text:
    STATE OF CONNECTICUT v. JASMINE F. BEREIS
    (AC 29763)
    DiPentima, Lavine and West, Js.

      Argued May 18
    officially released September 29, 2009

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

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Christa L. Baker, deputy assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Jasmine F. Bereis, appeals from the judgment of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. On appeal, the defendant argues that (1) the evidence was insufficient to support her conviction and (2) the trial court improperly admitted into evidence two police reports. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 15, 2005, Don Patterson was working at the Stonington Institute, located on Swantown Hill Road, near Route 2 in North Stonington. At approximately 3:45 p.m., he observed a blue sport utility vehicle travel through the parking lot and collide with a parked vehicle. Patterson was standing approximately fifteen feet from the parking lot and had an unobstructed view of it. He observed the driver of the vehicle stop for a moment and then drive to the far end of the parking lot. As Patterson approached the vehicle, he observed the driver and the passenger, both of whom were female, yelling at each other. After a few minutes, the vehicle left the parking lot. Patterson wrote down the vehicle’s license plate number and telephoned the police to report the accident.

Robert Veach, a state police trooper, was on patrol on Route 2 in North Stonington on April 15, 2005. Between 4 and 4:30 p.m., Veach received a call to look for a specific vehicle and license plate number that had been involved in an accident in the Stonington Institute parking lot. Veach then drove eastbound on Route 2 toward the Stonington Institute. While traveling on Route 2, he noticed the vehicle described in the call. As he approached the vehicle, Veach observed two females, one in the passenger seat and one in the driver’s seat. The driver, later identified as the defendant, had the key in the ignition and was attempting to start the vehicle, which was not running. The engine was turning over but was not catching and appeared to have been flooded. Veach instructed the defendant to stop trying to start the vehicle and reached in the vehicle to take the key. Both women were emotional, loud and causing a commotion.

The defendant and the passenger exited the vehicle. Veach spoke with the defendant and smelled alcohol on her breath. The defendant was stumbling, and her speech was slurred. She was combative, verbally abusive and was jumping up and down. She stated that she had been drinking but had consumed only a couple of drinks. Veach concluded that she was intoxicated.

The passenger, who was later identified as Jessica Bereis, the defendant’s twin sister, then began moving back and forth between the side of the road and the roadway itself, walking into oncoming traffic. The defendant began breathing heavily, at which point Jessica Bereis informed Veach that the defendant was having an asthma attack. Veach called for medical assistance. He also called for additional officers because Jessica Bereis continued to run into the road, and the defendant was having breathing problems. He told both women to stay off the road, but neither followed his instructions. Veach had planned on giving the defendant field sobriety tests; however, because she was not following his instructions and appeared to be having breathing problems, he concluded that it would be unsafe to administer the tests. Shortly thereafter, C. Peasley, a state trooper, arrived and was able to prevent Jessica Bereis from running into the road. When an ambulance arrived, the defendant stopped having breathing problems and refused medical attention.

Although the appearance of the two women was almost identical, Veach was able to tell them apart because Jessica Bereis and the defendant were wearing different clothing. Moreover, while Jessica Bereis continued to run into the road, Veach spoke with the defendant, who appeared to be having breathing problems.

On the basis of the defendant’s irrational and erratic behavior, the alcohol on her breath, her slurred speech, her difficulty walking and her statement that she had been drinking, as well as his training and experience, Veach determined that the defendant was intoxicated. Veach placed the defendant under arrest and transported her to police barracks. At the barracks, Veach advised the defendant of her Miranda rights and the implied consent advisory regarding the intoximeter test, which performs a chemical analysis of a person’s breath, 6and afforded her an opportunity to contact an attorney. The defendant refused to take the intoximeter test and refused to sign a notice of rights form indicating that she had been advised of her rights. She also refused to answer questions regarding her medical condition or medications, whether she had consumed any alcoholic beverages or taken any drugs and when she had last eaten.

I

Because the defendant would be entitled to a judgment of acquittal were she to succeed on her claim that the evidence was insufficient to support her conviction, we first address that claim. See State v. Plourde, 208 Conn. 455, 457, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989). Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt that she was operating a motor vehicle and was under the influence of intoxicating liquor. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Winer, 112 Conn. App. 458, 463, 963 A.2d 89, cert. denied, 292 Conn. 903, 973 A.2d 107 (2009).

Section 14-227a provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both . . . .” Thus, to sustain a conviction under § 14-227a, the state must prove three elements: (1) operation of a motor vehicle, (2) on a public highway or other designated area, (3) while under the influence of intoxicating liquor or drugs. State v. Walters, 111 Conn. App. 315, 319, 959 A.2d 13 (2008), cert. denied, 290 Conn. 904, 962 A.2d 795 (2009).

A

Our case law provides that “[a] person operates a motor vehicle within the meaning of this statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” State v. Haight, 279 Conn. 546, 552, 903 A.2d 217 (2006), quoting State v. Swift, 125 Conn. 399, 403, 6A.2d 359 (1939). Here, the jury heard evidence that an individual was driving a vehicle bearing a specific license plate number that hit a car in the parking lot of the Stonington Institute and then left the scene. The jury also heard evidence that a short time later, Veach located the same vehicle parked on the side of a nearby road and that the defendant was sitting in the driver’s seat with the key in the ignition. The jury therefore reasonably could infer that the defendant had driven the vehicle on a public highway from the Stonington Institute parking lot to the side of the road. See State v. Gordon, 84 Conn. App. 519, 526, 854 A.2d 74 (noting that probative force of evidence not diminished by fact that evidence is circumstantial and that “[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence” [internal quotation marks omitted]), cert. denied, 271 Conn. 941, 861 A.2d 516 (2004).

In addition, the jury heard evidence that the defendant had the key in the ignition and was attempting to start the vehicle. Veach testified that the engine was turning over but was not catching and appeared to have been flooded. See State v. Haight, supra, 279 Conn. 553 (“The act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle. . . . Each act therefore constitutes operation of the vehicle . . . .” [Citation omitted; internal quotation marks omitted.]); see also State v. Cyr, 291 Conn. 49, 56-61, 967 A.2d 32 (2009). Although Jessica Bereis testified that she had been driving the vehicle and that the defendant was sleeping in the passenger seat, the jury, as the fact finder, was free to reject this testimony and to credit Veach’s testimony that the defendant was in the driver’s seat. See State v. Marcisz, 99 Conn. App. 31, 36, 913 A.2d 436 (fact finder had right to reject defendant’s testimony that other individual was driving motor vehicle), cert. denied, 281 Conn. 922, 918 A.2d 273 (2007). Thus, the juiy heard sufficient evidence from which it could reasonably infer that the defendant was operating a motor vehicle.

B

This court has defined driving while under the influence of intoxicating liquor as having occurred when “a driver had become so affected in his mental, physical or nervous processes that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.” (Internal quotation marks omitted.) State v. Gordon, supra, 84 Conn. App. 526. In the present case, the jury heard evidence that the defendant was stumbling, combative, verbally abusive and behaving erratically. The jury also heard evidence that the defendant’s speech was slurred and that her breath smelled of alcohol. In addition, the jury heard evidence that the defendant told Veach that she had been drinking. Veach testified that he determined that it would be unsafe to administer field sobriety tests because the defendant was not following his instructions and appeared to be having breathing problems, which ceased upon the arrival of medical personnel. Finally, the jury heard evidence that Veach, who had received extensive training in the observation of intoxicated motorists and has stopped hundreds of drivers whom he suspected of driving under the influence, concluded that the defendant was intoxicated. Thus, the jury had sufficient evidence from which it could reasonably infer that the defendant was intoxicated. See State v. Windley, 95 Conn. App. 62, 66-67, 895 A.2d 270 (evidence sufficient to establish defendant operating motor vehicle under influence of intoxicating liquor when officer testified defendant’s speech slurred, breath smelled of alcohol and defendant stated he had been drinking), cert. denied, 278 Conn. 924, 901 A.2d 1222 (2006).

Our review of the evidence, therefore, persuades us that the jury reasonably could have concluded that the cumulative force of the evidence established beyond a reasonable doubt that the defendant had been operating a motor vehicle under the influence of intoxicating liquor.

II

The defendant also challenges the admission of two police reports: a notice of rights form and an arrest and alcohol test report, commonly known as an A-44. The defendant claims that the state’s use of the notice of rights form and the A-44, as well as Veach’s testimony regarding the two reports, violated her federal constitutional right to remain silent following her receipt of Miranda warnings because the exhibits and testimony referenced her silence.

At trial, Veach testified that he read the defendant her rights and afforded her an opportunity to contact an attorney. He further testified that the defendant refused to sign a notice of rights form indicating that she had been advised of her rights. The state showed Veach the notice of rights form. He testified that he had written “refused” in the space on the form for the defendant’s signature. The defendant objected.

Outside of the presence of the jury, defense counsel stated that the basis of his objection was “hearsay, bolstering the witness, prejudicial . . . .” He argued that “ [i]t’s hearsay because [Veach] can testify to what happened, and it’s bolstering what he said, essentially, going on repeating what he just testified to” and then asked why the form was relevant. The prosecutor responded: “The fact that she refused it. It bolstered the argument that she refused everything else. It goes to her state of mind at the time.” The court determined that the notice of rights form was both relevant and admissible, overruled defense counsel’s objection and admitted the form into evidence.

The court then addressed the A-44. Defense counsel indicated that he had similar objections to the admission of the A-44, specifically, that it included hearsay such as the notation that the defendant was stumbling and that she refused to “perform any action . . . .” The court admitted the A-44 into evidence.

In the presence of the jury, Veach continued to describe the steps he had taken when booking the defendant. Over defense counsel’s objection, Veach testified that the defendant refused to take the intoximeter test and that her refusal had to be noted on the A-44 and witnessed by an additional officer. Veach testified regarding each section of the A-44 and indicated that the box marked “RTA” next to the questions in the “Interview” section meant “refused to answer.” The questions addressed the defendant’s medical condition and medications, whether she had consumed any alcoholic beverages or taken any drugs and when she had last eaten.

A

We begin with the state’s argument that the defendant’s claim should not be reviewed. Because the defendant did not raise this claim at trial, she now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state argues, inter alia, that the record is inadequate for review, and, therefore, the defendant’s unpreserved claim fails under the first prong of Golding. We disagree.

Under the familiar principle established in Golding, a defendant can prevail on an unpreserved claim of constitutional error only if each of four conditions is 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.” (Internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 5 n.8, 966 A.2d 712 (2009). Under the first prong of Golding, “ [t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” State v. Golding, supra, 213 Conn. 240.

The state relies on State v. Brunetti, 279 Conn. 39, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct, 1328, 167 L. Ed. 2d 85 (2007), for its contention that the record is inadequate for review. In Brunetti, the defendant challenged for the first time on appeal the legality of a search of his parents’ home on the ground that his mother had not consented to the search. Id., 47. Our Supreme Court, in concluding that the record was inadequate for its review of the defendant’s claim, noted that “the act of declining to sign a consent to search form is not tantamount to a refusal to consent to the search, rather, it is simply one of several relevant factors that a court considers in determining the validity of a consent to search.” (Emphasis in original.) Id., 56. The court then reasoned that because “the state had no reason to present any evidence regarding the mother’s consent or lack thereof . . . we simply do not know any of the other circumstances surrounding the mother’s refusal to sign the consent to search form . . . [such that] any conclusion regarding the defendant’s mother’s position concerning the search . . . would be purely speculative.” Id., 58.

Unlike Brunetti, in which neither the prosecutor nor the defense attorney asked the defendant’s mother questions regarding her refusal to sign a consent to search form; id., 50; here, a significant portion of Veach’s testimony described the sequence of events, his actions and the defendant’s actions after the defen1 dant had been taken to the police barracks. The record in the present case, therefore, is not void of the factual circumstances surrounding the defendant’s claim. Although we recognize the state’s point that without notice of a Doyle claim, it did not have the opportunity to present evidence that the defendant was “selectively silent,” thereby precluding a Doyle violation, our inquiry properly focuses on whether the record is sufficient to allow us to determine whether a violation of constitutional magnitude has occurred. See id., 55-56. Put another way, the facts revealed by the record are not “insufficient, unclear or ambiguous . . . .” State v. Golding, supra, 213 Conn. 240. We need not speculate to reach a decision as to whether a Doyle violation occurred and, accordingly, conclude that the record is sufficient for this inquiry.

Thus, we conclude that the record is adequate for review. The defendant has satisfied the second prong of Golding because a Doyle claim is of constitutional magnitude. State v. Camacho, 92 Conn. App. 271, 279, 884 A.2d 1038 (2005), cert. denied, 276 Conn. 935, 891 A. 2d 1 (2006). Therefore, we will afford it review.

B

Turning to the merits of the defendant’s claim, we note that because the claim raises a question of law, our standard of review is plenary. Id. “In Doyle . . . the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. The court based its holding [on] two considerations: First, it noted that silence in the wake of Miranda warnings is insolubly ambiguous and consequently of little probative value. Second and more important[ly], it observed that while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. . . . The court . . . reaffirmed Doyle’s reasoning in Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986), in which it held that the defendant’s silence following his arrest and receipt of Miranda warnings could not be used at trial to rebut his defense of insanity. The court reasoned: The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.” (Internal quotation marks omitted.) State v. Cabral, 275 Conn. 514, 523-24, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005).

Our Supreme Court has reasoned that it is also fundamentally unfair and a deprivation of due process for the state to use evidence of the defendant’s post-Miranda silence as affirmative proof of guilt. State v. Kirby, 280 Conn. 361, 400, 908 A.2d 506 (2006). The court has noted that post-Miranda silence under Doyle “does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted. Wainwright v. Greenfield, supra, 474 U.S. 295 n.13.” (Internal quotation marks omitted.) State v. Cabral, supra, 275 Conn. 524.

The defendant argues that the admission of the A-44 constituted a Doyle violation. Specifically, the defendant refers to the notation on the A-44 that she refused to answer a series of questions regarding whether she was on medication, the last time she had eaten and if she had consumed any drugs or alcohol. At oral argument before this court, the state conceded that admission of the notation that the defendant refused to answer the questions regarding drugs or alcohol constituted a Doyle violation.

In this case, Veach informed the defendant of her right to remain silent, which included the warning that anything she said could be used against her. The defendant chose to remain silent by declining to answer any of the questions listed on the A-44. See State v. Smith, 107 Conn. App. 746, 752, 946 A.2d 926 (noting there is no particular prescription for behavior or words that constitute invocation of defendant’s right to remain silent), cert. denied, 288 Conn. 905, 953 A.2d 650 (2008). The defendant, therefore, was not “selectively silent.” See State v. Torres, 85 Conn. App. 303, 315-16, 858 A.2d 776 (“the [Doyle] rule does not apply when the defendant merely pauses during an interview or alternates between remaining silent and speaking: While a defendant may invoke his right to remain silent at any time, even after he has initially waived his right to remain silent, it does not necessarily follow that he may remain ‘selectively’ silent” [internal quotation marks omitted]), cert. denied, 271 Conn. 947, 861 A.2d 1179 (2004).

At trial, however, the state offered evidence of the defendant’s refusal to answer questions both through Veach’s testimony and the admission of the A-44. Significantly, the A-44 showed that the defendant repeatedly chose to remain silent rather than answer Veach’s questions, which included inquiries regarding her alcohol and drug consumption. By refusing to be interviewed, the defendant invoked her right to remain silent. Compare State v. Montgomery, 254 Conn. 694, 715, 759 A.2d 995 (2000) (defendant invoked right to remain silent when he declined to answer question and made signal indicating desire to terminate interview) with State v. Kirby, supra, 280 Conn. 401 (defendant’s statement that he did not want to deal with “paperwork” neither silence nor invocation of right to remain silent). “Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.” (Internal quotation marks omitted.) State v. Plourde, supra, 208 Conn. 467. Thus, by admitting evidence of the defendant’s silence, the state acted contrary to the implicit assurance that the defendant’s silence would not be used against her. See id., 468. Accordingly, allowing evidence of the defendant’s silence would be inconsistent with the rule that “evidence [of the defendant’s post-Miranda silence] may not be used to . . . imply guilt or to indicate a consciousness of guilt . . . .” (Citations omitted.) State v. Ricketts, 37 Conn. App. 749, 759-60, 659 A.2d 188, cert. denied, 234 Conn. 913, 660 A.2d 355, cert. denied, 516 U.S. 977, 116 S. Ct. 481, 133 L. Ed. 2d 409 (1995).

The state argues that other than the A-44 questions regarding drugs and alcohol, Veach’s testimony and the admission of the A-44 fall outside the scope of Doyle because the evidence established the sequence of events and Veach’s investigative efforts. We do not agree.

Our Supreme Court has recognized that “[references to one’s invocation of the right to remain silent [are] not always constitutionally impermissible . . . [and are allowed] in certain limited and exceptional circumstances.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Alston, 272 Conn. 432, 441, 862 A.2d 817 (2005). Specifically, the state is permitted “some leeway in adducing evidence of the defendant’s assertion of that right for purposes of demonstrating the investigative effort made by the police and the sequence of events as they unfolded ... as long as the evidence is not offered to impeach the testimony of the defendant in any way.” (Internal quotation marks omitted.) State v. Kirby, supra, 280 Conn. 401. The present case does not present the limited and exceptional circumstances in which a reference to the defendant’s silence is permissible. Here, the state presented evidence that the defendant refused to be interviewed and refused to answer all of Veach’s questions. Significantly, the A-44, which reflected the defendant’s refusal to answer each individual question, was admitted into evidence. Compare State v. Alston, supra, 441-42 (testimony that “[defendant] terminated the interview” proper because it merely described investigative efforts of police) and State v. Gonzalez-Rivera, 48 Conn. App. 784, 803, 713 A.2d 847 (brief testimony by two witnesses that defendant terminated interview not in violation of Doyle because testimony established sequence of events), cert. denied, 245 Conn. 923, 717 A.2d 238 (1998). Our review of the record supports the conclusion that Veach’s testimony and the state’s proffer of the A-44 constituted more than a brief reference to the defendant’s silence to establish the sequence of events or Veach’s investigative efforts. Therefore, we conclude that the A-44 was admitted in violation of Doyle.

C

The state also argues that any Doyle violation was harmless beyond a reasonable doubt. We agree.

“Doyle violations are . . . subject to harmless error analysis. . . . The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . . . Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case. . . . [B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. . . . The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. . . . That determination must be made in light of the entire record [including the strength of the state’s case without the evidence admitted in error].

“A Doyle violation may, in a particular case, be so insignificant that it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict without the impermissible question or comment upon a defendant’s silence following a Miranda warning. Under such circumstances, the state’s use of a defendant’s [post-Miranda] silence does not constitute reversible error. . . . The [error] has similarly been [found to be harmless] where a prosecutor does not focus upon or highlight the defendant’s silence in his cross-examination and closing remarks and where the prosecutor’s comments do not strike at the jugular of the defendant’s story. . . . The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant’s silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt.” (Internal quotation marks omitted.) State v. Montgomery, supra, 254 Conn. 717-18.

Here, the improper testimony regarding the defendant’s silence did not strike at the jugular of the defense, which was that the defendant’s sister had been driving. In addition, the reference to the defendant’s refusal to answer questions was limited to Veach’s testimony and was not revisited on cross-examination, redirect or during closing argument. Moreover, neither Veach nor the state made any correlation between the defendant’s refusal to answer questions and her guilt. Compare State v. Kuranko, 71 Conn. App. 703, 712-13, 803 A.2d 383 (2002) (Doyle violation harmless when defendant’s silence not focus of prosecution’s cross-examination or closing argument, reference was minor portion of cross-examination and defendant’s silence not highlighted) with State v. Hughes, 45 Conn. App. 289, 292-93, 296, 696 A.2d 347 (1997) (Doyle violation harmful where detective testified as to defendant’s request not to discuss accusations and silence thereafter eight times, gave vivid description of defendant’s emotional reaction to accusations, interpreted defendant’s silence as evidence of guilt and state offered same inference during closing argument).

Furthermore, the case against the defendant was strong. The state introduced evidence that the driver of a vehicle bearing a specific license plate number drove into a parked car in the parking lot of the Stoning-ton Institute. The state also introduced evidence that fifteen to thirty minutes later, Veach observed that same vehicle parked on the side of the road with the defendant in the driver’s seat, attempting to start the vehicle. Significantly, Veach testified that the defendant’s speech was slurred, her breath smelled of alcohol and she “said she did have a couple of drinks.” Veach also testified that he was unable to perform field sobriety tests because of the defendant’s “obnoxious” and “irrational” behavior, as well as the fact that the defendant appeared to be having breathing problems, which ceased as soon as medical personal arrived. In addition, Peasley testified that the defendant’s breath smelled of alcohol and that she was combative and verbally abusive. See State v. Montgomery, supra, 254 Conn. 718-21 (Doyle violation harmless beyond reasonable doubt when prosecutor did not repeatedly reference defendant’s silence but emphasized strong case against defendant, including eyewitness identification of defendant, evidence regarding defendant’s purchase of weapon used and defendant’s incriminating statements); State v. Pepper, 79 Conn. App. 1, 16-17, 828 A.2d 1268 (2003) (any potential Doyle violation harmless when prosecution’s evidence included physical evidence tying defendant to victim, defendant’s untruthful statement to police and victim’s physical injuries), aff'd, 272 Conn. 10, 860 A.2d 1221 (2004).

In view of the substantial evidence of the defendant’s guilt and in light of the fact that the reference to the defendant’s silence did not strike at the jugular of the defendant’s version of events and was not equated with the defendant’s guilt, we conclude that the Doyle violation in this case was harmless beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with evading responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (b). The jury returned a verdict of not guilty on that charge.

       The Ml name of Trooper Peasley is not apparent from the record.

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

       Pursuant to General Statutes § 14-227b (a), “[a]ny person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine . . . .”

       See Ellam v. Commissioner of Motor Vehicles, 47 Conn. App. 509, 511, 704 A.2d 257 (1998).

       The sufficiency of evidence as to the second element is not challenged in this appeal.

       “The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests.” Roy v. Commissioner of Motor Vehicles, 67 Conn. App. 394, 396 n.3, 786 A.2d 1279 (2001).

       We note that the defendant also claims that the court improperly admitted the aforementioned police reports into evidence because they were not relevant, were prejudicial and contained inadmissible hearsay. We conclude that even if the court improperly admitted the police reports on evidentiary grounds, the defendant has not met her burden of proving that the improper evidentiary ruling was harmful. See State v. Thomas, 110 Conn. App. 708, 718-19, 955 A.2d 1222 (factors in determining harmlessness include importance of evidence in prosecution’s case, whether evidence cumulative, overall strength of prosecution’s case and impact of evidence on trier of fact and result of trial), cert. denied, 289 Conn. 952, 961 A.2d 418 (2008).

       The “RTA” box is checked beside the heading “Section D: Interview.” In addition, the “RTA” box is checked next to the following questions: “Are you injured?
      “Are you ill?
      “Are you a diabetic?
      “Do you take insulin?
      “If yes, when was the last taken insulin?
      “Do you take medication?
      “If yes, what type of medication?
      “When did you last take medication?
      “Do you need medication now?
      “If yes, which type?
      “Your weight?
      “When did you start drinking?
      “When did you stop drinking?
      “What type of alcoholic beverage did you drink?
      “How much did you drink?
      “Where did you drink?
      “When did you last eat and what did you eat?
      “Did you take drugs?
      “If so, what kind and how much?”

        Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).

       As we explain in part II B, a Doyle violation is one in which the state introduces improper evidence of a defendant’s post-Miranda silence in violation of the defendant’s right to remain silent. Doyle v. Ohio, supra, 426 U.S. 610. Our Supreme Court has held that a defendant cannot raise & Doyle claim when he has not invoked his right to remain silent and instead is “selectively silent.” See State v. Bell, 283 Conn. 748, 767, 931 A.2d 198 (2007).

       The state’s concession of error is limited to these specific questions.

       We note that the defendant does not challenge the admission of evidence of her refusal to take the intoximeter test. See General Statutes § 14-227b (b).

       The defendant also claims that Veach’s testimony regarding her refusal to sign the notice of rights form as well as the admission of the form itself constituted a Doyle violation. We conclude that in the event the references to the notice of rights form were improper, this impropriety was harmless beyond a reasonable doubt. Veach’s testimony that the defendant refused to sign the notice of rights form was brief, and, although the notice of rights form was admitted into evidence, the defendant’s refusal to sign the form merely suggested that the defendant was uncooperative. Furthermore, the defendant’s challenge to the notice of rights form on the ground of relevance is unfounded in light of General Statutes § 14-227b (b).


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    DIANE COLLINS v. MARK COLLINS
    (AC 28172)
    (AC 30037)
    Lavine, Robinson and Schaller, Js.

      Argued June 1
    officially released September 29, 2009

      Mark Collins, pro se, with whom, on the brief, was David M. Wattman, for the appellant (defendant).

      Brenden P. Ley don, for the appellee (plaintiff).

      Louise T. Truax, for the minor children.
   Opinion

SCHALLER, J.

These two appeals arise from the dissolution of the parties’ marriage. In AC 28172, the defendant, Mark Collins, appeals from the trial court’s pendente lite order granting the plaintiff, Diane Collins, exclusive possession of the marital home. In AC 30037, the defendant appeals from the final judgment of dissolution. We dismiss the appeal in AC 28172 and affirm the judgment of the trial court in AC 30037.

The following facts and procedural history are relevant to the defendant’s appeals. The plaintiff commenced the dissolution action on September 22, 2005. On February 24, 2006, while the action was pending, the plaintiff moved for exclusive use and possession of the parties’ marital home on the ground that the defendant had been threatening her and their two minor children. Following a contested hearing, the court, Hon. Dennis F. Harrigan, judge trial referee, denied the plaintiffs motion for exclusive possession on March 16, 2006. On July 12, 2006, the plaintiff filed another motion for exclusive use and possession of the marital home. The court, Schofield, J., granted the motion on October 10, 2006, and ordered the defendant to vacate the marital home by October 30, 2006. As part of that order, the court limited the defendant’s visitation with the children to two nights per week. On October 26, 2006, the defendant filed a motion to reargue the court’s ruling. On October 27, 2006, the defendant filed an appeal (AC 28172) from the court’s ruling.

On October 31, 2006, while the defendant’s motion to reargue and appeal were pending, the defendant filed an emergency motion for a stay of the order granting the plaintiff exclusive possession of the marital home. This court denied the motion for an emergency stay on the same day. On November 3, 2006, the court, Scho-field, J., granted the defendant’s motion to reargue but denied the relief requested, thereby leaving intact the order granting exclusive possession of the marital home to the plaintiff. On the same day, the court determined that no stay of execution was available. On November 13, 2006, the defendant filed a motion for review of the trial court’s November 3, 2006 order with respect to the automatic stay. This court granted the motion but denied the relief requested therein.

This court then placed the defendant’s appeal on the court’s motion calendar for February 28, 2007, and ordered counsel to appear and to give reasons, if any, why the defendant’s appeal from the pendente lite order for exclusive possession of the marital home should not be dismissed for lack of a final judgment. On February 13, 2007, the plaintiff moved to dismiss the appeal from the pendente lite order as moot on the ground that the defendant had vacated the marital home and for lack of a final judgment for the reasons raised by this court. The defendant opposed the motion, arguing that the pendente lite order was immediately appealable because it affected the amount of time that he could spend with his children. The defendant also claimed that he vacated the marital residence only because he did not want to be held in contempt. We advised the parties to be prepared to address the plaintiffs motion to dismiss in addition to the final judgment questions at the February 28, 2007 hearing. On the day of the hearing, we marked the court’s motion off and denied the plaintiffs motion to dismiss the appeal as moot but denied the motion without prejudice as to the final judgment claim.

On January 28, 2008, the defendant filed his brief with respect to AC 28172. In his brief, the defendant claimed that the trial court’s order regarding exclusive possession of the marital home was a final judgment for purposes of appeal and that the order was improper because Judge Schofield permitted the plaintiff to attack collaterally the prior final judgment rendered by Judge Harrigan by granting the identical motion for exclusive possession. The defendant requested that the court’s pendente lite order be reversed.

On May 19, 2008, the court, Bozzuto, J., rendered judgment dissolving the parties’ marriage by way of a memorandum of decision. The court awarded sole and primary residential custody of the minor children to the plaintiff. The court awarded the defendant visitation with the children pursuant to the following regular access schedule: “Every Wednesday after school, or if school is not in session, from 3 p.m. until 7 p.m. . . . Every other Friday after school, or if school is not in session, from 3 p.m., overnight until 3 p.m. on Saturday .... On weekends wherein the defendant does not have an overnight, then from Saturday at 3 p.m. to 8 p.m.” The court also ordered the parties immediately to list the marital residence for sale and to divide evenly the proceeds of the sale. Until the sale of the marital residence, the plaintiff was to have the exclusive right to use and to occupy it as her residence.

On June 9, 2008, the defendant filed an appeal, AC 30037, from the judgment of dissolution. On July 8, 2008, the plaintiff filed a motion to dismiss the defendant’s first appeal, AC 28172, as moot, alleging that the pendente lite order for exclusive possession of the marital home had terminated upon entry of the final judgment of dissolution. The defendant opposed the motion, arguing that his first appeal fell into the “capable of repetition, yet evading review” exception to the mootness doctrine. See Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). On October 15, 2008, this court denied the plaintiffs motion to dismiss without prejudice and ordered the defendant to file a supplemental brief in AC 28172, addressing the issue of whether it was rendered moot by the entry of judgment subsequent to the appeal. This court further ordered the plaintiff to address the mootness issue in her brief on the merits of the appeal.

On October 31, 2008, the defendant filed his supplemental brief, in which he again argued that the entry of the final judgment of dissolution did not render his first appeal moot because the claims therein were capable of repetition, yet evading review. On December 2, 2008, the plaintiff filed her brief in appeal AC 28172. In her brief, the plaintiff argued that the court’s pen-dente lite order regarding exclusive possession of the marital home was rendered moot by the subsequent final judgment of dissolution, thus depriving this court of subject matter jurisdiction. The plaintiff further argued that the order regarding exclusive possession of the marital home was proper, supported by the evidence and within the court’s discretion.

On January 8, 2009, the defendant filed his brief in AC 30037. In his brief, the defendant claimed essentially that Judge Bozzuto’s final order of custody, as provided in the May 19, 2008 memorandum of decision, was unduly and improperly influenced by: (1) the pendente lite order regarding exclusive possession of the marital home (2) a pendente lite order regarding the requirement that the defendant seek employment and (3) the court’s incorrect conclusions as to the minor son’s medical condition. On March 20, 2009, the plaintiff filed her brief in AC 30037. Additional facts will be set forth as necessary.

I

AC 28172

This appeal is from Judge Schofield’s pendente lite order granting the plaintiff exclusive possession of the marital home. The defendant concedes that because that order ceased to exist once Judge Bozzuto rendered the final judgment of dissolution, we can give no practical relief, and the defendant’s appeal should be dismissed as moot. See Sweeney v. Sweeney, 271 Conn. 193, 200, 856 A.2d 997 (2004). The defendant nevertheless urges that we consider the merits of the appeal because the claims therein satisfy the “capable of repetition, yet evading review” exception to the mootness doctrine.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court’s subject matter jurisdiction .... We begin with the four part test for justiciability established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.” (Citation omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008).

“The mootness doctrine is rooted in the first factor of the Nardini test. ... It is founded on the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue. . . . This court recently reiterated that the standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . Indeed, we note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . .

“[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Id., 374.

This does not end our analysis, however, because an otherwise moot question may qualify for review under the “capable of repetition, yet evading review” exception to the mootness doctrine. To qualify for review under that exception, an otherwise moot question must meet three requirements. “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Loisel v. Rowe, supra, 233 Conn. 382-83.

“The first element in the analysis pertains to the length of the challenged action. . . . The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced.” (Citations omitted.) Id., 383-84. “[A] party typically satisfies this prong if there exists a ‘functionally insurmountable time [constraint] . . . Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 367, 957 A.2d 821 (2008); or “the challenged action had an intrinsically limited lifespan.” Loisel v. Rowe, supra, 383.

In Sweeney v. Sweeney, supra, 271 Conn. 202, our Supreme Court concluded that “the nature of a pen-dente lite order, entered in the course of dissolution proceedings, is such that its duration is inherently limited because, once the final judgment of dissolution is rendered, the order ceases to exist.” “Although we recognize that dissolution proceedings may vary as to their relative length, there is a strong likelihood that, as compared to the time necessary to conclude appellate litigation, a substantial majority of cases raising a challenge to a pendente lite order entered in the course of dissolution proceedings will become moot prior to final appellate resolution.” Id. Accordingly, the defendant’s appeal has satisfied the first requirement of Loisel.

Analysis under the second requirement “entails two separate inquiries: (1) whether the question presented will recur at all; and (2) whether the interests of the people likely to be affected by the question presented are adequately represented in the current litigation.” Loisel v. Rowe, supra, 233 Conn. 384. “A requirement of the likelihood that a question will recur is an integral component of the ‘capable of repetition, yet evading review’ doctrine. In the absence of the possibility of such repetition, there would be no justification for reaching the issue, as a decision would neither provide relief in the present case nor prospectively resolve cases anticipated in the future.” Id.

In the present case, the defendant concedes that issues surrounding exclusive possession of the marital home will not arise again because the final judgment of dissolution ordered the home to be sold. The defendant argues, however, that issues surrounding parenting time are likely to arise again in the future because “[i]t is highly likely that in the future [he] will seek to increase the amount of parenting time with his children and seek more involvement in the decision-making that are the essence of custodial rights. It is virtually certain that [at that time] . . . [the pendente lite] order will be cited by the [plaintiff] to support what she perceives as the beneficial impact [of] the limited access and decision-making . . . .”

The defendant relies on Sweeney in support of his argument. In Sweeney, the defendant appealed from a pendente lite order granting the plaintiff permission to enroll the parties’ minor child in parochial school. Sweeney v. Sweeney, supra, 271 Conn. 195. The defendant conceded that his appeal was moot because while it was pending, a final judgment of dissolution was entered, and the parties had reached an agreement that the child would attend public school for the upcoming school year. Id., 200. The defendant argued, however, that the question presented in the appeal was capable of repetition, yet evading review. Id. The Supreme Court agreed, concluding that “[notwithstanding [the parties’] agreement, the defendant’s counsel [at oral argument] indicated that the issue as to where the minor child would be enrolled following the year in public school remains a source of contention between the parties. Accordingly, it is reasonably likely that the same question presented in [the] appeal will arise again between these parties.” Id., 206.

The present case is distinguishable from Sweeney. In Sweeney, the parties had a one year agreement as to the minor child’s education. The issue as to where the child would be enrolled after that year had not been settled in the final judgment of dissolution. It was clear, therefore, that the question presented in the defendant’s appeal from the pendente lite order, i.e., whether the child should receive religious education, was going to arise again in the future. In the present case, should the defendant seek to alter the current custody arrangement, he will have to move to modify the terms of the final judgment of dissolution pursuant to General Statutes § 46b-56.

General Statutes § 46b-56 provides in relevant part: “(a) In any controversy before the Superior Court as to the custody or care of minor children . . . the court may [at any time] make or modify any proper order regarding . . . custody . . . [and] visitation .... (c) In making or modifying any order [with respect to custody or visitation], the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. . . .”

Moreover, “[i]n making a determination of custody . . . the trial court is bound to consider the [children’s] present best interests and not what would have been in [their] best interests at some previous time.” (Emphasis in original; internal quotation marks omitted.) Blake v. Blake, 207 Conn. 217, 224, 541 A.2d 1201 (1988). In O’Neill v. O’Neill, 13 Conn. App. 300, 303, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), this court concluded that the trial court improperly awarded sole custody of the minor child to the defendant because it relied on outdated evidence, namely, the plaintiffs past medical history and a thirteen month old family relations custody report, which were not probative of present parenting abilities and the present best interests of the child. “We recognize that a party’s prior conduct . . . may have a direct bearing on his or her present fitness to be a custodial parent. ... At the same time, however, the focus of the court’s inquiry must be designed to meet the primary objective which is to determine the present parenting ability of the parties.” (Citation omitted.) Id., 304.

Consequently, should the defendant in this case seek a modification of the custody order in the future, the court, in deciding that motion, will be bound to consider a number of factors and the circumstances that exist at that time. It is, therefore, merely speculative that the circumstances surrounding the pendente lite order will have any future effect. Because there is not a reasonable likelihood that the question presented in the defendant’s appeal will arise again, the defendant has not satisfied the second prong of Loisel, and the “capable of repetition, yet evading review” exception to the mootness doctrine is inapplicable. The defendant’s appeal from the pendente lite order is dismissed for lack of subject matter jurisdiction.

II

AC 30037

This appeal is from the judgment of dissolution. The defendant claims that Judge Bozzuto’s decision regarding custody, as provided in her May 19, 2008 memorandum of decision, was unduly and improperly influenced by: (1) Judge Schofield’s pendente lite order regarding exclusive possession of the marital home; (2) the January 31, 2007 pendente lite order of the court, Hon. Kevin Tierney, judge trial referee, regarding the requirement that the defendant seek employment; and (3) Judge Bozzuto’s incorrect conclusions as to the minor child’s medical condition.

Before addressing the merits of the defendant’s claims, we first note the applicable standard of review. “Our standard of review of a trial court’s decision regarding custody [and] visitation ... is one of abuse of discretion. . . . [I]n a dissolution proceeding the trial court’s decision on the matter of custody is committed to the exercise of its sound discretion and its decision cannot be overridden unless an abuse of that discretion is clear. . . . The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. ... In determining what is in the best interests of the child, the court is vested with a broad discretion. . . . [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . .

“The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant. . . . [E]very reasonable presumption should be given in favor of the correctness of [the trial court’s] action. . . . We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence.” (Internal quotation marks omitted.) Lederle v. Spivey, 113 Conn. App. 177, 185-86, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009).

A

The defendant first claims that the court’s final custody decision was unduly and unfairly influenced by the pendente lite order regarding exclusive possession, in abuse of the court’s discretion. The defendant refers to the court’s May 19, 2008 memorandum of decision as evidence in support of his claim.

General Statutes § 46b-56 (a) provides in relevant part: “In any controversy before the Superior Court as to the custody or care of minor children . . . the court may make . . . any proper order regarding the custody, care, education, visitation and support of the children if it has jurisdiction .... Subject to the provisions of section 46b-56a, the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. . . . (b) In making . . . any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. Such orders may include, but shall notbe limited to: (1) Approval of aparental responsibility plan agreed to by the parents pursuant to section 46b-56a; (2) the award of joint parental responsibility of a minor child to both parents, which shall include (A) provisions for residential arrangements with each parent in accordance with the needs of the child and the parents, and (B) provisions for consultation between the parents and for the making of major decisions regarding the child’s health, education and religious upbringing; (3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child; or (4) any other custody arrangements as the court may determine to be in the best interests of the child. ...”

As previously stated, Judge Bozzuto awarded sole and primary residential custody of the minor children to the plaintiff and visitation to the defendant pursuant to the following regular access schedule: “Every Wednesday after school, or if school is not in session, from 3 p.m. until 7 p.m. . . . Every other Friday after school, or if school is not in session, from 3 p.m., overnight until 3 p.m. on Saturday .... On weekends wherein the defendant does not have an overnight, then from Saturday at 3 p.m. to 8 p.m.” The defendant also was awarded two nonconsecutive summer vacation periods with the children, five days duration each, one of the children’s two school vacations, which occurred in February and April, and certain holidays.

Although it is true that the court, in its memorandum of decision, referred to the pendente lite order and to the evidence presented at trial as to the positive effect the plaintiffs exclusive possession of the marital home and the defendant’s limited visitation had on the two minor children, the court did not state that it was relying on the pendente lite order in fashioning its custody order. In fact, the record reveals that the court instead relied heavily on the testimony of Ronald C. Naso, a psychologist who interviewed both parties extensively and administered to both a number of psychological examinations. In its memorandum of decision, the court quoted extensively from Naso’s psychological report. The court stated: “Naso’s findings relative to the plaintiff and the defendant, which this court finds consistent with other evidence, do not bode well for successful coparenting, postdissolution. To the contrary, Naso essentially sets forth a psychological profile of the defendant that would currently rule out the possibility that the defendant is fundamentally capable of participating in the negotiation, compromise and deference often necessitated by parents joined in a postdissolution coparenting plan. Given the defendant’s history of parenting, alone and in conjunction with the plaintiff, in addition to Naso’s findings amongst other evidence, the court finds that it is not in the children’s best interests that the plaintiff and the defendant have joint custody.”

Contrary to the defendant’s assertion, the memorandum of decision does not, in fact, indicate that the court was unfairly influenced by the pendente lite order so that it abused its discretion by failing to consider all relevant statutory criteria and the best interests of the children, as it was bound to do. Furthermore, to the extent that the court may have considered the positive effect the pendente lite order had on the children, we find no authority indicating that a trial court is prevented from considering as evidence facts that occurred as a result of a pendente lite order, even if that order is improper. It would have been irresponsible for the court, in making a best interests determination, to ignore that evidence, which included school reports and live testimony. As our Supreme Court has stated: “The trial court appropriately could consider any evidence or events that occurred through the close of trial. . . . Indeed, the [trial] court was bound to consider the [children’s] present best interests and not what would have been in [their] best interests at some previous time.” (Citation omitted; emphasis in original; internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 209-10, 796 A.2d 1141 (2002). Moreover, the defendant did not object to the presentation of that evidence during the trial, and, therefore, he should not now be allowed to contest the court’s consideration of it. For these reasons, the defendant’s first claim fails.

B

The defendant’s second claim is that Judge Bozzuto’s misinterpretation of Judge Tierney’s January 31, 2007 pendente lite order regarding the requirement that the defendant seek employment unduly and unfairly influenced her final custody decision. We disagree.

On January 27,2007, the parties entered into a stipulation as to alimony and finances, pendente lite, which Judge Tierney approved and ordered on January 31, 2007. Paragraph seven of the stipulation stated: “The defendant shall provide to counsel for the plaintiff, through his attorney or, in the event that the defendant is representing himself pro se, from the defendant directly, on a monthly basis, any and all documentation evidencing his efforts to generate income including efforts to (1) restart and improve his consulting business, Silvermine Partners (2) obtain employment, including but not limited to evidence of interviews, employment solicitation records, his resume, (3) and/ or seek any other form of income.”

Judge Bozzuto, in her May 19, 2008 memorandum of decision, stated: “It was the defendant’s position at trial that the needs of the family and home prevented him from either working full-time or making [his business] a success. The court does not find the defendant’s position credible. . . . [E]ven if the court were to believe the defendant’s testimony that family obligations prevented him from engaging in full-time employment, the validity of that argument ended, if not by November, 2006, when the defendant vacated the marital residence . . . then certainly by January 29, 2007. By stipulation of the parties . . . the defendant was required to provide . . . documentation evidencing his efforts to generate income .... Not only did the defendant fail to comply with the mandates of this order, [but] when asked about the order, he testified that he wasn’t under an obligation to look for employment after June 30, 2007. . . . What is clear to the court is: (1) the January 31, 2007 order is clear and unambiguous and requires the defendant to seek employment ... (2) the defendant has not complied with this court order; (3) the defendant was not truthful in his testimony; and (4) the defendant has no present intention of becoming gainfully employed . . . .” (Emphasis added; internal quotation marks omitted.)

The defendant argues that contrary to the court’s assertion, the January 31, 2007 pendente lite order did not, in fact, require him to seek employment. Instead, it obligated him only to provide documentation of any efforts to obtain employment, to the extent efforts were made. The defendant states: “[T]he language clearly draws a distinction between reporting on job hunting and actual job hunting. The former was required, but the latter was not. . . . Judge Bozzuto’s error here had serious impact on her decisions, as the defendant was cast in violation of a court order . . . .”

First, we fail to appreciate the distinction drawn by the defendant. When a court orders a party to provide documentation of his or her attempts to obtain employment, implicit in that order is the requirement that the party seek employment. Second, even if there is a distinction, so that the court did, in fact, misinterpret the stipulation, we fail to recognize the import of such a mistake. The defendant argues that he was “cast in violation of a court order . . . .” The court, however, did not hold the defendant in contempt for failure to follow the order; it merely noted that failure in its discussion regarding the defendant’s employment background. Moreover, the defendant has failed to refer to, nor can we independently locate, anything in the record, evidence or memorandum of decision that shows that the January 31, 2007 stipulation, and the alleged misinterpretation of it, had any effect on the court’s final order of custody. The defendant’s second claim fails.

C

The defendant’s third and final claim is that the court’s incorrect conclusions as to the evidence relating to the minor son’s medical condition unduly and unfairly influenced the final custody decision. We disagree.

During the trial, the plaintiff testified that the minor son was currently taking an antibiotic for a medical condition he was diagnosed with at six years of age. Counsel for the defendant objected immediately to the plaintiffs providing any expert medical testimony with respect to the issue. The court ruled that the plaintiff could testify relative to what transpired between the parties in regard to the child’s illness but could not testify as to the underlying medical condition. The plaintiff then testified that when the child was diagnosed with the condition, experts presented the parties with two options for treatment. The first option was for the child to take antibiotics for the rest of his life, and the second option was for the child to have surgery. The parties initially chose the second option, and a surgery was scheduled, but the defendant unilaterally cancelled it without giving notice to the plaintiff. The plaintiff further testified that she would still prefer that the child have the surgery so that he would not have to take antibiotics every day, but the defendant refuses this option. The plaintiff stated that the parties remain unable to reach a decision on this issue. Following an objection and a request by counsel for the defendant that this testimony be stricken, the court reiterated that it would only consider the testimony as historical evidence with respect to how the parties addressed issues with the children and engaged in decision-making, and not as to what the proper course of treatment should be.

In its May 19, 2008 memorandum of decision, the court stated: “Within one year after the defendant lost his job, the plaintiff believed her marriage to the defendant was over. It proved increasingly difficult for the parties to agree on anything. The plaintiff would appear to be one who is able to make a decision within a reasonable amount of time, as compared to the defendant, who can become mired or lost in the details and thus allow decisions to go unresolved and tasks unaccomplished. Joint decisions were made by default or the plaintiff would simply acquiesce to the defendant’s demands. Whether it was a decision to have a flooded basement cleaned or a medical decision regarding the children, the defendant either dragged his feet or stubbornly committed to an unreasonable position. Most startling is the defendant’s refusal to address [the minor son’s medical] condition .... Surgery to repair the condition was scheduled in 2000, only to be unilaterally cancelled at the last minute by the defendant, never to be rescheduled. Without the surgery, [the minor son] is required to take antibiotics daily, which he has been doing now for a decade. The plaintiff, concerned about [her son’s] condition and the prolonged consumption of antibiotics, continues to desire surgeiy for [the son]. The defendant has refused.”

The defendant argues that the court “[i]n spite of [its] own admonition against concluding one way or the other during the trial . . . made dramatic and biased conclusions against [him] and his parenting abilities based on [his] handling of the medical situation of [the minor son]. To the contrary, [the] defendant’s handling of [the minor child’s] medical situation was consistent with treatment options recommended by the medical experts consulted by the couple over the past decade. Furthermore, there was no evidence or testimony offered that suggested [the] condition was worsening or that the course of treatment was not working. In fact, [the child’s] condition has progressed consistently since it was diagnosed; he is in excellent physical condition . . . and just recently, a top medical expert suggested he could go off the antibiotics and do nothing else.”

There is nothing in the record that indicates that the court considered the defendant’s position on the minor child’s medical condition in fashioning its custody order. It is clear from the memorandum of decision that the court complied with its previous ruling that the plaintiffs testimony as to the child’s medical condition would be considered only as evidence of the parties’ inability to reach mutual decisions. The court raised the issue of the child’s medical condition as an example of the defendant’s inability to coparent and to participate in decision-making with the plaintiff. The court’s conclusions were amply supported by the testimony of the plaintiff, whom the court expressly found to be a credible and reliable witness. There is no evidence that the court made a judgment as to which treatment option was better or a determination that the first treatment option was not working and the child’s condition was worsening. Most importantly, the record reveals no suggestion by the court that the defendant was an unfit parent because he preferred the first option. The defendant’s third claim fails.

The appeal in AC 28172 is dismissed as moot. In AC 30037 the judgment is affirmed.

In this opinion the other judges concurred.

       Judge Schofield was formerly known as Judge Black.

       The defendant also was awarded two nonconsecutive summer vacation periods with the children, five days duration each; one of the children’s two school vacations, which occurred in February and April; and certain holidays.

       The attorney for the minor children, pursuant to Practice Book § 67-13, adopted the plaintiffs brief.

       The attorney for the minor children also filed a brief in AC 30037.

       Our Supreme Court stated: “Counsel for the defendant stated at oral argument before this court that the parties had entered into the agreement regarding the educational enrollment of the minor child for one year because the question of schooling had been the sole issue outstanding in the dissolution proceedings, and the parties had been desirous of concluding the proceedings expeditiously rather than prolonging the dissolution proceedings over one issue.” Sweeney v. Sweeney, supra, 271 Conn. 206 n.7.

       For this reason, the collateral consequences exception to the mootness doctrine, to the extent that it is argued by the defendant, is also inapplicable. In State v. McElveen, 261 Conn. 198, 802 A.2d 74 (2002), our Supreme Court stated: “[F]or a litigant to invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not.” (Emphasis added.) Id., 208.

       Because we conclude that the defendant fails to satisfy the second requirement, we need not analyze the third requirement, i.e., whether the question presented in the appeal is of public importance, as all three requirements must be satisfied for the exception to apply. See Loisel v. Rowe, supra, 233 Conn. 382-83.

       The defendant also claims that the pendente lite order regarding exclusive possession of the home was clearly improper and not within the court’s discretion. The defendant concedes that this issue is the subject of AC 28172, and we have determined that that appeal is moot.

       The defendant claims that “other critical decisions rendered by Judge Bozzuto” were improperly influenced as well. The defendant, however, fails to articulate these decisions in his appellate brief, and we will not attempt to guess as to which “critical” decisions he is referring.

       In the event that the children had only one week of vacation, the plaintiff was to have the children in odd years and the defendant in even years.

       The defendant was awarded Father’s Day every year, Thanksgiving and Easter in odd numbered years and Christmas Eve and Christmas in even numbered years.

       Specifically, the court stated: “The plaintiff testified that prior to the court’s [pendente lite order, the minor daughter] was a different child. She was insecure, timid and lacked confidence. . . . She experienced difficulty sleeping at night. Since the court’s order of [October, 2006, the minor daughter] has shown behavior improvements. . . . [Also] [p]rior to the . . . order . . . [the minor son] was prone to multiple daily outbursts and uncontrolled temper tantrums. He would throw furniture, slam doors, punch holes in the wall . . . and had difficultly sleeping. . . .
      “Since the defendant’s removal from the marital residence, the plaintiff has noticed a dramatic change in [the minor son’s] behavior. He is calm and more focused. Outbursts are rare, almost nonexistent. He completes his homework in a timely manner and sleeps without a problem. There was no evidence offered to refute the plaintiffs testimony relative to the children’s behavioral improvements since the court’s pendente lite custody and visitation order .... Actually, the evidence would support the finding that prior to the court’s . . . order . . . the home was a pressure cooker, with the plaintiff overworked, the defendant chronically unemployed, the finances depleted, the house in shambles, the children out of control and the defendant oblivious to the fact that everything was falling apart around him. It would appear the children suffered the most amidst this chaos.”

         Notably, the two orders are not identical. The pendente lite order only gave the defendant visitation two nights per week. The final custody order gave the defendant two nights per week, one of which would be an overnight every other weekend, three weeks of vacation and certain holidays.

       The court quoted the following from Naso’s report: “The more difficult issue is the parents’ inability to communicate and the breakdown of trust between them. . . . [The defendant’s] scrupulosity and rigidity can rather quickly deteriorate into negativism and obstruction when he is stressed, bringing any effort at cooperation to a standstill. Disagreements and differences of opinion threaten humiliation and prompt him [to] redouble his efforts to control, sometimes directly, often indirectly via withholding and uncooperative behaviors. Once locked into a position, he not only perceives his wife as vying for power, but fails to fully appreciate the traumatic consequences of his negativism for the children. However much [the parties] have suffered during this process pales in comparison to what the children have had to endure. . . . The examiner is less confident in the parties’ ability to cooperate in decisions .... The parties have not yet found a way to resolve issues about which they disagree. It is foreseeable that when decisions (both major and minor) have to be made regarding the health and education of the children that the parents will not be able to resolve conflicts without outside intervention.”

       See footnote 9.

       See footnote 9.

       The defendant, at oral argument, stated that he was not making any formal claim of bias against the court.