text:
    THOMAS LAMBERT, JR. v. KATHLEEN DONAHUE
    (AC 22996)
    Foti, Schaller and Flynn, Js.

      Submitted on briefs May 2
    officially released August 5, 2003

      Joseph Chiarelli filed a brief for the appellant (plaintiff).

      Lisa A. Faccadio and Christine S. Dorsey filed a brief for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiff, Thomas Lambert, Jr., once again appeals from postjudgment orders made relating to the custody, support and visitation of the parties’ minor child, which have been the subject of almost constant litigation since the child’s birth. The defendant, Kathleen Donahue, is the mother of the parties’ child, who was bom on January 1,1991. Lambert is his father.

Lambert presents the following issues on appeal: “(1) Did the trial court err in concluding the evidence in the trial of this matter and then requesting a written response to judicial inquiries which written answers/ position submission was not subject to cross examination? (2) Did the trial court err in entering orders modifying child custody/visitation and support without appointing an attorney or guardian ad litem to represent the minor child? (3) Did the trial court err in modifying the judgment by awarding sole legal and physical custody of the unrepresented minor child to the mother where: the mother did not file any motion to modify custody/visitation alleging a substantial change of circumstances to warrant such modification; the court did not make any finding regarding a change in circumstances to warrant a modification; and the court failed to consider the statutory criteria pursuant to [General Statutes §] 46b-56 concerning custody? (4) Did the trial court err in finding that the plaintiff ‘admitted’ that the child spends seventy five to eighty percent of his parenting time with the grandparents and not with him when same was not the plaintiff’s testimony? (5) Did the trial court err in awarding $3,000 in counsel fees to the defendant when the court did not state the basis of such award and failed to consider the appropriate statutory criteria for such award? (6) Did the trial court err in not ruling on [motion number] 266 — the plaintiff’s Motion For Contempt Post-Judgment Vacation dated June 8,1999 in that same was specifically to be decided by the court and extensive testimony was elicited and received regarding the subject matter of [motion number] 266?” We affirm the judgment of the court.

The following facts are relevant to our resolution of Lambert’s claims. By orders entered on November 12, 1993, the child was placed in the joint custody of both Lambert and Donahue with actual physical custody granted to Donahue. The court also entered visitation and support orders at that time. The parties filed a series of postjudgment motions, and hearings were held over a number of weeks, concluding on July 16, 1999. At the close of those hearings, the court asked the parties to submit written responses to the court’s remaining questions regarding the schedules of each parent, the activities of their child, and facts relating to vacation schedules and vacation plans. Donahue filed her written responses on August 27, 1999, and Lambert filed his responses on October 4,1999. The court, thereafter, issued its decision on October 15,1999, awarding sole custody of the child to Donahue. The court also modified the visitation schedule and the child support payments, and it found Lambert in contempt for taking the child out of the state without notifying Donahue of the child’s whereabouts. Accordingly, the court ordered Lambert to pay $3000 in counsel fees on behalf of Donahue.

Lambert filed an appeal of that decision on December 2, 1999, but shortly thereafter, on February 29, 2000, he also filed a motion with the trial court requesting an evidentiary hearing regarding the parties’ responses to the court’s questions. Because the court granted the motion, and the evidentiary hearing had not been held prior to oral argument on the appeal, we dismissed the original appeal for lack of a final judgment. See Lambert v. Donahue, 69 Conn. App. 146, 794 A.2d 547 (2002). Nevertheless, after allowing Lambert additional time to file a supplemental brief, we did consider the first amended appeal that Lambert filed, which related to the court’s order that Lambert pay $4000 toward Donahue’s expenses in defending the appeal. See id., 149; see also Practice Book § 61-9. We upheld that order.

In relation to Lambert’s request for an evidentiary hearing as to the parties’ responses to the court’s inquiries, on March 15, 2002, the court, after reconsideration, denied the motion for the evidentiary hearing. This appeal followed.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 775, 804 A.2d 889 (2002).

I

Lambert’s first claim is that the court improperly concluded the evidentiary phase of the proceeding, but then requested written responses to its inquiries without giving the parties the opportunity to cross-examine each other as to those responses. Lambert argues that these court-ordered submissions were “clearly hearsay, not subject to cross-examination, improperly considered by the trial court as evidence, and required by the court [in] abuse of the trial court’s discretion in this matter.” After reviewing the record, we decline to review the merits of this claim because we conclude that Lambert, through his attorney, agreed to the submission of posthearing written responses.

“Whether or not the trial judge shall question a witness is within [the court’s] sound discretion. The extent of the examination is likewise within [the court’s] sound discretion. Its exercise will not be reviewed unless [the court] has acted unreasonably, or, as it is more often expressed, abused [its] discretion. The judge must not exhibit bias or prejudice nor take sides.” (Internal quotation marks omitted.) LaBow v. LaBow, 13 Conn. App. 330, 335, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and . . . evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of a substantial prejudice or injustice.” (Internal quotation marks omitted.) Sheiman v. Sheiman, 72 Conn. App. 193, 201, 804 A.2d 983 (2002).

The following additional facts are relevant to our resolution of this issue. On July 16,1999, after Lambert’s attorney curtailed his examination of Donahue and told the court that his case was concluded, the court stated that it still had many questions for the parties. The judge then asked the parties if they wanted to submit the responses “posttrial . . . .” The court explained that it would leave the evidence open because “additional information would be helpful to the court . . . and [counsel] can submit [the responses] in writing because ... it avoids another court date.” Counsel for both Lambert and Donahue responded in the affirmative, with Lambert’s counsel responding, “Yes,” and Donahue’s counsel responding, “Fine.” The court asked the parties to provide information as to the following: “the regularly scheduled vacations ... of the child; the regularly scheduled activities that are done with the child ... if there are things that happen approximately the same time during the year; the parents’ work schedule and if there is a set vacation . . . .” The court also asked for information regarding medical insurance.

Donahue’s attorney asked the court how it would like these submissions presented, and the court responded that it wanted them on pleading paper. After the court reviewed a temporary summer visitation agreement worked out by the parties, it then asked the parties if they had any questions. Lambert asked one question relating to telephone calls, which the court answered, and neither party responded affirmatively when asked, again, whether there was “anything further.” Accordingly, the court adjourned the hearing.

On August 27,1999, Donahue filed her responses with the court, and, on October 4, 1999, Lambert filed his responses. Neither party requested the opportunity to question the other party regarding the submitted responses. The court filed its memorandum of decision on October 15, 1999. Lambert filed an appeal from the judgment on December 2, 1999, but he then filed a motion for an evidentiary hearing on February 29,2000, which the court, initially, granted. His appeal, therefore, was not from a final judgment, and we dismissed it. At a hearing held on March 15,2002, the court reconsidered its granting of the motion for an evidentiary hearing and stated that the motion had been “improvidently granted.” The court went on to explain that “neither submission played any role in the decision that [the court] had entered” because the extensive typewritten responses were not what the court had in mind. The court further explained that responses from both the plaintiff and the defendant were “totally disregarded” by the court and that when it “actually prepared the decision and entered the orders, [it] did not factor in the information from either party.”

Although the plaintiff, on appeal, vehemently argues that the court abused its discretion by admitting and considering this requested hearsay evidence, he responded affirmatively when the court requested the submissions “post” and in writing in order to avoid another court date, he did not raise an objection of any sort before the court, and he did not file a request for an evidentiary hearing until more than seven months after the court requested the submissions. This request for an evidentiary hearing did not come until more than four months after the court issued its memorandum of decision.

“Whenever evidence is admitted without objection, the trier of fact can rely on its contents for whatever they are worth on their face. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Citations omitted; internal quotation marks omitted.) State v. Parham, 70 Conn. App. 223, 230, 797 A.2d 599 (2002).

In Fraund v. Design Ideas, Inc., 17 Conn. App. 280, 285, 551 A.2d 1279 (1989), both the plaintiff and the defendant submitted posthearing evidence, contained in their briefs, to an arbitrator. On appeal of the arbitrator’s decision, “[t]he court concluded that, because . . . the [appellant] failed to object to the submission of the evidence, [it] had waived its right to object.” Id. In upholding this decision, we held that “the trial court did not err in finding that the [appellant] had waived any objection to the posthearing submission of evidence.” Id.

Because Lambert did not request an evidentiary hearing until more than four months after the court rendered judgment, and he failed to object to the court’s request for written submissions and, according to the record, his counsel agreed to this procedure, we decline to review this claim further. Additionally, the appellant has not shown any harm from the procedure employed by the court especially since the court made it clear that the posthearing submissions played no part in the ratiocination process leading to its decision.

II

Lambert next claims that the court abused its discretion when it entered modifying orders related to the child without appointing an attorney or guardian ad litem on the child’s behalf. We disagree.

General Statutes § 46b-54 provides in relevant part: “(a) The court may appoint counsel for any minor child ... if the court deems it to be in the best interests of the child .... (b) Counsel for the child . . . may also be appointed . . . when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy . . . .”

“The purpose of appointing counsel for a minor child in a [custody matter] is to ensure independent representation of the child’s interest and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation. Schaffer v. Schaffer, 187 Conn. 224, 225 n.1, 445 A.2d 589 (1982). Whenever child custody is seriously contested, it is preferable to appoint independent counsel. Yontef v. Yontef, 185 Conn. 275, 284, 440 A.2d 899 (1981). Generally, appointment of counsel for minor children rests within the discretion of the court . . . [and] the failure of the court to appoint an attorney [generally is] not such a clear abuse of discretion that [a party] would be entitled to reversal on that ground. Kearney v. State, [174 Conn. 244, 251, 386 A.2d 223 (1978)].” (Citation omitted; internal quotation marks omitted.) Pisch v. Pisch, 7 Conn. App. 720, 725-26, 510 A.2d 455 (1986).

Lambert attempts to analogize the present case to that of G.S. v. T.S., 23 Conn. App. 509, 582 A.2d 467 (1990), wherein this court held that it was an abuse of discretion not to appoint counsel for the minor children. Id., 510. In G.S., the issue concerning the appointment of counsel for the minor children was raised in a pretrial motion. In that case, we explained that “[t]his motion was never addressed by either the court or the defendant . . . [and the] court’s failure to appoint counsel went to the vital issue of custody in [the] case. . . . [W]here custody is contested and where allegations of child abuse, specifically allegations of sexual molestation, [are] known to the trial court prior to the commencement of trial and [where they become] abundantly clear during the first day of testimony, it [is] an abuse of discretion not to appoint counsel for the minor children.” Id.

Lambert argues that the present case is similar because the court expressed concern over one incident where Lambert pushed his child against a wall. The child had been hitting his grandmother, Lambert’s mother, and, in an effort to stop the child from further striking her, Lambert pushed him. Although Lambert is correct in that the court found this incident “very troubling” and “inappropriate,” this isolated use of “poor judgment” in physically handling his child, although disconcerting, is a far cry from the allegations of repeated sexual abuse that were alleged in G.S. v. T.S., supra, 23 Conn. App. 509. In the present case, the court was faced with a troubling incident that did not involve any allegations of neglect, sexual abuse or physical abuse that required Lambert’s arrest. Additionally, neither party requested that an attorney or a guardian be appointed for the minor child in this matter.

Pursuant to § 46b-54, the appointment of an attorney to represent a minor child rests within the sound discretion of the court. Lambert has presented nothing on appeal that convinces us that the court clearly abused its discretion by not appointing an attorney in this matter.

Ill

Lambert next claims that the court improperly modified the previous judgment, awarding sole custody to Donahue, without making findings relating to changed circumstances, as required by § 46b-56, and that it did so without Donahue having filed a request for such modification. This claim is wholly without merit.

“The authority to render orders of custody and visitation [is] found in General Statutes § 46b-56, which provides in part: (a) In any controversy before the superior court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation. . . . (b) In making [or modifying] any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child. . . . Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child. . . . The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [the modification]. The trial court [has] the advantage of observing the witnesses and the parties. Considerable evidence [normally is] presented concerning the activities of the parties since [the rendering of the original judgment]. In circumstances like these, whether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Sheiman v. Sheiman, supra, 72 Conn. App. 199.

Although Lambert persists in arguing that Donahue did not file a request to modify custody, the record clearly establishes that, at the start of the hearing, while the court was assessing the scores of motions that had been filed in this case, counsel for Donahue explained that she had filed four motions, one of which was a motion “to adopt the family relations evaluation.” Counsel explained that this motion was, in essence, a motion to modify custody by adopting the report of the family relations office, which recommended that Donahue be awarded sole legal and physical custody of the child. Lambert was present at the hearing when this exchange occurred, and the record clearly reveals that he was aware that Donahue was seeking sole custody by means of the motion to adopt the family relations evaluation. Additionally, he did not object to the characterization of this motion as a motion to modify. Accordingly, we find absolutely no merit to his claim.

Lambert also claims that the court modified custody without making a finding of changed circumstances. Upon our review of the court’s memorandum of decision, however, we find that the court specifically stated that its orders were made in consideration of “the evidence, § 46b-56 concerning custody, General Statutes § 46b-84. concerning support, General Statutes § 46b-62 concerning attorney’s fees and General Statutes § 46b-87 concerning contempt . . . .” Furthermore, the memorandum of decision is replete with references to evidence that demonstrates a change in circumstances by the parties’ complete inability to communicate concerning their child. The court specifically found that these parents argue about everything from physician’s visits to class photographs to Halloween costumes, all to the detriment of their child. They refer to their child by different names, with Lambert using a common nickname for the child and Donahue referring to the child by his initials. Finding that a coparenting situation was not working for these parties, the court properly awarded sole custody to the parent that it found, on the basis of the evidence, best suited to assume that very important responsibility.

On the basis of our review of the record, we conclude that the court did not abuse its discretion when it concluded that it was in the best interest of the child that sole custody be awarded to Donahue.

IV

Lambert next claims that the court made a finding of fact that was not supported by the evidence. He argues that the “court erroneously drew the conclusion that the child is with the paternal grandparents 75 percent to 80 percent of the time and not with the plaintiff.” Although we agree that the evidence did not support this one particular finding, we conclude that the inaccuracy was harmless because it did not form the primary basis for the court’s ruling as there was substantial additional evidence from which the court drew its conclusions. Furthermore, Lambert does not claim to have been prejudiced by this inaccurate finding.

“When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. . . . This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could have legally, logically and reasonably been found by the trier .... Where, however, some of the facts found are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. ... If, when taken as a whole, they undermine appellate confidence in the court’s fact finding process, a new hearing is required.” (Citations omitted; internal quotation marks omitted.) DiNapoli v. Doudera, 28 Conn. App. 108, 111—12, 609 A.2d 1061 (1992).

The court found that “[t]he plaintiff admitted that the child spends 75 percent to 80 percent of his parenting time with the grandparents and not with him. His parents also accompany him for most of the pickup and return of the child.” Our review of the record reveals that the court’s finding regarding the amount of time that Lambert spends with his child on visitation lacks a reasonable basis in the facts.

Lambert testified that his parents do, in fact, spend much time with the child, but his testimony regarding the 75 to 80 percent time allocation was made in reference to how often his parents go with him to pick up his son. Specifically, Lambert testified that his parents “come along maybe 75, 80 percent of the time” when he picks up his son for visitation. His parents then take the child for the evening while Lambert remains at home. Lambert would then spend Saturday with his son, and he and his parents would have breakfast together on Sunday morning with the child before Lambert and his parents returned the child to Donahue on Sunday evening.

Although this testimony does not support the court’s finding that Lambert’s parents, and not Lambert, spent 75 percent to 80 percent of the total visitation time with the child, on the basis of our review of the record, we are not persuaded that this finding formed the basis of the court’s order or that it was harmful.

Although we agree that the finding was inaccurate, we conclude that all of the findings, taken as a whole rather than focusing on this one inaccuracy, provide more than ample support for the court’s decision, including, but certainly not limited to, the findings concerning Lambert’s inability or unwillingness to compromise, the parents’ inability to agree on anything concerning the child’s welfare, the high degree of animosity between them and the necessity of police intervention at the child’s school to prevent Lambert from improperly taking the child without authorization.

Additionally, we conclude that this one inaccuracy, concerning the amount of time that Lambert’s parents spend with the child during Lambert’s visitation, does not undermine our confidence in the court’s fact-finding process; see id.; and we, accordingly, are not persuaded that it was harmful.

V

Lambert next claims that the court improperly awarded $3000 in counsel fees to Donahue without stating the basis for the award. Specifically, he argues that “[t]he court failed to consider the criteria set forth in General Statutes § 46b-82 in awarding counsel fees, [and] it is not apparent from the trial court’s memorandum of decision whether the award of counsel fees flows from the court’s finding of the plaintiff in contempt of its orders or as counsel fees pursuant to § 46b-62.” We do not agree.

“General Statutes § 46b-62 . . . provides in relevant part that ‘[i]n any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and [the] criteria set forth in [General Statutes §] 46b-82. . . .’ An award of counsel fees under that statutory provision calls for the exercise of judicial discretion. Lambert v. Donahue, [supra, 69 Conn. App. 150], In exercising its discretion, ‘the court must consider the statutory criteria set out in §§ 46b-62 and 46b-82 and the parties’ respective financial abilities.’ Id.” Berglass v. Berglass, supra, 71 Conn. App. 789.

In the present case, the court specifically stated that its orders were based, in part, on § 46b-62. Further review, however, is precluded because the record does not reveal the court’s reasoning, specifically, whether or to what extent it considered the criteria set forth in § 46b-82. Although Lambert did request an articulation of that decision on November 3, 1999, the court denied his request, and Lambert failed to seek our review of that denial pursuant to Practice Book § 66-7.

“[W]here a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal ... to this court via the motion for review.” (Internal quotation marks omitted.) Pospisil v. Pospisil, 59 Conn. App. 446, 451-52, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000). “Our rules provide a procedure for clarifying the record when rulings of the trial court are unclear. ... In addition, our rules provide a procedure for reviewing the adequacy of the trial court’s response to a motion for articulation. . . . When a party is dissatisfied with the trial court’s response to a motion for articulation, he [or she] may, and indeed under appropriate circumstances he [or she] must, seek immediate appeal ... to this court via a motion for review. . . .

“Even if we assume the validity of this claim, proper utilization of the motion for articulation [and the motion for review] serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The burden of securing an adequate record for appellate review of an issue . . . rests with the . . . appellant. . . . Because it is the . . . appellant’s responsibility to provide this court with an adequate record for review . . . we will not remand a case to correct a deficiency the . . . appellant should have remedied.” (Citations omitted; internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 179-80, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). “Without an adequate record, we can only speculate as to the basis for the trial court’s decision. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks omitted.) Id., 180-81. We, therefore, decline to address the question of whether the court’s award of attorney’s fees resulted from an abuse of discretion.

VI

Lambert’s final claim is that the court improperly failed to rule on his motion for contempt, number 266 in the court file, which alleged that Donahue was in contempt of court for failing to allow visitation on June 3,1999. Lambert argues that, although the court specifically stated that it would consider this motion, it failed to rule on it. Donahue argues that the court did, in effect, rule on the motion because it found that Lambert was not entitled to this visitation. We agree with Donahue.

Initially, we note that if Lambert’s argument were correct, this court would be unable to review this claim. The plaintiff cites no authority, nor are we aware of any, that would allow us to decide Lambert’s motion, nor are we aware of any authority that would require us to reverse the judgment on the basis of the court’s failure to decide a pending motion. “Although we do not condone a trial court taking an inordinate amount of time to rule on any motion, an appeal is not the proper remedy [for the court’s failure to rule]. Practice Book § [60-2 (l)] gives this court the power to order the trial court to rule on an undecided motion.” Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 809, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994). If Lambert’s claim were correct, his remedy, then, would have been by way of motion to this court under Practice Book § 60-2 (1) for an order to compel the trial court to decide his motion for contempt.

Nevertheless, we do not find Lambert’s claim to be accurate. In its memorandum of decision, the court specifically found, in relation to the allegedly contemptuous event, that “[t]he plaintiff . . . informed the defendant that he wanted to take the child for a long weekend where the child would miss school on the Friday and the mother’s birthday on the Sunday. The mother notified the plaintiff that she did not agree. Absent an agreement as required by the court orders, the plaintiff appeared at the school on the Thursday afternoon to take the child for the weekend. Officers from the West Hartford police department had to be summoned to intervene in the dispute.” The court also found that Lambert’s “idea of an agreement or a compromise is acquiescence to his demands.”

After a careful review of the court’s decision, we conclude that, although not specifically mentioned in the decision, the court did, in essence, rule on Lambert’s motion for contempt, number 266, finding in favor of Donahue.

The judgment is affirmed.

In this opinion the other judges concurred.

       As the court explained: “There have been numerous motions filed starting with the plaintiff in July, 1992, one month after the defendant moved out [of the home that she shared with the plaintiff and their child]. The parties have been engaged in litigation every year since then. They have had numerous contacts with the family services office resulting in several agreements and modifications of those agreements. On July 6, 1998, the court ordered a full custody evaluation.
      “To date, the only thing the parties have agreed on is that they do not communicate. They have been unable or unwilling to agree on anything concerning the child’s welfare.” Lambert v. Donahue, Superior Court, judicial district of New Haven, Docket No. 333223 (October 15, 1999) (Crawford, J.).

      Each party calls the child by a different name, and “they have used the child as a messenger between them.” Id. “The parents have argued about doctor’s visits, the child’s first communion, the child’s class pictures, his enrollment in the Boy Scouts and even his Halloween costume. . . . The child has reported that on one occasion, he overheard the father refer to the mother as a ‘jackass.’ The child also reported that the mother does not say bad things about the father.

        “The plaintiff seems to believe that he can demand and should have an accounting of every minute of the child’s life when the child is with the mother. His idea of an agreement or a compromise is acquiescence to his demands.” Id.

       Practice Book § 61-9 provides in relevant part that “the court may order that an amended appeal be briefed or heard separately from the original appeal. ...”

       “Hearsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein. ... As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. ... If such evidence is offered to establish the truth of statements contained therein, the burden is on the proponent of the evidence, upon timely objection, to establish that the evidence is admissible.” (Citations omitted; emphasis added; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 753, 680 A.2d 301 (1996), rev’d after remand, 246 Conn. 594, 717 A.2d 713 (1998).

       Although we do not endorse the posthearing procedure that was used, nor do we approve of its use in future cases, the appellant has not shown, in this case, that he was aggrieved by the process to which he agreed and to which he interposed no objection, and which also played no role in the judge’s decision.

       Practice Book § 66-7 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .”

       Practice Book § 60-2 provides in relevant part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed .... The court may, on its own motion ... or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY M. SKELLY
    (AC 22821)
    Bishop, West and Mihalakos, Js.
    Argued June 5
    officially released August 5, 2003

      Donald D. Dakers, special public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Robert M. Brennan, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Jeffrey M. Skelly, appeals from the judgment of conviction, rendered following a trial to the jury, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). On appeal, the defendant claims that the trial court’s instruction to the jury was improper because (1) the court charged that any evidence that he intentionally had provoked the use of force or was the initial aggressor was sufficient to prohibit the defense of self-defense and (2) the charge possibly misled the jury to believe that it must first determine whether the evidence was sufficient to raise a claim of self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of August 7, 2000, the defendant and the victim, Neil Watts, were in Baron’s Cafe in Bridgeport. Two employees of the cafe observed the defendant and the victim engage in a verbal dispute that escalated to a shoving match. The witnesses saw the defendant leave the cafe by the side door. The victim followed him soon thereafter. Later, the victim was found bleeding on the sidewalk outside Baron’s Cafe and subsequently died of his injuries. The defendant was apprehended and admitted stabbing the victim with a knife he carried in his pocket. The defendant claimed that he stabbed the victim because the victim was choking him and that he was afraid that he was going to die. At trial, the defendant argued that he stabbed the victim in self-defense. The jury convicted the defendant of manslaughter in the first degree.

The defendant’s claims concern the court’s instruction to the jury with respect to self-defense. We therefore set forth our standard of review for a claim of instructional error in that regard. At trial, the defendant failed to submit a request to charge and took no exception to the charge given by the court. On appeal, therefore, the defendant has requested that we review his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will review the defendant’s claim because “the record is adequate for review and because the right to establish a defense is constitutional in nature. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).” State v. Cruz, 75 Conn. App. 500, 507, 816 A.2d 683, cert. granted on other grounds, 263 Conn. 921, 822 A.2d 243 (2003).

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed 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, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id., 507-508.

“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.) Id., 509-10.

We now set forth the court’s charge on self-defense. “I will first discuss with you the law of self-defense. The law of self-defense is not something that you probably ever had to deal with in your life, and it may be far different than you think it would be when you do deal with it. And it is, so I will repeat some of it so you understand it. If you don’t, I want you to send me a note and I will repeat it as often as I have to so that you’ll understand.

“In this case, the defendant claims that his use of force was justified as self-defense. This requires that I state to you the applicable rules of law on the use of force in self-defense. Self-defense is a legal defense to the use of force which would otherwise be criminal. This does not mean, however, that a defendant must prove the defense of self-defense. The burden of proof of guilt beyond a reasonable doubt remains on the state, which means that the state must disprove the defense of self-defense beyond a reasonable doubt. [It has] to prove beyond a reasonable doubt that the defense does not apply factually to this case. A person accused is justified in using reasonable physical force upon another person to defend himself from what he, the accused, reasonably believes to be the imminent use of physical force. And he may use such degree of force which he reasonably believes to be necessary for that purpose. However, a person is not justified in using physical force in self-defense when, with intent to cause physical iryury to another person, he provokes the use of physical force by that other person. Nor is a person justified in using physical force in self-defense when he is the initial aggressor. So, you have a consideration of the evidence here. Is there any evidence supporting any posture of the accused provoking or being an initial aggressor? And that you cannot speculate about. That must be in the evidence.

“First of all, the accused must actually believe that he is faced with the imminent use of physical force upon him. He must, in fact, have such a belief. Second, that belief must be reasonable. A reasonable belief is one that a reasonably prudent person viewing the situation from the defendant’s perspective and in the same circumstances as the defendant was in would have. It’s not the reasonably prudent person that flows through society. You have to do it from the point of view of the defendant and the view of him in the situation that he was in. So, you have to have the thought process adjusted to what was the situation. It is not an irrational belief, nor is it a belief that is not justified by all the circumstances existing then and there, nor is it necessarily the belief that the defendant, in fact, had. It is a belief that a reasonable — that was reasonable from the perspective of a reasonable person in the defendant’s circumstances. Third, acting with that reasonable belief, the amount and the degree of force that he uses must be reasonable. It must be that degree of force that a reasonable person in the same circumstances viewed from the perspective of the defendant would use and no more. If the degree of force used is excessive or unreasonable in view of all the circumstances, the defendant is not entitled to the defense of self-defense. Whether the defendant had the requisite belief and whether the defendant’s belief was reasonable and whether the degree of force he used was reasonable are questions of fact for you to determine from the evidence in the case to apply. . . .

“Now, manslaughter in the first degree, how is it defined? . . . For you to find the defendant guilty of this charge, the state must prove the felony elements beyond a reasonable doubt. ... If you find the state has proven all the — beyond a reasonable doubt, each of the elements of the crime of intentional manslaughter, the resultant death with intent to cause serious physical injury, causing the death but not intended, then you will find the accused guilty. But that shall only be if you find that that conduct was accomplished without any consideration for the claim of the defendant of self-defense. You have to consider, there is evidence in this case for you to deal with, whether or not self-defense has been injected into the case. And remember that the accused has merely to bring it to your attention, and then it’s the state’s burden to prove to you beyond all reasonable doubt that the theory of self-defense has not been proven. So, that’s your task.”

I

The defendant’s first claim is that the court’s instruction on self-defense misled the jury to believe that any evidence that he provoked the use of physical force or that he was the initial aggressor was sufficient to prohibit the defense of self-defense. The defendant claims that the court’s instruction was improper because it failed to define initial aggressor.

We disagree that the jury was misled by the court’s instruction, as the question of an initial aggressor was not an issue in the case. The state conceded that the victim was the first one to use physical force inside Baron’s Cafe. No one inside the cafe saw the defendant stab the victim. Blood was found on the threshold of the door where the defendant and the victim exited. The state’s theory of the case was that the defendant left Baron’s Cafe, lay in wait for the victim and stabbed him as he exited the side door. Our Supreme Court; State v. Quintana, 209 Conn. 34, 46-48, 547 A.2d 534 (1988); and this court; State v. Scarpiello, 40 Conn. App. 189, 211-12, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996); have held that an incomplete jury instruction with regard to self-defense is not constitutionally infirm where the principal factual issue is not dependent on one aspect of the defendant’s self-defense claim. The issue in those cases and here is which version of the event was more plausible. See State v. Scarpiello, supra, 212. We therefore conclude that the court’s failure to define initial aggressor did not mislead the jury.

II

The defendant’s second claim is that the court’s instruction possibly misled the jury to believe that it must first determine whether the evidence was sufficient to raise the claim of self-defense before considering it. We are not persuaded.

The defendant concedes that in the second paragraph of the court’s charge on self-defense, the court gave a proper self-defense instruction, to wit: “Self-defense is a legal defense to the use of force which would otherwise be criminal. That does not mean, however, that a defendant must prove the defense of self-defense. The burden of proof of guilt beyond a reasonable doubt remains on the state, which means that the state must disprove the defense of self-defense beyond a reasonable doubt. [It has] to prove beyond a reasonable doubt that the defense does not apply factually to this case.” (Emphasis added.)

The defendant has founded his appellate claim on the following isolated portion of the court’s instruction concerning self-defense, which was given at the end of the charge. “You have to consider, there is evidence in this case for you to deal with, whether or not self-defense has been injected into the case. And remember the accused has merely to bring it to your attention, and then it’s the state’s burden to prove to you beyond all reasonable doubt that the theory of self-defense has not been proven. So, that’s your task.” (Emphasis added.) Although we agree with the defendant that a theory of self-defense does not have to be proven and that the burden is on the state to disprove it beyond a reasonable doubt, we conclude that the court’s misstatement at the end of its charge did not mislead the jury.

Throughout its charge, the court instructed and reminded that jury that the state had to prove the case and disprove the theory of self-defense beyond a reasonable doubt. For example, the court stated: “The burden is on the state to prove that this accused is guilty of the crime with which he has been charged, and he, the accused, does not have to prove his innocence. . . . The defendant may rely on circumstantial evidence to raise reasonable doubt. But remember, the defendant has no obligation or burden to prove anything. The state has the burden, at all times, to establish each of the elements of the crimes charged beyond a reasonable doubt. ... I remind you that the burden of proving intent beyond a reasonable doubt remains on the state. . . . This does not mean, however, that a defendant must prove the defense of self-defense. The burden of proof of guilt beyond a reasonable doubt remains on the state, which means that the state must disprove the defense of self-defense beyond a reasonable doubt.” Furthermore, the court told the jury that it would repeat the law on self- defense as often as needed, at its request. There is nothing in the record to indicate that the jury did not understand the court’s instruction as to self-defense.

On the whole, the court’s charge to the jmy made it abundantly clear that the state had the burden of proving its case beyond a reasonable doubt and that it had to disprove self-defense by the same standard. The circumstances of this case are similar to those in State v. Bryant, 233 Conn. 1, 11, 658 A.2d 89 (1995), in which our Supreme Court concluded that when the improper language was placed in the context of the entire charge, it was not reasonably possible that the jury was misled. For those reasons, we affirm the judgment of conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant initially submitted a request to charge but withdrew it.

       “[A] defendant can prevail on a claim of constitutional errornot preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       In Bryant, the defendant challenged that portion of the court’s instruction that stated that “if you find the defense of self-defense applies and that the State has failed to disprove, beyond a reasonable doubt, the defense of self-defense raised by the defendant, you find the defendant not guilty of any of these charges . . . .” (Emphasis in original; internal quotation marks omitted.) State v. Bryant, supra, 233 Conn. 10.


author: PER CURIAM.

text:
    MICHAELA I. ALEXANDRU v. WEST HARTFORD OBSTETRICS AND GYNECOLOGY, P.C.
    (AC 23620)
    Lavery, C. J., and Bishop and McLachlan, Js.
    Argued June 10
    officially released August 5, 2003

      Michaela I. Alexandra, pro se, the appellant (plaintiff).

      Melinda S. Monson, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Michaela I. Alexandra, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the defendant, West Hartford Obstetrics and Gynecology, P.C., as to the second and third counts of her fourth revised complaint, filed October 2, 2001. In count two of the revised complaint, the plaintiff alleged that the defendant improperly had released her medical records and attendant private information in violation of General Statutes §§ 52-146o (a) and 52-1461 In count three, the plaintiff alleged that by improperly releasing her medical records that contained information regarding her emotional and psychological condition, the defendant violated § 52-1461 We affirm the judgment of the trial court.

The following facts and procedural history are germane to our discussion of the plaintiffs claims. This action was commenced in November, 1999, as a four count complaint, stemming from an earlier action in 1995, in which the plaintiff had brought an action against a former employer in federal court, alleging sexual harassment, retaliatory discharge, negligent and intentional infliction of emotional distress, and breach of the covenant of good faith and fair dealing. The plaintiff claims in this case that in the federal action, she had disclosed William H. Gerber, an obstetrician formerly of West Hartford Obstetrics and Gynecology, P.C., as her expert witness and that dining a deposition in conjunction with the federal action, Gerber wrongfully had disclosed confidential and private information about her.

In response to the plaintiffs complaint, the defendant filed an answer and a motion for summary judgment on the ground that the disclosure by Gerber was permissible as a matter of law. In ruling on the defendant’s motion for summary judgment, the court stated: “Dr. Gerber had been disclosed by the plaintiffs lawyer, attorney Patricia M. Strong, in her matter against Northeast Utilities, as her expert witness. The plaintiff was aware of the request and the disclosure of Dr. Gerber. The plaintiffs medical records were disclosed by her medical expert at a deposition process governed by the rules of federal procedure attended by her counsel and with no objection to either disclosure or the process. The disclosure was clearly made pursuant to the rules of court and, accordingly, the plaintiffs consent was not required.

“It must be noted, of course, that the plaintiff had executed a perfectly valid consent, authorizing the disclosure of the medical records by [Gerber], . . . Indeed, it is perfectly reasonable to assume that a consent form was given to her lawyer to obtain an expert in the course of litigation and that the expert would be utilized in that litigation. After utilizing the federal judicial process and disclosing Dr. Gerber as her expert witness to substantiate the claims of her case, the plaintiff cannot now be heard to say that she did not give consent to her expert doctor to utilize and disclose her records.”

The court granted summary judgment in favor of the defendant. While noting that the plaintiff had, in fact, given consent for the release of her medical records, the court determined that the defendant’s disclosure did not require the plaintiffs consent, as it had been made pursuant to applicable rules of court. As to the plaintiffs claim in the third count, i.e., that the disclosure had violated provisions of § 52-146Í, the court determined that because the records disclosed were not communications regarding treatment by a psychiatrist, the requirements of § 52-146Í did not apply. Finally, the court determined that to the extent that the plaintiffs claim in the third count was an effort to set forth a cause of action for intentional infliction of emotional distress, it failed as a matter of law. This appeal followed.

As a prelude to our discussion of the plaintiffs claims, we set forth our standard of review concerning the granting of summary judgment. “Pursuant to Practice Book § 17-49, 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. Such questions of law are subject to plenary appellate review.” (Internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002).

I

The plaintiff first claims that the court improperly determined that the disclosure of her medical records by Gerber was authorized by the provisions of § 52-146o (b) (1). We are not persuaded.

General Statutes § 52-146o (a) generally proscribes the unauthorized release of patient medical records or patient communications unless the patient explicitly consents to such disclosure. That statute, however, contains an exception relevant to this case. That exception is set forth in § 52-146o (b), which provides in relevant part that the “[cjonsent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court . . . .”

The defendant argues, and we agree, that the disclosure of the plaintiffs medical records took place during the deposition of the plaintiffs expert, Gerber, and that the disclosure was pursuant to applicable rules of court. The record reflects that prior to the deposition, Gerber had received a letter from the plaintiffs counsel in the federal action, advising that she represented the plaintiff and requesting Gerber to testily as an expert medical witness at trial. Counsel’s letter also advised Gerber that as the plaintiffs expert, he would be expected to give his opinions concerning the plaintiffs diagnosis and treatment. As noted by the defendant, Gerber’s deposition had been noticed pursuant to rule 30 of the Federal Rules of Civil Procedure and had included a request “to produce and permit the [defendant] . . . to inspect and duplicate at the time of this deposition or prior thereto Dr. Gerber’s report prepared for this lawsuit and the medical file for [the plaintiff] including not limited to notes, letters, diagnoses and prescriptions.” The deposition notice was within the allowable parameters of rule 30 (b) (5), which permits such a request for the production of documents. Thus, because the disclosure was made pursuant to applicable court rules, it clearly fell within the exception set forth in § 52-146o (b) (1).

Moreover, the record reveals that on December 5, 1994, the plaintiff executed a valid authorization for her medical records to be released to her attorney in the federal action. Having authorized release of that information to her attorney, she impliedly gave consent to her attorney to utilize the information on her behalf in advancing her claims in the federal action. See Calcano v. Calcano, 257 Conn. 230, 246, 777 A.2d 633 (2001). In Calcano, our Supreme Court opined that “[w]here, as here, the plaintiffs own attorney in a personal injury case explicitly forwards this information and invitation to the adversary, as part of an informal discovery process, the plaintiff was bound by the conduct of her attorney, who was her ‘authorized representative’ . . . .” (Citation omitted.) Id.

II

The plaintiff next claims that the court improperly determined that Gerber’s disclosure did not violate the provisions of § 52-146Í concerning the labeling of confidential records. The short and conclusive answer to that claim is that § 52-146Í relates exclusively to communications between a psychiatrist and patient. Because Gerber is not a psychiatrist, the provisions of that statute are not applicable.

HI

The plaintiffs final claim is that the court improperly determined that to the extent that the allegations in the third count could be taken as an effort by the plaintiff to allege the tort of the intentional infliction of emotional distress, her complaint was legally insufficient. We disagree.

The third count of the fourth revised complaint contains an allegation that by wrongfully disclosing the plaintiffs medical records, the defendant “acted toward [the] plaintiff with malice, oppression, willful and conscious disregard of [the] plaintiffs rights, entitling the plaintiff to an award of punitive damages.” In the exercise of its gatekeeping function and applying the criteria set forth in Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000), the court determined that the allegations of the third count, construed in the light most favorable to the plaintiff, were legally insufficient to constitute the tort of intentional infliction of emotional distress.

As stated in Appleton, for a plaintiff to prevail on a claim for the intentional infliction of emotional distress, the plaintiff must establish: “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Id., 210.

“Liability [for tort of the intentional infliction of emotional distress] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ .... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citation omitted; internal quotation marks omitted.) Id., 210-11.

We agree with the court’s assessment that the plaintiffs allegation in count three that “[i]n doing the things herein alleged, the defendant acted toward [the] plaintiff with malice, oppression, willful and conscious disregard of [the] plaintiffs rights, entitling the plaintiff to an award of punitive damages” falls well short of setting forth a cause of action for intentional infliction of emotional distress.

The judgment is affirmed.

       Previously, the court had granted a motion to strike the first and fourth counts of the fourth revised complaint. Because the plaintiffhasnotappealed from the court’s decision regarding counts one and four, our review is confined to the action of the court in granting the motion for summary judgment as to counts two and three.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. DENNIS HATHAWAY
    (AC 22699)
    Schaller, Dranginis and Flynn, Js.

      Argued May 12
    officially released August 5, 2003

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Donna Mambrino, senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Dennis Hathaway, appeals from the judgment of the trial court revoking his probation and imposing an eight year sentence of incarceration, execution suspended after five years, followed by five years probation. On appeal, the defendant claims that the court (1) improperly found that he violated his probation when the state failed to prove a violation by a fair preponderance of the evidence and (2) abused its discretion in failing to disclose certain records in response to his motion for disclosure. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The defendant achieved his probation status due to a predicate felony, when on January 22,1991, he pleaded guilty to sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2). The defendant was sentenced to sixteen years incarceration, execution suspended after eight years, with five years of probation. The conditions of probation, among other things, required that the defendant refrain from violating any criminal law.

In March, 2000, after a period of incarceration and while the defendant was on probation, he first met the victim, J, through her boyfriend. Over the next two months, they developed a casual relationship such that the defendant occasionally saw J alone. On the evening of June 24,2000, while at J’s home, the defendant started kissing J on the lips. J told him to stop. The defendant tossed J onto a chair, held both of her arms behind her shoulders, pulled down her shorts and put his tongue into her vagina. J again told the defendant to stop. The defendant initially ignored her protests, but eventually stopped and told her not to tell anyone. Several days later, J told her boyfriend about the assault. Thereafter, J reported the incident to the police. The defendant was subsequently arrested and charged with sexual assault in the first degree, unlawful restraint in the second degree and violation of probation.

A probation revocation hearing ensued. The court found that the defendant had violated his probation and sentenced him to eight years incarceration, execution suspended after five years, with five years probation. This appeal followed. Additional facts will be set forth where pertinent to the issues raised.

We note, at the outset, our standard of review for probation revocation hearings. “In a probation revocation proceeding, the state bears the burden of proving by a fair preponderance of the evidence that the defendant violated the terms of his probation. . . . This court may reverse the trial court’s finding that a defendant violated the terms of his probation only if such finding is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence to support it . . . or . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. . . . This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony. . . . Furthermore, [i]n making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.” (Internal quotation marks omitted.) State v. Verdolini, 76 Conn. App. 466, 468-69, 819 A.2d 901 (2003).

I

The defendant first claims that the court improperly found that he violated his probation by violating a criminal law because the state failed to prove a violation by a fair preponderance of the evidence. Specifically, the defendant argues that the evidence proffered at the probation hearing was neither reliable nor probative. We disagree.

The record supports the court’s conclusion that J’s testimony was credible and that the defendant violated his probation. At the hearing, J testified that the defendant tried to kiss her and that she told him to stop. The defendant tossed her onto a chair, pulled down her shorts and put his tongue into her vagina. Moreover, the defendant’s probation officer testified that the defendant was aware that one of the conditions of his probation was that he could not violate any criminal law. At the conclusion of the hearing, the court stated that this case “essentially comes down to a test of the credibility ... of the two people who were involved in the incident .... Based on the testimony of the parties here, and the other testimony, and the other evidence as well, I’m going to make the finding . . . that the defendant violated his probation.”

“As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Citations omitted.) State v. Campbell, 61 Conn. App. 99, 102, 762 A.2d 12 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). Accordingly, we conclude that the court’s findings of facts were not clearly erroneous and that the court did not abuse its discretion in revoking the defendant’s probation.

II

The defendant next claims that the court improperly denied his motion for disclosure of J’s psychiatric records. Specifically, the defendant contends that the court erred in failing to disclose crucial records involving (1) J’s credibility, which deprived him of his constitutional right to cross-examine J adequately, and (2) J’s psychiatric treatment. We are not persuaded by the defendant’s claims.

The following facts are necessary to resolve those claims. Prior to trial, the defendant filed a motion for review and disclosure, petitioning the court to order the state to provide him with J’s mental health records or to conduct an in camera examination of such records and to disclose any material that may be relevant in cross-examining her. The defendant’s request was predicated on the arrest warrant application, which stated that J is learning disabled, mentally retarded and taking medication for depression. Thereafter, with J’s permission, the corut conducted an in camera review of the psychiatric records.

After an examination of the records from the Outpatient Behavioral Health Center and the Inter-Community Mental Health Group (Inter-Community), the court denied the defendant access to J’s records because they did not contain information relevant to her testimonial capacity. The court ruled: “I found nothing in those records that would affect the credibility of the patient, nor did I find anything that would be exculpatory for the defendant. In sum, I found no relevant impeaching evidence that would be favorable to the defendant in those records.”

At trial, J had difficulty testifying about the events of June 24, 2000. Specifically, she was unresponsive to many of the state’s questions and had to refresh her recollection by reading the statement that she had given to the police. During J’s examination, neither party elicited testimony from J about any medications she was taking or whether she was receiving treatment. The state, however, elicited testimony from Denise Fisher, a nurse at Manchester Memorial Hospital (hospital), about J’s hospital visit following the sexual assault. On cross-examination, Fisher testified that J had reported that she had a prior history of depression and that she had been on the medication Zoloft. Fisher further testified that J reported that she had not taken any medication since April, 2000. Additionally, Fisher testified that J was hesitant to talk and that J answered questions slowly, which was consistent with depression, but was also common with sexual assault victims who had no mental illness or depression.

At the end of the defendant’s case, the court conducted a second in camera review of J’s mental health records because of her demeanor on the witness stand. The court subsequently released portions of J’s mental health records, which may have contained either exculpatory evidence or provided evidence relating to J’s credibility. Those records consisted of the police report, records from the hospital and psychiatric records from Inter-Community.

Thereafter, the state recalled J to the witness stand. J testified as to the following: She had been going to Inter-Community since 1996. In 1997, she reported that her boyfriend had hit her. Her boyfriend had neither sexually assaulted her nor hit her since 1997. J finally stated that she did not initially tell her boyfriend about her sexual encounter with the defendant because she feared that her boyfriend would confront the defendant. On cross-examination, J testified, however, that she did not tell her boyfriend about the sexual assault because he would hit her whenever he got angry and upset.

The defendant claims that all of J’s psychiatric records were highly relevant to her reliability, credibility and sense of perception. Because those claims are similar, we will discuss them together.

“On appeal, this court has the responsibility of conducting its own in camera inspection of the sealed records to determine if the trial court abused its discretion in refusing to release those records to the defendant. . . . The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality .... Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis. ... At this stage in the proceedings, when the court has reviewed the records in camera, access to the records must be left to the discretion of the court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records. . . . We review the trial court’s decision under an abuse of discretion standard.” (Citations omitted; internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 722-23, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999).

We have carefully reviewed J’s psychiatric records that were not disclosed and conclude that further disclosure of those records was unwarranted because they did not contain additional information that was especially probative of J’s capacity to relate the truth, recollect and narrate relevant events. We therefore conclude that the court did not abuse its discretion by denying the defendant’s request for access to certain portions of J’s confidential records.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       In accordance with our policy to protect the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be revealed. See General Statutes § 54-86e.

       The defendant was given credit for four and one-half years of probation already served for his previous sexual assault conviction.

       The defendant also claims that the disclosure of portions of J’s psychiatric records were released far too late in the proceedings and, therefore, affected the outcome of the trial. He raises that argument in his brief for the first time on appeal. Because the defendant failed to preserve the issue properly by raising it before the trial court, we decline to review the claim. See State v. Moody, 77 Conn. App. 197, 225, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707 (2003).


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. BERNARD SMALLS
    (AC 23474)
    Flynn, West and Dupont, Js.
    Argued May 9
    officially released August 5, 2003

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

This criminal case, in which the defendant, Bernard Smalls, was found guilty of murder, criminal possession of a firearm and risk of injury to a child, concerns the prosecutor’s rebuttal closing argument, and the court’s failure to grant a motion for a judgment of acquittal on the charge of risk of injury to a child and the court’s jury instruction on that charge. The crime of risk of injury to a child concerned the witnessing by the victim’s daughter of the shooting of the victim by the defendant. We affirm the trial court’s judgment of conviction.

The defendant claims that the prosecutor’s remarks in rebuttal closing argument impermissibly burdened the defendant’s constitutional and statutory right not to testify and impermissibly diluted the state’s burden of proof. He also claims that he was entitled to a judgment of acquittal of risk of injury to a child because the evidence was insufficient to prove that he knew the child was in the area at the time of the shooting of the victim and because the court’s jury instruction did not properly inform the jury of that claimed necessity. All of those claims were preserved at trial for our review.

The jury could have found reasonably that the victim, on May 15, 2000, was playing basketball with a group of children while his twelve year old daughter was playing softball on a nearby field. She saw the defendant get out of a car and begin arguing with her father about the basketball game. She ran to her father and stood there while the argument took place. The argument ended when the defendant stated that he was going to a package store to cool down and then drove away.

The defendant came back to the basketball court with a shotgun, with which he killed the victim. The victim’s daughter was again playing softball on the nearby field when she noticed that the children on the basketball court were scattering. She saw the defendant get out of his car with the shotgun, and watched as he pulled the trigger and shot her father. She then ran toward them. After her father fell to the ground, the defendant held the gun to her father’s head. She yelled, “That’s my father,” and the defendant then got in his car and sped away. The child and another witness identified the defendant as the shooter from an array of photographs shown to them by the police.

The police obtained a warrant for the defendant’s arrest on June 21, 2000, and he gave the police a sworn, tape-recorded statement on July 5,2000, when he turned himself in to the police. The statement was introduced into evidence by the state, with two questions and answers having been redacted, at the request of the state, over the objection of the defendant. The defendant’s statement contained some exculpatory as well as inculpatory statements as to the murder charge. The exculpatory statements were that the defendant believed that he was acting in self-defense and that he did not want the victim to die.

The defendant did not introduce any evidence, either by way of testimony or exhibits, and did not testify at trial. In closing argument, defense counsel asked the jury to consider closely the defendant’s statement. The defense counsel referred to it in connection with a right front parking light of the defendant’s car, which the defendant, in his statement, said was broken by the victim when the victim threw a beer can at the car. The only other reference made in the closing argument by the defense to the defendant’s statement was that the defendant had stated in it that he needed time after the warrant for his arrest to get himself together so he could turn himself in and tell his side of the story. “The statement is in evidence and you could look at it,” counsel for the defendant told the jury.

I

PROSECUTORIAL COMMENTS

The defendant makes two claims of improper prosecutorial comments. He argues that the prosecutor should not have asked the jury to keep in mind that the person with the greatest interest in the outcome of the case was the defendant and that the juiy should keep that in mind when evaluating the defendant’s statement to the police. The defendant argues that the admonition interfered with his constitutional right not to testily and was an improper comment on that right. The defendant also argues that he was deprived of a fair trial because the prosecutor, in closing rebuttal argument, stated that the defendant could be convicted of murder based solely on the medical examiner’s report and the jury’s disbelief of the defendant’s statement. The defendant objected to both remarks at the close of the state’s rebuttal argument, but the court found them proper and refused to take any curative action. Both center around the out-of-court statement of the defendant given to the police.

The court, in its instruction, charged the jurors that they could consider the interest of the witnesses as evidenced in their sworn testimony at trial and could consider the exhibits in reaching a verdict. The court’s instruction made no specific reference to the defendant’s statement that he had given to the police, which was a state’s exhibit. The court also charged the jurors that they could draw no adverse inference from the fact that the defendant had exercised his constitutional and statutory right not to testify. The court also gave elaborate instructions on the state’s burden of proving the defendant’s guilt beyond a reasonable doubt.

The legal principle relevant to a claim that the prosecutor improperly commented on the defendant’s decision not to testify is well settled. The question is whether the comment was intended to be or was of such character that the jury would naturally and necessarily take it to be a comment on the decision of the accused not to testify. State v. Parrott, 262 Conn. 276, 293, 811 A.2d 705 (2003). If we determine that the remark was improper, we next must decide whether it caused substantial prejudice to the defendant. See State v. Yusuf, 70 Conn. App. 594, 622, 800 A.2d 590, cert. denied, 261 Conn. 921, 806 A.2d 1064 (2002).

It is clear that once á defendant testifies during his trial, a jury is properly instructed that a prosecutor may comment on the defendant’s interest in the case, which can be considered in determining the guilt or innocence of the defendant. State v. Smith, 201 Conn. 659, 665, 519 A.2d 26 (1986). Because the court may so instruct the jury, the prosecutor has not misstated the law if he makes the same statement.

The state in this case attempts to apply the same rule that applies when a defendant has testified to the situation in which the defendant has not testified. The state argues that because the defendant was attempting to use his recorded statement to present his version of the events leading to the shooting of the victim, his credibility was put in issue, and the statement was a “substitute for his own in-court testimony.” The state, therefore, urges that the reasoning of those cases in which the defendant has testified and has put his credibility in issue “applies equally in this case where the defendant chose not to testify, but relied instead on his sworn, tape-recorded statement . . . .” The defendant claims that he is entitled to a new trial because the court did not include an appropriate curative charge in its instruction, namely, a charge requiring the jury to disregard the prosecutor’s remark about the defendant’s interest in the case when evaluating the tape-recorded statement.

The threshold issue is whether the defendant’s statement should be treated as if it were testimony given by the defendant in court for purposes of evaluating the prosecutor’s comment. The issue is one of first impression in Connecticut, and the parties have cited no in-state or out-of-state case that resolves it. To resolve the matter, we look to those Connecticut cases involving General Statutes § 54-84 and cases involving the comments of a prosecutor.

It is important to recognize that the defendant did not introduce his statement into evidence. It was the state, after the defendant’s motions to suppress the statement were denied, which introduced the statement as a full exhibit. Although the statement was, in part, exculpatory, the cases cited by the state as to the propriety of the prosecutor’s comment are cases in which the defendant chose to testify in court and, therefore, are inapposite. The defendant chose not to testify and did not introduce the statement as his exhibit. In fact, he opposed its introduction. He did not directly put his credibility at stake by substituting his out-of-court statement for his in-court testimony, which testimony would have subjected him to cross-examination and to a determination of his credibility. We conclude that the statement was not the equivalent of in-court testimony.

The question, thus, becomes whether the prosecutor’s comment was a forbidden indirect comment on the defendant’s decision not to testify. The state, in its closing argument, stated that the defendant’s defense consisted of a string of partial admissions with absurd explanations that did not make sense and, further, that it was the defendant who had the greatest interest in the outcome of the case, which the jury should keep in mind when evaluating his statement. We must determine whether the comment falls into the category of a comment about the discrepancy between the defendant’s out-of-court statement and other evidence, as they relate to the strength of the state’s case, which is allowed, or whether it falls into the category of calling the jury’s attention to the fact that the defendant did not offer his own in-court explanation of the events, which is not allowed. See State v. Haase, 243 Conn. 324, 335, 702 A.2d 1187 (1997), cert. denied, 523 U.S. 1111, 118 S. Ct. 1685, 140 L. Ed. 2d 822 (1998). The test is whether the prosecutor’s comment in rebuttal argument calls on the defendant for information or for an explanation that only the defendant could be expected to supply. State v. Arline, 223 Conn. 52, 67, 612 A.2d 755 (1992). If the comment does so, it is impermissible.

An adverse comment on a defendant’s silence when a defendant has not testified is forbidden because the comment weakens the defendant’s privilege of silence by making the assertion of the privilege a price too expensive to pay. The juiy in this case obviously was aware that the defendant did not take the witness stand. If the prosecutor’s comment created a plus factor for the state in carrying its burden of proving guilt beyond a reasonable doubt because it heightened the jury’s awareness of the defendant’s silence, namely, his failure to answer to the state’s charges, the comment is improper. That is so because the fifth and fourteenth amendments to the United States constitution and the presumption of innocence are closely aligned. Carter v. Kentucky, 450 U.S. 288, 304-305, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981). The state cannot be allowed in that way to benefit from the defendant’s invocation of his constitutional privilege. See State v. Lemon, 248 Conn. 652, 662, 731 A.2d 271 (1999).

The reason for the constitutional and statutory rights given by the fifth and fourteenth amendments and § 54-84 is to reduce jury speculation as to why the defendant would remain silent. A comment that the defendant was without a reasonable explanation or had no reasonable explanation to show why he was innocent is not necessarily a comment that the jury would naturally and necessarily interpret as related to the defendant’s constitutional and statutory right to decline to testify. A prosecutor also may comment on the failure of a defendant to support his factual theories. State v. Washington, 28 Conn. App. 369, 377, 610 A.2d 1332, cert. denied, 223 Conn. 926, 614 A.2d 829 (1992).

Oral statements of a defendant introduced through the testimony of witnesses can be a facet of whether the defendant’s version of events is to be believed when the defendant has chosen not to testify. State v. Copas, 252 Conn. 318, 746 A.2d 761 (2000). In Copas, the state was allowed to comment on the believability of the defendant’s claim of consensual sex, using numerous out-of-court statements that the defendant had made to the police and to psychiatrists. Id., 331. A prosecutor has the right to comment on voluntary pretrial statements if the defendant relies on those statements for a defense. See State v. Haase, supra, 243 Conn. 334.

In the present case, the court instructed the jury that it could not use the defendant’s decision not to testify in any adverse way, and the defendant himself relied on his tape-recorded statement to disprove the element of intent to kill and asked the jury to consider it for his side of the story.

The state called attention to the exhibit containing the defendant’s statement and questioned its plausibility. The remark was more of a comment on the credibility of the state’s witnesses and the believability of the defendant’s statement, in light of the testimony of the state’s witnesses, than it was a comment on the defendant’s decision not to testify. See id., 335. We conclude that the comment did not impermissibly burden the defendant’s right not to testify.

The defendant’s next claim is that the state improperly remarked that its case could be proven on the basis of disbelief of the defendant’s statement and the testimony of the medical examiner alone. The defendant’s argument is that the prosecutor’s remark about what was necessary to find the defendant guilty was an incorrect statement of the law because it allowed the jury to find guilt through the use of negative, nonprobative evidence, namely, a disbelief of the tape-recorded statement. The defendant’s argument is that the comment allowed the juiy to infer the element of intent required for a conviction of murder from disbelief of the statement instead of from evidentiary proof of his intent.

The defendant relies on the principle that when evidence is rejected or disbelieved, the opposite has not been proven to be true. See State v. Stewart, 77 Conn. App. 393, 400, 823 A.2d 392 (2003); State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972). A jury may reject a statement of a defendant, but that rejection does not require a conclusion that the opposite of the statement is true.

The medical examiner and an expert for the state testified that the pattern of holes on the victim’s body made by the entry wounds from the pellets of the defendant’s twenty gauge shotgun showed that the weapon was not in contact with the skin and could not have been caused by the muzzle or the end of the gun’s barrel being in contact with the victim’s body. The statement of the defendant was that he believed that he was acting in self-defense and did not want the victim to die. The defendant also stated that the gun went off when “we was just tussling and then it just, I heard a big boom.”

The jury either could believe that the defendant was “tussling” with the victim at close range or credit the medical examiner’s testimony that the victim was not shot in close proximity to the defendant. Arguably, whether the death of the victim occurred while he and the defendant were both touching the defendant’s gun relates to the defendant’s intent to kill. The disbelief of the defendant’s statement, however, would not prove that the opposite of it was true, although the testimony of the medical examiner could prove the opposite, if credited. In addition to the testimony of the medical examiner, eyewitnesses to the shooting also testified that the shooting did not occur at close range.

The claim of dilution of the state’s burden of proof as to the charge of murder in violation of General Statutes § 53a-54a (a) is dispelled by the court’s instruction to the jury. The court accurately and exhaustively instructed the jury that the state bore the burden of proving the defendant’s guilt beyond a reasonable doubt. We conclude that neither of the allegedly improper remarks by the prosecutor necessitate a new trial.

The defendant’s final argument as to the state’s comments in closing rebuttal argument is that the cumulative prejudicial remarks require a new trial. We do not agree that either remark was prejudicial, on the basis of our analysis of the comments and the court’s instruction to the jury, and, because neither remark was prejudicial, their cumulative effect cannot be prejudicial. We conclude that a new trial is not warranted on that basis, either.

II

RISK OF INJURY TO A CHILD

The defendant claims that his motion for a judgment of acquittal of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (1) should have been granted at the close of the state’s evidence because the state did not prove that he knew of the presence of the victim’s daughter at the time of the shooting. He also argues that the court’s jury instructions on that charge should have stated that for the jury to find that the defendant had a mental state of reckless disregard for or deliberate indifference to the likely consequences of his act, it had to find that he knew that the child was present when the victim was shot. The court’s charge to the jury reflects the reason that the court denied the defendant’s motion for a judgment of acquittal at the close of the state’s evidence, and we discuss both claims together.

The state argues that neither argument of the defendant is valid because the state was not required to prove that he knew of the child’s presence at the time of the shooting. Both claims rest on whether § 53-21 (1) requires the state to prove the defendant’s knowledge of the presence of the child or simply to prove that the child was, in fact, present at the time the victim was shot. The testimony of the child was that she saw the defendant holding a shotgun “on her father” and saw the shooting. The defendant’s position is that § 53-21 (1) is not a specific intent crime, but that the act must be wilful and directed toward the particular child to provide sufficient evidence for a conviction. The state argues to the contrary, claiming that the act of shooting the gun must be wilful, but that it need not be wilful as to the child. We agree with the state.

The statute sets forth two different types of behavior that are likely to injure a child’s health. This case concerns that type of behavior that consists of a deliberate indifference to or the creation of a situation inimical to a child’s physical welfare. See State v. Branham, 56 Conn. App. 395, 401, 743 A.2d 635, cert. denied, 252 Conn. 937, 747 A.2d 3 (2000). The behavior need not actually cause physical harm, but need only create a risk of harm. Id., 402. “Health” as used in the statute includes mental health. State v. Payne, 240 Conn. 766, 774, 776, 695 A.2d 525 (1997).

The state relies on State v. Cutro, 37 Conn. App. 534, 657 A.2d 239 (1995), for the proposition that the defendant did not have to know of the presence of the child at the time of the shooting to be found guilty under the statute. In that case, the defendant had been aware of the presence of two young women prior to his act of masturbation in his car in the parking lot of a shopping mall, although he did not know at the time of the act that the young women watched him perform the act.

In this case, the defendant knew that there were many children in the area who might see him when he returned to the scene with his shotgun. He knew that one young girl listened to his original argument with the victim, although there is no indication that he knew she was the victim’s daughter. The court’s charge to the jury did not describe the child by name or by relationship to the victim. The jury did not need to find that the defendant knew that one of the children in the area of the shooting was the victim’s daughter. In this case, as in Cutro, the defendant’s conduct took place in public where children were likely to be present, and demonstrated a reckless disregard for its consequences and was wilful.

The court’s instruction correctly advised the jury that to find the defendant guilty, it must find that the child who viewed the shooting was younger than sixteen years of age, that the defendant wilfully or unlawfully permitted the child to be placed in a situation likely to injure her mental health, that the defendant’s conduct was deliberately indifferent to or created a situation inimical to the child’s mental health and that he created a situation likely to injure the child’s health.

We conclude that the court correctly denied the defendant’s motion for a judgment of acquittal of risk of injury to a child in violation of § 53-21 (1) and correctly instructed the jury such that a new trial is not warranted on that charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found guilty by a jury of murder; General Statutes § 53a-54a (a); and risk of injury to a child; General Statutes (Rev. to 1999) § 53-21 (1). He waived his right to a jury trial on the charge of criminal possession of a firearm; General Statutes § 53a-217 (a); and was found guilty by the court. He also was found by the court to have violated General Statutes § 53-202k, which provides that a person who commits a class A, B, or C felony with a firearm shall be imprisoned for a term of five years in addition to and consecutive to any term of imprisonment imposed for the conviction of such felony. Section 53-202k is a sentence enhancement statute and, therefore, requires a jury trial. State v. Velasco, 253 Conn. 210, 226-27, 751 A.2d 800 (2000). In this case, however, the defendant waived his right to a jury trial as to § 53-202k. The defendant received a total effective sentence of fifty years incarceration.

       The risk of injury charge alleged that the defendant “did wilfully or unlawfully cause or permit a child under the age of sixteen years ... to be placed in such a situation that her health was likely to be injured . . . .” in violation of General Statutes (Rev. to 1999) § 53-21 (1).

       Both the defendant’s counsel and the defendant, acting pro se, filed motions to suppress the statement, which were denied.

         The defendant does not raise any issue relating to the redaction on appeal.

       The prosecutor stated: “You all heard what the defense is in this case. You heard the defendant’s taped statement by Detective [Michael] Hunter [of the Bridgeport police department]. Keep in mind during your deliberations that the person with the greatest interest in the outcome of this case, obviously, is the defendant, and keep [that] in mind when you are evaluating his statement, given two months later to Detective Hunter.”

       The prosecutor stated: “The state would suggest to each and every one of you, if the only evidence that you had in this case, the only evidence was that of the dead body of [the victim], but through [chief state’s medical examiner Harold Wayne] Carver and [the defendant’s] statement, if that was the only evidence, it would be enough to convict [the defendant] based on the statement that contradicts itself and falls in on itself.”

       General Statutes § 54-84 provides: “Testimony or silence of accused, (a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”
      Comment on a defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution, which is made applicable to the states through the fourteenth amendment. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

       The defendant’s tape-recorded statement included the following: “I didn’t shoot him; the gun went off, and if you ask me, he probably did it his self because he was drunk and he ain’t know what he was doing.” The medical examiner testified that the victim had a blood alcohol level of 0.11, which was equal to the consumption of six or seven, twelve ounce bottles of beer in one hour. The statement also mentioned a “tussle” over the gun and the defendant’s fear for his life.

       The defendant notes in his brief that the jury might have found him guilty of a lesser included offense, which did not require an intent to kill, if the prosecutor had not made the comment.