text:
    STATE OF CONNECTICUT v. SHIRAN LEE-RIVERAS
    (AC 30082)
    DiPentima, C. J., and Gruendel and West, Js.

      Argued March 17
    officially released August 9, 2011

      John R. Gulash, for the appellant (defendant).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Joseph Harry, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Shiran Lee-Riveras, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and assault in the first degree in violation of General Statutes § 53a-59 (a) (4). On appeal the defendant claims that (1) his due process right to a fair trial, as guaranteed by the fourteenth amendment to the United States constitution, was violated when the state elicited testimony describing his silence after he had received a Miranda warning in violation of Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and (2) the trial court violated his sixth amendment right to confrontation when it restricted his cross-examination of the state’s key witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 29, 2006, the defendant, Roberto Sanchez, Raul Pagan, Kevin Glenn and another individual, indentified only as “R-Dot,” devised a plan to rob a delivery driver. R-Dot, using his cell phone, placed an order for two pizzas, buffalo wings and two bottles of soda with Crossroads Pizza and requested that the order be delivered to an abandoned house at 297 Dover Street in Bridgeport. R-Dot informed the person who took his order that he would pay with a one hundred dollar bill and requested that the delivery driver bring sufficient change to accommodate his payment. Paulo Carvalho, worked as a delivery driver at Crossroads Pizza and was assigned to deliver R-Dot’s order.

At approximately 8 p.m., Carvalho arrived at 297 Dover Street with the pizza order. Sanchez and Pagan were waiting for him on the porch, and the defendant, R-Dot and Glenn waited in a dark alley adjacent to the house. Sanchez informed Carvalho that the pizzas were for him but that Carvalho would need to wait to be paid because his mother was upstairs in the bathroom. Carvalho placed the heavy pizzas on the stoop, and then Sanchez pushed him off the stairs. The defendant, R-Dot and Glenn then immediately exited the alley and attacked Carvalho from behind. The defendant, R-Dot, Glenn, Sanchez and Pagan beat Carvalho and dragged him into the alley. During the assault, Glenn took Carvalho’s money and another member of the group took his cell phone. Pagan took the bottles of soda. The defendant, R-Dot, Glenn, Sanchez and Pagan then retreated to Glenn’s basement, where they split the money and ate the food. Carvalho managed to return to Crossroads Pizza where an ambulance was summoned, and the incident was reported to the police. Carvalho was taken to Bridgeport Hospital where he was treated for lacerations to his face, a broken nose, broken ribs and an injury to his knee that required surgery.

During the subsequent police investigation, Dennis Martinez, a detective with the robbery division of the Bridgeport police department, obtained the cell phone number of Sanchez’ mother. After Martinez spoke with Sanchez’ father, Sanchez was brought to the police station two days after the robbery and gave a written statement to police. In his statement, Sanchez admitted to participating in the robbery of Carvalho and implicated the defendant, Glenn, R-Dot and Pagan. Six days later, Pagan gave a written statement to the police admitting his participation in the crime and implicated the same parties. The defendant later was arrested and charged with one count each of robbery in the first degree in violation of § 53a-134 (a) (1), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (1) and assault in the first degree in violation of § 53a-59 (a) (4).

The defendant’s first trial resulted in a verdict of not guilty of conspiracy to commit robbery and a hung jury and mistrial with respect to the remaining two counts. Thereafter, the defendant was again charged with robbery in the first degree and assault in the first degree. The defendant’s second trial resulted in a verdict of guilty on both counts. The court rendered judgment in accordance with the jury’s verdict and sentenced the defendant to a total effective sentence of seven years incarceration followed by three years of special parole. This appeal followed.

I

The defendant first claims that his due process right to a fair trial as guaranteed by the fourteenth amendment to the United States constitution was violated when the state elicited testimony describing his post-Miranda silence in violation of Doyle v. Ohio, supra, 426 U.S. 610. Specifically, the defendant calls our attention to four instances in the record where he claims that the state improperly elicited testimony of, or commented on, his failure to reveal his alibi to police. Because the defendant did not preserve his claims at trial he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant’s right to a fair trial was not violated.

The following additional facts are necessary to resolve this claim. At trial, Martinez testified that he visited the defendant’s home twice during his investigation of the robbery. The first visit ended abruptly when Martinez voiced his suspicion that the defendant was involved in the robbery. After Martinez obtained an arrest warrant for the defendant, he visited the defendant’s home a second time to take him into custody. Martinez further testified that he “believe[d]” that he gave the defendant a Miranda warning, although the record is unclear precisely when it was given. Martinez also testified that he did not speak with the defendant again after the two encounters with him at the defendant’s home.

We set forth the legal principles that guide our analysis and our standard of review. “In Doyle [v. Ohio, supra, 426 U.S. 610] . . . the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process.” (Internal quotation marks omitted.) State v. Lockhart, 298 Conn. 537, 580, 4 A.3d 1176 (2010). Likewise, our Supreme Court has “recognized that it is also fundamentally unfair and a deprivation of due process for the state to use evidence of the defendant’s post-Miranda silence as affirmative proof of guilt . . . .” (Citations omitted.) Id., 581. “Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.” (Internal quotation marks omitted.) State v. Berube, 256 Conn. 742, 752, 775 A.2d 966 (2001). “Because it is the Miranda warning itself that carries with it the promise of protection . . . the prosecution’s use of silence prior to the receipt of Miranda warnings does not violate due process.” (Emphasis added; internal quotation marks omitted.) Id., 753. Therefore, as a factual predicate to an alleged Doyle violation, the record must demonstrate that the defendant received a Miranda warning prior to the period of silence that was disclosed to the jury. See State v. Leecan, 198 Conn. 517, 531, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); see also Fletcher v. Weir, 455 U.S. 603, 605-606, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982). The defendant’s claim raises a question of law over which our review is plenary. See State v. Fluker, 123 Conn. App. 355, 363, 1 A.3d 1216, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

The defendant first calls our attention to testimony that the state elicited from Martinez during direct examination in its case-in-chief. After a review of the record, however, we conclude that Martinez commented only on the defendant’s failure to reveal his alibi to police prior to his arrest, and the record lacks any indication that the defendant had received a Miranda warning prior to his arrest. See State v. Leecan, supra, 198 Conn. 524-25 (no Doyle violation where record lacks indication that Miranda warning preceded referenced silence); see also Fletcher v. Weir, supra, 455 U.S. 603. Accordingly, this claim fails under Golding's first prong. See State v. Berube, supra, 256 Conn. 751.

The defendant next claims that a Doyle violation occurred during the state’s redirect examination of Martinez. Our review of the record, however, reveals that defense counsel opened the door to this line of questioning during her cross-examination of Martinez. “[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).

During her cross-examination of Martinez, defense counsel elicited testimony that the defendant had cooperated with police during their investigation and his subsequent arrest. Moreover, defense counsel asked Martinez four times whether he had asked the defendant if he had an alibi, thereby creating the impression that the defendant had failed to disclose any alibi during his arrest solely because he was not asked to do so. Thus, defense counsel sought to explain the defendant’s failure to offer an alibi to police during his arrest and implied that his silence was of probative value. The state was therefore permitted to rebut this inference. Several of the United States Courts of Appeals have recognized an exception to Doyle when evidence of the defendant’s post-Miranda silence is used to impeach testimony pertaining to the defendant’s level of cooperation during arrest. See United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994); Stone v. Estelle, 556 F.2d 1242, 1245 (5th Cir. 1977), cert. denied, 434 U.S. 1019, 98 S. Ct. 742, 54 L. Ed. 2d 767 (1978); United States v. Conlin, 551 F.2d 534, 537 (2d Cir. 1977), cert. denied, 434 U.S. 831, 98 S. Ct. 114, 54 L. Ed. 2d 91 (1977); United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975) (“[h]aving . . . raised the question of his cooperation with the law enforcement authorities, [the defendant] opened the door to a full and not just a selective development of that subject”). Accordingly, under the circumstances of this case, we conclude that the colloquy identified by the defendant did not contain a violation of Doyle, and, consequently, his claim fails under Golding's third prong.

Finally, we conclude that the prosecutor did not violate Doyle during his cross-examination of the defendant or during rebuttal closing argument to the jury. These claims are controlled by State v. Turner, 252 Conn. 714, 735, 751 A.2d 372 (2000), in which our Supreme Court “reject[ed] [the defendant’s] argument that Doyle v. Ohio, supra, 426 U.S. 619, blocks the effort by the state to demonstrate that [the defendant’s] alibi was recently fabricated.” As in Turner, the state’s questions on cross-examination and comment during rebuttal closing argument in the present case, which were very similar in substance to those made by the state in Turner, addressed the defendant’s general failure to disclose his alibi to police, not his silence after he had been taken into custody and given a Miranda warning. See State v. Turner, supra, 734 n.20. Accordingly, the defendant’s claims fail under the third prong of Golding.

II

The defendant next claims that he is entitled to a new trial because the court improperly restricted the scope of his cross-examination of the state’s two key witnesses in violation of his sixth amendment right to confrontation. We disagree.

The following additional facts are relevant to our analysis. At the defendant’s second trial, the state filed two motions in limine seeking to preclude the defendant from adducing certain evidence that had been admitted at the defendant’s first trial. After hearing argument from the parties, the court ruled that the defendant was not permitted to present any evidence of: (1) Sanchez’ membership in a gang, which Sanchez had admitted to in his written statement to police, (2) the facts surrounding an attempted robbery of a Chinese food delivery driver that had happened at the same location one week prior to the charged crime, and that Pagan and Sanchez had admitted to committing in their written statements to police, (3) Sanchez’ alleged false accusation of the defendant’s brother in a different juvenile matter occurring one month before the charged crime and (4) Sanchez’ juvenile probation status.

The defendant claims that the court violated his sixth amendment right to confrontation by restricting his ability to impeach Sanchez and Pagan by inquiring into these areas. Having failed to advance this sixth amendment argument at trial, the defendant seeks review of his claim pursuant to State v. Golding, supra, 213 Conn. 239-40. We conclude that the defendant’s sixth amendment right was not violated, and, consequently, the defendant’s claim fails under Golding's third prong.

We first set forth our standard of review and the legal principles that guide our discussion. “The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying.” (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 248-49, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). Thus, “[t]he confrontation clause . . . requires that the defendant be accorded some irreducible minimum of cross-examination into matters affecting the reliability and credibility of the state’s witnesses.” State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985). “[B]ecause cross-examination is the principal means by which the credibility of witnesses and the truth of their testimony is tested . . . [c]ross-examination concerning motive, interest, bias or prejudice ... is a matter of right and may not be unduly restricted.” (Citations omitted; internal quotation marks omitted.) State v. Lee, 229 Conn. 60, 69-70, 640 A.2d 553 (1994).

“[T]he confrontation clause does not [however] suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 9, 1 A.3d 76 (2010). “[T]rial judges retain wide latitude insofar as the [confrontation [c]lause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things . . . prejudice, confusion of the issues ... or interrogation that is . . . only marginally relevant. . . . Thus, the confrontation right is not absolute and is subject to reasonable limitation.” (Citation omitted; internal quotation marks omitted.) State v. Lee, supra, 229 Conn. 70-71. “Although it is within the trial court’s discretion to determine the extent of cross-examination . . . the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment.” (Emphasis added.) State v. Colton, supra, 227 Conn. 249.

“We traditionally apply a two part analysis to determine whether a party has been deprived of effective cross-examination. First, we determine whether the defendant received the minimum opportunity for cross-examination of adverse witnesses required by the constitution.” (Internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 286, 889 A.2d 821 (2006). This constitutional requirement is met if the court allows “the defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Swinton, 268 Conn. 781, 833, 847 A.2d 921 (2004). “Whether limitations on impeachment, including cross-examination, are so severe as to violate the confrontation clause of the sixth amendment is a question of law reviewed de novo.” State v. Abernathy, 72 Conn. App. 831, 837, 806 A.2d 1139, cert. denied, 262 Conn. 924, 814 A.2d 379 (2002).

Second, if the constitutional minimum is met, we then consider whether the trial court’s restriction of cross-examination amounted to an abuse of discretion under the rules of evidence. State v. Liborio A., supra, 93 Conn. App. 286. To establish an abuse of discretion, the defendant bears the burden of demonstrating that the restrictions placed on his cross-examination were “ ‘clearly prejudicial,’ ” and we apply every reasonable presumption in favor of the court’s ruling. Id., 287.

After a thorough examination of the record, we conclude that the court did not violate the defendant’s sixth amendment right to confrontation. The defendant was not unduly restricted in his cross-examination of Pagan and Sanchez for purposes of establishing their motive and interest to testify favorably for the state or their prejudice and bias against the defendant. The defendant first claims that Sanchez’ admitted gang membership was relevant to show that both Sanchez and Pagan had an interest in offering testimony against the defendant in order to protect other gang members who had actually participated in the robbery. As noted by the trial court in its ruling, however, there was no evidence from the first trial that the robbery was gang related, nor was there any evidence that Pagan was also in the gang. “A defendant . . . may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right [of confrontation] is not violated.” State v. Cerreta, 260 Conn. 251, 261, 796 A.2d 1176 (2002).

The defendant next asserts that the facts surrounding the attempted robbery of the Chinese food delivery driver that Pagan and Sanchez had admitted to were also relevant to the witnesses’ motive or interest because the jury would be unable to assess the magnitude of the benefit that the witnesses were receiving from the state by not being prosecuted for such a crime without understanding the severity of the crime. The court, however, did allow the defendant to impeach the witnesses for motive by ruling that the defendant could ask Sanchez and Pagan if they had participated in an attempted robbery prior to the crime charged against the defendant and whether the state had prosecuted them for this crime.

The record reveals that the defendant cross-examined Sanchez on this issue and demonstrated to the jury that Sanchez had participated in an attempted robbery four days prior to the robbery of Carvalho and that the state did not prosecute him for that crime. In addition, Sanchez admitted that some of his testimony at the defendant’s first trial was false and that the state had provided him with immunity from charges of perjury stemming from such untruthful testimony. Finally, Sanchez acknowledged that the robbery of Carvalho was a serious crime, one for which he had been charged only as a youthful offender and had received a lenient sentence. The defendant did not ask Pagan if he had committed the attempted robbery or if he had been charged for doing so during her cross-examination of him. “[T]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Internal quotation marks omitted.) State v. Davis, supra, 298 Conn. 10.

The defendant also argues that evidence that Sanchez falsely had accused the defendant’s brother of an unrelated crime one month prior to the robbery in the present case showed that Sanchez was biased toward the defendant’s family. As noted by the court, however, there is nothing in the record to indicate that the accusation made by Sanchez against the defendant’s brother was false. To the extent that this accusation, by virtue of it being made, reveals an identifiable animosity between Sanchez and the defendant’s family and, thus, is probative of a bias or prejudice, the record reveals that the defendant was able to expose any such bias or prejudice to the jury by alternate means. Sanchez testified on cross-examination that the defendant’s mother “threw [him] out of [her] house.” The defendant’s mother corroborated this fact when she testified that Sanchez was not the defendant’s friend and was not allowed in her house at the time of the robbery. The defendant’s mother similarly testified that Pagan was not allowed in her house at the time of the robbery and that she had banned him from the house. Our Supreme Court has “consistently held that when an accused has had the opportunity to elicit evidence of bias, not every limitation of the right to cross-examine is of constitutional dimension.” State v. Lewis, 220 Conn. 602, 621-22, 600 A.2d 1330 (1991).

Finally, the defendant claims that when Sanchez gave his written statement to the police implicating himself and the defendant, he was on juvenile probation. Thus, according to the defendant, Sanchez was motivated to become “ ‘locked in’ ” to a statement to avoid being charged with a violation of probation. A review of the record, however, reveals that Sanchez gave his written statement to the police, admitting to participating in the assault and robbery of Carvalho and the attempted robbery of another delivery driver, prior to being arrested for any crime. We fail to understand how the avoidance of a violation of juvenile probation charge could serve as motive to admit to two very serious crimes with which a person has not yet been charged with. Accordingly, the court correctly concluded that Sanchez’ status on juvenile probation did not tend to show motive or interest in giving a written statement favorable to the state.

In sum, only Sanchez’ allegedly false accusation of the defendant’s brother was offered to establish the witnesses’ motivation, interest, bias or prejudice, and this precluded field of inquiry was covered adequately by other questions. The record reveals that the defendant engaged in a thorough cross-examination of both Sanchez and Pagan and exposed to the jury the many inconsistencies between their testimony and the substance of their written statements or their testimony at the first trial. The defendant used the prior inconsistent statements of Pagan and Sanchez on multiple occasions and, similarly, refreshed their recollection with the transcripts from the defendant’s first trial and their written statements. The defendant also addressed the fact that Sanchez had not told the truth during the first trial and the state had given him immunity from prosecution for perjury with respect to any contradictory testimony he gave at the second trial. Thus, the defendant had an adequate opportunity “to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness [es].” (Internal quotation marks omitted.) State v. Swinton, supra, 268 Conn. 833. Accordingly, the defendant’s constitutional right to confrontation was not violated. Consequently, the defendant’s claim fails under Golding's third prong.

Nor can we conclude that the court abused its discretion in excluding the evidence it did. The defendant has failed to carry his burden and establish that evidence of Sanchez’ admitted gang membership and status on juvenile probation were probative of a material issue at trial. Moreover, the limited probative value of the facts surrounding the attempted robbery was outweighed by the confusing effect the evidence could have on the jury. Finally, the court’s conclusion that inquiry into Sanchez’ alleged false accusation of the defendant’s brother in an unrelated matter would be unduly confusing to the jury was not an abuse of discretion. The court reasoned that the evidence did not bear directly on the case and was of “marginal relevance.” The court reasoned that the evidence had the potential to confuse the jury because the jury would need to resolve the issue of whether the accusation was false, which would require a familiarity with the facts of an unrelated case involving different people that had been dismissed. Moreover, there has been an inadequate showing that this exclusion has been clearly prejudicial to the defendant. See State v. Liborio A., supra, 93 Conn. App. 287. The defendant, consistent with his theory at trial that he would not have planned a robbery at his own home with someone who was unwelcome in his home, was able to elicit evidence that Sanchez was banned from the defendant’s home by the defendant’s mother. After a thorough review of the record, we conclude that the court’s granting of the state’s motion in limine did not constitute an abuse of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       We note, however, that at his first trial, a jury found the defendant not guilty of the crime of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (1).

       One week prior to this incident, Sanchez had used his mother’s cell phone in the commission of the attempted robbery of another delivery driver.

       Sanchez and Pagan were arrested and charged as juveniles for their involvement in this robbery. Glenn was arrested and pleaded guilty under the Alford doctrine; see North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); however, police were never able to determine the identity of R-Dot.

       The defendant also claims that the state violated his right to a fair trial as protected by article first, § 8, of the Connecticut constitution. The defendant, however, has failed to set forth a separate legal analysis of his state constitutional claims. We, therefore, confine our analysis to the claims brought by the defendant under the federal constitution. See State v. Diaz, 109 Conn. App. 519, 529 n.5, 952 A.2d 124, cert. denied, 289 Conn. 930, 958 A.2d 161 (2008).

       Pursuant to State v. Golding, supra, 213 Conn. 239-40, a defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.)

       We note that for purposes of analysis under Doyle, a distinction exists between postarrest silence and post-Miranda silence. Evidence of a defendant’s postarrest silence is inadmissible under principles of the law of evidence; therefore, “a defendant must seasonably object and take exception to an adverse ruling in order to obtain appellate review of his claim of error in this respect.” State v. Leecan, 198 Conn. 517, 526-27, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). Pursuant to Doyle, however, only post-Miranda silence is afforded constitutional protection under the due process clause of the federal constitution. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982); State v. Leecan, supra, 525. “Doyle applies whenever Miranda warnings have been given regardless of an arrest or custody.” State v. Plourde, 208 Conn. 455, 466, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989).

       The defendant calls our attention to the following colloquy between the prosecutor and Martinez on direct examination:
      “[The Prosecutor]: Okay And at any point prior to the arrest, the first time you talked to the defendant, at any point between that point, the time you came back, did the defendant or anyone else call you and say the defendant had an alibi?
      “[Martinez]: No.
      “[The Prosecutor]: At any point did they say, you know, give you any names or any way that you could have checked or verified his location?
      “[Martinez]: No.
      “[The Prosecutor]: Now, where did you go after you arrested him?
      “[Martinez]: We brought him to the detective bureau, I believe, and he was brought to the police department for processing.
      “[The Prosecutor]: Now, at any time did you threaten him or did you read him his Miranda rights?
      “[Martinez]: You know, I don’t even recall, I believe we did, but I don’t believe we spoke to him at all again after our initial two meetings with him.
      “[The Prosecutor]: Okay. And at any point did you threaten him?
      “[Martinez]: No.
      “[The Prosecutor]: Did you give him any opportunity to speak to you?
      “[Martinez]: We gave him an opportunity to speak with us, but again, he never, like [Glenn], never spoke with us.”

       Citing to State v. Angel T., 292 Conn. 262, 286 n.19, 973 A.2d 1207 (2009), where, in dictum, our Supreme Court noted that “there is a division of authority as to whether the use of a defendant’s prearrest silence as substantive evidence of his guilt is constitutionally permissible under the fifth amendment,” the defendant claims that his fifth amendment right against self-incrimination was violated by repeated reference to his prearrest silence at trial. We are not persuaded. We note initially that neither the United States Supreme Court nor the United States Court of Appeals for the Second Circuit has addressed this issue. Furthermore, notwithstanding the observation in Angel T., our Supreme Court has stated that Connecticut courts follow “the general principle that prearrest silence under circumstances where one would naturally be expected to speak may be used either as an admission or for impeachment purposes.” State v. Leecan, supra, 198 Conn. 522; accord State v. Walker, 206 Conn. 300, 306, 537 A.2d 1021 (1988); see also State v. Esposito, 223 Conn. 299, 320, 613 A.2d 242 (1992) (question addressing defendant’s silence “should not be allowed on retrial unless its context clearly indicates that it refers only to the defendant’s prearrest silence” [emphasis in original]); C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 8.16.6 (b), p. 494 (“[p]re-arrest silence is admissible as an implied admission or to impeach”). Moreover, the record does not indicate that the defendant unambiguously invoked his right to remain silent. See State v. Fluker, supra, 123 Conn. App. 365-67 (analyzing whether defendant had first invoked fifth amendment right to remain silent prior to analyzing whether it was violated). We note, for example, that the defendant testified that when Martinez came to his house, he did not express his desire not to answer any of Martinez’ questions; rather, he told Martinez that he didn’t know anything about the robbery. Accordingly, we conclude that the state’s repeated reference to the defendant’s prearrest and pie-Miranda failure to provide police with his alibi was not a violation of the defendant’s fifth amendment right to remain silent.

       The transcript reveals the following colloquy between the prosecutor and Martinez on redirect examination.
      “[The Prosecutor]: At any time from October 29,2006, to the present date, did you ever obtain information that would have led [you to a conclusion] that the defendant was claiming an alibi?
      “[Martinez]: No.
      “[The Prosecutor]: Okay.
      “[Martinez]: No one ever contacted us on his behalf.
      “[The Prosecutor]: After arresting him, did he say, you know, I have an alibi?
      “[Martinez]: No.
      “[The Prosecutor]: I was somewhere else?
      “[Martinez]: No, he never stated anything.
      “[The Prosecutor]: Okay. I was with somebody else?
      “[Martinez]: Nope.”

       The transcript reveals the following exchange between defense counsel and Martinez during cross-examination.
      “[Defense Counsel]: Okay. And were you able to have a conversation with [the defendant when you took him into custody]?
      “[Martinez]: I didn’t really speak to him other than to tell him that I had a warrant for his arrest and he was being arrested.
      “[Defense Counsel]: So, you didn’t ask him any questions?
      “[Martinez]: No.
      * ** *
      “[Defense Counsel]: Okay. And did you ask [the defendant] if he had an alibi?
      “[Martinez]: We, again, attempted to speak to him like we afforded everybody else—
      “[Defense Counsel]: My question is did you ask him if he had an alibi?
      “[Martinez]: Did I ask him? No.
      “[Defense Counsel]: Okay. Did you ask him where he was that night?
      “[Martinez]: He didn’t want to talk to us, so me asking him any questions would have been no.
      “[Defense Counsel]: My question is—
      “[Martínez]: No, I didn’t ask him.
      “[Defense Counsel]: —did you ask him?
      “[Martínez]: No.

        “[The Prosecutor]: Objection, Your Honor. He has—if the Miranda [warning] was given, he’d have to waive it. Counsel’s going to open that door, Your Honor, then I’m going to be able to ask these questions.
      “[The Court]: Well, she’s asked the questions, he’s given the answers, you can ask whatever you want on redirect.
      “[The Prosecutor]: Thank you, thank you.
      “[Defense Counsel]: So, no further attempts were made to question [the defendant]?
      “[Martinez]: No.”

       In Doyle v. Ohio, supra, 426 U.S. 619 n.11, the United States Supreme Court stated: “It goes almost without saying that the fact of postarrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.”

       The defendant calls our attention to the following colloquy during the state’s cross-examination of the defendant:
      “[The Prosecutor]: Okay. Now, did you ever tell the police that you were with [Glenn] the night of the robbery?
      “[The Defendant]: Yeah, not—nothing about no [Glenn]. I just told them I do not know nothing.
      “[The Prosecutor]: You didn’t—you didn’t think to tell the police, hey, I was with somebody that night, go ask him.
      “[The Defendant]: The police didn’t ask me that question.
      “[The Prosecutor]: No. So, they didn’t ask you if you had an alibi, but now you come into court saying oh, I was with somebody, is that correct?
      “[Defense Counsel]: Objection.
      “[The Prosecutor]: Is that what you are saying?
      “[The Defendant]: Because I know I was with somebody.
      “[The Court]: Hold on a second. The objection is? The objection is what? What’s your objection?
      “(There was no response)
      “[The Court]: Okay. The objection is withdrawn.
      “[Defense Counsel]: I don’t—
      “[The Court]: Put your next question, please.
      “[The Prosecutor]: The fact is you never told anyone about any alibi, correct?
      “[The Defendant]: Like, what you mean?
      “[The Prosecutor]: Where you were, who you were with. Until you’ve testified, you’ve never told anybody, correct?
      “[The Defendant]: Only my lawyer.”

       The prosecutor made the following argument during rebuttal closing argument:
      “[The Prosecutor]: Now, remember this. He has an alibi. [Glenn] has an alibi; never told anyone.
      “[Defense Counsel]: Objection.
      “[The Court]: Objection sustained to that. They never told any police official.
      “[The Prosecutor]: Any police official. Is it reasonable? You get charged with a robbery and assault. Do you think you would have said T was with her; I was with him; I was here; I was there; ask them.’ Never said—‘because they didn’t ask me.’ Well, what would be the first words out of a reasonable person’s mouth if, when they get accused of something, ‘I didn’t do it. Here’s where I was. Here’s where—here’s the people’s names I was with.’ ”

       “If we conclude that the court improperly restricted the defendant’s opportunity to impeach a witness for motive, interest, bias or prejudice, we then proceed with a harmless error analysis.” State v. Hedge, 93 Conn. App. 693, 698, 890 A.2d 612, cert. denied, 277 Conn. 930, 896 A.2d 102 (2006).

       Pagan did not admit to being a gang member in his statement to the police, and he denied such membership at the defendant’s first trial.

       In the attempted robbery, Pagan allegedly stuck a knife in the delivery driver’s window and attempted to stab him.

       At trial, the defendant claimed that Pagan, in his admission to the attempted robbery of the Chinese food delivery man, recounted that Glenn had helped plan the robbery and that Pagan and Sanchez retreated to Glenn’s basement after the robbery failed. In the defendant’s first trial both Pagan and Sanchez testified that all members of the group that committed the robbery of Carvalho also retreated to Glenn’s basement, but neither Pagan nor Sanchez could describe the interior of Glenn’s basement. Thus, the defendant argued that the facts of the attempted robbery were relevant to impeach the witnesses’ anticipated testimony that they could not describe what Glenn’s basement looked like. The court ruled that the factual details of the attempted robbery were highly prejudicial and had the potential to confuse the jury because the state was not proving the attempted robbery. We note also that Pagan’s statement to police stated only that Pagan and Sanchez went to Glenn’s “house” after the attempted robbery, not to Glenn’s basement.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HENRY J. MARTOCCHIO v. STEPHANIE A. SAVOIR ET AL.
    (AC 31363)
    Bear, Espinosa and Borden, Js.

      Argued May 23
    officially released August 9, 2011

      Henry J. Martocchio, pro se, the appellant (plaintiff).

      JoAnn Paul, for the appellees (defendant Roland Savoir et al.).
   Opinion

PER CURIAM.

The plaintiff, Henry J. Martocchio, appeals from the judgment of the trial court granting the motion for contempt brought by the defendants Roland Savoir and Tina Savoir (grandparents) and ordering that the plaintiff submit to a psychological evaluation. On appeal, the plaintiff claims, inter alia, that the court improperly concluded that he was in contempt of a previous court order and that the court abused its discretion in ordering that he submit to a psychological evaluation. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to this appeal. The plaintiff and Stephanie A. Savoir (mother) are the parents of a minor child. The parties were not married at the time of the minor child’s birth and the plaintiff was initially unaware that he was the child’s father. Subsequent paternity tests revealed that the plaintiff is the biological father of the minor child. In August, 2006, the child was diagnosed with autism spectrum disorder. On July 28, 2008, the court, Shluger, J., granted the plaintiff sole custody of the minor child. The court granted the grandparents visitation rights every other weekend and granted the mother visitation rights once a week during the grandparents’ visitation time or at a professional visitation facility. The court ordered that the mother and grandparents shall not interfere with the plaintiffs choice of physician, medication or educational options for the minor child.

In July, 2009, the grandparents brought a motion for contempt, claiming, inter alia, that the plaintiff prevented them from visiting with the minor child in accordance with Judge Shluger’s order. After a hearing, the court, Abery-Wetstone, J., found that the evidence “clearly indicates that there were clear court orders in [effect and] that father unilaterally decided he wasn’t going to follow those court orders and terminated contact between grandparents and grandchild.” The court, thereafter, held the plaintiff in contempt. Additionally, the court ordered that the plaintiff undergo a psychological evaluation before filing any other motions, after finding that the plaintiff lacked control in the courtroom and had an “extreme” attitude toward the care of his son. This appeal followed.

We begin by setting forth our well settled standard of review. “Our review of a judgment of contempt is limited. Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . Contempt may be civil or criminal in character. ... 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. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . The credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact.” (Citations omitted; internal quotation marks omitted.) Johnson v. Johnson, 111 Conn. App. 413, 420-21, 959 A.2d 637 (2008).

In the present case, we conclude that the court’s findings were not clearly erroneous and the court did not abuse its discretion in holding the plaintiff in contempt. There was a clear order of the court granting visitation rights to the grandparents. The plaintiff admitted violating that order by preventing the grandparents from visiting the minor child. The court found that there was no credible evidence that the grandparents were not properly administering the child’s medications and, as such, there was no good faith justification for the plaintiffs deliberate violation of the court order. Therefore, the court properly held the plaintiff in contempt.

Moreover, we conclude that the court did not abuse its discretion by ordering that the plaintiff undergo a psychological evaluation. “The court’s authority to impose civil contempt penalties arises not from statutory provisions but from the common law. . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both.” (Internal quotation marks omitted.) Gil v. Gil, 94 Conn. App. 306, 310, 892 A.2d 318 (2006). This court has held that the trial court has the discretion to order a contemnor to submit to a psychological evaluation if it is necessary to enforce a court’s earlier order. Johnson v. Johnson, supra, 111 Conn. App. 427 (“[a] trial court has the power even to incarcerate contemnors in civil contempt cases until they purge themselves . . . and we see no reason why it should not be able to order a contemnor to undergo a psychological evaluation if that is necessary to enforce the court’s earlier judgment” [citations omitted]).

We conclude that the court’s order that the plaintiff undergo a psychological evaluation was within its inherent power to ensure compliance with the court’s earlier judgment. The court ordered a psychological evaluation of the plaintiff after observing his behavior at the contempt hearing, which the court found evidenced his inability to control himself. The court also found, based on the plaintiffs testimony, that he had intentionally provided the grandparents with incorrect amounts of the minor child’s prescriptions and supplements, in an attempt to “catch the grandparents doing something wrong.” In light of these facts, we conclude that the court did not abuse its discretion in ordering the plaintiff to undergo a psychological evaluation. See Johnson v. Johnson, supra, 111 Conn. App. 426-27.

The judgment is affirmed.

       The defendants Roland Savoir and Tina Savoir are the parents of the named defendant, Stephanie A. Savoir, who is not a party to this appeal.

       The plaintiff makes several additional claims. First, the plaintiff claims that the court improperly denied his request for court-appointed counsel during the contempt proceedings. Practice Book § 25-63 provides that indigent litigants in family civil contempt proceedings have a right to court-appointed counsel when they face the possibility of incarceration. Practice Book § 25-63 (a) (2), however, provides an exception to this requirement where “the judicial authority eliminates incarceration as a possible result of the proceeding and makes a statement to that effect on the record.” When denying the plaintiffs request for court-appointed counsel in the present case, the court stated, on the record, that the plaintiff did not face incarceration as a possible result of the proceeding. Thus, we readily conclude that the court did not err in denying the plaintiffs request for court-appointed counsel. Compare Emerick v. Emerick, 28 Conn. App. 794, 799-800, 613 A.2d 1351 (error for court not to advise party of right to counsel in civil contempt proceeding when court did not state on record that incarceration was not possibility), cert. denied, 224 Conn. 915, 617 A.2d 171 (1992).
      The plaintiff also claims that the court violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The plaintiff did not raise this claim relating to the ADA in the trial court, nor did he inform the court that he had any disability or request accommodations under the ADA during the contempt proceedings. Under these circumstances, we decline to review his claim. See Logan v. Logan, 96 Conn. App. 842, 845-46,902 A.2d 666 (2006) (declining to review claim that court failed to provide ADA accommodations during contempt hearing when ADA claim was not raised in trial court).
      Finally, although he fails to set forth his claim in the statement of issues, as required by Practice Book § 63-4 (a) (1), the plaintiff also asserts that the court improperly excluded evidence on hearsay grounds. Although we acknowledge that the plaintiff is a pro se litigant, we decline to review this claim because it is inadequately briefed. “Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law. . . . [W]e are not required to review claims that are inadequately briefed. ... We consistently have held that [ajnalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Traylor v. State, 128 Conn. App. 182, 185 n.2, 15 A.3d 1173 (2011). The plaintiffs claim is limited to amere assertion that the court erred, followed by a quotation from the transcript of the court’s ruling and quotations from two rules of evidence concerning hearsay. The plaintiffs claim is devoid of any analysis at all as to which of the quoted rules of evidence he is claiming apply to the evidence in question or how the evidence in question falls within those rules. As such, we conclude that the claim has been inadequately briefed.

       We note that the record does not contain a written memorandum of decision or a signed transcript of Judge Abery-Wetstone’s oral decision, as required by our rules of practice. See Practice Book § 64-1. The record does, however, include an unsigned transcript which contains a sufficiently detailed and concise statement of the court’s findings. Therefore, we will review the plaintiffs claims. See, e.g., Carrasquillo v. Carlson, 90 Conn. App. 705, 708 n.2, 880 A.2d 904 (2005).

       The remainder of the plaintiffs claims on appeal challenge the grandparents’ rights of visitation with the minor child. The grandparents were granted visitation rights pursuant to Judge Shluger’s 2008 decision, from which the plaintiff did not appeal. The present appeal was taken from Judge Abery-Wetstone’s 2009 judgment of contempt. Thus, we will not address the plaintiffs claim regarding propriety of the 2008judgment granting visitation rights to the grandparents, as those issues are not properly before us on appeal.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. ROBERT ELECK
    (AC 31581)
    Bishop, Beach and Sullivan, Js.
    Argued May 31
    officially released August 9, 2011

      William B. Westcott, for the appellant (defendant).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Joseph C. Valdes, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Robert Eleck, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree by means of a dangerous instrument in violation of General Statutes § 53a-59 (a) (1). On appeal, the defendant claims that (1) the trial court improperly failed to admit into evidence a document that properly was authenticated and (2) the statutory scheme mandating a nonsuspendable, five year minimum term of imprisonment violates his rights to equal protection and due process under the federal constitution. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, are relevant to this appeal. The defendant attended a party at 16 Charles Street in Norwalk in the early morning hours of December 9, 2007. All of the approximately twenty teens and young adults who attended were consuming alcoholic beverages, and many were intoxicated. While inside the house, the defendant was involved in at least two verbal confrontations with one guest, Matthew Peacock. The defendant also conversed on several occasions with another guest, Simone Judway. Shortly after 2:30 a.m., outside the house, the defendant and Peacock engaged in a physical altercation that included punching and grappling. Three other guests, including Zachary Finch, joined the fight to help Peacock. When the combatants were separated, both Peacock and Finch discovered that they had suffered stab wounds.

The defendant subsequently was arrested and charged with assault in the first degree with a dangerous instrument in violation of § 53a-59 (a) (1) in connection with the injury to Peacock and assault in the second degree in violation of General Statutes § 53a-60 (a) (2) in connection with the injury to Finch. Following a trial to the jury, the defendant was convicted of assault in the first degree regarding the assault on Peacock and acquitted of assaulting Finch. Because the defendant’s assault conviction involved the use of a dangerous instrument, he faced a mandatory minimum sentence of five years. He was, in fact, sentenced to the mandatory minimum sentence of five years incarceration with an additional ten years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court abused its discretion in excluding from evidence a printout from his Facebook account documenting electronic messages purportedly sent to him by Judway from her Face-book account. We do not agree.

The following additional facts and procedural history are relevant to our resolution of the defendant’s claim. As a witness for the state, Judway offered key testimony that, prior to the physical altercation, the defendant had told her that “if anyone messes with me tonight, I am going to stab them.” Subsequently, during cross-examination, defense counsel sought to impeach Judway’s credibility by asking her whether she had spoken with the defendant in person since the incident. She responded that she had seen the defendant in public but had not spoken to him in person, by telephone or by computer. Defense counsel then showed Judway a printout purporting to show an exchange of electronic messages between the defendant’s Facebook account and another account under the user name “Simone Danielle.” Judway identified the user name as her own, but denied sending the messages to the defendant. She also testified that someone had “hacked” into her Facebook account and changed her password “two [to] three weeks” ago such that she had been unable to access it subsequently.

On the following day, during the defendant’s testimony, his counsel offered into evidence the defendant’s Facebook printout containing messages purportedly from Judway. The state objected on the grounds that the authorship of the messages could not be authenticated and the document was irrelevant. In response, to authenticate the document, the defendant testified that he downloaded and printed the exchange of messages directly from his own computer. He also advanced testimony that he recognized the user name, “Simone Danielle,” as belonging to Judway because she had added him as a Facebook “friend” a short time before he received the message. He testified that the “Simone Danielle” profile contained photographs and other entries identifying Judway as the holder of that account. Finally, he testified that when he logged in to his Face-book account after the previous day’s testimony, user “Simone Danielle” had removed him from her list of Facebook “friends.” The defendant’s counsel then argued that based on this testimony and Judway’s identification of her user name, there was a sufficient foundation to admit the document for the jury’s consideration. The court, however, sustained the state’s objection on the ground that the defendant had not authenticated that the messages were written by Judway herself. The defendant claims that this determination was improper.

The following standard of review and principles of law govern our resolution of the defendant’s claim. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence .... The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and . . . upset it [only] for a manifest abuse of discretion. ” (Internal quotation marks omitted.) State v. Garcia, 299 Conn. 39, 56-57, 7 A.3d 355 (2010).

“It is well established that [authentication is . . . a necessary preliminary to the introduction of most writings in evidence .... In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence. . . . Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege. . . . Rather, there need only be a prima facie showing of authenticity to the court. . . . Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which will ultimately determine its authenticity.” (Internal quotation marks omitted.) Id., 57-58.

Codifying these principles, § 1-3 (a) of the Connecticut Code of Evidence provides in relevant part: “Questions of admissibility generally. Preliminary questions concerning . . . the admissibility of evidence shall be determined by the court.” Additionally, § 9-1 (a) of the Connecticut Code of Evidence provides: “Requirement of authentication. The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.” Where documents are not self-authenticating, the prima facie showing of authenticity may be made in a variety of ways including, but not limited to, the following: “(1) A witness with personal knowledge may testify that the offered evidence is what its proponent claims it to be. ... (3) The trier of fact or an expert witness can authenticate a contested item of evidence by comparing it with preauthenticated specimens. ... (4) The distinctive characteristics of an object, writing or other communication, when considered in conjunction with the surrounding circumstances, may provide sufficient circumstantial evidence of authenticity.” (Citations omitted.) Conn. Code Evid. § 9-1 (a), commentary.

Although we have not found any Connecticut appellate opinions directly on point regarding the authentication of electronic messages from social networking websites, we are aware that federal courts as well as sister jurisdictions have written on this subject. We know, as well, that “[w]here a state rule is similar to a federal rule we review the federal case law to assist our interpretation of our rule.” (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 407, 880 A.2d 151 (2005). Rule 901 of the Federal Rules of Evidence is consistent with § 9-1 (a) of the Connecticut Code of Evidence, except that rule 901 (b) contains an additional list of illustrations. See State v. Swinton, 268 Conn. 781, 811 n.28, 847 A.2d 921 (2004). Accordingly, it is helpful to consider relevant federal case law, as well as the opinions of sister states whose rules of evidentiary authentication are similar.

The precise issue raised here is whether the defendant adequately authenticated the authorship of certain messages generated via Judway’s Facebook account. The need for authentication arises in this context because an electronic communication, such as a Face-book message, an e-mail or a cell phone text message, could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged in to their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship. See, e.g., Commonwealth v. Williams, 456 Mass. 857, 869, 926 N.E.2d 1162 (2010) (admission of MySpace message was error where proponent advanced no circumstantial evidence as to security of MySpace page or purported author’s exclusive access).

As a word of caution, however, we note that some have opined that the present lexicon and body of rules for authenticating the authorship of traditional documents is adequate with respect to electronic documents. See P. Grimm et al., “Back to the Future: Lorraine v. Market American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L. Rev. 357, 362 (2009). As Pennsylvania’s intermediate appellate court articulated in a case similar to the present one, “[the] appellant would have us create a whole new body of law just to deal with e-mails or instant messages. . . . However, the same uncertainties [that exist with electronic documents] exist with traditional written documents. A signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationary can be copied or stolen. We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of [the rules of evidence]. . . . We see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.” (Citation omitted.) In re F.P., 878 A.2d 91, 95-96 (Pa. Super. 2005).

We agree that the emergence of social media such as e-mail, text messaging and networking sites like Facebook may not require the creation of new rules of authentication with respect to authorship. An electronic document may continue to be authenticated by traditional means such as the direct testimony of the purported author or circumstantial evidence of “distinctive characteristics” in the document that identify the author. See Conn. Code Evid. § 9-1 (a), commentary.

Nevertheless, we recognize that the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium. For example, in the context of a telephone call, our Supreme Court has instructed that “[a] sufficient foundation is laid when the subject matter of the conversation, evidence of its occurrence, and prior and subsequent conduct of the parties fairly establish the identity of the person with whom conversation occurred.” International Brotherhood, of Electrical Workers Local 35 v. Commission on Civil Rights, 140 Conn. 537, 547, 102 A.2d 366 (1953). Alternatively, this court held that the authorship of letters on a computer hard drive could be authenticated by the mode of expression of the writing, detailed references to the defendant’s finances and circumstantial evidence linking the defendant’s presence at home with the time the letters were created on his home computer. See State v. John L., 85 Conn. App. 291, 298-302, 856 A.2d 1032, cert. denied, 272 Conn. 903, 863 A.2d 695 (2004). Specifically in the case of electronic messaging, Maryland’s highest court has suggested that a proponent of a document might search the computer of the purported author for Internet history and stored documents or might seek authenticating information from the commercial host of the e-mail, cell phone messaging or social networking account. See Griffin v. State, 419 Md. 343, 363-64, 19 A.3d 415 (2011); see also People v. Clevenstine, 68 App. Div. 3d 1448, 1450-51, 891 N.Y.S.2d 511 (2009) (authorship of MySpace messages authenticated where police retrieved record of conversations from victims’ hard drive and MySpace officer testified that defendant had created the sending account), leave to appeal denied, 14 N.Y.3d 799, 925 N.E.2d 937, 899 N.Y.S.2d 133 (2010).

In the present case, the defendant proffered evidence as to the accuracy of the copy and Judway’s connection to the Facebook account. He also proffered evidence that Judway had added him to her list of Facebook “friends” shortly before allegedly sending the messages, and then removed him as a friend after testifying against him at the trial. Specifically in regard to authorship, however, the direct testimony of the purported author, Judway, contradicted the defendant’s assertion. While admitting that the messages were sent from her Face-book account, she simultaneously denied their authorship. She also suggested that she could not have authored the messages because the account had been “hacked.” Although this suggestion is dubious under the particular facts at hand, given that the messages were sent before the alleged hacking of the account took place, Judway’s testimony highlights the general lack of security of the medium and raises an issue as to whether a third party may have sent the messages via Judway’s account. Consequently, we agree with the trial court that the fact that Judway held and managed the account did not provide a sufficient foundation for admitting the printout, and it was incumbent on the defendant, as the proponent, to advance other foundational proof to authenticate that the proffered messages did, in fact, come from Judway and not simply from her Facebook account.

The defendant claims, nevertheless, that he did offer circumstantial evidence that Judway sent the messages. Specifically, he argues that the content of the messages identified Judway as the author. For example, when he sent the message asking “why would you wanna talk to me,” the other party replied, “The past is the past.” The defendant contends that this indicated that the author knew of the criminal case and, therefore, must have been Judway.

We are not convinced that the content of this exchange provided distinctive evidence of the interpersonal conflict between the defendant and Judway. To the contrary, this exchange could have been generated by any person using Judway’s account as it does not reflect distinct information that only Judway would have possessed regarding the defendant or the character of their relationship. In other cases in which a message has been held to be authenticated by its content, the identifying characteristics have been much more distinctive of the purported author and often have been corroborated by other events or with forensic computer evidence. See, e.g., State v. John L., supra, 85 Conn. App. 298-302; see also United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (e-mails authenticated not only by defendant’s e-mail address but also by inclusion of factual details known to defendant that were corroborated by telephone conversations), cert. denied, 533 U.S. 940, 121 S. Ct. 2573, 150 L. Ed. 2d 737 (2001); United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000) (author of chat room message identified when he showed up at arranged meeting); United States v. Safavian, 435 F. Sup. 2d 36, 40 (D.D.C. 2006) (e-mail messages authenticated by distinctive content including discussions of various identifiable personal and professional matters); Dickens v. State, 175 Md. App. 231, 237-41, 927 A.2d 32 (2007) (threatening text messages received by victim on cell phone contained details few people would know and were sent from phone in defendant’s possession at the time); State v. Taylor, 178 N.C. App. 395, 412-15, 632 S.E.2d 218 (2006) (text messages authenticated by expert testimony about logistics for text message receipt and storage and messages contained distinctive content, including description of car victim was driving); In re F.P., supra, 878 A.2d 93-95 (instant electronic messages authenticated by distinctive content including author’s reference to self by name, reference to surrounding circumstances and threats contained in messages that were corroborated by subsequent actions); Massimo v. State, 144 S.W.3d 210, 215-17 (Tex. App. 2004) (e-mails authenticated where e-mails discussed things only victim, defendant, and few others knew and written in way defendant would communicate). Compare Griffin v. State, supra, 419 Md. 347-48 (admission of MySpace pages was reversible error where proponent advanced no circumstantial evidence of authorship). Consequently, we conclude that the reference in the message to an acrimonious history, with nothing more, did not sufficiently establish that Judway authored the messages such that it would be an abuse of discretion to exclude the document.

Finally, the defendant argues that the messages could be authenticated under the “reply letter” doctrine. We are not convinced. Under that doctrine, “letter B is authenticated merely by reference to its content and circumstances suggesting it was in reply to earlier letter A and sent by addressee of letter A . . . .” Conn. Code Evid. § 9-1 (a), commentary (4). We note, however, that “[t]he mere fact that a letter was sent and a reply received does not automatically authenticate the reply; circumstances must indicate that the reply probably came from the addressee of the letter.” C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 9.7, p. 630; see also Connecticut Limousine Service, Inc. v. Powers, 7 Conn. App. 398, 401, 508 A.2d 836 (1986). Here, there was a lack of circumstantial evidence to verify the identity of the person with whom the defendant was messaging. Consequently, the reply letter doctrine is inapposite.

We conclude, therefore, that the court did not abuse its discretion in declining to admit the document into evidence.

II

The defendant also claims that the statutory scheme mandating a nonsuspendable, five year minimum term of imprisonment for a violation of § 53a-59 (a) (1) violates his rights to equal protection and due process under the federal constitution. Although he concedes that this court previously considered this claim in State v. Schultz, 100 Conn. App. 709, 726-29, 921 A.2d 595, cert. denied, 282 Conn. 926, 926 A.2d 668 (2007), in which we held that the statutory scheme is constitutional, the defendant asks this court to reconsider that decision. It is settled policy, however, that one panel of this court, on its own, cannot overrule the precedent established by a previous panel’s holding. See First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 759, 966 A.2d 239 (2009). We decline, therefore, to consider the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Facebook is a social networking website that allows private individuals to upload photographs and enter personal information and commentary on a password protected “profile.” An individual chooses a name under which the Facebook profile will be listed (user name). Users create networks of “friends” by sending and accepting friend requests. Subject to privacy settings that each user can adjust, a user’s friends can see aspects of the user’s profile, including the user’s list of friends, and can write comments that appear on the profile. Additionally, any Facebook user can send a private message to any other Facebook user in a manner similar to e-mail. The defendant’s claim concerns the latter type of message.

       The document contains the following exchange of unaltered messages from April 28, 2009:
      “Simone Danielle: Hey I saw you the other day and I just want to say nice bike.
      “[The Defendant]: why would you wanna talk to me
      “Simone Danielle: I’m just saying that you have a nice bike that’s all. The past is the past.
      “[The Defendant]: yup thanks
      “Simone Danielle: No problems”

       The defendant’s counsel appears to have transposed the user name; she repeatedly referred to the user name as “Danielle Simone” although the user name that appears on the document is “Simone Danielle.” As stated in the transcript, counsel requested that Judway examine the document and then asked her: “This is your Facebook name; is that correct, ‘Danielle Simone’?” Judway responded, “Yes.” Thereafter, when defense counsel asked the defendant whether he had received Facebook messages from “Danielle Simone,” he corrected her, clarifying that he received the messages from “Simone Danielle.” Neither the state nor the defendant took issue with counsel’s verbal miscue, either at the trial or in their appellate briefs, and the court did not mention it in ruling on the objection. In light of these facts, we conclude that the miscue has no bearing on our consideration of this appeal.

       The defendant does not argue that the Facebook messages were self-authenticating. Typically, electronic messages do have self-identifying features. For example, e-mail messages are marked with the sender’s e-mail address, text messages are marked with the sender’s cell phone number, and Facebook messages are marked with a user name and profile picture. Nonetheless, given that such messages could be generated by a third party under the guise of the named sender, opinions from other jurisdictions have not equated evidence of these account user names or numbers with self-authentication. Rather, user names have been treated as circumstantial evidence of authenticity that may be considered in conjunction with other circumstantial evidence. See, e.g., Commonwealth v. Purdy, 459 Mass. 442, 450, 945 N.E.2d 372 (2011) (evidence that electronic communication originates from e-mail or social networking website that bears puiported author’s name is not sufficient alone to authenticate it).

       In regard to authenticity, the state did not question whether the printout was a true and accurate copy, nor did it dispute that Judway held and managed the Facebook account from which the messages were sent.

       MySpace, like Facebook, is a social networking website.

       There are other issues concerning the admissibility of electronically stored information, however, that may test the limits of current rules more acutely. For example, in the case of a website that is frequently updated, issues may arise as to how to authenticate the content of the website as it appeared at a particular moment in the past. See Lorraine v. Market American Ins. Co., 241 F.R.D. 534, 553 (D. Md. 2007). Additionally, besides authentication issues, the evidentiary use of electronically stored information may raise novel issues regarding the rules on hearsay and original writings. See, e.g., Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 116-17, 956 A.2d 1145 (2008) (articulating guidelines for the admissibility of printouts of electronic records under the business records exception).

       That is not to say that it might not be useful to the orderly development of the law of evidence to investigate the appropriateness of new rules specifically pertaining to electronic evidence. It is enough to say at this juncture that our present rules permit a reasoned determination of whether the document presently in question properly was excluded as inadequately authenticated.

       A chat room is a public or private Internet site that allows individuals to send real time typed messages to others who are simultaneously connected to that Internet site.

       We note that we need not and do not opine on the applicability of the reply letter doctrine to electronic messaging. See 2 C. McCormick, Evidence (6th Ed. 2006) § 227, p. 73.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. JOSUE RODRIGUEZ
    (AC 31680)
    Gruendel, Beach and SchaUer, Js.

      Argued April 12
    officially released August 9, 2011

      David V. DeRosa, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Josué Rodriguez, appeals from the judgment of the trial court finding him in violation of his probation pursuant to General Statutes § 53a-32. The defendant claims that (1) there was insufficient evidence for the court to find by a preponderance of the evidence that he had violated the terms of his probation and (2) the court abused its discretion in revoking his probation and sentencing him to twelve years imprisonment. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. In 2005, the defendant was convicted of sale of narcotics in violation of General Statutes § 2la-277 (a), and sentenced to twelve years incarceration, execution suspended, with five years probation. As a condition of the defendant’s probation, he was not to violate the criminal laws of the state. In 2007, the defendant was convicted of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and burglary in the third degree in violation of General Statutes § 53a-103. He was sentenced to a total effective term of ten years incarceration, execution suspended, and five years probation. The defendant also was found in violation of his probation imposed in 2005, as a result of those offenses. His probation was not revoked, but, rather, it was to run concurrently with the probationary term imposed for the conviction. The conditions of his probation included, inter alia, no contact with the victim, Damaris Sanchez and a “zero tolerance” provision for any violations.

In the early morning hours on November 14, 2008, Sanchez, the defendant’s former wife with whom he had an “on and off’ relationship, was asleep in her home when she awoke to the smell of gasoline fumes. When she looked outside the house, she saw a shadowy human figure walk near the front of her house. When she saw the person’s face, she recognized the person as the defendant. She saw the defendant light a lighter near the hood of her car, and she yelled to him, “what are you doing to my car.” The defendant ran away. Once outside, Sanchez noticed that the defendant had vandalized her house and car with obscene words and phrases.

On April 13, 2009, the court found that the defendant violated his probation by committing criminal mischief and violating the no contact order. The court revoked his probation and sentenced him to serve the entire twelve years of his original 2005 sentence. This appeal followed.

I

The defendant first claims that there was insufficient evidence for the court to find that he had violated his probation. Before we address the merits of the defendant’s claim, we must resolve a preliminary issue raised by the state. The state argues that we should dismiss as moot the defendant’s insufficiency claim. We agree with the state.

“Mootness implicates a court’s subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review. . . . For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute. . . . [T]he requirement of an actual controversy ... is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . . Moreover, [a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . 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; internal quotation marks omitted.) State v. T.D., 286 Conn. 353, 361, 944 A.2d 288 (2008).

The state argues that the defendant’s challenge to the violation of probation finding was moot because on April 13, 2009, the day that he was sentenced for violating his probation, he also appeared before another judge on the underlying criminal charges and pleaded guilty, pursuant to the Alford doctrine, to attempt to commit arson in the second degree in violation of General Statutes §§ 53a-112 and 53a-49. The defendant was thereafter sentenced to eight years incarceration, concurrent to the twelve year sentence imposed for violating probation. The defendant argues that his claim is not moot because he has filed a habeas petition, which is currently pending, in which he seeks relief from the criminal conviction arising from the same transaction. We agree with the state.

For the reasons set forth in State v. Milner, 130 Conn. App. 19, 25-29, 21 A.3d 907 (2011), which addresses the identical issue, we conclude that the defendant’s sufficiency claim is moot. “[A] collateral attack on the intervening criminal conviction does not serve to revive the controversy such that mootness is averted.” Id., 27.

II

The defendant next claims that the court abused its discretion in revoking his probation and sentencing him to twelve years incarceration. We disagree.

“The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185-86, 842 A.2d 567 (2004). “On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. ... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Internal quotation marks omitted.) State v. Mapp, 118 Conn. App. 470, 478, 984 A.2d 108 (2009), cert. denied, 295 Conn. 903, 988 A.2d 879 (2010).

Prior to revoking the defendant’s probation, the court found that, in light of the defendant’s extensive criminal history, which includes assaultive behavior, and his various violations of probation, the beneficial aspects of probation were no longer being served. The court further stated that the defendant’s actions on the night in question were “very violent and dangerous.” The court noted that although Sanchez “has some problems,” she was a “typical battered spouse or significant other,” and had written a letter to the court expressing fear that the defendant would harm her. The court determined that because the defendant had not made a reasonable attempt to alter his lifestyle in order to comply with the conditions of his probation, he was no longer a good risk to be successful on probation.

The defendant argues that in analyzing whether he would benefit from continued probation, the court failed to take into account his mental illness. He highlights the argument made by his defense counsel during the dispositional phase, wherein defense counsel stated that he had known the defendant for many years and that the defendant was a “decent person at the core” but that the defendant’s behavior in this case was a result of his failure to take his medication for his mental illness. The defendant argues that in spite of defense counsel’s argument, the court attributed the defendant’s conduct to a violent nature rather than any form of mental illness.

Although the court did not specifically mention any mental condition, it was not an abuse of discretion for the court to reject the defendant’s argument. State v. Dull, 59 Conn. App. 579, 589-90, 757 A.2d 1194 (2000) (trier of fact free to disbelieve defendant’s claim of insanity). A court is not necessarily prohibited from revoking probation in every case of mental illness. See State v. Agli, 122 Conn. App. 590, 595-96, 1 A.3d 133 (despite defendant’s diminished capacity not abuse of discretion for court to revoke probation where defendant capable of recognizing consequences of failure to abide by terms of probation), cert. denied, 298 Conn. 920, 4 A.3d 1229 (2010). To the extent that the record is unclear as to how or whether the court considered defense counsel’s argument regarding the defendant’s mental condition, “[i]t is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 61-10. In the absence of any indication to the contrary, we assume that the court applied the correct legal standards. See Singhaviroj v. Board of Education, 301 Conn. 1, 17 n.12, 17 A.3d 1013 (2011).

That notwithstanding, the court’s reasons for revoking the defendant’s probation do not reveal an abuse of discretion. The court found that in light of the defendant’s extensive criminal history and his behavior while on probation, the beneficial aspects of probation were no longer being served. The court further found that the defendant had not made a reasonable attempt to alter his lifestyle in order to be in compliance with the terms of his probation. The court highlighted the defendant’s history of assaultive behavior and his violent and dangerous actions on the night in question. The court properly considered whether the beneficial aspects of probation were being served and whether the public was adequately protected. The court did not abuse its discretion by revoking the defendant’s probation and reinstating the remainder of his original sentence.

The appeal is dismissed as moot only as to the claim that there was insufficient evidence to establish that the defendant violated his probation. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The defendant’s remaining claim, which concerns the court’s actions during the dispositional phase, is not moot. See State v. Preston, 286 Conn. 367, 381-82, 944 A.2d 276 (2008) (“when the defendant has raised a claim that the trial court abused its discretion in rendering its judgment during the dispositional phase, practical relief is available even when there is no live controversy as to whether the defendant committed the underlying offense and, therefore, the claim is not moot”).

       The defendant argues that the court improperly placed on him the “blame for the entire dysfunctional relationship” between him and Sanchez, despite his suggestion of a “more mutuality of inappropriate and provocative actions by” Sanchez and him. At issue in this case are the actions of the defendant, which the court, within its discretion, concluded warranted a revocation of his probation.