author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. JEFFREY PIERCE
    (AC 19692)
    Lavery, C. J., and Foti and Dupont, Js.

      Argued November 26, 2001
    officially released May 7, 2002

      Francis L. O’Reilly, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Jeffrey Pierce, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the second degree in violation of General Statutes § 53a-94 and burglary in the first degree in violation of General Statutes § 53a-101 (a) (l). He was sentenced to a total effective term of thirty years imprisonment, execution suspended after twenty-five years and five years probation. The defendant was ordered to register as a sexual offender pursuant to General Statutes § 54-254 (a).

The defendant claims that the court improperly (1) found that the evidence was sufficient to prove that the defendant had committed the offense of kidnapping in the second degree for a sexual purpose within the meaning of § 54-254 (a), (2) instructed the jury concerning reasonable doubt, (3) marshaled the evidence in its charge by referring to an element of the crime while discussing the evidence that was presented during trial and (4) denied the defendant’s motion to suppress his confession to the police. We affirm the defendant’s conviction and reverse the judgment only to the extent that the trial court ordered the defendant to register as a sexual offender without a hearing to determine whether the offense was committed for a sexual purpose.

The jury reasonably could have found the following facts. OnAugust 11,1998, the victim drove her Plymouth Voyager minivan to the Shaw’s Supermarket in Newington to purchase groceries. The victim was alone and spent approximately one-half hour inside the store. The victim then returned to her vehicle, loaded her groceries and got in the driver’s seat. The defendant was hiding in the backseat of the vehicle and, upon the victim’s entry into the vehicle, placed a knife to her side. The knife’s blade was five to six inches in length and was beveled.

The defendant told the victim to “do as I say and you will not be hurt.” The defendant ordered the victim to drive to Glastonbury and gave her specific directions to follow. The defendant directed the victim to a park on a dirt road in East Hartford. The road was blocked by a gate and the victim stopped the vehicle. The defendant ordered the victim to accompany him into a wooded area. The victim refused and told the defendant that she did “not feel like getting harmed or raped by [the defendant].” The defendant stated that he did not intend to harm the victim, but he did not want the victim to see which way he would be going in the wooded area to aid in his escape. The victim suggested that she would look away while the defendant fled into the wooded area. The defendant “seemed satisfied with that,” and the victim did not turn around until she was certain that the defendant was gone.

The victim then drove to the Newington police department and reported the incident. The victim described the man who perpetrated the crime as having shoulder length, dirty blond hair and wearing a baseball cap, blue jeans and a shirt. A detective prepared a composite sketch drawing based on the victim’s description. Thereafter, flyers were printed based on the composite sketch drawing. The flyers were shown to members of the Newington police department, including Officer Jeannine M. Candéis and her partner, Officer Timothy A. Walsh, who both recognized the sketch as depicting the defendant. They then went to a motel in Newington, where they believed the defendant was currently living.

The officers interviewed the defendant and he gave them a full statement in which he confessed. He signed the statement, and his version of the events matched that given by the victim. The defendant also gave the officers a baseball cap that he had been wearing during the event, and the officers took a picture of the defendant wearing the hat. The next day, the victim returned to the Newington police department and was shown a photographic lineup consisting of eight photographs, including the defendant. The victim recognized the defendant and pointed him out as the man that she had described three days earlier. Additional facts will be set forth where necessary to address the issues on appeal.

I

The defendant first claims that the court abused its discretion when it required him to register as a sex offender pursuant to § 54-254 (a).

Before reaching this issue as originally briefed by the parties, we address the supplementary issues we raised after oral arguments in this court. We requested that the parties file simultaneous supplemental briefs addressing the following issues:

“Is § 54-254 (a) a sentence enhancement statute?
“A. If it is a sentence enhancement statute, what is the proper procedure to be followed? See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
“B. If it is not a sentence enhancement statute, must the court hold an evidentiary hearing before finding that the defendant has committed a felony for a sexual purpose, and what is the standard of proof to be applied at the hearing?”

The state claims in its supplemental brief that the supplemental issues are “unpreserved and [therefore have been] waived” by the defendant because they were not raised at trial and were not originally briefed. The state further asserts that it “does not concede review-ability of the supplemental issues or consent to their consideration by this court.” We would not have asked for supplemental briefs had we believed the issues were not reviewable, nor do we need the consent of the parties to review issues we deem relevant.

The case of State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000), is relevant to the state’s position that the supplemental issues should not be reviewed. In Velasco, the defendant did not object at trial to the court’s determination, as opposed to a determination by the jury, that he had used a firearm in the commission of the underlying felony with which he had been charged. Id., 218 n.9. In the present case, the defendant did not object to the court’s application of § 54-254 (a) or claim that it was a sentence enhancement statute or seek a separate evidentiary hearing. The Velasco court determined that because its analysis was based on statutory construction, and raises questions in the public interest and of justice between the parties, the case could be reviewed under the plain error doctrine; Practice Book § 60-5; even if it was not reviewable under the precepts of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See State v. Velasco, supra, 218-19 n.9.

We also review the claim in the present case pursuant to the plain error doctrine as outlined in Velasco. The application and interpretation of § 54-254 (a) is strictly a question of law that requires no finding of facts, the review might result in the reversal of a miscarriage of justice, is in the interest of public welfare or of justice between the parties, and neither party is prejudiced by our decision to invoke the doctrine because each was afforded an opportunity to present arguments regarding the interpretation of § 54-254 (a). Id.

Our analysis of § 54-254 (a) is plenary because statutory construction is a question of law. See Gartrell v. Dept. of Correction, 259 Conn. 29, 39, 787 A.2d 541 (2002). We take into account and give effect to the apparent intent of the legislature. State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997). Section 54-254 (a) is a provision of the so-called Megan’s Law, General Statutes §§ 54-250 through 54-261. The intent of the Connecticut legislature, as is true of many other state legislatures that have enacted similar legislation, was to alert the public by identifying potential sexual offender recidivists when necessary for public safety. State v. Kelly, 256 Conn. 23, 90-91, 770 A.2d 908 (2001).

“The seriousness of the harm that sex offenders’ actions cause to society and the perception, supported by some data, that such offenders have a greater probability of recidivism than other offenders have recently combined to prompt the enactment of numerous laws across the country directed specifically toward persons convicted of crimes involving sexual conduct.” Doe v. Pataki, 120 F.3d 1263, 1266 (2d Cir. 1997). Chapter 969 of the General Statutes, entitled “Registration of Sexual Offenders,” is such an enactment. See General Statutes §§ 54-250 through § 54-261.

Connecticut’s version of Megan’s Law imposes a registration requirement on specified sex offenders who are convicted on or after January 1, 1995. General Statutes (Rev. to 1995) § 54-102r. The law was broadened in 1997 to include all convicted sex offenders rather than only some specified sex offenders. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1997 Sess., pp. 1230-31, testimony of Senator Kevin B. Sullivan and Senator George C. Jepsen. The registration of defendants falls into four categories, classified as to whether: (1) the victims are minors or the sexual offenses are nonviolent, (2) the sexual offenses are violent, (3) the sexual offense was committed in another jurisdiction or (4) a felony was committed for a sexual purpose. The last category allows the ten year registration required by § 54-254 to be discretionary with the judge if the court finds a felony was committed for a sexual purpose.

The specific question we first must answer is whether, within the teachings of Apprendi v. New Jersey, supra, 530 U.S. 466, § 54-254 (a) is a sentence enhancement statute. The state and the defendant agree that if the statute enhances the defendant’s sentence, a jury should have decided the question of whether the defendant had committed the crime of kidnapping in the second degree for a sexual purpose, the quantum of proof being beyond a reasonable doubt. Both parties also agree that if § 54-254 (a) is not an enhancement statute, an evidentiary hearing is required. The state claims, however, that such a hearing was already held when the defendant was sentenced, but that the defendant did not seek to produce any information to show that he had not committed the crime for a sexual purpose. The defendant seeks an additional hearing for the specific purpose of having the court make a finding by a fair preponderance of the evidence. The state concludes in its supplemental brief that “perhaps two hearings may be required in the future” because of the recent decision in Doe v. Dept. of Public Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2001).

We conclude, after a review consonant with the doctrine of plain error, that § 54-254 (a) is not a sentence enhancement statute and that the court’s finding of a sexual purpose requires a hearing with the quantum of proof being a fair preponderance of the evidence. The hearing must afford the defendant an opportunity to present evidence to show that he did not commit the crime for a sexual purpose.

Many of the questions raised in our analysis of the statute are of first impression in this state. This case involves one section of the Connecticut Megan’s Law that applies to those who are not convicted of sexual offense crimes, but with crimes found to have been committed for a sexual purpose. The statute itself does not address the question of what evidence a court may consider in making such a finding. Nor does the statute state whether a hearing must be held and, if so, the particular quantum of proof necessary for such a finding, or whether, if after such a finding, the requirement of registration is discretionary with the court.

The state invoked § 54-254 (a) after the defendant’s conviction to require him to register as a sexual offender with the commissioner of public safety. The defendant opposed the state’s request, arguing that the evidence presented at trial would not support a finding that the crime of kidnapping in the second degree was committed for a sexual purpose. The state argued that the information in the presentence investigation report could be used in making the finding, as well as the evidence heard during the trial.

The court ruled, “on the basis of the evidence presented at trial, that the defendant’s purpose in his actions with regard to the first count of the information, that is, kidnapping in the second degree, his objective was to sexually assault the victim . . . when he forced her at knifepoint to drive to a secluded area, I believe in East Hartford, off a main road and onto a dirt road, which led to apparently nowhere. My recollection is, there was a barrier at the end of the road.

“And ... as I recall, [the victim] was directed to bring the car to a stop and ordered out of the car, still at knifepoint, and to accompany the defendant to a wooded area.

“As the court already noted, the defendant’s claim that he merely attempted to, in doing so, directing her into the wooded area, that he merely was attempting to make easier his escape and the victim’s detection in what direction he was traveling.

“That claim is entirely implausible. It’s the court’s finding that the crime committed, that is, the kidnapping in the second degree, was committed for sexual purposes, pursuant to § 54-254. The court will make that finding.”

It is thus clear that the court found that the “sexual purpose” of the crime was based on the evidence alone, although the court had relied on the presentence investigation report in determining the appropriate sentence for the defendant. The definition of “sexual purpose” as used in § 54-254 (a) is contained in General Statutes § 54-250 (12), which provides in relevant part that “a purpose ... in committing the felony was to engage in sexual contact or sexual intercourse with another person without that person’s consent. A sexual purpose need not be the sole purpose of the commission of the felony. The sexual purpose may arise at any time in the course of the commission of the felony.”

Although the court did not rely on the presentence investigation report in finding that the defendant had committed kidnapping in the second degree with a sexual purpose, we note that such reliance would have been proper. Practice Book § 43-9 provides in relevant part that a presentence investigation report may be used “in the sentencing hearing and in any subsequent proceedings wherein the same conviction may be involved,” and shall be available to “(7) [a]ny court of proper jurisdiction where it is relevant to any proceeding before such court. ...” A proceeding is any undertaking in open court with the parties present for the resolution of a fact or an issue.

We now turn to our analysis of Apprendi v. New Jersey, supra, 530 U.S. 466, to substantiate our conclusion that § 54-254 (a) is not a sentence enhancement statute. Apprendi establishes the principle that a legislature may not remove from a jury the consideration of a question of fact that increases the range of penalties to which a criminal defendant is exposed. Id., 490. Phrased another way, if the penalty for a crime goes beyond the prescribed statutory maximum based on the finding of a particular fact, that fact must be submitted to a jury to be proved beyond a reasonable doubt. The question is whether a statute either alters the maximum penalty for an underlying crime or creates a second, separate offense calling for an additional separate penalty. If the statute does either, a jury must make the finding beyond a reasonable doubt. The relevant inquiry for us is whether § 54-254 (a) caused the defendant to be exposed to a greater punishment than that authorized by the verdict of guilty of kidnapping in the second degree.

There is a difference between a “sentencing factor” and a “sentencing enhancement.” In Apprendi, the defendant pleaded guilty to the unlawful possession of a firearm for an unlawful purpose. Id., 469-70. Another New Jersey statute provided for an increased sentence if the purpose for the offense was a “racial bias.” Id., 468- 69. The trial court, after a hearing, found by a preponderance of the evidence that the hate crime enhancement applied even though the defendant was not charged with violating the hate crime statute. Id., 469- 71. The United States Supreme Court held that the “hate bias” statute that provided for an increase in penalty for the crime by two years was a sentence enhancement statute, not a sentencing factor statute, and that, therefore, a jury should have decided the question with the quantum of proof being that of beyond a reasonable doubt. Id., 476.

It is useful to also discuss another United States Supreme Court case, McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1990). McMillan involved a statute that required a mandatory minimum sentence if a trial court found by a preponderance of the evidence that the defendant “visibly possessed a firearm” during the course of an offense, but gave the court no discretion to impose a lesser sentence for the underlying felony. Id., 81-82. The United States Supreme Court held that there was no denial of the defendant’s right to a jury trial and deemed the statute to be one dealing with a sentencing factor. Id., 91. Because the statute was a sentencing consideration only, due process was satisfied by the court’s finding by a preponderance of the evidence of “visible possession.” Id., 91-92.

The state claims that § 54-254 (a) provides for a consequence of being convicted of a registerable offense, and is part of the sentencing process, rather than an increase in the sentence. The defendant argues that the statute is punitive and increases the penalty for the crime he did commit and that, therefore, it is a sentence enhancement statute that gives him the due process right of having a jury determine beyond a reasonable doubt if his crimes were committed for a sexual purpose.

The case of State v. Kelly, supra, 256 Conn. 90-91, clearly establishes that Connecticut’s Megan’s Law, as to registration, was enacted by the legislature as a regulatory measure, not a punitive one, and was not intended as punishment. See also State v. Misiorski, 250 Conn. 280, 290-92, 738 A.2d 595 (1999). The case of State v. Velasco, supra, 253 Conn. 210, decided just prior to Apprendi, concludes, as did the United States Supreme Court in Apprendi, that a separate statute that requires an additional term added to a sentence, if a fact (e.g., the use of a firearm) was found, is a sentence enhancement statute. Velasco concludes that a jury finding must be made if the separate statute is really an enhancement statute. A finding made by the trial court, even if beyond a reasonable doubt, is not good enough. Id., 228-29.

In addition to the lack of legislative intent to increase punishment by registration, as found in Kelly, we determine that Apprendi and Velasco differ from the present case in that the statutes being interpreted in the latter cases would have an immediate impact on the defendant. The registration of the defendant as a sex offender takes place after conviction, but does not affect the term of the sentence to be imposed and is not required to be effective until “release into the community . . . .” General Statutes § 54-254 (a). Apprendi and Velasco involved the immediate application of the statutes at sentencing to increase the term of imprisonment for the crime of which the defendant was convicted, upon the finding of a particular fact.

In this case, we are not dealing with a sentencing factor or a sentencing enhancement, but with a finding to be made after conviction that has no effect until after a defendant’s sentence has been served. We are concerned with the constitutionally appropriate consequences of a conviction after the serving of a sentence. See Doe v. Dept. of Public Safety ex rel. Lee, supra, 271 F.3d 38.

A violation of § 54-254 (a) is itself a class D felony. The behavior it punishes is unrelated to the original offense and refers to a defendant’s subsequent behavior. We are not concerned in this case with any subsequent behavior following the court’s requirement of registration. After the determination that a defendant is required to register, the defendant must comply with the requirements of the statute.

There are consequences that follow the conviction of all felonies, apart from sexual offender types of crimes, such as the inability to obtain or to keep certain jobs, to own a gun, to vote, to sit on a jury, the removal from judicial office or disbarment from the practice of law. Most criminal convictions result in adverse consequences. State v. John, 210 Conn. 652, 694, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

Having determined that § 54-254 (a) is not a sentence enhancement statute or a statute involving a sentencing factor, we next decide what due process requires by way of an evidentiary hearing to find a “sexual purpose.” It is necessary to provide procedural safeguards when defamation of character or notoriety combines with the removal of a protected status previously enjoyed by the defendant. This is the so-called “stigma plus” test for determining the quantum of procedural due process owed to a person who comes within the terms of a statute, such as Megan’s Law, or who has been harmed within the terms of 42 U.S.C. § 1983. See Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976); Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971); Doe v. Dept, of Public Safety ex rel. Lee, supra, 271 F.3d 38.

In Doe, the United States Court of Appeals for the Second Circuit held that the plaintiff in that case was entitled to summary judgment on his claim that under 42 U.S.C. § 1983, Connecticut’s sexual offender law violated the fourteenth amendment to the United States constitution. The Doe court further held that the plaintiff was entitled to a permanent injunction to prevent the state from disseminating the registry or disclosing registry information to the public except in limited circumstances.

The plaintiff in Doe had been convicted of an offense that subjected him to the registration and notification requirements of § 54-250 et seq. His complaint alleged that he was not a dangerous sexual offender and that he did not pose a threat to the community. He claimed that the damage to his reputation and the alteration of his status required that he be given a meaningful opportunity to be heard before there could be disclosure to the public. In sum, the registration as provided in § 54-254 (a) was not at issue because that presumably had already occurred, and the injunction did not prevent law enforcement offices from accessing the registry. At issue was the public disclosure of the registry. The present case involves only registration, not any future disclosure at the conclusion of the service of the defendant’s twenty-five year sentence.

Using the “stigma plus” test as outlined in Paul v. Davis, supra, 424 U.S. 693, the Doe court concluded that the dissemination of the registration information was sufficiently derogatory, allegedly falsely derogatory, and that a burden was imposed on the plaintiff not imposed on other citizens and was an alteration of his status. That combination, the “stigmaplus,” ensured him the procedural protections of due process. Doe established that the plaintiff is entitled to an opportunity for a hearing consistent with due process principles to determine whether he is particularly likely to be dangerous before being included on a publicly disseminated registry, although Doe does not decide the exact form of due process.

“The registration duties imposed by Connecticut’s sex offender law are extensive and onerous. With a few exceptions, a person who is required to register because he or she was convicted ... of a felony with a sexual purpose must verify his or her address annually for ten years. . . . Whenever any registrant changes his or her address, he or she must notify the Commissioner of Public Safety within five days.” (Citations omitted.) Doe v. Dept. of Public Safety ex rel. Lee, supra, 271 F.3d 57. Other onerous requirements relate to providing blood samples and photographs. Id. The failure to abide by any of these obligations can be punishable by a five year prison term. Id. These obligations easily satisfy the “plus” factor of Paul v. Davis, supra, 424 U.S. 693. Furthermore, these duties are a change of a person’s status under the state law.

On the basis of Doe and the other cases cited herein, we conclude that the defendant is entitled to a hearing because he satisfies the “stigma plus” test. Although we are dealing with the registration component of the statute, as opposed to its disclosure component, disclosure cannot occur without registration having first been ordered. Both disclosure and notification should be treated in the same manner as far as due process is concerned.

Because registration as a person convicted of an offense committed for a “sexual purpose” is not an element of the underlying crime, nor does it increase the penalty for that crime, the hearing is to be conducted by the court and the fact is to be found by a fair preponderance of the evidence. See McMillan v. Pennsylvania, supra, 477 U.S. 79. Section 54-254 (a) uses the phrase “may be required by the court” and is, therefore, discretionary. It allows the court, if it first finds that the crime was committed for a sexual purpose, to exercise its discretion as to whether to require the defendant to register with the commissioner of public safety. The purpose of the hearing is to allow the defendant and the state to produce whatever relevant evidence each deems necessary for the court to determine if the underlying offense was committed for a sexual purpose. The hearing does not disturb the defendant’s conviction or his sentence in any way and determines only whether he will be required to register with the commissioner of public safety upon the conclusion of his term of imprisonment.

II

The defendant’s next claim is that the court improperly instructed the jury concerning reasonable doubt. A portion of the court’s charge with respect to reasonable doubt stated: “Now, keep in mind that the state of Connecticut does not desire the conviction of an innocent person, or any person who is presented on evidence where there’s reasonable doubt. The state does not wish to have an innocent person punished or to have a person acquitted who has been proven guilty as provided by law. . . . But keep in mind, those mies of law are made to protect the innocent and not those whose guilt has been established beyond a reasonable doubt.” The defendant claims that these two instructions violated his state and federal rights to due process, and his rights to a fair trial under the constitution of the United States and the constitution of Connecticut. We do not agree.

The standard of review of juiy instructions is well settled. This court shall make an inquiry to determine whether it is reasonably possible that the court’s instmctions misled the jury. See State v. Anderson, 65 Conn. App. 672, 685, 783 A.2d 517 (2001). “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instmctions, 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 them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instmctions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Delvalle, 250 Conn. 466, 470, 736 A.2d 125 (1999). As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 485, 668 A.2d 682 (1995).” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

The language questioned by the defendant has been held not to be a constitutional violation and the defendant “faces a wall of recent Supreme Court decisions rejecting challenges to very similar instructions.” State v. Robinson, 56 Conn. App. 794, 804, 746 A.2d 210, cert. denied, 253 Conn. 904, 753 A.2d 938 (2000); see also State v. Copas, 252 Conn. 318, 347, 746 A.2d 761 (2000); State v. Watson, 251 Conn. 220, 227-28, 740 A.2d 832 (1999).

The defendant argues that this case is different because he objected immediately following the charge to the jury. The fact that the objection was timely made, on the facts of this case, is irrelevant, and the same standard of review applies whether we analyze the charge as unpreserved under State v. Golding, supra, 213 Conn. 239-40, or as preserved at trial. State v. Madagoski, 59 Conn. App. 394, 402, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 100 (2001).

The defendant also argues that our Supreme Court has directed trial courts to refrain from using the “laws are designed to protect the innocent” language contained in the charge to the jury in State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (en banc), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). The defendant is correct, but the decision in Schiappa was released on March 23, 1999, and the charge to the jury in the present case was given on March 2, 1999. Despite the admonishment by the court in Schiappa, our Supreme Court found that there was no constitutional violation when the “laws are designed to protect the innocent” language was utilized. Id., 168. We can find no reason to distinguish the long line of precedent in which it has been found that similar language does not violate the defendant’s constitutional rights and, therefore, decline to do so.

Ill

The defendant next claims that the court improperly marshaled the evidence by impliedly finding an element of the crime. The court, during its marshaling of the evidence, stated that the victim had identified “the defendant as the person who broke into her vehicle and abducted her and drove her to East Hartford at knifepoint.” The defendant objects to the word “abduct” because it is an element of the crime contained in kidnapping in the second degree pursuant to § 53a-94 (a). We do not agree with the defendant.

“A trial court often has not only the right, but also the duty to comment on the evidence.... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserves equal attention. . . . In marshaling the evidence, the court must be careful not to imply any favor or criticism of either side.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 797, 772 A.2d 559 (2001). The nature of the court’s comments depends on the particular facts present in the case being tried. Id., 799.

The court was fulfilling its duty to marshal the evidence. When the court used the word “abducted,” it was presenting the victim’s version of events. The court also gave the defendant’s view when it stated: “The defendant’s version of what happened [was] mainly that no crime or crimes were committed by him.” The court’s summary of the state’s case consisted entirely of the statement concerning the victim’s testimony that previously was cited. The court then added: “So, you have conflicting versions regarding not only the events, but I suppose the identity and whether or not any crime was committed.” The court’s marshaling of the evidence was an accurate portrayal of the evidence as it was presented during the short trial. The jury was presented with two different versions of events and was asked to determine if the state had proven its case beyond a reasonable doubt. The court did not improperly marshal the evidence.

IV

The defendant’s final claim is that the court, after a hearing, improperly denied the defendant’s motion to suppress his confession to the police. The defendant argues that he was under custodial interrogation because he was on probation and was not given his Miranda warnings when he gave a confession to the police.

The following additional facts are relevant to this claim and were presented at the suppression hearing. When Officer Candéis and Officer Walsh recognized the composite drawing of the alleged perpetrator as the defendant, they went to his last known residence, a motel. Candéis testified that she told the defendant that he could ask them to leave at any time during the interview and that the defendant would not be placed under arrest. During the interview, the defendant was seated approximately six feet to ten feet away from Candéis, and Walsh stood in the doorway. It is admitted that at no time did Candéis advise the defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Both officers testified that the defendant did not appear intoxicated, and they could not recall seeing any empty alcoholic beverage containers in the room. At that time, the defendant confessed to the events and signed a statement.

At the suppression hearing, the defendant claimed that he was an alcoholic and that before the visit from the officers he had consumed six or seven forty-ounce bottles of malt liquor beer and one-half pint of hard liquor. The defendant claimed that he did not remember any of the questioning by the officers. The defendant claimed that he was made aware of the confession the following morning when his roommate informed him of the events from the previous evening. The defendant did not produce any additional witnesses from the previous evening, including his former roommate, to verify that he had indeed been drinking heavily. At no time during the suppression hearing was there any mention of the defendant’s probationary status. Following the presentation of evidence, the court stated that the defendant’s testimony that he was intoxicated was not credible and that he “was not in custody” at the time he was questioned by the police officers.

On appeal, the defendant claims that he was on probation at the time of his confession and, therefore, that he was in the custody of the department of correction. The defendant argues, therefore, that he was entitled to be advised of his rights under Miranda v. Arizona, supra, 384 U.S. 436.

The state argues that this claim is unpreserved and should not be reviewed. Nevertheless, the defendant seeks review of Ms claim under the precepts of State v. Golding, supra, 213 Conn. 239-40. The defendant is not entitled to review under Golding because there is no record to substantiate Ms claimed probationary status, and he therefore fails to meet the first prong of Golding. See State v. Downey, 45 Conn. App. 148, 157-59, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997).

The judgment of conviction is affirmed and we reverse oMy as to the requirement that the defendant register as a sexual offender and the case is remanded for a hearing for the sole and specific purpose of determining whether the defendant committed the offense of kidnapping in the second degree in violation of § 54-94 “for a sexual purpose” as provided in § 54-254 (a).

In tMs opimon the other judges concurred.

       General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (1) He is armed with explosives or a deadly weapon or dangerous instrument. . . .” General Statutes § 53a-100 defines “building” as including a vehicle.

       General Statutes § 54-254 (a) provides in relevant part: “Any person who has been convicted ... in this state on or after October 1, 1998, of any felony that the court finds was committed for a sexual purpose, may be required by the court upon release into the community to register such person’s name, identifying factors, criminal history record and residence address with the Commissioner of Public Safety, on such forms and in such locations as the commissioner shall direct, and to maintain such registration for ten years. . . .”

       The victim testified that she accidentally had left the vehicle’s sliding door unlocked because it has to be locked manually, and she had forgotten to lock the vehicle manually after someone else had driven it on the previous day.

       “While it is the general practice of this court not to review claims not distinctly raised at trial, we may, in the interests of justice, notice plain error not brought to the trial court’s attention.” State v. Luca, 19 Conn. App. 668, 670, 563 A.2d 752 (1989).

        Doe v. Dept, of Public Safety ex rel. Lee, supra, 271 F.3d 38, requires a hearing before there can be public disclosure of the registration required by Connecticut’s Megan’s Law. Doe does not concern the registration requirement itself, and we are concerned in the present case only with the registration of the defendant as an offender who committed a felony for a sexual purpose rather than with the possible public disclosure following his release into the community after his prison term has been completed.

       The court stated to the defendant prior to sentencing that “[i]t’s the court’s belief that you intended to sexually attack [the victim] .... [T]he contents of the presentence report paint a picture of [the defendant] that is about as deplorable as any that I have ever had occasion to read. And I have reviewed dozens and dozens of presentence reports during my career as a jurist. You are a sexual deviate. . . . [T]he report is replete with your antisocial behavior.”

       General Statutes § 54-254 (a) provides in relevant part: “If such person changes such person’s address such person shall, within five days, register the new address in writing with the Commissioner of Public Safety, and, if the new address is in another state, such person shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders. If any person who is subject to registration under this section regularly travels into or within another state or temporarily resides in another state for purposes including, but not limited to employment or schooling, such person shall notify the Commissioner of Public Safety and shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders. During such period of registration, each registrant shall complete and return forms mailed to such registrant to verify such registrant’s residence address and shall submit to the retaking of a photographic image upon request of the Commissioner of Public Safety.”

       The defendant testified that he had received a ride voluntarily from the victim and that no crime had been committed. The defendant also stated that an argument ensued between him and the victim when she requested money from him for gasoline and that, motivated by revenge, she fabricated the story.

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


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    RANDAL D. MACKIE ET AL. v. RICHARD A. HULL ET AL.
    (AC 21615)
    Lavery, C. J., and Flynn and Peters, Js.

      Argued September 25, 2001
    officially released May 7, 2002

      Jonathan J. Meter, with whom was James J. Meter, for the appellants (defendants).

      Gerald L. Garlick, for the appellees (plaintiffs).
   Opinion

FLYNN, J.

The defendants, Richard A. Hull and Catherine A. Hull, appeal from the judgment of the trial court which settled the northerly boundary of their land and permanently enjoined them from entering on or in any way interfering with the plaintiffs’ neighboring land to the north. The defendants challenge the trial court’s findings (1) that the plaintiffs, Randal D. Mackie and Joanna Mackie, have as the southerly boundary of their plot of land in Morris the southerly line of an “abandoned highway” and (2) that the defendants have no interest in any portion of the plaintiffs’ land, including any portion of the abandoned highway. We uphold the trial court’s determination that the plaintiffs’ southerly boundary is the southerly line of the abandoned highway. However, we remand this case for determination of whether the highway was abandoned after June 29, 1959, by the passage of a sufficiently long period of nonuse with intent to abandon, giving the defendants a right of access under General Statutes § 13a-55.

We first summarize the pertinent facts. The land in dispute was once a small part of a larger piece owned by David Gardiner. Gardiner acquired title by a deed that described the southerly boundary as “along center line of old discontinued road 1,795 feet, more or less . . . .” (Emphasis added.) The defendants acquired a part of Gardiner’s tract by virtue of a conveyance by warranty deed dated April 17, 1984, and recorded on May 1,1984, in volume 43, page 678, of the land records. This warranty deed conveyed a parcel 730 feet long, more or less, along that abandoned right-of-way to a point in the southeasterly comer of land belonging to Leonard J. Rothman. In a series of conveyances within the family, the defendant Catherine Hull conveyed the parcel of land received from Gardiner to the defendant Richard Hull, who in turn conveyed it to his daughter and son-in-law, Patricia A. Beaudoin and Charles J. Beaudoin, who in turn conveyed to the plaintiffs by warranty deed dated May 23, 1991, and recorded on May 24,1991, in volume 54, page 826, of the land records. In all of the conveyances after Gardiner, there was language in the deeds describing the southerly boundary line as “the southerly line of [the] abandoned highway . . . .” These deeds also describe the ends of the southerly boundary line as coincident with two comers of neighboring properties. For example, the westerly end of the southerly boundary sits at the southeasterly comer of “land of Rothman.”

Although each of the deeds does not appear inconsistent on its face, reference to extrinsic evidence in the record reveals a conflict in the description of the southerly boundary. Reference to a survey map of record reveals that the comers of neighboring property and the southerly boundary of the abandoned highway do not describe the same line. Yet both of these calls are used in the deeds to describe the southerly boundary of the plaintiffs property. The southerly boundary of the abandoned highway lies at a point over seventeen feet further south from one comer of the neighboring property. That comer falls on the midline, not the southerly boundary, of the abandoned highway.

The trial court found that “[t]he defendants, prior to the conveyance to [the] Beaudoin[s], had title to the entire abandoned highway ... as set out in the Gardiner deed, the warranty deed from Charles E., Jr., and Martin [sic] K. LeSan, dated August 25, 1977, and recorded August 22, 1977 . . . and the quitclaim deed from Marion K. LeSan to the defendants dated July 7, 1985, and recorded August 14, 1985 . . . .” Together, these parcels encompassed all of the land at issue in this appeal. Thus, even if Gardiner’s deed to the defendants did not convey up to the southerly bound of the abandoned highway but only to its midline, the defendants had an interest in the entire abandoned highway, which they could then convey to the plaintiff.

The principles guiding our construction of land conveyance instruments, such as the deeds at issue in this appeal, are well established. “The construction of a deed . . . presents a question of law” which we have plenary power to resolve. (Internal quotation marks omitted.) II Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 511, 757 A.2d 1103 (2000). “In constming a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of constmction is that recognition will be given to the expressed intention of the parties to a deed . . . and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.” (Internal quotation marks omitted.) Lake-view Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780, 687 A.2d 1270 (1997). “In determining the location of a boundary line expressed in a deed, if the description is clear and unambiguous, it governs and the actual intent of the parties is irrelevant.” Marshall v. Soffer, 58 Conn. App. 737, 743, 756 A.2d 284 (2000). “In the event a latent ambiguity is found, the ambiguous language in the grant is ordinarily construed against the grantor and in favor of the grantee, and the grantee may adopt the boundary most favorable to him.” (Internal quotation marks omitted.) Id., 744. “A latent ambiguity arises from extraneous or collateral facts that make the meaning of a deed uncertain although its language is clear and unambiguous on its face.” Id., 743.

As a threshold matter, the defendants challenge the trial court’s finding that there was no latent ambiguity in the deed description. Although we disagree with the court on this point and determine that there is a latent ambiguity, we nonetheless affirm the court’s finding that the plaintiffs have as their southerly boundary the southerly line of the highway. As discussed previously, the deeds do not appear inconsistent on their face, but reference to collateral exhibits reveals a conflict between two calls in the deed description of the southerly boundary of the plaintiffs’ property. The deed description uses both the southerly line of the highway and the comers of neighboring property to describe the southerly boundary line of the plaintiffs’ property. Reference to a survey map of record reveals a conflict in these calls: the southerly boundary of the abandoned highway lies at a point over seventeen feet farther south from one comer of the neighboring property.

After a thorough review of the record, we find nothing in the surrounding circumstances to indicate that the parties’ mutual intent is better expressed in either one of the two conflicting calls. Thus, we decline to adopt the trial court’s position that the issue can be resolved as a question of comparative dignity between the two calls. As the defendants argued, the two calls are of equal dignity in manifesting the intent of the parties because they are equally certain. Cf. Barri v. Schwarz Bros. Co., 93 Conn. 501, 510-11, 107 A. 3 (1919) (call “containing the less certainty must yield to that possessing the greater, if apparent conflict between the two cannot [otherwise] be reconciled”). Both the southerly line of the abandoned highway and the comers of the adjoining property are generally classified as monuments. See Frank Towers Corp. v. Laviana, 140 Conn. 45, 51, 97 A.2d 567 (1953) (“highway has always been regarded as a fixed monument . . . [and] [t]he land of an adjoining proprietor whose boundaries can be fixed by known monuments is also considered to be a monument” [citations omitted]); see also Veve v. Sanchez, 226 U.S. 234, 240, 33 S. Ct. 36, 57 L. Ed. 201 (1912) (“locative lines of the adjoining owners . . . are certain, or they can be made certain, and . . . are treated as a sort of natural monument”). Thus, the two calls fall in the same general class of certainty. See generally 12 Am. Jur. 2d 422, Boundaries § 7 (1997).

It is tme that a default hierarchy has developed, in which various classifications of monuments are deemed generally to be of greater dignity than others. Under the prevailing general hierarchy, “other things being equal, resort is to be had first to natural objects or landmarks, next to artificial monuments, then to adjacent boundaries (which are considered a sort of monument) and thereafter to courses and distances.” (Emphasis added.) 12 Am. Jur. 2d 466, supra, § 61; see also Benedict v. Gaylord, 11 Corm. 332, 336 (1836) (“limits of another’s land referred to generally, without particularity of description, or known and certain boundaries, are descriptions of great uncertainty” and more specific descriptions of monuments would prevail over them). Thus, with no other information about their relative certainty, the artificial monument of the abandoned highway would prevail over adjacent boundary descriptions. However, the underlying concern addressed by this default hierarchy is the underlying certainty of the specific call in question. More certain calls, whatever their general label, prevail over less specific calls because they better express the mutual intent of the parties. Each of the two calls in the present case can readily be ascertained with equal certainty by consulting a final subdivision map referenced in a boundary line agreement of record in the plaintiffs’ chain of title. Thus the search for greater certainty in one of the calls to prevail over the other as an expression of the parties’ mutual intent leaves us at an impasse.

In such a case of irreconcilable ambiguity, we are left with the principle that the ambiguity is to be resolved against the grantor. Marshall v. Soffer, supra, 58 Conn. App. 744. The defendants were the grantors of the land at issue in this appeal, who referred to the southerly line of the highway, rather than the midline, as the southerly boundary of the property. Thus, the deed is construed to the advantage of the grantee plaintiffs. The plaintiffs retain the southern line of the abandoned highway as the southerly boundary of their land and enjoy possession of the entire area of land of the abandoned highway.

The defendants briefed another argument that sought to resolve the latent ambiguity as a case of scrivener’s error. When questioned at oral argument, however, the defendants conceded that the elements necessary to find scrivener’s error were absent, stating: “We are not arguing this on the basis of scrivener’s error [or] using the rules of law that would be appropriate to a [claim of] scrivener’s error.” Thus, the defendants abandoned this claim at oral argument. Cf. State v. Ryan, 182 Conn. 335, 338, 438 A.2d 107 (1980) (cross appeal abandoned at oral argument).

The defendants also challenge the court’s finding that they failed to establish that they have a right-of-way over the abandoned highway by operation of § 13a-55. We remand the case to the trial court on this issue, with instruction to determine whether the defendants have established that the highway was abandoned after 1959, creating a right-ol-way over the highway in favor of the defendants under § 13a-55.

We first set forth the appropriate standard of review for this issue. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. ... 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.) Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., 66 Conn. App. 397, 401-402, 784 A.2d 970, cert. granted on other grounds, 258 Conn. 949, 788 A.2d 98 (2001); Primary Construction Services, LLC v. North American Specialty Ins. Co., 66 Conn. App. 828, 829-30, 785 A.2d 1218 (2001). “When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book [§ 60-5, formerly § 4061] . . . .” (Citations omitted; internal quotation marks omitted.) Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 511, 767 A.2d 692 (2001).

The trial court concluded, in relevant part, the following: “3. The defendants . . . have no right, title, interest or claim of any kind in and to any portion of the property, including any portion of the . . . highway .... 4. The defendants . . . are permanently enjoined from using, entering on, or in any way interfering with the plaintiffs’ use and enjoyment of the property. 5. The defendants . . . have failed to demonstrate that they have acquired any interest in any part of the property . . . under General Statutes § 13a-55 . . . .”

The defendants specifically challenge the trial court’s finding that “the abandoned highway was extinguished by the direct government action of October, 1923 . . . -” The defendants are aggrieved by the court’s finding because it defeated their claim at trial that they held a “right-of-way over the southerly half of the . . . abandoned highway by reason of § 13a-55 of [the] General Statutes,” which would permit them a right-of-way over the highway even if they did not own it in fee simple. Section 13a-55 provides in relevant part: “Property owners bounding a discontinued or abandoned highway . . . shall have a right-of-way . . . over such . . . highway.” Section 13a-55 was enacted in 1959 and it does not apply retroactively. Rudewicz v. Gagne, 22 Conn. App. 285, 287, 582 A.2d 463 (1990). Therefore, if the highway at issue in this appeal was discontinued or abandoned before 1959, the defendants would not have a right-of-way by operation of § 13a-55. The court recognized this principle and found that the defendants did not have a right-of-way under § 13a-55 because the highway was “extinguished by the direct government action of October, 1923,” over thirty-five years prior to the effective date of the statute.

Before assessing whether the trial court’s finding that the highway was “extinguished by . . . direct government action” in October, 1923, has support in the record, we must first discuss what highway discontinuation is. “A highway may be extinguished [1] by direct action through governmental agencies, in which case it is said to be discontinued; or [2] by nonuser by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned.” Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521 (1907). The trial court found that the highway at issue was extinguished by the town of Morris in 1923, invoking the former of these concepts (discontinuation).

“The methods of discontinuing a highway through governmental agencies . . . are prescribed by law and must be strictly pursued.” Id. In October, 1923, the relevant highway discontinuation statute, General Statutes (1918 Rev.) § 1442 provided in pertinent part that “[t]he selectmen of any town may, with its approbation, by a writing signed by them, discontinue any highway . . . .” (Emphasis added.) The plain language of this statute indicates that the selectmen were required to produce a signed writing describing their vote to effectively discontinue the highway. Accord R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 49.3 (b), p. 482. “The statute requires a written discontinuance of the highway by the board of selectmen .... There must be both a writing signed by the selectmen discontinuing the highway and approval of the town .... [This action is] required to be formal and definite so it is clear that parties aggrieved . . . can take an appeal . . . .” (Citation omitted.) Id.

The record on appeal does not support the court’s conclusion that the highway was discontinued by direct government action in October, 1923. The court had evidence before it that at a meeting on October 1, 1923, the town of Morris voted to close the highway. But there was no evidence indicating that the selectmen produced a signed writing to discontinue the road. We have reviewed the notice of the town meeting, warned for Monday, October 1, 1923, “to legalize by vote the closing of an abandoned highway commencing at a point near the S’over [sic] place on the Morris-Bantam Highway . . . .” We observe that the notice does not indicate that the voters were convened to consider or act upon any recommendation of the selectmen as to this action, nor does the record contain any other evidence of such a written recommendation. The minutes of the town meeting indicate that the townspeople voted to “close” the highway. We cannot presume, from evidence of town approbation alone, that the selectmen produced the necessary signed writing. Such an evidentiary presumption would effectively collapse two statutory elements into one, rendering the writing requirement meaningless. “The methods of discontinuing a highway through governmental agencies are prescribed by law and must be strictly followed.” Marrin v. Spearow, 35 Conn. App. 398, 404, 646 A.2d 254 (1994).

In the absence of evidence that the proper methods were followed, the court’s finding that the highway was discontinued by direct government action in October, 1923, cannot stand. This alone, however, does not vindicate the defendants’ claim under § 13a-55 to a right-of-way over the highway as an adjoining landowner to an abandoned road. As previously discussed, the defendants would need to have established that the highway was abandoned, i.e., that a sufficiently “long time” of nonuse had accrued with the intent to abandon the highway by some date after the effective date of § 13a-55 (in 1959). At trial, the defendants conceded that there was no evidence that the highway had been discontinued by government action after 1959. They argued exclusively under the theory that the highway was abandoned after 1959 by nonuse over a sufficiently long period of time with the intent to abandon. The court never reached this argument because its finding that the highway had been discontinued in 1923 foreclosed the need. Having determined that this discontinuance finding was improper, we now remand this case for the trial court to make the additional findings of fact required to determine whether the highway was abandoned after 1959. See generally Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1978) (whether highway has been abandoned is question of fact).

Accordingly, we agree with the trial court’s determination that the southerly boundary of the plaintiffs land is the southerly boundary of the highway. We disagree, however, with that court’s determinations that one, the “defendants . . . have no right, title, interest or claim of any kind in and to any portion of the property, including any portion of the abandoned highway . . . [2.] [that t]he defendants . . . are permanently enjoined from using, entering on, or in any way interfering with the plaintiffs’ use and enjoyment of the property [and 3. that] the defendants . . . have failed to demonstrate that they have acquired any interest in any part of the property . . . under General Statutes § 13a-55 . . . .” We remand this case to the trial court for consideration of whether the highway was abandoned, i.e., whether a sufficiently long period of nonuse with intent to abandon the highway had accrued, by some date after the June 29,1959 effective date of § 13a-55, creating a right-of-way for any of the defendants, or alternatively, whether abandonment by passage of such a sufficiently long period of time had occurred prior to the June 29, 1959 effective date of § 13a-55, in which case, since the statute is prospective only in its application, no right-of-way could be created.

The judgment is reversed only as to the determination that the defendants do not have a right-of-way over the subject property and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants raised this claim of error at trial, setting forth their argument that the highway had not been discontinued in October, 1923. The defendants argued that the town of Morris had not followed the “strict statutory requirements” for highway discontinuation, stating that “there is no evidence before this court of any writing signed by the selectmen discontinuing the roadway .... Accordingly, it must be found that the roadway was not discontinued by the Town of Morris or its selectmen on October 1, 1923.”

       “Nonuser” is a term of art utilized in early Connecticut case law. See, e.g., Beardslee v. French, 7 Conn. 125, 128 (1828). In this opinion, we use the term “nonuse” interchangeably with this early term of art.

       Our common law does not fix by “bright line” the number of years of nonuse with the intent to abandon necessary to find that nonstatutory “abandonment” of the public right to travel over a highway has taken place. See Newkirk v. Sherwood, 89 Conn. 598, 604-605, 94 A. 982 (1915).

       Although the judgment file states that the defendants “have failed to demonstrate that they have acquired any interest in any part of the property . . . under General Statutes § 13a-55,” we nonetheless remand on this issue because it is clear from the memorandum of decision that the court did not consider whether the highway was abandoned by nonuse, which might have accrued after the effective date of the statute. The memorandum of decision specifically stated that “[bjecause the court finds that the abandoned highway was extinguished by the direct government action of October, 1923, the issue of nonuse need not be addressed.” Because we have determined that the court’s conclusion regarding direct government action was improper, the trial court must now address the factual issue of abandonment on remand.


author: LANDAU, J.

text:
    CHRISTOPHER DWYER v. COMMISSIONER OF CORRECTION
    (AC 21136)
    Landau, Mihalakos and Daly, Js.
    Argued December 3, 2001
    officially released May 7, 2002

      Mark J. Rochon, with whom were David T. Grudberg and, on the brief, Norman A. Pattis, for the appellant (petitioner).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (respondent).
   Opinion

LANDAU, J.

This habeas corpus appeal raises an issue of first impression in this state, namely, whether a criminal defense counsel’s failure to inform the defendant of the state’s willingness to enter into plea negotiations constitutes ineffective assistance of counsel. The petitioner, Christopher Dwyer, claims here that the habeas court abused its discretion by denying his request for certification to appeal from its denial of his petition for a writ of habeas corpus. In the habeas court, the petitioner claimed that his trial counsel failed to inform him of the state’s willingness to enter into a plea bargain in violation of his constitutional right to effective assistance of counsel as set forth in Boria v. Keane, 99 F.3d 492 (2d Cir. 1996). Under the facts of this case, we conclude that the petitioner was not deprived of his constitutional right to the effective assistance of counsel pursuant to Boria and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We therefore dismiss the appeal.

To prevail on an appeal from the habeas court’s denial of a petition for certification to appeal, the petitioner must make a substantial showing that he has been denied a state or federal constitutional right and that in denying certification to appeal, the habeas court clearly abused its discretion and that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). “To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis in original; internal quotation marks omitted.) Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 4, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002).

The following procedural background provides the context for the petitioner’s appeal. In May, 1995, the petitioner was convicted by a jury of twelve of murder in violation of General Statutes § 53a-54a (a) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a). Following his conviction, the trial court sentenced him to fifty years in the custody of the respondent commissioner of correction. This court affirmed the petitioner’s conviction in State v. Dwyer, 45 Conn. App. 584, 696 A.2d 1318, cert. denied, 243 Conn. 910, 701 A.2d 335 (1997). Thereafter, in 1998, the petitioner filed a petition for a writ of habeas corpus, alleging five bases for his claim that he was denied effective assistance of counsel at trial. At the time of the habeas hearing, the petitioner withdrew two of the alleged bases for his claim. In his posthearing brief, the petitioner raised a new basis “that counsel failed to adequately advise [the] petitioner about whether to enter a plea.” Although that allegation was not included in his original petition and the petitioner did not amend his petition, he offered evidence about it at the habeas hearing without objection from the respondent. The court, therefore, in its memorandum of decision, sua sponte amended the petition to include the allegation. In his appeal to this court, the petitioner has abandoned all bases of his claim of ineffective assistance of counsel except that counsel failed to advise him adequately about whether to enter a plea and the state’s willingness to enter into renewed plea negotiation on the eve of trial. We now turn to the facts found and the conclusions drawn by the habeas court with respect to the petitioner’s claim on appeal.

After the petitioner was extradited from Jamaica, where he had fled after the murder, he remained in pretrial confinement until the time of trial in 1994. He was represented while he was confined and through a portion of jury selection by William R. Schipul, a public defender. During jury selection, the petitioner became dissatisfied with his public defender and asked his family to obtain private defense counsel for him. In the petitioner’s opinion, his public defender was too negative about the prospect of the petitioner’s prevailing at trial.

The petitioner’s mother and sister therefore approached Dante R. Gallucci, private defense counsel, to ask him if he would defend the petitioner at trial. Gallucci spoke with the public defender by telephone about the case. After hearing that the case was relatively simple although the underlying facts were tragic, Gallucci agreed to defend the petitioner. Gallucci met with the petitioner and spent five to six hours with the public defender reviewing the file and the theory of defense developed by the public defender. Gallucci was aware of the public defender’s reputation for thoroughness, and was satisfied that he had prepared and investigated the case fully.

After speaking with the public defender and the petitioner, Gallucci understood the defense theory, i.e., that a man known as Haggler, a friend of the petitioner who was in the petitioner’s apartment before the victim, Marjorie Wright, and her brother, Leeton Wright, arrived, had a gun and was attempting to shoot the petitioner when he accidentally shot the victim. In presenting the case for the defense, Gallucci chose not to involve Haggler, whose whereabouts were unknown at the time of trial, because he thought it was unlikely that Haggler would help the defense by impheating himself and his testimony would more likely support Wright’s testimony that the petitioner shot the victim.

When he entered the case, Gallucci did not request a continuance or a mistrial because he did not think that he needed one and because the petitioner wanted to proceed to trial. The petitioner was adamant about wanting a trial and wanting it immediately. When he entered the case, Gallucci knew nothing about an offer to plea bargain from the state.

The habeas court noted that the only evidence of a plea agreement came from the petitioner, who testified that while the public defender was representing him, the prosecutor proposed a plea bargain of twenty years in prison, suspended after eighteen years. The petitioner was of the opinion that that was a lot of time for someone “who didn’t do it.” According to Gallucci, he was not informed of that offer. John C. Smriga, the assistant state’s attorney who assumed responsibility for prosecuting the case sometime well before trial, had not made an offer, and the file did not reflect that another assistant state’s attorney had done so. Smriga broached the prospect of plea bargaining the case with the public defender, who had told Smriga that the petitioner was not interested in a plea and wanted a trial. Smriga also asked Gallucci whether there was some way of resolving the case and was told “no.” Gallucci’s response to Smriga was consistent with that of the public defender.

The petitioner testified that during the criminal trial, Smriga gestured to Gallucci that he wanted to speak to him. The petitioner assumed that Smriga wanted to discuss a more favorable plea offer. The petitioner claimed that he had told Gallucci about the original offer of twenty years and that he asked Gallucci three or four times to talk to the prosecutor about a lower offer. The habeas court found no support for the petitioner’s testimony and concluded that it was pure speculation, as there was no evidence of any original offer of twenty years, suspended after eighteen, that was being lowered during the criminal trial.

In its memorandum of decision, the court concluded that the petitioner wanted a trial, and was not interested in admitting his guilt and spending any time in prison. In fact, the petitioner still was proclaiming his innocence at the time of the habeas hearing. The court also concluded that there was no credible evidence that a plea bargain of twenty years, suspended after eighteen, had ever been made. The court reasoned that the public defender had told the petitioner that he would probably lose the case, which was not what the petitioner wanted to hear. The petitioner therefore fired the public defender and hired Gallucci to try the case, which is what the petitioner wanted. Gallucci told the petitioner that there was a good chance he could win. The court concluded in its memorandum of decision: “That is what the petitioner wanted to hear and is what he got, a trial. The court finds no credibility to the petitioner’s claim that he asked his counsel to seek or negotiate a plea.” (Emphasis added.)

The court denied the petitioner’s petition for a writ of habeas corpus and his petition for certification to appeal. The petitioner subsequently filed a motion for articulation, asking the court to state the basis for denying his petition for certification to appeal on the issue of whether the court misapplied the holding of Boria v. Keane, supra, 99 F.3d 492. The court denied the motion for articulation, stating: “The reasons for the court’s denial of the [petition for a] writ of habeas coipus are fully set forth in the [habeas] court’s lengthy memorandum of decision. This court concludes, based on the evidence, that there is no question with reference to the holding of Boria v. Keane, [supra, 99 F.3d 492] that ought to be reviewed by the Appellate Court.” On the basis of our review of the record, briefs, the law, including Boria and its progeny, we agree with the habeas court.

To prevail on a petition for a writ of habeas corpus, the petitioner must demonstrate that defense counsel’s representation “fell below an objective standard of reasonableness”; Strickland v. Washington, supra, 466 U.S. 688; and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 694. “Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong.” Denby v. Commissioner of Correction, 66 Conn. App. 809, 813, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002). In this instance, we need not decide whether defense counsel’s representation fell below an objective standard of reasonableness by failing to inform the petitioner of an offer to plea bargain. First, the habeas court found that neither Smriga nor the assistant state’s attorney who prosecuted the casejpreviously had communicated a plea bargain to either the public defender or Gallucci, and therefore Boria does not apply. Second, on the basis of the facts found by the habeas court, we conclude that there was no reasonable probability that the result of the criminal trial would have been different because the petitioner made it clear to both the public defender and Gallucci that he did not want to plead guilty.

“When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Id.

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . Colon v. Com missioner of Correction, 55 Conn. App. 763, 765, 741 A.2d 2 (1999), cert. denied, 252 Conn. 921, 744 A.2d 437 (2000). The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. Velez v. Commissioner of Correction, 57 Conn. App. 307, 309, 748 A.2d 350 (2000); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1219.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 66 Conn. App. 850, 851, 785 A.2d 1225 (2001).

Here, the court found that the only evidence of an offer to plea bargain was the petitioner’s testimony, which the court found was not credible. The court concluded that no plea offer ever had been made to the petitioner. For that reason, the court properly concluded in denying the petitioner’s motion for articulation that there was no aspect of Boria that this court ought to review. Boria held that criminal defense counsel has the “duty to advise his client fully on whether a particular plea to a charge appears to be desirable.” Boria v. Keane, supra, 99 F.3d 496. The petitioner’s claim on appeal is not consistent with the holding of Boria. The petitioner’s claim is that criminal defense counsel has a duty to convey to a defendant the state’s willingness to enter plea negotiations.

Even if we were to assume, which we do not, that the petitioner’s claim is consistent with the facts of Boria, we would come to the same conclusion. As the habeas court concluded, the petitioner was not interested in pleading guilty and spending time in prison. He wanted a trial. The petitioner made the ultimate decision. See Purdy v. United States, 208 F.3d 41, 43-44 (2d Cir. 2000). In his appeal, the petitioner wants this court to overlook the fact that his public defender informed him of the weaknesses in his case. The petitioner dismissed his public defender because he thought the public defender was negative and not representing him properly. The petitioner asked his people to find him a lawyer who would try the case. See footnote 5. Even if we were to assume, only for the sake of argument, that Smriga, through Gallucci, had offered the petitioner a plea bargain, the facts of this case indicate that there was no reasonable probability that the petitioner would have pleaded guilty. He has steadfastly denied, even at the habeas hearing, that he killed the victim. The petitioner’s attitude at trial also supports the conclusion that he would have rejected any invitation to enter plea negotiations.

We therefore conclude that the petitioner has failed to meet his burden of demonstrating that he has been denied a constitutional right, and we conclude that the court did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       We note that the petitioner has changed the substance of his claim from that raised in his posthearing brief to his motion for articulation to the claims raised on appeal here and the claim articulated in his brief. It is well settled that this court does not consider claims not raised in the habeas court. Practice Book § 60-5; Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991), affd, 225 Conn. 46, 621 A.2d 1311 (1993). We therefore address the claim addressed by the habeas court when, sua sponte, it amended the petition for a writ of habeas corpus.

       The United States Court of Appeals for the Second Circuit has held in accordance with the Model Code of Professional Responsibility (1992) that “[a] defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable." (Emphasis in original.) Boria v. Keane, supra, 99 F.3d 496, quoting American Bar Association Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992).

       On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. Immediately prior to the events that resulted in the petitioner’s conviction, Marjorie Wright (victim) was living with the petitioner at 36 Laurel Court in Bridgeport. The victim decided to leave the petitioner because he apparently was involved romantically with other women. On the morning of July 31, 1990, the victim asked her brother, Leeton Wright, to help her remove her things from the petitioner’s home. When the Wrights arrived at 36 Laurel Court, the petitioner was asleep in one of the bedrooms. Wright noticed a gun on the dresser in the room where the petitioner was sleeping. A man known as Haggler, a friend of the petitioner, had been staying at 36 Laurel Court for a few weeks and was present in the kitchen.
      As the victim was collecting her belongings, the petitioner awoke and began to argue with the victim. Leeton Wright advised the victim to collect her things and leave. The petitioner emerged from the bedroom and fired a shot at the victim, striking her in the chest. Leeton Wright and the victim escaped from the house, and the victim collapsed in the street. The petitioner followed them and tried to attend to the dying victim, crying, “I’m sorry.” When the petitioner heard sirens approaching, he left the scene, running into the house and out the back door. Haggler also left the scene. The petitioner fled to Jamaica, where he remained until he was extradited to stand trial in 1994.

       The habeas court found that the petitioner had presented that claim by transforming one of his original claims, which alleged that “[c]ounsel for petitioner failed to communicate to the petitioner that it was the petitioner’s decision about whether to testify, and failed adequately to advise him on whether to testify or not.”

       On direct examination at the habeas hearing, the petitioner testified as follows:
      “[Petitioner:] [Attorney Dante R. Gallucci, private defense counsel,] came to represent me, and I had a jury picked when I found out that [the public defender] wasn’t representing me accurately. I felt like he was gonna—I felt like [I was] gonna lose the trial, the case, so I suggest to my people that—my family, that I need a lawyer to represent me. That I—I think I supposed to accurately [be] represented.
      “[Petitioner’s Counsel]: You did—what was your—you didn’t feel [the public defender] was representing you well?
      “[Petitioner:] No. sir.
      “[Petitioner’s Counsel:] What was he doing wrong?
      “[Petitioner:] He was—the way he was talking to me. He was talking to me in some negative way.
      “[Petitioner’s Counsel:] Meaning negative in what respect?
      “[Petitioner:] Like I think he—I'm gonna lose this trial or something.
      “[Petitioner’s Counsel:] Okay.
      “[Petitioner:] You know? This trial, the state got a lot of evidence on you, I don’t believe you’re gonna win this case.”

       The public defender was not called as a witness at the habeas hearing.

       On direct examination at the habeas hearing, the petitioner testified as follows:
      “[Petitioner’s Counsel:] After jury selection in your case . . . did you have a change of heart at all about whether to enter a plea?
      “[Petitioner:] After seeing the prosecutor [indicate] to my lawyer that he wanted to talk to him, so my suggestion was like he probably wants some— wanted to make some plea or something. So, I—I told my lawyer, go see what the prosecutor saying ’cause he probably want to talk about some time or something. He probably talking about some lesser time or something than the eighteen years.
      “[Petitioner’s Counsel:] Um-hmm ....
      “[Petitioner:] And he—my lawyer look at me and say, I don’t think he gonna come down much, any way. And this—at last we— right now we got a good case, you know what I’m saying? He say right now I got a good case, we got a good chance of beating the case so it don't make no sense going over to him. So, might as well we go all the way.
      ^ * *
      “[Petitioner’s Counsel:] What led you to conclude that the prosecutor wanted to talk to Mr. Gallucci?
      “[Petitioner:] He give him a—a hand signal. He call him with his hand.
      “[Petitioner’s Counsel:] You mean, so he gestured as to come over here?
      “[Petitioner:] Yeah, yeah, so even after the judge state to my—my attorney, Mr. Gallucci, said to him the prosecutor want to talk to you about some bargain, some time, some bargain or something. And he—he just shake his head, no.
      “[Petitioner’s Counsel:] Mr. Gallucci shook his head and said no?

        “[Petitioner:] Yeah, yeah, so I went—I repeat back to him, I say, can you just at least go find out what—what he talking about? He said, no, I know what he talking about. He talking about some lesser time or something like that. So, I’m saying, you don’t know what he talking about. He might have given a good deal or something, you know what I’m saying? ’Cause I don’t really want to, you know, I don’t really want to really [get] caught up in a bad trap here, you know what I’m saying? I know may case it carry a lot of time and everything. And he said, no, you gonna beat the case. You don’t need—
      “[Petitioner’s Counsel:] Your lawyer told you you’re gorma beat the case?
      “[Petitioner:] Yeah.
      * ** *
      “[Petitioner’s Counsel:] I thought you said at that point you had—you assumed that the—the offer might be lower?
      “[Petitioner:] Yes.
      “[Petitioner’s Counsel:] Was that—did you assume that it might be lower from the eighteen to twenty year range?
      “[Petitioner:] Yes, sir.
      “[Petitioner’s Counsel:] Why did you make that assumption?
      “[Petitioner:] Because of the way he was calling. He was desperate, like he wanted to make a—wanted to make some deal.
      “[Petitioner’s Counsel:] Um-hmm ....
      “[Petitioner:] So—and I knew that I was facing a lot of time when I— when I seen him making the suggestion like calling him—calling my [lawyer] toward him, I knew it was at the time he wanted to make some deal or something.
      “[Petitioner’s Counsel:] Um-hmm ....
      “[Petitioner:] So, I told him go see him. And he said, no.
      "[Petitioner’s Counsel:] You told your lawyer to go and talk to the prosecutor and your—your lawyer said no?
      “[Petitioner:] No.
      "[Petitioner’s Counsel:] How certain are you of that, Mr. Dwyer?
      “[Petitioner:] One hundred percent.”

       On cross-examination the petitioner testified as follows.
      “[Respondent’s Counsel]: Mr. Dwyer, did you tell [the public defender] that, in fact, you did not shoot [the victim]? Your first lawyer, [the public defender],
      “[Petitioner:] Yes, yes.
      “[Respondent’s Counsel:] And did you tell Mr. Gallucci that you did not shoot [the victim]?

        “[Petitioner:] Yes, ma’am.
      “[Respondent’s Counsel:] And is it your testimony as you sit here today that you did not shoot [the victim]?
      “[Petitioner:] Yes, ma’am.
      “[Respondent’s Counsel:] So your claim all along has been innocence? You’ve maintained all along—
      “[Petitioner:] Yeah.
      “[Respondent’s Counsel:] —that you were not responsible for the death of [the victim]?
      “[Petitioner:] Yes.
      “[Respondent’s Counsel:] And that didn’t change at any point during the trial or even up until today’s testimony?
      “[Petitioner:] Yes, ma’am.
      “[Respondent’s Counsel:] And I believe you said that you had the impression that [the public defender] had an offer for twenty—twenty years, execution suspended after eighteen, and you did not take that offer because you were innocent; is that correct?
      “[Petitioner:] The first time, yes.”

       In Boria, defense counsel failed to convey an offer to plead to the defendant, who was accused of selling narcotics, a class A-II felony under New York State law. The plea bargain offered to the defendant would have resulted in a one year to three year sentence. The district attorney warned defense counsel that if the plea was rejected, he would file an amended indictment for a class A-I felony, which precluded plea bargaining. The defendant did not want to plead guilty because it would embarrass him in front of his children. Defense counsel permitted the defendant to reject the offer without giving him any advice as to the wisdom of doing so. The defendant was convicted and sentenced to twenty years to life in prison. After serving six years of his sentence, the defendant filed a petition for a writ of habeas corpus, asserting that he was denied effective representation by counsel because his counsel permitted him to reject the one year to three year plea offer. Boria v. Keane, supra, 99 F.3d 494-95.

       Although we leave to another day the question of whether criminal defense counsel has a duty to inform a defendant of an offer to plea bargain, defense counsel in this jurisdiction would do well to note the dicta of the United States Court of Appeals for the Second Circuit: “There seems to be no Second Circuit decision dealing with the precise question of a criminal defense lawyer’s duty when a defendant’s best interests clearly require that a proffered plea bargain be accepted, but the defendant, professing innocence, refuses to consider the matter. This lack of specific decision undoubtedly arises from the circumstances that such duty is so well understood by lawyers practicing in this Circuit that the question has never been litigated.’’ Boria v. Keane, supra, 99 F.3d 496; see also Cullen v. United States, 194 F.3d 401 (2d Cir. 1999); compare Purdy v. United States, 208 F.3d 41, 45 (2d Cir. 2000) (counsel must steer course between “the Scylla of inadequate advice and the Charybdis of coercing a plea”).

       In his principal brief, the petitioner concedes that there is no precedent for his claim on appeal to this court: “Although the [United States Court of Appeals for the] Second Circuit and the courts of this state have yet to conclude that counsel has a duty to convey to a client a prosecutor’s willingness to bargain, that duty flows naturally and necessarily from Boria and its progeny and related cases.”