author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. ANDREW NELSON
    (AC 20564)
    Lavery, C. J., and Schaller and Daly, Js.

      Argued September 10
    officially released December 4, 2001

      Glenn M. Conway, with whom, on the brief, was Tara L. Knight, for the appellant (defendant).

      Ronald Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene Calistro, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Andrew Nelson, appeals from the judgment of conviction rendered by the trial court after his plea of guilty to the charge of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b). On appeal, the defendant claims that the court improperly denied his motion to withdraw his guilty plea because (1) the court’s canvass of the defendant did not ensure that the plea was given voluntarily, (2) he was denied the effective assistance of counsel in the plea process and (3) he received a greater sentence than that for which he had bargained. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The defendant was charged with possession of a controlled substance in violation of General Statutes § 21a-279 (b), possession of a controlled substance with intent to sell in violation of § 21a-277 (b) and possession of a controlled substance with intent to sell within 1500 feet of a school in violation of § 21a-279 (d).

On August 31, 1999, the defendant, represented by a public defender, came before the trial court after reaching a plea agreement with the state and pleaded guilty to possession of a controlled substance with intent to sell in violation of § 2 la-277 (b). Before accepting the defendant’s plea, the trial court canvassed the defendant pursuant to Practice Book §§ 39-19 through 39-21. The court concluded that the defendant’s plea was knowing, voluntary and made with the assistance of counsel. The state and the defendant informed the trial court that in exchange for the guilty plea, the state would recommend a four year sentence with execution suspended after two years as a cap, the right to argue for a suspended sentence and three years probation. The state and the defendant also had agreed that the state would recommend a completely suspended sentence if the defendant cooperated with police between the plea date and sentencing, had no new arrests in that time, showed up for court and had a good presentence investigation report. The trial court was unaware of that additional agreement.

After several continuances and a change of counsel, the defendant filed a motion to withdraw his plea in which he claimed that his plea was involuntary because he was not fully canvassed with respect to the agreement and that the plea was made without the effective assistance of counsel. The defendant asserted that he believed that he would receive a suspended sentence if he met the conditions in the agreement between the time of his plea and the sentencing date. This “belief’ arose from an alleged “promise” that the defendant claimed his attorney had made regarding the plea agreement.

The trial court denied the defendant’s motion as to both claims. With regard to the claim that the plea was involuntary, the court determined that the plea canvass was adequate and the plea was made voluntarily. The trial court also denied the motion as to the ineffective assistance of counsel claim after an evidentiary hearing, finding that the evidence did not support the defendant’s assertion that his attorney had made the promise that the defendant claimed he made. The trial court sentenced the defendant to four years in prison, execution suspended after one year. This appeal followed.

I

The defendant’s first claim is that the court improperly denied his motion to withdraw the guilty plea in violation of Practice Book § 39-27 (2) because the plea was involuntary. The defendant claims that this denial was improper because the court failed to comply substantially with Practice Book § 39-20, which requires the trial court to be certain that a plea is given voluntarily. Specifically, the defendant claims the court did not determine that the plea was voluntary because it did not inquire whether any promises had been made to the defendant to induce his plea. We are not persuaded.

We first note our standard of review for this issue. “Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. [0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 505-506, 752 A.2d 49 (2000).

The defendant has asked this court to decide whether the trial court substantially complied with Practice Book § 39-20 when its only inquiry concerning voluntariness was, “Were you forced to enter this plea?” The defendant contends that the court did not learn the complete terms of the plea agreement because it failed to ask the defendant whether any other promises had been made. As a result, the defendant contends that his plea was involuntary because it did not take into account the complete plea agreement.

While this exact question has not been decided, we do not write on a clean slate with regard to compliance with Practice Book § 39-20, as both this court and our Supreme Court recently have addressed this issue. In State v. Ocasio, 50 Conn. App. 748, 753-54, 718 A.2d 1018 (1998), rev’d, 253 Conn. 375, 751 A.2d 825 (2000), we determined that literal compliance with Practice Book § 39-20 is necessary. In Ocasio, the trial court asked the defendant during his plea canvass whether the plea was voluntary, to which the defendant answered, “ ‘Yes.’ ” Id., 750. Thereafter, the court accepted the defendant’s plea as voluntary. Subsequently, the defendant filed a motion to withdraw his plea, claiming the trial court had failed to ensure that the plea was voluntary. Id., 750-51.

After the trial court denied that motion, the defendant appealed, claiming that to comply with Practice Book § 39-20, a trial court must inquire not only as to the voluntariness of the plea, but also as to whether the plea was the result of threats, force or promises apart from the plea agreement. Id., 751. We agreed, concluding that to comply with the mandate of § 39-20, a trial court’s plea canvass must ensure that the plea is not the result of force or threats or promises. Id., 756.

Our Supreme Court, however, reversed our decision in State v. Ocasio, 253 Conn. 375, 380, 751 A.2d 825 (2000), concluding that “only substantial, rather than literal, compliance with § 39-20 is required in order to validate a defendant’s plea of guilty.”

After holding that the voluntariness of a plea does not depend on strict compliance, our Supreme Court enunciated a test for substantial compliance with Practice Book § 39-20. Id., 380. “[T]he test for substantial compliance is whether, in light of all of the circumstances, the trial court’s literal compliance with § 39-20 would have made any difference in the trial court’s determination that the plea was voluntary.” Id. In assessing the circumstances surrounding the trial court’s decision, the Supreme Court noted that the trial court had thoroughly canvassed the defendant, that the defendant had stated that his plea was voluntary and that there was nothing in the record to suggest that the defendant would have responded affirmatively if asked whether the plea was the result of force, threats or promises apart from the plea agreement. Id., 381.

In light of Ocasio, we must apply the substantial compliance test, as directed by our Supreme Court, to determine whether the trial court in the present case substantially complied with § 39-20 when it canvassed the defendant. We conclude that under the circumstances, the court’s canvass did substantially comply with Practice Book § 39-20.

The record in this case, as in Ocasio, reflects that the trial court’s canvass was thorough. The court first ascertained the underlying factual basis for the plea, and the state recited the agreement to the trial court. The state represented the agreement as follows: “The state’s recommendation ... is four years suspended after two years, as a cap with a right to argue for a suspended sentence, three years probation. This will require a presentence investigation.”

The trial court then continued the canvass and asked the defendant if he had consumed anything that might interfere with his ability to make a decision. The defendant responded, “No.” The court asked if the defendant had had enough time to discuss the matter with counsel and if the evidence against the defendant had been discussed. The defendant answered, “Yes.” The court then inquired if the defendant knew what constitutional rights he was surrendering. Again, the defendant acknowledged, “Yes.” Following that, the court informed the defendant of the maximum and minimum penalties to which he was exposed. The court asked if the defendant understood that, and the defendant responded, “Yes.”

The court next recited its understanding of the plea agreement to the defendant, stating: “There is an agreement four years suspended after two as a cap and three years probation. The state will be arguing for a maximum of two years and your attorney will be arguing for a lesser sentence. Do you understand that?” The defendant answered, “Yes.”

The trial court then asked the defendant, “Were you forced to enter this plea?” The defendant responded, “No.” The court also asked the attorneys if they knew of any reason why the plea should not be accepted, to which they responded that they did not. Thereafter, the court determined that the plea was voluntary, accepted the plea of guilty and set a sentencing date.

The record in this case also establishes that, as in Ocasio, the defendant here did acknowledge that his plea was voluntary. In this case, however, the trial court’s question that establishes this fact was shaped to elicit a negative response. Specifically, the defendant said, “No,” when asked if he was forced to enter the plea. This is in contrast to Ocasio, in which the trial court asked the question in a foim that received a positive reply, namely, “Is the plea voluntary?”, to which the defendant in that case answered, “Yes.” The difference is in style and not substance. Both queries established that the pleas were entered voluntarily and without force.

Moreover, the record in this case, which is similar to that in Ocasio, is devoid of any indication that the defendant would have responded affirmatively if asked specifically if the plea was the result of force, threats or promises. In the initial stages of the plea entry, the state’s attorney explained the plea agreement to the court. The defendant did not make any comment to the court or to his attorney at that point. Soon after that, as part of the actual canvass, the trial court specifically explained what its understanding of the plea bargain was in its colloquy with the defendant. The defendant did not question or contradict the trial judge’s version of the agreement or interrupt the proceeding to confer with counsel.

We are not persuaded by the defendant’s argument that, although he made no objection after hearing two accounts of the plea agreement that he now claims were inconsistent with his own understanding, he would have spoken up if the trial court simply had asked him if the plea was the result of force, threats or promises. In light of all the circumstances, the court’s literal compliance with Practice Book § 39-20 would not have made any difference in the court’s determination that the plea was voluntary. We conclude that the court’s plea canvass did substantially comply with § 39-20. Having substantially complied with the rules of practice, the court did not abuse its discretion in denying the defendant’s motion.

II

The defendant’s second claim is that the court improperly denied his motion to withdraw the guilty plea in violation of Practice Book § 39-27 (4) because he was denied the effective assistance of counsel. The defendant claims that his trial counsel was ineffective because he made a promise concerning sentencing that he did not and could not keep, which the defendant relied on when pleading. The defendant also claims that his counsel was ineffective because he did not disclose the conditional part of the plea agreement to the trial court when it became clear at the plea hearing that the trial court was not aware of it.

A

The defendant asserts that his attorney “promised” him a completely suspended sentence if he complied with the conditions established in the agreement that was made with the state when counsel in fact had no authority to ensure that result. The defendant argues that he was denied the effective assistance of counsel because he was induced to plead guilty by a promise that his attorney could not be certain of fulfilling. We do not agree.

Again, we note that our standard of review is abuse of discretion for decisions on motions to withdraw guilty pleas brought under Practice Book § 39-27. See State v. Andrews, supra, 253 Conn. 505-506. We further note the pertinent case law applicable to ineffective assistance of counsel claims brought under § 39-27 (4). Our case law holds that “[a] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. . . . Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Citation omitted; internal quotation marks omitted.) State v. Gray, 63 Conn. App. 151, 161-62, 772 A.2d 747, cert. denied, 256 Conn. 934, 776 A.2d 1151 (2001).

In deciding whether the defendant has met the first prong of the test articulated in Gray for ineffective assistance of counsel claims, we must assess his attorney’s performance to determine if it was within the normal range of competence of a practitioner in this situation. Id., 161. With regard to the first prong, the issue is not whether it is inappropriate for counsel to promise or guarantee a client that the trial court will impose a specific sentence. This is clearly improper because it is well settled that final sentencing authority lies in the province of the trial court. Rather, the issue is whether the defendant’s attorney did in fact make such a promise. After an evidentiary hearing on the ineffective assistance of counsel claim, the trial court determined that no such promise had been made.

It appears from the transcript that the court found that the only “promise” made to the defendant by his attorney was that if the defendant complied with the conditions, then the state would indeed follow the agreement and recommend a suspended sentence to the court.

In making this determination and denying the defendant’s motion to withdraw because of ineffective assistance of counsel, the court referred to two specific pieces of evidence. First, the court rejected the testimony of attorney Mark Welsh, the public defender who had represented the defendant up to and during the plea hearing and who was called as a witness at the evidentiary hearing. The court stated that his testimony about the promise to the defendant was contrary to his testimony about how he has advised all his other clients when a plea is made. If the court were to accept his testimony about the promise, it would have to accept the proposition that this was the only case in which Welsh, an experienced defense attorney, had assured a defendant of what the court would do.

In addition, though not directly stated by the court, it appears from the transcript of the court’s own examination of Welsh that it felt that Welsh’s statements to the defendant amounted to something more akin to an opinion or prediction about the likely sentence, as opposed to an absolute guarantee. The court reached this conclusion after it had determined that Welsh himself knew the court was the final authority on the sentence to be imposed and that Welsh had indeed made it clear to the defendant that the court would make the final decision on the sentence. The court also ensured that Welsh had explained to the defendant what the maximum penalty was for the crime. Convinced that both Welsh and the defendant were aware that the court would decide what the sentence would be and what it could be, the court refused to credit Welsh’s testimony about his promise as a sentence guarantee.

Because Welsh took the stand as a witness, the court was required to weigh the credibility of his testimony. The court having done so, we must rely on that finding. We repeatedly have held that “credibility is a matter for the trier of fact to determine. In a [proceeding] tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . Where there is conflicting evidence . . . we do not retry the facts or pass on the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine. ... On appeal ... [a] factual finding may be rejected by this court only if it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Id., 160-61.

We see nothing in the court’s determination that is clearly erroneous. Our review of the transcript indicates that Welsh’s testimony about the alleged promise reflects a degree of uncertainty. The court’s evaluation of the evidence was a fair interpretation.

Second, the court revisited the initial plea canvass and reviewed the defendant’s conduct during the entry of the plea. The court noted that the defendant did not take issue with the plea agreement as it was recited to him and voluntarily entered his plea. Moreover, the court noted the fact that in the canvass, it had recited to the defendant the number of years that the plea allowed for, as well as the fact that the state’s attorney would be arguing for the maximum and defense counsel for less. The court stated that despite the claim of a guarantee, the defendant was aware of the maximum sentence to which he was exposed.

Because the trial court found that the “promise” that the defendant claims counsel made actually was not made, we conclude that the defendant has failed to meet the first prong of the Gray test for ineffective assistance of counsel claims. We therefore need not consider the second prong. We conclude that the trial court did not abuse its discretion in denying the defendant’s motion to withdraw his plea based on ineffective assistance of counsel.

B

The defendant also argues that he received ineffective assistance of counsel at the plea hearing because Welsh did not explain the conditional agreement that the defendant had made with the state to the court after the court had explained its understanding of the plea agreement but failed to mention any conditions.

Again, we apply the two-pronged test in Gray for ineffective assistance of counsel claims. Id., 161-62. In applying the first prong, we must determine whether a failure to inform the trial court about the conditional agreement falls outside the range of what a competent lawyer in the same circumstances would have done. While we note that it clearly would have been appropriate to inform the trial court about the conditional agreement, we need not decide this because the defendant so clearly fails to meet the second prong under the circumstances of this case.

In applying the second prong, we must determine if there is such an interrelationship between Welsh’s nondisclosure and the defendant’s plea that we can say that the defendant’s guilty plea was not voluntarily and intelligently made because of Welsh’s failure to inform the court about the conditional agreement. On the basis of the facts of this case, we conclude that despite the nondisclosure, the plea was voluntarily and intelligently made. Therefore, Welsh’s failure to inform the court about the conditional agreement does not constitute ineffective assistance of counsel. We reach this result after examining the plea that the defendant entered and the undisclosed agreement.

Although Welsh’s failure to disclose the full plea agreement was not proper, it does not constitute ineffective assistance of counsel because the defendant entered a plea that exposed him to a maximum of two years in prison. Having done so, the defendant agreed to subject himself to any sentence up to that maximum term that the trial court deemed appropriate in its discretion. The additional agreement, regardless of the fact that it was not disclosed, involved only the state’s recommendation to the court to suspend the defendant’s sentence if he met certain conditions. It did not in any way relate to or affect the maximum potential sentence that the defendant agreed to allow the court to impose on him.

The second prong of the Gray test requires that an interrelationship exist between counsel’s conduct and the defendant’s plea such that we can conclude that the plea was involuntary because of what counsel did. We do not have such an interrelationship here because Welsh’s conduct in failing to disclose the conditional agreement related only to the state’s recommendation, while the defendant’s plea related to the maximum amount of jail time to which he was willing to expose himself as a consequence for pleading guilty. Those aspects of the plea agreement are unrelated. The undisclosed agreement went to the best possible sentence that the defendant could receive if the trial court agreed to follow the state’s recommendation. The defendant’s plea focused on what he would accept if the court ultimately rejected that recommendation.

Because the focus of Welsh’s nondisclosure and that of the defendant’s plea were different and because the two had no bearing on each other, we conclude that the necessary interrelationship does not exist between them. We therefore cannot say that the plea was not voluntary and intelligent because of Welsh’s failure to inform the court about the conditional agreement. As a result, we do not agree with the defendant’s assertion that he had ineffective assistance of counsel at the plea hearing.

We conclude that the court did not abuse its discretion in denying the defendant’s motion to withdraw his plea based on ineffective assistance of counsel.

Ill

The defendant’s final claim is that the court improperly denied his motion to withdraw the guilty plea after it imposed a sentence on the defendant that was greater than the one for which he had bargained. In this claim, the defendant argues first that he did not get the benefit of his bargain because the court was not aware of the conditional agreement that the state would recommend a suspended sentence. Second, the defendant asserts again that his plea was involuntary because he did not have knowledge of the sentencing possibilities beyond those that his attorney had provided.

Because we have fully addressed and decided these claims in parts I and II of this opinion, it is unnecessary to address them further.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 39-27 (2) provides in relevant part that a defendant may withdraw a guilty plea if it was involuntary.

       Practice Book § 39-20 provides in relevant part: “The judicial authority shall not accept a plea of guilty . . . without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement.

       As stated previously, the agreement also had a conditional aspect that was contingent on the defendant’s postplea conduct, the specific conditions of which the court was unaware.

       Practice Book § 39-27 (4) provides that a defendant may withdraw a guilty plea if the plea results from the denial of the effective assistance of counsel.

       Though not articulated in the defendant’s brief, for this claim to make sense, the “promise” in issue here must actually consist of two guarantees. The first is the attorney’s guarantee that the state would indeed live up to its end of the bargain and recommend a suspended sentence if the defendant met the conditions in the agreement. The second is counsel’s guarantee that the trial court would follow that recommendation.

       While the transcript indicates that the trial court and counsel for both sides agreed that the proper standard for addressing the ineffective assistance of counsel claim was the well known Strickland test; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); we apply the test articulated in Gray, which is essentially the same test, but is more finely tailored to claims brought pursuant to Practice Book § 39-27 (4).

       As stated in footnote 5, this apparently is one of the two alleged guarantees that culminated in the “promise” that the defendant claims his attorney made to him.

       Welsh indicated in an affidavit that he had promised the defendant a suspended sentence if he complied with the agreement’s terms.

       As the previous discussion and footnotes 5 and 7 show, the court determined that Welsh had not given both of the guarantees that would together comprise the “promise” that the defendant alleged was made to him. Specifically, it seems that the trial court was not persuaded that Welsh made the second guarantee that assured the defendant of what the court would ultimately do.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    STATEWIDE GRIEVANCE COMMITTEE v. RIDGELY WHITMORE BROWN
    (AC 20706)
    Lavery, C. J., and Flynn and Dupont, Js.

      Argued September 26
    officially released December 4, 2001

      Ridgely W. Brown, pro se, the appellant (defendant).

      Maureen A. Horgan, assistant bar counsel, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, Ridgely Whitmore Brown, appeals from the judgment of the trial court suspending him from the practice of law and ordering him to participate in fee arbitration. The defendant claims that (1) Practice Book § 2-37 (a) (6), which authorizes the plaintiff statewide grievance committee to order mandatory arbitration, is unconstitutional, (2) the court improperly found that he had waived the right to contest the constitutionality of § 2-37 (a) (6), (3) the court improperly denied his proposed arbitration order and granted that of the plaintiff and (4) the court abused its discretion in suspending him from the practice of law for ninety days. We affirm the judgment of the trial court.

The following facts are relevant to the issues on appeal. The defendant is an attorney who was admitted to the Connecticut bar in 1977. In July, 1997, one of the defendant’s clients, Dan Gray, filed a grievance against him with the plaintiff. In the grievance, Gray alleged, inter alia, that the defendant had charged him an excessive and inappropriate fee, provided misleading advice and performed little work on his case. Gray v. Brown, Grievance Complaint No. 97-0041. The plaintiff referred the case to a reviewing committee that conducted hearings on the matter on December 3, 1997, February 4, 1998, and April 1,1998, and found by clear and convincing evidence that the defendant had violated rules 1.4, 1.5 and 1.16 of the Rules of Professional Conduct. On September 10, 1998, the plaintiff mailed him a copy of the reviewing committee’s proposed decision and informed him that he had fourteen days in which to submit a statement in opposition or support. On October 15, 1998, the plaintiff adopted the findings of the reviewing committee and voted to reprimand the defendant.

In conjunction with the reprimand and pursuant to the authority conferred by Practice Book § 2-37 (a) (6), the plaintiff ordered the defendant to participate in arbitration to determine a reasonable fee for the work that the defendant did on Gray’s case. The defendant was notified of the order by letter dated October 16, 1998. The letter stated that the defendant, within sixty days, was either to submit to the arbitration or to inform the plaintiff of the reasons why he did not do so. The letter further required the defendant to notify the plaintiff within fourteen days if the matter was submitted to arbitration and to notify it again within fourteen days of the result of any arbitration decision. The defendant failed to comply with any of those requirements.

In a letter dated January 7, 1999, the plaintiff requested that the defendant provide by January 19, 1999, an explanation for his noncompliance with the arbitration order. The defendant did not reply. In a March 5, 1999 letter, the plaintiff informed the defendant that a presentment would be filed against him in the Superior Court, and he would be subject to whatever discipline the court deemed appropriate for his continuing noncompliance with the order to arbitrate.

On or about May 19, 1999, the plaintiff filed against the defendant in the Superior Court a complaint for presentment of attorney for disciplinary action pursuant to Practice Book (1999) § 2-37 (b), now (c). 6At the presentment trial, the defendant argued that he had refused to submit to fee arbitration because he believed that the rule of practice authorizing the plaintiff to order arbitration was unconstitutional. The court found that the defendant had disregarded the clear procedures available to contest the arbitration order by waiting until the presentment trial to do so and, therefore, had waived the right to raise the constitutional challenge. The court, in a March 21, 2000 memorandum of decision, found by clear and convincing evidence that the defendant had violated Practice Book § 2-37, and rendered judgment ordering immediate arbitration and suspending the defendant from the practice of law for ninety days. From that judgment, the defendant appealed.

Thereafter, the plaintiff and the defendant each filed with the court proposed orders for the arbitration proceedings. On July 15, 2000, the court, with slight modification, granted the order requested by the plaintiff and denied that requested by the defendant. The defendant filed an amended appeal to include a claim regarding the parameters of that order. Additional facts will be set forth as necessary to address the issues on appeal.

I

We address the defendant’s second claim first because it is dispositive of his first claim on appeal. At his presentment trial, the defendant argued that Practice Book § 2-37 (a) (6), the provision pursuant to which the plaintiff had ordered him to submit to arbitration, is unconstitutional because it denies him the right to a jury trial. The defendant raises that argument again in his first claim on appeal. He also claims on appeal that although he raised the issue for the first time in the presentment trial, the court improperly found that he had waived the right to contest the constitutionality of the provision. We conclude that the defendant waived the right to contest the order of the plaintiff by knowingly ignoring the established procedure for its review. Consequently, it is unnecessary for us to consider whether § 2-37 (a) (6) is unconstitutional.

Waiver consists of the intentional abandonment or voluntary relinquishment of a known right. Soares v. Max Services, Inc., 42 Conn. App. 147, 175, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). Whether a waiver has occurred is a question of fact. Majernicek v. Hartford Casualty Ins. Co., 240 Conn. 86, 96, 688 A.2d 1330 (1997). We therefore review the court’s finding under the clearly erroneous standard. Id.

Waiver “involves the idea of assent, and assent is an act of understanding. . . . Intention to relinquish must appear, but acts and conduct [consistent] with intention to [relinquish] . . . are sufficient.” (Internal quotation marks omitted.) Infante v. Mansfield Construction Co., 47 Conn. App. 530, 538, 706 A.2d 984 (1998). Thus, “[w]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied.” (Internal quotation marks omitted.) Dichello v. Holgrath Corp., 49 Conn. App. 339, 350, 715 A.2d 765 (1998). “In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Id.

Attorney grievance proceedings are governed by the General Statutes and the rules of practice. General Statutes § 51-90g and Practice Book § 2-35 authorize the statewide grievance committee to assign a grievance case to a reviewing committee for a hearing. Subsection (e) of Practice Book § 2-35 provides in relevant part that upon referral, “the reviewing committee shall render a final written decision dismissing the complaint, imposing sanctions and conditions as authorized by Section 2-37 or directing the statewide bar counsel to file a presentment against the defendant in the superior court and file it with the statewide grievance committee. . . . The reviewing committee shall forward a copy of the final decision to the complainant, the respondent, and the grievance panel . . . .” See also General Statutes § 51-90g (e) and (f).

General Statutes § 51-90h (a) provides in relevant part that “[w]ithin fourteen days of the issuance to the parties of the proposed decision [of the reviewing committee], the . . . defendant may submit to the State-Wide Grievance Committee a statement in support of, or in opposition to, the proposed decision. . . .”

Practice Book § 2-35 (g) provides in relevant part that “[w]ithin thirty days of the issuance to the parties of the final decision by the reviewing committee, the defendant may submit to the statewide grievance committee a request for review of the decision. Any request for review submitted under this section must specify the basis for the request, including, but not limited to a claim or claims that the reviewing committee’s findings, inferences, conclusions or decision is or are (1) in violation of constitutional, rules of practice or statutory provisions . . . .” (Emphasis added.)

In this case, the defendant was informed by letter of the decision of the reviewing committee. Included in that decision was the committee’s recommendation that he be ordered to submit to fee arbitration. The letter specifically informed the defendant that he could, in accordance with established procedures, submit a statement in opposition to the reviewing committee’s decision. The defendant did not submit a statement in opposition, nor did he invoke the review procedure of Practice Book § 2-35 (g) to raise the alleged constitutional defect of Practice Book § 2-37 (a) (6). Thirty-five days later, the plaintiff adopted the decision of the reviewing committee, reprimanding the defendant and ordering him to arbitrate.

In its notice to the defendant apprising him that it had adopted the decision of the reviewing committee, the plaintiff required further that if for “any reason the matter is not submitted to fee arbitration, ’ ’ the defendant was to “inform the [plaintiff] of the reasons in writing within sixty (60) days of th[e] notice.” The defendant still did not raise his constitutional claim or any objection to the arbitration order with the plaintiff.

As delineated by the statutes and rules of practice previously cited, a well defined procedure existed in which the defendant could have presented his claim that the arbitration order under Practice Book § 2-37 (a) (6) unconstitutionally deprived him of the right to ajury trial. “[A] member of the Connecticut bar . . . is expected to know the rules of practice.” Thalheim v. Greenwich, 256 Conn. 628, 647, 775 A.2d 947 (2001). Furthermore, the plaintiffs communications alerted the defendant that he could challenge the order to arbitrate, yet he consciously chose simply to ignore the order. As the court concluded, “[i]f the [defendant] had asserted the right to a jury trial within the proper time frame, both he and the committee could have resolved the issue without court intervention or alternately sought court intervention after the [defendant] properly presented his constitutional concerns to the committee.”

The defendant’s conduct in ignoring the procedure for contesting the plaintiffs decision was consistent with an intent to waive the right to contest that decision. Because the court’s finding that the defendant had waived the right to contest the decision is supported by the record, it is not clearly erroneous. Furthermore, because we uphold the court’s finding on waiver, we will not consider the defendant’s constitutional claim.

II

The defendant claims next that the court improperly granted the plaintiffs proposed order of arbitration and denied his proposed order. We disagree.

“Inherent in [the attorney disciplinary] process is a large degree of judicial discretion. ... A court is free to determine in each case, as may seem best in light of the entire record before it, whether a sanction is appropriate and, if so, what that sanction should be.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Dixon, 62 Conn. App 507, 515, 772 A.2d 160 (2001). “When the trial court determines that an attorney committed misconduct in violation of the Rules of Professional Conduct, unless it clearly appears that [the attorney’s] rights have in some substantial way been denied him, the action of the court will not be set aside upon review.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 453, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001).

In presentment proceedings, courts are “left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice. . . . Once the complaint is made, the court controls the situation and procedure, in its discretion, as the interests of justice may seem to it to require.” (Citation omitted; internal quotation marks omitted.) Statewide Grievance Committees. Rozbicki, 219 Conn. 473, 483, 595 A.2d 819 (1991), cert. denied, 502 U.S. 1094, 112 S. Ct. 1170, 117 L. Ed. 2d 416 (1992).

Here, the court found by clear and convincing evidence that the defendant had failed to comply with the sanction imposed by the plaintiff when he refused to submit to fee arbitration. The court ordered arbitration anew and accepted the parameters proposed by the plaintiff to govern the proceedings. The defendant argues, inter alia, that this order improperly framed the issue for arbitration as the determination of a “reasonable fee” for the work that he did for Gray, rather than as the interpretation of his contractual agreement with Gray.

In the underlying grievance proceeding, the defendant was found to have violated rule 1.5 of the Rules of Professional Conduct, which provides that “[a] lawyer’s fee shall be reasonable.” The court imposed a sanction for the defendant’s refusal to comply with the sanction imposed by the plaintiff, which was intended to effect a reassessment of what the plaintiff considered an unreasonable fee. The court’s order was tailored, therefore, to force the defendant to comply with the plaintiffs sanction to address the underlying violation of rule 1.5. As such, the court’s choice of sanctions appropriately addressed the situation before it. The defendant has not provided this court with a compelling explanation of how his receipt of a reasonable fee for the services he rendered amounts to a substantial denial of his rights. Consequently, we conclude that the court did not abuse its discretion in adopting the plaintiffs proposed order of arbitration.

Ill

The defendant last claims that the court abused its discretion in suspending him from the practice of law for ninety days. We disagree.

In a presentment action, the court is authorized to impose “reprimand, suspension for a period of time, disbarment or such other discipline as the court deems appropriate. . . .” Practice Book § 2-47 (a). We reiterate that a court has a large degree of discretion in disciplining attorneys. Statewide Grievance Committee v. Dixon, supra, 62 Conn. App 515. “As officers and commissioners of the court, attorneys are in a special relationship with the judiciary and are subject to the court’s discipline.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, supra, 61 Conn. App. 450-51.

A “comprehensive disciplinary scheme has been established to safeguard the administration of justice, and designed to preserve public confidence in the system and to protect the public and the court from unfit practitioners. . . . [The General Statutes and rules of practice] authorize the grievance committee to act as an arm of the court in fulfilling this responsibility.” (Citation omitted; internal quotation marks omitted.) Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554, 663 A.2d 317 (1995); see also Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 525-26, 576 A.2d 532 (1990) (grievance committee is not administrative agency but an arm of the court). Because the plaintiff operates on behalf of the court, the defendant’s defiance of the order to arbitrate was, in a sense, a defiance directed toward the court. Allowing an attorney to defy a disciplinary order without consequence, imposed after he is found in a hearing to have violated several of the Rules of Professional Conduct, would have the effect of undermining public confidence in the judicial system and would create the impression that attorneys are beyond rebuke. Under the circumstances of this case, where the defendant had a clear avenue to contest the plaintiffs order but instead chose to ignore it, we cannot conclude that the court abused its discretion in suspending him from the practice of law for ninety days.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rule 1.4 of the Rules of Professional Conduct requires an attorney to keep a client reasonably informed of the status of the legal work being performed and to explain matters sufficiently to allow the client to make informed decisions.

       Rule 1.5 of the Rules of Professional Conduct requires legal fees to be reasonable.

       Rule 1.16 of the Rules of Professional Conduct delineates the circumstances under which an attorney should withdraw from his or her representation of a client

       Practice Book § 2-37 (a) provides in relevant part: “A reviewing committee or the statewide grievance committee may impose one or more of the following sanctions and conditions in accordance with [the provisions governing grievance complaints] . . .
      “(6) an order to submit to fee arbitration . . .

       Practice Book (1999) § 2-37 (b), now (c), provides that “[failure of the respondent to comply with any sanction or condition imposed by the statewide grievance committee or a reviewing committee may be grounds for presentment before the superior court.”

       Because he failed to request that the plaintiff review the decision of the reviewing committee pursuant to Practice Book § 2-35 (g), the defendant thereafter was precluded from appealing from the reprimand to the Superior Court pursuant to Practice Book § 2-38 (a). Pursuant to Practice Book § 2-38 (f) (1), if the defendant properly had preserved the issue, the court could have reviewed the plaintiffs decision for constitutional error. See also Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 232-34, 578 A.2d 1075 (1990).

       The defendant’s testimony at the presentment trial further supports the court’s finding that he had waived the right to contest the constitutionality of Practice Book § 2-37 (a) (6). The defendant testified: “I didn’t respond to some things because I don’t like how [the grievance] committee does business,” and “I don’t like to do business with . . . administrative agencies that have a political orientation that doesn’t go in my direction.” He also stated that he did not appeal from the reprimand because “[he didn’t] want [his] name bandied about the . . . court records” and because of the deferential standard of review of a decision of an administrative body. Our Supreme Court recently noted that the “statutory and practice book provisions establish a comprehensive administrative mechanism for the investigation and resolution of attorney grievance complaints” meant to foster judicial efficiency; Johnson v. Statewide Grievance Committee, 248 Conn. 87, 99, 726 A.2d 1154 (1999); and that “[ajllowing parties to circumvent the established grievance procedures, at least in the absence of a compelling justification for doing so, would so undermine the process as to render it ineffectual.” Id., 99-100. The defendant's dislike of the administrative process is not such a compelling justification.

       Pursuant to the defendant’s suggestion, the court modified the plaintiffs proposed order, adding to it that “no evidence of the violation of any rule or disciplinary action shall be admissible in the fee arbitration hearing.”


author: FOTI, J. SHEA, J.,

text:
    STATE OF CONNECTICUT v. RUBEN ROMAN
    (AC 21586)
    Foti, Flynn and Shea, Js.

      (One judge dissenting)
    Argued September 27
    officially released December 4, 2001

      Michael A. Georgetti, with whom, on the brief, were Janis C. Jerman send Mark Rademacher, assistant public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Robin Cutuli, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Ruben Roman, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1) and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1). On appeal, the defendant claims that the court improperly (1) deprived him of his constitutional right to present a defense when it failed to instruct the jury that it had to decide whether his use of cocaine left him so intoxicated that he lacked the specific intent to commit murder and intentional assault, (2) violated his right to a jury trial by deciding, rather than asking the jury to decide, whether he had used a firearm in the commission of a class A, B or C felony for purposes of General Statutes § 53-202k, and (3) failed to conduct a preliminary inquiry to determine if a hearing was required to investigate his claim that improper communication between one or more jurors and a family member of one of the victims had occurred during trial. We affirm the judgment of the trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. On December 24, 1997, the defendant and his live-in girlfriend, Maria Torres-Arroyo, were hosting a late day holiday party for their respective families at the one family home they shared in East Hartford. During the party, the defendant consumed alcoholic beverages and ingested cocaine. The party lasted for several hours. At around midnight, the defendant left the party to drive his sister, his brother-in-law, his two nieces and his nephew to their home. Sometime around 2 a.m., the defendant returned home with his two nieces. He found Torres-Arroyo accompanied by her brother-in-law from a previous marriage, Israel Arroyo, her son, Ismael Arroyo, and her nephew, Eric Martinez, sitting around the dining room table. Both Ismael Arroyo and Martinez were under the age of sixteen.

Shortly after the defendant returned home, he and Torres-Arroyo engaged in a verbal argument. Torres-Arroyo went upstairs to prepare sleeping arrangements for the defendant’s nieces, and the defendant followed her. The two argued briefly, though the source of the conflict is unclear. Torres-Arroyo returned to the living room downstairs, reclined on the sofa and watched television. Shortly thereafter, the defendant descended the staircase while loading a .45 caliber semiautomatic pistol. The defendant began screaming at Torres-Arroyo. He told her that he and his nieces were going to leave because they were not welcome.

The defendant approached Torres-Arroyo and told her: “You’re not going to mess around with me no more, fuckin’ bitch.” He then fired his pistol at Torres-Arroyo, shooting her in her legs three times. After hearing the shots, Israel Arroyo rose from the table, where he and Martinez and Ismael Arroyo had been playing a game. The defendant, standing in the next room, turned toward Israel Arroyo and shot him in the abdomen. Israel Arroyo collapsed and crawled into the kitchen. The defendant followed him and fired two more shots at him. Those bullets traveled through Israel Arroyo’s body and through the kitchen floor beneath him. Investigators later recovered the bullets from the basement of the house. In the meantime, Martinez escaped from the scene through a back door and Ismael Arroyo, as well as the defendant’s two nieces, who had been in the basement, exited the house via the basement. Martinez and Ismael Arroyo reached a neighbor’s house, where they asked neighbors to call the police.

The defendant returned to the living room to find Torres-Arroyo trying to use a cordless telephone to call for help. After engaging in a brief struggle with the defendant, Torres-Arroyo threw the telephone under a nearby Christmas tree. The defendant removed a box of ammunition from his pocket and reloaded his pistol. He then shot Torres-Arroyo four more times, hitting her in her abdomen, head and wrist. His shooting ceased only after his pistol malfunctioned. The defendant tried to reload his pistol a second time to remedy the problem, but to no avail. The defendant also punched and kicked Torres-Arroyo, and struck her in the head with his pistol.

Soon thereafter, police officers Robert Zulick and Paul Lackenbach arrived on the scene. As they entered the front door of the house, they encountered the defendant standing above Torres-Arroyo’s bloody body in the hallway. The defendant pointed his pistol at the officers and ordered them to shoot him. The defendant did not heed the officers’ warnings to drop his pistol. The officers, however, realized that the slide mechanism on the defendant’s pistol had locked and that he was unable to release the slide to discharge the pistol. The officers charged the defendant. Zulick suffered a broken nose in the ensuing struggle. Eventually, the officers restrained the defendant and put handcuffs on him. The defendant told one of the officers, “I should have shot you, too.”

Israel Arroyo’s unconscious and bloody body still remained on the kitchen floor, near where the police were restraining the defendant. Another officer, Bruce Nease, had responded to the scene and attempted to revive Israel Arroyo. He regained consciousness for a brief time, long enough to see the defendant on the floor nearby. Israel Arroyo pointed to the defendant and uttered, “He shot me.” Israel Arroyo later died as a consequence of his gunshot wounds as paramedics were transporting him to a hospital. Torres-Arroyo survived the attack and, after a sustained period of recovery, involving multiple surgeries, she continues to suffer from her injuries. One of the bullets that the defendant fired at her still remains lodged in her pelvis.

I

The defendant first claims that the court deprived him of his constitutional right to present a defense when it failed to instruct the jury that it had to decide whether his use of cocaine left him so intoxicated that he lacked the specific intent to commit murder and intentional assault. We disagree.

The defendant did not dispute that he shot the victims. He claimed, however, that he was too intoxicated at the time of the shootings to form the specific intent to kill or cause serious physical injury. In support of that defense, the defendant testified that he consumed a large quantity of alcohol on the night of the shootings. The defendant also testified that he purchased an estimated five or six bags of cocaine that night and that he ingested the cocaine shortly thereafter. The defendant testified that his use of those substances caused him to have no memory of having shot the victims.

The defense called as a witness Peter M. Zeman, a licensed physician specializing in forensic psychiatry. Zeman testified that the defendant’s excessive alcohol consumption over a relatively short period of time could have caused the defendant to have experienced a “blackout” state on the night of the shootings. Zeman testified that a person in that state could appear to be relatively normal, but would be unable to record or retain memory of events that transpired during that period of time. Zeman also testified that such excessive alcohol consumption would “severely affect” a person’s decision-making or thought processes, and his or her ability to plan, reason and exercise judgment.

Zeman’s testimony concerning the effects of the defendant’s alleged cocaine use on the night of the shootings was much less extensive and was very different from his testimony concerning the effects of the defendant’s alcohol consumption. Zeman estimated that the defendant might have ingested as many as five or six bags of cocaine on the night of the shootings. He testified that cocaine is a stimulant, and that it “can cause people to be more excited and more impulsive,” and to experience an increase in blood pressure. He also noted that most people who use an excessive amount of cocaine, more than three or four bags, will become paranoid or excessively vigilant. Zeman testified, however, that the blackout state he discussed previously in his testimony was “completely dependent” on alcohol consumption, not cocaine use. Zeman also stated that all of his testimony about the possible or likely effects of alcohol and cocaine on the defendant on the night of the shootings was based on the weighty assumption that the defendant had testified truthfully concerning the amount of alcohol that he consumed and the amount of cocaine that he ingested.

The defendant submitted a charge to the court, requesting, inter alia, that the court remind the jury of the testimony concerning the defendant’s ingestion of intoxicants, including alcohol and cocaine, prior to the shootings. He also requested that the court instruct the jury that it was to consider the effect of those intoxicants, if any, on the defendant’s ability to form the necessary mental states required for the crimes he stood charged with having committed.

The court’s instruction as to the defense of intoxication mirrored the defendant’s requested charge in many respects. The basis of the defendant’s claim, however, is the following passage from the court’s charge: “I’m going to instruct you with regard to intoxication .... You’ve heard some testimony as to the effect that the defendant was under the influence of an intoxicant, namely alcohol, at the time of the alleged acts.” The defendant argues that the court’s failure “to include cocaine as an intoxicant gutted the intoxication instruction and deprived him of his only defense to the crimes.”

The defendant claims that the court improperly instructed the jury, thereby denying him his constitutional right to present a defense under the sixth amendment to the United States constitution, which is applicable to the states through the fourteenth amendment, and under the due process clause of article first, § 8, of the constitution of Connecticut. Intoxication is a valid theory of defense. General Statutes § 53a-7; see State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979). The defendant had a right to present relevant evidence in support of his defense, and he does not claim that the court did not permit him to do so in this case. See, e.g., State v. Bova, 240 Conn. 210, 236, 690 A.2d 1370 (1997).

Instead, the defendant argues that the court violated his constitutional right by failing to instruct the jury that it could consider evidence of his cocaine use on the night of the shootings. We are guided by the principle that “[i]f the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction.” (Internal quotation marks omitted.) State v. Carter, 232 Conn. 537, 545, 656 A.2d 657 (1995).

The court; did not omit, or refuse to provide, a jury instruction concerning intoxication. To the contrary, the court properly instructed the jury on the defense of intoxication and read relevant language from § 53a-7, which defines intoxication. The issue before us is not one of an improper charge concerning the defense of intoxication, but rather, whether the court improperly removed from the jury’s consideration the defendant’s alleged cocaine use on the night of the shootings.

The defendant’s challenge essentially focuses on the court’s marshaling of the evidence. When marshaling evidence, the court should provide to the jury a fair summary of the evidence adduced at trial so that the jury may “[apply] the law correctly to the facts which they might find to be established . . . .” (Citation omitted; internal quotation marks omitted.) State v. Hernandez, 218 Conn. 458, 462, 590 A.2d 112 (1991). We have noted that “[a] trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more . . . .” (Internal quotation marks omitted.) State v. Dixon, 62 Conn. App. 643, 647-48, 772 A.2d 166 (2001).

“Not every improper jury charge . . . results in constitutional error.” State v. Schiappa, 248 Conn. 132, 165, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). The defendant does not allege that the court delivered a legally deficient explanation of the defense of intoxication or that it engaged in improper or one-sided commentary on the evidence. His claim is not constitutional in nature. See State v. Dixon, supra, 62 Conn. App. 647-49. We review this nonconstitutional claim to ascertain whether it is reasonably possible that the court’s instruction misled the jury. See State v. Taft, 57 Conn. App. 19, 29, 746 A.2d 813 (2000), aff'd, 258 Conn. 412, 781 A.2d 302 (2001). “[T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

After carefully reviewing the evidence adduced at trial, we conclude that the court properly omitted the defendant’s requested reference to cocaine and its effect on the defendant’s mental state on the night of the shootings. As § 53a-7 makes clear, evidence in support of the defense must be “relevant to negate an element of the crime charged . . . .” Zeman testified that the defendant’s alcohol consumption could have affected, among other things, his decision-making process and his ability to reason. That evidence bears relevance to the issue of whether the defendant possessed the specific intent to commit the crimes he stood charged with having committed.

In contrast, Zeman’s testimony concerning the defendant’s cocaine use bore no relevance to the defendant’s capacity to form the specific intent necessary to commit the crimes. Zeman’s estimate about the number of bags of cocaine that the defendant claims to have ingested, as well as the amount of cocaine that was contained in each bag, was uncertain. He testified, nonetheless, that certain levels of cocaine could have made the defendant more excited or impulsive, more vigilant or even paranoid. In contrast, Zeman testified that alcohol could have affected the defendant’s ability to think and make judgments. The latter testimony was relevant to the defense of intoxication. Zeman did not testify, however, that cocaine could have affected the defendant in the same manner.

We evaluate the court’s charge mindful that “[a] jury may not engage in speculation and conjecture to reach a factual result . . . and any inferences that are drawn must be rational and arise out of the evidence that has been presented.” (Internal quotation marks omitted.) State v. Gayle, 64 Conn. App. 596, 601, 781 A.2d 383, cert. denied, 258 Conn. 920, 782 A.2d 1248 (2001). Likewise, “[i]f the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Internal quotation marks omitted.) Opotzner v. Bass, 63 Conn. App. 555, 569, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001). Accordingly, the court properly tailored its commentary on the evidence to reflect that the jury should consider the defendant’s alcohol use when it reached the issue of the defendant’s intoxication.

Even if we were to assume that the evidence of the defendant’s cocaine use and Zeman’s testimony concerning the defendant’s cocaine use did bear some relevance to the defense, we would still conclude that the court’s omission of the word cocaine from its charge did not deprive the defendant of his right to present a defense. The court did not instruct the jury to disregard evidence about the defendant’s use of cocaine. The court reminded the jury that it was the sole finder of fact and that it should rely on its own recollection of the evidence to determine the facts. The court also instructed the jury that it should disregard any opinion suggested by the court regarding the facts of the case. The jury was left to assign whatever weight it deemed appropriate to the evidence adduced concerning the defendant’s alleged cocaine use. Accordingly, viewing the court’s omission in light of its entire charge, we conclude that it was not reasonably possible that the court in any way misled the jury.

II

The defendant next claims that the court violated his right to a jury trial by deciding, rather than asking the jury to decide, whether he had used a firearm in the commission of a class A, B or C felony for purposes of § 53-202k. We disagree.

The following additional facts underlie the defendant’s claim. On March 11, 1998, the state filed a notice of sentence enhancement under § 53-202k. That section is a sentence enhancement provision and does not create a separate offense. State v. Dash, 242 Conn. 143, 148, 698 A.2d 297 (1997). Specifically, the statute provides for a five year term of imprisonment to run in addition and consecutive to any term of imprisonment levied against a person who is adjudged guilty of having committed a class A, B or C felony. The jury convicted the defendant of murder, a class A felony, and assault in the first degree, a class B felony.

The court did not submit the issue of the statute’s application to the jury, and the jury rendered no findings in that regard. During the sentencing hearing, the state argued that the court should apply the statute when rendering its sentence. The court applied the statute and imposed an additional five year sentence to run consecutively with the fifteen year sentence it imposed for the conviction of assault in the first degree. The defendant did not object to the court’s decision to impose the enhanced sentence.

On appeal, the defendant argues that he “had a statutory and constitutional right to a jury trial on the factual findings necessary for enhancement of his sentence . . . the violation of which was structural error that is not subject to harmless error analysis.” We disagree.

The defendant concedes, as he must, that he failed to preserve that issue for our review. He seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . . This court may dispose of the claim on any one of the conditions that the defendant does not meet.” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 653, 783 A.2d 511 (2001).

We will dispose of the defendant’s claim under the fourth prong of Golding. Our disposition of the claim is controlled by our Supreme Court’s holding in State v. Montgomery, 254 Conn. 694, 759 A.2d 995 (2000). The defendant claimed in that case, as does the defendant in the present case, that the court violated his constitutional rights by failing to submit the issue of sentence enhancement pursuant to § 53-202k to the jury and by imposing an enhanced sentence in the absence of express findings by the jury concerning the elements of the statute.

The Supreme Court, relying on State v. Velasco, 253 Conn. 210, 214, 751 A.2d 800 (2000), recognized that “the jury, and not the trial court, is required to determine whether a defendant has used a firearm in the commission of a class A, B or C felony for purposes of § 53-202k.” State v. Montgomery, supra, 254 Conn. 736-37. The Supreme Court further noted that, as in the present case, there was no dispute that the trial court did not submit the issue to the jury. The Supreme Court reasoned, however, that the trial court’s error was harmless because it concluded that the jury necessarily had made all the factual findings to support an imposition of an enhanced sentence under the statute.

The Montgomery court explained that application of § 53-202k depends on factual findings concerning the two elements of that statute: (1) that the defendant committed a class A, B or C felony and (2) that the defendant committed such felony with the use of a firearm. Id., 737-38. The court further explained that the jury clearly had made a factual determination regarding the first element of the statute because it had convicted the defendant of the crime of murder, a class A felony. Id., 737. It further reasoned that the jury necessarily had resolved the factual determination underlying the second element in the state’s favor because the state’s case concerning the commission of the felony was closely linked to the defendant’s use of a firearm. The state had alleged that the defendant committed the murder with the use of a firearm, and the trial court expressly referenced that allegation in its charge. Id.

The Supreme Court also explained that its resolution was guided by Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). State v. Montgomery, supra, 254 Conn. 737. Our Supreme Court interpreted Neder as standing for the proposition that “a jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 738. Applying that rationale, the court observed that the defendant did not contest the fact, which was supported by incontrovertible evidence, that the perpetrator of the victim’s murder inflicted the fatal injuries with the use of a firearm. Id.

Applying the analysis set forth in Montgomery to the present case, we conclude that the court’s failure to submit the issue of the applicability of § 53-202k to the jury and its imposition of an enhanced sentence under the statute was harmless error. We do so for four reasons. First, the jury convicted the defendant of a class A felony and a class B felony. Second, as in Montgomery, the information expressly alleged that the defendant committed his crimes with the use of a firearm, which the state introduced into evidence at trial. Therefore, the jury necessarily had to have found that the defendant committed the murder with that firearm. Third, the court, in instructing the jury on the elements of assault in the first degree, expressly referenced the defendant’s alleged use of a pistol. Fourth, the fact that the crimes were carried out with the use of a firearm was uncontroverted and supported by overwhelming evidence. Those reasons lead us to the inescapable conclusion that by finding that the defendant had committed the felonies with which he was charged, the jury necessarily found that he had committed them with the use of a firearm. Accordingly, the defendant’s claim fails under the fourth prong of Golding.

Ill

The defendant’s final claim is that the court improperly failed to conduct a preliminary inquiry to determine if a hearing was required to investigate his claim that improper communication between one or more jurors and a family member of one of the victims had occurred during trial. We disagree.

The following additional facts underlie the defendant’s claim. The jury rendered its verdict on January 19, 2000. On March 13, 2000, the court conducted a sentencing hearing. As the hearing began, the following colloquy occurred between the court, the defendant’s counsel and the defendant:

“[Defense Counsel: The defendant] wants to address the court as well. I am asking for a continuance of the sentencing. This was originally set down for last week, and there was some confusion as to the date, then I thought it was on this Wednesday. I have been unable to speak with [the defendant]. As you can see, he was in an altercation. He was attacked by someone. He has been in segregation for the past two weeks and [could not] contact me. He tells me his parents . . . also one of his sons . . . wanted to be present for the sentencing.

“[The defendant] has also indicated to me [that] he has witnesses coming Wednesday to testify as to various acts of jury misconduct, and the private attorney on behalf of [the defendant, whom] he has retained, although I haven’t been given this person’s name, for the testimony for an evidentiary hearing for Wednesday.
“For those reasons, we request a continuance. The family is on their way and not present, and [the defendant] has these witnesses and other counsel scheduled to come for Wednesday. ... I believe [the defendant] wanted to address the court as well.
“[The Defendant]: Yes.
“The Court: At this time, what do you think with regards to these matters? . . .
“[The Defendant]: What I want to say, my lawyer right here tells me one of the jurors was talking to the victim’s family, and I think that is unfair to me.
“The Court: I am not going to go through facts in regards to this. At this point, you have explained what [the defendant’s] problem is, what he thinks and what he wants to do. He explained that to the court; it is on the record. I will not go through it again with [the defendant], I understand what you said. If he doesn’t have anything new to say to me, then I will ask that we proceed.
“[The Defendant]: I have a few things to say to you if you let me.
“The Court: Anything new?
“[The Defendant]: Yes. I have two witnesses about the whole case.
“The Court: I was told that. I will not go through that.
“[The Defendant]: All right.
“The Court: Is that it?
“[The Defendant]: Yeah.”

The court denied the defendant’s request for a continuance, noting that it had scheduled the sentencing hearing for nearly two months after the conclusion of trial so that the defendant would have an opportunity to procure counsel and present such an allegation, if he so desired, and so that the court could address any such matters prior to sentencing. The prosecutor and Israel Arroyo’s daughter addressed the court on behalf of the state. Although the defendant’s counsel addressed the court on his behalf, he did not add anything further concerning the defendant’s allegation of juror misconduct. At the conclusion of the hearing, the court imposed its sentence.

On appeal, the defendant claims that the court “summarily rejected” his claim of jury misconduct and improperly failed to conduct a preliminary inquiry into the factual allegations to determine if the resolution of the claim required a separate hearing. The defendant claims that by “acting so precipitously, the court deprived itself of the minimum information necessary to exercise its discretion . . . .”

In State v. Brown, 235 Conn. 502, 519-32, 668 A.2d 1288 (1995) (en banc), our Supreme Court addressed the issue of how a trial court should respond to allegations of juror misconduct. The court also exercised its inherent supervisory power over the administration of justice and held that “a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel.” Id., 526. The court stressed that “[although the form and scope of such an inquiry lie within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct.” Id.

The Supreme Court reiterated that the type of preliminary inquiry required of a trial court largely is dependent on the unique factual circumstances of the allegation before it. It instructed trial courts, within the exercise of their sound discretion, to consider the type of inquiry necessary based on the following factors: (1) the private interest involved, (2) the risk of deprivation of a defendant’s constitutional right to a trial before an impartial jury and (3) the state’s interest in finality of judgments, protecting the privacy of jury deliberations and maintaining public confidence in the jury system. Id., 530-31.

Our limited appellate review of the defendant’s claim is to ascertain “whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion.” Id., 524. “The trial judge’s discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . Moreover, we must make every reasonable presumption in favor of the proper exercise of the trial court’s discretion.” (Citations omitted; internal quotation marks omitted.) State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983); see also State v. Riddick, 61 Conn. App. 275, 282, 763 A.2d 1062, cert. denied, 255 Conn. 946, 769 A. 2d 61 (2001). Our review is necessarily fact specific, and our task is to ascertain whether the form and scope of the court’s inquiry reflects a balance amongst the aforementioned factors. We are mindful, also, of the overriding principle that the court in any criminal proceeding “must zealously protect the rights of the accused.” (Internal quotation marks omitted.) State v. Brown, supra, 235 Conn. 524.

In Brown, the Supreme Court concluded that the trial court in that case had abused its discretion by failing to conduct some type of inquiry into allegations of juror misconduct. In that case, the trial court had received an anonymous letter addressed to it. The letter set forth “specific and facially credible allegations” of juror misconduct. Id., 524-25. The court received the letter in advance of sentencing. The defendant’s attorney did not learn of the letter until the day of sentencing and “had only a limited opportunity to ask for an inquiry . . . .” Id., 525.

We now return to the unique characteristics of the allegations of juror misconduct brought before the court in the present case. We consider the fact that the allegation did not come from a disinterested third party or from a juror. The allegation did not even come from the defendant’s attorney, who appeared to distance himself from the allegations, stating: “[The defendant] has . . . indicated to me [that] he has witnesses coming Wednesday to testify as to various acts of jury misconduct, and the private attorney ... he has retained . . . .” We also observe that the defendant’s attorney did not view the allegations as being so important as to mention them before stating that the defendant desired a continuance so that family members might be present for sentencing. The defendant’s attorney did not state details about the allegations and did not, in any way, stress their importance or that he believed that juror misconduct had deprived the defendant of a fair trial. We also note that the defendant personally brought those allegations to the court’s attention and that he did so just minutes before the court was scheduled to impose its sentence.

The defendant complains that the court should have conducted an evidentiary hearing, or a more extensive inquiry, to investigate his claim. We cannot agree. “We recognize that the trial judge has a superior opportunity to assess the proceedings over which he or she personally has presided . . . and thus is in a superior position to evaluate the credibility of allegations of jury misconduct, whatever their source.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 440, 773 A.2d 287 (2001).

Given the defendant’s representation and the circumstances under which he raised the allegation before the court, we conclude that the court did not abuse its discretion in not conducting any further inquiry. The court stated that the defendant should have raised such an issue in advance of his sentencing hearing. Although it is one among many factors for this court to consider, the fact that the defendant made the allegation at such a late hour is problematic. We recognize the uncertainty that could result and the opportunity for fraudulent claims that could exist if a defendant possessed the power to control the proceedings against him by being able to delay or postpone his or her sentencing by personally making allegations of juror misconduct in this manner just minutes before a court is to impose sentence.

Defense counsel did not corroborate the defendant’s allegation in any way. That silence is telling, given the fact that the defendant represented to the court that his counsel was the person who told him that “one of the jurors was talking to the victim’s family . . . .” The defendant’s counsel did not state whether the alleged conversation occurred during or after trial, the circumstances of the conversation or how he learned of the conversation. No witnesses were present to corroborate the defendant’s allegation. Certainly, if the defendant’s counsel had witnessed any proscribed jury conduct during the trial, the court reasonably could expect him to have reported such an incident to the court immediately after its occurrence. Likewise, the court would not reasonably expect the defendant’s counsel to remain silent if he had witnessed such an incident until just moments before the court was to impose its sentence on his client.

The defendant’s counsel did not cite any authority in support of the allegation or the continuance he sought. He did not file a written memorandum to the court concerning the matter. The court has a right to rely on a defense counsel’s representations on behalf of his or her client. See, e.g., State v. Stewart, 64 Conn. App. 340, 349-50, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). Given the defendant’s allegation, his counsel’s silence on the issue reinforced the likelihood that his allegation was not credible. The defendant’s possible motive in making the allegation is obvious, and, after having observed the defendant testify during trial and recognizing that the jury had found him guilty of the crimes, the court could have quickly dismissed the defendant’s allegation as having been fabricated and decided that farther inquiry was unnecessary.

The Supreme Court has explained that “[t]here may well be cases ... in which a trial court will rightfully be persuaded, solely on the basis of the allegations before it. . . that such allegations lack any merit. In such cases, a defendant’s constitutional rights may not be violated by the trial court’s failure to hold an evidentiary hearing, in the absence of a timely request by counsel.” (Emphasis added.) State v. Brown, supra, 235 Conn. 528.

The Supreme Court also has explained, in the context of the first Brown factor, that “the trial court should give proper weight to the defendant’s [request concerning the allegation], expressed through counsel, to the allegations of jury misconduct. Id., 530. Although the defendant’s counsel in the present case did request a continuance, he gave only a very cursory explanation for the request and indicated that he did not even know the identity of the private counsel that the defendant had obtained to represent him.

In discussing the second Brown factor, concerning the risk of deprivation of the defendant’s right to a trial before an impartial jury, the Supreme Court explained that “[t]he more obviously serious and credible the allegations [of jury misconduct], the more extensive an inquiry is required; frivolous or incredible allegations may be disposed of summarily. ... A proper assessment of the credibility of the allegations will require the trial court to weigh the source of the allegations.” (Citations omitted; emphasis added.) Id., 531. In the present case, the court clearly did not find the defendant’s bare assertion of misconduct to be credible, especially given the fact that his counsel remained silent and did not bring the defendant’s claim before the court in a particularly persuasive manner or even attempt to corroborate it. Our Supreme Court has stated, in regard to allegations of juror misconduct, that “it is within the discretion of the trial court to make credibility assessments and determine whether the allegations are facially credible.” State v. Santiago, 245 Conn. 301, 337, 715 A.2d 1 (1998). It follows that “where facially credible allegations are made, a certain specific inquiry should follow.” Id., 337 n.22. It is clear from the court’s actions in the present case that it did not find the defendant’s assertions to be facially credible. Because we cannot disagree with that finding, we cannot disagree with the court’s refusal to conduct any further inquiry concerning the allegation.

The third Brown factor concerns the state’s interests in, inter alia, jury impartiality, protecting jurors’ privacy and maintaining public confidence in the jury system. Implicit in the court’s action is its belief that any further investigation into the alleged misconduct could only invade the privacy of the jurors who served on the case and would not further public confidence in the jury system. For those reasons, the court’s dismissal of the defendant’s request for further inquiry did not reflect an abuse of discretion.

The judgment is affirmed.

In this opinion FLYNN, J., concurred.

SHEA, J.,

dissenting in part. I agree with the majority opinion in all respects except its holding that the trial court was not obliged to conduct a preliminary inquiry concerning the defendant’s claim of an improper communication between one or more jurors and a member of the victim’s family. I disagree with the majority’s disposition of that claim without ordering the trial court to conduct such an inquiry to determine whether there is any substance to the defendant’s claim of juror misconduct.

The majority opinion recognizes that our Supreme Court has declared that to assure that a defendant’s right to a trial before an impartial jury has been fully protected, a trial court must conduct a preliminary inquiry, sua sponte if necessary, whenever it is presented with any allegations of juror misconduct. State v. Brown, 235 Conn. 502, 519-32, 688 A.2d 1288 (1995) (en banc). The trial court in this case never made such an inquiry.

Although the Brown court left the proper scope and form of such an inquiry to the trial court’s discretion, it did offer guidance for the proper exercise of this discretion. Specifically, our Supreme Court observed that the extensiveness of the inquiry might vary with the seriousness and credibility of the allegations of jury misconduct. “The more obviously serious and credible the allegations, the more extensive an inquiry is required; frivolous or incredible allegations may be disposed of summarily. ... A proper assessment of the credibility of the allegations will require the trial court to weigh the source of the allegations.” (Citations omitted.) Id., 531.

The court in the present case summarily dismissed the defendant’s allegations without any inquiry into the source of the information. When the defendant stated that there were witnesses who were prepared to come forward to corroborate the alleged misconduct, the court abruptly precluded any further discussion of the matter. At a minimum, the court’s evaluation of the credibility of the allegation required inquiry into the identity of the witnesses and the substance of their proposed testimony. Without such an inquiry, the court’s summary dismissal of the allegation was an abuse of discretion.

Accordingly, to comply with the edict of our Supreme Court, this case should be remanded for the purpose of conducting an inquiry concerning the defendant’s claim of juror misconduct.

       General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony or of a violation of subsection (c) of section 21a-279, section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

       General Statutes § 53-202k provides: “Anyperson who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       Zeman testified that he based his expert opinions concerning the defendant’s mental state on “reasonable medical or psychiatric certainty.”

       The court instructed the jury concerning intoxication as follows: “I’m going to instruct you with regard to intoxication, ladies and gentlemen, and you have heard that referred to. You’ve heard some testimony as to the effect that the defendant was under the influence of an intoxicant, namely alcohol, at the time of the alleged acts. The Penal Code defines intoxication as a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body. If you find that the defendant was under the influence of an intoxicant at the time of the alleged acts, you must then determine what effect, if any, this voluntary intoxication had on his ability to form the specific intent required to commit the alleged crimes. The Penal Code states that ‘intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged. Note that intoxication is not a defense to or an excuse for the commission of a crime. It is only relevant to negate an element of the crime charged such as intent. If you find that the defendant was intoxicated at the time of the crime, you may take this fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required specific intent, which is a necessary element for the commission of the crime of murder, and also, by the way, [assault in the first degree,] but I will bring you up to date on that when I get there.”
      Later in the charge, when the court instructed the jury on the lesser offense of reckless assault, the court stated: “If you find that the defendant, due to self-induced intoxication, and again I refer you to the intoxication-— I have given you that definition — is unaware of ... or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such . . . unawareness, disregard or failure to perceive . . . shall be immaterial.”

       The defendant preserved this issue for our review because he filed a written request that the corut instruct the jury in this regard in accordance with Practice Book § 42-16. We observe, however, that the defendant did not take exception to this portion of the court’s instruction immediately following the court’s charge or at any other time following the charge.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall epjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . .

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf . . . and in all prosecutions ... to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”

       We observe that although counsel’s closing arguments certainly do not add or detract from the evidence adduced during trial, the defendant’s counsel appears to have abandoned his reliance on intoxication from cocaine as a defense. He remarked that “[i]t’s not the cocaine here that’s the issue. It doesn’t matter how much he had for cocaine, it’s the alcohol. Cocaine doesn’t cause the brain to malfunction in that way. The alcohol does. But [the defendant] was forthright and said, ‘You know, I — I had some cocaine, too.’ He could have denied it, but that’s what happened that night, and he wanted you to know the whole story.”

       The court instructed the jury as follows: “[Y]ou are the sole judges of the facts. Later in the charge, I may refer to some evidence that was brought out during the trial of the case. Now, whether I do or not, it’s your recollection of the evidence and not mine, nor the attorneys’ which is controlling. No matter what I say concerning these facts or what any of the lawyers have said to you, it’s your recollection which is to guide you in deciding this case.” The court later stated: “If I undertake to malm some comments, as I am likely to do, my comments are merely suggestive to you .... You will not offend the judge, not offend me, if you disagree on the facts. You are the sole triers of the facts. I merely refer to them on occasion to make clear to you the application of the rules of law which are relevant in this case. If I refer to certain evidence and not other evidence, you are not to think that I mean thereby to emphasize those facts or that I mean to limit your consideration of them. Should I overlook any of the evidence in this case you will supply it from your recollection. Should I incorrectly state any evidence you will correct my error. This is because it’s your function and your duty to determine and weigh the evidence offered, to make proper deductions or inferences from it and to determine the facts.”

       See footnote 5.

       The court’s effective sentence totaled eighty years: Fifty years for the crime of murder, fifteen years with an additional five years sentence enhancement for the crime of assault in the first degree, five years for the crime of criminal possession of a pistol or revolver and five years for the crime of risk of iryury to a child.

       In the alternative, the defendant seeks review under the plain error doctrine set forth in Practice Book § 60-5. Under Practice Book § 60-5, this “court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” We recently have restated that “[t]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 243-44, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). As our disposition of the defendant’s claim under Golding should make clear, we do not find that the claimed error implicates such concerns.

       The defendant suggests that our Supreme Court’s decision in Montgomery improperly conflicts with a defendant’s right to have issues decided by a jury and suggests that we decline to follow the harmless error analysis set forth therein. As we have noted several times before, “[w]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.” (Internal quotation marks omitted.) State v. Thomas, 62 Conn. App. 356, 364, 772 A.2d 611, cert. denied, 256 Conn. 912, 772 A.2d 1125 (2001).

       A firearm is defined, inter alia, as a pistol. General Statutes § 53a-3 (19).