text:
    STATE OF CONNECTICUT v. SHELVONN JONES
    (AC 33484)
    Lavine, Beach and Alvord, Js.
    Argued September 12
    officially released December 11, 2012

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David Holzbach, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Shelvonn Jones, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant claims that (1) prosecutorial impropriety deprived him of his right to a fair trial and due process of law, (2) the court’s instruction to the jury improperly broadened the initial aggressor doctrine and deprived him of his right to assert a defense of self-defense by failing to instruct the jury (a) to analyze the complainant’s perceptions from the perspective of a reasonable person, and (b) that a person cannot become an initial aggressor based on words alone, and (3) the court improperly denied his motion to suppress evidence of a knife and thus deprived him of his right to be free from unreasonable seizures. We agree with the defendant’s first claim and therefore reverse the judgment of the trial court and remand the case for a new trial. We also address the third claim because it is likely to arise at a new trial; see State v. Gonzalez, 302 Conn. 287, 290, 25 A. 3d 648 (2011); and conclude that the defendant’s right to be free from unreasonable seizures was not violated.

The jury reasonably could have found the following facts. On June 9, 2009, George Harris, the complainant, was walking home in the early evening when the defendant approached him, near a bus terminal. The defendant called out, “What’s up, Old School?” and displayed a folding utility knife with its blade extended. Harris did not respond, but continued walking home. The two men went their separate ways.

Ninety minutes later, Harris went for a bicycle ride during which he again encountered the defendant. The defendant was intoxicated. The men approached one another, and Harris saw that the defendant had drawn his utility knife with its blade extended. Harris jumped off his bicycle and stood face-to-face with the defendant, in the middle of the street, to “ask him what . . . the problem was.” The defendant then began “slashing” at Harris. Harris retreated at first, and the defendant cut him across his back. Harris mounted his bicycle, and then turned around and knocked the defendant prone using the front of the bicycle. The defendant cut Harris across the chest as Harris charged. Harris then jumped off his bicycle and wrestled with the defendant. He pulled the defendant’s sweatshirt over the defendant’s head, binding his arms and subduing him. The altercation blocked traffic. Seeing observers using their cell phones, Harris then went home, on foot, because he was afraid of being arrested.

Police responded to the scene on the basis of reports of a street robbery and found the intoxicated defendant. Police initially considered the defendant to be a victim and gave him a ride home for his safety. Shortly after that, police received a radio report that the defendant may be a suspect in an assault with a knife. Officers went to his home and arrested him. Additional facts are set forth as necessary.

I

The defendant’s first claim is that prosecutorial improprieties deprived him of his right to a fair trial under the due process clause of the fourteenth amendment to the federal constitution. Given the particular facts of this case, we agree with the defendant.

We reiterate the relevant legal standards. “In analyzing claims of prosecutorial impropriety, [a reviewing court] engage [s] in a two step analytical process. . . . [A reviewing court] first examine [s] whether prosecu-torial impropriety occurred. . . . Second, if an impropriety exists, [a reviewing court] then examine [s] whether it deprived the defendant of his due process right to a fair trial.” (Citations omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978 (2007). “[T]he burden is on the defendant to show . . . that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.” State v. Payne, 303 Conn. 538, 563, 34 A.3d 370 (2012). “[W]hen a defendant raises a general due process claim, there can be no constitutional violation in the absence of harm to the defendant caused by denial of his right to a fair trial. The constitutional analysis and the harm analysis in such cases are one and the same.” Id., 563-64.

“[A] determination of whether the defendant was deprived of his right to a fair trial . . . must involve the application of the factors set out by [our Supreme Court] in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). . . . Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 573, 849 A.2d 626 (2004). “The question of whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.” (Internal quotation marks omitted.) State v. Angel T., 292 Conn. 262, 287, 973 A.2d 1207 (2009).

There is a “presumption that counsel is competent and capable of acting on behalf of the defendant in matters concerning trial management”; State v. Kitchens, 299 Conn. 447, 486-88, 10 A.3d 942 (2011); and “[w]hen defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 575. “[As such] counsel’s failure to object at trial, while not by itself fatal to a defendant’s claim, frequently will indicate . . . that the challenged comments do not rise to the magnitude of constitutional error. . . . [P]rosecutorial [impropriety] claims [are] not intended to provide an avenue for the tactical sandbagging of our trial courts, but rather, to address gross prosecutorial improprieties that . . . have deprived a criminal defendant of his right to a fair trial.” (Emphasis in original; internal quotation marks omitted.) Id., 575-76.

We “are mindful ... of the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court . . . but is also a high public officer . . . [who] usually exercises great influence upon jurors.” (Internal quotation marks omitted.) Id., 571-72. Even so, “[t]he touchstone of due process analysis in cases of alleged prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor.” Id., 571.

“[I]t is a well established evidentiary rule that it is improper to ask a witness to comment on another witness’ veracity.” (Internal quotation marks omitted.) Id., 580. “Several reasons underlie th[is] prohibition .... First, it is well established that determinations of credibility are for the jury, and not for witnesses. . . . Consequently, [such] questions . . . invade the province of the jury. . . . Moreover, [a]s a general rule, [such] questions have no probative value and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence. . . .

“Second, [such] questions . . . create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the witness has lied. . . . This risk is especially acute when the witness is a government agent in a criminal case. ... A witness’ testimony, however, can be unconvincing or wholly or partially incorrect for a number of reasons . . . .” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 707-708, 793 A.2d 226 (2002).

A

Impropriety

The defendant claims that a number of the prosecutor’s statements, questions and arguments during the course of the trial deprived him of a fair trial. The state acknowledges that four of the prosecutor’s remarks were improper. The conceded improprieties consist of three questions on cross-examination compelling the defendant to comment on the veracity of the complainant and police officers and a reference to these questions in closing argument.

The three questions were as follows: (1) “[A]ll this testimony from Mr. Harris then about the bus stop; that was a he?” (2) “And, ah the police officers’ testimony is a he?” (3) “So, what Officer Matthew Georgouhs testified to, today is all false?” In closing arguments, the prosecutor paraphrased the defendant’s testimony as “I never said that, the police are lying apparently.”

The state agrees with the defendant that these four statements were improper. In light of the “conce[ssion] . . . [i]t is not necessary, therefore, for [a reviewing court] to determine whether these particular questions were, in fact, improper.” State v. Stevenson, supra, 269 Conn. 580; see also State v. Thompson, 266 Conn. 440, 461-62, 832 A.2d 626 (2003). We agree that the statements violate the principles set forth in State v. Singh, supra, 259 Conn. 693. We do not address whether any of the prosecutor’s other remarks were improper because we conclude that in the context of this particular trial these four incidents of impropriety substantially prejudiced the defendant.

B

Due Process

We turn to analyze whether the conceded improprieties substantially prejudiced the defendant and deprived him of his due process right to a fair trial. See State v. Stevenson, supra, 269 Conn. 672. Although the state concedes that four statements were improper, it claims that these statements did not so prejudice the defendant as to deprive him of a fair trial and due process of law. Specifically, the state claims that these improprieties were not prejudicial in the context of the state’s larger argument that the defendant had a motive to lie, which is a permissible argument under State v. Thompson, supra, 266 Conn. 466-67. Given the particular facts of this case, we do not agree.

We analyze the Williams factors in the context of the entire trial. Although we consider each Williams factor; see footnote 14 of this opinion; we begin by analyzing the three most pertinent factors in this case: the severity of the improprieties, the centrality of the improprieties to the critical issues of the case and the strength of the state’s case.

In considering the severity of the improprieties, we give considerable weight to the fact that the defendant did not object to the improprieties. As noted, the absence of an objection or request to charge is a strong indicator that any improprieties did not seriously jeopardize the defendant’s right to a fair trial. State v. Stevenson, supra, 269 Conn. 576-76. Even so, “[bjeyond defense counsel’s failure to object, in determining the severity of prosecutorial impropriety, [a reviewing court] lookfs] to whether the impropriety was blatantly egregious or inexcusable. See State v. Thompson, supra, 266 Conn. 480.” State v. Fauci, supra, 282 Conn. 51. However inexcusable it may be for a prosecutor to ask a defendant to comment on the veracity of the complainant and police officers, our Supreme Court has frequently ruled, though not invariably concluded, that a Singh violation is not so severe for the purpose of Williams analysis where a defendant does not object. See State v. Angel T., supra, 292 Conn. 288-89; State v. Stevenson, supra, 593-95; but see State v. Ceballos, 266 Conn. 364, 415, 832 A.2d 14 (2003) (Singh violation was “sufficiently egregious to overcome the suggestion that defense counsel did not think it was unfair at the time”); State v. Singh, supra, 259 Conn. 723 (“[although many of the improprieties were not serious . . . the questions and comments about witnesses’ veracity” constituted “notable exceptions”); cf. State v. Warholic, 278 Conn. 354, 399, 897 A.2d 569 (2006) (objection to Singh violation not dispositive of severity).

In light of the specific facts of this case, however, “the significance of the state’s attorney’s improper conduct increases considerably.” State v. Ceballos, supra, 266 Conn. 417. First, the defendant was compelled to comment directly on the veracity of police witnesses. “Th[e] risk [Singh violations pose] is especially acute when the witness is a government agent in a criminal case.” State v. Singh, supra, 259 Conn. 708. “Indeed, Connecticut courts routinely instruct juries that they should evaluate the credibility of a police officer in the same way that they evaluate the testimony of any other witness”; State v. Thompson, supra, 266 Conn. 469; no doubt to check the “heightened credibility that government agents are afforded by some jurors.” (Internal quotation marks omitted.) United States v. Forrester, 60 F.3d 62, 63 (2d Cir. 1995). Second, the defendant was compelled to comment directly on the veracity of the complainant. This elevated “the risk that the jury may conclude that, in order to acquit the defendant, it must find that the witness has lied.” State v. Singh, supra, 708. Our Supreme Court has recognized that these dangers “[involve] a distortion of the government’s burden of proof. [Id., 708, 709].” (Internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 580-81.

Third, the prosecutor subtly but unmistakably mis-characterized the defendant’s responses in a manner that “emphasized the improper nature of the questions he had forced [the defendant] to answer.” United States v. Richter, 826 F.2d 206, 209 (2d Cir. 1987). In closing argument, the prosecutor summed up the defendant’s testimony by stating: “Things are unraveling; one story won’t work now. So what’s the answer; the answer is, ‘I never said that, the police are lying apparently.’ ” But in responding to the prosecutor’s improper question, the defendant specifically did not testify that police were lying. He did testify that the complainant lied. And he did testify that one officer’s testimony was “false” — but that is to be distinguished from “lying,” which means a deliberate falsehood. “A witness’ testimony . . . can be . . . wholly or partially incorrect for a number of reasons without any deliberate misrepresentation being involved . . . such as misrecollection, failure of recollection or other innocent reason.” (Citation omitted; internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 708; see also United States v. Richter, supra, 826 F.2d 208-10. The prosecutor’s mischaracteiization of the defendant’s testimony elevated the risk of “preclud[ing] the possibility that the witness’ testimony conflict[ed] with that of the defendant for a reason other than deceit.” State v. Singh, 259 Conn. 710.

The present case turns on the centrality of the impropriety to the state’s case considered in light of the relative weakness of the evidence. The only evidence the state adduced as to who initiated the altercation was the complainant’s testimony. The parties agree that this case entirely turned on credibility. The state argued this point with particular force both throughout its brief and at oral argument. There is no question that the conceded improprieties go directly to the credibility of the defendant as compared to the complainant and police officers, nor is there any debate that credibility was the central issue at trial. The complainant’s rendition of events stood at odds with the testimony of the defendant, who maintained that it was the complainant who assaulted him. The reasoning in State v. Warholic, supra, 278 Conn. 354, guides our analysis of this Williams factor. In Warholic, the state conceded that credibility was the central issue because its case relied entirely on the testimony of the victim. Id., 397. Our Supreme Court concluded that the “Singh violation . . . impacted the crucial issue in the case.” Id.; see also State v. Angel T., supra, 292 Conn. 290 (Singh violations were central where case was “credibility contest between the victim and the defendant”); State v. Ceballos, supra, 266 Conn. 416-17 (same).

We turn to the strength of the state’s case. The case turned entirely on the credibility of the complainant against that of the defendant. The state did not present any conclusive physical evidence or independent testimony that was “not affected by the prosecutorial improprieties.” State v. Bell, 283 Conn. 748, 784, 931 A.2d 198 (2007). Our Supreme Court has ruled that a case turning entirely on the credibility of the victim is not strong. State v. Angel T., supra, 292 Conn. 292-94 (state’s case relying on testimony of minor victim and testimony of two corroborating witnesses “was not sufficiently strong so as to not be overshadowed by the impropriety”); State v. Warholic, supra, 278 Conn. 397 (“state’s case was not strong because it lacked corroborating physical evidence”); State v. Beaulieu, 274 Conn. 471, 482-83, 876 A.2d 1155 (2005) (“state’s case . . . was not strong” where victim’s credibility was critical issue); State v. Ceballos, supra, 266 Conn. 416 (“when the prosecution’s case rests on the credibility of the victim, it is ‘not particularly strong’ ”); State v. Alexander, 254 Conn. 290, 308, 755 A.2d 868 (2000) (“state’s case was not particularly strong in that it rested on the credibility of the victim” [internal quotation marks omitted]). The present case does not have substantial evidence supporting a conviction that is unaffected by the Singh violations, which could ameliorate their prejudice, such as a confession; State v. Ritrovato, 280 Conn. 36, 67, 905 A.2d 1079 (2006); testimony of accomplices; State v. Fauci, supra, 282 Conn. 53-54; testimony of eyewitnesses other than the victim; State v. Bell, supra, 784; or physical evidence corroborating the complainant’s testimony over the defendant’s testimony; State v. Thompson, 266 Conn. 481-82. Accordingly, we conclude that “the state’s evidence, while sufficient to result in a conviction, was not particularly strong. ” State v. Singh, supra, 259 Conn. 724.

The other three Williams factors collectively carry less weight given the facts in this case. We conclude that the improprieties were not invited, no curative instructions were given because they were not requested, and the improprieties were neither pervasive nor confined to a discrete portion of the trial.

Having reviewed all of the Williams factors in the context of the trial as a whole, we conclude that there is at least a reasonable likelihood that the verdict would have been different had the improprieties not occurred. State v. Angel T., supra, 292 Conn. 287. The present case falls within a line of cases in which our Supreme Court has found that prosecutorial impropriety resulted in substantial prejudice depriving a defendant of a fair trial and due process, even in the absence of an objection or request for specific curative instructions from a defendant. As in the present case, in each of these cases, the defendant failed to object to or request curative instructions for Singh violations, the state’s case was not strong and amounted to a credibility contest between the defendant and one or two of its witnesses, the impropriety augmented the state’s case on a central issue of credibility rather than a peripheral point, the impropriety was repeated on cross-examination and in closing arguments, and the impropriety was uninvited. See id., 288-95; see also State v. Ceballos, supra, 266 Conn. 407-17; State v. Singh, supra, 259 Conn. 723-25; cf. State v. Alexander, supra, 254 Conn. 300-308 (improprieties went to credibility though not Singh violations). In cases that would otherwise present a similar Williams analysis, our Supreme Court has not found substantial prejudice where one or more of these Williams factors is absent. See, e.g., State v. Fauci, supra, 282 Conn. 53-54 (state’s case did not wholly rest on testimony of victims); State v. Ritrovato, supra, 280 Conn. 67 (state’s case was strong in light of signed confession); State v. Warholic, supra, 278 Conn. 404 (only one Singh violation on central issue of credibility and other improprieties were not central); State v. Stevenson, supra, 269 Conn. 591-98 (defense invited improprieties, only two instances of impropriety, and independent physical evidence substantiated state’s allegations); cf. United States v. Sullivan, 85 F.3d 743, 750 (1st Cir. 1996) (questions “induc[ing] a witness to say another witness lied on the stand” did not cause substantial prejudice as “the error was on a minor point” and “evidence of guilt . . . was very strong”).

For a number of reasons, we are not persuaded by the state’s argument that the prosecutor’s statements were not prejudicial in the context of the state’s larger, permissible argument that the defendant had a motive to he. First, in Singh, our Supreme Court “expressly rejected ... an exception to the prohibition of questions and comments on witnesses’ veracity when the defendant’s testimony is the opposite of or contradicts the testimony of other witnesses, thereby presenting a basic issue of credibility .... [State v. Singh, supra, 259 Conn.] 710.” (Internal quotation marks omitted.) State v. Ceballos, supra, 266 Conn. 380-81. Second, although the argument that a defendant has a motive to lie is permissible under State v. Thompson, supra, 266 Conn. 466-67, “[t]he state’s objective of ‘highlighting’ [a motive to testify untruthfully] may be accomplished by other, proper means.” State v. Singh, supra, 259 Conn. 711. Third, the essence of the state’s argument goes to the severity of the improprieties, but the improprieties were not so severe in the cases that govern our analysis. See State v. Angel T., supra, 292 Conn. 288-96; State v. Singh, supra, 723-25; State v. Alexander, supra, 254 Conn. 300-308; cf. State v. Ceballos, supra, 407-17 (Singh violations and other impropriety overcame absence of defendant’s objection to improprieties).

We cannot say there is no reasonable likelihood that the verdict would have been different absent the improprieties. State v. Angel T., supra, 292 Conn. 287. Therefore, we conclude that the defendant is entitled to a new trial.

II

We turn finally to the defendant’s claim that the court improperly denied his motion to suppress evidence of the knife, depriving him of his rights under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut to be free from unreasonable seizures. We conclude that the court properly denied the motion in reliance on the consent exception to the warrant requirement.

“[0]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [or seizure] that is conducted pursuant to consent.” (Internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 699, 817 A.2d 76 (2003). “Whether there was valid consent ... is a factual question that will not be lightly overturned on appeal. . . . The state has the burden to establish the voluntariness of the consent, and the trial court’s finding in that regard will not be upset by [a reviewing] court unless clearly erroneous.” (Citations omitted; internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 314-15, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).

The following additional facts adduced at the hearing on the defendant’s motion to suppress evidence are relevant. When police initially responded to the scene of the altercation, they considered the defendant to be a victim. When the defendant asked for a ride home, responding Officer Michael Reo accommodated him in the interest of the defendant’s safety as the defendant appeared intoxicated. Before the defendant entered the police cruiser, Reo informed the defendant he would conduct a patdown as part of standard police procedure for anyone not under arrest entering a police cruiser. The defendant then told Reo about the utility knife in his possession and handed it to Reo. At the hearing, defense counsel agreed that the defendant voluntarily handed the knife to the officer. When Reo and the defendant arrived at the defendant’s home, Reo was concerned for the defendant’s safety, and informed the defendant that he could retrieve the knife from the police department when “he sobered up.” There was no evidence at the hearing that the defendant had any objection to that plan. Less than an hour later, Reo learned from a radio transmission that the defendant was a suspect. Sometime after that, Reo processed the knife as evidence at police headquarters.

The court found that the defendant consented and handed the knife over voluntarily, and that police did not exceed the scope of that consent. See State v. Cobb, supra, 251 Conn. 314-16. The record supports this finding, which is not clearly erroneous. Therefore, the defendant’s claim fails.

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

In this opinion the other judges concurred.

       The defendant was sentenced to four years and nine months of incarceration. The defendant was found not guilty of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2) and illegal possession of marijuana in violation of General Statutes § 21a-279 (c).

       In light of our decision to reverse the conviction, we do not reach the defendant’s claim that the court’s instruction to the jury improperly broadened the initial aggressor doctrine.

       In the alternative, the defendant claims we should reverse the court in the exercise of our supervisory powers over the administration of justice. We need not reach this claim.

         Although the defendant did not object to these statements, review is appropriate under State v. Stevenson, 269 Conn. 563, 573-75, 849 A.2d 626 (2004) (when improprieties are found, appellate court “must” review regardless of whether defendant objected).

       Specifically, the defendant claims that the prosecutor improperly vouched for witnesses in closing argument, referred to facts outside the record, displayed frequent and gratuitous sarcasm conveying disdain, referred to the defendant’s exercise of his right to attend his own trial, and made impermissible arguments about the defendant’s credibility as compared to other witnesses.

       The Assistant State’s Attorney cross-examined the defendant as follows:
      “[Assistant State’s Attorney]: Do you make change for people so that they can buy narcotics on the street?
      “[Defendant]: What they do—
      “[Defense Counsel]: Objection; speculation as to—
      “The Court: Sustained.
      “[Assistant State’s Attorney]: Your Honor, that’s — was direct testimony
      “The Court: Sustained.
      “[Assistant State’s Attorney]: Mr. Jones, did Mr. Harris ask you for change so that he could get narcotics?
      “[Defendant]: Yes, he did.
      “[Assistant State’s Attorney]: This is after you told him to ‘F’ off in front of the grocery store earlier that night?
      “[Defendant]: Yes, it is.
      “[Assistant State’s Attorney]: Now, all this testimony from Mr. Harris then about the bus stop; that was a lie?
      “[Defendant]: Yes, it was.
      “[Assistant State’s Attorney]: And, all the police officers’ testimony is a lie?
      “[Defendant]: I didn’t say that. What part of their testimony?
      “[Assistant State’s Attorney]: The part of the testimony that contradicts everything about a robbery. Mr. Harris, I’m sorry, Mr. Jones, isn’t it true that your whole story is made up to fit the fact that you were caught by the police before you could get away from the scene?
      “[Defense Counsel]: Objection as to the form of the question.
      “The Court: Overruled, it’s cross-examination. You can answer the question.
      “[Defendant]: No, that’s not true.” (Emphasis added.)

       The Assistant State’s Attorney cross-examined the defendant as follows:
      “[Assistant State’s Attorney]: Mr. Jones, it’s your testimony that you didn’t have any marijuana?
      “[Defendant]: No sir, I did not have any marijuana
      “[Assistant State’s Attorney]: So, what Officer Georgoulis testified to today is all false1!

      “[Defendant]: Yes, sir.
      “[Assistant State’s Attorney]: And, everything that’s missing from the reports, such as your ipjuries, the officers saying that you said you were trying to buy drugs, the fact that you claim you told them about the incident earlier on Spring Street, all that missing information is—
      “[Defendant]: Not all of it’s missing because they got the — they got in the report where I told them that he tried to — he approached me for crack cocaine. It’s in the — it’s in the report, so all that information is not missing.” (Emphasis added.)

       In his closing argument, the Assistant State’s Attorney stated as follows: “I ask you to . . . look at the way these witnesses testified; think about whether or not any of them have reasons to alter their testimony or falsely testify before the court. The officers have nothing to gain. [The complainant] is not gonna gain anything. He’s not trying to avoid any kind of criminal charges; none were ever filed because the police found there weren’t any to be charged against [the complainant]. What we do have is [the defendant], who has every reason in the world not to want to agree with the — the correct factual scenario. ... So, he started concocting his version of the events and his version became a robbery where he’s the victim ....
      * * *
      “[The defendant], before he was able to create this story, even told Officer Reo, I was in the area to buy marijuana; ooh, now that’s a bad statement when two hours later the police are arresting him, and all of a sudden he’s got a bag of marijuana in his pocket. . . .
      “Things are unraveling; one story won’t work now. So, what’s the answer; the answer is, I never said that, the police are lying apparently.

      “[The defendant] then has to explain, hmmm, how I’m gonna, you know, how I’m gonna say I couldn’t just run away from [the complainant], who was coming after me.” (Emphasis added.)

       The following exchange occurred during the Assistant State’s Attorney’s cross-examination of the defendant:
      “ [Assistant State’s Attorney]: And, all the police officers’ testimony is a lie?
      “[Defendant]: I didn’t say that. What part of their testimony?”

       The following exchange occurred during the Assistant State’s Attorney’s cross-examination of the defendant:
      “[Assistant State’s Attorney]: Now, all this testimony from Mr. Harris then about the bus stop; that was a lie?
      “[Defendant]: Yes, it was.”

       The following exchange occurred during the assistant state’s attorney’s cross-examination of the defendant:
      “[Assistant State’s Attorney]: So, what Officer Georgoulis testified to today is all false?
      “[Defendant]: Yes, sir.”

       See American Heritage College Dictionary (1981) p. 473 (“[FJalse” is defined as: “Contrary to fact or truth; without grounds; incorrect.”); id., p. 754 (“ [LJie” is defined as: “A false statement or piece of information deliberately presented as being true .... To present false information with the intention of deceiving.”).

       The defendant’s account of events is abbreviated as follows. The defendant had been drinking very heavily. In the first encounter, the complainant asked the defendant whether he sold crack cocaine. The defendant told the complainant to leave him alone, and the complainant took offense and left. The defendant did not produce his knife at that time. In the second encounter, the complainant approached the defendant and dismounted his bicycle. The complainant asked the defendant whether he could make change for a fifty dollar bill. In order to induce the complainant to leave, the defendant agreed. He gave the complainant two twenty dollar bills, but in his inebriated state could not find the other bills to make change. The complainant kept the money. A scuffle ensued, during which the complainant threw his bicycle at the defendant, knocking him prone. The defendant drew a knife in a failed attempt to frighten the complainant, and inadvertently cut him during the fight. The complainant subdued the defendant by binding him up in his own sweatshirt, and the complainant ran off at the sound of approaching police cruisers. The defendant sustained wounds to his leg and hands.

       Although the strength of the state’s case, the centrality of the improprieties and the severity of the improprieties propels our analysis, we give due consideration to the other Williams factors. First we consider whether the improprieties were invited. The defendant contends that defense counsel did not invite the improprieties. The state has not presented arguments to the contrary. After our review of the record, we agree with the defendant that the improprieties were not invited.
      We next consider curative measures. Because the defendant did not file a request to charge or otherwise ask for curative instructions specific to Singh violations, the only curative measures consisted of the standard jury instructions that the court gave at the end of evidence. “[A] general instruction does not have the same curative effect as a charge directed at a specific impropriety, particularly when the [impropriety] has been more than an isolated occurrence.” State v. Ceballos, supra, 266 Conn. 413. Even so, “[w]hen defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 575. Where a defendant does not request specific curative instructions in response to an impropriety, our Supreme Court generally does not rule that standard instructions were deficient for the purpose of Williams analysis. See id., 597-98; see also State v. Angel T., supra, 292 Conn. 291-92; State v. Bell, supra, 288 Conn. 783-84; State v. Warholic, supra, 278 Conn. 402-404; but see State v. Ceballos, supra, 417 (“not[ing] the general lack of curative measures”).
      Finally, we consider the frequency of the improprieties. The improprieties were three questions and a statement. They occurred at two distinct points on cross-examination and again during closing argument. When improprieties occur both during cross-examination of a defendant and in closing argument, our Supreme Court has concluded that such improprieties are “not isolated.” State v. Warholic, supra, 278 Conn. 398 (“the instances of prosecutorial [impropriety] were not isolated because they occurred during both the cross-examination of the defendant and the prosecutor’s closing and rebuttal arguments”); State v. Ceballos, supra, 266 Conn. 411 (“[P]rosecutorial improprieties that occurred . . . were not just isolated instances. Indeed, they occurred during both the questioning of witnesses and during argument.”); but see State v. Ritrovato, supra, 280 Conn. 66-67 (one Singh violation and brief mention of it in closing argument constituted improprieties that were “limited in frequency”); State v. Stevenson, supra, 269 Conn. 593-95 (one Singh violation on cross-examination and another impropriety in closing did not constitute frequent improprieties). Accordingly, we conclude that while the improprieties in the present case were not pervasive, neither were they confined to a discrete portion of the trial.

       The defendant also claims on appeal that the police initially seized the knife pursuant to the community caretaking function exception to the warrant requirement, but that the seizure became impermissible when its purpose changed and police did not obtain a warrant. This argument does not apply to the present case. The court based its decision to deny the defendant’s motion on the defendant’s consent, not on the community care-taking exception to the warrant requirement.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    CYNTHIA ORTIZ v. THE METROPOLITAN DISTRICT ET AL.
    (AC 33988)
    Beach, Bear and Espinosa, Js.
    Submitted on briefs September 17
    officially released December 11, 2012

      Frank J. McCoy, Jr., and Alexander J. Sarris filed a brief for the appellant (plaintiff).

      Jack G. Steigelfest and Thomas P. Celia filed a brief for the appellee (defendant the Metropolitan District).
   Opinion

BEAR, J.

The plaintiff, Cynthia Ortiz, appeals from the judgment of the trial court dismissing her cause of action against the defendant, the Metropolitan District (district), for failure to comply fully with the notice provision of General Statutes § 13a-149. On appeal, the plaintiff claims that the court’s dismissal was improper because (1) her complaint also sounded in common-law negligence against the district and (2) the notice she provided to the district was sufficient to comply with § 13a-149. After thoroughly reviewing the record in this case and all relevant case law, we conclude that § 13a-149 provides the exclusive remedy in this municipal highway defect case and that the notice provided to the district by the plaintiff was insufficient as a matter of law. We further conclude that we are bound by the decision of our Supreme Court in Ferreira v. Pringle, 255 Conn. 330, 354, 766 A.2d 400 (2001), holding that the trial court does not have subject matter jurisdiction in a case controlled by § 13a-149 if the plaintiff fails to provide sufficient notice to the defendant municipality. Accordingly, we affirm the judgment of the trial court.

In her complaint, the plaintiff alleges, in relevant part, that the district owned and controlled a water line and gate box cover at the intersection of Main and Pratt Streets in Hartford, and that on or about April 13, 2009, the cover was off, exposing a hole in the middle of the street. The plaintiff further alleges that, as she was walking across the street, she stepped into the hole, fell and suffered serious injuries to her leg, ankle, shin, toe, tibia, neck, shoulder and back.

On June 14,2011, the district filed a motion to dismiss, alleging that the court lacked subject matter jurisdiction over this case because the plaintiffs notice to the district was insufficient, failing to meet the requirements of § 13a-149. The plaintiff objected, arguing, in part, that the notice she provided to Hartford was sufficient to satisfy the notice requirements under § 13a-149 and that she did not need to provide the same detailed notice to the district. On September 13,2011, the court granted the district’s motion to dismiss, concluding that the plaintiffs exclusive remedy was pursuant to § 13a-149, that it lacked subject matter jurisdiction because the plaintiffs notice to the district was insufficient and that the statutory savings provision did not apply because the notice was “devoid of any description of the injury suffered by the plaintiff whatsoever.” This appeal followed.

Initially, we conclude that it is necessary to discuss the court’s determination that it lacked subject matter jurisdiction over the plaintiffs cause of action against the district because the plaintiffs notice did not comply fully with § 13a-149. Although we are aware of other decisions of our Supreme Court, some of which are discussed in footnote 5 of this opinion, that do not treat the question of insufficient notice in a § 13a-149 action as a deprivation of the trial court’s subject matter jurisdiction, and that do not determine that a motion to dismiss is the proper procedural vehicle to raise the issue of insufficient notice, we conclude that we are bound by our Supreme Court’s decision in Ferreira v. Pringle, supra, 255 Conn. 354. But see Vejseli v. Pasha, 282 Conn. 561, 573 n.11, 923 A.2d 688 (2007).

The plaintiff claims that her cause of action against the district sounds in common-law negligence, and, therefore, the trial court improperly dismissed it. We disagree and conclude that the court’s holding that the plaintiffs exclusive remedy in this case is under the highway defect statute, § 13a-149, is fully supported by our case law. See Ferreira v. Pringle, supra, 255 Conn. 340 (action under §13a-149 is plaintiffs exclusive remedy against municipality for injury resulting from defective highway); Pratt v. Old Saybrook, 225 Conn. 177, 180, 621 A.2d 1322 (1993) (“an action under the highway defect statute, § 13a-149, is a plaintiffs exclusive remedy against a municipality or other political subdivision for damages resulting from injury to any person or property by means of a defective road or bridge” [internal quotation marks omitted]); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991) (same).

The plaintiff next claims that the notice she provided to the district was sufficient to satisfy § 13a-149. This issue was discussed fully by our Supreme Court in Martin v. Plainville, 240 Conn. 105, 108, 689 A.2d 1125 (1997). As in the present case, the plaintiff in Martin, in an action also brought pursuant to § 13a-149, provided written notice to the municipality that stated that the plaintiff “ ‘was injured ....”’ Id., 107. Our Supreme Court held that such notice lacked “ ‘a general description’ ” of the plaintiffs injuries as a matter of law; id., 108; and, despite a vigorous dissent by Justice Berdon; see id., 114-19; because the notice failed to set forth any description of the injuries sustained, rather than an inaccurate description, the cause of action could not be salvaged by the savings clause contained in § 13a-149. Id., 113; see also Marino v. East Haven, 120 Conn. 577, 578, 580-81, 182 A. 225 (1935) (holding that notice provided by plaintiff that alleged she “ ‘was injured’ ” as result of fall was insufficient, as matter of law, and precluded invocation of savings clause). Accordingly, the plaintiffs claim has no merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although not all counts of the complaint were resolved at the time this appeal was filed, the dismissal of the plaintiffs cause of action against the district is a final judgment because it disposed of the plaintiffs only claim against the district. See Practice Book § 61-3. The city of Hartford (Hartford) and the department of transportation (department) also were defendants in the trial court. Before this appeal was taken, however, the plaintiff withdrew her cause of action against the department. Hartford remains a defendant in the trial court but is not a party to this appeal.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       The plaintiffs notice to the district, a copy of which was attached to the plaintiffs complaint, provides the following:
      “Re: Date of Accident -4/13/2009
      “Claimant -Cynthia Ortiz
      “Premises -Main St in the area of Pratt St in Hartford CT
      “Dear Sir/Madam:
      “I represent the above named claimant who was injured while crossing Main St in the area of Pratt St in Hartford, CT and fell into a hole owned and/or controlled by you on the above date.
      “As a result of the defective condition of these premises my client has suffered injuries. My client will be making a claim for damages. Please refer this letter [to] your insurance company so as to put them on proper notice of this claim.
      “We are requesting, at this time, for you to save all evidence that you now possess or in the future possess of the facts and scene of this accident including but not limited to pictures of the scene, video, vehicles, area, people and/or products involved in this accident, statements taken and any electronic data All electronic data should be preserved in its original form. If you have any questions with regard to what materials we are asking that you preserve, or if you have any objections to the preservation of said material, please contact me so that we can construct a mutually acceptable agreement with regard to the preservation of the above data.
      “If an accident report was generated with reference to this accident, please provide me with a copy. Also, if your premise[s] has a medical payments policy, please contact me with the appropriate paperwork necessary to initiate a claim for medical payments. If I do not hear from you or your insurance company in [thirty] days from receipt of this letter, I will assume you do not have insurance and proceed accordingly.”

       Citing to our Supreme Court’s decision inRockyHill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 450, 280 A.2d 344 (1971), the court also found that the district is a municipal coiporation.

       In Vejseli v. Pasha, supra, 282 Conn. 573 n.ll, our Supreme Court explained that case law often conflates the subject matter jurisdiction question that flows from the state’s sovereign immunity with the liability question that flows from a municipality’s governmental immunity, albeit not in the context of § 13a-149. The court explained: “In support of their claim that governmental immunity includes immunity from suit, the defendants rely on Pane v. Danbury, [267 Conn. 669, 677, 841 A.2d 684 (2004)], wherein we concluded, inter alia, that the plaintiff could not bring an invasion of privacy action against her city employer, because ‘[t]he plaintiff ha[d] not cited any statute abrogating governmental immunity to the tort of invasion of privacy. ’ The defendants . . . specifically rely on our statement in Pane v. Danbury, supra, 678, that ‘count one did not state a cause of action and, even if it did, the plaintiff has not cited any statute allowing her to sue the city for invasion of privacy.’ . . . Pane is inapposite because it did not address specifically the distinction between immunity from suit and immunity from liability with respect to municipalities. Moreover, the defendants read this language out of context, as the language immediately preceding it quotes Spears v. Garcia, [263 Conn. 22, 28, 818 A.2d 37 (2003)], for the proposition that ‘[t]his court has previously stated that [a] municipality itself was generally immune from liability for its tortious acts at common law. ... We have also recognized, however, that governmental immunity may be abrogated by statute. . . . Thus, the general rule developed in our case law is that a municipality is immune from liability for [its tortious acts] unless the legislature has enacted a statute abrogating that immunity.’ . . . Pane v. Danbury, supra, 677.
      “We similarly disagree with the defendants’ reliance on language in certain Appellate Court decisions stating that: ‘It is well established that the state or a city is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases. See Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). Thus, in a case where a government is the defendant, courts do not have subject matter jurisdiction unless such jurisdiction is statutorily conferred. The legislature, however, has carved out certain statutory exceptions to the general rule of sovereign immunity and allowed governmental entities to be sued under certain limited circumstances. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979)_’ Witczak v. Gerald, 69 Conn. App. 106, 110-11, 793 A.2d 1193 (2002), quoting Brennan v. Fairfield, 58 Conn. App. 191, 195, 753 A.2d 396 (2000), rev’d on other grounds, 255 Conn. 693, 768 A.2d 433 (2001); see Novicki v. New Haven, 47 Conn. App. 734, 738, 709 A.2d 2 (1998) (same); see also Mazurek v. East Haven, 99 Conn. App. 795, 797, 916 A.2d 90 (citing state highway defect case in support of proposition that ‘doctrine of governmental immunity . . . implicates subject matter jurisdiction and therefore must be determined in favor of the plaintiff before any of the issues in the appeal can be addressed’), cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). Although this language undoubtedly appears helpful to the defendants’ case, it also is the product of the Appellate Court’s misreading of Baker v. Ives, supra, 298, which was a case involving the state highway defect statute, General Statutes § 13a-144 and not governmental immunity as it pertains to municipalities.” Vejseli v. Pasha, supra, 282 Conn. 573 n.11.
      We are mindful that such confusion in the context of § 13a-149 also seems apparent. For example, in Ferreira v. Pringle, supra, 255 Conn. 354, our Supreme Court held that because the plaintiff did not comply with the notice provisions of § 13a-149, the trial court lacked subject matter jurisdiction over the matter. In Salemme v. Seymour, 262 Conn. 787, 817 A.2d 636 (2003), however, there was no mention of subject matter jurisdiction. In Salemme, the trial court granted the defendant’s motion to strike on the ground that the plaintiffs § 13a-149 notice was insufficient. We affirmed the decision of the trial court; see Salemme v. Seymour, 67 Conn. App. 464, 471, 787 A.2d 566 (2001), rev'd, 262 Conn. 787, 817 A.2d 636 (2003); but the Supreme Court reversed, concluding that, although notice was insufficient, the savings clause contained in § 13a-149 was applicable. Salemme v. Seymour, supra, 262 Conn. 797.
      In Martin v. Plainville, 240 Conn. 105, 107, 689 A.2d 1125 (1997), the trial court granted the town’s motion to strike the complaint on the ground that the plaintiffs notice to the town was insufficient because it failed to include a general description of her injuries as required by the statute. We upheld the trial court’s judgment; Martin v. Plainville, 40 Conn. App. 179, 182-83, 669 A.2d 1241 (1996), aff'd, 240 Conn. 105, 689 A.2d 1125 (1997); and the Supreme Court affirmed, concluding that the notice sent to the town pursuant to § 13a-149 was defective and not salvageable by the savings provision. Martin v. Plainville, supra, 240 Conn. 107-13. Again, there was no discussion of subject matter jurisdiction; this court and the Supreme Court concluded that the trial court properly granted the town’s motion to strike, thereby implying that the trial court had subject matter jurisdiction despite the absence of proper notice under § 13a-149. See also Marino v. East Haven, 120 Conn. 577, 578, 580-81, 182 A. 225 (1935) (trial court properly granted demurrer on ground that written notice indicating plaintiff “ ‘fell and was injured’ ” was insufficient as matter of law due to lack of general description of plaintiffs iqjuries); Nicholaus v. Bridgeport, 117 Conn. 398, 401-402, 167 A. 826 (1933) (trial court properly set aside jury verdict on ground that plaintiff failed to state cause of injury in her statutory notice); Shapiro v. Hartford, 4 Conn. App. 315, 318, 494 A.2d 590 (court properly directed verdict when plaintiff failed to introduce evidence that would invoke savings clause of § 13a-149, after having failed to provide correct date of injury in notice to city in accordance with statute), cert. denied, 197 Conn. 810, 499 A.2d 61 (1985).

       The five factor test for sufficiency of notice under § 13a-149 was set forth in Martin v. Plainville, supra, 240 Conn. 109: “The statute requires that the notice contain the following five essential elements: (1) written notice of the injury; (2) a general description of that injury; (3) the cause; (4) the time; and (5) the place thereof.” Id.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JOSE ANTONIO ALVARADO
    (AC 33183)
    DiPentima, C. J., and Beach and Bishop, Js.

      Argued September 18
    officially released December 11, 2012

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Kathryn W. Bare, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Brian K. Sibley,' Sr., senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

This is an appeal from a judgment of conviction, rendered after the defendant, Jose Antonio Alvarado, pleaded guilty to the charge of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant claims that the trial court improperly denied his motion to withdraw his guilty plea and that the court should have dismissed his trial counsel and appointed substitute counsel to represent him in conjunction with his motion to withdraw his plea. We affirm the judgment of the trial court.

The following history is relevant to our discussion of the issues on appeal. On April 11, 2008, police were called to 43 North Third Street in Meriden to investigate a reported stabbing. Once there, the police determined that the defendant had been involved in an altercation with two other individuals, Seven Hawk Gailer and Ganusquuah McManus, during which the defendant stabbed Gailer, who died shortly thereafter as a result of his wounds.

Arrested and charged with murder, the defendant was represented in the Superior Court by public defender Michael Isko. The record reflects that on September 14, 2010, while jury selection was underway, the defendant entered an Alford guilty plea to the reduced charge of manslaughter in the first degree in violation of § 53a-55 (a) (1) in conjunction with a plea agreement that he would receive a sentence of twenty years incarceration, suspended after fourteen years, followed by five years of probation. The defendant’s sentencing was continued to November 12, 2010. Between the date of the defendant’s plea and the scheduled sentencing date, however, the court received a letter from the defendant in which he indicated a desire to withdraw his guilty plea and to have his lawyer dismissed from representing him. On November 12, 2010, the court noted that it had received the defendant’s letter. The defendant, as well, reiterated his request to withdraw his guilty plea and for his counsel to be dismissed. Postponing an immediate hearing on the defendant’s oral motions pending receipt of a transcript of the plea hearing, the court, Fasano, J., subsequently held a hearing on the defendant’s motions on November 19, 2010. Following the hearing, the court, Fasano, J., denied the defendant’s motions and, on December 10, 2010, sentenced the defendant in accordance with the terms of the plea agreement. This appeal followed.

The defendant claims that his motion to withdraw his guilty plea should have been granted because his plea was neither voluntary nor knowing. We disagree.

“[I]t is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. ... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . The . . . constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20].” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006). “We, therefore, require the trial court affirmatively to clarify on the record that the defendant’s guilty plea was made intelligently and voluntarily. ... In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including all relevant information concerning the sentence. . . . The defendant must also be aware of the actual value of any commitments made to him by the court . . . because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty. ... A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances. . . . [W]e conduct a plenary review of the circumstances surrounding [a] plea to determine if it was knowing and voluntary.” (Internal quotation marks omitted.) Almedina v. Commissioner of Correction, 109 Conn. App. 1, 6, 950 A.2d 553, cert. denied, 289 Conn. 925, 958 A.2d 150 (2008).

The defendant claims that his plea was not knowing and voluntary on the ground that he did not have adequate time to consider the state’s plea offer, he did not fully understand the law, his command of English was inadequate, the court should have ordered him to undergo a competency examination before accepting his plea and, finally, the court did not explain the elements of manslaughter in the first degree to him at the time of his plea. We are not persuaded by these claims.

As to the defendant’s claim regarding whether he was given an adequate opportunity to review the state’s offer, the court, Fasano, J., found at the time of the hearing on the defendant’s motion to withdraw his plea that he had been given ample opportunity while the case was pending to either go to trial or to resolve his case by plea agreement. The court specifically found that the defendant’s trial counsel had discussed the possibility of a plea to manslaughter in August with him and that he had visited the defendant at his place of incarceration on Sunday, September 12, 2010, before his plea on September 14, 2010, to discuss the specifics of the pending offer. In short, the court found, with support from the record and without material dispute from the defendant as to the time periods involved, that the defendant had an adequate opportunity to consider the plea agreement before entering his plea. We find no fault with the court’s assessment of this claim.

The defendant claims, as well, that the court should have granted his motion to withdraw his plea because he was confused, emotionally upset, unaware of the law and sufficiently unfamiliar with the English language so as to render his plea involuntary and unknowing. Other than the defendant’s assertions at the hearing on his motion to withdraw, the record lends no support to these claims. To the contrary, the record of the September 14,2010 plea canvass reflects that the court carefully canvassed the defendant to ensure that he understood not only what rights he was giving up by his plea, but also that he appreciated, as well, the consequences of his guilty plea. Additionally, at the beginning of the plea canvass and in response to the court’s question, defense counsel indicated that the services of an interpreter would not be required. The record of the colloquy between the court and the defendant during the plea proceedings reflects that the defendant had no difficulty understanding and responding to the court’s questions as they were posed to him. Finally, as to the defendant’s claim that he did not adequately understand the law, the record reflects that the court made the defendant aware, in plain language, of the rights he was giving up by pleading guilty and that the prosecutor’s recitation set forth the factual basis for the court’s acceptance of the defendant’s plea. Thus, other than the defendant’s self-serving claims in this regard, the record is devoid of any support for the defendant’s claim that he was too unfamiliar with the English language or the law or that he was too confused and emotionally upset to knowingly and voluntarily plead guilty to the charge of manslaughter in the first degree.

The defendant further claims that the court should have ordered him to undergo a competency examination before being allowed to plead guilty to manslaughter. As acknowledged by the state: “[T]he guilty plea and subsequent conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions.” State v. Johnson, 253 Conn. 1, 20, 751 A.2d 298, reconsideration denied, 254 Conn. 909, 755 A.2d 880 (2000).

The following additional procedural information is relevant to this claim. The record reflects that on July 2,2008, at the request of the defendant, the court, Dami-ani, J., ordered that he undergo a competency evaluation, and, thereafter, on August 4, 2008, pursuant to a stipulation by counsel, the defendant was found competent to stand trial. Thereafter, neither the defendant, his counsel, nor the prosecution raised any question regarding the defendant’s competency. Furthermore, a review of the colloquy between the defendant and the court, Fasano, J., during the plea canvass on September 14, 2010, fails to reveal any comments by the defendant that should have raised a doubt in the court’s mind regarding the defendant’s competency to proceed. The court has no duty, sua sponte, to order a competency examination for a defendant whose demeanor, comments or other behavior fail to suggest any questions of competency. See State v. Monk, 88 Conn. App. 543, 551, 869 A.2d 1281 (2005).

Finally, the defendant claims that the court should have granted his motion to withdraw the plea on the ground that the court failed, during the plea canvass, to explain the essential elements of the crime of manslaughter in the first degree. The defendant’s claim fails because the record reflects that he acknowledged to the court that his counsel had discussed the elements of manslaughter in the first degree as well as the evidence the state claimed to have in support of this charge. Additionally, during the hearing on the defendant’s motion to withdraw his guilty plea, his counsel represented to the court that he had gone over the elements of the charge of manslaughter with him on August 6, 2010, pursuant to the court’s suggestion that both the prosecution and the defense consider an alternative solution to going to trial on the charge of murder. The defendant did not refute counsel’s representations.

“Moreover, [o]ur courts have stopped short of adopting a per se rule that notice of the true nature of the charge always requires the court to give a description of every element of the offense charged. . . . Rather, we have held that, [u]nder Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976), even without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. . . . Thus, unless a record contains some positive suggestion that the defendant’s attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies. . . . State v. Lopez, 269 Conn. 799, 802, 850 A.2d 143 (2004); accord Bradshaw v. Stumpf, 545 U.S. 175, 125 S. Ct. 2398, 2405-2406, 162 L. Ed. 2d 143 (2005) QW]e have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. . . . Where a defendant is represented by competent counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.).” (Citations omitted; internal quotation marks omitted.) State v. Reid, supra, 277 Conn. 783-84. Here, we need not rely on that presumption, as defense counsel represented to the court that he had informed the defendant of the elements of the crime of manslaughter in the first degree and the defendant, in response to the court’s questioning during the plea canvass, affirmed that he had been informed of the essential elements of the crime. Thus, the defendant’s claim that the court failed to inform him of the essential elements of manslaughter in the first degree must fail.

In conjunction with his motion to withdraw his guilty plea, the defendant also asked the court to discharge his trial counsel and to appoint substitute counsel. On appeal, he claims that the court’s denial of this request violated his constitutional right to effective counsel. This court has previously stated: “There can be no dispute that a criminal defendant has a constitutional right to the effective assistance of counsel . . . [and] that right, however, is not without limitation. For example ... it is clear that the right to effective assistance of counsel does not include an unlimited opportunity to obtain alternate counsel. . . . Moreover, appellate tribunals look with a jaundiced eye at complaints regarding adequacy of counsel made on the eve of trial .... Such a request must be supported by a substantial reason and, [i]n order to work a delay by a last minute discharge of counsel there must exist exceptional circumstances. . . . Inherent in these limitations is a concern for unwarranted interruptions in the administration of justice. While courts must be assiduous in their defense of an accused’s right to counsel, that right may not be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. . . . The standard of review to be applied when reviewing a denial of a request for alternate counsel is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.” (Citations omitted; internal quotation marks omitted.) State v. Miller, 69 Conn. App. 597, 610-11, 795 A.2d 611, cert. denied, 260 Conn. 939, 802 A.2d 91 (2002). Additionally and in regard to the trial court’s exercise of discretion, as we stated in Miller, “ [t]he trial court is bestowed with broad discretion in determining whether the circumstances warrant the appointment of new counsel. . . . [A]bsent a factual record revealing an abuse of that discretion, the court’s failure to allow new counsel is not reversible error.” (Internal quotation marks omitted.) Id., 612.

The basis for the defendant’s claim that the court should have dismissed trial counsel appears to be twofold: that counsel was ineffective for not having obtained a copy of the defendant’s hospital record of his admission on April 11, 2008, the date of the incident in question, and, that counsel was burdened with an actual conflict of interest during the hearing on the motion to withdraw. The defendant’s first claim fails because, as noted, the report of the defendant’s admission and treatment at the hospital on April 11, 2008, was not made an exhibit prior to judgment, and the record has not been rectified since judgment to include the report. Therefore, we have no basis for assessing whether counsel was or was not ineffective for failing to utilize the contents of this report on behalf of the defendant in the trial court proceedings.

The second prong of the defendant’s claim is that counsel should have been dismissed because he was burdened with an actual conflict. We are not persuaded. At the outset, we note that the mere expression of dissatisfaction with counsel and even an allegation of ineffectiveness does not, alone, warrant counsel's removal. See State v. Johnson, supra, 253 Conn. 1. To be sure, even where defense counsel supports a defendant’s motion for the appointment of substitute counsel, the court has the discretion to deny appointment of new counsel in the absence of a record reflecting an actual conflict of interest. See, e.g., State v. Jenkins, 70 Conn. App. 515, 525 n.8, 800 A.2d 1200, cert. denied, 261 Conn. 927, 806 A.2d 1062 (2002); State v. Cooper, 55 Conn. App. 95, 106-107, 738 A.2d 1125, cert. denied, 251 Conn. 922, 742 A.2d 360 (1999); State v. Casado, 42 Conn. App. 371, 379, 680 A.2d 981, cert, denied, 239 Conn. 920, 682 A.2d 1006 (1996).

While, in the present case, defense counsel made factual representations to the court during the hearing on the motion to withdraw the defendant’s guilty plea regarding the timing and extent of his discussions with the defendant that were not supportive of the defendant’s claims that he had not been given adequate time and information on which to decide whether to go to trial or resolve the charge by plea, defense counsel’s representations did not, in fact, contradict the defendant’s factual claims. Moreover, the record of the plea canvass refutes the defendant’s self-serving claims that he did not have an adequate basis in knowledge and was too emotionally upset to be able to knowingly and voluntarily enter a guilty plea. Additionally, and contrary to the defendant’s claim that his counsel was burdened with an actual conflict at the hearing on the motion to withdraw, the record reflects that defense counsel indicated that he was thoroughly prepared and willing to continue his representation of the defendant through trial and that jury selection was aborted only after the defendant had informed him of his decision to accept the state’s plea offer. Significantly, the record of the hearing on the defendant’s motion to withdraw his plea and to dismiss counsel reveals that although defense counsel made representations to the court regarding his representation of the defendant that were not supportive of the defendant’s claims, defense counsel did not, in anyway, impede the defendant’s presentation and, in one instance, acted to protect the defendant from a disclosure that counsel deemed would be prejudicial to the defendant. See State v. Johnson, supra, 253 Conn. 55 (“while defense counsel did not join specifically in the defendant’s motion [to withdraw the plea], the defendant had sufficient opportunity to advance his cause”). Given the absence of any basis in the record in support of the defendant’s motion to withdraw his plea, the mere fact that defense counsel made factual representations to the court that were not supportive of the defendant’s quest to withdraw his plea does not lead us to the conclusion that defense counsel should have been dismissed. Were we to draw the opposite conclusion, we could be confronted with an unending procession of lawyers forced from representation by mere unsubstantiated claims inconsistent with faithful representation. See State v. Cooper, supra, 55 Conn. App. 106 (trial court properly refused defendant’s wish for another lawyer, despite defendant’s assertions that conflict existed between her and defense counsel, because of foreseeable consequence that defendant would repeatedly look for lawyer who could resolve her case in a manner similar to that of an out-of-state case that was of no consequence here). While counsel should not actively oppose a client’s motion for dismissal, representations made by counsel that may not be supportive of a defendant’s quest to withdraw a guilty plea do not inevitably evince a conflict of interest where the record otherwise provides no basis for granting a motion to dismiss counsel. Here, where the defendant was given a full and unimpeded opportunity to present his claims of inadequate representation as the basis for his motion to dismiss counsel, it was not an abuse of discretion for the court to have declined to dismiss counsel and appoint substitute counsel for the defendant.

Finally, it is apparent from the record, that, in denying the defendant’s motion to withdraw his guilty plea, the court relied, considerably, on the colloquy between the court and the defendant during the plea canvass. In this regard, the court noted: “I’m satisfied the record will reflect in the September 14 proceedings [that] it’s absolutely clear he knew what he was doing, he was pleading voluntarily and of his own free will and was satisfied with the representation he had, to that point.” In denying the defendant’s oral motion to dismiss counsel, the court stated as well: “I’m certainly satisfied that the defendant has been well represented. This is a matter that has been pending for quite a while. There’s been very little in the way of complaint until after the plea. He was given every opportunity along the way to either try his case or consider resolutions of the matter. . . . So, with respect to the motion to withdraw his plea, that motion is denied. The motion to dismiss counsel is denied at this point. I think he should have representation of people who know him and have been through the entire process at the time of sentencing, so I think it’s appropriate that he — that counsel not be dismissed for that purpose.” On the basis of our review of the record, we find no fault with the court’s exercise of discretion to deny the defendant’s motion to dismiss counsel, as the defendant failed to present any evidence evincing inadequate representation by defense counsel; nor does the record reflect that counsel was burdened by a conflict of interest necessitating the appointment of substitute counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a defendant may knowingly and voluntarily plead guilty to a charge and consent to the imposition of punishment without being required to admit his or her participation in the criminal conduct underlying the charge.

       Although the record reveals that the court received a letter from the defendant and the court commented briefly on the nature of the letter, the letter, itself, was not then made a court exhibit. Nor has the record been rectified to include the letter.

       The defendant also argues that his defense counsel should have obtained and utilized the hospital report from the date of the underlying incident, as the report would have shown that the defendant suffered serious injuries in the altercation, information he believed would have been helpful to a self-defense claim and that bears on the validity of his guilty plea. The difficulty with this claim is that the hospital record from the date of the incident has not been made part of the record prior to judgment and, since judgment, the record has not been rectified to include the subject hospital report. See Practice Book § 66-5. Therefore, we have no basis for determining whether the record would have been useful to the defendant and, accordingly, whether counsel should have obtained and utilized the hospital record as part of his representation of the defendant.

       This claim is made in addition to the defendant’s unreviewable claim that his counsel failed to obtain and provide him an opportunity to review the hospital record of his treatment on the evening of the incident giving rise to the criminal charge. See footnote 3 of this opinion.

       During the plea canvass, the following colloquy took place:
      “The Court: Have you had a chance to discuss with your attorney the elements of this charge and the evidence the state claims to have with respect to each element?
      “[The Defendant]: Yes, Your Honor.
      “The Court: All right. So, you understand the elements and the evidence. Counsel, you’re satisfied the defendant understands the elements of the offense and the evidence the state claims to have in connection with each of the elements?
      “[Defense Counsel]: Yes, the evidence the state claims they have.”

       During the court’s colloquy with defense counsel, counsel stated: “And so, as a result of that — now, prior to that date, Your Honor, that September 12 date, on August 6, the state approached me about manslaughter — about— we discussed the charge of manslaughter. August 6 was the first day of my vacation. Despite that I had other things to do, I went to the jail and met, no less than two hours, with [the defendant], going over the very elements of the charge of manslaughter, how it fit into this and what the possible outcomes were.”

       The record reflects that on November 12, 2010, the defendant stated the following to the court: “I would like to let the court know, Your Honor, that I would'like to withdraw my plea, and also I would like to have a dismissal of my counsel.” Rather than act on the defendant’s oral motions at that time, the court continued the matter in order to obtain a transcript of the September 14, 2010 plea and canvass. Thereafter, on November, 19, 2010, the court conducted a hearing on the defendant’s motions during which the defendant stated the following: “Your Honor, I would like to address the court respectfully, that you allow me to withdraw my plea and dismissal of my counsel, and allow me to obtain new counsel . . . .”

       The defendant did not file motions for the dismissal of counsel or for the appointment of new counsel. Rather, it appears from the record that the defendant orally moved for counsel’s dismissal and the appointment of replacement counsel. The record reflects that at the November 19, 2010 hearing on the defendant’s motion to withdraw his plea, the following colloquy took place:
      “The Court: All right. Is there a written motion of any sort?
      “The Clerk: No, Judge.
      “[The Defendant]: Your Honor, I would like to address the court respectfully, that you allow me to withdraw my plea and dismissal of my counsel, and allow me to obtain new counsel . . . .”

       Indeed, at the November 19, 2010 hearing on the defendant’s motions, a department of correction medical report was marked as a court exhibit. This report, however, relates to injuries the defendant received after falling from his bunk at his (then) place of incarceration on April 21, 2008, and not to injuries he may have received on April 11, 2008, the date of the underlying offense.

       At one point during the hearing, defense counsel stated: “In terms of being off the hook, we really, as the court is aware, we ordered that forensic testing and — I don’t even want to — I’m not going to go into that because if that ever comes up again there’s a strategic decision that, that could affect. It’s very damaging for him to bring that up.”