author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. TIFFANY BROWN
    (AC 28924)
    Gruendel, Beach and Alvord, Js.

      Argued September 3
    officially released December 15, 2009

      Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

      Susann E. Gill, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, former state’s attorney, John C. Smriga, supervisory assistant state’s attorney, and Toni M. Rosario-Smith, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Tiffany Brown, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). On appeal, the defendant claims that (1) there is insufficient evidence to support her conviction of manslaughter in the first degree, (2) the court’s allegedly improper jury instructions violated her due process rights and (3) the court improperly denied her motion to suppress. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Daayon Devane, were involved in a romantic relationship for six or seven months. Throughout their relationship, the defendant and the victim engaged in several arguments that escalated into physical altercations. Not once did the defendant call the police for assistance when such altercations arose. Instead, according to the defendant, on some occasions, she brandished a knife to quell such altercations, and, in each instance, the victim left her apartment.

On the morning of February 22, 2005, the defendant, sensing the possibility of another altercation with the victim, walked to the police station across from her apartment to obtain assistance. At the defendant’s request, the police removed the victim from her apartment. Later that evening, the defendant and a friend drove to a pool hall where they saw the victim. There, the victim informed the defendant that he had been kicked out of his mother’s house and, promising to be on his best behavior, asked to return to her apartment. The defendant acquiesced and together they left the pool hall in the early morning of February 23, 2005.

Upon returning to the defendant’s apartment, the victim became enraged with the defendant for speaking with “mad dudes” at the pool hall. The victim grabbed the defendant’s arm, hit her and pushed her. The defendant then entered the kitchen and brandished a steak knife, instructing the victim to “chill.” As the altercation escalated, the victim followed the defendant into the kitchen, and she stabbed him in the neck with the steak knife. After being stabbed, the victim exclaimed, “yo, babe, look what you’ve done,” exited the defendant’s apartment, ascended the stairs to the second floor of the apartment complex, collapsed and eventually died from blood loss.

When police officers arrived at the second floor landing of the defendant’s apartment complex, they found the defendant cradling the victim. The defendant made several statements in the presence of the police officers. Officer David Payne and Detective Michael Fiumidinisi heard the defendant address the victim: “Wake up, wake up; I didn’t mean to do it.” Payne then asked the defendant about the identity of the victim, to which she responded: “He’s my boyfriend; he came at me.” The defendant told Fiumidinisi: “Mike, I can’t wake [the victim] up.” Fiumidinisi told the defendant to stop cradling the victim to allow medical personnel to assist him. As medical personnel began to assist the victim, Fiumidinisi also asked the defendant about the identity of the victim, to which she responded: “[He] was my boyfriend, and I stabbed him.” Next, Fiumidinisi told the defendant that she was under arrest and placed her inside of a police car. While the defendant was alone in the police car, an officer standing nearby heard the defendant proclaim repeatedly: “He was beating me. I told him to get away from me. Then he fell on the knife. I didn’t mean to stab him.” From there, the defendant was transported to the police station, where she was advised of her Miranda rights before providing a written statement in which she claimed that the victim had run into the knife. Thereafter, a jury trial followed, at the conclusion of which the jury found the defendant guilty of manslaughter in the first degree, and the court rendered judgment accordingly. From that judgment, the defendant appeals.

I

The defendant claims that there was insufficient evidence to support her conviction of manslaughter in the first degree pursuant to § 53a-55 (a) (3). Specifically, the defendant maintains that the state failed to prove beyond a reasonable doubt that she created a grave risk of death and that she evinced an extreme indifference to human life. We disagree.

We review the defendant’s claim, which she preserved through her motions for a judgment of acquittal; see State v. Padua, 273 Conn. 138, 146 n.12, 869 A.2d 192 (2005) (motion for judgment of acquittal on specific charge preserves charge for appeal); initially by setting forth our standard of review. “When reviewing sufficiency of the evidence claims, we [apply] a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Wideman, 36 Conn. App. 190, 202, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995).

Moreover, “[w]e note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 542, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

“[T]he statute on manslaughter in the first degree . . . provides in relevant part: A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. For the defendant to have been found guilty of this offense, the state had to prove beyond a reasonable doubt the following: (1) that the defendant engaged in conduct that created a grave risk of death; (2) that in doing so the defendant acted recklessly; (3) under circumstances evincing an extreme indifference to human life; and (4) the defendant caused the death of the victim. . . . Additionally, the state had to prove that the defendant had the general intent to engage in conduct that created a grave risk of death to another person under circumstances evincing extreme indifference to human life.” (Citations omitted; internal quotation marks omitted.) State v. Best, 56 Conn. App. 742, 753-54, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000).

The defendant concedes that, acting recklessly, she caused the victim’s death. She challenges the jury’s finding that she acted under circumstances evincing an extreme indifference to human life and that she created a grave risk of death to the victim as a result of her conduct.

“Our Penal Code does not define, in title 53a of the General Statutes, what constitutes extreme indifference to human life [or grave risk of death]. . . . Therefore, it is appropriate to look to the common understanding of the term[s] as expressed in a dictionary.” (Internal quotation marks omitted.) State v. McCoy, 91 Conn. App. 1, 4, 879 A.2d 534, cert. denied, 276 Conn. 904, 884 A.2d 1026 (2005). In examining what constitutes an extreme indifference to human life, “we have stated that the legislature modified the level of indifference required with the adjective extreme, which has been defined to mean existing in the highest or greatest possible degree. ... It is synonymous with excessive. . . . Extreme indifference to human life has been defined accurately, in part, as more than [m]ere carelessness or ordinary recklessness. . . . Extreme indifference to human life also has been defined accurately, in part, as a high degree of disinterest to human life.” (Citation omitted; internal quotation marks omitted.) Id. “What evinces an extreme indifference to human life is really a question of fact.” State v. Best, supra, 56 Conn. App. 755. Further, in examining what constitutes a grave risk of death, this court has noted that Webster’s Third New International Dictionary “defines the adjective ‘grave’ as meaning ‘very serious; dangerous to life.’ ” Id., 756.

Viewed in the light most favorable to sustaining the defendant’s conviction, the evidence was sufficient to prove that the defendant evinced an extreme indifference to human life. The jury could have found that the defendant stabbed the victim in the neck. During her physical altercation with the victim, the defendant, by her own admission, entered the kitchen and brandished a steak knife. Upon discovering the defendant next to the unconscious victim, Fiumidinisi testified, the defendant told him that she had stabbed the victim. Peter DeForest, a professor of criminalistics at the John Jay College of Criminal Justice, testified that it was possible that the wound occurred as a result of a downward thrust of the knife and that he could not exclude any possibility as to what caused the knife to penetrate the victim’s neck. Susan Williams, a forensic pathologist, testified that her examination of the wound indicated that the knife entered the victim’s neck “at a steep angle . . . basically downward and a little bit backward.” An autopsy revealed that the wound itself extended three to four inches within the right side of the victim’s neck and into his chest cavity, piercing his carotid artery and the top of his lung. Williams further testified that the victim’s injuries were so severe that emergency medical technicians would likely have been unable to prevent the victim’s death had they been there to instantaneously administer medical treatment the very moment the victim was stabbed. Further, contrary to the defendant’s assertion that she dropped the knife immediately after the victim was stabbed, the jury heard testimony that the knife was discovered next to mattresses and old furniture underneath the stairwell of a maintenance building near the defendant’s apartment complex. Accordingly, on the basis of the cumulative effect of all of the evidence, the jury could have concluded reasonably that the defendant engaged in conduct evincing an extreme indifference to human life.

The jury also could have found that the defendant’s conduct created a grave risk of death. In reviewing convictions of manslaughter in the first degree, this court has observed that “[t]he facts of those cases demonstrate that the grave risk of death associated with the subject conduct are within the common knowledge of a layperson and that no expert testimony would be necessary to educate the jury.” State v. Wade, 106 Conn. App. 467, 486, 942 A.2d 1085, cert. granted on other grounds, 287 Conn. 908, 950 A.2d 1286 (2008) (appeal withdrawn June 12, 2008). In the present case, we are unable to conclude, as a matter of law, that the grave risk of death inherent in stabbing a person in the neck with a steak knife is without the common knowledge of a layperson. Accordingly, the defendant’s claim fails.

II

The defendant raises two claims regarding the court’s charge to the jury, arguing that the court’s allegedly improper instructions violated her due process rights.

A

The defendant first claims that the court diluted the state’s burden of proof by improperly instructing the jury on self-defense. We disagree.

Before reviewing the merits of the defendant’s claim, we first address the state’s contention that we should decline to review the defendant’s claim because, with respect to the instruction at issue, the defendant waived any right to challenge that charge on appeal. The facts that follow are relevant to our resolution of this claim. The defendant filed a written request to charge, pursuant to which she asked the court to instruct the jury on only deadly physical force when considering self-defense. Specifically, the written request provided: “In this case, we are talking about the use of deadly physical force by the defendant. It is therefore the last portion of that section of the statute on self-defense that is implicated in this case . . . .” Rejecting the defendant’s request to charge, the court instructed as to both deadly and nondeadly physical force. The court’s instructions provided: “The first issue that you must resolve is whether the defendant used deadly or nondeadly force. This is a question of fact for you to decide after a full consideration of the evidence.” After the court concluded reading its instructions to the jury, the defendant took exception to the charge and asked the court to instruct pursuant to her written request to charge. The court declined.

For the first time on appeal, the defendant claims that the court diluted the state’s burden of proof by failing to inform the jury that it must apply the beyond a reasonable doubt standard of proof in considering whether she applied deadly or nondeadly force. Having failed to preserve her claim, the defendant seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding provides that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Internal quotation marks omitted.) State v. Fabricatore, 281 Conn. 469, 477, 915 A.2d 872 (2007).

That the first two prongs of Golding are satisfied in the present case is uncontested. The record is adequate for review, and the defendant’s claim is of constitutional magnitude because it involves her fundamental due process right to a proper jury instruction. See State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). Accordingly, we consider whether the alleged constitutional violation clearly existed and clearly deprived the defendant of a fair trial.

“In State v. Fabricatore, [supra] 281 Conn. [478], we stated that ‘[i]n the usual Golding situation, the defendant raises a claim on appeal [that], while not preserved at trial, at least was not waived at trial.’ . . . We generally do not review unpreserved, waived claims. . . . ‘To reach a contrary conclusion would result in an ambush of the trial court by permitting the defendant to raise a claim on appeal that his or her counsel expressly had abandoned in the trial court.’ ” (Citations omitted.) State v. Foster, 293 Conn. 327, 337, 977 A.2d 199 (2009). Recently, in State v. Ebron, 292 Conn. 656, 975 A.2d 17 (2009), our Supreme Court elucidated the principles governing the reviewability of claims of instructional error in which a party has acquiesced to the court’s charge. The court in Ebron concluded that a defendant will be deemed to have waived an objection to an instruction only if he “actively induced the trial court to act on the challenged portion of the instruction.” Id., 680. In the present case, the court rejected the defendant’s request to charge. The defendant could not have actively induced the court by virtue of the fact that the court specifically rejected her requested charge. Accordingly, the defendant did not waive her claim, and, therefore, we consider the merits.

We first set forth our standard of review. “A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.” (Internal quotation marks omitted.) Mann v. Regan, 108 Conn. App. 566, 576, 948 A.2d 1075 (2008). “It is well settled that jury instructions are to be reviewed in their entirety. . . . When the challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement .... Individual instructions also are not to be judged in artificial isolation .... Instead, [t]he test to be applied ... is whether the charge ... as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Makee R., 117 Conn. App. 191, 198, 978 A.2d 549 (2009).

The defendant directs our attention to one particular part of the court’s instruction, claiming that she was denied her due process right to a fair trial. Specifically, she argues that the court diluted the state’s burden of proof by improperly instructing the jury that “[t]he first issue that you must resolve is whether the defendant used deadly or nondeadly force. This is a question of fact for you to decide after a full consideration of the evidence.” According to the defendant, because the court’s instructions as a whole are rife with the reasonable doubt standard of proof, the court’s failure to include it in this one instance misled the jury into applying some other standard.

On the basis of the charge as a whole, we conclude that the court’s instruction on self-defense presented the case to the jury in such a manner that no injustice resulted. The court provided a general charge to the jury in which it specifically instructed that the only standard of review that the jury was to apply was that of proof beyond a reasonable doubt. At no time did the court instruct the jury to apply any other standard, and, throughout its charge, the court instructed the jury repeatedly to apply the proof beyond a reasonable doubt standard. The court further emphasized that the state bore the burden in proving both the elements of the charged crime and in disproving the defendant’s claim of self-defense. Nothing in the court’s instructions evinced a determination under any other standard of review. Accordingly, we conclude that the court’s instructions did not mislead the jury and, thus, this claim fails under Golding’s third prong.

B

The defendant also claims that the court’s instructions violated her due process right to a fair trial by referring to Devane as “the victim.” We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. The court used the term “victim” ten times in its charge to the jury. Nine such references were made in the context of its charge on self-defense. The court referred to Devane as “the alleged victim” in the context of its charge on the irrelevance of sympathy, prejudice and punishment. That sole reference preceded those that appeared in the self-defense charge.

Conceding that her claim is unpreserved as a result of her failure to take exception to the court’s instructional reference or covering such in her request to charge, the defendant seeks to prevail under Golding. We review the defendant’s claim because the record is adequate for review, and her claim that she was denied a fair trial due to the court’s alleged instructional error is of constitutional magnitude. See State v. Eric M., 79 Conn. App. 91, 99, 829 A.2d 439 (2003) (right to fair trial is fundamental liberty secured by fourteenth amendment), aff'd, 271 Conn. 641, 858 A.2d 767 (2004). Accordingly, we turn to the third prong of Golding.

Prehminarily, we note that our analysis of the defendant’s claim requires application of the same standard of review as applied in part II A of this opinion. In particular, “[t]he test to be applied ... is whether the charge ... as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Makee R., supra, 117 Conn. App. 198.

“The appellate courts of this state have had occasion to consider the ambiguous nature of the term victim. In State v. Cortes, 84 Conn. App. 70, 86, 851 A.2d 1230 (2004), aff'd, 276 Conn. 241, 885 A.2d 153 (2005), this court held that the trial court’s pervasive use of the term in its jury charge deprived the defendant of a fair trial. . . . This court reasoned: In cases in which the fact that a crime has been committed against the complaining witness is not contested, but only the identity of the perpetrator is in dispute, a court’s use of the term victim is not inappropriate. In cases in which the fact that a crime has been committed is contested, and where the court’s use of the term victim has been the subject of an objection and has not been the subject of a subsequent curative instruction, a court’s use of the term may constitute reversible error. The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.” (Internal quotation marks omitted.) State v. Santiago, 100 Conn. App. 236, 252-53, 917 A.2d 1051, cert. denied, 284 Conn. 933, 935 A.2d 152, 153 (2007). In our analysis, “[w]e also ask whether any prejudicial effect of the court’s use of the term ‘victim’ was negated by the court’s other instructions to the jury.” State v. Cortes, s+upra, 87.

Relying on Cortes, the defendant claims that the court’s use of the term “victim” undermined her claim of self-defense, deprived her of the presumption of innocence and infringed on the jury’s function as the finder of fact. The defendant argues that the most critical determination that the jury had to make was whether she acted in self-defense. As the defendant correctly points out, if she was justified in her conduct, Devane could not have been a victim because his death would not have constituted a crime. By using the term “victim, ” the defendant contends, the court communicated to the jury its belief that the defendant did not act in self-defense, thereby infringing on the jury’s duty to determine if Devane was a victim of a crime and if, in fact, a crime had been committed.

Upon our review of the court’s instructions as a whole, we conclude that it was not reasonably possible that the jury was misled by the court’s use of the term “victim.” The court began and ended its instructions by referring to Devane by name and did not refer specifically to him as “the victim,” except on one occasion. On that occasion, the court referred to Devane as “the alleged victim,” making clear that it passed no judgment as to whether Devane was or was not the victim of a crime. Moreover, the court stated that it had no preference as to the outcome of the case, that its sole task was to apply the rules of evidence and charge the jury on the law and that it was the jury’s task to decide the outcome. Any potential harm by the court’s use of the term “victim” was further negated through its final instructions accurately describing the defendant’s presumption of innocence. See State v. Lemay, 105 Conn. App. 486, 493, 938 A.2d 611 (“[i]n the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them” [internal quotation marks omitted]), cert. denied, 286 Conn. 915, 945 A.2d 978 (2008). Accordingly, the defendant’s claim fails and, thus, fails under Golding's third prong.

m

Finally, the defendant claims that the court improperly denied her motion to suppress statements that she made prior to being advised of her constitutional rights. We disagree.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

“It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation.” (Internal quotation marks omitted.) State v. Mullins, 288 Conn. 345, 361, 952 A.2d 784 (2008). The burden of proving custodial interrogation lies initially with the defendant. See, e.g., State v. Doehrer, 200 Conn. 642, 647, 513 A.2d 58 (1986).

“To determine whether a suspect is in custody so as to require Miranda warnings, we inquire whether a reasonable person, in view of all the circumstances, would have believed that he or she was not free to leave. . . . The term interrogation under Miranda is not limited to questioning explicitly designed to elicit an incriminating response but extends to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect. The police, however, cannot be held accountable for the unforeseeable results of their words or actions. . . . Voluntary statements of any kind are not barred by the fifth amendment. Miranda v. Arizona, supra, 278.” (Citations omitted; internal quotation marks omitted.) State v. Medina, 228 Conn. 281, 289-90, 636 A.2d 351 (1994); see also State v. Copeland, 205 Conn. 201, 208, 530 A.2d 603 (1987) (officer’s request that defendant hand over clothes not reasonably likely to elicit defendant’s subsequent incriminating response).

Notwithstanding these procedurals safeguards, “[gjeneral on-the-scene questioning ... of citizens in the fact-finding process is not affected by [Miranda’s] holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” (Internal quotation marks omitted.) State v. Szabo, 166 Conn. 289, 293, 348 A.2d 588 (1974); see also United States v. Dunnings, 425 F.2d 836, 838 n.1 (2d Cir. 1969) (questioning defendant about identity of white powder when executing search warrant was general on scene questioning, expressly excepted by Miranda), cert. denied, 397 U.S. 1002, 90 S. Ct. 1149, 25 L. Ed. 2d 412 (1970); State v. Bennett, 171 Conn. 47, 53, 368 A.2d 184 (1976) (routine investigatory information gathering not focused on defendant as accused does not constitute custodial interrogation).

The following additional facts are relevant to the defendant’s claim. On December 11, 2006, the court held a hearing in which it denied the defendant’s motion to suppress several statements she made from the time that officers first arrived at her apartment complex through her being advised of her constitutional rights at police headquarters. At that hearing, Fiumidinisi testified that when he arrives at the scene of a crime, he often finds family members of the injured there trying to assist that person. Fiumidinisi indicated that any witness or suspect would have been questioned as part of the investigation before being permitted to leave. When Fiumidinisi, upon arrival, saw the defendant cradling the victim, he thought it possible that the defendant and the injured victim were related and testified that “it would have been [his] intention to interview [the defendant] because she was there with a person who was injured.” Only after the defendant exclaimed that she had stabbed the victim was she arrested. In denying her motion, the court concluded that although the defendant was in custody for purposes oí Miranda, she was not interrogated. Specifically, the court reasoned that questions concerning the victim’s identity amounted to general on the scene questioning, which does not invoke the warnings required by Miranda. The defendant now argues that the court improperly denied her motion to suppress these statements. The defendant contends that Payne and Fiumidinisi knew or should have known that their questions concerning the identity of the victim were likely to elicit an incriminating response from the defendant.

On the basis of the facts of the present case, we conclude that the defendant was not “interrogated” within the meaning of Miranda. The court’s conclusion that Payne and Fiumidinisi’s questions as to the victim’s identity amounted to no more than general on the scene questioning not reasonably likely to elicit an incriminatory response finds ample support in the record. Even though Payne and Fiumidinisi heard the defendant exclaim, “[w]ake up, wake up; I did not mean to do it,” their subsequent questions were not focused on the defendant as an accused. Their questions were essentially protocol upon arriving at the scene of a crime. Having seen the defendant cradle the victim, Payne and Fiumidinisi reasonably believed that the two may have been related or that, at the very least, she knew his identity. The defendant was not asked about her involvement, if any, in the crime. Nevertheless, after identifying the victim, the defendant volunteered that he “came at [her]” and that she had “stabbed him.” The defendant’s responsive statements were unforeseeable and, thus, not barred by the fifth amendment. Accordingly, the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant recognized Fiumidinisi from a previous investigation in which the defendant was the victim of or a witness to a crime.

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

       The defendant concedes that her claims are not preserved. We agree because she neither filed a request to charge covering these matters nor took exception to such. See Practice Book § 42-16.

       The court stated: “The question [as to the victim’s identity] ... is not the sort of thing when officers arrive on the scene [that] would reasonably be expected to elicit an incriminating response. The officers to this point are just trying to sort things out. And, obviously, with a dead or dying person on the scene, there’s not a lot of time for the officers to thoroughly analyze this before commencing questioning of the sort they did here.”

       The defendant limits her claim to statements she made in direct response to questions about the victim’s identity.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    DOROTHY VREDENBURGH ET AL. v. NORWALK PROBATE COURT ET AL.
    (AC 30576)
    DiPentima, Robinson and Mihalakos, Js.
    Argued September 24
    officially released December 15, 2009

      Joseph Brachfeld, for the appellants (plaintiffs).

      Frank W. Murphy, with whom, on the brief, was Kara A. T. Murphy, for the appellee (defendant Stephen B. Keogh).
   Opinion

DiPENTIMA, J.

The plaintiffs, Dorothy Vredenburgh and James Bershstein, appeal from the judgment of the Superior Court dismissing as moot their appeal from the decree of the Probate Court for the district of Nor-walk. The probate appeal contested the appointment of the defendant Stephen B. Keogh temporary conservator of the estate of Vredenburgh. We conclude that the Superior Court properly determined that the appeal from the decree of the Probate Court was moot, and, accordingly, we affirm the judgment of the Superior Court.

On November 21, 2007, the Probate Court appointed the defendant as temporary conservator of the estate of Vredenburgh and Matthew A. Caputo as conservator of the person of Vredenburgh. On December 31, 2007, the plaintiffs filed an appeal to the Superior Court pursuant to General Statutes § 45a-186. With respect to the appointment of the defendant as temporary conservator, the plaintiffs alleged that (1) the appointment was in excess of the statutory authority of the Probate Court, (2) the appointment was not the least restrictive means available to prevent harm and thus in violation of General Statutes § 45a-654 and (3) the Probate Court lacked sufficiently reliable evidence and acted arbitrarily and capriciously. On April 9, 2008, the defendant filed a motion to dismiss the appeal on the ground that his appointment as temporary conservator terminated on January 17, 2008. On that date, the defendant became the permanent conservator of the estate of Vreden-burgh. The defendant argued that because his appointment as permanent conservator superseded his appointment as temporary conservator, the plaintiffs’ appeal was moot.

The court, Pavia, J., granted the defendant’s motion on October 29,2008, and, subsequently, issued a memorandum of decision on January 30, 2009. It observed that “the plaintiffs’ appeal contests the appointment of the temporary conservator only, asserting error in the appointment process itself.” The court then reasoned that because the temporary position ceased to exist as of January 17, 2008, there was no actual controversy and no practical relief it could afford the plaintiffs. This appeal followed.

On appeal, the plaintiffs claim that the court improperly dismissed the probate appeal as moot. The defendant counters that the court properly concluded that his appointment as permanent conservator precluded any practical relief from being available to the plaintiffs as to the appointment process of a temporary conservator. We agree with the defendant.

“Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it 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. . . . An 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.” (Internal quotation marks omitted.) Schiavone v. Snyder, 73 Conn. App. 712, 716, 812 A.2d 26 (2002); see also Murphy’s Appeal from Probate, 22 Conn. App. 490, 494, 578 A.2d 661, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990).

In the present case, the temporary conservatorship terminated with the appointment of the permanent conservator on January 17, 2008. We agree, therefore, that the trial court could not have afforded the plaintiffs any practical relief. The ability to afford the plaintiffs such relief as to their claims of an improper appointment of a temporary conservator of the estate ceased to exist when that position ended on January 17, 2008. Any order regarding the temporary position would be ineffectual.

We are mindful of our decision in Stanley’s Appeal from Probate, 80 Conn. App. 264, 267-68, 834 A.2d 773 (2003), in which we determined that a challenge to the appointment of a conservator was not moot following the termination of that position. “[The plaintiff] was not seeking merely to terminate a conservatorship, but also to have the appointment itself set aside. . . . The substitute plaintiffs may argue that if no legal basis is found for the appointment, then there also exists no legal basis for an award of fees. To declare this appeal moot would be to disallow the substitute plaintiffs to litigate their claims fully.” Id.

The present case, however, is distinguishable from Stanley’s Appeal from Probate, supra, 80 Conn. App. 264. The plaintiffs have not been foreclosed from litigating their claims regarding the appointment of a conservator of the estate. We take judicial notice of the appeal to the Superior Court, dated January 24, 2008, filed by the plaintiffs. That appeal operates to protect sufficiently the rights of the plaintiffs with respect to the issues regarding the conservator of the estate. See Murphy’s Appeal from Probate, supra, 22 Conn. App. 496-97. The duties of a conservator of the estate are set forth in General Statutes § 45a-655 and do not distinguish between temporary and permanent conservators. We also note that the statutory definition of a conservator of the estate expressly includes temporary conservators appointed pursuant to § 45a-654. See General Statutes § 45a-644 (a). We therefore conclude that in the appeal from the appointment of a temporary conservator of the estate of Vredenburgh, the Superior Court properly concluded that it could not afford the plaintiffs any practical relief following the appointment of a permanent conservator of the estate.

The judgment is affirmed.

In this opinion the other judges concurred.

       The appeal alleged that Vredenburgh and Bershstein had “lived together for almost [fifteen] years and shared their lives and personal and financial information. They have a loving relationship evidence by the planning documents . . . executed . . . by . . . Vredenburgh.”

       Also named as defendants were the Probate Court for the district of Norwalk, Matthew A. Caputo and Sharon Giese. The Superior Court, Karazin, J., later granted Giese’s motion to dismiss the appeal as to her. For convenience, we refer in this opinion to Keogh as the defendant.

       “Under Connecticut’s statutory scheme, two types of conservatorships may be established. A conservator of the estate is appointed to supervise the financial affairs of a person found to be incapable of managing his or her own affairs or of a person who voluntarily requests the Probate Court to make such an appointment. General Statutes § 45a-644 (a). A conservator of the person is appointed to supervise the personal affairs of a person found to be incapable of caring for himself or herself or of a person who voluntarily requests the Probate Court to make such an appointment. General Statutes § 45a-644 (b).” (Internal quotation marks omitted.) Lesnewski v. Redvers, 276 Conn. 526, 528 n.1, 886 A.2d 1207 (2005).

       “The Superior Court has the statutory authority to hear and determine appeals brought by a person aggrieved by any Probate Court order, denial or decree.” Lesnewski v. Redvers, 276 Conn. 526, 531, 886 A.2d 1207 (2005).

       This appeal focuses solely on the appointment of the defendant as temporary conservator of the estate of Vredenburgh. Other issues raised by the plaintiffs with respect to the appointment of the permanent conservator of the estate and the appointment of Caputo as conservator of the person of Vredenburgh have been addressed in other court proceedings outside the scope of the present appeal.

       The defendant’s motion to dismiss did not address or pertain to the appointment of Caputo as the conservator of the person of Vredenburgh. We note that the judgment file, which was signed by a court clerk and not the judge, incorrectly states that the granting of the motion to dismiss applied to the decree appointing Caputo as conservator of the person. The judgment file is a clerical document and subject to correction to conform to the judgment, the memorandum of decision signed by the judge. See Vasquez v. Superior Court, 102 Conn. App. 394, 412-13, 925 A.2d 1112, cert. denied, 284 Conn. 915, 931 A.2d 935 (2007).
      Additionally, we note that our Supreme Court has stated that “the often thorny issue as to whether a judgment of the Superior Court is a final judgment for purposes of appeal; see General Statutes § 52-263 (final judgment required to prosecute appeal from the Superior Court); is not involved in an appeal from a judgment of a Probate Court. As the trial court implicitly recognized, since the right of appeal at issue is available under [General Statutes] § 45-288 [now § 45a-186] to [a]ny person aggrieved by any order, denial or decree of a court of probate in any matter, the section does not require a final judgment.” (Internal quotation marks omitted.) Erisoty’s Appeal from Probate, 216 Conn. 514, 518, 582 A.2d 760 (1990).

       In that appeal, the plaintiffs have challenged the appointment of a permanent conservator of the estate of Vredenburgh. Specifically, the plaintiffs claimed, inter alia, that (1) the Probate Court exceeded its statutory authority, (2) the Probate Court improperly denied a request for a continuance, (3) the appointment of a permanent conservator was not the least restrictive means available as required by § 45a-654 (a), (4) the appointment was clearly erroneous due to the lack of sufficient evidence and (5) the appointment was arbitrary, capricious and an abuse of discretion.

       Additionally, we note that the plaintiffs sought a writ of habeas corpus challenging the appointment of a conservator of the person of Vredenburgh. See General Statutes § 45a-186 (g). On March 24, 2008, the habeas court, J. Downey, J., denied the plaintiffs’ petition for a writ of habeas corpus.


author: PER CURIAM.

text:
    JAMES MARSH v. JODONNA SCALA-MARSH
    (AC 29509)
    Beach, Robinson and Schaller, Js.
    Argued September 11
    officially released December 15, 2009

      William F. Gallagher, for the appellant (defendant).

      Steven D. Ecker, with whom, on the brief, were Gavan F. Meehan and Alinor C. Sterling, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, JoDonna Scala-Marsh, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, James Marsh. The defendant claims that she was prejudiced by the court’s financial orders in that the court improperly distributed the property of the parties. We affirm the judgment of the trial court.

The record discloses the following pertinent facts and procedural history. In a memorandum of decision filed December 7, 2007, the court rendered judgment dissolving the parties’ twenty year marriage and entered orders regarding the division of the parties’ real and personal property, time limited periodic alimony for the defendant, and the custody, care and maintenance of the parties’ two minor children. A third child, no longer a minor, attends college. In fashioning its orders, the court found, inter alia, that both parties were practicing physicians and that both worked limited hours. The court further found that the parties together had purchased their marital home in Guilford as a “shell” and that the plaintiff alone had performed many hours of work on the home and landscaping. The parties stipulated that the value of the home was $552,000 and that the equity was $374,500. The parties also owned a seasonal home on Money Island, part of the Thimble Islands in Long Island Sound near Branford, which had a stipulated value of $450,000, and a timeshare in Cancún, Mexico, with a stipulated value of $15,000. The plaintiff had inherited from family members two pieces of real estate in Michigan, as well as money, and the defendant had inherited money from her mother. In addition, the court found that the defendant had funds in an “ ‘irrevocable trust,’ ” which she established using funds originally received from her father prior to the marriage.

On appeal, the defendant claims that the court improperly (1) failed to award her “compensating assets” to offset its award to the plaintiff of the marital home and the summer home, (2) failed to consider adequately her noneconomic contributions to the marriage and to the acquisition of the marital home and (3) failed to classify her irrevocable trust as an inheritance.

The defendant’s claims implicate two standards of review. To the extent that the defendant challenges the court’s factual findings, our function is to determine whether the court’s findings were clearly erroneous. Hannon v. Redler, 117 Conn. App. 403, 406, 979 A.2d 558 (2009). Additionally, to the extent that the defendant claims that the court’s orders flowing from its findings were improper, we review those orders to determine whether the court abused its discretion. Id.

On the basis of our review of the record, we find no support for the defendant’s claim that the court’s factual findings were erroneous. In each instance, the record reveals an evidentiary basis from which the court could have correctly made its factual determinations. Similarly, the court’s comprehensive and well reasoned memorandum of decision reflects that the court properly and adequately considered all relevant criteria in fashioning its orders. We conclude that the court’s orders did not constitute an abuse of discretion. Accordingly, the defendant’s claims must fail.

The judgment is affirmed.


author: FLYNN, C. J.

text:
    NICHOLAS J. BYRNE, JR. v. JOHN H. GRASSO
    (AC 30275)
    Flynn, C. J, and DiPentima and West, Js.

      Argued October 13
    officially released December 15, 2009

      Nicholas J. Byrne, Jr., pro se, the appellant (plaintiff).

      James R. Fiore, with whom, on the brief, was Anthony Nuzzo, Jr., for the appellee (defendant).
   Opinion

FLYNN, C. J.

The plaintiff, Nicholas J. Byrne, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendant, John H. Grasso, an attorney, in this legal malpractice action. On appeal, the plaintiff claims that the court improperly rendered summary judgment after concluding that his preclusion from calling expert witnesses to support his cause of action for legal malpractice rendered such claim legally insufficient as a matter of law. We affirm the judgment of the trial court.

The plaintiff brought this claim of legal malpractice against the defendant, his former attorney, for the alleged inadequate representation of his interests in a probate matter. As explained by the trial court: “An examination of the pleadings and documentary proof submitted by the parties discloses no genuine dispute as to the following facts. On April 7,1997, the plaintiffs father created a will naming the plaintiff as executor of his testamentary estate. The plaintiff was appointed executor by the Probate Court based on this will. [Monica Banta, the plaintiffs sister] contested the validity of this will and sought the admission of an earlier [September 24, 1996] will, which named her as executrix.

“In December, 2000, the plaintiff hired the defendant to represent him, in his capacity as executor, to defend the legitimacy of the April 7, 1997 will. On May 9, 2001, the Vernon Probate Court, after a hearing, found the issues in favor of Banta and ruled [that] the April 7, 1997 will [was] invalid. On January 16, 2002, Banta was recognized by the Probate Court as the executrix of the estate. The plaintiff appealed these rulings to the Superior Court.

“While the appeals were pending, the Probate Court heard Banta’s request for approval of her final accounting, which included payment of $7151.25 for her attorney’s fees. The defendant faded to attend this hearing. On May 1, 2003, the Probate Court allowed these attorney’s fees to be paid from the estate. The defendant never advised the plaintiff concerning the need to appeal from this ruling, and no timely appeal was taken.

“On August 23, 2003, the plaintiff discharged the defendant as his counsel.

“At the trial de novo in the Superior Court, [the court] ruled that the April 7, 1997 will was . . . valid and remanded the matter to the Probate Court for further action. . . . Armed with this reversal, the plaintiff asked the Probate Court to vacate its previous decision to allow Banta’s attorney’s fees. On February 24, 2005, the Probate Court denied this request because no appeal from that order had been taken.” (Citation omitted.)

On April 28, 2006, the plaintiff commenced this legal malpractice action against the defendant, alleging that the defendant had provided inadequate representation of the plaintiffs interests during the probate proceedings. On April 9, 2008, the defendant filed a motion to preclude expert testimony on the basis of the plaintiffs failure to disclose any experts in accordance with Practice Book (2008) § 13-4 (4). The court granted the motion on May 5, 2008. On May 27, 2008, the defendant filed a motion for summary judgment on the ground that the plaintiff could not prove his claim of legal malpractice without the precluded expert testimony. Agreeing, the court granted the motion and rendered judgment in favor of the defendant. This appeal followed.

Initially, we set forth the applicable standard of review for appeals from the entry of summary judgment. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Zulick v. Patrons Mutual Ins. Co., 287 Conn. 367, 372, 949 A.2d 1084 (2008). Furthermore, “[t]he determination of whether expert testimony is needed to support a claim of legal malpractice presents a question of law.” (Internal quotation marks omitted.) Moore v. Crone, 114 Conn. App. 443, 446, 970 A.2d 757 (2009).

The plaintiff claims that there was no need for expert testimony in this case, arguing that his allegations of malpractice “implicate conduct which is such a gross departure from an attorney’s standard of care that the neglect would be [obvious] to even a layperson.” Therefore, he argues, this is the type of case for which expert testimony is unnecessary. The defendant argues that the court properly rendered judgment in his favor because the plaintiff could not establish a prima facie case of legal malpractice without the introduction of expert testimony to prove a breach of the standard of care and that such breach proximately caused the alleged damage to the plaintiff. We agree with the defendant.

“In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages. . . . When proof of the existence of an attorney-client relationship is conceded, proof of the second element, a wrongful act or omission, normally involves expert testimony as to the existence of a professional duty on the part of the attorney and a departure from it by some negligent act or omission. . . .

“As to causation: In legal malpractice actions, the plaintiff typically proves that the defendant attorney’s professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the case-within-a-case.” (Citation omitted; internal quotation marks omitted.) Lee v. Harlow, Adams & Friedman, P.C., 116 Conn. App. 289, 297, 975 A.2d 715 (2009).

To prevail on a legal malpractice claim, “a plaintiff must present expert testimony to establish the standard of proper professional skill or care . . . [and to] establish that the defendant’s conduct legally caused the injury of which [the plaintiff] complain[s].” (Internal quotation marks omitted.) Moore v. Crone, supra, 114 Conn. App. 446. “[U]nless [a] defendant’s performance constituted such an obvious and gross want of care and skill as to fall within the exception to the expert witness requirement, [a] plaintiff [is] required to present expert testimony to establish the proper standard of professional skill and care and to assist the court in evaluating the defendant’s performance in light of that standard. . . . The exception to the need for expert testimony is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her Ghent’s interests, resulting in such an obvious and gross want of care and skill that the neglect would be clear even to a layperson. ” (Citation omitted; internal quotation marks omitted.) Pagan v. Gonzalez, 113 Conn. App. 135, 140-41, 965 A.2d 582 (2009).

In this case, the plaintiff contended that it was malpractice for the defendant not to attend the hearing on Banta’s request for approval of her final accounting and for him to fail to tell the plaintiff about his rights to appeal from the final accounting. The plaintiff further alleged that these failures by the defendant were the legal cause of his damages because the estate was required to pay the $7151.25 in attorney’s fees. We cannot agree that such allegations could have been proven without expert testimony.

A close review of the record does not lead us to the conclusion that the defendant’s representation of the plaintiff exhibited such an obvious and gross want of care and skill as to fall within the exception to the expert witness requirement when malpractice is alleged to have taken place. See Moore v. Crone, supra, 114 Conn. App. 446. Although it is alleged that the defendant failed to attend a hearing on the final accounting submitted by Banta and failed to explain to the plaintiff his right to appeal from the court’s decision on the final accounting, it could not be said that the defendant did “nothing whatsoever to represent his . . . client’s interests”; (internal quotation marks omitted) Pagan v. Gonzalez, supra, 113 Conn. App. 141; throughout his entire representation period, which began in December, 2000, and ended on August 23, 2003. We, therefore, are not confronted with the kind of “obvious and gross want of care and skill” that would constitute such neglect as would “be clear even to a layperson.” (Internal quotation marks omitted.) Id., 140-41. Additionally, whether the alleged failure to attend the hearing on the final accounting and to discuss appellate rights with the plaintiff was a breach of the standard of care also would require the testimony of an expert. “The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the [attorney’s] actions in light of that standard.” Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990).

Furthermore, even if we were to assume arguendo that the plaintiff could have established a breach of the standard of care without the aid of expert testimony, we also would have to conclude that without the aid of such testimony it would not have been reasonably possible for the plaintiff to prove that the estate would have been excused from paying the attorney’s fees accumulated by Banta while she was serving as the court-appointed executrix of the decedent’s estate. Attorney Mark R. Spurling represented Banta in getting the September 24, 1996 will admitted to probate successfully, and, during her administration of that will, his name appeal's on legal documents in the court file. We note that General Statutes § 45a-294 permits an executrix to recover reasonable and necessary expenses even if the will is contested and subsequently not admitted to probate. Further expenses also may be recoverable in defending such will on appeal. General Statutes § 45a-294. Accordingly, we agree with the trial court that “causation in this case is no simple matter.”

To prove that the plaintiff would have been successful in eliminating the legal fees ordered paid by the Probate Court upon its acceptance of Banta’s final accounting, the plaintiff likely would have to participate in a complex case-within-a-case trial. Without the testimony of a legal expert on the likelihood of succeeding in such a contest on the attorney’s fees accumulated by the court-appointed executrix during the will contest in Probate Court and during her period of administration, we conclude that the plaintiff could not have sustained such a burden; the issues simply were too complex.

The judgment is affirmed.

In this opinion the other judges concurred.

       We view the record in this case as complex. Although the appeal to the Superior Court from the Probate Court’s order admitting the will to probate dated September 24,1996, which named Banta as executrix, still was pending, the Probate Court accepted a final accounting of Banta but withheld any order of distribution to particular persons of the residue of the estate until a final judgment on the appeal from the Probate Court’s admission of the September 24, 1996 will.

       General Statutes § 45a-294 provides: “(a) The court of probate having jurisdiction of the testate estate of any person shall allow to the executor his just and reasonable expenses in defending the will of such person in the probate court, whether or not the will is admitted to probate.
      “(b) If there is an appeal from the order or decree of such court, admitting or refusing to admit to probate the will of such person, the court of probate shall allow to the executor or administrator his just and reasonable expenses in supporting and maintaining or defending against such will, on such appeal.
      “(c) Such expenses shall be charged by such court pro rata against the respective rights or shares of the devisees and legatees under such will and the distributees of such estate.”


text:
    IAN WATKINS v. JENNIFER THOMAS
    (AC 29235)
    Beach, Robinson and Pellegrino, Js.
    Argued September 21
    officially released December 15, 2009

      Jennifer Deane, pro se, the appellant (defendant).

      Michael A. Blanchard, with whom, on the brief, was Eric W. Callahan, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant mother, Jennifer Thomas, now known as Jennifer Deane, appeals from the judgment of the trial court rendered in favor of the plaintiff father, Ian Watkins, granting him sole custody of the parties’ minor child. The majority of the defendant’s claims focus on whether the court abused its discretion during proceedings and in its decision to award the plaintiff sole custody. We conclude that it did not and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the defendant’s appeal. On August 12, 2005, the plaintiff brought a child custody action in the judicial district of New London against the defendant, seeking visitation with and joint legal custody of the parties’ minor child, primary residence to be with the defendant. On September 12, 2005, the court, in the presence of all parties, awarded custody of the parties’ minor child to the defendant with supervised visitation to the plaintiff. The court also appointed Timothy P. Lenes, an attorney, as guardian ad litem. The matter was referred to family relations for an evaluation. MaretDiGangi, a family relations counselor, interviewed all of the relevant parties and submitted a recommendation that the defendant should have sole custody of the parties’ minor child.

On February 21, 2006, the court ordered that the plaintiff and the defendant both undergo psychological evaluations. The court appointed Susan T. Berry, a psychologist, to perform a psychological-custody-access evaluation of the plaintiff, the defendant and the parties’ minor child. The evaluation was submitted as an exhibit at trial by the plaintiff. The evaluation recommended joint legal custody between the plaintiff and the defendant with no primary residence, and that the defendant remain in Connecticut while the plaintiff and the parties’ minor child began their reunification process.

On March 6, 2007, the plaintiff amended his complaint, seeking sole physical custody of the parties’ minor child. On May 3, 2007, in the presence of all parties, the court ordered the attorneys to schedule a trial date. On May 18, 2007, the defendant filed a motion for immediate and emergency modification of the orders of the court, requesting, inter alia, that she be allowed to relocate with the parties’ minor child anywhere the United States Army sends her husband, a private first class, and that the visitation schedule between the parties be adjusted accordingly. The motion was denied.

On July 26, 2007, the court rendered judgment without trial, awarding sole custody of the parties’ minor child to the plaintiff and specifying that any visitation of the child by the defendant must be supervised by the Children’s Rights Council or a similar establishment. The defendant was not present at the trial. The judgment was sent to the defendant on August 30, 2007. On September 19, 2007, the defendant, pro se, filed this appeal.

The defendant claims that the court abused its discretion by (1) making findings and recommendations that are contrary to those of the family relations personnel submitted by DiGangi and the psychological evaluations submitted by Berry, (2) ignoring sexual abuse allegations submitted by the defendant, (3) being extremely lenient toward the plaintiff in regard to his completion of a court-ordered parenting education program, (4) ruling on motions that the defendant contends she marked off and (5) failing to rule on motions filed by the defendant. The defendant, however, cites no legal authority to support her claims. We, therefore, decline to address them. “ [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. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims. . . . Moreover, [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.” (Citation omitted; internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn. App. 778, 796-97, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).

The judgment is affirmed.

       The defendant presents two other claims that can be disposed of easily. First, the defendant claims that the court did not follow Practice Book § 25-30 in ordering counsel fees without a sworn statement by the opposing party, though § 25-30 (a) allows the court to do so. Second, she claims that the guardian ad litem exceeded the scope of his duty by overseeing the psychological examination given by Susan T. Berry, a psychologist appointed by the court to perform a psychological-custody-access evaluation of the plaintiff, the defendant and the parties’ minor child. The defendant cites Practice Book § 13-11 for the proposition that only the party moving for a psychological examination and the party submitting to one may be involved in the process. We do not find that this provision supports the defendant’s proposition.

       The original complaint was served on the defendant on July 13, 2005, but was returned to the court with instructions that the wrong forms had been used and that the forms provided on the judicial branch’s Internet site were to be used instead. This date is noteworthy because shortly thereafter, on July 25, 2005, the defendant submitted an allegation of sexual abuse by the plaintiff against the parties’ minor child to the department of children and families (department).
      John Little, an employee of the department, testified that the department investigated the allegation of sexual abuse as required by protocols, that a physical examination was conducted on the parties’ minor child and that the physician who conducted it confirmed that the results were benign. Further, Timothy P. Lenes, the guardian ad litem, testified that he talked to the department worker who was working on the case to confirm that the allegations were unsubstantiated and that it was Lenes’ theory that the defendant was employing whatever means necessary to prevent the plaintiff from being in the child’s life. Additionally, the plaintiff answered questions and underwent a forensic psychosocial evaluation at the New London police department, which yielded no indication that he sexually abused the child.

       The parties’ minor child was bom on October 28, 2001, to the couple, who have never been married, nor cohabitated.

       The defendant also claims that the court abused its discretion in appointing Berry; however, the defendant was not present at trial to raise the issue, and “[w]e will not decide an appeal on an issue that was not raised before the trial court.” (Internal quotation marks omitted.) Histen v. Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006). Moreover, “[w]henever the judicial authority deems it necessary, on its own motion it may appoint any expert witnesses of its own selection. . . .” Practice Book § 42-39.

       On September 5, 2007, the defendant filed an appearance with the trial court, to advise of her relocation to Virginia and to provide her updated address to the court.

       The defendant was also self-represented at trial. The plaintiff was represented by counsel at trial and is represented by counsel in this appeal.

       The defendant also claims that she was not provided with a trial date but does not provide any supporting authority as to why this is improper, nor does she provide analysis of how she was prejudiced by this. Similarly, she alleges that there were inaccuracies in the judgment file but does not give any explanation of how they prejudice her.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. JOANNE WARREN
    (AC 29315)
    Bishop, Beach and Hennessy, Js.
    Argued September 24
    officially released December 15, 2009

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

      Rita M. Shair, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, former state’s attorney, and Brian F. Kennedy, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Joanne Warren, appeals from the judgment of conviction, rendered after a jury trial, of two counts of larceny in the fifth degree in violation of General Statutes §§ 53a-119 and 53a-125a, credit card theft in violation of General Statutes § 53a-128c, four counts of forgeiy in the third degree in violation of General Statutes § 53a-140, four counts of criminal impersonation in violation of General Statutes § 53a-130, identity theft in the third degree in violation of General Statutes §§ 53a-129a and 53a-129d, and two counts of larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b. On appeal, the defendant claims that the trial court violated her constitutional right to an impartial, properly instructed jury by giving an improper instruction after the initial jury charge. Specifically, the defendant claims that because the court’s subsequent, allegedly improper instruction stated that the written charge was only to be used as a guide, the court either muddied the jury’s understanding that it was bound to accept the law as it was given by the court or, alternatively, suggested that the jury could reject the law entirely and find her guilty on some extralegal or insufficient basis. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Ellen Mallozzi, the victim, met the defendant through Jonathan Warren, the defendant’s nephew. During the relevant time period, Jonathan Warren was dating Sarah Mallozzi, the victim’s daughter. In March or April, 2006, Jonathan Warren introduced the defendant to the victim. From that point on, the defendant and the victim developed a friendship.

In July, 2006, the victim was planning a high school graduation party for her daughter. In anticipation of the party, the victim needed her house to be cleaned. Because of the stress associated with planning the party, and because the defendant had indicated that she wanted to make some money in light of the upcoming birthday of her boyfriend, the victim asked the defendant to clean her house. The defendant agreed. On July 18, 2006, both the defendant and her boyfriend, Brodarick Baker, arrived at the victim’s house in the early afternoon to clean. The mail had been delivered to the house by the time the defendant started cleaning, and the victim had not removed it from the mailbox. Additionally, an employee for the bank responsible for issuing JC Penney credit cards testified that a gold JC Penney credit card had been mailed to the victim on July 9, 2006.

Approximately one month later, when the victim was reviewing her JC Penney credit card account statement, she noticed a number of charges for items she had not purchased. For example, on July 18, 2006, there was a charge of $379 for a ten karat gold rope chain. On July 29,2006, the birthday of the defendant’s boyfriend, there were charges for a JC Penney gift card for $400; shorts, T-shirts, pants and a pair of sneakers purchased for $66.95; and Nike footwear purchased for $42.99. After viewing these charges, the victim immediately telephoned JC Penney, cut up her credit card and threw it away. JC Penney subsequently closed the victim’s account, marked it as fraudulent and suggested that she file a complaint with the police.

Following JC Penney’s advice, the victim filed a complaint with the Trumbull police department. In her statement, she suggested that the police contact the defendant. The defendant admitted to the police that she had used a JC Penney gold credit card issued to the victim and that she had been signing the victim’s name when making purchases. She later brought the JC Penney gold card to the police station, and she gave a full statement. Although the defendant claimed that Sarah Mallozzi had given her permission to use the credit card, Sarah Mallozzi denied granting such permission. Furthermore, the victim stated that not only had she not authorized the defendant’s use of the card, she did not know of the card’s existence until after she contacted JC Penney to report the disputed charges.

At trial, after the evidence was introduced, closing arguments were made and the jury was charged orally, the court stated that it was going to provide a written copy of the charge to the jury. The defendant’s trial counsel, in response, requested that a copy of the charge be entered into the record as a court document. The court acquiesced and ordered the jury back into the courtroom. The court informed the jury: “I’m going to have the evidence sent back to you, the information, and I’m — I’m going to send you a copy of the jury charge. But once again, this, like the information, is not evidence in the case. It is only to be used by you as a guide. The information acts as a guide; [it] is not evidence in the case. So, I will send back with the information, a copy of my jury charge so you can make references to any part of the — that you deem necessary, okay.”

After receiving a written copy of the charge and deliberating, the jury found the defendant guilty of all charges. She was sentenced to a term of ten years incarceration, execution suspended after five years, and five years of probation.

The defendant alleges on appeal that her constitutional right to be tried by a properly instructed jury was violated when the court instructed the jury that it was to use the copy of the written charge only as a “guide.” The defendant argues that the “instruction was insufficient to assure that no injustice was done [because] the charge as a whole failed to protect the defendant from the very real danger that the jury disregarded law that it expressly was told was ‘only’ a ‘guide,’ and instead convicted her on some extralegal or insufficient basis.” She further argues: “Viewing the charge in this case in its entirety ... it is clear that by instructing the jury that the written charge was ‘only’ a ‘guide,’ the court at best muddied the jury’s understanding that it was bound to accept the law as it was given by the court and, at worst, the court suggested that the jury could reject that law entirely. This is indisputable; the word ‘only’ connotes ‘nothing more than’ or ‘something less than,’ and the term ‘guide’ connotes something that directs; it is something that advises but is not binding.” We are not persuaded.

The defendant failed to object to the instructions at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. “[T]he first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Wright, 114 Conn. App. 448, 458, 969 A.2d 827 (2009).

The defendant has met her burden with respect to reviewability. The trial transcript clearly provides a sufficient record for review. As for the constitutional magnitude condition, the United States Supreme Court has commented that, “[t]hough the line separating the permissible jury practice from the impermissible may not be the brightest ... a line must be drawn somewhere, and the constitutional inviolability of that border must be scrupulously respected lest the purpose and functioning of the jury be seriously impaired.” (Citations omitted.) Brown v. Louisiana, 447 U.S. 323, 331, 100 S. Ct. 2214, 65 L. Ed. 2d 159 (1980). Despite the absence of a bright line, Connecticut jurisprudence is clear that “every claim of instructional error is not truly constitutional in nature.” State v. Wallon, 227 Conn. 32, 64, 630 A.2d 990 (1993); see also State v. Dash, 242 Conn. 143, 151-52, 698 A.2d 297 (1997). Rather, our Supreme Court previously has “considered an instructional impropriety to be of constitutional dimension only when it has gone to the elements of the charged offense, the burden of proof or the presumption of innocence, concepts that undeniably are fundamental to the notion of a fair and impartial jury trial.” State v. LaBrec, 270 Conn. 548, 557, 854 A.2d 1 (2004).

Here, the defendant alleges that the court’s instruction that the jury use the copy of the written charge “only ... as a guide,” negated the court’s earlier oral instruction and, consequently, allowed the jury to reject the law as provided by the court. If the jury was not bound by the instruction as alleged, the court’s use of the phrase “only ... as a guide” affected all portions of the charge, including those of a constitutional magnitude such as the elements of the charged offense and the burden of proof. Thus, we conclude that the second prong of Golding is met and that the defendant’s claim is reviewable.

Accordingly, the resolution of the defendant’s appeal turns on whether the court’s instructions to the jury amounted to a clear constitutional violation that clearly deprived the defendant of a fair trial. See State v. Makee R., 117 Conn. App. 191, 198, 978 A.2d 549 (2009). It is well settled that jury instructions are to be reviewed in their entirety. See State v. Collazo, 113 Conn. App. 651, 668, 967 A.2d 597, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). “When the challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) Id. In making this determination, “the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement . . . .” (Internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 714, 741 A.2d 913 (1999). Individual instructions also are not “to be judged in artificial isolation . . . .” (Internal quotation marks omitted.) Id. Instead, “[t]he test to be applied ... is whether the charge ... as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id.

In reviewing the charge as a whole, we conclude that the court’s use of the phrase “only ... as a guide” in instructing the jury did not amount to a clear- constitutional violation that clearly deprived the defendant of a fair trial. Before the trial commenced, the court gave preliminary instructions to the jury on procedure. The court stated that “[w]hen the arguments are completed, once again I will instruct you on the law that you will apply to the facts of the case, and then you’ll go into the deliberation room and deliberate. . . . Before you may discuss this case . . . you must have heard from me the instructions on the law that you will apply to the facts as you find them to be.” Following closing arguments, the court charged the jury by stating: “The function of the court and jury; it is exclusively the function of the court to state the rules of law that govern the case with instructions as to how you are to apply them. It is your obligation to accept the law as I state it. You must follow all my instructions and not single out some and ignore others; they are all equally important.” In concluding the charge, the court again wanted to emphasize that “the law is given to you by the court; it is your duty to accept the law as given to you by the court. It is your duty to determine the facts.”

The defendant does not take specific issue with the court’s initial oral charge to the jury or with the written copy of that charge. Rather, the defendant argues that a clear constitutional violation exists due to the court’s use of the phrase “only ... as a guide” when it presented a copy of the written charge to the jury because the jury could have understood that to mean that it could disregard the law as previously laid out by the court. This reading by the defendant is unsustainable. We cannot review this particular instructional phrase by the court in isolation from the thirty-nine page charging document. See State v. Gonzalez, 69 Conn. App. 649, 659, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002). The context of the court’s instruction that the written copy of the charge be used “only . . . as a guide” makes clear that the court was contrasting the instructions with evidence instead of commenting on whether the jury had to follow the instructions. Moreover, despite any ambiguity surrounding the contested instructional phrase, the copy of the charge itself correctly guided the jury by stating, in multiple places, as we have discussed, that the jury was obligated to accept the law as provided by the court. Although jury instructions do serve as a guide, they are a mandatory guide, and here it is clear that the jury was bound by the instructions. Thus, after reviewing the record, we cannot say that the court’s instructional phrase “only ... as a guide” created a reasonable possibility that the jury was misled.

As a result, we conclude that the jury instructions, read as a whole, did not clearly violate the defendant’s constitutional rights or clearly deprive her of a fair trial as required for reversal under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also argues that her claim is reviewable under the plain error doctrine. See Practice Book § 60-5. The plain error doctrine, which provides a rule of reversibility, rather than reviewability, “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 326, 977 A.2d 209 (2009). This case does not present such an extraordinary situation warranting the application of the plain error doctrine.

       “Indeed, it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.” (Internal quotation marks omitted.) State v. LaBrec, 270 Conn. 548, 557, 854 A.2d 1 (2004).

       Even though we review this claim under the third prong of Golding, we note that “[w]hen the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial ... is seriously undercut.” (Internal quotation marks omitted.) State v. Makee R., 117 Conn. App. 191, 198, 978 A.2d 549 (2009).


author: BISHOP, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. EDWARD BURGOS
    (AC 29635)
    Bishop, DiPentima and Berdon, Js.
    Argued September 14
    officially released December 15, 2009

      Christopher Y Duby, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Edward Burgos, appeals from the judgments of conviction rendered by the trial court following his conditional pleas of nolo contendere under General Statutes § 54-94a. Because we conclude that the defendant’s pleas were not knowing and voluntary, we reverse the judgments of conviction and remand the cases to the trial court with direction to vacate both pleas and for further proceedings.

The following facts and procedural history are relevant. The defendant was charged in two separate criminal files. The first set of charges stemmed from an incident occurring on September 11, 2004, involving his girlfriend, who accused him of physically and sexually assaulting her and taking her vehicle without permission. In that case, Docket No. CR-04-584868 (unlawful restraint case), the defendant was initially charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), threatening in the second degree in violation of General Statutes § 53a-62, assault in the third degree in violation of General Statutes § 53a-61 and using a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b. On October 26, 2004, the defendant pleaded not guilty and was incarcerated because he could not post bail. Subsequently, the state filed a substitute information in that case charging the defendant with unlawful restraint in the first degree.

On February 6, 2005, while incarcerated, the defendant was involved in an incident with a correction officer. He was consequently charged, in Docket No. CR-05-588237 (assault case), with one count of criminal assault of public safety personnel in violation of General Statutes (Rev. to 2005) § 53a-167c.

On December 8, 2005, both cases were placed on the court’s firm jury list. The defendant’s cases were not called until June 1, 2007, when, mistakenly, another inmate was brought to the courthouse instead of the defendant. At that time, the court asked defense counsel R. Bruce Lorenzen whether he was representing the defendant in both cases. Lorenzen indicated that the defendant was represented by another attorney in the assault case. On that same date, Lorenzen filed a motion to dismiss in the unlawful restraint case, arguing that the defendant’s right to a speedy trial had been violated and that pursuant to General Statutes § 54-142a (c) and State v. Winer, 99 Conn. App. 579, 915 A.2d 883 (2007), rev’d, 286 Conn. 666, 945 A.2d 430 (2008), the charges against the defendant should be nolled by operation of law and dismissed because there had been no prosecution or other disposition of these matters since December 8, 2005. The court asked Lorenzen if the motion applied to the assault case as well, and he responded that he did not have an appearance in that file.

Following a hearing on August 9, 2007, the court denied the motion to dismiss. The defendant filed a motion to reconsider the denial of the motion to dismiss, but no action was taken on that motion. On October 11,2007, pursuant to § 54-94a, the defendant entered written pleas of nolo contendere in both criminal files, conditioned on his right to appeal from the court’s denial of his motion to dismiss as to both files. Specifically, the defendant entered a nolo contendere plea to the substitute charge of unlawful restraint in the first degree in violation of General Statutes § 53a-95 in the unlawful restraint case. He also entered a nolo conten-dere plea to the charge of assault of public safety personnel in violation of § 53a-167c in the assault case.

The court canvassed the defendant, found that the motion to dismiss pertained to both cases and accepted the defendant’s pleas. On January 14, 2008, in accordance with the plea agreement, the court imposed a sentence of seven years incarceration in the assault case and a concurrent five years of incarceration in the unlawful restraint case. This appeal followed.

“[W]e conduct a plenary review of the circumstances surrounding the plea to determine if it was knowing and voluntary.” State v. Groppi, 81 Conn. App. 310, 313, 840 A.2d 42, cert. denied, 268 Conn. 916, 847 A.2d 311 (2004). “A defendant entering a guilty plea waives several fundamental constitutional rights. . . . We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Citation omitted; internal quotation marks omitted.) Id., 314.

Here, the motion to dismiss bore only the docket number of the unlawful restraint case and made no mention of the assault case. In fact, when Lorenzen filed the motion to dismiss in the unlawful restraint case, he was not representing the defendant in the assault case. Therefore, the court mistakenly concluded that the motion to dismiss pertained to both cases. Although the record reflects that the defendant intended to enter his pleas on the condition that he be permitted to challenge on appeal the court’s denial of his motion to dismiss, he could not do so in the assault case because, in that file, he had filed no motion to dismiss. Because the defendant mistakenly believed, at the time he had entered his pleas, that both pleas were conditioned on his right to appeal, neither plea was entered knowingly and voluntarily. Thus, his convictions cannot stand.

The judgments are reversed and the cases are remanded with direction to vacate the pleas and for further proceedings according to law.

In this opinion DiPENTIMA, J., concurred.

BERDON, J.,

dissenting. This nightmare has been going on for over five years, during which time, the defendant, Edward Burgos, has been incarcerated because he was unable to post the required cash bond of $750,000. Now, the majority wants to send this case back to the trial court for further proceedings because of a mere technicality. I will not take part in it, and, accordingly, I dissent.

This matter began with a claim that on or about September 11, 2004, the defendant sexually assaulted a woman, a matter that the “state has always conceded [was] . . . not the strongest case out there.” He then struck a guard on February 6, 2005, presumably out of this frustration. Although the defendant’s actions are not excusable, I could understand the frustration the defendant must have felt while being incarcerated and awaiting trial for a charge that, even the state conceded, was weak.

Appropriately, the defendant raised his constitutional right to a speedy trial in a motion to dismiss the charges before the court. Although it is unclear as to whether the court reached this argument, I would order defense counsel and the prosecutor to file supplemental briefs on the issues with respect to the violation of the defendant’s state and federal constitutional right to a speedy trial and put this case to rest.

Accordingly, I respectfully must dissent.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The matter was then continued to June 12, 2007, at which time the court indicated that the case was being placed back on the firm trial list.

       We note that the defendant did not, at any time, assert his statutory or constitutional right to a speedy trial, as he never filed a motion for a speedy trial in either case. See Barker v. Wingo, 407 U.S. 514, 531-32, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Practice Book § 43-41.

       The Supreme Court reversed this court’s decision in Winer after the trial court issued its decision in this case.

       Prior to accepting the defendant’s pleas, the court asked Lorenzen whether the motion to dismiss had been filed in both cases. In response, defense counsel and the prosecutor suggested that the motion to dismiss had been filed in both cases. The record reflects that both counsel were m error.

       See Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); see also State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980) (identifying four factors forming matrix of defendant’s constitutional right to speedy adjudication: [1] length of delay, [2] reason for delay, [3] defendant’s assertion of his right and [4] prejudice to defendant).