author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. WILLIAM T. JONES
    (AC 33044)
    Alvord, Bear and Sheldon, Js.

      Argued October 11, 2012
    officially released January 29, 2013

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, William T. Jones, appeals from the judgment of conviction, rendered after a jury trial, of assault of a police officer in violation of General Statutes § 53a-167c and increasing the speed of a motor vehicle in an attempt to escape or elude a police officer in violation of General Statutes § 14-223 (b). On appeal, the defendant claims that the trial court (1) abused its discretion by not submitting an exhibit to the jury, (2) violated the defendant’s confrontation clause rights by allowing a supervising physician, rather than the treating physician, to testify about the injury that resulted in the defendant’s conviction, and (3) violated the defendant’s confrontation clause rights by not reviewing a personnel file in camera and disclosing to the defendant any potentially exculpatory evidence found therein. We disagree with the defendant’s claims and affirm the judgment of conviction.

The jury reasonably could have found the following facts in support of its verdict. On December 12, 2008, Detective Jose Rivera and Officer Christian Rodriguez of the Meriden police department observed the driver of a green Dodge Charger engage in what appeared to be a transaction involving narcotics. After the suspected narcotics transaction was completed, the driver of the Charger began to drive away, and Rivera and Rodriguez followed the Charger in their unmarked police vehicle. Rodriguez, through radio communication with the police dispatcher, learned that the Charger was a rented vehicle, and he requested that the dispatcher send a marked police cruiser to stop the Charger. Soon thereafter, Officer George Gonzalez, driving a marked police cruiser, activated the cruiser’s emergency lights and stopped the Charger. Gonzalez parked the cruiser perpendicularly in front of the Charger, and Rodriguez parked the unmarked vehicle behind the Charger.

Rodriguez exited the unmarked vehicle and, as he was approaching the Charger, identified himself as a police officer and requested that the driver show him his hands. When the driver did not comply, Rodriguez drew his firearm and held it in a low, ready position while continuing to approach the Charger. Rodriguez arrived at the window on the driver’s side of the Charger and again ordered the driver to show him his hands. The next series of events — in which the Charger backed up, accelerated forward and Rodriguez fired two gunshots from his firearm — occurred over the course of a couple of seconds. When the Charger backed up, the driver’s side mirror, door area and quarter panel struck Rodriguez, and when it accelerated forward, one of the Charger’s tires ran over Rodriguez’ left foot. The two gunshots Rodriguez fired struck the side of the Charger, which sped away. Gonzalez pursued the Charger in the police cruiser, as did Rivera and Rodriguez in the unmarked vehicle, but their efforts were unsuccessful.

After disengaging from pursuit of the Charger, Rodriguez went to the Midstate Medical Center in Meriden (medical center), where he received treatment for his injured foot. The following day, he identified the defendant as the driver of the Charger from a photographic array. In the interim, the woman who had rented the Charger informed the police that she had rented the Charger at the request of the defendant. The defendant was arrested on January 12, 2009, in Rochester, New York, pursuant to a fugitive warrant. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erroneously instructed the jury that, during deliberations, it could view a dashboard camera video recording, which had been introduced as a full exhibit, in the courtroom rather than in the jury deliberation room. He argues that the judgment should be reversed and the case remanded for a new trial because the court’s ruling concerning the viewing of the video by the jury violated Practice Book § 42-23 (a) (2). We disagree and conclude that the court did not abuse its discretion in permitting the jury to view the video only in the courtroom during jury deliberations.

The record reflects the following procedural history and additional facts, which are relevant to this claim. On December 12,2008, the marked police cruiser driven by Gonzalez activated its emergency lights to indicate to the driver of the Charger that he should stop the car. When the emergency lights in Gonzalez’ cruiser were activated, a dashboard camera automatically turned on. The video recording from this camera revealed the Charger slowing and then stopping on a street that intersected with the street on which Gonzalez was driving, Gonzalez’ cruiser stopping perpendicularly in front of the Charger, the sound of muffled voices and two gunshots, the Charger driving off rapidly and the ensuing unsuccessful car chase.

At trial, the state submitted, as a full exhibit and without objection, a digital versatile disc (DVD) recording of the video, which had been duplicated onto multiple DVDs. Both the state and the defendant utilized the video at various times throughout the trial by playing a DVD on the prosecutor’s laptop computer, which projected the images so that the jury could view the video from the jury box. The record reveals that, during the trial, the jury viewed the entire video approximately eight times, and that the jury viewed selected portions of the video approximately eight additional times.

Both the state and the defendant showed the video during their closing arguments on April 12, 2010. After closing arguments, the court instructed the jury and adjourned court until the following day. On the morning of April 13,2010, there was a chambers conference with the court, the prosecutor and defense counsel pertaining to a separate evidentiary matter. Once court was opened, defense counsel noted for the record that the conference had taken place. The court asked whether either party had anything to discuss before the jury was called, and both stated, through counsel, that they had nothing further. At that point, for the first time on the record, defense counsel asked whether the jurors would be able to view the video in the jury room. The court responded that it did not have equipment that could be sent into the jury room to play the video. The court offered that should the jury want the video replayed, it could be done in the courtroom, where counsel, the defendant and the court would be present. The court likened the procedure to the playback of testimony, in that the jury could submit a note to the court indicating its desire to replay the video, and all the aforementioned persons would congregate in the courtroom for the replaying. The jury was given this instruction, and after just less than one hour of deliberation, without asking to replay the video, the jury reached a verdict.

On June 25, 2010, at the defendant’s sentencing hearing, defense counsel again voiced concern about the absence of the video from the jury deliberation room. The defendant moved for a judgment of acquittal and a new trial on the ground that requiring the jury to view the video in the courtroom “unfairly and unduly reduced [the jury’s] ability to freely discuss the facts of the case . . . .” The court reiterated that there was no mechanism available at the time that would have allowed the jury to view the video in the jury deliberation room. The court further stated that it was the court’s belief that the access the jury had to the video — the same access juries are entitled to with regard to the playback of testimony — did not prejudice the defendant. The defendant’s motion was denied, and he was sentenced to imprisonment of seventy-eight months for the assault on Rodriguez and one year for escaping from police pursuit, to be served concurrently with the sentence for the assault.

“ [Although the defendant’s claim is not a classic evidentiary claim, in that it does not challenge the admission or exclusion of evidence or limitations upon the uses to which admitted evidence lawfully could be put, it concerns the process by which admitted evidence was made available to the jury for its review and consideration in the corase of deliberations.” State v. Osbourne, 138 Conn. App. 518, 538, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) State v. Morquecho, 138 Conn. App. 841, 847, 54 A.3d 609 (2012).

Practice Book § 42-23 (a) states in relevant part: “The judicial authority shall submit to the jury . . . [a]ll exhibits received in evidence.” Such exhibits are distinguished from other items, listed in subsection (b), that “[t]he judicial authority may, in its discretion, submit to the jury . . . .” Practice Book § 42-23 (b). On appeal, the defendant argues that use of the word “shall” in subsection (a), as opposed to the word “may” in subsection (b), creates a mandatory directive with regard to exhibits received in evidence. The defendant further argues that the procedure the court followed for the replaying of the video — the procedure for the replaying of testimony as set forth in Practice Book § 42-26 — was improper because the rules of practice set different standards for testimonial and demonstrative evidence. We agree with the defendant that testimonial and demonstrative evidence are subject to the standards set forth in Practice Book §§ 42-26 and 42-23, respectively, and that Practice Book § 42-23 requires commanding the court to submit exhibits received in evidence to the jury. We disagree, however, with the defendant’s contention that the video was not submitted to the jury.

“The rules of statutory construction apply with equal force to Practice Book rules.” (Internal quotation marks omitted.) Vargas v. Doe, 96 Conn. App. 399, 412, 900 A.2d 525 (2006). “The test to be applied in determining whether a statute is mandatory or directoiy is whether the prescribed mode of- action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the statutory provision is mandatory. ... If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory .... Definitive words, such as must or shall, ordinarily express legislative mandates of a nondirec-tory nature. ... As we recently noted, the word shall creates a mandatory duty when it is juxtaposed with [a] substantive action verb.” (Citations omitted; internal quotation marks omitted.) Wiseman v. Armstrong, 295 Conn. 94, 100-101, 989 A.2d 1027 (2010). As such, “Practice Book § [42-23] is not a discretionary rule.” State v. Carmon, 47 Conn. App. 813, 826, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7 (1998).

“Words and phrases are to be given their ordinary meaning in construing statutes unless the text indicates otherwise.” State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981), citing General Statutes § 1-1. Dictionary definitions of “submit” include in relevant part: “[t]o commit (something) to the consideration or judgment of another”; American Heritage Dictionary of the English Language (New College Ed. 1981); “to present for the approval, consideration, or decision of another or others”; Random House Webster’s Unabridged Dictionary (2d Ed. 2001); “to send or commit for consideration, study, or decision ... to present or make available for use or study”; Webster’s Third New International Dictionary. A review of these definitions reveals the two crucial components of the ordinary meaning of “submit”: the subject matter in question must be (1) committed, presented or sent to a person or persons (2) for consideration, study, decision or judgment.

More than one century ago, our Supreme Court stated that “every tribunal for the trial of civil or criminal causes should have open to it the best legitimate means of acquiring such knowledge of the law and facts as will enable it to decide the cases before it fairly and intelligently.” (Emphasis added.) State v. Rubaka, 82 Conn. 59, 67, 72 A. 566 (1909). The trial court has “the authority to manage cases before it”; (internal quotation marks omitted) State v. Colon, 272 Conn. 106, 256, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); “and may, of course, take all steps reasonably necessary for the orderly progress of the trial.” State v. Woolcock, 201 Conn. 605, 622, 518 A.2d 1377 (1986).

In this case, the court instructed the jury that it could view the video in the courtroom. This instruction provided a means of presenting the video to the jury for its consideration, and, therefore, fell within the ordinary meaning of “submit.” The court, using its inherent authority to manage the trial before it, offered the best legitimate means of presenting the exhibit to the jury in compliance with the mandatory directive of Practice Book § 42-23. The record reflects that defense counsel raised to the court his concern that the jury be able to view the video in the jury deliberation room only moments before the final jury instructions were given. Under such circumstances, and with no other viable option presented to it, the court took the reasonable and necessary action to ensure compliance with the rules of practice and the orderly progress of the trial. The court did not abuse its discretion in instructing the jury that it could view the dashboard camera video in the courtroom during deliberations.

II

The defendant next claims that the court violated his right to confront a witness against him, pursuant to the confrontation clause of the sixth amendment to the United States constitution. In the alternative, the defendant argues that the confrontation clause within article first, § 8, of our state constitution should be expanded to include rights beyond those protected by its federal counterpart by prohibiting the admission of nontestimo-nial hearsay. We disagree that the defendant’s right to confront a witness against him pursuant to the sixth amendment was violated and conclude that there exists no legal basis that suggests that our state constitution provides the defendant any broader protection to confront a witness against him.

The following procedural history and additional facts, which reasonably could have been found by the jury, are relevant to this claim. After unsuccessfully pursuing the fleeing Charger, Rodriguez went to the medical center, where he received treatment for his injured foot. Rodriguez arrived at the medical center at approximately 1 p.m. on December 12,2008, and saw two nurses and a physician, Giac Chan Nguyen-Tan. Nguyen-Tan was unavailable to testify at the trial, so Fred Tilden, a physician and director of the medical center’s emergency department, testified in his stead. Tilden testified that part of his duties were clinical and part were administrative. He testified that he often reviews the records of the physicians and other employees he supervises, and that he reviewed the records made in conjunction with the treatment of Rodriguez. The medical records of Rodriguez’ visit to the medical center were entered into evidence under the business record exception to the hearsay rule, and defense counsel did not object to their admission.

Tilden read from the medical records the written notes of the triage nurse, the primary nurse and Nguyen-Tan. The note written by the triage nurse, who first saw Rodriguez when he entered the emergency room, stated in relevant part, “left foot run over by car at work . . . .” Rodriguez next saw the primary nurse, who, according to Tilden’s reading of the medical record, wrote in relevant part, “patient at scene — scene of arrest and suspect — suspect tried to flee and ran over left foot . . . .” Nguyen-Tan was the last medical personnel to see Rodriguez. Nguyen-Tan’s note diagnosed Rodriguez with a “contusion slash crush injury [to his] left foot.”

Tilden also testified, based on his knowledge of the general procedures followed by the nurses and physicians at the medical center, that before examining a patient Nguyen-Tan would have looked for the patient’s chief complaint, which was contained in a note on the front of the medical records written by the triage and primary nurses. All chief complaints are self-reported by the patient. Rodriguez’ chief complaint stated, “left foot run over by car while — while on duty, denies any other injury.” Tilden testified that Nguyen-Tan’s diagnosis of a crush injury would have been based “a hundred percent” on what Rodriguez told him. “[Nguyen-Tan] hears the report of the acc — an accident and he decides the [word] crush is appropriate,” Tilden elaborated.

A

With regard to Tilden’s testimony, the defendant first claims a violation of his federal right of confrontation as protected by the sixth amendment to the United States constitution. “The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 [85 S. Ct. 1065, 13 L. Ed. 2d 923] (1965), provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). “Under Crawford v. Washington, [541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)], hearsay statements of an unavailable witness that are testimonial in nature may be admitted in accordance with the confrontation clause only if the defendant previously has had the opportunity to cross-examine the unavailable witness. Nontestimonia! statements, however, are not subject to the confrontation clause and may be admitted under state rules of evidence. Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Thus, the threshold inquiries that determine the nature of the claim are whether the statement was hearsay, and if so, whether the statement was testimonial in nature, questions of law over which our review is plenary. State v. Slater, 285 Conn. 162, 170, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).” State v. Smith, 289 Conn. 598, 618-19, 960 A.2d 993 (2008).

The defendant concedes that his claim of a Crawford violation was unpreserved at trial and therefore seeks review under the familiar four prongs of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), which state that “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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id., 239-40.

Answering the threshold question in a Crawford analysis — whether the statements in question were testimonial in nature — also answers whether the defendant has met the burden presented under Golding’s second prong, which requires a claim of constitutional magnitude. See State v. Jennings, 125 Conn. App. 801, 813, 9 A.3d 446 (2011) (“the alleged violation fails under the second prong of Golding and is not reviewable . . . because ... [it did not concern a] testimonial hearsay statement as defined in Crawford”); State v. Claudio C., 125 Conn. App. 588, 598-99, 11 A.3d 1086 (2010) (concluding that defendant’s unpreserved Crawford claim failed to meet second prong of Golding because declarant testified at trial and was subject to cross-examination), cert. denied, 300 Conn. 910, 12 A.3d 1005 (2011). The defendant contends that the statements within the medical records are testimonial in nature, and that their admission violated his fundamental right to confront a witness against him pursuant to the United States constitution. We disagree.

“The text of the Confrontation Clause . . . applies to witnesses against the accused — in other words, those who bear testimony. . . . Testimony, in turn, is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. . . . Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial .... These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it.” (Citations omitted; internal quotation marks omitted.) Crawford v. Washington, supra, 541 U.S. 51-52. “To determine if a statement is testimonial, we must decide whether it has a primary purpose of creating an out-of-court substitute for trial testimony. . . . When the primary purpose of a statement is not to create a record for trial . . . the admissibility of [the] statement is the concern of the state and federal rules of evidence, not the Confrontation Clause . . . .” (Citations omitted; internal quotation marks omitted.) Bullcoming v. New Mexico, 564 U.S. 647, 669, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) (Sotomayor, J., concurring in part).

The defendant argues that Tilden’s testimony contained testimonial statements made by Nguyen-Tan. The United States Supreme Court has recognized that medical records do not fall within the definition of testimonial statements as set forth in Crawford. “See [Michigan v. Bryant, 562 U.S. 344, 362 n.9, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)] (listing ‘Statements for Purposes of Medical Diagnosis or Treatment’ under Federal Rule of Evidence 803 (4) as an example of statements that are ‘by their nature, made for a purpose other than use in a prosecution’); [Melendez-Diaz v. Massachusetts, supra, 557 U.S. 312 n.2] (‘[M]edical reports created for treatment purposes . . . would not be testimonial under our decision today’); Giles v. California, 554 U.S. 353, 376 [128 S. Ct. 2678, 171 L. Ed. 2d 488] (2008) (‘[Statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules’).” Bullcoming v. New Mexico, supra, 564 U.S. 672 (Sotomayor, J., concurring in part).

The defendant argues that the recent decision of the United States Supreme Court in Bullcoming v. New Mexico, supra, 564 U.S. 647, alters how the confrontation clause defines testimonial and nontestimonial statements within medical records. In Bullcoming, the Supreme Court held that an analyst’s statements within a forensic laboratory report about a blood sample, which was taken for purposes of determining a defendant’s blood alcohol level after the defendant failed field sobriety tests and was arrested for driving while intoxicated, were testimonial for purposes of the confrontation clause. Id., 665. The court reasoned that the analyst who conducted a forensic blood test at the request of the police in Bullcoming was analogous to the forensic laboratory that analyzed, upon police request, seized evidence bags for traces of narcotics in Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305. Bullcoming v. New Mexico, supra, 663-64. The logical linchpin between these two cases is that “[a] document created solely for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, ranks as testimonial.” Id., 664. The Supreme Court was not persuaded by the argument that a lack of notarization was the key distinction between the certificate in Melendez-Diaz and the certificate in Bullcoming-, rather, the court concluded that the purpose of the certificate — to establish or prove some fact in a criminal proceeding — was what qualified the certificate as testimonial and, therefore, within the protections afforded a criminal defendant under the confrontation clause. Id., 664-65.

The defendant ruges this corut to analogize Nguyen-Tan’s statements within Rodriguez’ medical records to the statements of the analysts who signed the forensic reports in Bullcoming and Melendez-Diaz. But, clearly neither Bullcoming nor Melendez-Diaz stand for the principle that medical records should be treated in the same manner as forensic reports. See id., 672-74 (Soto-mayor, J., concurring in part) (explaining “the limited reach of the Court’s opinion”; id., 668; in part because “the State [did] not [claim] that the report was necessary to provide [the defendant] with medical treatment”; id., 672); Melendez-Diaz v. Massachusetts, supra, 557 U.S. 312 n.2 (noting that some cases cited by the dissent “are simply irrelevant, since they involved medical reports created for treatment purposes, which would not be testimonial under our decision today”). In fact, “[m]ost courts considering statements made for medical treatment . . . have concluded that, if an interview is done strictly for medical purposes, and not in anticipation of criminal proceedings, the statements would be considered nontestimonial.” (Internal quotation marks omitted.) State v. Kirby, 280 Conn. 361, 389, 908 A.2d 506 (2006). “The key to the inquiry is whether the examination and questioning were for a diagnostic purpose and whether the statement was the by-product of substantive medical activity. . . . Also significant to whether the statement is testimonial is whether such statements . . . accuse or identify the perpetrator of the assault.” (Citation omitted; internal quotation marks omitted.) Id., 391.

The defendant argues that Rodriguez’ status as a police officer seeking treatment for an injury that occurred while he was on duty alters the primary purpose of the medical records from diagnosing an injury to establishing a fact in a criminal proceeding. Though the nurses and Nguyen-Tan were likely aware that the plainclothed Rodriguez was a police officer because of discussions with him about how his injury occurred and the police badge displayed on his belt, such knowledge did not alter the primary purpose of the statements made by the nurses and Nguyen-Tan in the creation of Rodriguez’ medical record. Nguyen-Tan’s diagnosis of a crush injury to Rodriguez’ foot was made for the primary purpose of treating Rodriguez’ injury. The fact that Rodriguez is a police officer and the speculation that the treating medical personnel could have been aware that criminal prosecution was a possible result of the officer’s injury present a distinctly different scenario than that of an analyst performing a forensic analysis at the direction of a police officer for the primary purpose of criminal prosecution. None of the statements within Rodriguez’ medical records were testimonial, nor does Bullcoming change the admissibility of medical records containing nontestimonial hearsay. The medical records in this case were properly admitted, and having Tilden read the statements of Nguyen-Tan and the nurses contained within the medical records did not constitute a violation of the defendant’s sixth amendment right to confront a witness against him.

B

The defendant next argues that the protections afforded by the confrontation clause of the Connecticut constitution extend beyond those afforded by the United States constitution. We disagree.

The pertinent factors in an analysis of whether the protections in our state constitution should be construed to extend beyond the protections set forth in the United States constitution were set forth in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992). “These factors are: (1) the text of the operative constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies.” Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157, 957 A.2d 407 (2008). The Geisler factors “may be inextricably interwoven” and “not every Geisler factor is relevant in all cases.” (Internal quotation marks omitted.) Id.

Historically, our Supreme Court has interpreted Connecticut’s confrontation clause to provide the same protections as its federal counterpart. See, e.g., State v. Pratt, 235 Conn. 595, 599 n.6, 669 A.2d 562 (1995); State v. Munoz, 233 Conn. 106, 139-42, 659 A.2d 683 (1995); State v. Jarzbek, 204 Conn. 683, 707-708, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). Recently, our Supreme Court explained the legal and logical underpinnings of this interpretation. “[W]ith respect to the right to confrontation within article first, § 8, of our state constitution, its language is nearly identical to the confrontation clause in the United States constitution. The provisions have a shared genesis in the common law. See Crawford v. Washington, [supra, 541 U.S. 43] (‘[t]he founding generation’s immediate source of the concept [of the right of confrontation] . . . was the common law’); State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925) (purpose of confrontation clause in state constitution was ‘to mark, preserve, protect and perpetuate a right existing under the common law’). Moreover, we have acknowledged that the principles of interpretation for applying these clauses are identical. State v. Gaetano, 96 Conn. 306, 310, 114 A. 82 (1921). Therefore, we are not convinced that we should, in this context, construe the confrontation clause of our state constitution to provide greater protections than its federal counterpart.” State v. Lockhart, 298 Conn. 537, 555, 4 A.3d 1176 (2010). The context the Supreme Court was referring to in Lockhart was one in which the defendant argued that our confrontation clause included a corroboration requirement for the admissibility of confessions, and the court disagreed. While the defendant in this case requests extending our confrontation clause in a different manner, the analysis of Lockhart still guides our conclusion.

In the brief time since our Supreme Court conducted the Geisler analysis of the confrontation clause in Lock-hart, no decision from our state courts or from our sister states’ appellate courts has called into question the soundness of its logic. Further, there are no compelling economic or sociological concerns that have arisen since the analysis was authored that would support a change in the interpretation of our confrontation clause.

Ill

The defendant next claims that the court violated his federal and state confrontation clause rights by not conducting an in camera review of Rodriguez’ personnel file and disclosing to the defense any relevant and material information pertaining to Rodriguez’ credibility. We disagree.

The following procedural history and additional facts, which reasonably could have been found by the jury, are relevant to this claim. After Rodriguez discharged his firearm, the Meriden police department conducted an internal affairs investigation of the incident. The defendant served a subpoena upon the Meriden police department seeking to obtain a copy of both the internal affairs report and Rodriguez’ personnel file. Just prior to the commencement of the defendant’s trial, the court addressed the subpoena by ordering that the defendant be provided the internal affairs report, and soliciting argument pertaining to Rodriguez’ personnel file.

The court stated that the initial burden lay with the defendant to indicate that the personnel file contained something that was needed in order to exercise the defendant’s right of confrontation. In response to the court’s instruction that the contents of the personnel file would not be disclosed for a mere “fishing expedition,” defense counsel stated, “I don’t believe that I have a good faith basis to make a claim as to the personnel file.” When pressed to make an argument, defense counsel argued that the alleged inconsistencies between the dashboard camera video and Rodriguez’ testimony called into question whether Rodriguez had the ability to properly recollect or relay the truth. The court stated that the defendant’s concern was proper, but that it was purely speculative to suggest that something in the personnel file would be indicative of Rodriguez’ truth-telling abilities. The court denied the defendant’s request to conduct an in camera review of Rodriguez’ personnel file and filed it under seal as a court exhibit for identification.

“We review a court’s conclusion that a defendant has failed to make a threshold showing of entitlement to an in camera review of statutorily protected records, including police personnel records, under the abuse of discretion standard. . . . We must make every reasonable presumption in favor of the trial court’s action. . . . The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done. . . .

“Although public records generally are available pursuant to the Freedom of Information Act, General Statutes § 1-200 et seq., the confidentiality of information in police personnel files that may be relevant to a witness’ credibility is protected by General Statutes § 1-210 (b) (2). . . . We have found error in the refusal of a trial court to examine documents in camera where a sufficient foundation has been laid to indicate a reasonable likelihood that they contain material relevant to the case or useful for impeachment of a witness. . . . We emphasize that a defendant’s request for information from a confidential police personnel file should be specific and should set forth the issue in the case to which the personnel information sought will relate. ... No criminal defendant has the right to conduct a general fishing expedition into the personnel records of a police officer. Any request for information that does not directly relate to legitimate issues that may arise in the course of the criminal prosecution ought to be denied.” (Citations omitted; internal quotation marks omitted.) State v. Batances, 265 Conn. 493, 506-507, 828 A.2d 1248 (2003).

In this case, defense counsel sought access to the material in Rodriguez’ personnel file because of perceived inconsistencies between his testimony and the visual evidence of the dashboard camera video. Defense counsel speculated that the personnel file might contain information pertaining to Rodriguez’ cognitive abilities or propensity for truth-telling. The court correctly informed defense counsel that while those issues were reasonable concerns, he had not shown any connection between anything in the personnel file and the concerns about Rodriguez’ truthfulness. A showing sufficient to warrant an in camera review of a personnel file requires more than mere speculation. Compare State v. Januszewski, 182 Conn. 142, 170, 438 A.2d 679 (1980) (affirming grant of in camera review of police officer’s personnel file to verify knowledge, based on information and belief, that officer was subject of disciplinary actions prior to incident giving rise to prosecution), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981) with State v. Erickson, 297 Conn. 164, 997 A.2d 480 (2010) (affirming denial of in camera review of police officer’s personnel records where defendant sought information relating to complaints about misappropriation of funds when officer’s credibility was a central issue in case). Our Supreme Court distinguished the two cases because, in Januszewski, “the defendant sought permission to inspect the personnel file of the arresting officer ‘to verify knowledge, based on information and belief,’ ” whereas in Erickson, the defendant offered “no information or knowledge of prior complaints or disciplinary actions” on which to base his request to view the officer’s personnel file. State v. Erickson, supra, 183-84.

Defense counsel’s request was much more akin to a fishing expedition than a specific request that set forth how the information in Rodriguez’ personnel file would relate to an issue in the case. Defense counsel offered no information or knowledge that the personnel file contained anything with regard to Rodriguez’ truthfulness or credibility. While “[a]n in camera inspection of the documents involved . . . will under most circumstances be necessary . . . routine access to personnel files is not to be had.” (Internal quotation marks omitted.) Id., 178. Allowing unfounded speculation that a witness is a liar to suffice would effectively allow routine access to witnesses’ personnel files. The trial court did not abuse its discretion in refusing to conduct an in camera review of Rodriguez’ personnel file.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant contends that allowing only for the replaying of the video in the courtroom in front of the court, both attorneys and the defendant constituted structural error. “Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected .... These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. . . . Such errors infect the entire trial process . . . and necessarily render a trial fundamentally unfair .... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.” (Internal quotation marks omitted.) State v. Dalton, 100 Conn. App. 227, 230 n.3, 917 A.2d 613, cert. denied, 282 Conn. 913, 924 A.2d 139 (2007). Because we hold that the court did not commit any error, let alone that the entire trial process was defective, we summarily conclude that the replaying of the video in the courtroom during jury deliberations did not constitute structural error.
      In the alternative, the defendant contends that the court’s handling of the video should be analyzed under a harmless error analysis. Because we determine that the court did not abuse its discretion, we need not address whether the error was harmless. “When reviewing claims of error, we examine first whether the trial court abused its discretion, and, if so, we next inquire whether the error was harmless.” State v. Payne, 303 Conn. 538, 552-53, 34 A.3d 370 (2012).
      The defendant also argues that withholding recorded evidence from the jury deliberation room violated his constitutional rights to a fair trial and due process. These claims were not preserved at trial, so he seeks review under the familiar four prongs of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or alternatively, under the plain error doctrine pursuant to Practice Book § 60-5. We recently addressed the issue of whether restricting a jury’s viewing of a video exhibit to the courtroom during deliberations violated the defendant’s constitutional rights or constituted plain error. See State v. Osbourne, 138 Conn. App. 518, 535-40, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012). In Osbourne, we held that the defendant’s claim failed to meet the second prong of Golding, i.e., a claim of constitutional magnitude, and that the court’s ruling concerning the video was not a manifest injustice constituting plain error. Id., 539-40. Because the facts surrounding the viewing of this video are substantially similar to the facts surrounding the viewing of the video in Osbourne, we apply the logic of Osbourne to this case, and dismiss the defendant’s constitutional and plain error arguments with regard to this issue.

       The following colloquy is the full extent of any discussion pertaining to the jury’s access to the dashboard camera video prior to the entering of a verdict:
      “[Defense Counsel]: Your Honor, just, if I may inquire? Is the — the video— this whole setup of the electronics going to be left in this courtroom or— or into the jury deliberation room?
      “The Court: No, it’s just going to be left here. My — my view is, I don’t have anything to send into them for them to play the video. If they want to have the video replayed, they’re going to have to request it and we’ll play it in the courtroom. And, in fact, I can tell them that.
      “[Defense Counsel]: Without us present?
      “The Court: No, no. My view is, anything that’s done in the courtroom, counsel and [the defendant] and I should be present. So, basically, it’s just like a playback of testimony. If they want a replay of the video, I’ll have them come out here and we’ll replay the video.
      “[Defense Counsel]: I — it seems to me, and I’m not trying to be difficult here, Your Honor, but for a free flow of — of conversation where they can stop and start and stop and start the video and actually deliberate about the video, shouldn’t it — shouldn’t they actually be alone when they’re looking at this video?
      “The Court: I don’t think that’s necessary. I don’t have anything for them to play it on in the jury room. I don’t have anything to send it in with, so they’re just going to have to come out and ask for it.
      “[Defense Counsel]: Couldn’t all this equipment be sent in?
      “The Court: Well, my con — they need — they need — would need the laptop to play the video, is — right? I assume that’s right, correct?
      “[The Prosecutor]: Uh, hum.
      “The Court: Is — is the — and I — does the laptop have any — other stuff on it besides the video?
      “[The Prosecutor]: Yes.
      “The Court: Yes. That’s the problem. I can’t be sending anything into the jury room that has other documents or items on it that haven’t been made full exhibits. I’ll make it clear to them, if they want to re-see the video, then we can replay it — they can request it and we’ll play it in the courtroom.”

       According to the testimony of Tilden, “[a] crush iryury is when there’s been a lot of weight on the — whatever part of the body has been affected, in this case, a foot.”

       Tilden also testified that an X ray of Rodriguez’ foot showed no fracture, but it did show swelling that would support a diagnosis of a crush injury. The court sustained an objection to a question asking Tilden to speculate whether Nguyen-Tan’s diagnosis was consistent with Rodriguez’ injury on the ground that Tilden did not treat the patient. The court did allow, however, Tilden to testily that a car could cause a crush injury to a foot.

       We note that Rodriguez’ statements within the medical record could not be subject to a confrontation clause argument because “Crawford makes clear . . . that, when the declarant appears for cross-examination at trial, the [c]onfrontation [c]lause places no constraints at all on the use of his prior testimonial statements.” (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 652, 945 A.2d 449 (2008).

       Rodriguez’ medical records were admitted pursuant to Connecticut Code of Evidence § 8-4, and the nontestimonial statements within the records were admitted pursuant to Connecticut Code of Evidence § 8-3 (5).


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. NATHAN S. JOHNSON
    (AC 33535)
    Alvord, Bear and Mihalakos, Js.

      Argued October 22, 2012
    officially released January 29, 2013

      Jennifer Bourn, assistant public defender, for the appellant (defendant).

      Alanna Tynan, certified legal intern, with whom were Harry Weller, senior assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Eugene Calistro, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Nathan S. Johnson, appeals from the judgment of conviction, rendered following a jury trial, of carrying a pistol without a permit in violation of General Statutes (Rev. to 2009) § 29-35 (a), interfering with an officer in violation of General Statutes § 53a-167a (a) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (l). On appeal, the defendant claims that he is entitled to a new trial because the court violated his state and federal right to counsel of his choice and, additionally, abused its discretion by failing to conduct an inquiry when it learned that the defendant no longer wanted to be represented by his private attorney. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claim. The defendant was arrested on April 12, 2010, and, in July, 2010, he hired private counsel. On December 29, 2010, the defendant filed a pro se motion for a speedy trial, asserting that he had been in custody since April 12, 2010; the motion was denied. On February 22, 2011, the defendant filed another motion for a speedy trial, asserting this time that he had been in custody since June 25, 2010. On February 28, 2011, the defendant’s attorney filed a motion for a speedy trial, and, on March 2, 2011, the court determined that jury selection would commence on March 7,2011. During a hearing on March 7, 2011, the court stated that it understood that the defendant was electing to be tried by the court on the charge of criminal possession of a firearm, and counsel agreed with the court’s understanding. The defendant, however, expressed some confusion about this election. In response, both defense counsel and the court explained that one of the elements of the § 53a-217 (a) (1) charge was proof of a prior felony conviction, and, that if the defendant wanted to keep the prior felony conviction from the jury, he could elect to have this charge considered by the court. The defendant stated that he now understood the issue and that he would like the court to consider the matter rather than the jury. The following colloquy then occurred:

“The Court: . . . Counsel also mentioned that [the defendant] might want to address the court. I don’t know if that — prior to jury selection. I don’t know if that’s the case or not. Are we set to go?

“The Defendant: Yeah. We set to go.

“The Court: Okay. Fine.

“[Defense Counsel]: Your Honor, I would like to briefly address the court.

“The Court: All right. Sure.

“[Defense Counsel]: There were some indications from [the defendant] that he did not want me as his attorney. That, as I explained to him, these proceedings, I would just like that on the record.

“The Court: All right. Let me just state that for the record that I’m here in my capacity as judge presiding over jury selection. I will not be the judge in the trial. I have another matter coming up. This matter is going to be presided over by [another judge] beginning on Thursday, March 24th. It’s my understanding the trial will take about one week. The parties are selecting six jurors and two alternates. Each side has eight challenges that they may distribute as they wish between the regulars and alternates. And is that satisfactory to both sides?” The parties indicated that this was satisfactory.

The court then proceeded to put the defendant to plea on the first three charges on the new long form information that had been filed by the state, and the defendant entered a plea of not guilty on each charge, electing to be tried by a jury. On the charge of criminal possession of a firearm, the defendant entered a plea of not guilty and stated that he was electing a jury trial on this charge as well. The court instructed the defendant to consult with his attorney, to which the defendant then replied that he wanted that charge to be tried to the court but that he was “not clear on that.” The following colloquy then took place:

“The Court: Okay. Do you understand that a trial to the court is a trial to the judge?

“The Defendant: Um-hum. . . .

“The Court: Whoever tries it is this — this particular count is going to hear evidence concerning your previous convictions, you have to — you understand that?

“The Defendant: Yes.

“The Court: Okay. And the question is, if it goes to the jury, that’s your perfect right, then the jury will hear that evidence of your previous conviction or convictions. Do you understand that?

“The Defendant: Yes.

“The Court: Okay. If it goes before the judge, only the judge hears that. The question is, who do you want to try that particular count to? Do you want to try it to the court or to the jury?

“The Defendant: The jury. The jury.

“The Court: Well, consult with your counsel again.

“[Defense Counsel]: So you understand?

“The Defendant: I understand. I understand. I understand.

“[Defense Counsel]: Your Honor, against counsel’s advice, he wants to proceed against — proceed on that count to the jury.

“The Court: Okay, let me just ask you, are you clear on this then, you want all four counts tried to the jury.

“The Defendant: Yes.

“The Court: And you understand that one of the elements of criminal possession of a pistol is you — will involve any — your previous record. Do you understand that?

“The Defendant: Yes.

“The Court: And you understand that if it’s tried to the jury, the jury will hear your previous record?

“The Defendant: Yes.

“The Court: Okay. And knowing that, it is your decision, you want this matter to be tried to the jury as well?

“The Defendant: Yes.

“The Court: Are you positive?

“The Defendant: I’m positive.

“The Court: Okay. Do you have any questions for me or for your attorney? Any questions? . . .

“The Defendant: No, no questions.”

Jury selection then commenced and trial began. The defendant was found guilty on the charges of carrying a pistol without a permit, interfering with an officer and criminal possession of a firearm. The court accepted the verdict and sentenced the defendant to a total effective sentence of ten years imprisonment, three years of which were mandatory. This appeal followed.

On appeal, the defendant claims that he is entitled to a new trial because the court violated his right to counsel of choice and, additionally, abused its discretion by failing to conduct an inquiry when told that the defendant no longer wanted to be represented by his private attorney. The defendant argues: “[T]he failure of the trial court to conduct any inquiry at all violated his constitutional right to counsel of choice. The court’s failure to address the issue and conduct any inquiry at all denied the defendant the opportunity to retain counsel in whom he could trust and have confidence, and through whom he could shape his defense. In order to ensure that a defendant is not improperly forced to go to trial with a retained attorney he does not want and not denied a reasonable opportunity to retain counsel of his choice, the court must at the very least ‘scrutinize closely the basis’ for the request. To this end, the court must afford the defendant an opportunity to articulate the basis for the complaint or request and elicit further information if necessary in order to make an informed decision. To ignore the complaint without any inquiry whatsoever denies the defendant his right to counsel of choice.”

The defendant also argues: “Even if this court does not find that the trial court’s failure to inquire amounts to a denial of the defendant’s constitutional right to counsel of choice, the defendant is still entitled to relief because the trial court abused its discretion in failing to inquire.” The defendant continues: “Here, the complaint was substantial enough to warrant inquiry of some kind. The complaint was significant enough for counsel himself to bring it to the court’s attention. Rather than afford the defendant an opportunity to address the court and make a record, however, the court stymied the defendant by ignoring counsel’s comment and moving on.” The state argues: “[A]fter the court invited the defendant to speak and he declined that invitation, the court properly exercised its discretion and determined that further inquiry was not necessary .... Additionally, the ‘complaint’ presented to the court was not enough to trigger an inquiry as it was insubstantial, unclear and equivocal. Finally, when a defendant retains private counsel, he should be required to make a clear and unequivocal statement that he wishes to effectuate a change in his representation before the trial court is forced to interject itself into the attorney-client relationship and risk intruding on the defendant’s right to counsel of choice.” We conclude that the court proceeded properly under the circumstances presented.

“It is well settled that the guarantee of assistance of counsel under the sixth amendment to the United States constitution encompasses the right to select one’s own attorney. It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” (Internal quotation marks omitted.) State v. Peeler, 265 Conn. 460, 470, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710 (2004). “A critical aspect of making a defense is choosing the person who serves as one’s assistant and representative. The right to retain private counsel serves to foster the trust between attorney and client that is necessary for the attorney to be a truly effective advocate. . . . Not only are decisions crucial to the defendant’s liberty placed in counsel’s hands . . . but the defendant’s perception of the fairness of the process, and his willingness to acquiesce in its results, depend upon his confidence in his counsel’s dedication, loyalty, and ability.” (Internal quotation marks omitted.) Id., 471. “[I]t is well settled that if the decision by a trial court deprived a defendant of his constitutional right to counsel of choice, prejudice will be presumed.” Id., 475.

“Where a defendant voices a seemingly substantial complaint about counsel, the court should inquire into the reasons for dissatisfaction. . . . If [t]he defendant’s eruptions at trial, however, fell short of a seemingly substantial complaint, we have held that the trial court need not inquire into the reasons underlying the defendant’s dissatisfaction with his attorney. . . . The extent of an inquiry into a complaint concerning defense counsel lies within the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 725, 631 A.2d 288 (1993).

In this case, we conclude that the court did not violate the defendant’s right to counsel of choice, nor did it abuse its discretion when it did not address counsel's statement that he just wanted to put on the record that “[tjhere were some indications from [the defendant] that he did not want me as his attorney.”

To support his claim of a constitutional violation, the defendant relies heavily on the case of Benitez v. United States, 521 F.3d 625 (6th Cir. 2008). In Benitez, the defendant’s attorney, at the start of the defendant’s sentencing hearing, informed the court that the defendant had fired him the previous night. Id., 627-28. The defendant, who spoke through an interpreter, confirmed to the court that he did not want this attorney to represent him. Id., 628. The court told counsel to stand there for “ ‘a little while longer,’ ” and it then asked the defendant if he wanted the attorney to speak on his behalf, to which the defendant responded that if he still was going to get sentenced either way, then counsel could speak on his behalf. Id. The defendant did not file a direct appeal, but filed a motion for relief from judgment, arguing, inter alia, that he had been deprived of his sixth amendment right to counsel during the sentencing hearing. Id., 628-29. The defendant argued that “he was denied the right to counsel because, despite having expressed dissatisfaction with [his attorney] and informing the district court that he did not want [this attorney] to represent him, the district court failed to ‘ascertain the basis for [the defendant’s] dissatisfaction.’ ” Id., 630-31. The United States Court of Appeals for the Sixth Circuit agreed, although it acknowledged that this case did not fit squarely within traditional sixth amendment cases. See id., 631. The court explained that “the Sixth Amendment is implicated where a criminal defendant seeks to change the status of his representation. This kind of ‘change’ of status usually arises in one of two ways: (1) a defendant seeks to invoke his right to self-representation ... or (2) a defendant seeks to substitute his counsel . . . .” (Citations omitted; emphasis in original.) Id. Although concluding that the defendant had neither invoked his right to self-representation nor sought to substitute his counsel; id., 632-33; it, nonetheless, concluded that the statements made at the start of the hearing were sufficient enough to equate to “ ‘a motion or something that approximates such a motion’ ”; id., 634; see id., 635; so as to require an inquiry “into the source and nature of [the defendant’s] dissatisfaction . . . .” Id., 636.

We conclude that Benitez is inapposite to the present case. In Benitez, counsel informed the court that the defendant had fired him the night before, and the defendant confirmed this statement. Id., 627-28. In the present case, the court specifically mentioned that counsel had stated that the defendant “might want to address the court . . . The court then stated that it did not know if that was still the case. A review of the audio recording of the hearing reveals that it was at this point that the defendant and counsel had a discussion while the court waited for their discussion to conclude. The court then asked the defendant: “Are we set to go?” The defendant, himself, stated “Yeah. We set to go.” Counsel then stated that he just wanted to put on the record that “[tjhere were some indications from [the defendant] that he did not want me as his attorney.” That issue ostensibly having been resolved between the defendant and his attorney, the court proceeded with the hearing. During the March 7 hearing, the defendant gave no direct indication that he was dissatisfied with his counsel; he made no motion or anything that could be considered motion-like; rather, when given the opportunity to speak by the court, he discussed the situation with his counsel, and he told the court that he was ready to proceed. It was counsel who subsequently wanted to put on the record that there had been “some indications from [the defendant] that he did not want me as his attorney” — documenting that the defendant and counsel may have had a prior disagreement, but that it no longer was an issue that would impede the progress of the case.

Because the court timely gave the defendant and his attorney an opportunity to confer during the hearing, and the defendant thereafter stated that he was ready to proceed, we agree with the state’s position that any inquiry by the court at that juncture was unnecessary and could have intruded into the attorney-client relationship. The defendant voiced no dissatisfaction with counsel, despite being given an opportunity to address the court. Counsel’s remark, after conferring with his client, appears to be nothing more than a statement for the record explaining why the defendant, prior to their consultation, might have wanted to address the court. There being no indication from the defendant, however, that there was an ongoing substantial disagreement, the court properly continued with the hearing, not interfering with the attorney-client relationship. We conclude, therefore, that the court did not act in violation of the defendant’s sixth amendment right to counsel of his choice.

The defendant additionally argues that, even if the court’s inaction did not implicate his sixth amendment right, the court, nonetheless, abused its discretion when it did not conduct an inquiry of the defendant after counsel's statement for the record. For the same reasons stated previously, we conclude that the court acted properly under the circumstances presented. “[W]here a defendant voices a ‘seemingly substantial complaint about counsel,’ the court should inquire into the reasons for dissatisfaction.” McKee v. Harris, 649 F.2d 927, 933 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982). In this case, the defendant did not make a “ ‘seemingly substantial complaint’ ” about counsel, whom he previously had selected and retained. We conclude therefore, on the basis of the record before us, that the trial court did not err when it did not conduct an inquiry of the defendant on the basis of counsel’s statement for the record.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of stealing a firearm in violation of General Statutes § 53a-212 (a).

       Although the defendant claims that the court violated his rights under both the federal and the state constitutions, he has provided no separate analysis for his state constitutional claim. “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim.” (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 167-68, 962 A.2d 81 (2009). Accordingly, we decline to reviewthe defendant’s state constitutional claim.

       A copy of this motion does not appear in the record. The transcript of the March 2, 2011 hearing, however, reveals that the court had it in its possession.

       The state filed a motion in this court requesting that we obtain and listen to the actual recording of this hearing, which, the state contended, would confirm that, before asking the defendant if he was “set to go,” the court paused and permitted the defendant and counsel to confer. We granted the state’s motion, and our review of the electronic recording supports the state’s contention that the defendant and his counsel did confer for as long as they needed to do so before the court asked the defendant if he was “set to go.”

       The electronic recording of the March 7, 2011 hearing confirms that the defendant conferred with his counsel for a second time during the hearing as directed by the court.

       A review of the audio recording of the hearing reveals that the defendant conferred with his counsel for a third time during the hearing at this point.


author: PER CURIAM.

text:
    JOANNE M. FOLEY v. ANDREW C. FOLEY
    (AC 34295)
    Beach, Bear and Sehaller, Js.

      Argued November 15, 2012
    officially released January 29, 2013

      Andrew C. Foley, pro se, the appellant (defendant).

      Joanne M. Foley, pro se, the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Andrew C. Foley, appeals from the judgment of the trial court denying three motions for contempt that he filed against the plaintiff, Joanne M. Foley. On appeal, the defendant essentially requests that we review these motions de novo. We affirm the judgment of the trial court.

The following facts reasonably can be ascertained from the record. The marriage of the parties was dissolved in February, 2010. In October, 2011, the defendant filed three separate postjudgment motions for contempt. In the first motion, the defendant alleged that the plaintiff was in contempt because she had defaulted on the parties’ mortgage and had increased the loan amount on the home by more than $25,000 without the defendant’s permission. The court denied this motion finding that the plaintiff was not in wilful contempt. In the second motion for contempt, the defendant alleged that the plaintiff was in contempt because the child care bills that she expected him to pay were not related to employment, but, rather, were related to her schooling. The court denied this motion finding that the defendant had failed to prove that the plaintiff was in wilful contempt of a court order. The court also explained that if the defendant wanted to pursue a request for a modification of child support, he should do so via an appropriate motion. In the third contempt motion, the defendant alleged that the plaintiff was in contempt because she was bringing one of the parties’ children to therapy without the permission of the defendant. The court denied this motion without prejudice. This appeal followed.

On appeal, the defendant requests that we “review the decisions [of the trial court] anew.” We are mindful, however, that “[o]ur function as an appellate court is to review and not retry the proceeding of the trial court.” (Internal quotation marks omitted.) In re Davonta V., 98 Conn. App. 42, 49, 907 A.2d 126 (2006), aff'd, 285 Conn. 483, 940 A.2d 733 (2008). As to the first motion, the defendant “requests that the court provide relief from this situation by ordering the plaintiff to refinance the property in [her own] name ... [or that she] be ordered to sell the property and clear the loan . . . .” As to the second motion, the defendant “asks that the court order [the child care] bills to cease and that any future qualifying bills be split ... in accordance with the child support guidelines.” He also asks us to order that the plaintiff “be more cooperative in regard to the defendant’s offer for alternative day care with [him].” As to the third motion, the defendant requests “an end to the therapy sessions.” Essentially, the defendant is asking us to retry the facts and issue new orders. This we are unable to do. See Hopfer v. Hopfer, 59 Conn. App. 452, 458, 757 A.2d 673 (2000) (“[o]ur role as an appellate court is not to retry the facts of the case, substitute our judgment for that of the trial court, or articulate or clarify the trial court’s decision” [internal quotation marks omitted]); Mihalyak v. Mihalyak, 11 Conn. App. 610, 618, 529 A.2d 213 (1987) (“claim is no more than an effort to retry the facts, which is not the function of an appellate court”).

Additionally, even if the defendant had sought review of the court’s orders instead of a de novo hearing, we would decline to review his claims because of inadequate briefing. The defendant has failed to set forth a standard of review for any of his claims or to cite relevant authority in support of his position. “We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Strobel v. Strobel, 73 Conn. App. 488, 490, 808 A.2d 1138, cert. denied, 262 Conn. 928, 814 A.2d 383 (2002); see Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 51 n.23, 861 A.2d 473 (2004) ([i]nasmuch as the plaintiffs’ briefing of the . . . issue constitutes an abstract assertion completely devoid of citation to legal authority or the appropriate standard of review, we exercise our discretion to decline to review this claim as inadequately briefed).” (Internal quotation marks omitted.) Carabetta v. Carabetta, 133 Conn. App. 732, 736-37, 38 A.3d 163 (2012).

The judgment is affirmed.

       Although some motions that are denied “without prejudice” are not appealable final orders, in this case, the court clearly denied the motion at issue with respect to the plaintiffs conduct up to the time the motion was filed. See Moreira v. Moreira, 105 Conn. App. 637, 639-40, 938 A.2d 1289 (2008). Therefore, the matter fully was acüudicated and is a final order for purposes of appeal.

       The defendant also has failed to provide a written memorandum of decision or a signed transcript setting forth the court’s findings of fact and conclusions of law with respect to its rulings as required by Practice Book § 64-1. The defendant, however, has provided an unsigned transcript of the October 24, 2011 motion hearing.


text:
    MICHAEL E. CONNOLE ET AL. v. MICHELE BABIJ
    (AC 33128)
    DiPentima, C. J., and Beach and Peters, Js.
    Argued November 27, 2012
    officially released January 29, 2013

      Ralph C. Crozier, for the appellants (plaintiffs).

      Michele Babij, pro se, the appellee (defendant).
   Opinion

PER CURIAM.

In this action concerning a right-of-way, the plaintiffs, Michael E. Connole, Nancy Connole and James Maguire, appeal from the judgment of the trial court rendered in favor of the defendant, Michele Babij. The principal issue in this appeal is whether the court erred in determining that the plaintiffs had a license to use a right-of-way, subject to an annual fee, after first determining that the plaintiffs had easements allowing passage over the right-of-way. We reverse, in part, the judgment of the trial court.

The following facts, as found by the trial court, are relevant in this appeal. In 2009, the plaintiffs commenced an action against the defendant alleging that the defendant had obstructed and interfered with a certain right-of-way shared in common with the plaintiffs and others over Highland Lake Road, which right-of-way abuts the plaintiffs’ respective properties. The plaintiffs sought damages and injunctive relief. The defendant filed an “answer, special defenses and cross complaint” alleging that the plaintiffs caused damage to the right-of-way by driving over it and cutting down trees.

In its memorandum of decision, the court determined that the defendant was the record owner of the right-of-way because of a deeded interest. The court found that certain language in the defendant’s deed gave abutting landowners, such as the plaintiffs, “limited passage rights” over the right-of-way. The court also found that the plaintiffs had prescriptive easements over the right-of-way. The court ordered that the plaintiffs pay to the defendant and to her heirs, successors and assigns an annual amount of $100 for the privilege of passing over and across the right-of-way by pedal bicycle and/or by foot. The court stated that the failure to pay the annual fee to the defendant would cause the plaintiffs to forfeit any right to pass, use or repass over the right-of-way. The court ordered the plaintiffs to refrain from interfering with the use, enjoyment or condition of the right-of-way and enjoined them from removing or cutting any trees, plantings and/or shrubbery from the right-of-way. In a supplemental judgment, the court ruled that the plaintiffs may also pass over at least a portion of the right-of-way by motorized vehicle. This appeal by the plaintiffs followed. There was no cross appeal.

The principal issue in this appeal is whether the court erred in transforming the plaintiffs’ easements into a license, subject to an annual fee. In reaching this issue, we first address the issues raised by the plaintiffs regarding their easements and the ownership of the right-of-way. The plaintiffs contend that the court improperly failed to conclude that they had easements by deed over the right-of-way and instead determined that they had prescriptive easements. Contrary to the plaintiffs’ assertion, the court did find, albeit implicitly, that the plaintiffs had deeded rights of passage over the right-of-way. Our review of the parties’ respective chains of title confirms that the plaintiffs had deeded interests in the right-of-way. The court’s finding of the prescriptive easements, while not necessarily inconsistent with its finding of the deeded easements, nonetheless is extraneous and has no bearing on our resolution of this appeal.

The plaintiffs further assert that the court erred in concluding that the defendant owned the fee to the right-of-way by virtue of a deeded interest. The deeds admitted into evidence do not establish that the defendant held marketable record title to the right-of-way. See General Statutes § 47-33b etseq. The plaintiffs, then, have deeded easements over the right-of-way and the evidence in this case did not establish that the defendant owned the fee to the right-of-way. The trial court found, as a factual matter, that the defendant had not proved a claim of adverse possession, which claim, if proved, was intended to trump the plaintiffs’ easements. We do not conclude that the trial court’s finding of fact with respect to adverse possession was clearly erroneous.

We turn to the issue of license. The court found no facts supporting the existence of a license. Rather, it found that the plaintiffs had easements over the right-of-way. It is incorrect, as a matter of law, for the court to have determined, after finding the existence of easements, that passage by the plaintiffs onto the right-of-way was a privilege subject to an annual fee and possible forfeiture. An easement is not a privilege, but rather is a property interest giving the owner the right to use the land of another for a special purpose. McManus v. Roggi, 78 Conn. App. 288, 293 n.6, 826 A.2d 1275 (2003). An easement is distinct from a license in that a license gives a mere privilege, does not create any interest in the subject property and does not run with the land. See Clean Corp. v. Foston, 33 Conn. App. 197, 203, 634 A.2d 1200 (1993). Additionally, the finding of a license is inconsistent with the evidence, which does not establish that the defendant owned the fee to the right-of-way. The court abused whatever equitable discretion it had in ignoring its finding of easements and creating a license without factual support. See, e.g., Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981) (“[t]he determination of what equity requires in apartic-ular case, the balancing of the equities, is a matter for the discretion of the trial court”).

In light of the foregoing, we reverse that part of the court’s judgment that requires the plaintiffs to pay to the defendant $100 per year for the privilege of passing over the right-of-way, and that subjects the privilege to forfeiture in the event that the annual fee is not paid. We also reverse that part of the court’s judgment finding that the defendant owned the fee to the right-of-way based on her deeded interest. We direct the trial court to vacate these parts of its judgment.

The judgment is reversed in part in accordance with the preceding paragraph, and affirmed in all other respects.

       After the complaint was brought, the defendant filed a motion to include Carmen Bazzano as an additional party plaintiff, which motion the court granted. Bazzano is not a party to this appeal.

       Evidence at trial revealed that Highland Lake Road has been referred to by various names including Von’s Way, Clorinator Road, Moreland Road and Morgan Road.

       The deeds that are exhibits in this case contain no express limitation to the abutting landowner’s passage rights.

         No party sufficiently contested on appeal either the physical dimensions of the easements or the permitted uses.

       We decline to address the defendant’s claim that the court erred in finding that the plaintiffs have prescriptive easements over the right-of-way. This claim is not properly before us because the defendant failed to file a cross appeal in accordance with Practice Book § 61-8. “If an appellee wishes to change the judgment in any way, the party must file a cross appeal.” (Internal quotation marks omitted.) Mitchell v. Silverstein, 67 Conn. App. 58, 60 n.5, 787 A.2d 20 (2001), cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002).

       We express no opinion as to whether the defendant, in fact, has title in fee to the right-of-way. We hold only that the evidence submitted is insufficient to establish marketable record title; the defendant’s chain of title, as submitted into evidence, begins with a quitclaim deed of less than forty years’ vintage.

       As noted by the trial court, the complaint and cross complaint both request “any other equitable relief’ the court may find.


text:
    LEAH NESTICO v. BRETT A. WEYMAN ET AL.
    (AC 33809)
    Gruendel, Alvord and West, Js.
    Argued December 12, 2012
    officially released January 29, 2013

      James P. Brennan, for the appellant (plaintiff).

      Craig A. Fontaine, with whom, on the brief, was William D. Catalina, for the appellees (defendants).
   Opinion

PER CURIAM.

In this case, the defendants, Brett A. Weyman and Connecticut Maxillofacial Surgeons, LLC, filed a motion to dismiss the dental malpractice action by the plaintiff, Leah Nestico, predicated on her alleged failure to comply with the requirements of General Statutes § 52-190a. After hearing argument thereon, the court granted the motion to dismiss. The plaintiff now challenges the propriety of that determination in this appeal.

Our examination of the record and briefs and our consideration of the arguments of the parties persuade us that the judgment should be affirmed. On the facts of this case, the issues properly were resolved in the court’s complete and well reasoned memorandum of decision. See Nestico v. Weyman, 52 Conn. Sup. 463, 59 A.3d 338 (2011). We therefore adopt it as the proper statement of the relevant facts, issues and applicable law, as it would serve no useful purpose for us to repeat the discussion contained therein. See Green v. DeFrank, 132 Conn. App. 331, 332, 33 A.3d 754 (2011).

The judgment is affirmed.

       General Statutes § 52-190a (a) provides in relevant part: “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. ...”


text:
    BERNARD V. KLEINMAN v. ANN M. CHAPNICK
    (AC 34614)
    DiPentima, C. J., and Robinson and Espinosa, Js.

      Argued November 26, 2012
    officially released January 29, 2013

      Bernard V. Kleinman, pro se, the appellant (plaintiff).

      Joseph DaSilva, Jr., with whom, on the brief, were Marc J. Grenier and Thomas L. McKirdy, for the appel-lee (defendant).
   - Opinion

PER CURIAM.

The plaintiff, Bernard V. Kleinman, appeals from the judgment of the trial court dismissing his complaint alleging a cause of action for conversion against the defendant, Ann M. Chapnick. On appeal, the plaintiff argues that the court improperly dismissed his complaint pursuant to the prior pending action doctrine. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs appeal. The parties were married in 1979, and, on March 12, 2010, the court, Malone, J., rendered a judgment dissolving the marriage. Kleinman v. Chapnick, 131 Conn. App. 812, 813-14, 30 A.3d 3 (2011). On October 17, 2011, the plaintiff commenced this action, alleging conversion of his personal property. He claimed that he left certain personal property in the marital residence, and, despite repeated demands, the defendant refused to return said property to his possession. The plaintiff sought damages for conversion in the amount of $100,000, an order directing the defendant to provide an accounting of all personalty in the former marital residence as of January 1, 2009, and as of February 1, 2011, punitive damages in the amount of $100,000, legal fees and costs and other further relief deemed just and proper by the court.

On January 10, 2012, the defendant filed a motion to dismiss the plaintiffs complaint pursuant to Practice Book § 10-31 et seq. She set forth, inter alia, the following basis for dismissal: “At the time of the commencement of this action, there was another action captioned Kleinman v. Chapnick, Docket No. FST-FA-08-4013764-S, in the [jjudicial [djistrict of Stamford/Norwalk at Stamford, between the same parties and seeking the same relief as set forth in the complaint in this action, and, as a result this matter must be dismissed pursuant to the prior pending action doctrine.” On February 24, 2012, the plaintiff filed an objection to the defendant’s motion.

On April 18, 2012, the court issued a memorandum of decision granting the motion to dismiss the conversion action. It stated that after examining the court file in the dissolution case, that action and the present one were brought by the same plaintiff against the same defendant and involved the same subject matter; namely, items of personal property sought by the plaintiff. Specifically, the court set forth the following language from the judgment in the dissolution case: “That the [defendant] shall retain all personal property in the marital home free from any claim by the [plaintiff], except for the following personal items that belong to the [plaintiff] located in the marital home: Hess truck [collection, photographs of the [plaintiffs] parents’ wedding day, photographs of the [plaintiff’s] father’s graduation, and clothes. The [plaintiff] shall remove his personal property from the marital home by June 15, 2010.” The court then stated: “Although the judgment in the [dissolution action] does not specifically itemize all the personal property in the marital home herein allegedly converted, the judgment is directed to ‘all the personal property in the marital home’ with specific mention of several of the very items alleged to have been converted. This is sufficient in the court’s view to make the two cases ‘virtually alike’ and to justify the dismissal of this second-brought action under the doctrine of prior action pending.” This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion to dismiss as a result of its misapplication of the prior pending action doctrine. We are not persuaded.

“[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.” (Internal quotation marks omitted.) Selimoglu v. Phimvongsa, 119 Conn. App. 645, 649, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010); see Modzelewski v. William Raveis Real Estate, Inc., 65 Conn. App. 708, 713-14, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001). The policy behind the doctrine is to prevent unnecessary litigation that places a burden on crowded court dockets. Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).

The framework for our analysis, including the appropriate standard of review, of the plaintiffs claim is found in Bayer v. Showmotion, Inc., 292 Conn. 381, 973 A.2d 1229 (2009). “[W]e conclude that the trial court must determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine’s application. In order to determine whether the actions are virtually alike, we must examine the pleadings ... to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties. . . . The trial court’s conclusion on the similarities between the cases is subject to our plenary review.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 397-98.

Following that initial determination, the court must proceed to a second step. If the court has concluded that the cases are exactly alike or insufficiently similar, the court has no discretion; in the former situation, it must dismiss the second action, and in the latter, it must allow both cases to proceed. Id., 398. “Where actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action.” Id. Our analysis, therefore, is focused on whether the court properly determined that the two actions were virtually alike and whether the court abused its discretion in dismissing the conversion action.

In the present case, the court examined the court file in the dissolution action along with the complaint in this conversion action. It noted that the judgment file in the dissolution action was directed at all the personal property in the marital home and specifically mentioned certain items that the plaintiff alleged were converted, including the Hess truck collection and photographs of the plaintiffs deceased father. We acknowledge that the prior pending action doctrine is not one of “unbending rigor” and that “the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint.” (Internal quotation marks omitted.) Id., 396. We also note that the applicability of the doctrine does not turn on the issue of whether the two actions seek the same remedy. Id., 399. The key question is whether the two actions are brought to adjudicate the same underlying rights. Id.

The court determined that both actions pertained to a determination of the property rights of the parties with respect to certain items located in the marital residence. Additionally, it noted that the court in the dissolution action awarded ownership of the Hess truck collection, photographs of the graduation of the plaintiffs father, photographs of the wedding day of the plaintiffs parents and clothes to the plaintiff. If the defendant disregarded those orders, the plaintiff may pursue a remedy against the defendant with a motion for contempt. We conclude, for these reasons, that the court properly determined that the two actions were virtually alike and that the court did not abuse its discretion in granting the defendant’s motion to dismiss pursuant to the prior pending action doctrine.

The judgment is affirmed.

       The plaintiff is an attorney in New York but is not licensed to practice law in the state of Connecticut.

       We issued our decision in the defendant’s direct appeal from the dissolution action on October 18, 2011, one day after the plaintiff commenced this conversion action. Neither party has raised any claim regarding the timing of commencement of the conversion action and the resolution of the defendant’s appeal from the dissolution action.

       The plaintiff described the property at issue as follows: “Among, but not exclusively, the items that the [plaintiff left in the marital residence, under the sole possession and control of the [defendant were the following:
      “a. Hess Truck Collection — a collection of Hess collectible trucks dating back to the late 1980s — with an estimated value of $1,500.00.
      “b. Civil War book collection, including, but not limited to, original first edition of Carl [Sandburg’s] six-volume biography of Abraham Lincoln— with an estimated value of $1,000.00; complete set of Bruce Catton books on the Civil War, many first editions — with an estimated value of $750.00; complete set of Allen Nevins books on the Civil War and preceding period— with an estimated value of $750.00; complete set of; and additional tomes by such authors as Douglas Freeman, Shelby Foote, Michael Shaara, and others — with an estimated value of $5,000.00.
      “c. Personal family photographs including those of the [plaintiffs deceased father. Antique solid sEver Sabbath Kiddush wine cup belonging to the [p]laintiffs father and dating from in or around 1883, having, besides sentimental value, an approximate antique value of $1,000.
      “d. Certain antique and other furnishings and other personal items — with an estimated value of $25,000.00.”

       “The essential cause of action is a wrongful exercise of dominion over personal property of another. The wrongful act may be committed when one takes the property of another; when one, having received the property of another for a specified use, appropriates it to a different use in derogation of the owner’s right; when one, having received the property of another to be delivered up upon demand, neglects without lawful reason to deliver it upon demand made; and in other cases where there may be an unauthorized assumption of the right of ownership over goods of another to the exclusion of the owner’s rights. . . . The various ways in which the wrongful act may be committed are grouped under the name conversion.” (Citations omitted; internal quotation marks omitted.) Semon v. Adams, 79 Conn. 81, 82, 63 A. 661 (1906); see Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 329, 852 A.2d 703 (2004); see also M. Taylor & D. Krisch, Encyclopedia of Connecticut Causes of Action (2009) p. 12.

       We have stated that “[t]he prior pending action doctrine is properly raised via a motion to dismiss . . . .” (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn. App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007); see Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985). The doctrine does not, however, truly implicate the court’s subject matter jurisdiction. Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009).

       To the extent that the plaintiff argues that the family division of the Superior Court lacked jurisdiction to consider his claim of conversion of his property, we conclude such a contention to be without merit. In Connecticut, the Superior Court is the sole court of original jurisdiction except over those matters where the Probate Court has original jurisdiction. In re Shonna K., 77 Conn. App. 246, 251, 822 A.2d 1009 (2003). Thus, all civil matters fall within the subject matter jurisdiction of the Superior Court. Id., 253. The organization of the Superior Court into four divisions, family, civil, criminal and housing, was done to promote an efficient use of judicial resources. Id., 252. The transfer of cases between the divisions is analogous to the law of venue and not the jurisdiction of the court. Id., 253.

       In Bayer, our Supreme Court stated that “the trial court properly could have taken judicial notice of the contents of the prior pending file.” Bayer v. Showmotion, Inc., supra, 292 Conn. 393 n.8.