The court therefore properly denied the defendant’s motion to suppress evidence.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Because we conclude that the court improperly denied the defendant’s request to represent himself made prior to trial, we need not reach his claims concerning his requests to represent himself made during the course of trial.

       Although we reverse the judgment of conviction pursuant to the defendant’s claim that the court improperly denied his motion to represent himself, we review the defendant’s claims regarding his motion to suppress because they are likely to arise on retrial.

       The state contends that 58 Stone Street is a two-family house with separate living areas on each floor and that the second floor is a rooming house with a common living area surrounded by private individual bedrooms. The defendant presented no evidence regarding the nature of the living spaces at 58 Stone Street. In submitting a motion to suppress evidence, the defendant contended that he lived on the second floor of 58 Stone Street, but he presented no evidence to that effect. He also presented no evidence as to whether the second fj.oor consisted of one apartment or a common area with individual bedrooms.

       Person provided the police with a buccal sample for DNA analysis. A buccal sample is taken by brushing a sterile swab against the inside of a person’s cheek to obtain cells to be used for DNA analysis.

       Our Supreme Court has treated the state and federal constitutional provisions regarding the right to self-representation as providing the same level of protection. See State v. Jones, 281 Conn. 613, 647 n.26, 916 A.2d 17, cert, denied, 562 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007).

       As a matter of policy, the judicial branch utilizes the term self-represented party in lieu of the Latin term pro se. Throughout the proceedings in the trial court, however, the defendant, counsel, and the court used the term pro se. In this opinion, we utilize the term used in the trial court.

       Practice Book § 44-3 provides that “[a] defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself . . . at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       The defendant’s motion for removal states: “Now come’s the Defendant Velmon Braswell pro-se asking the court’s of the state of Connecticut to remove . . . Apont[e] who was appointed to the defendant case on 10-22-09 by the Judge of this court.
      “Reason’s for Removal
      “[1.] From 10-22-09 the defendant has requested all the discovery in the case above and . . . Apont[e] to this point has ‘not’ given legal assistance to defendant ... or to legal material’s in the case above for his defend’s under the law’s of the U.S. constitution and under the State of Connecticut constitution to access to the court’s and at this point . . . Apontje] in the public defender office’s has ‘not’ filed any motion’s requested or asr’s by the defendant above in violation of the above defendant’s civil right’s with ‘no’ access to the court’s.
      “[2.] The defendant . . . ask this court to go pro-se on his case do to the fact’s above and the inaction of the attorney and the office of the public defender’s . . . .”
      In his motion to remove, the defendant claimed that black defendants and poor people are treated with racial bias.

       Later in the proceeding, Aponte stated that the defendant “filed this motion for a speedy trial, not me. I was never consulted on this speedy trial motion. I never received a copy of it. I was not informed until late yesterday afternoon that I was going to be here today, picking a jury.”

       Aponte was given permission to address the court and stated: “[The defendant] . . . admits that I’d gone to see him [in jail]. Granted, this is the first time that it’s been without a glass between us, but I’ve gone to visit him. I’ve gone and explained the allegations against him. I’ve informed him of what the state needs to prove, and what the maximum exposure is. . . . I’ve informed him of all that. He still wants to have a trial. He’s filed this motion for a speedy trial, not me. I was never consulted on this speedy trial motion. I never received a copy of it. I was not informed until late afternoon yesterday that I was going to be here today, picking a jury. . . .
      “So, it seems to me that [the defendant] is using this motion for a speedy trial, as a vehicle to air out whatever grievances he may have against me as well as whatever else he might think of the court system in itself. I don’t know if he actually wants to go, but if he wants to go forward today, I’m prepared to go forward today.”

       We note that the incident underlying the defendant’s conviction occurred in October, 2009, and the state was ready to proceed to trial in March, 2010.

       On July 27, 2010, during the hearing on the defendant’s motion to suppress, the court stated, after Aponte again conveyed the absent defendant’s request to “go [p]ro-[s]e”: I have a defendant who, when he does come in, he’s either told me he wishes to leave or he wishes to go to the hospital or he wishes to fight with the marshals, everything but stay and participate in a meaningful manner. How are we going to have this trial or complete the motions without counsel of record?”

       The arguments of counsel are not evidence. See State v. Begley, 122 Conn. App. 546, 552 n.10, 2 A.3d 1 (2010).


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    ISABELLA C. MENSAH v. CHARLES O. MENSAH
    (AC 34534)
    Lavine, Alvord and Bear, Js.

      Argued May 23
    officially released September 10, 2013

      Josephine Smalls Miller, for the appellant-cross appellee (plaintiff).

      Thomas S. Rome, for the appellee-cross appellant (defendant).
   Opinion

ALVORD, J.

The plaintiff, Isabella C. Mensah, appeals from the judgment of the trial court dissolving her marriage to the defendant, Charles O. Mensah, and from the court’s order granting the defendant’s postjudgment motion for appellate attorney’s fees. On appeal, the plaintiff claims that the court abused its discretion in dividing the marital estate, in failing to award her alimony, in calculating the amount of child support, and in granting the defendant’s postjudgment motion for appellate attorney’s fees payable from joint marital assets. The defendant cross appeals from the judgment, claiming that the court abused its discretion by precluding expert testimony as to the value of the plaintiffs pension benefits and by failing to award the defendant a share of the plaintiffs pension and thrift savings plan. We reverse the judgment of the trial court only as to its financial orders because we conclude that the court lacked an evidentiary basis for those orders. We also vacate the court’s order granting the defendant’s post-judgment motion for appellate attorney’s fees.

The following facts and procedural history are relevant to the plaintiffs appeal and the defendant’s cross appeal. The parties were married on August 30, 1991, and three children were bom of the marriage. The plaintiff was employed by the United States Postal Service, which sponsored both a pension plan and a thrift savings plan. Occasionally she earned additional income as a day trader. The defendant derived his income from two businesses. In one business, the defendant purchased motor vehicles in the United States and shipped those vehicles to Ghana, where they were sold at a profit. The defendant also owned a delivery business called Eagle Delivery Service.

With respect to marital assets, the parties had invested in three properties located in Ghana during the course of the marriage. Additionally, they owned a marital home in Broadbrook, although it was heavily encumbered and had little or no equity at the time of the dissolution. Other assets of the marriage included personal property in the marital home and several motor vehicles.

The plaintiff commenced this action on June 29,2010. Discovery requests were made by both parties, and both parties claimed that there had been insufficient compliance with those requests. Numerous motions for contempt and motions to compel were filed by the parties, and the court, Abery-Wetstone, J., held a hearing on October 14, 2011, to resolve outstanding discovery issues. By order issued that same day, the court directed each party to produce particular documents within specified time periods. The court concluded: “If either party fails to comply with the above orders, a $50 a day sanction shall accrue until provided to the other side.” On December 8, 2011, four days before the first day of the scheduled trial, the plaintiff filed a motion to preclude the defendant from testifying as to his income or his real property interests at trial because of “his refusal to produce relevant information requested during the discovery phase” of this action.

On December 12, 2011, before any evidence was presented, the court, Prestley, J., asked the parties whether they believed it would be productive for the court and counsel to meet in chambers in an effort to settle the matter. The parties agreed to the court’s suggestion, and the plaintiff, the defendant and the parties’ counsel all signed a stipulation allowing the court to conduct pretrial discussions to explore settlement possibilities without being disqualified from presiding over any subsequent trial between the parties. See Krattenstein v. G. Fox & Co., 155 Conn. 609, 612-616, 236 A.2d 466 (1967).

A few hours later, the court reconvened and stated on the record that the matter had not been resolved and the trial would commence. The court also stated that, although the court would no longer be involved in settlement negotiations, counsel could continue their efforts when court was not in session. At the end of the day, the court encouraged the parties to reach an agreement on outstanding issues and expressed its concern about the lack of information regarding the parties’ financial situation: “I haven’t heard much testimony so far, but I get a definite sense that, you know, people have not been forthcoming, across the board, about money spent, about where it [has] gone, about businesses, about accounts, about account values. In many cases, I don’t even have a value. I mean, you’re asking a court to make a ruling that’s fair and equitable, when I don’t even know what [the plaintiffs] pension is worth. I don’t even know what [the defendant’s] business is worth. And, you know, no business valuation was done here, no pension valuation was done here. There’s nothing. . . . You know, how does this case possibly get tried with all these missing gaps? . . .

“So I want to leave you with that. You can talk to your lawyers. I hope that you will actually sit down and have a meeting, prior to Thursday. You know, my guess is we’re probably going to be right back here on Thursday, nobody will have made any movement on anything, there will still be lots of missing information, and I will just have to maybe shoot from the hip, in terms of making a decision here. ... I’ll just have to make a decision with what I have, which is not a complete picture of what’s gone on in this case. . . .

“I am not going to give this case any kind of a continuance either. This is it. All right? And we’re not going to give any more time to go try and find more documents. We’re doing it. We’re going to get this done. So we’ll see you. I hope you give this some thought, and we’ll see where you are.”

The following trial day, December 15, 2012, the court began with the statement: “At counsel's request, we’ve met again this morning. It’s clear to the court that there is no possibility of an agreement. I’m not going to take any more time, in terms of judicial economy, to meet with anyone any further on this case. Let’s just get the evidence, and I’ll make a decision on it.” The trial continued that day and concluded on December 20, 2011, with counsel's closing arguments. The court directed counsel to submit their revised proposed orders within one week and then stated: “I will try and come up with what I think is a fair decision given the, in some cases, limited testimony that I have, particularly in numbers and appraisals and so forth, but I will do the best job that I can.”

The court issued its memorandum of decision on February 23, 2012. In support of its orders, the court made the following findings of fact: (1) lack of candor with the court and noncompliance with discovery requests on the part of both parties, particularly the defendant, made the court’s determination of income or assets exceedingly difficult; (2) the reported valuation of the plaintiffs pension was not realistic and its value was “likely much higher than . . . stated on her financial affidavit”; (3) family assets had been invested in three properties in Ghana with an undetermined value; (4) the defendant told the plaintiff that he had an interest of approximately $360,000 in one of the Ghana properties; (5) although “[i]t is . . . clear that the defendant has property interests in Ghana . . . [h]e has not been forthcoming with the court about any of [those] interests”; (6) ascertaining the defendant’s actual income was complicated because “the defendant was not forthcoming with required discovery, was evasive, and was not credible in his testimony”; (7) the evidence established that the defendant was the owner of an income producing business involving the purchase and sale of motor vehicles shipped to Ghana; (8) the evidence established that the defendant owned an income producing delivery business called Eagle Delivery Service; (9) the documentation provided by the defendant for Eagle Delivery Service was “sporadic and incomplete, and was limited to just a few months of bank statements for this entity over a four year period and a few tax returns”; (10) the defendant did not provide any income documentation for the eight month period prior to trial; and (11) the evidence established “systematic and ongoing conduct by the defendant designed to conceal his actual income and assets” from the plaintiff and the court.

Relying on those factual findings, the court entered orders dividing the marital estate and awarding child support. The court determined, inter alia, that neither party was to be awarded alimony, that custody of the minor child was to be awarded to the plaintiff, that the defendant was to pay $283 per week as child support, that the marital home was to be awarded to the plaintiff, that the plaintiff was to hold the defendant harmless on the mortgage and any current liens, that the defendant was to retain any property interests he had in the Ghana properties and in his two businesses, that each party was to retain his or her retirement accounts free of any claim of the other party, that $40,000 was to be awarded to the defendant as his share of the equity from the plaintiffs pension, thrift savings, and savings and checking accounts, and that each party was responsible for his or her own attorney’s fees. The plaintiff appealed from the court’s judgment on April 23, 2012, and the defendant filed his cross appeal on May 25,2012.

On June 20, 2012, the defendant filed a postjudgment motion for “a reasonable sum” of appellate attorney’s fees. The plaintiff filed an opposition to the motion, claiming that there was an automatic stay of all financial orders that precluded such an award. At a hearing held on July 11,2012, which was not attended by the plaintiff or her counsel, the defendant’s counsel requested the specific sum of $29,366.30 as an allowance to defend against the plaintiffs appeal and to prosecute the defendant’s cross appeal. At that hearing, he submitted documentation to the court showing that he had rendered services totaling $9366.30 to date in connection with the appeal and cross appeal. He called Attorney Steven R. Dembo as an expert witness, who testified that the amounts already expended were reasonable and that $20,000 as an allowance for future work would be reasonable. At the conclusion of the hearing, the court stated that it had a “pretty clear picture” of the relative financial positions of the parties, that it had considered the provisions of General Statutes § 46b-62, and that it found the requested amount of $29,366.30 to be a reasonable allowance for the appeal and cross appeal. The court granted the defendant’s motion. The plaintiff filed an amended appeal to include the court’s postjudgment award of appellate attorney’s fees to the defendant.

“The standard of review in family matters is well settled. An appellate court will not disturb atrial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in fight of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Angle v. Angle, 100 Conn. App. 763, 771-72, 920 A.2d 1018 (2007). Therefore, “to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Interna! quotation marks omitted.) Demartino v. Demartino, 79 Conn. App. 488, 493, 830 A.2d 394 (2003).

“In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in [General Statutes] § 46b-81 (division of marital property), [General Statutes] § 46b-82 (alimony) and [General Statutes] 46b-84 (child support). All three statutory provisions require consideration of the parties’ amount and sources of income in determining the appropriate division of property and size of any child support or alimony award.” (Internal quotation marks omitted.) Brown v. Brown, 130 Conn. App. 522, 526-27, 24 A.3d 1261 (2011). In the present case, the court expressly stated that the parties, particularly the defendant, had failed to provide the requisite discovery information as to the amount and sources of their income. The plaintiff, with the limited documentation that she had, nevertheless managed to demonstrate that the defendant ran two income producing businesses. The defendant, however, failed to produce any income documentation whatsoever with respect to those businesses for the eight months prior to trial. Furthermore, the court expressly found that the defendant systematically had concealed his actual income and assets from the plaintiff and the court.

There is a heightened duty of disclosure in marital cases. Duart v. Dept. of Correction, 303 Conn. 479, 500, 34 A.3d 343 (2012). “Unlike civil litigants who stand at arm’s length from one another, marital litigants have a duty of full and frank disclosure analogous to the relationship of fiduciary to beneficiary . . . .” (Internal quotation marks omitted.) Id., 501. The plaintiff needed information regarding the defendant’s actual income and assets to prepare and to try her case; see Ramin v. Ramin, 281 Conn. 324, 338, 915 A.2d 790 (2007); and the court needed this information to enter orders that were not based on speculation and conjecture.

The dearth of financial information placed the court in a difficult position and precluded it from making fair and equitable orders in the dissolution judgment. The court, during the trial and in its memorandum of decision, acknowledged that it did not have sufficient evidence of the parties’ financial circumstances. The court also was unequivocal in its position that no continuance would be granted to secure additional documentation. The court’s orders with respect to alimony and the division of the marital estate, without sufficient financial information, lacked the requisite evidentiary basis. Further, the amount of the child support order was based on the income of the plaintiff and the defendant. Although the court stated that it was using the child support guidelines in its determination of the amount, the figures used by the court lacked sufficient eviden-tiary support. “Although we recognize that the guidelines create a legal presumption as to the amount of child support payments . . . the figures going into that calculation on the worksheet must be based on some underlying evidence.” (Citation omitted.) Aley v. Aley, 101 Conn. App. 220, 228-29, 922 A.2d 184 (2007). For these reasons, we conclude that the court did not have sufficient evidence on which to base its orders in the dissolution judgment.

With respect to the defendant’s postjudgment motion for appellate attorney’s fees, the court granted the motion based on its knowledge of the “relative financial positions of the parties.” As previously discussed, the court did not have sufficient financial information from which to make that determination. Accordingly, the court’s ruling on the postjudgment motion lacked a reasonable basis in facts and cannot stand.

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues. The order granting the defendant’s postjudgment motion for appellate attorney’s fees is vacated.

In this opinion the other judges concurred.

       Only one child was a minor at the time of the dissolution judgment.

       Our review of the court file reveals that the courts sanction was not imposed on either party.

       The plaintiff and the defendant were the only witnesses to testify at trial.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . .

       “It is not the province of this or any court to speculate as to evidence not before it.” Demartino v. Demartino, supra, 79 Conn. App. 497-98.

       On July 24,2012, the plaintiff filed a motion for sanctions with this court requesting that the defendant’s counsel, Thomas Rome, be sanctioned for procuring a postjudgment order and the disbursement of $29,366.30 from a joint TD Ameritrade account as an allowance to pay the defendant’s appellate attorney’s fees to defend the plaintiffs appeal and to prosecute the defendant’s cross appeal. The defendant obtained the order from the trial court, Prestley, J., on July 11, 2012, without first having requested a lift of the automatic stay. After the plaintiff filed a motion for review of the July 11, 2012 order, this court ordered Rome to maintain the $29,366.30 in his IOLTA client’s fund account. At oral argument before this court, the parties were told that the motion for sanctions remained pending.
      We have issued the following order with respect to the plaintiffs motion for sanctions: “The plaintiffs motion for sanctions dated July 24, 2012, is denied. In light of this court’s decision on the plaintiffs appeal and amended appeal, and the defendant’s cross appeal, it is hereby ordered that Attorney Thomas Rome return the $29,366.30, with appropriate interest, from his IOLTA client’s fund account to the joint TD Ameritrade account.”


author: GRUENDEL, J.

text:
    FELICIA PIEROT BRODY v. CARY BRODY
    (AC 34183)
    Gruendel, Beach and Sullivan, Js.

      Argued May 16
    officially released September 10, 2013

      M. Caitlin S. Anderson, with whom, on the brief, was Steven D. Ecker, for the appellant (defendant).

      Gary I. Cohen, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, Cary Brody, appeals from two of the trial court’s judgments granting the motions filed by the plaintiff, Felicia Pierot Brody, for contempt for his failure to comply with support and property distribution orders, and from an order of compliance issued by the trial court. Specifically, the defendant claims that (1) on December 9, 2011, the court improperly found him in contempt because it erroneously found that his noncompliance with the court’s support and property distribution orders entered in connection with the parties’ marital dissolution was wilful; (2) on March 5, 2012, the court failed to make the necessary finding of wilfulness to support its judgment of contempt; and (3) his appeal of the court’s March 12, 2012 order of compliance should be dismissed as moot. We reverse the March 5, 2012 judgment of contempt and affirm the judgments in all other respects.

The following facts, as set forth by this court in a prior appeal, are relevant to the resolution of the defendant’s appeal. “The parties met in 1997 and started dating shortly thereafter. The plaintiff was a securities trader and was engaged in the business of ‘flipping’ initial public offerings of securities. The defendant had worked for two different hedge funds, and, in 1998, he started his own hedge fund, named Colonial Fund, LLC (fund). . . .

“In April, 2000, the parties decided to marry. The parties negotiated and signed a prenuptial agreement, under which they retained their separate assets as disclosed on financial statements that were attached to the prenuptial agreement. At the time of their marriage, the defendant’s net worth was approximately $46 million and the plaintiffs net worth was approximately $29 million. On April 29, 2000, the parties were married in Provence, France. . . .

“In 2002, the parties . . . jointly purchased a home on Husted Lane in Greenwich (Husted Lane property) for $5,950,000. Their first child was bom in September, 2002. The defendant expressed to the plaintiff that he did not want her to be employed because, as the president of his company, it ‘did not look good’ for her to be so employed. Furthermore, the defendant stated that he did not want the plaintiffs employees walking through the parties’ home and that it was ‘no longer an option’ for the plaintiff to continue working. Accordingly, the parties agreed that the plaintiff would close her business and focus on raising the children and maintaining the household and that the defendant would pay the family’s expenses. . . .

“After acquiring the Husted Lane property, the defendant voluntarily funded essentially all of the household’s common expenses. The parties enjoyed a comfortable lifestyle fueled by the defendant’s successes at work, and they had a second child. . . .

“During this time, however, the parties began discussing what the plaintiff perceived as the excessive spending of the defendant. Between 2005 and 2008, the plaintiff expressed to the defendant her unhappiness with his purchases of two airplanes, a wine cellar costing in excess of $100,000 and Ferrari automobiles. The defendant was drinking alcoholic beverages more than he had earlier in the marriage, and he was becoming verbally abusive of the plaintiff. From 2007 to 2008, the defendant continued to be verbally abusive of the plaintiff and started to become aggressive sexually with her. The plaintiff made it clear to the defendant that she was unhappy with his behavior, but the defendant was unreceptive to her concerns.

“Unknown to the plaintiff, the defendant’s income had started to decline in 2005. In 2007, the defendant’s partner in the fund called the plaintiff to inform her of significant losses in the fund and of hidden trades engaged in by the defendant. In October, 2007, the plaintiff learned, when it was announced publicly, that the Securities and Exchange Commission was prosecuting the fund and the defendant personally. The defendant had been aware of this investigation since July, 2003, but he had not told the plaintiff about it. The defendant assured the plaintiff that she did not have to worry, and the plaintiff continued to support the defendant. In May, 2008, the defendant accepted delivery of a new Ferrari.” (Footnote omitted.) Brody v. Brody, 136 Conn. App. 773, 776-78, 51 A.3d 1121, cert. granted, 307 Conn. 910, 53 A.3d 998 (2012).

“The defendant was served with divorce papers on July 1, 2008. . . . [After a trial], [i]n a memorandum of decision issued March 12, 2010, the court, Munro, J., ordered, among other things, the dissolution of the parties’ marriage. In connection with the dissolution judgment, the court ordered the defendant to pay the plaintiff $2,500,000 in lump sum alimony, to be paid as follows: $1 million on or before June 1, 2010, $1 million on or before June 1, 2011, and $500,000 on or before June 1, 2012.” (Footnote omitted.) Id., 779. The court also ordered, inter alia, that the defendant pay to the plaintiff child support of $7500 per month, $15,000 in health care expenses, and $250,000 representing the plaintiffs share of the proceeds from a joint loan made to a third party (Lewis loan) and certain of the plaintiffs attorney’s fees.

“On July 7, 2009, the [Securities and Exchange Commission (commission) had] obtained a judgment in the amount of $1,330,054.32 against the defendant in New York federal district court. See Securities & Exchange Commission v. Colonial Investment Management, LLC, 659 F. Supp. 2d 467, 503 (S.D.N.Y. 2009), aff'd, 381 Fed. Appx. 27 (2d Cir. 2010). This judgment was disclosed to the court during the dissolution proceeding. On September 3,2010, the court, Malone, J., granted the plaintiffs postjudgment motion for an ex parte restraining order. The order provided in relevant part: ‘That the [defendant is enjoined and restrained from spending, giving away, dissipating, pledging or in any other way, impairing his interest in any asset disclosed on his September 2, 2010 financial affidavit, including, but not being limited to, interests in investment accounts . . . private placement partnerships, jewelry, wine, or other personal property or any other asset whatsoever, unless the [defendant first secures the permission of the [p]laintiff or an order of the court permitting him to invade or dispose of an interest in any such asset.’

“On October 12, 2010, the plaintiff filed a postjudgment motion for contempt. The motion alleged that, in response to the judgment in favor of the commission, the defendant transferred approximately $250,000 from his personal account in the fund to an account for Colonial Investment Management, LLC. After a hearing, the court, Munro, J., granted the motion for contempt in a written order issued November 29, 2010. The order stated in relevant part: ‘[T]he court finds that the defendant violated the restraining order by transferring funds to facilitate the payment of his court ordered obligation to the . . . [commission pursuant to a judgment entered against him. The defendant argues that his conduct was not contemptuous. Indeed it was. The defendant was subject to a clear and unambiguous order that he could comply with by doing nothing. Instead he made a transfer to facilitate the payment of a creditor he deemed more of a priority than the plaintiff. While one could argue it was a [Hobson’s] choice that the defendant faced, it was still in clear and wilful violation of the injunctive order issued by Judge Malone. Whichever burden of proof is applied, the plaintiff has satisfied it: by clear and convincing evidence this contempt is proven.’ ” Brody v. Brody, supra, 136 Conn. App. 797-98.

“As a remedial measure for its November 29, 2010 finding of contempt, the court provided: ‘The plaintiff is entitled to a reasonable attorney’s fee for prosecuting this motion and shall submit an affidavit for the same within [twenty-one] days. Within [twenty-one] days, the defendant shall inventory all of the watches and all of the wine at his residence, or in his possession or control, and turn over the inventory to the plaintiff. The defendant shall cause all of the same to be delivered to such location as the plaintiff designates at his cost for her to safe keep [pending] appeal; said sum shall be held as security for sums due her under the court’s decision until further order of the court.’

“In [another] postjudgment motion for contempt dated January 27, 2011, the plaintiff alleged that, while retrieving the parties’ children from the defendant’s home, she observed that the defendant was wearing a gold A. Lange & Sohne watch. The plaintiffs motion asserted that the defendant previously had testified, in connection with the court’s November 29, 2010 finding of contempt ordering him to turn over his watches to a third party custodian, that he no longer had possession of this watch. The plaintiff maintained that the court should find the defendant in contempt for his failure to deliver this watch to the custodian designated by the plaintiff. After a hearing on this motion, the court, Wenzel, J., found the defendant in contempt in an order issued April 28, 2011.” Id., 800-801. The defendant appealed from the dissolution judgment and these findings of contempt, which this court affirmed. Id., 776.

On December 9, 2011, the court, Munro, J., found the defendant in contempt for failure to pay by the established due dates (1) the first two lump sum payments of alimony totaling $2 million, (2) $15,000 in health care expenses, and (3) $175,000 of the proceeds from the Lewis loan. On March 5, 2012, the court, Emons, J., again found the defendant in contempt for his failure to pay child support. One week later, on March 12, 2012, the court, Emons, J., ordered that the defendant pay to the plaintiff, within thirty days, the $15,000 in health care expenses that were a part of the parties’ dissolution judgment. From those judgments, the defendant now appeals.

I

FINDINGS OF CONTEMPT

The defendant first challenges the judgments of contempt rendered on December 9, 2011, and March 5, 2012. He claims that on December 9, 2011, the court improperly found him in contempt because it erroneously found to be wilful his noncompliance with the orders issued as part of the dissolution judgment. The defendant also claims that on March 5, 2012, the court improperly found him in contempt because it failed to make the requisite finding of wilfulness to support a judgment of contempt. We agree only with respect to the March 5, 2012 judgment.

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. ... If the underlying court order was sufficiently clear and unambiguous, we . . . determine whether the trial court abused its discretion in issuing . . . a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citation omitted; internal quotation marks omitted.) Johnson v. Johnson, 111 Conn. App. 413, 420-21, 959 A.2d 637 (2008). “[T]his court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . [E]very reasonable presumption will be given in favor of the trial court’s ruling, and [n]othing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Gray v. Gray, 131 Conn. App. 404, 408-409, 27 A.3d 1102 (2011).

“To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Scott v. Scott, 90 Conn. App. 883, 889, 879 A.2d 640 (2005). “The inability of a party to obey an order of the court, without fault on his part, is a good defense to the charge of contempt. . . . The contemnor must establish that he cannot comply, or was unable to do so.” (Citation omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998).

A

December 9, 2011 Judgment of Contempt

The defendant claims that the court improperly granted the plaintiffs motion for contempt because it erroneously found that his failure to pay $2 million in lump sum alimony and $175,000 of the Lewis loan proceeds was wilful. Specifically, he argues that because of his dearth of financial resources, his failure to pay was not wilful; rather he was simply unable to comply with the orders of the court. We are not persuaded.

In its memorandum of decision on the plaintiffs motion for contempt, after noting that the defendant’s failure to pay any portion of the orders was undisputed, the court set forth its findings with respect to the defendant’s financial situation: “While [the defendant] has suffered significant adverse financial circumstances over the past eighteen . . . months, during calendar year 2011, he continued to receive income of no less than $55,000 per month through July, 2011, $43,000 in August, 2011, and $50,000 in September, 2011. All the while during this time his company made significant strides reducing its overhead. . . . The defendant has made no more than nominal income since October 14, 2011.” The court noted that it considered “both the defendant’s wilful nonpayment of any sums from his income . . . and his inability to reach his assets [under the terms of the restraining order]” and further explained the basis for its finding, nevertheless, that the defendant’s failure to make the ordered payments was wilful, stating that “[t]he failure of the defendant to pay, even in part, any moneys toward the obligations . . . was wilful. While his affidavits have disclosed that his cash flow has been in the negative, the evidence conclusively demonstrated that [the defendant] has paid many nonessential personal expenses ahead of his court-ordered obligations to the plaintiff. Therefore, the court concludes that . . . the defendant wilfully failed to pay these clear and unambiguous court orders, at least in part.” The court concluded by granting the defendant’s request to access assets subject to the restraining order to satisfy his obligations.

The defendant argues that the court erroneously found his failure to pay was wilful because his income had substantially decreased and he could not access his assets, as they were subject to a restraining order. This argument, however, ignores the court’s undisputed factual finding that the defendant chose to prioritize the payment of his own nonessential expenses over the payment owed to the plaintiff. In light of the defendant’s choice to decline to honor his obligations to the plaintiff, in favor of making expenditures for his own benefit, we cannot conclude that the court erroneously found that his failure to pay any amount in satisfaction of the court’s orders was wilful. Because we have determined that the court’s finding of wilfulness is supported by the record, we conclude that the court did not abuse its discretion in granting the plaintiffs motion for contempt.

B

March 5, 2012 Judgment of Contempt

The defendant next claims that the court improperly found him in contempt of its order to pay $7500 per month in child support because it did not find that his noncompliance with the order was wilful. We agree.

Following a hearing on the plaintiffs motion for contempt for the defendant’s failure to comply with his child support obligations, the court issued an oral decision granting the plaintiffs motion. During the hearing, the defendant testified that he had recently leased a home, for which he had paid $14,000 as a security deposit, and would pay $7000 per month in rent. When asked by the plaintiffs counsel whether he had borrowed money in the three months preceding the hearing, the defendant testified that he had borrowed $21,000 to secure his rental home and another $20,000. The defendant also testified that he owned a car outright in addition to his leased car, for which the monthly payment was $1400.

The court issued its decision from the bench, stating that “[ajnybody who pays a rent of [$7000] a month and a [$1400] lease payment on a car with loaned money when you have the obligations that you do clearly is not seeing the world in a reasonable way. I am going to find you in contempt . . . .” The court then ordered that the defendant pay in full the child support by the end of the month. The court did not opine as to whether the defendant’s failure to pay was wilful.

For the court to properly find a party in contempt, that party’s noncompliance with the court’s order must be wilful. See Scott v. Scott, supra, 90 Conn. App. 889 (“[n]oncompliance alone will not support a judgment of contempt” [internal quotation marks omitted]). Here, the court did not address the question of the defendant’s wilfulness as a basis for finding him in contempt. Because the court did not make the requisite finding as to the wilfulness of the defendant’s failure to pay child support, we conclude that it abused its discretion in granting the plaintiffs motion for contempt.

II

ORDER OF COMPLIANCE

Finally, the defendant appears to argue that his appeal of the court’s order of compliance should be dismissed as moot. Because the doctrine of mootness is inapplicable to the defendant’s claim and he has briefed no other arguments in support of his challenge to the order, we do not review the merits of this claim.

After a hearing on March 12, 2012, the court ordered that the defendant comply with its previous orders requiring that he pay to the plaintiff $16,000 to reimburse her for his share of the family’s health care expenses. On April 9,2012, the defendant complied with that order by paying $15,000 to the plaintiff. He now appeals from that order.

A

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . .

“Concentrating on the fourth factor for justiciability, [i]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Adziovski v. Elezovski, 118 Conn. App. 346, 348-49, 985 A.2d 345 (2009). “Mootness implicates this court’s subject matter jurisdiction, raising a question of law over which we exercise plenary review.” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 279, 933 A.2d 256 (2007).

Although the defendant has made the court ordered payment to the plaintiff, the case is not moot. This court could, if the defendant were to demonstrate reversible error by the trial court, grant the defendant relief from that order. Because there is practical relief that this court could offer to the defendant, we cannot conclude that his appeal is moot.

B

The defendant, in his appellate brief, has set forth no basis for his appeal of the court’s order of compliance other than mootness. “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). Because this court will not supply an argument where the appellant has presented none, we do not reach the merits of his claim. See id., 408 (“[t]his court is not an advocate for any party” [internal quotation marks omitted]).

The judgment of contempt rendered on March 5,2012 is reversed; the judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant asserts that there is a question as to whether the court’s March 12, 2012 oral decision is a finding of contempt or an order of compliance. Both parties, however, in their briefs to this court, agree that it was an order of compliance. Because there is no dispute as to this issue, we will not address it.

       Our Supreme Court has granted certification to appeal this court’s decision, limited to the issues of (1) “Did the Appellate Court properly determine that the trial court’s judgment was not based upon a finding of adulterous conduct on the part of the defendant?”; (2) “Did the Appellate Court properly determine that a contractual release of ‘any and all claims arising out of the plaintiffs investment in [Colonial Fund, LLC]’ did not include the plaintiffs claims for alimony arising from the plaintiffs investment in Colonial Fund, LLC?”; and (3) “Did the Appellate Court properly determine that the standard of proof in civil contempt proceedings was the ‘preponderance of the evidence’ standard?” Brody v. Brody, 307 Conn. 910, 53 A.3d 998 (2012).

       The court permitted the defendant to access his retirement account to pay the child support.

       We are confounded as to why the defendant, if he believes his own appeal to be moot, has not elected to withdraw it.

       There is no dispute between the parties that the defendant has complied with the court’s order.