author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. DANIEL SOLOMON
    (AC 27716)
    Flynn, C. J., and McLachlan and Lavine, Js.

      Argued May 31
    officially released September 4, 2007

      Christopher M. Neary, special public defender, for the appellant (defendant).

      Jessica Probolus, special deputy assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and David J. Smith, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Daniel Solomon, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree, unlawful restraint in the second degree and interfering with an emergency call in violation of General Statutes §§ 53a-61 (a) (1), 53a-96 and 53a-183b, respectively. On appeal, the defendant claims that (1) the trial court improperly failed to instruct the jury on the theory of self-defense, on the process of weighing the credibility of a convicted felon and on one of the necessary elements of the charge of interfering with an emergency call, (2) the court improperly denied a motion for a judgment of acquittal on the charge of interfering with an emergency call and (3) the prosecutor made improper remarks during the closing arguments that prejudiced the defendant. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our disposition of the defendant’s appeal. At approximately 3 a.m. on November 24, 2005, three Norwich police officers responded to the home of the defendant and his wife, the complainant in this case, after a neighbor reported hearing a fight inside the home. When the police arrived, the home was quiet, and no one initially responded to a knock on the door. Then the responding police officers heard a woman inside yell, “let me go, let me answer the door.” The complainant came to the door after the police threatened to “kick the door in.” Upon interviewing the complainant, the police noticed fresh scratches on her neck. When the police interviewed the defendant, he claimed that nothing had happened that night. The defendant was arrested and charged with assault in the third degree, unlawful restraint in the second degree and interfering with an emergency call. At trial, both the defendant and the complainant testified that the meal that was being prepared had started to bum, causing the smoke alarm to go off. They also testified that an argument had ensued but differed in their testimony on the details of the argument. The defendant was convicted and sentenced to one year to serve on each count, to mn concurrently. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly failed to instmct the jury on a theory of self-defense, on the process for assessing the credibility of a convicted felon and on one of the elements of the interfering with an emergency call charge, specifically, that the victim was seeking protection or trying to report a crime. We disagree with each of these claims.

The defendant acknowledges that this series of claims was not preserved at trial and requests that we apply Golding review. See State v. Golding, 213 Conn. 233, 239-10, 567 A.2d 823 (1989). Under Golding, a defendant can obtain review of an unpreserved claim “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. “The first two steps in the Golding analysis address the reviewability of the claim, whereas the last two steps address the merits of the claim.” State v. Cohens, 62 Conn. App. 345, 350, 773 A.2d 363, cert. denied, 256 Conn. 918, 774 A.2d 139 (2001).

The following additional facts are relevant to the defendant’s claims. The complainant testified that after the smoke alarm went off in the kitchen, she opened the door to ventilate the smoke and then an argument between her and the defendant began. According to her testimony, the fight escalated when she tried to leave the apartment, and the defendant physically blocked her exit. The complainant told police that when she tried to leave the apartment, the defendant grabbed her and pulled her back in; as a result, the complainant attempted to call 911 to get the defendant out of the apartment. She claimed that the defendant grabbed her by the throat and caused the scratches on her neck. The complainant also acknowledged in her testimony that she is a convicted felon.

The defendant testified that on the morning of November 24, 2005, he fought with the complainant before the smoke alarm went off. The defendant testified that the fight was initiated by the complainant. The defendant claimed that the complainant was intoxicated. According to the defendant, the argument became physical when the complainant threw a large bottle of wine at him and tried to hit him with a broken chair leg. Neither hit the defendant. He testified that he grabbed the chair leg and held the complainant to keep her from attacking him. The defendant was adamant both on direct and cross-examination that he never struck her, slapped her, scratched her or pushed her. He testified that the complainant came after him with her hands, striking him in four places after he took the broken chair leg away from her. At this point, the complainant wanted the defendant to leave. The testimony of the defendant was that the argument dissolved, and the couple then focused on the smoke alarm going off in the apartment. We consider each of the defendant’s claimed instructional improprieties in turn.

A

The defendant claims that it was the duty of the court sua sponte to charge the jury on self-defense because there was evidence adduced at trial to support such a charge. The state argues that this claim does not implicate a constitutional right and, therefore, is not reviewable. We agree that a constitutional right has not been implicated. See State v. Lemoine, 256 Conn. 193, 199, 770 A.2d 491 (2001).

To implicate a constitutional right, the defendant had to assert a claim of self-defense and present evidence to warrant a jury instruction on the defense. He did neither. A defendant who asserts a self-defense claim for which there is evidence produced at trial to justify the instruction is entitled to a self-defense instruction, no matter how weak or incredible the claim. See State v. Williams, 258 Conn. 1, 8, 778 A.2d 186 (2001). Our Supreme Court, however, has stated that the trial court does not have a constitutional duty to instruct on a defense sua sponte except in very limited circumstances generally involving affirmative defenses. See State v. Preyer, 198 Conn. 190, 197 n.9, 502 A.2d 858 (1985). Here, the defendant never requested an instruction on self-defense pursuant to Practice Book §§ 42-16 through 42-18, nor did he present any evidence to warrant an instruction on such a defense had he requested one. Accordingly, this claim is not of constitutional magnitude, and we decline to afford it further review.

B

The defendant next claims that the court improperly failed to instruct the jury on the process for assessing the credibility of a convicted felon. The defendant did not preserve this claim by filing a request to charge concerning how the testimony of felons might be weighed, nor did he object to the court’s charge as given. The state asserts that this claim is not of constitutional magnitude and, therefore, is not reviewable. We agree with the state.

Although the record is adequate for review, matters of general credibility in jury instructions merely are evidentiary in nature and do not rise to a level of constitutional magnitude. See State v. Patterson, 276 Conn. 452, 471, 886 A.2d 777 (2005); State v. Dash, 242 Conn. 143, 152, 698 A.2d 297 (1997); State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993); State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991). Because the defendant’s claim implicates only general principles of credibility, we decline to afford it review.

C

The defendant’s final claim of alleged instructional impropriety concerns the jury charge on interfering with an emergency call in violation of § 53a-183b. Specifically, he claims that the court never charged the jury that, in order to find the defendant guilty, it must find beyond a reasonable doubt that the victim was trying to report a crime or seek protection. The state argues that the defendant cannot prevail because the court instructed the jury on every element of the crime and closely tracked the language of the statute. Although we agree with the defendant that the record is adequate for review and that his claim is of constitutional magnitude, we conclude that this claim fails under the third prong of Golding because the defendant has not shown that a constitutional violation clearly exists.

Initially, we must determine whether the court’s instructions “gave the jury a reasonably clear comprehension of the issues presented for [its] determination under the pleadings and upon the evidence and were suited to guide [it] in the determination of those issues.” (Internal quotation marks omitted.) State v. Gooden, 89 Conn. App. 307, 313, 873 A.2d 243, cert. denied, 275 Conn. 918, 919, 883 A.2d 1249 (2005). “Our focus is on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . [A]s to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if . . . it is reasonably possible that the jury was misled . . . .” (Internal quotation marks omitted.) State v. Collins, 100 Com. App. 833, 843, 919 A.2d 1087 (2007).

General Statutes § 53a-183b (a) provides that “[a] person is guilty of interfering with an emergency call when such person, with the intent of preventing another person from making or completing a 9-1-1 telephone call or a telephone call or radio communication to any law enforcement agency to request police protection or report the commission of a crime, physically or verbally prevents or hinders such other person from making or completing such telephone call or radio communication.”

The necessary elements of this crime, which the state was required to prove beyond a reasonable doubt, therefore, were that the defendant (1) acting with the intent to prevent another person from (a) making or completing a 911 telephone call to request police protection or to report the commission of a crime, or (b) making or completing a telephone or radio communication to any law enforcement agency to request police protection or to report the commission of a crime; (2) when that other person was seeking police protection or to report the commission of a crime; and (3) physically or verbally prevented or hindered that other person from making such telephone call or radio communication. General Statutes § 53a-183b. It is the charge related to the second element that the defendant claims is insufficient. We disagree.

On the charge of interfering with an emergency call, the court charged in relevant part: “For you to find the defendant guilty of this charge, the state must have proven beyond a reasonable doubt that the defendant intentionally prevented or stopped the alleged victim from placing a 911 call to the police to request police protection and/or report commission of a crime.” (Emphasis added.) Clearly, the court charged on the second element of the offense. We therefore conclude that the defendant’s claim lacks merit.

II

The defendant next claims that the court improperly refused to render a judgment of acquittal on the charge of interfering with an emergency call. The defendant acknowledges that the record is unclear as to whether he actually made an oral motion for a judgment of acquittal, but he argues that the court understood the “gist” of what he was seeking. Our review of the record reveals that what the defendant argues was an oral motion to acquit, instead, was an objection to a charge for which he claimed there was no evidence. Regardless, the defendant now claims that there was insufficient evidence to show that the complainant was trying to “request police protection or report the commission of a crime,” which is a necessary element for conviction under § 53a-183b. The state argues that there was ample evidence adduced at trial to prove this element of the crime. We agree with the state.

To begin, we set forth our standard of review. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 110, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 510-11, 668 A.2d 1288 (1995).

The defendant claims that the court should not have instructed the jury on the charge of interfering with an emergency call because there was no evidence that the complainant attempted to make a call to report a crime or to seek police protection. The following additional facts are relevant to this issue.

The complainant testified that she attempted to telephone the police during the fight with the defendant but that the defendant kept blocking her from the telephone. When asked at trial why she was attempting to telephone the police, the complainant stated that she wanted the defendant out. Although the defendant argues that this testimony was insufficient to prove the second element of the charge of interfering with an emergency call, i.e., that the complainant was seeking police protection or to report the commission of a crime, we conclude that the jury reasonably could have made such an inference. Furthermore, in addition to the testimony of the complainant, Carl Dye, one of the responding police officers, testified, without objection, that the complainant had told him that “she tried leaving and [the defendant had] grabbed her and yanked her back inside. She tried pulling away. She then tried to get to the telephone to call 911, [but the defendant] took the [telephone] from her and then picked up the cell—a cell phone, and said, you’re not calling anybody.” Dye’s testimony together with other evidence in the case, including the complainant’s testimony, reasonably could have led the jury to conclude beyond a reasonable doubt that the complainant was trying to make a 911 call in order to request police protection or to report the commission of a crime. Therefore, the defendant’s claim fails.

Ill

The defendant’s final claim on appeal is that he was deprived of a fair trial because of prosecutorial impropriety during closing argument. Specifically, the defendant claims that the prosecutor improperly tried to sway the emotions of the jury by characterizing the case as being one of domestic violence and by offering his personal opinion on the state of mind of the defendant. We are not persuaded.

The defendant failed to object to the claimed improper comments at trial and, therefore, did not preserve his claim. However, this failure does not bar this court’s review. “In examining claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and [if so] (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Camacho, 282 Conn. 328, 367, 924 A.2d 99 (2007); State v. George J., 280 Conn. 551, 604, 910 A.2d 931 (2006), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007). We review each categoiy of claimed impropriety in turn to determine whether, in fact, the prosecutor made improper comments.

A

The defendant claims that the prosecutor acted improperly by making references to domestic violence during closing argument. Specifically, he argues that “[t]here was never any mention of the words ‘domestic violence’ during the course of the trial, the presentation of evidence or police investigation. ... By referring not only to this case as one of domestic violence but also referring to the generalizations about domestic violence, the state unfairly attempted to sway the emotions of the jury by characterizing the alleged crimes under a label that had not been raised and by appealing to the [jurors’] compassion for general victims of domestic violence. ” We find this argument entirely lacking in merit.

The following additional facts are relevant to our conclusion. During the presentation of witnesses, the term “domestic violence” was used only once, when the prosecutor asked Officer Dye whether “when you make an arrest and an incident, specifically, of domestic violence occurs, do you know whether alcohol was involved in the incident?” No objection was raised to this question. During closing argument, the term “domestic violence” was used twice by the prosecutor. First, immediately after defense counsel argued to the jury that it should compare the demeanor of the defendant with that of the complainant and that the whole case came down to what the complainant said versus what the defendant said, the prosecutor began his closing argument: “Unfortunately, following the line of logic of the defense, nearly all domestic violence cases wouldn’t be able to be prosecuted because you would only have, and which is the nature of domestic violence cases, the alleged victim in the case and the perpetrator of the case.” Shortly thereafter, the prosecutor also stated: “Now, to go beyond what the defense says, it’s really not just she said, he said, which is the case in most domestic violence incidents.” The defendant voiced no objection to these statements at trial. Additionally, although the defendant argues that “[t]here was never any mention of the words ‘domestic violence’ ” save for these, a thorough review of the record reveals that this is not the case. Specifically, during jury voir dire, defense counsel told every juror who was chosen to sit, with the exception of one, for whom counsel had no questions or comments, that this case: “might be termed of a domestic violence nature”; “might be termed domestic violence in nature”; “might be referred to as domestic violence in nature”; “might be termed domestic violence”; “might be termed domestic violence” and “might be termed domestic abuse,” respectively.

We conclude that counsel for both sides were not incorrect in considering this a case of domestic violence. It sometimes has been observed that present day English owes more to the Romans and French than it does to the Angles, Saxons and Jutes. The word domestic is rooted in Latin, like so many words in the English language. It comes from the Latin word domus, which means house. American Heritage Dictionary of the English Language (New College Ed. 1981). The definition of domestic is “of or pertaining to the family or household.” Id. Black’s Law Dictionary (7th Ed. 1999) defines “domestic violence” as “[violence between members of a household, usu. spouses; an assault or other violent act committed by one member of a household against another.” Clearly, the term fits with the evidence in this case, and it was not improper for either counsel to use it.

B

The defendant next claims that the prosecutor improperly offered his personal opinion of the defendant’s state of mind. We disagree.

We begin by setting out the standard we will use to determine if the statement was improper. Rule 3.4 (5) of the Rules of Professional Conduct states in pertinent part that “[a] lawyer shall not . . . [i]n trial . . . state a personal opinion as to the justness of a cause, the credibility of a witness ... or the guilt or innocence of an accused.” Despite the rule, however, our Supreme Court has indicated that such personal expressions are not always barred. See State v. Colon, 272 Conn. 106, 248-49, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). “Although prosecutors generally should try to avoid using phrases that begin with the pronorm T,’ such as 1 think’ or 1 believe,’ [our Supreme Court has] recogniz[ed] that the use of the word T is part of our everyday parlance and . . . because of established speech patterns, it cannot always easily be eliminated completely from extemporaneous elocution. . . . Therefore, if it is clear that the prosecutor is arguing from the evidence presented at trial, instead of giving improper unsworn testimony with the suggestion of secret knowledge, his or her occasional use of the first person does not constitute misconduct.” (Citations omitted.) State v. Luster, 279 Conn. 414, 436, 902 A.2d 636 (2006).

The defendant takes issue with the following remark of the prosecutor: “I think it’s clear here he intended to keep her from leaving the apartment when he grabbed her around the neck and caused [the] injuries, and he intended to not let her make the phone call when he kept the phone away from her. So, that would satisfy the intent element.” A review of the transcript reveals that the prosecutor’s comment was made in the context of a discussion of intent that came after an explanation of the state’s evidence. The comment was related to the evidence that the prosecutor was permitted to use in order to make suggestions as to the inferences that could be made from that evidence. We conclude, therefore, that this comment by the prosecutor was not improper. Because we conclude that there was no prosecutorial impropriety in closing argument, there is no need to undertake a due process analysis.

The judgment is affirmed.

In this opinion the other judges concurred.

       Contrary to the defendant’s claim on appeal, he did not claim self-defense or provide evidence that he acted in self-defense at trial. Rather, he specifically testified, in relation to the complainant: “Never did I strike her. Never did I slap her, never did I push her, nothing of the sort.” He did testify, however, that he “may have” grabbed the complainant around the neck when she attacked him, but that never injured her. It appears, therefore, that the theory of defense at trial was more closely related to accident or unintended consequences rather than self-defense. A theory of self-defense and a claim of accident or unintended consequences are inconsistent. See State v. Schultz, 100 Conn. App. 709, 717, 921 A.2d 595, cert. denied, 282 Conn. 926, 926 A.2d 668 (2007). The defense of accident is unlike self-defense because whereas self-defense presumes an intentional but justified act, accident presumes that any injury was unintended. Id.

       The defendant does not provide separate analysis of his argument as it relates to “generalizations about domestic violence.” Accordingly, we do not consider it to be a separate claim, and we do not analyze it separately.

       We note that a criminal trial generally is said to begin with the voir dire of prospective jurors. See, e.g., State v. Wilson F., 77 Conn. App. 405, 411-12, 823 A.2d 406 (for purposes of Practice Book §§ 36-17 and 36-18, criminal trial begins with voir dire of prospective jurors), cert. denied, 265 Conn. 905, 831 A.2d 254 (2003); State v. Lacks, 58 Conn. App. 412, 416, 755 A.2d 254 (for purposes of speedy trial rules, jury trial begins with voir dire examination), cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).


source: Caselaw Access Project

author:
GRUENDEL, J.
      SCHALLER, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICARDO ETIENNE
    (AC 27500)
    Schaller, DiPentima and Gruendel, Js.

      Argued April 19
    officially released September 4, 2007

      Mark Diamond, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Kelley P. Swift, former assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Ricardo Etienne, appeals from the judgment of conviction, rendered after a court trial, of forgery in the second degree in violation of General Statutes § 53a-139 (a) (3) and possession of narcotics in violation of General Statutes § 21a-279 (c). On appeal, the defendant claims that the court improperly denied his motion to suppress. He also alleges evidential insufficiency and error. We affirm the judgment of the trial corut.

The court reasonably could have found the following facts. On the evening of April 29, 2003, officers from the Stamford police department conducted surveillance at Cove Island Park as part of a narcotics investigation. The surveillance involved two unmarked vehicles that each contained two plainclothes officers. One vehicle was stationed in the parking lot; the other was parked a short distance away and served as a “takedown team.” At 9:30 p.m., a red Volkswagen entered the parking lot and stopped approximately thirty feet in front of the unmarked police vehicle. The defendant sat in the rear passenger seat while his brother, Alain Etienne, and a female friend sat in the driver’s and front passenger seats, respectively. The officers watched as the defendant reached out of the rear passenger window and dumped the contents of a cigar to the ground. A moment later, they saw him light the cigar. When the officers detected the odor of marijuana, they notified the take-down team.

The takedown team smelled the odor of marijuana as they approached the Volkswagen. Upon removing the defendant from the vehicle, Officer James Matheny recognized the defendant from a prior arrest. Matheny then entered the vehicle. Officer Christopher Broems asked the defendant his name, to which he replied, “Alain Etienne.” The driver of the vehicle also identified himself as Alain Etienne and informed the officers that the defendant was his brother, Ricardo Etienne. Inside the Volkswagen, Matheny discovered a “partially smoked marijuana, cigarette” on the rear passenger floor where the defendant earlier sat. Accordingly, the officers handcuffed the defendant and placed him under arrest. Broems then inquired as to whether the defendant had any identification, to which the defendant answered affirmatively. Retrieving a wallet from the defendant’s pocket, the officers found a Florida identification card and a social security card that both bore the name “Alain Etienne.” The photograph on the identification card was one of the defendant.

The officers transported the defendant to police headquarters. Officer Brian Butler completed a uniform arrest report by asking the defendant a series of biographical questions, including one regarding his identity. During booking, the officers also asked the defendant to remove his shoes. When he complied, the officers found a marijuana cigarette in the defendant’s shoe. Laboratory tests later confirmed that both the cigarette found in the Volkswagen and the cigarette found in the shoe contained marijuana. In addition, fingerprints of the defendant taken during booking matched those obtained from Ricardo Etienne in connection with a 1997 arrest.

Also, at some point while at police headquarters that evening, Matheny heard the defendant volunteer that “he was Ricardo Etienne and that he had reentered the country through Orlando, Florida.” Subsequent contact with the Immigration and Naturalization Service confirmed that the defendant had been deported in 2000.

The defendant was charged by information with one count of possession of marijuana and one count of forgery in the second degree. He thereafter filed a motion to suppress his statements made to the officers on April 29, 2003. Following a hearing on the matter, the court denied the motion. Prior to trial, the state filed a motion in limine in which it requested that the court take judicial notice of “[Fla. Stat. Ann. §§ 322.02 and 322.051 et seq. (West 2005)], which authorize the [Florida] [department of [hjighway [s]afety and [mjotor vehicles to issue Florida identification cards, which are officially issued or created by this public office, its public servants and government instrumentality.” The state also filed a motion in limine by which it provided notice that it may introduce certain prior uncharged misconduct of the defendant, namely, evidence that on August 14, 2000, the United States District Court ordered that he be deported to Haiti. The court granted both motions and a trial followed, at the conclusion of which the court found the defendant guilty on both counts. The court rendered judgment and sentenced the defendant to a total effective term of thirty-nine months imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

In the seminal case of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court held that when a suspect is subjected to custodial interrogation, “[h]e must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Id., 479. The defendant claims that because he was not provided Miranda warnings prior to stating his name either at the parking lot or during booking at the police headquarters, the court improperly denied his motion to suppress.

Our standard of review of the court’s findings and conclusions in connection with a motion to suppress is well established. “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court’s memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 514, 903 A.2d 169 (2006).

The fifth amendment to the United States constitution affords to each individual the privilege not to be compelled to incriminate himself or herself. “The fundamental purpose of the Court’s decision in Miranda was to assure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process. ... To this end, the Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights from the government compulsion, subtle or otherwise, that operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” (Citations omitted; internal quotation marks omitted.) Connecticut v. Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 93 L. Ed. 2d 920, on remand, 205 Conn. 437, 534 A.2d 219 (1987). The Miranda court explained that its prophylactic rules were intended to guard against “overzealous police practices”; Miranda v. Arizona, supra, 384 U.S. 444; and the fact that “custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.” Id., 455. The United States Supreme Court subsequently has observed that “[fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” Berkemer v. McCarty, 468 U.S. 420, 437, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).

Miranda mandates that the warnings it articulated must be given “when the individual is first subjected to police interrogation while in custody . . . .” Miranda v. Arizona, supra, 384 U.S. 477. “[T]he term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Emphasis in original; internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 398, 908 A.2d 506 (2006), quoting Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). “Routine questions . . . ordinarily innocent of any investigative purpose, do not pose the dangers Miranda was designed to check . . . .” (Internal quotation marks omitted.) State v. Jones, 37 Conn. App. 437, 445, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995). Regarding the defendant’s statement at the parking lot, the record reveals that immediately after the defendant was removed from the Volkswagen, Matheny entered the vehicle. At that moment, Broems asked the defendant his name, and the defendant replied, “Alain Etienne.” When that question was posed, neither the narcotics nor the identification cards had been discovered. Further, the defendant had not yet been handcuffed or arrested. In light of the foregoing, that simple inquiry by the officer first encountering the defendant cannot be described as a coercive or overzealous police practice. It certainly was not a custodial interrogation pursuant to Miranda. See State v. Canales, 281 Conn. 572, 586, 916 A.2d 767 (2007); State v. Walters, 94 Conn. App. 297, 304, 891 A.2d 1003, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006).

More problematic is the defendant’s statement made during booking. The following additional facts are necessary. At police headquarters on the evening of April 29, 2003, Butler completed a uniform arrest report, which is standard protocol during the booking process. The uniform arrest report contains boxes in which the preparer indicates, inter alia, the name of the accused, the address of the accused, the sex, race, height, weight, hair and eye color of the accused, and the date and place of birth of the accused. Butler testified that he asked the defendant biographical questions in order to complete the uniform arrest report, which the defendant answered. Butler further testified that he asked the defendant no additional questions.

Questions asked by the police during booking of a criminal suspect qualify as custodial interrogation. State v. Jones, supra, 37 Conn. App. 444. Conceding that point, the state nevertheless contends that the routine booking question exception to the requirement of Miranda warnings recognized by the United States Supreme Court in Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990), applies in the present case. “The [routine booking question] exception encompasses questions that secure biographical data necessary to complete booking or pretrial services. . . . The court acknowledged that the questions qualify as custodial interrogation but held that questions such as name, address, height, weight, eye color, date of birth, and age fall outside the sweep of Miranda v. Arizona, [supra, 384 U.S. 436]. . . . The exception does not arise, however, if the questions are reasonably likely to elicit an incriminating response in a particular situation.” (Citations omitted; internal quotation marks omitted.) State v. Cuesta, 68 Conn. App. 470, 478, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002).

The defendant claims that although the question as to his identity was a routine one, the officers knew that he had earlier identified himself as Alain Etienne and possessed a Florida identification card in that name. He therefore maintains that the question was reasonably likely to elicit an incriminating response. We agree.

“The test as to whether a particular question is likely to elicit an incriminating response is objective; the subjective intent of the police officer is relevant but not conclusive and the relationship of the questions asked to the crime is highly relevant. . . . Ordinarily, the routine gathering of background, biographical data will not constitute interrogation. . . . We are aware, however, that [a] person’s name, age, address, marital status and similar data, while usually non-incriminatory in character, may in a particular context provide the missing link required to convict. . . . [W]e recognize the potential for abuse by law enforcement officers who might, under the guise of seeking objective or neutral information, deliberately elicit an incriminating statement from a suspect. ... A balance must be struck between information legitimately required by law enforcement to facilitate booking . . . and the protection of a defendant’s constitutional rights.” (Citations omitted; internal quotation marks omitted.) State v. Evans, 203 Conn. 212, 226-27, 523 A.2d 1306 (1987).

Our analysis is aided by this court’s decision in State v. Jones, supra, 37 Conn. App. 437, in which the defendant raised a similar claim concerning a booking question as to his identity. In holding that the routine booking exception enunciated in Pennsylvania v. Muniz, supra, 496 U.S. 601, applied, we stated that “[t]he situation in this case was unlike that in United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983), in which the questions asked related directly to an element of a crime that . . . [the investigator] had reason to suspect. [T]he defendant’s true name was not in itself incriminatory. The defendant’s name did not connect him to the assault, nor was it an element of the assault.” (Internal quotation marks omitted.) State v. Jones, supra, 445. Likewise, the defendant in Commonwealth v. Ramirez, 55 Mass. App. 224, 770 N.E.2d 30, review denied, 437 Mass. 1108, 774 N.E.2d 1099 (2002), was asked his name at the time of his arrest, to which he responded falsely. Id., 226. On appeal, the defendant claimed that the trial court improperly denied his motion to suppress that statement, arguing that “because the police knew he had given a false name on a previous occasion, they may well have intended to elicit a false response on the occasion of his arrest.” Id. The Massachusetts Appeals Court disagreed: “Standing alone, the fact that the questioning officer knew that the defendant had given a false name once before does not support a conclusion that the officer expected him to do so again, and asked the defendant his name for the purpose of using the false name to incriminate him.” Id. Echoing the holding of this court in Jones, the court in Ramirez emphasized that “the defendant’s response of a false name ... is not directly linked to the charged offense.” Id., 227.

The uniform arrest report completed by Butler on the evening of April 29, 2003, contained a box labeled “charge(s) and statute number.” In that box, Butler wrote “possession marijuana 21a-279 (c)” and “forgery second 53a-139.” Plainly, then, the police were pursuing the forgery charge at the time the defendant was asked the booking questions. The defendant’s true identity related directly to that crime. To convict the defendant of forgery in the second degree, the state was required to prove that he either falsely made, completed or altered a written instrument or possessed a written instrument that he knew to be forged. See footnote 1. The written instrument in question was the Florida identification card that contained the defendant’s photograph and bore the name “Alain Etienne.” Whether the defendant was not, in fact, Alain Etienne thus was directly linked to the charged offense. Consequently, when Butler asked the defendant his name, that inquiry was reasonably likely to elicit an incriminating response. See also United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986) (question as to where defendant lived related to element of crime police suspected defendant committed); State v. Stevens, 173 Wis. 2d 290, 302, 496 N.W.2d 201 (Wis. App. 1992) (questions concerning defendant’s identity and residence constituted interrogation because they related to element of crime under investigation), rev’d in part on other grounds, 181 Wis. 2d 410, 511 N.W.2d 591 (1994), cert. denied, 515 U.S. 1102, 115 S. Ct. 2245, 132 L. Ed. 2d 254 (1995). We therefore conclude that the defendant’s answer does not fall within the routine booking question exception. The defendant’s fifth amendment right against self-incrimination demanded that he receive Miranda warnings prior to that inquiry.

That conclusion does not end our analysis of the defendant’s claim. The state argues that the admission of the defendant’s statement was harmless. “The improper admission of a confession is harmless error [when] it can be said beyond a reasonable doubt that the confession did not contribute to the conviction.” State v. Hafford, 252 Conn. 274, 297, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). In the present case, the defendant stipulated at trial that the fingerprints taken from him on April 29, 2003, matched those of Ricardo Etienne taken in connection with a 1997 arrest. Moreover, during his testimony, Alain Etienne identified the defendant as Ricardo Etienne. Finally, while at police headquarters and apart from Butler’s biographical questions, the defendant volunteered that he was Ricardo Etienne. See footnote 8. Under those circumstances, any impropriety in the state’s use of the challenged statement was harmless beyond a reasonable doubt.

II

The defendant’s second claim is that the evidence was not sufficient to prove that the Florida identification card was a forged instrument. As a result, he contends that the court improperly denied his motion for a judgment of acquittal. We do not agree.

“In reviewing claims of insufficiency, we first review the evidence presented at trial and construe it in the light most favorable to sustaining the trial court’s finding of guilt. . . . We then look at the facts established at trial and the reasonable inferences drawn from those facts and decide whether the court could have reasonably concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . Our standard in reviewing the conclusions of the trier of fact is limited. . . . We will construe the evidence in the light most favorable to sustaining the trial court’s judgment and will affirm the court’s conclusions if reasonably supported by the evidence and logical inferences drawn therefrom. . . . The question on appeal is not whether we believe that the evidence established guilt beyond a reasonable doubt, but rather whether, after viewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We give deference to the unique opportunity of the trier of fact to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility. . . . The trial court’s findings of fact are entitled to great weight . . . but those findings are not conclusive.” (Internal quotation marks omitted.) State v. Jones, 99 Conn. App. 196, 200, 912 A.2d 1099, cert. denied, 281 Conn. 927, 918 A.2d 279 (2007).

For the defendant to be found guilty of violating § 53a-139, the state must prove that “(1) the defendant intended to deceive another and (2) that he possessed a written instrument that he knew to be forged.” State v. Henderson, 47 Conn. App. 542, 551, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). Prior to trial, the state filed a motion in limine in which it requested that the court take judicial notice of “[Fla. Stat. Ann. §§ 322.02 and 322.051 et seq. (West 2005)], which authorize the [Florida] [department of [highway [sjafety and [m]otor vehicles to issue Florida identification cards, which are officially issued or created by this public office, its public servants and government instrumentality.” The court granted that motion. At trial, the court heard the testimony of Matheny that the defendant identified himself at the parking lot as Alain Etienne. Furthermore, when Matheny informed the defendant that he knew the defendant was Ricardo Etienne, the defendant stated that “he had an identification card that said he was Alain Etienne.” The state presented evidence, in the form of fingerprints and the testimony of Alain Etienne, which confirmed that the defendant was, in fact, Ricardo Etienne. That court also heard testimony that the identification card was found in the defendant’s wallet in his pocket on the night of April 29, 2003.

The identification card was introduced into evidence as an exhibit. That instrument was labeled “Florida identification card” and bore both an image of the state of Florida and the caption “The Sunshine State.” It was in the name of Alain Etienne and contained a photograph and signature. At trial, Alain Etienne testified that he had never visited Florida nor had he ever applied for a Florida identification card. He further testified that the identification card contained his name and date of birth, and he identified the person depicted in the photograph on the identification card as the defendant. Although the signature on the identification card read “Alain Etienne,” he testified that he did not sign that card. Rather, he testified that he recognized the handwriting as that of the defendant. Construing the evidence in the light most favorable to sustaining the conviction, we determine that the court reasonably could have concluded beyond a reasonable doubt that the defendant was guilty of forgery in the second degree.

Ill

The defendant’s final claim on appeal is that the court abused its discretion in admitting evidence of the defendant’s prior deportation. The following facts are relevant to that claim. Prior to trial, the state also filed a motion in limine by which it provided notice that it may introduce certain prior uncharged misconduct of the defendant, namely, evidence that on August 14, 2000, the United States District Court ordered that the defendant be deported to Haiti. The court held a hearing on the matter, at the conclusion of which it granted the motion. The court expressly considered the probative value and prejudicial effect of that evidence and found that “the fact that [the defendant] was deported on August 14, 2000, goes to the defendant’s motive in this case.” At trial, counsel for the defendant objected to a question the prosecutor asked concerning the defendant’s deportation. The prosecutor submitted that the question related to motive, and the court agreed, overruling the objection. Matheny then testified that the defendant “had been deported from this country in 2000.”

“The rules governing the admissibility of evidence of a criminal defendant’s prior misconduct are well established. Although evidence of prior unconnected crimes is inadmissible to demonstrate the defendant’s bad character or to suggest that the defendant has a propensity for criminal behavior . . . such evidence may be admissible for other purposes, such as to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency. . . . That evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material .... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 343, 904 A.2d 101 (2006).

We agree with the court that the fact that the defendant had been deported was relevant to the issues of whether he possessed a written instrument that he knew to be forged and whether, by such possession, he intended to deceive another. The fact that the defendant was not legally in this country certainly is relevant to the question of whether he was motivated to possess an identification card in another’s name. It also informs his statement to the police in the parking lot that he was Alain Etienne and had identification so indicating. Indulging every presumption in favor of the correctness of the court’s ruling, we cannot say that the court abused its discretion in admitting evidence of the defendant’s deportation.

The judgment is affirmed.

In this opinion DiPENTIMA, J., concurred.

SCHALLER, J.,

concurring. Although I concur in the result reached by the majority, I respectfully disagree with the analysis of the claim with regard to the motion to suppress. Specifically, I do not agree that the defendant, Ricardo Etienne, was entitled to Miranda warnings prior to being asked his name during the booking process at police headquarters. The majority concludes that “[t]he defendant’s fifth amendment right against self-incrimination demanded that he receive Miranda warnings prior to that inquiry.” The majority reasons that the question as to the defendant’s name did not fall within the routine booking question exception to Miranda because it was “reasonably likely to elicit an incriminating response.” The majority goes on to conclude that the admission of his statement, that is, his name, was harmless in view of fingerprint evidence, the identification of the defendant at trial by his brother, Alain Etienne, and the fact that the defendant volunteered his name apart from the booking process. In my view, the defendant’s name was not incriminating information that would cause the inquiry as to his name to fall outside the scope of the booking exception.

I begin by setting forth several aspects of the procedural and factual history pertaining to this case. Prior to trial, the defendant filed a motion to suppress all written and oral statements that he had made. Following a hearing, the court denied the motion, concluding in part that “[t]here was no evidence that questioning, other than routine booking and processing questions, took place at the [police] station. Routine booking questions . . . essentially administrative in nature and objectively neutral, are not custodial [interrogations] likely to elicit incriminating responses . . . .” (Citation omitted.) In this appeal, the defendant challenged the booking question as to his name, arguing that “[t]he questions posed to [the defendant] were intended to make him divulge his true name. Since [the defendant’s] true identity was critical to the charge of forgery, [the] police questioning constituted an interrogation, which should not have been performed before Miranda warnings were provided.” The majority relies on similar reasoning in reaching its conclusion. Specifically, the majority explains its result as follows: “[T]he police were pursuing the forgery charge at the time the defendant was asked the booking questions. The defendant’s true identity related directly to that crime. . . . Whether the defendant was not, in fact, Alain Etienne thus was directly linked to the charged offense. Consequently, when [Officer Brian] Butler asked the defendant his name, that inquiry was reasonably likely to elicit an incriminating response.” (Citation omitted.) I respectfully disagree.

As an initial matter, I do not believe that a person’s true name, by its very nature, is incriminating. First, an individual’s true name is intrinsic to that person; it is information that is immutably linked to personal identity. It necessarily follows that, in the present case, it was not the defendant’s true name or his true identity that was incriminating in any sense, but rather his actions in falsifying his name and identity. See California v. Byers, 402 U.S. 424, 434, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971) (“[a name] identifies but does not by itself implicate anyone in criminal conduct”).

Second, in addition to the intrinsically neutral quality of a name, it is also beyond question that ascertaining an individual’s name and, with it, his identity, is a crucial part of police procedure and criminal prosecution. As a result, in my view, questioning an individual about his name falls squarely within the booking exception enunciated by the United States Supreme Court in Pennsylvanian.Muniz, 496 U.S. 582, 601-602, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990), encompassing questions necessary to secure “biographical data necessary to complete booking or pretrial services.” (Internal quotation marks omitted.) Id., 601. It is fundamental that police must know the identity of the individual who is being held and who is to be charged. The police are obligated to know that they have the correct individual in custody. See United States v. Carmona, 873 F.2d 569, 573 (2d Cir. 1989) (“Police often know the names of suspects they intend to apprehend .... As a cautionary measure, police usually prudently inquire as to the suspect’s name to ensure that the wrong person is not apprehended.”). Indeed, other jurisdictions have recognized the impracticality of requiring police to provide Miranda warnings prior to questioning an individual as to his name. See State v. Landrum, 112 Ariz. 555, 559, 544 P.2d 664 (1976) (law enforcement officer may question individual as to his name after detention but prior to issuing Miranda warnings); People v. Alleyne, 34 App. Div. 3d 367, 368, 828 N.Y.S.2d 2 (2006) (“[t]o carry [the] defendant’s argument to its logical conclusion [that a booking question as to his nickname was improper], an officer who was aware that an arrestee’s true name could link him to a crime could not even ask that elementary question during routine booking without first providing Miranda warnings”), leave to appeal denied, 8 N.Y.3d 918, 866 N.E.2d 455, 834 N.Y.S.2d 509 (2007). Furthermore, the name and the identity of the accused is essential to any prosecution. In this regard, the United States Court of Appeals for the Second Circuit has remarked that “a suspect who refuses to furnish his name or address may be ordered by the court to furnish information that will facilitate his identification, such as fingerprints . . . photographs . . . handwriting exemplars . . . blood samples ... or similar identifying data .... Although the data thus obtained may be distinguished from information as to identity furnished orally on the ground that the latter is testimonial in character, the line of demarcation is thin.” (Citations omitted.) United States ex rel. Hines v. LaValle, 521 F.2d 1109, 1112 (2d Cir. 1975), cert. denied sub nom. Hines v. Bombard, 423 U.S. 1090, 96 S. Ct. 884, 47 L. Ed. 2d 101 (1976).

1 recognize that the booking question exception does not apply to booking questions reasonably likely to elicit incriminating responses. State v. Cuesta, 68 Conn. App. 470, 477-78, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002); see also Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). The majority concludes that the question as to the defendant’s name was reasonably likely to elicit an incriminating response because the defendant’s true identity related directly to the charge of forgery, which the police were pursuing at the time the question was posed. I cannot agree with this reasoning because, in my view, the defendant’s true name and, therefore, his identity was not an element of the criminal charge. It was not the defendant’s true name or identity that was incriminating but the fact that, under the circumstances, he misrepresented his identity as Alain Etienne. The police recovered two documents from the defendant, one purporting to be a Florida identification card and the other purporting to be a social security card, both bearing the name and signature of Alain Etienne. The identification card, however, displayed the defendant’s photograph. Furthermore, at the site of the arrest, the defendant was identified as Ricardo Etienne by both Sergeant James Matheny and the defendant’s brother. That information gave the police a basis for charging the defendant with forgery in the second degree, namely, that the defendant possessed written instruments that he knew to be forged and that purported to be officially issued by a public office. General Statutes § 53a-139 (a) (3). I refer to the evidence obtained at the site of the defendant’s arrest for the sole purpose of illustrating that the incriminating information in this case was the defendant’s falsification of his identity. I am not suggesting that the possession of this evidence, in any way, would allow the police to seek a subsequent incriminating response from the defendant.

For these reasons, this is not a case in which a booking question provided the police with a “missing link” of incriminating information necessary to pursue the forgery charge against the defendant. See State v. Evans, 203 Conn. 212, 226, 523 A.2d 1306 (1987). In view of the identifications at the scene by the defendant’s brother and Matheny, the booking question at headquarters served the purpose of perfunctorily recording the defendant’s actual name, which was already known. In asking the defendant his name according to the first question listed on the uniform arrest report, the officer followed standard booking procedure. See State v. Cuesta, supra, 68 Conn. App. 479 (fact that question as to place of birth posed in context of filling out uniform arrest report supported conclusion that police only were gathering ordinary information for administrative purposes).

Because the question as to the defendant’s name was necessary only for booking purposes and was not reasonably likely to elicit an incriminating response, prior Miranda warnings were not necessary under the booking exception. I therefore conclude that the trial court properly denied the defendant’s motion to suppress.

For the foregoing reasons, I respectfully concur with the majority’s result affirming the judgment of the trial court.

       General Statutes § 53a-139 (a) provides in relevant part: “A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed ... (3) a written instrument officially issued or created by a public office, public servant or governmental instrumentality . . . .”

       General Statutes § 21a-279 (c) provides in relevant part: “Any person . . . who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

       The defendant also claims that the court issued an illegal sentence. At the sentencing hearing, the court sentenced the defendant to a term of thirty-nine months incarceration, the legality of which the defendant concedes. The court later misspoke and indicated that his term totaled three and one-half years. The judgment file expressly states that “[o]n July 18, 2005, the following sentence was imposed by Judge Wilson who presided over the trial: Count [one], the defendant was sentenced to [thirty-nine] months to serve; [Count two] the defendant was sentenced to unconditional discharge.” The judgment mittimus, of which we are entitled to take judicial notice; Grant v. Commissioner of Correction, 87 Conn. App. 814, 817, 867 A.2d 145, cert. denied, 274 Conn. 918, 879 A.2d 895 (2005); likewise reflects that the defendant received a sentence of thirty-nine months. That claim, therefore, lacles merit.

       At trial, counsel for the defendant stipulated that both sets of fingerprints were those of the defendant.

       The record is unclear as to precisely when the defendant made that statement at police headquarters and whether it preceded his statement to Butler.

       Although the court found that the defendant was not provided warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), until after he was booked, it nevertheless concluded that no custodial interrogation occurred.

        “Miranda has become embedded in routine police practice to the point where warnings have become part of our natural culture.” Dickerson v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).

       In addition to his statements at the parking lot and during booking, the defendant challenges the admission of his statement to Matheny at police headquarters that “he was Ricardo Etienne and that he had reentered the country through Orlando, Florida.” The record reveals that this particular statement was not in response to any question from any member of the Stamford police department, but rather was voluntarily uttered as the defendant awaited processing. Specifically, the court heard testimony from Matheny that “I was just standing in the booking area watching him get processed” when the defendant made that declaration. Matheny and other officers offered uncontradicted testimony that they did not ask the defendant any questions to elicit that information. “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda v. Arizona, supra, 384 U.S. 478.

       The fifth amendment provides in relevant part: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” Although the defendant alleges a violation under both the federal and state constitutions, he has failed to analyze separately his state constitutional claim. Therefore, we consider only his federal claim. See State v. Rizzo, 266 Conn. 171, 290 n.69, 833 A.2d 363 (2003).

       The defendant’s uniform arrest report on its face belies the state’s contention that the forgery charge “may not even have existed at the time the questions were asked.” In addition, Matheny testified that he “positively recognized” the defendant and, further, that he stated that fact “at the scene” and “in the jail.” That testimony confirms that the defendant’s actual identity was at issue prior to Butler’s questioning.

       The concurrence concludes that the booking question as to the defendant’s name was a neutral one directed toward ascertaining the defendant’s true name for booking purposes. The fact that Matheny informed his fellow officers at police headquarters that he knew the defendant was Ricardo Etienne, and not Alain Etienne as the identification card averred, casts doubt as to whether Butler’s question was, in fact, neutral. Coupled with the fact that Butler knew the defendant was being charged with forgery in the second degree in violation of General Statutes § 53a-139, as evinced by the uniform arrest report he completed, it is plausible that, under the guise of seeking objective or neutral information, Butler attempted to elicit an incriminating statement.

       The back of the instrument contained “driver license restriction codes” and “learners license” conditions in small print. It further contained the following text: “Fred O. Dickinson HI, Executive Director, Department of Highway Safety and Motor Vehicles, Sandra C. Lambert, Director, Division of Driver Licenses,” and stated: “The state of Florida retains all property rights herein. DL38.”

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

       In Pennsylvania v. Muniz, supra, 496 U.S. 602 n.14, the United States Supreme Court qualified the booking exception by stating that “the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” Although this court has examined routine booking questions under the standard set forth in Rhode Island v. Innis, supra, 446 U.S. 300-301, 1 note that the evidence in this case establishes that the question as to the defendant’s name was certainly not “designed” to elicit an incriminating response, but rather was simply part of standard booking procedure.

       Although I need not reach the issue of whether the admission of the defendant’s statement constituted harmless error, I agree with the majority’s analysis.


author: SCHALLER, J.

text:
    NEWTOWN POOL CONSTRUCTION, LLC v. MARK ERRICO
    (AC 27498)
    Schaller, DiPentima and McLachlan, Js.
    Argued June 4
    officially released September 4, 2007

      Walter A. Shalvoy, Jr., for the appellant (defendant).

      William F. L. Rodgers, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Mark Errico, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Newtown Pool Construction, LLC. On appeal, the defendant claims that the court improperly awarded damages for unjust enrichment in a claim arising under the Home Improvement Act, General Statutes § 20-429. Because the record before us is inadequate, we decline to review the defendant’s claim and, accordingly, affirm the judgment of the trial court.

The record reveals little about the factual background of this case. On April 7, 2003, the plaintiff and the defendant entered into a written contract for the installation of an in ground swimming pool at the defendant’s residence at a cost of $26,400. The plaintiffs complaint alleges that, shortly after the commencement of the work, the defendant requested that a pool slide be added to the construction and agreed to pay the additional charge associated therewith. The complaint further alleges that, during the construction process, groundwater was discovered and, pursuant to the contract, an additional fee was charged to remedy that problem. The defendant refused to pay $4743.50 due for the additional work of installing the slide, $582.47 for curing the groundwater problem and the final installment payment due under the original contract in the amount of $2640, for a total of $7965.97. The additional items of work were represented in two additional work orders.

The plaintiff filed this action in two counts, claiming breach of contract in the first count and unjust enrichment in the second count. Following a trial, the court found in favor of the plaintiff on both counts of the complaint. As to the first count, the court awarded damages in the amount of $2640, plus interest, costs and counsel fees. As to the second count, the court awarded damages for unjust enrichment in the amount of $5325.97. The court indicated that the unjust enrichment award was reached by “adding the two additional work orders, the first being for a slide and concrete in the amount of $4743.50, and the second being for stairwell removal and groundwater control in the amount of $582.47.” The defendant filed a “motion to set aside the verdict and for remittitur” with regard to the unjust enrichment award on the ground that the additional work orders did not comply with the Home Improvement Act and, therefore, the plaintiff was barred from recovery. The court summarily denied the defendant’s motion, and this appeal followed.

On appeal, the defendant challenges the court’s judgment only as to the unjust enrichment count. The defendant claims that because the additional work orders were not signed by the defendant, did not include a start date for the project and did not contain a three day right of rescission as required by the Home Improvement Act, the court improperly awarded damages to the plaintiff on the basis of those additional work orders.

The Home Improvement Act was enacted in 1979 “not only to protect homeowners from substandard work, but also to ensure that homeowners are able to make an informed choice on a decision that has potentially significant financial consequences.” Barrett Builders v. Miller, 215 Conn. 316, 327, 576 A.2d 455 (1990). In Barrett, our Supreme Court determined that a contractor could not recover from a homeowner on an unjust enrichment or quasi-contract theory for work done under a contract that violated the Home Improvement Act. Id., 322-23.

“The legislature added subsection (f) to § 20-429 when it enacted No. 93-215, § 1, of the 1993 Public Acts, in order to address what it considered to be the harsh result of Barrett .... See 36 S. Proc., Pt. 10, 1993 Sess., p. 3451, remarks of Senator Thomas F. Upson (As you know, there was a Supreme Court decision that said if it wasn’t in writing and value had been put in . . . the contractor could not get any money back at all. So this at least attempts to alleviate partially that situation.); 36 H.R. Proc., Pt. 16, 1993 Sess., p. 5611, remarks of Representative Thomas A. Fox, chairman of the general law committee (discussing Barrett Builders and stating that it is somewhat unfair to require that each i be dotted and t be crossed).” (Internal quotation marks omitted.) Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 310, 901 A.2d 1198 (2006). Subsection (f) of § 20-429 allows quantum meruit recovery in certain cases of partial noncompliance with subsection (a), in which a contractor seeks “payment for work performed based on the reasonable value of services which were requested by the owner, provided the [factfinder] determines that it would be inequitable to deny such recovery.” General Statutes § 20-429 (f). Thus, if a court determines that the requirements of subsection (f) are met, it may award damages under a theory of unjust enrichment even if all of the requirements of the Home Improvement Act are not met.

In its decision, the court stated: “The court having reviewed all the exhibits presented as well as the testimony of the witness, who the court found to be credible, has determined that the plaintiff has sustained [its] burden of proof in regard to both counts of [its] complaint.” The court did not make any factual findings or set forth the legal reasoning for its decision. “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed.” (Internal quotation marks omitted.) Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn. App. 557, 585, 845 A.2d 417 (2004). “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us . . . would be entirely speculative.” (Internal quotation marks omitted.) Ocwen Federal Bank, FSB v. Charles, 95 Conn. App. 315, 329, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).

On the basis of the court’s award of damages on both counts, we could conclude that the court found that the original contract complied with the Home Improvement Act. Further, because the court did not award damages for the additional work orders under the contract count, but instead did so on the unjust enrichment count, we could conclude that the court did not consider those work orders to be part of the contract. Even if we draw these conclusions, however, we are still left with an inadequate record to review the defendant’s claim because the court did not make any factual findings as to the requirements of § 20-429 (f). Because the court’s decision is devoid of any findings or analysis on the unjust enrichment issue, and because the defendant did not seek an articulation, we would be left to speculate as to the basis of the court’s decision in this regard. Accordingly, we decline to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Not only did the court not set forth the factual bases for its decision, as we will discuss, but the defendant also failed to provide us with a transcript of the trial.

       General Statutes § 20-429 (f) provides: “Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.”

       “The legislative history surrounding House Bill No. 7044, ‘An Act Concerning Recovery of Home Improvement Contractors,’ which became § 20-429 (f), indicates the amendment was intended to allow quantum meruit claims by contractors who had performed work and had not been paid, provided they satisfied the listed elements of § 20-429 (a). See 36 S. Proc., supra, p. 3448, remarks of Senator Thomas A. Colapietro (noting that amendment allows home improvement contractors to recover payments for reasonable value of services provided); 36 H.R. Proc., supra, p. 5603, remarks of Representative John Fox (‘[the bill] modifies the existing law to allow a contractor to recover on a theory of quantum meruit for what is reasonable and fair based upon the work that was done, if in fact, certain requirements but not all that are required, are met’).” Economos v. Liljedahl Bros., Inc., supra, 279 Conn. 310 n.14.