author: PETERS, J.

text:
    STATE OF CONNECTICUT v. MARTIN GRAY
    (AC 29164)
    Bishop, Lavine and Peters, Js.

      Argued October 14, 2010
    officially released February 15, 2011

      G. Douglas Nash, special public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, Beth Baran, senior assistant state’s attorney, and James G. Clark, former senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

General Statutes § 54-86k (a) provides, in relevant part, that “[i]n any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person.” In State v. Clemons, 168 Conn. 395, 403, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975), our Supreme Court held that an indigent defendant is entitled to the assistance of a state funded expert witness to counter expert testimony presented by the state, such as DNA testing, that is derived from new scientific technology. The principal issue in this appeal is whether the trial court abused its discretion in refusing a last-minute request by a criminal defendant to have an incriminating DNA test reexamined by a testing agency of the defendant’s choice. We affirm the ruling of the trial court and its subsequent judgment finding the defendant guilty of the crimes with which he was charged.

In a two count information filed May 8, 2007, the state charged the defendant, Martin Gray, with having engaged in sexual intercourse with a person under thirteen years of age in violation of General Statutes § 53a-70 (a) (2) and with having had intimate sexual contact with a child under the age of sixteen in violation of General Statutes (Rev. to 2003) § 53-21 (2). After accepting the jury’s verdict finding him guilty of these crimes, the trial court imposed a total effective sentence of forty-five years of incarceration, execution suspended after thirty-five years, followed by fifteen years of probation. The defendant has appealed.

The juiy reasonably could have found the following facts. The defendant became a member of the victim’s household when she was six years old. Six years later, when the victim began to occupy a bedroom of her own, the defendant repeatedly engaged in sexual intercourse with her. His misconduct came to light when the victim became pregnant and had a baby. The state’s DNA testing of the victim, the baby and the defendant showed a high statistical probability that the defendant was the baby’s father.

To counter this incriminating evidence, the defendant maintains on appeal, as he argued at trial, that the trial court (1) improperly deprived him of the opportunity for an independent retest of the state’s inculpatory DNA test and (2) misinstructed the jury on the relationship between intoxication and criminal liability. We are not persuaded by either claim.

I

DNA RETESTING

The defendant’s principal argument on appeal is that his conviction should be set aside because he was deprived of an opportunity to have an independent laboratory examine the DNA swabs that, according to the state’s experts, demonstrated that he was the father of the victim’s baby. In February, 2006, buccal swabs from the victim, her baby and the defendant were submitted to the state laboratory for DNA paternity testing. The laboratory reported that the results were “consistent with [the defendant] being the father of [the victim’s baby].” At trial, the state’s expert witness, although acknowledging that the test is a statistical comparison that cannot establish paternity definitively, opined that the probability of the defendant being the father was high.

In view of the incriminating nature of this DNA evidence, on May 1, 2007, in advance of the trial, the defendant filed a motion, pursuant to Practice Book (2007) § 40-11, in which he sought a court order requiring the state to arrange for the DNA buccal swabs to be sent for retesting to Orchid Cellmark, a laboratory in Dayton, Ohio. The defendant’s counsel explained to the court that, despite intensive efforts to move forward, she had only recently been able to identify this laboratory as a qualified testing resource.6 Expressing skepticism that such a test could be conducted in the five day period before the scheduled date for the commencement of the defendant’s trial, the state opposed the motion. It emphasized that it had disclosed the DNA results to the defendant many months earlier, on October 4, 2006. The court, Damiani, J., observed, as well, that on February 14,2007, the defendant had been granted a continuance for the very purpose of enabling his counsel to consult with her own DNA experts. Although the defendant disclaimed any intention to ask for a further continuance and described a plan for an expedited processing of the DNA samples once they had been received from the state, the court denied the defendant’s motion.

A

Focusing on the unique importance of DNA testing in the determination of the defendant’s culpability in this case, the defendant asks us to review the denial of his motion for an independent examination of the DNA samples in accordance with the plenary standard of review that governs evidentiary claims that have significant constitutional implications. He relies on recent case law in which our Supreme Court has undertaken a plenary review of arguably suggestive pretrial identification procedures; State v. Marquez, 291 Conn. 122,137-38, 967 A.2d 56, cert. denied, 558 U.S. 895,130 S. Ct. 237,175 L. Ed. 2d 163 (2009); and of the materiality of undisclosed exculpatory evidence. State v. Ortiz, 280 Conn. 686, 721-22, 911 A.2d 1055 (2006).

The state reminds us, however, that, our Supreme Court’s review of the propriety of sanctions for violations of discovery rules consistently has emphasized the discretion of the trial court to “weigh the need for exclusion against the defendant’s right to present a defense.” (Internal quotation marks omitted.) State v. Tutson, 278 Conn. 715, 740,899 A.2d 598 (2006), quoting State v. Boucino, 199 Conn. 207, 214, 506 A.2d 125 (1986). In light of these precedents, we agree with the state that we may reverse the trial court’s denial of the defendant’s request for independent retesting of the DNA samples only if we are persuaded that the court’s ruling was an abuse of its discretion.

B

In support of the defendant’s contention that the denial of an opportunity for an independent retest was an abuse of the court’s discretion, he argues that (1) it would not have been burdensome for the state to challenge the results of a DNA retest, even if these results had been delayed, because such a retest would have been conducted in accordance with standard scientific protocols with which the state had demonstrable familiarity, (2) defense counsel’s delay in identifying a testing authority was due not to negligence but to administrative delay in the assignment of counsel to represent the defendant and to the difficulty of identifying a laboratory to conduct the DNA retest, (3) the absence of an independent DNA retest would impair defense counsel’s ability to conduct a searching cross-examination of the state’s DNA evidence and (4) any delay occasioned by a belated return of the DNA samples after the retest would not have delayed the trial because jury selection had not yet begun.

The state relies, as it did in the trial court, on the fact that the defendant’s motion was untimely in light of the ten weeks that had elapsed after the continuance that had been granted for the specific purpose of enabling the defense to consult a DNA expert. We are not persuaded by the state’s additional suggestion that, to justify a request for a DNA retest, the defendant was required to anticipate the evidence that such a retest would have disclosed. The state was entitled, however, to question the accuracy of the defendant’s representation that an out-of-state DNA retest could be completed in the five day time interval between the hearing on the motion and the scheduled commencement of the defendant’s trial.

On the record before us, the defendant’s ten week delay in asking for a retest, combined with the imminence of the commencement of the defendant’s trial, provided ample factual support for the court’s decision to deny the defendant’s motion. We therefore agree with the state that the court’s ruling was not an abuse of its discretion.

II

JURY INSTRUCTIONS

The defendant’s alternate claim on appeal is a challenge to the propriety of the court’s jury instructions relating to his denial of having intentionally engaged in intercourse with the victim. Our standard of review for a claim of instructional impropriety is well established, ^individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge .... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Rodriguez-Roman, 297 Conn. 66, 89, 3 A.3d 783 (2010).

The defendant’s theory of the case was that he often drank alcohol to excess and took illegal drugs and that, as a result, he often would fall into a deep sleep that resembled a blackout. Because he could not recall anything that had occurred while he had been asleep, he hypothesized that his intercourse with the victim must have resulted from her actions and not his own. Although he conceded that voluntary intoxication was not a defense to the crimes with which he was charged, he argued, in reliance on State v. Pierson, 201 Conn. 211, 216, 514 A.2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989), that because his inebriation rendered him unconscious, his conduct, like the conduct of a person under hypnosis, had not been voluntary and, therefore, could not properly be found to have been criminal misbehavior.

In accordance with the defendant’s requested jury instruction with respect to intoxication, the court informed the jury of the defendant’s contention that his intoxication, and his resultant unconsciousness, disabled him from engaging in wilful misconduct. The defendant concedes that the instruction accurately presented his theory of the case to the jury.

However, at the request of the state, and over the objection of the defendant, the court also instructed the jury that both of the crimes with which he was charged were “general intent crimes. . . . Such acts must be voluntary or purposeful and not accidental or inadvertent or unconsciously done. There is no requirement that the defendant act with a criminal purpose. A voluntary act is defined as proceeding from the will or from one’s own choice or consent or done by design or intention. Involuntary is defined as the contrary to our own choice. Voluntary bodily movements as used in this instruction on general intent have nothing to do with memory. The question is whether the bodily movements are voluntary or involuntary, not whether the actor has a conscious memory of them. Also, the voluntary ingestion of alcohol or illegal drugs is no defense to the crimes charged herein.”

The defendant maintains that the court’s charge on general intent was misleading because the evidence of intoxication that he had presented did not and could not explain how the intercourse had occurred and had not been proffered by the defendant as an excuse or defense. In response, the state argues, as it did at trial, that, in light of the totality of the evidence before the jury and the arguments of the parties, the court’s instructions had to provide guidance to the jury on the complex interaction between intoxication, general intent and voluntary acts presented by the record. The defendant had himself presented the issue of his intoxication to the jury. Even if the jury believed the defendant’s testimony that, because of his abuse of alcohol and drugs, he did not recall having engaged in sexual intercourse with the victim, it might also have believed the victim’s testimony that the defendant had entered her room at night and there had sexually assaulted her. Without appropriate instructions, the jury might not have understood that the defendant’s failure to recall his conduct did not establish that his conduct was involuntary.

We agree, therefore, with the state that, on this record, it was appropriate for the court to instruct the jury on the relationship between intoxication and general intent and of the relationship between intoxication and the state’s burden of proving that the defendant had engaged in the acts with which he was charged. Indeed, State v. Pierson, supra, 201 Conn. 216, on which the defendant relies, supports the state’s position because it holds that, in the absence of evidence of lack of the requisite mental capacity, a court need not charge on general intent. Id., 218. By contrast, in this case, once the defendant introduced such evidence at the trial, the state was entitled to request the charge on general intent that the court gave the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 2003) § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony for a violation of subdivision (2) of this subsection.”
      We note that the conduct that gave rise to the risk of injury charge was alleged to have occurred between November 1, 2004, and August 2, 2005. In 2007, § 53-21 was amended. See Public Acts 2007, No. 07-143, § 4. Because the relevant 2003 and 2005 revisions of § 53-21 are identical, for convenience, we refer to the 2003 revision.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to indentify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       A buccal swab is a cotton-tipped device used to collect cheek cells from the inside of an individual’s mouth.

       Practice Book (2007) § 40-11 (a) provides in relevant part: “Upon written request by a defendant filed in accordance with Section 41-5 and without requiring any order of the judicial authority, the prosecuting authority, subject to Section 40-40 et seq., shall promptly, but no later than forty-five days from the filing of the request, unless such time is extended by the judicial authority for good cause shown, disclose in writing the existence of and allow the defendant in accordance with Section 40-7, to . . . have reasonable tests made on any of the following items . . .
      “(4) [a]ny reports or statements of experts made in connection with the offense charged including results of physical and mental examinations and of scientific tests, experiments or comparisons which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial . . . .”
      In footnote 17 of its appellate brief, the state points out that it would have been more appropriate for the defendant, who concededly had received the state laboratory’s DNA report, to have cited Practice Book § 40-11 (a) (2), rather than Practice Book § 40-11 (a) (4), as the basis for his request for access to the buccal swabs. The record makes it clear, however, that at the hearing on the defendant’s motion for further DNA testing, there was no confusion about the nature of the defendant’s request.

       In light of the frequency of criminal cases involving some kind of DNA evidence, it is notable that it is apparently the responsibility of an individual public defender to identify a laboratory to conduct a DNA retest.

       The defendant renewed his motion at his trial before the court, Licari, J., but the motion was again denied.

       Without objection, the court also instructed the jury as follows: “A person’s intent may be proven by direct or circumstantial evidence. No person is able to testify that he looked into another’s mind and saw there a particular intent. The only way a jury can determine a person’s — what a person’s intention was at any given time, aside from that person’s own testimony is by circumstantial evidence. You may or may not believe that testimony according to whether or not you find it worthy of belief.” The defendant has not challenged the validity of this instruction.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARK S. SILVER
    (AC 30829)
    Harper, Alvord and Peters, Js.

      Argued October 25, 2010
    officially released February 15, 2011

      Adele V. Patterson, senior assistant public defender, for the appellant (defendant).

      AdamE. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Jonathan C. Benedict, former state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

Pursuant to the spontaneous utterance exception to the hearsay rule, as codified in Connecticut Code of Evidence § 8-3 (2), a declarant’s statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is admissible into evidence. See State v. Kelly, 256 Conn. 23, 41-42, 770 A.2d 908 (2001). The principal issue in this appeal is whether two declarants’ calls to 911 emergency services were admissible under this doctrine without extrinsic evidence that the declarants had been speaking under the stress of a startling event. Because we are persuaded of the propriety of the trial court’s evidentiary rulings, we affirm its judgment finding the defendant guilty as charged.

In a two count substitute information filed August 8, 2008, the state charged the defendant, Mark S. Silver, with attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a). After a jury trial, the defendant was found guilty on both counts and sentenced by the court to a total effective term of forty years incarceration. The defendant has appealed.

The jury reasonably could have found the following facts. Late in the evening of September 20, 2007, on Hollister Street in Stratford, the defendant became involved in a physical altercation with the victim, Edward Cox. Getting into a gold colored Mercury Sable registered to the victim, the defendant began driving toward the victim. After repeatedly hitting the victim with the car, the defendant severely injured the victim by pushing him under a chain-link fence.

The police were alerted to this incident by several observers at the scene of the crime, who dialed 911 for emergency services. When the defendant sped off, Mark Grass, who had earlier tried to intervene to help the victim, called 911 to report that he was following the defendant in his car. When both cars reached an intersection with a red traffic signal, Grass stopped, but the defendant continued through, going up over a curb and a lawn before continuing to speed away. Grass then returned to Hollister Street, where, speaking to the police officers who had responded to the emergency calls, he described what he had witnessed, including a description of the defendant as a black male wearing a white T-shirt and white head garb. That description was then broadcast by the police.

Shortly thereafter, Greg Gosselin, a tow-truck driver, just before leaving his place of employment on his way to a gasoline station, heard the police radio broadcast that described the defendant and his vehicle. En route, he noticed a car being operated erratically and realized that it matched the description broadcast by the police. The car stopped at the same gasoline station as Gosselin did, and he observed the defendant leave his vehicle and discard certain articles of clothing in the trash. Gosselin noted that the front end of the other driver’s car had been damaged and that the license plate was displayed in the rear window rather than in the usual place for a license plate.

Believing the driver to be the individual described in the police radio broadcast, Gosselin called 911 to alert the authorities. He remained on the telephone with the emergency dispatcher as he followed the other car when it left from the gasoline station. He described seeing the car accelerate rapidly on the highway and ultimately crash into the center median divider. He reported then seeing the car’s driver fleeing from the vehicle and running down the highway, attempting to get into other cars.

When police officers then arrived on the scene, they apprehended and arrested the defendant after a foot chase, a struggle and the use of an electric stun gun. Further facts will be set forth as necessary.

The defendant’s appeal to this court challenges the validity of the trial court’s rulings that admitted two sets of statements into evidence. The first ruling concerns the admission of pretrial incriminatory statements made by the defendant at Bridgeport Hospital, where he was transported after his arrest. The second ruling concerns the admission at trial of the 911 calls made by Grass and Gosselin. We are persuaded by neither claim of error.

I

Prior to trial, the defendant filed a motion to suppress incriminating statements that he had made to Bridgeport police Officer Clive Higgins at Bridgeport Hospital. The defendant had been transported there because, at the time of his arrest, he appeared to be semiconscious with his eyes rolling back in his head. Upon his arrival at the hospital, a muse had administered an unidentified medication to the defendant that caused him to regain consciousness.

The court found that while strapped to a gurney in the hallway of the hospital, the defendant saw and called out to Higgins, who was walking through the emergency department. Higgins testified that he responded by asking the defendant, “what [are] you doing here?” The court further found that without any further prompting by Higgins, the defendant replied that he “had been partying with a friend who had taken some of his money and was supposed to pay him back. The defendant further stated that he had ‘kicked his ass’ and [had run] him over with a car because he had robbed his money.” This conversation was observed by two Stratford police officers, David Evans and John Steedley.

In his motion to suppress these statements at trial, the defendant claimed that his statements to Higgins, in the presence of Evans and Steedley, were inadmissible because they were the result of a custodial interrogation that had occurred prior to his having been informed of his constitutional right to avoid self-incrimination. The court denied the defendant’s motion, holding that the question posed by Higgins did not constitute an interrogation because Higgins was not involved with the investigation, the defendant had initiated the contact, and Higgins’ question “was neutral, spontaneous and does not reasonably suggest an intent to obtain a confession.”

On appeal, the defendant renews his claim that his statements to Higgins should have been suppressed because they resulted from a custodial interrogation to which he had improperly been subjected -without having been informed of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966). He maintains that, because Higgins had previously arrested him, Higgins should have recognized that he was at the hospital in the custody of another police department. We disagree.

“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... As we have noted previously, however, when a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights, and the credibility of witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court’s factual findings are supported by substantial evidence. . . . [W]here the legal conclusions of the court are challenged, [our review is plenary and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Bridges, 125 Conn. App. 72, 78-79, 6 A.3d 223 (2010).

“[T]he ultimate determination ... of whether a defendant already in custody has been subjected to inteixogation . . . presents a mixed question of law and fact over which [this court’s] review is plenary, tempered by [a] scrupulous examination of the record to ascertain whether the findings are supported by substantial evidence.” (Internal quotation marks omitted.) State v. Acosta, 119 Conn. App. 174, 181, 988 A.2d 305, cert. denied, 295 Conn. 923, 991 A.2d 568 (2010). Because, in this case, the state concedes that the defendant was in custody and had not been informed of his constitutional right not to incriminate himself, the only issue before us on appeal is whether the defendant’s statement to Higgins was a response to an interrogation.

“It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. Miranda v. Arizona, [supra, 384 U.S. 444]. Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . . .

“A defendant in custody is subject to interrogation not only in the face of express questioning by police but also when subjected to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . Whether a defendant in custody is subject to interrogation necessarily involves determining first, the factual circumstances of the police conduct in question, and second, whether such conduct is normally attendant to arrest and custody or whether the police should know that such conduct is reasonably likely to elicit an incriminating response. ... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Citations omitted; internal quotation marks omitted.) State v. Canady, 297 Conn. 322, 335-36, 998 A.2d 1135 (2010).

In Canady, the defendant, who was charged with and convicted of felony murder, had been arrested for an unrelated offense. While he was being held at a juvenile detention center, the defendant spoke on the telephone with his mother, who informed him of the pending murder investigation. After hanging up, he appeared “distraught and very scared,” prompting an officer at the facility to ask, “are you okay?” (Internal quotation marks omitted.) Id., 330. The defendant’s incriminating statements in response were held to be admissible because the inquiry did not constitute an interrogation, and Miranda, therefore, did not apply. Id., 334-35. Canady emphasized the significance of three facts: (1) the officer asking the question had no reason to know of the pending murder investigation, (2) the question itself was innocuous, brief and neutral, and (3) the statements by the defendant were volunteered. Id., 337-38.

Canady is dispositive of the defendant’s claim of custodial interrogation in this case. Here, too, there is nothing in the record to suggest that Higgins would have had reason to believe that his inquiry into the defendant’s hospitalization would evoke an incriminating response. Higgins testified that when he asked the defendant what he was doing, he did not yet know that the defendant was under arrest. The question, “what [are] you doing here,” was a natural reaction to seeing someone with whom he was familiar in the hospital. Further, as in Canady, the defendant volunteered his statements with no further inquiry by Higgins. Finally, Higgins’ knowledge of the defendant’s criminal history, because he had arrested him in the past, was not dispos-itive because, in Canady, the defendant also had previously been arrested for other offenses. The teaching of Canady is that an officer’s knowledge that the defendant has a criminal history does not turn an officer’s otherwise neutral question into a question likely to elicit an incriminating response.

In light of the relevant circumstances, we hold that the court properly denied the defendant’s motion to suppress his incriminatory statements to Higgins. The court properly rejected the defendant’s contention that his statements had resulted from an interrogation by Higgins.

II

The defendant’s second contention on appeal is that the trial court improperly admitted into evidence the 911 recordings of the calls made by Grass and Gosselin. These recorded statements were an important part of the state’s evidence to establish the defendant’s identity as the driver of the victim’s car at the time that it struck and Injured the victim. Although the defendant did not deny that he had been driving the victim’s car when he was arrested later that evening, at trial he contested the state’s charge that he was the person who had been observed, earlier in the evening, driving the car that had struck the victim. The eyewitnesses to the crime who testified at trial did not identify the defendant as the person who had assaulted the victim. Accordingly, at trial, the defendant questioned Grass’ and Gosselin’s credibility insofar as their testimony linked him to the crimes with which he was charged.

In addition, the defendant challenged the playing of the recordings of Grass’ and Gosselin’s 911 reports to the jury. He argued that these recordings were inadmissible hearsay that would unnecessarily inflame the emotions of the jury. Overruling his objections, the court held that the evidence was admissible under either the spontaneous utterance exception to the hearsay rule; see Conn. Code Evid. § 8-3 (2); or the residual exception to the hearsay rule. Conn. Code Evid. § 8-9. It further ruled that admission of this evidence did not violate the defendant’s constitutional right to confront the witnesses against him. Explaining its ruling, the court stated: “I’ve listened to these calls, the people are reporting in real time what they’re seeing, and, quite frankly, the timbre of their voice tends to reveal the emotional reaction to what they’re perceiving in a contemporaneous way. It seems to me classic evidence where there’s a lack of opportunity for . . . deliberation and fabrication or scheming and thinking about what to say, and so I find . . . this evidence is admissible under [the] excited utterance [exception].”

On appeal, although the defendant does not contest the sufficiency of the evidence to convict him as charged in light of the evidence presented by the state, he maintains that the court improperly admitted the recordings of the calls to 911 made by Grass and Gosselin and that he was prejudiced by these allegedly improper rulings.

We disagree. We are persuaded that the court’s evi-dentiary ruling was proper. Furthermore, the fact that Grass and Gosselin both testified at the defendant’s trial renders any conceivable error in the court’s ruling harmless.

A

The defendant’s challenge to the admissibility of the recordings of Grass’ and Gosselin’s calls to 911 emergency services as spontaneous utterances rests on his claim that, for two reasons, these calls did not meet the requirements of § 8-3 (2) of the Connecticut Code of Evidence. The defendant maintains, first, that the record does not establish that these witnesses were either startled or were speaking spontaneously when making their 911 statements. He maintains that, when the declarants called 911, they manifested by their actions that they were able to use reason and judgment, and, thus, their statements were inadmissible because they were simply hearsay. Alternatively, the defendant faults the court for having failed to make specific factual findings in support of its evidentiary rulings.

We first address the standard of review that governs our resolution of the defendant’s claims. The defendant argues that he is entitled to plenary review of his contention that the corut misapplied the spontaneous utterance exception to the hearsay rule because, in his view, the court misconstrued the foundational requirement of evidence of a startling occurrence. We disagree.

Both our Supreme Court, in State v. Kirby, 280 Conn. 361,376-77, 908 A.2d 506 (2006), and this court, in State v. Torelli, 103 Conn. App. 646, 662, 931 A.2d 337 (2007), have held that recordings of 911 telephone calls may be admissible as nontestimonial spontaneous utterances under § 8-3 (2) of the Connecticut Code of Evidence. See also Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). The defendant has not challenged the validity of these holdings as a matter of law.

Instead, the defendant argues that the spontaneous utterance exception does not apply to the Grass and Gosselin 911 recordings because, in his view, their statements were demonstrably not spontaneous. Although the defendant couches his claim as a challenge to a legal conclusion by the court, the defendant, in fact, is challenging the sufficiency of the court’s evidentiary basis for concluding that the statements by the declarants met the requirements for a spontaneous utterance, namely, whether, in this case, the declarants were subject to a startling event or occurrence. “[W]e review the trial court’s determination that the . . . statement was an excited utterance under the abuse of discretion standard. . . . [W]hether a statement is truly spontaneous as to fall within the spontaneous utterance exception will be reviewed with the utmost deference to the trial court’s determination . . . .” (Citation omitted; internal quotation marks omitted.) State v. Slater, 285 Conn. 162, 178, 939 A.2d 1105, cert. denied, 553 U.S. 1085,128 S. Ct. 2885,171 L. Ed. 2d 822 (2008). “Whether an utterance is spontaneous and made under circumstances that would preclude contrivance and misrepresentation is a preliminary question of fact to be decided by the trial judge. . . . The trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion.” (Internal quotation marks omitted.) State v. Davis, 109 Conn. App. 187, 193, 951 A.2d 31, cert. denied, 289 Conn. 929, 958 A.2d 160 (2008).

The admissibility of the 911 recordings that are at issue in this case is governed by § 8-3 (2) of the Connecticut Code of Evidence. Pursuant to that section, “[h]ear-say statements, otherwise inadmissible, may be admitted into evidence to prove the truth of the matter asserted therein when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant.” (Internal quotation marks omitted.) State v. Kendall, 123 Conn. App. 625, 666, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010); see C. Tait & E. Prescott, Connecticut Evidence § 8.17.3 (4th Ed. 2008).

In its ruling rejecting the defendant’s objection to the recordings, the court did not specify what had startled the speakers, and it did not use the term “startling occurrence.” Instead, the court found that the declar-ants were exposed to “an ongoing urgent situation . . . .” The record reveals that Grass witnessed a car hit a man more than once, heard the driver scream threats at the victim and then race off at an extreme speed. The record further reveals that Gosselin witnessed a vehicle driving erratically, realized that the car and driver fit the description broadcast by police for a hit-and-run driver and then himself became engaged in a high-speed chase. This evidence supports the court’s findings and provides a sufficient basis for the admission of the recordings as describing “a startling occurrence, that is, one of such a nature as to produce nervous excitement in the declarant and render his or her utterances spontaneous and unreflecting.” C. Tait & E. Prescott, supra, § 8.17.3.

Furthermore, the defendant has not cited, and we are not aware of, any case law standing for the proposition that evidence of reasoned thinking negates a finding that a witness made a spontaneous utterance. Most of the cases cited by the defendant are inapposite. The defendant also relies on State v. Dollinger, 20 Conn. App. 530, 538, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990), which held that the statements of a child describing acts of sexual abuse did not qualify as spontaneous utterances because she “did not appear to be in any distress. . . . [T]he tone of her statement was more consistent with composure than excitement and spontaneity.” The court in Dollinger further noted that “there is nothing in the record from which the court could have found that the startling occurrence and the statement were contemporaneous.” Id. That is not this case.

“The ultimate question is whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation.” (Internal quotation marks omitted.) State v. Torelli, supra, 103 Conn. App. 662. Unlike Dollinger, the record amply supports the court’s ruling that, in this case, the statements on the 911 recordings bore sufficient indicia of reliability in light of their contemporaneous descriptions of events as they unfolded and the absence of any opportunity for the declarants to fabricate their statements. Furthermore, the court expressly noted and relied on the emotional tone of voice manifested by the recordings.

In light of the totality of the evidence of record, the court did not abuse its discretion in concluding that the 911 statements by Grass and Gosselin that were recorded by the police and presented by the state were admissible as spontaneous utterances. They were thus admissible under the provisions of § 8-3 (2) of the Connecticut Code of Evidence.

B

Alternatively, the admission of the 911 recordings, even if it had been improper, was harmless. At the defendant’s trial, both Grass and Gosselin testified about the contents of the recordings and what they witnessed. The defendant makes no claim that he could not fully cross-examine the declarants. Because the recordings were cumulative of the trial testimony of Grass and Gosselin, their admission, if error, was harmless. See, e.g., State v. Kerr, 120 Conn. App. 203, 215, 991 A.2d 605, cert. denied, 296 Conn. 907, 992 A.2d 1136 (2010).

The defendant argues, however, that the admission of the recordings helped rehabilitate Grass as a witness. He maintains that Grass’ reliability had been called into question due to his having been convicted of unrelated felony offenses. He emphasizes the significance of Grass’ testimony to establish the defendant as the person who assaulted the victim.

Even if the recording helped to rehabilitate Grass, there was sufficient other evidence in the record from which the jury reasonably could have found that the state established the defendant’s identity beyond a reasonable doubt. We note that, at the time he was apprehended, the defendant recently had abandoned the victim’s car, a car that matched the description given by six different eyewitnesses. The state also introduced consciousness of guilt evidence to buttress its case. In light of this evidence that was probative of the defendant’s identity as the victim’s assailant, we are not persuaded by the defendant’s claim of error.

In sum, we conclude that the court properly admitted into evidence the incriminating statements to which the defendant objects. Pretrial, the court properly denied the defendant’s motion to suppress the statements he made at the hospital because, although he was in custody and had not been informed of his Miranda rights, he was not subjected to an interrogation. At trial, the court properly admitted into evidence, as spontaneous excited utterances, the 911 recordings of statements made by Grass and Gosselin because the record amply supports the court’s underlying factual findings.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       The broadcast described the vehicle as a gold Ford Taurus type of vehicle and the driver as a black male wearing a white T-shirt. Gosselin testified that the Ford Taurus and the Mercury Sable are virtually identical cars.

       Steedley testified that he had not heard the defendant’s statements to Higgins.

         The defendant also argued at trial that the recordings violated his sixth amendment right to confront witnesses. On appeal, the defendant does not challenge the court’s conclusion that there was no constitutional bar to the admission of the 911 recordings.

       We note that the court also admitted the recordings under the residual exception to the hearsay rule, but because we hold that the recordings were properly admitted as spontaneous utterances, we need not consider the propriety of this alternate basis for the admission of the evidence.

       We note that, to the extent that there are deficiencies in the court record, it was the responsibility of the defendant to take curative action. Practice Book § 61-10. The record is clear that the court admitted the recordings as spontaneous utterances.

       While the defendant is correct that the court did not identify precisely what aspect of the ongoing events would be startling to the callers, the defendant bears the burden of requesting the court to articulate the basis for its decision, and he failed to do so. Indeed, the defendant never even raised the issue of whether the declarants experienced a startling occurrence.

       In State v. Nelson, 105 Conn. App. 393, 406-408, 937 A.2d 1249, cert. denied, 286 Conn. 913,944 A.2d 983 (2008), this court rejected the defendant’s contention that recordings of the victim’s call to 911 should not be admitted as spontaneous utterances because the victim was not under sufficient stress when he made the call.
      In State v. Yednock, 14 Conn. App. 333, 345-46, 541 A.2d 887 (1988), the statements of the victim, made one month after the occurrence, were not excited utterances, despite the fact that the statements were made in response to a different stressful occurrence. In the present case, there is no claim raised that the events described by the declarants are distinct from the requisite startling event.
      In State v. Davis, supra, 109 Conn. App. 194-95, it was proper for the court to consider that the declarant’s inability to speak prior to making the contested statement supported the finding that he did not have the opportunity to reflect on the occurrence and fabricate the statements. Davis does not, as the defendant asserts, stand for the much broader proposition that the ability to speak tends to show that the speaker is reflecting on the events in a way that would call into question the spontaneity of the statements.
      Finally, in State v. McNair, 54 Conn. App. 807, 813, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999), the trial court erred in admitting the testimony of a witness who gave a statement to police thirty minutes after witnessing a stabbing from her window. In McNair, the court held that while not dispositive, the time between the startling event and the statement influenced the conclusion that the statement was not admissible, particularly when combined with the fact that the witness “was not the actual or intended victim, or even a close bystander.” Id. McNair, therefore, is inapposite to the facts of the present case because here the recordings were contemporaneous accounts of events unfolding before witnesses who were closely involved. Allhough we do not wish to encourage the kind of vigilantism the witnesses undertook, it is clear that they were involved in the events they described rather than just distant witnesses, even if that involvement was of their own accord.

       The defendant inexplicably argues that testimony given by Grass concerning the clothing he observed, specifically, white head garb and a white T-shirt that were later recovered at the gasoline station where Gosselin saw the defendant remove those items, would not have been admissible without the 911 recordings. As the state notes, however, the recording did not contain the description of the clothing, Grass’ trial testimony did, and there is nothing in the record to suggest that “this testimony would not have been admitted but for the admission of Grass’ 911 call.”


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. PEDRO CUSTODIO
    (AC 32527)
    DiPentima, C. J., and Gruendel and Foti, Js.

      Argued November 8, 2010
    officially released February 15, 2011

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Eva Lenczewski, supervisory assistant state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Pedro Custodio, appeals from the judgment of the trial court committing him to the custody of the commissioner of mental health and addiction services (commissioner) and requiring him to submit to periodic competency evaluations pursuant to General Statutes (Rev. to 2009) § 54-56d (m). The defendant claims that the court improperly (1) concluded that § 54-56d (m), as amended by Public Acts 1998, No. 98-88, § 2 (act), applies retroactively, (2) concluded that it possessed personal jurisdiction over him, (3) ordered him to submit to periodic competency evaluations and (4) denied his motion to recuse. We affirm the judgment of the trial court.

On Cherry Street in Waterbury in 1991, the defendant allegedly fired multiple gunshots into the neck of the victim, Americo Pagan Cruz, causing his death. He subsequently was arrested and charged by information with murder in violation of General Statutes § 53a-54a. Following a hearing, the court found that the state had presented sufficient evidence to find probable cause to believe that the defendant committed the crime charged. A competency hearing thereafter was conducted on October 25, 1991, pursuant to General Statutes (Rev. to 1991) § 54-56d, at the conclusion of which the court found that the defendant was incompetent and ordered that efforts be made to restore his competency. On February 10, 1992, the court conducted a second competency hearing. At its conclusion, the court found that the defendant remained incompetent and that there was no substantial probability that he would regain competence. Accordingly, the court ordered that he be committed to the custody of the commissioner of mental health for purposes of applying for civil confinement. The defendant subsequently was civilly committed and placed in the Fairfield Hills Hospital in the summer of 1992.

Months later and unbeknownst to the court or the state’s attorney, the defendant was released from that hospital and thereafter lived at various residences in Waterbury for approximately eighteen years. At all times, his criminal case remained open on the criminal docket of the Superior Court for the judicial district of Waterbury.

In July, 2010, the clerk’s office brought the defendant’s open criminal file to the attention of the court. In response, the court, Damiani, J., ordered a hearing to be held on July 26,2010. Because notice of the hearing was not provided to the defendant, he did not appear. At that hearing, the state’s attorney explained that she recently had learned, “to . . . my horror . . . that [the defendant] was released later in 1992. . . . We were never notified, the state was never notified, the clerk’s office was never notified. This file apparently is kept in their statistical list of . . . somewhat active cases, and no one had any idea that this had occurred.” She therefore requested that a failure to appear warrant issue. The local public defender objected to that request due to the lack of notice to the defendant. In granting the state’s request, the court stated: “Here, we have a man who’s charged with murder, an alleged shooting, going back to 1991; he’s found to be not competent and not restorable, he’s committed to the [commissioner] for civil confinement. He gets committed. They then release him in 1992. He never tells the court one way or another . . . doesn’t contact his lawyer, the state’s attorney or the court. They release him to the community. [The defendant], if he’s still alive, has been walking as a free man for the past eighteen years, charged with murder. I understand ... if in fact the state went to trial on a failure to appear charge [that it] could not prove a wilful, intentional failure to appear, but I have to set the wheels in motion to find [the defendant], to get him before me, to order another competency exam; if he is not restorable, see where he’s going to go so we know exactly where he is, rather than having him walking the streets and, God forbid, something happen[s]. ... If [the defendant] comes in, I’ll dismiss the failure to appear [charge] . . . .” The defendant was arrested later that day.

On July 27, 2010, the defendant was arraigned. At the outset, the court noted that, “[a]t present, [the defendant] is charged with murder and failure to appear in the first degree.” Acknowledging that the defendant was not provided notice of the prior day’s proceeding, the court dismissed the failure to appear charge. As to the remaining murder charge, the court advised the defendant of his rights, ordered a bond in the amount of $200,000 and scheduled a competency hearing for August 24, 2010.

On August 2, 2010, the defendant filed an objection to the proceedings predicated on lack of personal jurisdiction due to his allegedly unlawful arrest and the retroactive application of § 54-56d (m). The defendant also filed a motion to recuse the trial judge and an offer to participate in voluntary reexamination of his competency, subject to certain conditions. After hearing argument thereon, the court denied those motions.

The court held a competency hearing on August 24, 2010. At its conclusion, the court found that the defendant remained incompetent and that there was not a substantial probability that his competence could be restored. Pursuant to § 54-56d (m), the court ordered that the defendant be committed to the custody of the commissioner, that he be provided services in a less restrictive setting than civil confinement and that he submit to periodic competency evaluations. From that determination, the defendant appeals.

I

Before considering the defendant’s claims, we first address the threshold question of whether this court lacks subject matter jurisdiction over the appeal. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise plenary review].” (Internal quotation marks omitted.) State v. Rhoads, 122 Conn. App. 238, 242, 999 A.2d 1, cert. denied, 298 Conn. 913, 4 A.3d 836 (2010). “In a criminal proceeding, there is no final judgment until the imposition of a sentence. . . . [Our Supreme Court nonetheless has] determined . . . that certain interlocutory orders have the attributes of a final judgment and consequently are appealable under . . . [General Statutes] § 52-263. . . . In State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983)], [the court] explicated two situations in which a party can appeal an otherwise interlocutory order: (1) [when] the order or action terminates a separate and distinct proceeding, or (2) [when] the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Citation omitted; internal quotation marks omitted.) State v. Jenkins, 288 Conn. 610, 617-18, 954 A.2d 806 (2008). That second situation “focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal. . . . Thus, a bald assertion that the defendant will be irreparably harmed if appellate review is delayed until final adjudication ... is insufficient to make an otherwise interlocutory order a final judgment. One must make at least a color-able claim that some recognized statutory or constitutional right is at risk.” (Internal quotation marks omitted.) Id., 618.

In the present case, the defendant claims that the court improperly applied § 54-56d (m) retroactively. Because that statute as it existed at the time of his arrest in 1991 did not authorize the court to order him to submit to periodic competency evaluations, he maintains that he has a statutory interest to not be subject thereto. He further argues that “[i]n light of his lack of competence and the fact that he cannot be restored, this case will never come to trial and never result in a final judgment from which the defendant might appeal in a belated effort to establish that he was not lawfully subjected to reexaminations, reports to the court and court appearances.” We agree, and note that in Jenkins, our Supreme Court held that a presentence order issued pursuant to § 54-56d was appealable immediately because “if the trial court’s decision is erroneous, [the defendant’s right to due process] will be irretrievably lost and the [defendant will be] irreparably harmed unless [he] may immediately appeal.” (Internal quotation marks omitted.) State v. Jenkins, supra, 288 Conn. 619; see also State v. Curtis, 22 Conn. App. 199,202-206, 576 A.2d 1299 (1990) (reviewing merits of appeal from interlocutory order issued pursuant to General Statutes [Rev. to 1987] § 54-56d [m] that imposed condition of release requiring annual periodic examinations of defendant’s competency). Because the defendant raises a colorable claim that a presently existing statutory right is at risk, the interlocutory order of the trial court properly is before this court.

II

The defendant contends that the court improperly applied § 54-56d (m), as amended by the act, in retroactive fashion. Whether that act applies retroactively is a question of law over which our review is plenary. State v. Parra, 251 Conn. 617, 622, 741 A.2d 902 (1999).

It is well established that “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 212, 901 A.2d 673 (2006). In addition, “common sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Cannata v. Dept, of Environmental Protection, 239 Conn. 124, 141, 680 A.2d 1329 (1996).

Resolution of the issue of retroactive application of a statute hinges on the intent of the General Assembly in enacting it. In re Eden F., 250 Conn. 674, 695, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999). Our Supreme Court exhaustively analyzed the proper standards by which that intent is to be discerned in State v. Skakel, 276 Conn. 633, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). After noting the long-standing rule of construction that “unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state”; (internal quotation marks omitted) id., 674; the court explained that “the principle of strict construction should not be applied in a manner that is hostile to an evident legislative purpose ... or in a way that is contrary to common sense” and emphasized that this principle was “merely one among various aids which may be useful” in interpreting criminal statutes. (Citation omitted; internal quotation marks omitted.) Id., 678-79. Accordingly, the court determined that to discern legislative intent in enacting a criminal statute, its “point of departure is . . . [General Statutes] § 55-3, which . . . we have uniformly interpreted ... as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The Legislature only rebuts this presumption when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively.” (Internal quotation marks omitted.) Id., 680. It continued: “As a corollary to this principle, we also have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary .... While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.” (Citations omitted; internal quotation marks omitted.) Id., 680-81. At the same time, the court recognized that “[l]abeling a statute as substantive or procedural, however, will not always resolve the fundamental issue of legislative intent. Thus, we have recognized that [t]he test of whether a statute is to apply retroactively, absent an express legislative intent, is not a purely mechanical one and even if it is a procedural statute, which ordinarily will be applied retroactively without a legislative imperative to the contrary, it will not be applied retroactively if considerations of good sense and justice dictate that it not be so applied.” (Internal quotation marks omitted.) Id., 685-86.

In the present case, the defendant claims that the act is substantive in nature, as it authorizes the court to compel his submission to periodic competency examinations. By contrast, the state maintains that the act is procedural. As such, it argues that “the canon of construction that procedural statutes carry a presumption of retroactivity”; id., 689; should apply. Before delving into that debate, a review of the pertinent statutory provisions and history surrounding their enactment is necessary.

It is undisputed that General Statutes (Rev. to 1991) § 54-56d (m) did not authorize the court to order periodic competency evaluations of an incompetent defendant, as was made abundantly clear in State v. Curtis, supra, 22 Conn. App. 199, which, like the present case, involved a defendant accused of murder. After finding that the defendant was incompetent and that there was no substantial probability that he would regain competence, the court “properly determined that its actions were governed by ... § 54-56d (m).” Id., 201. Because it found that the defendant “did not qualify for placement with any of the three statutory custodians because he did not meet the statutory commitment criteria,” the court ordered that the defendant be released from custody, subject to the condition that he submit to annual competency examinations. Id., 202. In his appeal to this court, the defendant insisted that the trial court lacked authority to impose that condition on his discharge. In response, the state argued that “in the absence of institutionalization of the defendant, the imposition of a yearly examination was necessary for the court to be kept abreast of possible improvements in the defendant’s mental state that may allow for the prosecution to go forward.” Id., 203.

In rejecting the state’s contention, this court first observed that § 54-56d “is drafted with clarity and precision, and addresses exactly what the court may do in this factual situation.” Id., 204. That statute “sets forth with punctilious detail the actions to be taken by a court in competency matters. Once the court makes certain findings regarding the defendant’s competency and his chances for restoration; see General Statutes § 54-56d (f); the statute contains carefully drawn procedures that dictate precisely what the court may order with respect to the disposition of incompetent defendants.” Id., 203. Turning our attention to subsection (m) of the statute, we stated that it “is specific in its mandate. It requires that ‘the court shall either release the defendant from custody or order the defendant placed in the custody of . . . [one of three] commissioner [s]. The commissioner given custody or his designee shall then apply for civil commitment according to chapter 306 or 368t. ... A defendant who is not civilly committed as a result of an application made by the commissioner . . . pursuant to this section shall be released.' . . . This clear and unambiguous language does not by its express terms give the court discretion to impose conditions on an incompetent defendant’s release, and we find no basis for the implied authority to do so.” (Emphasis in original.) Id., 203-204. In construing the statute as a whole, this court further noted that “[§] 54-56d (i) expressly provides for conditions of release in connection with outpatient treatment. Had the legislature intended that conditions of release be imposed on incompetent defendants who have no substantial probability of regaining competency, it could have readily included the necessary language.” Id., 205.

As a final matter, we stated that the imposition of periodic competency evaluations on the defendant is not “an inconsequential matter,” as such a condition constitutes an impingement on the defendant’s freedom. Id. In a statement directed to the parties and, presumably, the General Assembly, we concluded: “It may well be beneficial for the state to have a formal mechanism to follow the progress of a harmless incompetent defendant who stands little chance of recovery. Absent statutory authority to do so, however, we will not strain the plain wording of the statute to reach such a result.” Id., 206.

The General Assembly responded by passing the act, which amended subsection (m) of the statute to provide, inter alia, that “[i]f the court orders the release of a defendant charged with the commission of a crime that resulted in the death or serious physical injury, as defined in section 53a-3, of another person, it may, on its own motion or on motion of the prosecuting authority, order, as a condition of such release, periodic examinations of the defendant as to his competency. . . .” Public Acts 1998, No. 98-88, § 2. The bill analysis of the act referenced the Curtis decision. Office of Legislative Research, Amended Bill Analysis for Substitute Senate Bill No. 610. More importantly, the legislative history thereon indicates that the act was intended to “solve [the] problem” that plagued Curtis. 41 H.R. Proc., Pt. 6,1998 Sess., p. 1995, remarks of Representative Michael P. Lawlor. As Representative Lawlor, who moved for the acceptance of the favorable report of the joint committee on the judiciary and for the passage of the bill, explained in the House of Representatives: “[This bill] seeks to solve a problem which emerged in a case which received a great deal of notoriety involving a young man accused of murder where he had inflicted a gunshot wound on himself as part of the incident, allegedly, and as a consequence received a brain injury and subsequently was found incompetent to stand trial. In that particular case the case would be continued pursuant to the existing law. The time period to return the competency expired. The [s]tate was required to, in essence, drop the charges temporarily until such time as he returned to competency. Well, a number of years went by and notwithstanding the efforts of the prosecutor to continue to have that person tested to see if he had regained competency, no such test took place. He ultimately enrolled in a university and was attending pre-med classes and apparently doing quite well academically. When the news media found out that this was going on they publicized the case and I think it was an embarrassment to all of us policy makers and players in the criminal justice system that such a thing was possible. In other words, you could be found incompetent to stand trial on a murder charge, left alone for many years, no one ever followed up the test, and it had to be discovered by the news media.

“So, this would solve that problem by allowing the court under these circumstances to order periodic testing to determine whether or not someone had been restored to competency, but only until the statute of limitations would expire in a particular case. . . . [0]f course, that’s the existing law. In a murder case, by the way, there is no statute of limitations. So in a murder case there could be periodic testing for the remainder of the life of the one time defendant. So, Mr. Speaker, I think it’s an important bill.” 41 H.R. Proc., supra, pp. 1995-97.

As amended by the act, § 54-56d (m) authorizes the court to order periodic competency evaluations of an incompetent defendant charged with the commission of a crime that resulted in death or serious physical injury. That provision is remedial in nature in that it was intended to “solve [the] problem which emerged” in the Curtis case, as Representative Lawlor indicated. Id., p. 1995. In Curtis, this court opined that “[i]t may well be beneficial for the state to have a formal mechanism to follow the progress of a harmless incompetent defendant who stands little chance of recovery”; State v. Curtis, supra, 22 Conn. App. 206; the subsequent enactment of the act provided that mechanism in plain language. That it is remedial in nature implicates the presumption that such statutes “are intended to apply retroactively absent a clear expression of legislative intent to the contrary . . . .” (Internal quotation marks omitted.) State v. Skakel, supra, 276 Conn. 680.

This court has described § 54-56d as a statute that “sets forth with punctilious detail the actions to be taken by a court in competency matters.” State v. Curtis, supra, 22 Conn. App. 203. The statute vests in the court the authority to determine the proper disposition of an incompetent defendant. In so doing, the statute delineates “carefully drawn procedures” that dictate the parameters of that authority. Id. The ordering of periodic competency evaluations is such a procedure that the legislature, in amending § 54-56d (m), entrusted the trial court as a remedy in dealing with a defendant who is accused of a crime that resulted in death or serious physical injury and who is deemed to be incompetent with no substantial probability of regaining competency. As our Supreme Court has stated, “[procedural statutes have been traditionally viewed as affecting remedies . . . .” Moore v. McNamara, 201 Conn. 16, 22, 513 A.2d 660 (1986). The act does not create, define or regulate a right; see State v. Skakel, supra, 276 Conn. 681; instead, it sets forth an additional procedure by which the court exercises its authority over certain incompetent defendants.

We are mindful of our observation in Curtis that the imposition of periodic competency evaluations on a defendant is not an inconsequential matter. State v. Curtis, supra, 22 Conn. App. 205. At the same time, it remains that the defendant in the present case stands accused of murder and is subject to certain procedures set forth by the legislature to deal with such persons in the event that they are found to be incompetent. Like the public act at issue in State v. Parra, supra, 251 Conn. 626, the act here “affects an area of the criminal process far removed from the actual criminal conduct for which the defendant originally was charged. [It] does not change the elements of the crime with which the defendant was charged, alter the elements of his defense to that crime or make more burdensome the punishment for that crime, after its commission.” Moreover, the imposition of periodic competency evaluations on a defendant accused of a crime such as murder does not implicate any ex post facto concerns; see U.S. Const., art. I, § 10; because such evaluations are not penal in nature. See State v. Skakel, supra, 276 Conn. 676. Rather, a statute authorizing the imposition of periodic competency evaluations is a procedural measure that attempts to safeguard the state’s vital interest in prosecuting competent individuals accused of crimes that resulted in death or serious physical injury; see State v. Iban C., 275 Conn. 624, 667, 881 A.2d 1005 (2005); while at the same time shielding from prosecution an incompetent defendant. See Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).

In light of the foregoing, we apply the presumption that “procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary . . . .” (Internal quotation marks omitted.) State v. Skakel, supra, 276 Conn. 680. The legislative history clearly evinces a remedial intent to “solve [the] problem” of Curtis; 41 H.R. Proc., supra, p. 1995; in which the trial court was unable to implement “a formal mechanism to follow the progress of a harmless incompetent defendant”; State v. Curtis, supra, 22 Conn. App. 206; so as to “be kept abreast of possible improvements in the defendant’s mental state that may allow for the prosecution to go forward.” Id., 203. We further are cognizant that “ [t]he test of whether a statute is to apply retroactively, absent an express legislative intent, is not a purely mechanical one . . . .” (Internal quotation marks omitted.) State v. Skakel, supra, 685-86. Common sense persuades us that, in enacting this amendment to § 54-56d (m), our General Assembly did not intend for it to apply only to crimes committed by incompetent defendants that resulted in death or serious physical injury that transpired on or after October 1,1998. It seems a bizarre and unintended result for the legislature to have exempted from this enactment crimes committed by incompetent defendants that resulted in death or serious physical injury prior to that date. We decline to so interpret § 54-56d (m); see State v. Parra, supra, 251 Conn. 631-32; as such a reading would not solve the problem described by Representative Lawlor — it would solve only part of the problem. Accordingly, we conclude that the court properly determined that § 54-56d (m), as amended by the act, applies retroactively.

Ill

The defendant also claims that the court improperly concluded that it possessed personal jurisdiction over him. Because he was not provided notice of the July 26, 2010 hearing, he insists that personal jurisdiction was lacking. We disagree.

At the outset, we note our agreement with the defendant that the court improperly signed the failure to appear warrant when it was aware that the defendant had not been provided notice of the July 26, 2010 proceeding. Despite the court’s reasonable doubt regarding the competency of an accused murderer who had spent the past eighteen years as a free man in Waterbury, the manner in which it attempted to ascertain his present condition was misguided.

We nevertheless disagree with the defendant that the court lacked personal jurisdiction over him. Personal jurisdiction requires that “the parties must have been properly served and brought before the court”; State v. Anthony, 24 Conn. App. 195, 201, 588 A.2d 214, cert. dismissed, 218 Conn. 911, 591 A.2d 813, cert. denied, 502 U.S. 913, 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991); which presents a question of law subject to plenary review. Myrtle Mews Assn., Inc. v. Bordes, 125 Conn. App. 12, 15, 6 A.3d 163 (2010). It is undisputed that the information filed in 1991 alleging that the defendant had committed the crime of murder in violation of § 53a-54a remained pending at the time of his 2010 arrest. As such, it would have been more prudent for the court simply to issue a warrant for the defendant’s arrest predicated on that information. See General Statutes § 54-2a. Any impropriety in the manner in which the defendant was brought before the court, thus, is harmless in light of the court’s continuing jurisdiction over his criminal case. Cf. State v. Luzietti, 230 Conn. 427, 432, 646 A.2d 85 (1994) (“the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence”). As we have noted, “[o]ur Supreme Court has long held that an illegal arrest does not deprive the court of personal jurisdiction over the defendant and, therefore, that it does not provide a valid basis for a motion to dismiss. See, e.g., State v. Fleming, 198 Conn. 255, 259-63, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).” State v. Therrien, 117 Conn. App. 256, 262, 978 A.2d 556, cert. denied, 294 Conn. 913, 983 A.2d 275 (2009). The defendant’s claim thus fails.

IV

The defendant further argues that the court improperly ordered him to submit to periodic competency evaluations. We disagree.

A

As a preliminaiy matter, we consider the standard of review applicable to the defendant’s claim. The appropriate standard of review of a court’s order regarding periodic competency evaluations pursuant to § 54-56d (m) raises a question of statutory interpretation over which our review is plenary. See Fort Trumbull Conservancy, LLC v. Planning & Zoning Commission, 266 Conn. 338, 345, 832 A.2d 611 (2003); see also State v. Johnson, 253 Conn. 1, 22 n.23, 751 A.2d 298 (2000).

Section 54-56d (m) provides in relevant part that “[t]he court shall hear arguments as to whether the defendant should be released or should be placed in the custody of the Commissioner of Mental Health and Addiction Services, the Commissioner of Children and Families or the Commissioner of Developmental Services. If the court orders the release of a defendant charged with the commission of a crime that resulted in the death or serious physical injury, as defined in section 53a-3, of another person, or orders the placement of such defendant in the custody of the Commissioner of Mental Health and Addiction Services, the court may, on its own motion or on motion of the prosecuting authority, order, as a condition of such release or placement, periodic examinations of the defendant as to the defendant’s competency. Such an examination shall be conducted in accordance with subsection (d) of this section. ...” Our Supreme Court has explained that “[definitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature. ... By contrast, [t]he word may, unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion. . . . Therefore, when the legislature opts to use the words shall and may in the same statute, they must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings.” (Citations omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004). Section 54-56d (m) expressly indicates that the court may order periodic competency examinations. We therefore conclude that a trial court’s determination of whether to order such examinations under § 54-56d (m) properly is reviewed under the abuse of discretion standard.

B

We thus turn to the question of whether the court abused its discretion in this instance. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 186, 842 A.2d 567 (2004).

The defendant maintains that the court lacked a rational basis for ordering periodic competency evaluations when there is no possibility that he ever will regain competence. We disagree. First and foremost, the plain language of § 54-56d (m) contains no such limitation on the discretion of the court. Moreover, as this court noted in Curtis, “[i]t may well be beneficial for the state to have a formal mechanism to follow the progress of a harmless incompetent defendant who stands little chance of recovery.” State v. Curtis, supra, 22 Conn. App. 206. The General Assembly indicated its agreement with that sentiment when it passed the act in response to the Curtis decision. That formal mechanism reflects an interest in keeping “abreast of possible improvements in the defendant’s mental state that may allow for the prosecution to go forward”; id., 203; for defendants accused of crimes that result in death or serious physical injury. We therefore conclude that the court did not abuse its discretion in ordering the defendant to submit to periodic competency examinations.

V

The defendant’s final claim is that the court abused its discretion in denying his motion for recusal. He contends that the court’s “actions were not only demonstrably improper and an abuse of power, but also created an appearance of impropriety” in violation of canons 1, 2 and 3 of the Code of Judicial Conduct (2010). We do not agree.

The teaching of our Supreme Court instructs that “each case of alleged judicial impropriety must be evaluated on its own facts . . . Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 826, 717 A.2d 1232 (1998), aff'd after remand, 257 Conn. 570, 778 A.2d 885 (2001). That inquiry is governed by the abuse of discretion standard of review. Id., 824; see also Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 28, 970 A.2d 656 (concluding that trial judge did not abuse his discretion in denying motion to recuse), cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009). “In applying that standard, we ask whether an objective observer reasonably would doubt the judge’s impartiality given the circumstances. ... If an objective observer, in view of all of the facts would reasonably doubt the court’s impartiality, the court’s discretion would be abused if a motion to recuse were not granted. In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Tracey v. Tracey, 97 Conn. App. 278, 282, 903 A.2d 679 (2006).

As this court recently emphasized, “[a] charge of bias [or prejudice] must be deemed at or near the very top in seriousness, for bias kills the very soul of judging— fairness. ... [A] charge of . . . bias [or prejudice] against a trial judge in the execution of his or her duties is a most grave accusation. It strikes at the very heart of the judiciary as a neutral and fair arbiter of disputes for our citizenry. Such an attack travels far beyond merely advocating that a trial judge ruled incorrectly as a matter of law or as to a finding of fact, as is the procedure in appellate practice. A judge’s personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased. Attorneys should be free to challenge, in appropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court. Such challenges should, however, be made only when substantiated by the trial record.” (Internal quotation marks omitted.) McKenna v. Delente, 123 Conn. App. 137, 144-45, 1 A.3d 260 (2010). Accordingly, the burden rests with the moving party to prove that the conduct in question gives rise to a reasonable appearance of impropriety. See Abington Ltd. Partnership v. Heublein, supra, 246 Conn. 820; Tracey v. Tracey, supra, 97 Conn. App. 285.

On our review of the circumstances surrounding the issuance of the July 26, 2010 failure to appear warrant and the various comments of the trial judge identified by the defendant in his motion to recuse, we cannot say that they would lead an objective observer to doubt the judge’s impartiality. Two significant factors inform our consideration. First is the undisputed fact that the defendant’s criminal file, in which he stood accused of murder in violation of § 53a-54a, remained pending at all times. Second, under § 54-56d, a competency evaluation is required any time a reasonable doubt is raised regarding a defendant’s competency. State v. Johnson, supra, 253 Conn. 24. Upon learning that the defendant had been unconditionally released without notice to either the court or the state’s attorney eighteen years earlier and that his competency not once had been evaluated in that time, the court had a reasonable doubt regarding the defendant’s competency, which precipitated the events at issue here. As the trial judge stated at the August 2, 2010 hearing, “that rearrest warrant was done for one purpose only, to safeguard the people of Connecticut from a person charged with murder to see exactly what his present day circumstances are.” Because the judge had jurisdiction over the defendant in light of his open criminal file and because he is authorized to order a competency hearing whenever a reasonable doubt arises, we believe that an objective observer with knowledge of all the facts would not conclude that the judge’s actions in attempting to secure the defendant’s presence for such a proceeding reflected partiality or called the judiciary into disrepute.

We similarly reject the defendant’s contention that the judge’s conduct and comments indicate that he had prejudged the matter. Rather, the circumstances before us reveal a trial judge troubled by his reasonable doubt as to the competency of an accused murderer who had spent the past eighteen years living as a free man in Waterbury. At the time that the defendant’s 1992 release was brought to his attention, the judge was uncertain whether the defendant’s competency had been restored. Further, as the judge explained at the August 2, 2010 hearing, the defendant “was brought before this court to see exactly what the circumstances were and are in July of 2010.” At that hearing, the court also stated that the defendant “may end up [back] at the place he came from with someone checking [on] how he’s doing” following a competency hearing. Thereafter, the trial judge conducted an adversarial competency hearing on August 24, 2010, at which he heard expert testimony, prior to deciding the question of whether the defendant’s competency had been restored. An objective observer reviewing this record reasonably would conclude that the judge simply wanted to secure the defendant’s presence for a competency examination pursuant to § 54-56d to resolve his reasonable doubt as to the competency of an accused murderer. Accordingly, the court did not abuse its discretion in denying the motion to recuse.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-56d was amended by Public Acts 2010, No. 10-28, effective October 1, 2010. That amendment has no bearing on the present appeal and, unless otherwise indicated, our references to the statute are to the 2009 revision thereof.

       Fairfield Hills Hospital was “a public facility for the diagnosis, observation or treatment of persons with psychiatric disabilities . . . .” (Internal quotation marks omitted.) Phoebe G. v. Solnit, 252 Conn. 68, 75, 743 A.2d 606 (1999).

       The act is silent on the issue of retroactive application.

       Although Representative Lawlor did not expressly reference Curtis in his remarks, the factual scenario described therein plainly references that case. See State v. Curtis, supra, 22 Conn. App. 201.

       Canon 1 of the Code of Judicial Conduct (2010) provides: “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”
      Canon 2 (a) of the Code of Judicial Conduct (2010) provides: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
      Canon 3 (c) (1) of the Code of Judicial Conduct (2010) provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
      “(A) the judge has a personal bias or prejudice concerning a parly, or personal knowledge of disputed evidentiary facts concerning the proceeding .. . .”

       In his reply brief, the defendant acknowledges that our Supreme Court has set forth the abuse of discretion standard as governing claims of judicial bias yet nevertheless submits that it “simply is the wrong standard.” It is axiomatic that, as an intermediate appellate body, this court is “bound by Supreme Court precedent and [is] unable to modify it ... . [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Citation omitted; internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008). We therefore do not consider that claim.