author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. MICHAEL WRIGHT
    (AC 20509)
    Schaller, Mihalakos and Dranginis, Js.
    Argued January 18
    officially released July 9, 2002

      Michael O. Sheehan, special public defender, with whom were Carmine J. Giuliano, special public defender, and, on the brief, Sarita Ordonez and Richard A. Reeve, special public defenders, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Warren Maxwell, senior assistant state’s attorney, and David Zagaha, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Michael Wright, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1), 53a-8 and 53-202k, conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48, 53a-59 (a) (1) and 53-202k, which judgment included an enhanced sentence pursuant to § 53-202k. He claims that the trial court violated his due process rights when it (1) denied his request for a continuance of his trial until a coconspirator was sentenced and (2) enhanced his sentence pursuant to § 53-202k with a five year consecutive term without first instructing the jury on the commission of a class A, B or C felony with a firearm. We affirm the judgment of the trial court.

The following facts are necessary for our resolution of the defendant’s appeal. The defendant was arrested on May 2,1997, and charged in connection with the July 24, 1996 shooting death of Hayfield “Pit Bull” Hemly. A codefendant, Marlon Hamilton, was arrested at the same time and charged with having committed the same offenses. Although the defendant and Hamilton were to begin their joint trial in May, 1999, the court instead severed the trials. Subsequently, Hamilton entered a guilty plea to the charge of assault in the first degree in exchange for his cooperation with the state. According to the terms of the plea agreement, Hamilton would not be sentenced until the conclusion of the defendant’s trial.

The defendant’s trial began on October 18, 1999. On November 2,1999, the defendant attempted to call Hamilton as a witness to testify about exculpatory information concerning crimes with which the defendant was charged. Hamilton invoked his fifth amendment privilege against self-incrimination and refused to answer defense counsel’s questions. The defendant sought a continuance of the trial until after Hamilton was sentenced, anticipating that the protections afforded to Hamilton would no longer be available. The court denied the request. On November 12, 1999, the jury convicted the defendant of the crimes of assault in the first degree and conspiracy to commit assault in the first degree. The court sentenced the defendant to forty-five years imprisonment, suspended after thirty-five years, and five years probation. Specifically, the court sentenced the defendant to twenty years on the basis of the assault conviction, plus a five year sentence enhancement, pursuant to § 53-202k, consecutive to that twenty years, and twenty years consecutive, execution suspended after ten years, for the conspiracy conviction.

I

The defendant first claims that the court violated his due process rights under the fifth amendment of the United States constitution in denying his request for a continuance of his trial until Hamilton was sentenced. We disagree.

The defendant contends that the denial of his request for a continuance infringed on his right to offer the testimony of a witness and violated his right to due process of law. Although not fully stated as such, his claim alleges a violation not only of his fifth amendment due process rights, but also his sixth amendment right to present a defense.

The following additional facts are necessary for the resolution of the defendant’s claim. Hamilton had accused Steve Nelson of stealing marijuana from him the week before the shooting. Nelson and the victim had met with Hamilton several days before the shooting and attempted to explain to Hamilton that someone else had stolen the drugs. During the meeting, Nelson and the victim flashed their guns. During the late evening of July 24, 1996, the victim and Nelson drove to Adams Street in Hartford, where they met with friends. The defendant and Hamilton arrived separately later in the evening. Thereafter, Nelson and the victim became involved in a melee with the defendant and Hamilton over the stolen marijuana, which precipitated the shooting death of the victim.

At trial, the state called several witnesses to testify about the events of the evening. Five people present at the scene of the shooting testified for the state, including Nelson, Steve O’Meally, Michael Lawrence, Joseph Lindsey and Franz Murray. A sixth witness, Oreville Lipscome, also testified for the state. Nelson, the first witness called by the state, testified that he witnessed the fight. He stated that he was about two feet from the victim as Hamilton and the defendant began to “beat” and “strike” the victim in the head with guns, and that he tried to intervene. Nelson testified further that after about thirty seconds, the victim broke away from his assailants and ran along the street. Nelson testified that he chased and ran past the victim, heard shots and looked back to see the victim lying in the street. Nelson did not see the shots fired.

The remaining witnesses all testified that Hemly was beaten, or “pistol-whipped,” prior to fleeing along Adams Street, and that he was shot while running and that he fell in the street. All of those witnesses testified that the defendant had a gun at the time of the shooting, and all except Lipscombe stated that the defendant had “pistol-whipped” the victim. Several witnesses stated that Hamilton also struck the victim, either with a gun or with his fists. During the fight, a shot was fired and everyone fled. All but one of the witnesses to the shooting also testified that the defendant alone shot the victim. The testimony established that the victim ran along the street as the defendant moved into the middle of the street, dropped to his knees and fired two to four shots at the victim. The state rested its case on November 1,1999, without calling Hamilton to testify against the defendant.

The defense began its case on November 2,1999. The next day, the defendant informed the court, outside of the presence of the jury, that he intended to call Hamilton to the witness stand. Hamilton’s attorney informed the court that Hamilton’s case was pending and that he intended to refuse to answer questions on fifth amendment grounds. The defense then called Hamilton to the witness stand, and he invoked his fifth amendment protections. The court upheld Hamilton’s assertion of his fifth amendment protections. It also denied the defendant’s request to have Hamilton exercise that privilege with the jury present.

Relying on State v. Williams, 200 Conn. 310, 511 A.2d 1000 (1986), the defendant sought a continuance until after Hamilton’s sentencing, arguing that Hamilton would no longer have a fifth amendment privilege at that time. The defendant contended that by continuing Hamilton’s sentencing until after the defendant’s trial, the state had created an “artificial sentencing date,” preventing the defendant from calling Hamilton as a witness.

In response, the state explained its plea agreement with Hamilton and its bearing on its case against the defendant. Unsure whether the witnesses identified in the file would be available at the defendant’s trial and convinced of the defendant’s responsibility for the killing, the state decided to ensure that it would have the testimony sufficient to convict by offering Hamilton the plea agreement. He agreed, and on May 28, 1999, gave a statement to the police describing the events leading to and including the shooting, and describing his and the defendant’s roles. The plea agreement called for Hamilton to plead guilty to one count of assault in the first degree while leaving the other counts open. On the day that Hamilton was to give his statement, defense counsel informed the state’s attorney that he possessed some “coded” letters written by Hamilton and addressed to the defendant, which he believed inculpated Hamilton in the shooting. The state ordered its inspector to review the letters with Hamilton and thereafter concluded that they contained no inference of admissions by Hamilton.

The state then summarized the situation, stating that “that’s where we stand now. ... He pleaded to one count. It was continued by the court for sentencing to ensure, now it has nothing to do with anything else, to ensure his continued cooperation with me. [The state’s attorney’s office] [didn’t] want to sentence him beforehand for fear he might turn around and say something different.” Ultimately, the state did not call Hamilton to testily. The state informed the court that it decided not to call him because of the last minute availability of testimony from Lawrence and Kevin Pinnette, a witness who came forward subsequent to the Hamilton plea agreement. The prosecutor stated that “[h]ad [the state] had them in the first place, [it] never would have made [the plea] agreement with [Hamilton’s attorney].”

The defendant argued that delaying Hamilton’s sentencing violated the defendant’s due process rights in that his light to defend himself outweighed Hamilton’s rights. In support of his claim, the defendant argued that the state could have given Hamilton immunity or could have called him as its witness. The state responded that it had intended to call Hamilton as a witness, but that Hamilton’s counsel had advised him to invoke the fifth amendment and that the state had not done so.

The court denied the request for a continuance, although it clearly appreciated the complexity of the question involved. The court then granted the defendant’s request that the letters purportedly from. Hamilton to the defendant be marked as exhibits for identification. The defendant called an inspector from the state’s attorney’s office to give testimony authenticating Hamilton’s statement on the theory that it was exculpatory to the defendant and against Hamilton’s penal interest. The state objected to the statement on the ground of inadmissible hearsay, but the court overruled the objection. The court noted, inter alia, that the conspiracy charges against Hamilton still were open, that the statement put Hamilton at the scene of the crime and that it could, therefore, be construed as against his penal interest despite Hamilton’s plea agreement as to the assault charge. The statement described the events leading to and including the shooting and, ultimately, implicated the defendant in the killing.

At sentencing, the defendant sought a judgment of acquittal on the ground that by setting an uncertain, future sentencing date for Hamilton, and denying the defendant’s request for a continuance on that basis, the court deprived him of his due process rights. The court denied the motion, citing its earlier ruling on the motion for a continuance.

We begin by articulating the appropriate standard of review. As the defendant correctly notes, the Williams court stated that “the matter of a continuance is traditionally within the discretion of the trial judge which will not be disturbed absent a clear abuse. ... It is not every denial of a request for a continuance that violates due process. . . . [T]he right of a defendant to a continuance is not absolute . . . .” (Citations omitted; internal quotation marks omitted.) Id., 320. We also note that subsequent to Williams, our Supreme Court clarified the procedure for evaluating a court’s exercise of discretion in ruling on a motion for a continuance. “To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Citation omitted; internal quotation marks omitted.) State v. Hamilton, 228 Conn. 234, 240, 636 A.2d 760 (1994), citing State v. Beckenbach, 198 Conn. 43, 47-48, 501 A.2d 752 (1985). The Hamilton court went on to note with approval a list, albeit not an exhaustive one, of several factors that the trial court may consider in exercising its discretion. The factors include “the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; the likelihood that the denial would substantially impair the defendant’s ability to defend himself . . . .” (Emphasis added.) State v. Hamilton, supra, 240.

The Supreme Court clarified “that an appellate court should limit its assessment of the reasonableness of the trial court’s exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.” Id., 242. Accordingly, in addressing the defendant’s arguments we also will address the relevant factors previously listed that the record before us discloses.

The defendant, quoting State v. Williams, supra, 200 Conn. 320, argues on appeal that once the court permitted Hamilton to invoke his fifth amendment privilege during the defendant’s trial, “the unique interest that the defendant had in a continuance in order to get that testimony before the trial jury became more significant.” Although the Williams court found that the trial court in that case had abused its discretion in denying the defendant’s motion for a continuance; id., 321; it did so after considering at least two of the factors that later were collected and discussed in Hamilton. The sole fact that the codefendant invoked the fifth amendment privilege in this case, while clearly calling for the court’s careful resolution of the issue presented, does not necessarily demand that the court grant the continuance. See State v. Bethea, 167 Conn. 80, 84-87, 355 A.2d 6 (1974); State v. Mendez, 45 Conn. App. 282, 286-87, 696 A.2d 352 (1997). After our review, we conclude that Williams is distinguishable on its facts from the case at hand.

First, we note that in Williams the joint trial of the defendant and his codefendant was severed on the defendant’s motion. Specifically, the defendant wanted to call his codefendant to testify, consistent with the defendant’s previous statement to the police, that he lacked an accomplice in the robbery for which they both were accused. State v. Williams, supra, 200 Conn. 313-14.

Here, the defendant waited until the state concluded its case to make his request, thereby implicating the timeliness of the request. The defendant argues that although he did not attempt to call Hamilton until the state rested its case on November 1, 1999, that should not count against him, as he had assumed all along that the state would call Hamilton. He also argues that the state’s tactical choice not to call Hamilton should not be sanctioned as a means to prevent the defendant from calling that witness. The defendant argues that “[t]his was the first opportunity to raise this issue, as the state had not advised the defense of its changed position prior to its decision not to call Hamilton as a witness.”

In response, the state places the responsibility squarely on the defendant for any perceived disadvantage that was worked on him due to the timing of his request. The state notes that the defendant made no effort to secure Hamilton’s testimony until the trial was almost over. Specifically, the state argues that the defendant made a tactical choice in relying on Hamilton to cooperate and testify for the state, which would have permitted the defendant to cross-examine Hamilton at that time. The fact that the state decided not to call him is no more the genesis of the defendant’s perceived disadvantage than the defendant’s failure to urge the court to schedule his trial after Hamilton’s sentencing. We agree with the state that “had the defendant, who had Hamilton’s ‘coded’ letters in May of 1999, deemed Hamilton’s testimony critical to his defense, he could have” sought the schedule change and avoided the added burden of asking the court for a midtrial continuance.

Williams also addressed the “likelihood that the denial would substantially impair the defendant’s ability to defend himself.” (Internal quotation marks omitted.) State v. Hamilton, supra, 228 Conn. 240. In Williams, the court specifically stated that after sentencing, the witness “could no longer have validly invoked his federal constitutional fifth amendment privilege against self-incrimination as to those crimes for which he was sentenced.” State v. Williams, supra, 200 Conn. 321. Here, the defendant appears to assume that had his case been continued until after Hamilton’s sentencing, Hamilton would then have had no valid reason to assert his fifth amendment privilege. The state correctly points out, however, that the defendant failed to make a record that Hamilton would waive his fifth amendment privilege after his sentencing pursuant to his plea agreement.

The state also argues that Hamilton may well have continued to rely on his fifth amendment privilege. The state supports that contention with several salient points. Among them are that had Hamilton confessed to having shot the victim, the state could have prosecuted him on the murder charge; see In re Keijam T., 226 Conn. 497, 504-505, 628 A.2d 562 (1993); or on other charges that remained open pursuant to the plea agreement. The court appears to have considered that scenario less likely than Hamilton’s simply refusing to testily because the state probably would leave the other charges open to ensure his cooperation, namely, testilying consistently with his statement. The state also argues that if Hamilton gave testimony inconsistent with the statement that he made in his plea agreement implicating the defendant, he might have been subject to perjury charges.

Other aspects of the record reveal the court’s consideration of the “likelihood that the denial [of the request for a continuance] would substantially impair the defendant’s ability to defend himself . . . .” State v. Hamilton, supra, 224 Conn. 240. The defendant claims that Hamilton’s testimony was crucial in that it would have introduced exculpatory testimony. Specifically, the defendant argues that Hamilton made an admission in his coded letters that he had committed the crime. The state responded that the defendant failed to make any showing that the letters contained exculpatory information. The state, through its inspector, reviewed the letters with Hamilton and stated that “[Hamilton] gave me an interpretation through [the inspector,] which throws out any inference of admissions.” The record before the court provided no showing that the proposed testimony would exculpate the defendant.

In contrast, the trial court in Williams was aware from the commencement of the trial in that case of the intention of the defendant to rely on known exculpatory testimony. In Williams, the state turned over the “exculpatory” information to the defense during discovery at the defendant’s request. Also, the court was aware from the start of trial of the defendant’s intention to rely on that testimony. Here, although the defendant initially had asserted the “exculpatory” character of the letters with the prosecutor, he did not indicate that he intended to rely on those letters or on Hamilton’s testimony until the state had rested its case. On the basis of the record before the court at the time it ruled, we conclude that the likelihood that the denial of the defendant’s motion would substantially impair the defendant’s ability to defend himself was slim.

We now turn to the defendant’s argument that the court abused its discretion in denying his request for a continuance because it incorrectly characterized the likely delay of the continuance as “essentially” for an indefinite duration. See footnote 7. This court and our Supreme Court have upheld denials of requests for continuances when they were sought for indefinite durations. See, e.g., State v. Gordon, 197 Conn. 413, 424A-C, 504 A.2d 1020 (1985); State v. Mendez, supra, 45 Conn. App. 285-86. Here, the court noted that it had no assurance that Hamilton would testify even if it granted the continuance because the state would likely revoke the plea agreement if Hamilton’s testimony contradicted his statement. Furthermore, the court noted that if the plea agreement with Hamilton collapsed, Hamilton’s trial would then begin and the defendant’s continued trial would be uncertain. The court concluded that “I think under all these circumstances, I will not continue this case until such time [as] Mr. Hamilton may be sentenced, because I think that’s, essentially, an indefinite continuance based on the circumstances that [the prosecutor] explained . . . . [S]o, we could just have an infinite period of time. Hamilton wouldn’t be sentenced, and [the defendant] would never be tried. I don’t think that’s — and justice wouldn’t be served for anybody under those circumstances.” (Emphasis added.) We decline to characterize the court’s conclusion as to the likely length of the delay as improper. See State v. Hamilton, supra, 228 Conn. 240.

On the basis of our review of the factors that the court considered or of which it was aware at the time of its ruling, we cannot conclude that the court’s denial of the request for a continuance was arbitrary or unreasonable under the circumstances of the case. Therefore, the corut did not abuse its discretion in denying the defendant’s request until the completion of Hamilton’s sentencing. See id., 249.

II

The defendant next claims that the court violated his constitutional rights when it enhanced his sentence pursuant to § 53-202k with an additional five year consecutive term without first instructing the jury on the commission of a class A, B or C felony with a firearm. We are not persuaded.

The following additional facts are relevant to our resolution of the defendant’s claim. During its charge, the court instructed the jury that it could convict the defendant as an accessory. It then charged the jury that a “dangerous instrument,” for the purposes of conviction of assault in the first degree under § 53a-59 (a) (1), “is defined by statute as any instrument or thing, which, under the circumstances in which it is used, is capable of causing death or serious physical injury.” The court then summarized the evidence. The court did not instruct the jury to make any findings under § 53-202k, and the state concedes as much. The defendant was convicted of assault in the first degree and conspiracy to commit assault in the first degree. At sentencing, the court, not the jury, made the requisite factual determination that the defendant had used a firearm in committing a class A, B or C felony.

The defendant concedes that he did not object to the court’s imposition of the sentencing enhancement during sentencing and requests that we review his claim under Practice Book § 60-5 or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). His claim is appropriate for review under Golding. See State v. Davis, 255 Conn. 782, 793 n.10, 772 A.2d 559 (2001).

We note at the outset that the record is adequate to review the claim and that it is of constitutional magnitude because it alleges the violation of a fundamental right. “An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. . . . [Our Supreme Court] has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial.” (Internal quotation marks omitted.) State v. Brown, 60 Conn. App. 487, 493, 760 A.2d 111 (2000), aff'd, 259 Conn. 799, 792 A.2d 86 (2002). For the purposes of our analysis, we discern no relevant distinction between an improper instruction, as in Brown, and the lack of any instruction in the case at hand.

With regard to the third Golding factor, we again note that the state concedes that the court did not instruct the jury on § 53-202k, and we therefore must conclude that a constitutional violation clearly exists. See id. We also note that the state concentrates its argument solely on the harmlessness inquiry. The defendant disputes the state’s position as to whether harmlessness analysis is appropriate, although he addresses the issue in the alternative. Therefore, as a threshold issue, we discuss whether the violation complained of is subject to harmless error analysis. If so, we must then consider, pursuant to the fourth Golding factor, whether the state has proved harmlessness beyond a reasonable doubt.

Connecticut case law is clear on the question of whether harmlessness analysis is appropriate in cases such as this one. In State v. Cooper, 65 Conn. App. 551, 574, 783 A.2d 100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001), we reviewed the relevant federal as well as Connecticut case law and concluded that the United States Supreme Court’s silence on the issue in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), notwithstanding, failure by a court to have the jury determine whether the state proved that the defendant is subject to a sentence enhancement under § 53-202k can constitute harmless error. See State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000).

In assessing whether the failure to instruct on the elements of § 53-202k is harmless beyond a reasonable doubt, this court is bound by the two-pronged test discussed in State v. Davis, supra, 255 Conn. 794-96. “A jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 794, citing Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).

We note initially that § 53-202k applies, with limited exceptions, to “[a]ny person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm . . . .” (Emphasis added.) General Statutes § 53-202k. The jury’s finding that the defendant was guilty of having committed assault in the first degree, a class B felony, necessarily satisfied the first requirement. See State v. Beall, 61 Conn. App. 430, 435, 769 A.2d 708, cert. denied, 255 Conn. 954, 772 A.2d 152 (2001). The pertinent question, therefore, is whether the court’s determination that the defendant used, displayed or represented that he possessed a firearm is harmless under State v. Montgomery, supra, 254 Conn. 694. See State v. Roman, 67 Conn. App. 194, 210-11, 786 A.2d 1147 (2001), cert. granted on other grounds, 259 Conn. 920, 791 A.2d 567 (2002).

Citing State v. Velasco, 253 Conn. 210, 231, 751 A.2d 800 (2000), the defendant argues in his principal brief that the failure to instruct was not harmless because the jury’s guilty verdict was “not contingent on the defendant’s use of a firearm.” Although we agree that the defendant’s conviction was not contingent on the jury’s finding that he used a firearm, we conclude nevertheless that the court’s failure to instruct the jury was harmless beyond a reasonable doubt.

The defendant argues that not only did the court fail to instruct on the elements of § 53-202k, but that the court’s instructions as to the assault and conspiracy charges did not even mention the word firearm. The state argues that the evidence that the defendant or others beat the victim on the head with a pistol was overwhelming and uncontested, and that this satisfies the second element of § 53-202k, namely, that he used a firearm.

In support of its position, the state makes two relevant arguments. It first argues correctly that there was no evidence of any sort of dangerous instrument other than a pistol that was used to beat the victim. We note that firearm is a term defined by statute to include pistol. The state presented five witnesses who testified that prior to the shooting, the defendant was armed with a gun. Five of those witnesses stated that they saw the defendant pistol-whip the victim. Lipscome, the only witness who did not testify about that, testified that he arrived after the shooting.

The state also argues correctly that the defendant did not refute the state’s position that a pistol was used in the assault. The defendant asserted that there was no conspiracy to beat the victim and that Hamilton had acted alone. The defendant cannot, however, render the evidence that he used a firearm controverted for the purpose of harmless error analysis by claiming simply that another participant committed the crime. Compare State v. Beall, supra, 61 Conn. App. 435-36 (evidence uncontroverted that defendant used firearm where he did not dispute evidence that victim was shot, but rather claimed he was not shooter), with State v. Velasco, supra, 253 Conn. 234 (where “defendant not only denied any involvement in the shooting, but specifically denied being in possession of a firearm” and stated that he gave it to someone else, question of whether he used firearm a contested issue).

For the reasons previously set forth, we conclude that the record establishes beyond a reasonable doubt that the omitted element, namely, that the defendant used, displayed or represented that he possessed a firearm, was uncontested and supported by overwhelming evidence. We conclude that the jury would have found that the defendant was subject to a sentence enhancement under § 53-202k had it been instructed properly on the elements of that section and permitted to determine whether the state had satisfied its burden of proof. In sum, the impropriety claimed by the defendant was harmless beyond a reasonable doubt. See State v. Cooper, supra, 65 Conn. App. 577. Therefore, the defendant’s claim fails under the fourth prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state also charged the defendant with murder in violation of General Statutes §§ 53a-54a, 53a-8 and 53-202k, conspiracy to commit murder in violation of General Statutes §§ 53a-48, 53a-54a and 53-202k, and tampering with a witness in violation of General Statutes § 53a-151. The jury acquitted him of the charge of conspiracy to commit murder, and failed to reach a verdict on the murder and tampering charges. The court declared a mistrial as to those two charges.

       “The sixth-amendment right of a criminal defendant to have compulsory process for obtaining witnesses in his favor is applicable to state criminal proceedings under the due process clause of the fourteenth amendment . . . and included within its scope is the right to offer the testimony of witnesses. The rights of compulsory process and due process of law may be violated by the denial of a continuance which prevents a defendant from presenting witnesses on his behalf.” (Citation omitted.) State v. Bethea, 167 Conn. 80, 82-83, 355 A.2d 6 (1974), citing Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

       Nelson stated that he heard the shots fired only as he ran. We note that Lindsey testified that he was not present at the time of the shooting and that he related what other people had told him. Nevertheless, he testified that he “saw” Hamilton, after the defendant had shot the victim, walk over to the victim, who was lying in the street, and that Lindsey then “heard” two shots.

       The fifth amendment to the United States constitution provides in relevant part: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”

       Upon calling Hamilton to the witness stand, the defendant asked him about the night of the shooting, the existence of the conspiracy and whether he had received consideration for his guilty plea.

       One of the letters contained the index to the code.

       In its ruling, the court stated to defense counsel: “This is a matter for practicality here. Let’s say that I say all right, we are going to continue this case until Mr. Hamilton is sentenced. And then let’s say the state says in Hamilton’s case, this is hypothetical of course, well, we’re withdrawing our offer because it’s contingent on Hamilton cooperating in the [defendant’s] case and Hamilton is not cooperating. So, he can withdraw his plea and we put him on trial.”
      After further colloquy with the defense and the state, the court issued its ruling: “I think, under all these circumstances, I will not continue this case until such time [as] Mr. Hamilton may be sentenced because I think that’s, essentially, an indefinite continuance based on the circumstances that [the prosecutor has] explained. . . . [S]o, we could just have an infinite period of time. Hamilton wouldn’t be sentenced, and [the defendant] would never be tried. I don’t think that’s — and justice wouldn’t be served for anybody under those circumstances.”

       Defense counsel stated the grounds for the admission of Hamilton’s statement as follows: “[I]t either involves Hamilton [as] a conspirator or it doesn’t. Either way, I would argue that it’s admissible. If it doesn’t involve the conspirator, then it’s exculpatory to my client. If it does involve him as a conspirator, then it goes to the weight of the evidence that somebody else committed the crime.”
      We note that the defendant on appeal characterizes the import of the statement differently. He complains that because the court’s prior denial of the request for a continuance barred him from questioning Hamilton, he was “reduced to presenting Hamilton’s statement, which clearly inculpated [the defendant] and exculpated [Hamilton].”

       The defendant had the state’s inspector read from Hamilton’s statement, which related Hamilton’s recollection that he “saw [the defendant] in the middle of Adams Street with a gun, and I heard two or three shots.”

       We note that although Hamilton informs us that the list is not exhaustive, we construe it not to be a checklist representing those factors that must, at a minimum, be discussed. Rather, it is a list of highly relevant factors that we, as an appellate court, may consider and should view as particularly persuasive in evaluating the trial court’s exercise of its discretion.

       Although we note that the Supreme Court went on to discuss factors useful in assessing prejudice to the defendant in the event of an abuse of the court’s discretion; State v. Hamilton, supra, 228 Conn. 241; in light of our conclusion as to the trial court’s exercise of its discretion, we need not apply those factors for the disposition of the defendant’s claim.

       The defendant implies that the state was disingenuous in naming Hamilton as a witness and then deciding not to call him at the last minute because of the availability of the two witnesses, Pinnette and Lawrence. The defendant cites the prosecutor’s statement to the court that had he known in May, 1999, that they would be available to testily, he “never would have made [the plea agreement with [Hamilton’s defense counsel].” Then, the defendant refers this court to the fact that the prosecutor “admitted that Pinnette and Lawrence were a part of the three year old case file.”
      In addressing that point, we simply refer to the prosecutor’s explanation to the court that he “didn’t know if they would show up here or if they were back in Jamaica somewhere. That’s where they usually go. And if I was on trial without any evidence at all, I would have Mr. Hamilton. I didn’t know about the other two witnesses.” We also note that the shooting occurred in 1996, and the state explained to the court its apparent concern over the availability of its other known witnesses after the intervening years. After noting that he was not the original prosecutor on the case, the prosecutor explained that “[ljooking the whole file over, I figured I needed more than what I had and I went to [Hamilton’s defense counsel] and offered him to take his client on one count of assault in the first degree, leaving the other counts open in return for a statement from him which would implicate the [defendant]. Because I figured the evidence I did have against [the defendant], while it was good evidence, I wasn’t sure at trial time if it would be available .... I also knew that Mr. Hamilton was in the lockup and couldn’t make bail, so he would be available to me if I needed him.”

       The defendant in his brief argues that the court, sua sponte, improperly addressed that scenario by suggesting a hypothetical reason to deny the request for a continuance and then, “having done so, it then denied the request.” The defendant, citing State v. Cox, 50 Conn. App. 175, 182, 718 A.2d 60 (1998), aff'd, 251 Conn. 54, 738 A.2d 652 (1999), characterizes the court’s conduct in that regard essentially as highly inappropriate advocacy. We note, however, that the court relied on the prosecutor’s statement in casting its “hypothetical,” and we decline to regard the court’s prediction of the litigation, had it granted the continuance, as advocacy on the part of the court. The prosecutor explained to the court that “[his predecessors] [didn’t] want to sentence [Hamilton] beforehand for fear he might turn around and say something different. ” In our view, the court simply acknowledged the practical realities of the case on the basis of the information it had at that time.

       In Golding, our Supreme Court held that a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental righl; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. Because we conclude that the defendant has met his burden under Golding, we need not afford plain error review for our resolution of his claim.

       In Apprendi, the United States Supreme Court held, without discussing harmlessness, that where the statute in question has the effect of increasing the otherwise allowable statutory maximum penalty for the underlying conduct, the predicate facts must be submitted to the jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, supra, 530 U.S. 490.

       We note that the defendant refers us to our Supreme Court’s decision in State v. Cator, 256 Conn. 785, 805-806, 781 A.2d 285 (2001). Without discussing harmlessness, our Supreme Court vacated the trial court’s sentence enhancement because the trial court failed to instruct the jury as to the elements of General Statutes § 53-202k. We also note, however, as does the defendant, that in the absence of discussion of the issue in Cator, we are bound by the earlier decisions of our Supreme Court in State v. Davis, supra, 255 Conn.782, and State v. Montgomery, 254 Conn. 694, 759 A.2d 995 (2000). See, e.g., Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996) (reviewing court maynotreexamine,reevaluate Supreme Court precedent).

       Although the defendant initially argued that the jury might have found that another participant, and not the defendant, had committed the crime, he now concedes that accessories as well as principal actors are subject to sentence enhancement under General Statutes § 53-202k. See State v. Davis, supra, 255 Conn. 787.

       General Statutes § 53a-3 (19) provides: “ ‘Firearm’ ” means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged . . . .”

       We decline to review the defendant’s claim under the plain error doctrine. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quot ation marks omitted.) State v. Whipper, 258 Conn. 229, 279-80, 780 A.2d 53 (2001); see Practice Book § 60-5. The defendant has not met his burden.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SOLOMAN MAYE
    (AC 21814)
    Dranginis, Bishop and Healey, Js.
    Argued March 21
    officially released July 9, 2002

      E. Gregory Cerritelli, with whom, on the brief, were Glenn M. Conway and Tara L. Knight, for the appellant (defendant).

      Julia K. Mahoney, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Kim McCabe, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Soloman Maye, appeals from the judgment of the trial court revoking his probation and imposing a four year sentence. On appeal, the defendant claims that the court (1) deprived him of his federal and state constitutional rights to cross-examine and confront witnesses in denying his request to conduct an in camera inspection of a witness’ psychiatric records and (2) improperly found that he violated a condition of his probation on the basis of allegations that were not contained in the violation of probation warrant in derogation of his due process rights. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. On January 28, 1998, the trial court sentenced the defendant to seven years incarceration, execution suspended, with four years of probation, following the defendant’s guilty plea to the crime of possession of a narcotic substance in violation of General Statutes § 21-279 (a). As conditions of his probation, the defendant agreed, in pertinent part, not to violate any criminal laws, to report to his probation officer as directed, to permit his probation officer to visit him when needed and to keep the probation officer informed of his whereabouts.

Over two years later, during the afternoon of May 30, 2000, a woman, while driving a vehicle and looking visibly upset, motioned for Officer Karen Roberts of the New Haven police department, who was driving behind her in a marked police vehicle, to pull over to the side of the road. The woman, who identified herself as Passion Harris, told Roberts that the defendant, her boyfriend and the father of her two children, had hit her a few moments earlier. Roberts noticed that Harris’ neck was discolored and that her shirt was tom. Harris elaborated that she was sitting in her car about to pull out of a driveway when the defendant grabbed the steering wheel. As she drove away, Harris claimed that the defendant continued to hold onto the steering wheel, punched her and ripped her shirt. Harris then lost control of the car and drove into a parked car.

Roberts went to 233 Howard Street in New Haven, where the incident occurred, and observed the damaged parked car. She also observed the damage to Harris’ vehicle. Harris later explained to another police officer, Joe Dease, that the defendant attempted to choke her. Dease also observed red marks on Harris’ neck. Two other New Haven police officers, including Dease, found the defendant that afternoon. The defendant was arrested and charged with reckless endangerment in the first degree and assault in the third degree.

The defendant’s probation officer, Brenda Westberry, subsequently prepared a violation of probation warrant. In the warrant, Westberry alleged that she had notified the defendant to report to her office on May 2, 2000, and on May 30, 2000, and that the defendant had failed to appear on both occasions. The warrant further described the incident with Harris and stated that the defendant “is considered to be in violation of his probation based on his noncompliance with the following: ‘Do not violate any law.’ ”

A probation revocation hearing ensued. The trial court found that the defendant had violated his probation by failing to report to his probation officer on May 2 and May 30,2000, and by violating the law with respect to the altercation with Harris. The trial court committed the defendant to the custody of the commissioner of correction for a period of four years. Additional facts will be set forth where necessary to the issues raised.

I

The defendant first claims that the court deprived him of his constitutional right to confront and cross-examine witnesses when it denied his request to conduct an in camera inspection of Harris’ psychiatric records. We are not persuaded.

The following additional facts are relevant to our resolution of this issue. Prior to the hearing, defense counsel obtained a letter written by Harris to the defendant detailing that she suffered from mental illness. Defense counsel also came into possession of a letter from Catholic Family Services stating that Harris receives treatment for depression. During the hearing, but before the state called Harris as a witness, defense counsel sought a continuance of the trial until he could obtain Harris’ psychiatric records and further requested that the trial court conduct an in camera inspection of those psychiatric records. The trial court denied the defendant’s motion at that time.

During direct examination, Harris acknowledged that she took medication for her mental illness. Harris further testified that the medications helped to “clarify things and [make] things calmer,” but that they did not interfere with her ability to testify truthfully. Harris also stated that she would not consent to an inspection of her mental health records.

The defendant introduced into evidence during cross-examination a letter written by Harris to him and also a document prepared by a therapist at Catholic Family Services. In the letter, Harris wrote that she attended counseling and that she might be “crazy.” The document prepared by a social worker at Catholic Family Services provided that Harris sought treatment for and suffered from “major depressive disorder,” and that bipolar disorder was “rule[d] out.” The defendant proceeded to question Harris about her mental illness and the treatment she had sought. Harris admitted that she had anger management problems and that she had not taken her medication on May 30, the date of the incident with the defendant. Harris further testified that when she did not take her medication, she sometimes became angry and might yell, scream and lie. Moreover, Harris stated that a physician at the Hospital of Saint Raphael had told her that she might have schizophrenia, but that he never followed through with any tests or definite diagnosis.

At the conclusion of his cross-examination of Harris, the defendant renewed his motion for the trial court to conduct an in camera inspection of Harris’ mental health psychiatric records on the ground that they might contain information related to Harris’ ability to tell the truth and to perceive the events of May 30, 2000, accurately. Particularly, the defendant argued that the in camera review could reveal the effect of the medication on Harris’ ability to tell the truth. In response, the state contended that Harris had been completely forthcoming with defense counsel, had answered all of his questions and that “[t]his is a specific attempt to circumvent her testimony and have it stricken, because when those records come in, Your Honor, she is not going to agree to your doing an in camera inspection . . . .” The trial court then ordered briefs on the issue.

After reviewing the parties’ briefs, the court denied the defendant’s request for an in camera inspection of Harris’ mental health records. In denying the request, the court stated that it found Harris’ “testimony to be lucid; I found her testimony to have — to consist of very few inconsistencies with . . . the observations made by the initial police officer; her observations of the victim at the time; her observations of the damage to the victim’s car, as well as to the other car at the alleged scene of this event; her observations as to the red marks around the neck, which were not testified to by the victim, but the victim did explain how those red marks most likely took place .... I am also aware of Ms. Harris’ potential conflict in this matter. I’m aware that she has a child by the defendant, if not two children. . . . Based on her testimony, it’s obvious that there has been a long-standing relationship .... She indicated on the record that she has gone to a number of hospitals . . . that she has had a number of . . . theoretical diagnoses . . . that she was supposed to take medication, that during this time she did not take medication, and that when she doesn’t take medication she’s prone to anger and that, on occasion, she lies.

“I find, however, that her testimony being corroborated, as it is, not only by officers at the scene but by the admissions that the defendant himself gave to the police officers. I am impressed most of all by the amount of corroboration independent of her testimony that exists .... There is no indication, in my mind, that her ability to recollect the facts of this occasion accurately has been affected in any way by any theoretical medical illness.” The trial court further noted that the letter from Catholic Family Services, which the defendant entered into evidence, revealed that Harris has “issues with depression, mood swings, anxiety and anger. . . . That, to me, does not translate into someone who cannot accurately depict the events of this occasion. In short, I feel the defense has failed to meet the threshold. ... I am singularly impressed with the lack of inconsistencies. . . . I’m not going to review [the records] at this time unless Ms. Harris wishes me to review them but that’s — that’s the ruling of this court.”

On appeal, the defendant claims that the trial court’s denial of his request to conduct an in camera inspection of Harris’ psychiatric records deprived him of his constitutional right of confrontation because Harris’ “ability to observe the events of May 30, 2000, and whether or not she had fabricated the allegations” was central to this case. We are not persuaded and conclude that the trial court properly ruled that the defendant had not made the required preliminary showing to warrant an in camera inspection of mental health records.

“The trial court is vested, in the first instance, with the responsibility of resolving the inherent tension between the broad privilege that our state law affords to a witness concerning the confidentiality of his or her psychiatric communications and records, including those pertaining to the diagnosis, prognosis or treatment for alcohol abuse or alcoholism; see General Statutes (Rev. to 1991) §§ 17-155bb (b) (recodified at General Statutes § 17a-630 [c]), 52-146d, 52-146e; and a criminal defendant’s constitutional right to reveal to the [fact finder] facts about a witness’ mental condition that may reasonably affect that witness’ credibility. . . . The defendant’s right of cross-examination does not allow him to discredit and impeach in whatever way, and to whatever extent, the defense might wish. . . . Before a defendant may have access to privileged records that he believes contain information that would allow him to impeach a witness’ ability to comprehend, know or correctly relate the truth, [he] must make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness.” (Citations omitted; internal quotation marks omitted.) State v. Joyner, 225 Conn. 450, 478, 625 A.2d 791 (1993). “If in the trial court’s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken.” (Internal quotation marks omitted.) State v. Howard, 221 Conn. 447, 457, 604 A.2d 1294 (1992). We review the trial court’s determination that the defendant failed to meet his preliminary showing and its subsequent refusal to conduct an in camera inspection under an abuse of discretion standard. State v. Richardson, 204 Conn. 654, 663, 529 A.2d 1236 (1987).

We note at the outset that a history of mental illness does not automatically impugn a witness’ ability to testify truthfully and to relay events accurately. Moreover, the existence of a psychiatric disorder does not “automatically [make] a witness fair game for disclosure of psychiatric records to a criminal defendant.” State v. Joyner, supra, 225 Conn. 479.

During cross-examination, Harris testified at length about her mental illness, the treatment sought and the effect that the medication had on her behavior. The trial court granted the defendant complete latitude to question Harris about these topics, particularly regarding her veracity and anger management issues when not taking the medications.

Significantly, and central to the trial court’s determination here, Harris’ allegations against the defendant were all corroborated by the observations made by the police officers involved in the case. The police officers noticed that Harris had red marks on her neck, that her shirt was tom and that her vehicle was damaged. Moreover, the defendant’s own admission to police officers that he engaged in a physical altercation with Harris also substantiated Harris’ version of events.

In addition, the trial court noted, and we agree, that the document from Catholic Family Services that the defendant presented as exhibit D indicated that Harris “has issues with depression, mood swings, anxiety and anger,” but that “does not translate into someone who cannot accurately depict the events of this occasion.” While the defendant thoroughly questioned Harris, he neither subpoenaed Harris’ counselor at Catholic Family Services, whose identity was known to him, nor offered any other medical or other testimony to establish a connection between Harris’ depression and her reliability as a witness. See id.

We, therefore, conclude that the court properly refused to conduct the requested in camera inspection of Harris’ mental health records. On the basis of the record before us, we conclude that the defendant has failed to make a preliminary showing that there is a reasonable ground to believe that the failure to produce those records likely impaired his right to impeach the witness.

II

The defendant next claims that court improperly found that his failure to report to his probation officer constituted a violation of a condition of his probation because he lacked sufficient notice that his failure to report formed a basis of his probation revocation hearing. Specifically, the defendant claims that the violation of probation arrest warrant did not provide adequate notice that his failure to report to his probation officer formed one of the grounds for his probation revocation hearing. We are not persuaded.

The following additional facts are pertinent to this issue. In the defendant’s violation of probation arrest warrant, it was alleged that, after receiving notice to . appear on both May 2 and May 30, 2000, the defendant failed to report to his probation officer. Moreover, the warrant provided that as a result of the altercation with Harris on May 30, 2000, the defendant was arrested for assault in the third degree and reckless endangerment in the first degree. Accordingly, the warrant stated that the defendant “is considered to be in violation of his probation based on his noncompliance with the following: ‘Do not violate any law.’ ”

At the commencement of the hearing, the defendant argued that he lacked notice that his failure to appear on May 2 and May 30, 2000, formed one of the grounds for the potential revocation of his probation. Specifically, the defendant contended that because the warrant provided that he is considered to be in violation of his probation due to his noncompliance with the proscription against violating any law, he was unaware that his failure to appear formed the basis of the proceedings as well. The trial court replied that the warrant provided sufficient notice to the defendant in that it explicitly enumerated his failure to report to his probation officer on two occasions.

In announcing its finding that the defendant violated conditions of his probation, the court stated: “[The defendant] was not to violate any law; he was to report to his probation officer. And I consider those two issues to be the subject of this violation. Now, I know the defense claims otherwise, or at least has during the course of the hearing, that because of the wording ‘Do not violate any law,’ I should only consider whether or not there was some kind of altercation between Ms. Harris and the defendant. I indicated before, and I’ll indicate again, I think the defendant is on fair notice in that it is also alleged in the warrant that he failed on two occasions to report to his probation officer. So I think that merely because of the words ‘do not violate any law,’ I think the — the substance of the arrest warrant application rules here and there is clearly more than one violation; there’s actually, technically, I suppose, three violations. I find that the — to a fair preponderance of the evidence that the defendant has violated the terms of his probation” on all three grounds.

We note at the outset that the defendant does not challenge the court’s conclusion that his actions toward Harris constituted a violation of the condition of his probation that he not violate any law. Therefore, because the defendant does not contest the court’s finding that he violated his probation by committing a crime, it is unnecessary to address the defendant’s argument that he was not afforded adequate notice that he faced probation revocation on the alternative ground of his failure to report. See State v. Samuel, 57 Conn. App. 64, 71, 747 A.2d 21, cert. denied, 253 Conn. 909, 753 A.2d 942 (2000). We will, nonetheless, take this opportunity to resolve this issue.

“In Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the United States Supreme Court held that the minimum requirements of due process include ‘(a) written notice of the claimed violations of [probation] ....’” State v. Strickland, 42 Conn. App. 768, 781, 682 A.2d 521 (1996), rev’d on other grounds, 243 Conn. 339, 703 A.2d 109 (1997). General Statutes § 53a-32 (a) further provides in relevant part: “At such [probation violation] hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge . . . .”

The defendant claims that the statement contained in the warrant that “the offender is considered to be in violation of his probation based on his noncompliance with the following: ‘Do not violate any law,’ ” did not sufficiently notify him that his failure to report also formed a basis for the revocation of his probation. We disagree.

A thorough review of the record reveals that the defendant possessed sufficient notice that his probation revocation hearing was based on both his noncompliance with the provision that he “not violate any law” and his failure to report to his probation officer on May 2 and May 30, 2000. The violation of probation arrest warrant set forth at the outset the various conditions of his probation to which the defendant agreed to adhere to, including that he should not violate any law and that he must report as his probation officer directs. Moreover, in addition to detailing the incident involving Harris, the arrest warrant explicitly described the occasions when the defendant was directed to report to his probation officer and subsequently failed to appear. The defendant did not request a bill of particulars to clarify the basis of the probation revocation proceeding. Moreover, at the commencement of the hearing, the state read into the record the arrest warrant and stated that it was proceeding on the grounds that the defendant failed to report to his probation officer and violated the law based on the incident with Harris. In fact, during the hearing the defendant’s probation officer testified regarding the defendant’s failure to report on May 2 and May 30, 2000.

Under those circumstances, we conclude that the defendant received adequate notice regarding all of the grounds on which he was ultimately found to have violated his probation. See State v. Pierce, 64 Conn. App. 208, 214-15, 779 A.2d 233 (2001); State v. Repetti, 60 Conn. App. 614, 617-18, 760 A.2d 964, cert. denied, 255 Conn. 923, 763 A.2d 1043 (2000). When we read the warrant in its entirety, and not in isolated parts, it is clear that the defendant was on notice that his failure to report to his probation officer was part of the basis for the probation revocation proceeding. Further, the hearing was based solely on the allegations contained in the warrant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant asserts his rights under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. Because the defendant did not separately address his state constitutional claim, we resolve this issue only on federal constitutional grounds.

       In so concluding, we mention the state’s concern that, given Harris’ relationship with the defendant and the fact that the defendant is the father of Harris’ children, Harris would have used the issue of the in camera inspection as a means to “circumvent testifying in this case.” Had the trial court permitted an in camera review of Harris’ records, Harris stated that she would have refused to consent to the inspection, thereby resulting in the striking of the testimony of this principal witness.

       The defendantphrases this argument as being that the trial court “improperly found that he violated the terms of his probation because the basis for finding him in violation was beyond the four comers of the arrest warrant.”

       The warrant additionally detailed several prior occasions when the defendant failed to report to his probation officer and neglected to inform the probation officer of his address. In fact, on September 14,1998, the defendant was arrested for violation of probation based on his failure to report and, on November 8, 1999, was found in violation of his probation. The trial court, however, did not revoke the defendant’s probation at that time.


text:
    STATE OF CONNECTICUT v. SUSAN PEZZUTI
    (AC 21380)
    Foti, Dranginis and McDonald, Js.
    Argued March 19
    officially released July 9, 2002

      Conrad Ost Seifert, special public defender, for the appellant (defendant).

      Melissa L. Streeto, special deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John Davenport, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Susan Pezzuti, appeals from the judgment of conviction, rendered after a trial to the court, of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2). On appeal, the defendant claims that the trial court improperly (1) found that an $8000 loan to the defendant constituted embezzlement (2) found that a $3500 check payable to a third party evidenced the defendant’s wrongful taking of $3500 and (3) failed to suppress testimonial evidence of a third party and a check payable to her, thereby depriving the defendant of her sixth amendment right to confront the witnesses against her and to present a defense. We affirm the judgment of the trial court.

The court found the following facts. The defendant was hired in 1989 by the board of directors for the Wolcott Organization of Retarded Citizens (Wolcott Organization), a now defunct nonprofit organization dedicated to assisting the mentally handicapped through various programs, including work placements, daily living workshops and residential care. As executive director of the Wolcott Organization from 1989 until her termination in 1997, the defendant was the organization’s highest ranking employee and was in charge of virtually all business operations. She had authority and control over the day-to-day management, financial planning, all assets and funding, payroll, accounts payable, the hiring and firing of employees and all other administrative functions.

During the defendant’s tenure, the Wolcott Organization grew from an organization having approximately ten clients to one having fifty-five clients. A significant portion of the Wolcott Organization’s funding came from contracts with the Connecticut department of mental retardation (department) based on approved operational plans and financial reporting. As the Wolcott Organization expanded, it began to have financial difficulties. In 1997, the department became aware of those difficulties and recommended that the organization seek financial and managerial assistance.

The Wolcott Organization accepted multiple loans from other agencies and individuals, including Wolcott Organization employees, and the defendant’s friends and family. The defendant as well made “loans” to the organization in order to meet monthly expenses, including the payroll. When auditors suggested that the defendant’s loans to the Wolcott Organization had the appearance of impropriety, she arranged to have the loans effected through Wolcott Organization employees acting as strawmen. The bookkeeping in general and for these various loan transactions, including their repayment if any, was substandard at best; they were improperly recorded, not recorded at all and even lost. Bookkeepers and accountants increasingly relied on the defendant, as the sole individual with check writing authority, to explain the records or lack thereof. The Wolcott Organization was financially mismanaged and accumulated significant tax debt.

Webster Bank, which maintained the Wolcott Organization’s checking account, ceased honoring checks endorsed by or payable to the defendant unless they were signed by her in her official capacity after it noticed the defendant’s practice of writing checks for which there were insufficient funds in the organization’s account. As a result, the defendant again used Wolcott Organization employees to cash checks and to deliver the proceeds to her as repayment for her loans.

Finally, in 1997, despite the inadequate record keeping, a bookkeeper found and reported discrepancies between loan repayments and amounts due on those loans to a Wolcott Organization board member. Shortly thereafter, the defendant was terminated. At approximately the same time, the department ceased funding the Wolcott Organization and the organization ceased operations.

The state charged the defendant with two counts of larceny. In the first count, the state charged that the defendant committed larceny in the first degree in violation of § 53a-122 (a) (2) by wrongfully appropriating to herself or another, the property of another in her care, namely the Wolcott Organization, consisting of money the value of which exceeded $10,000. In the second count, the state alleged that she committed larceny in the first degree in violation of § 53a-122 (a) (4) by certifying and attesting to a claim for reimbursement from the department of mental retardation that she knew to be false, in an amount exceeding $2000. The court found the defendant guilty of the first count and acquitted her of the second. The court sentenced the defendant to five years incarceration, execution suspended after one year, and five years probation and ordered her to make restitution for funds totaling $18,725. This appeal followed. Additional facts will be set forth as necessary to address the defendant’s claims on appeal.

I

The defendant’s first claim is that the court improperly concluded that she embezzled an $8000 loan and a $3500 check from the Wolcott Organization. Specifically, she argues that it was “totally impossible” for the trial court to conclude that she embezzled the $8000 from the Wolcott Organization because it is undisputed that the loan was made to her rather than to the Wolcott Organization. With respect to the $3500, she argues that the court reasonably could not have concluded that the check transaction constituted embezzlement. We disagree.

The defendant maintains that these claims are not sufficiency of the evidence claims. We must consider, however, whether the evidence was sufficient to satisfy the elements of the statute to determine whether the court’s legal conclusion was correct.

“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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It 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.) State v. Trotter, 69 Conn. App. 1, 5, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002). “In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the [trier of fact], and, therefore, we must afford those determinations great deference.” State v. Conde, 67 Conn. App. 474, 490, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002). “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 122, 788 A.2d 83 (2002).

A

The following additional facts were found by the court and are not in dispute. Joseph Diaz, in an effort to provide meaningful assistance to the Wolcott Organization, began performing various duties for the Wolcott Organization in 1996 and 1997, such as fundraising, delivering goods and cleaning floors. He also offered financial assistance, including a $600 donation and $6000 loan. Diaz made a third loan of $8000 on May 6, 1997. At that time, the defendant told Diaz that the Wolcott Organization did not have sufficient funds to make payroll, that she wrote her own personal check to cover the expense, but that she also did not have sufficient funds. The defendant gave Diaz a bank account number for an account in which he was to deposit the $8000 that he had offered. He delivered a certified bank check from his credit union to the First Union bank. Upon making the deposit, he discovered that the account was the defendant’s personal account. Diaz testified that in retrospect it was odd that the deposit was made to the defendant’s personal account, but he had trusted her and did not question it. He further testified that it was his intent to give the Wolcott Organization, not the defendant, a loan. The Wolcott Organization, however, never received the $8000 from the defendant, and it paid Diaz $8000 in October, 1998.

On appeal, the defendant argues that the court could not have concluded that the $8000 loan constitutes embezzlement because Diaz voluntarily placed the funds in the defendant’s personal account and the Wolcott Organization never possessed the funds. Therefore, the defendant could not have wrongfully taken or misappropriated the “property of another.” The defendant argues that the facts could not support the court’s conclusion that she committed embezzlement as defined by General Statutes § 53a-119 (1). We do not agree.

Section 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds ten thousand dollars . . . .” Section 53a-119 provides in relevant part: “A person commits larceny when, with the intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes ... (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody. . . .” “The crime of embezzlement is consummated where . . . the defendant, by virtue of his agency or other confidential relationship, has been entrusted with the property of another and wrongfully converts it to his own use. State v. Lizzi, 199 Conn. 462, 467, 508 A.2d 16 (1986); see State v. Harris, 147 Conn. 589, 592, 164 A.2d 399 (1960); State v. Serkau, 128 Conn. 153, 157-58, 20 A.2d 725 (1941); see also W. LaFave & A. Scott, Criminal Law (1972) § 89, pp. 649-50; 26 Am. Jur. 2d 362, Embezzlement § 6 (1996).” (Internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 18, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

We conclude that the evidence was sufficient for the court to conclude that the defendant embezzled from the Wolcott Organization the $8000 loan. Viewing the evidence in the light most favorable to sustaining the judgment, the court reasonably could have found that the defendant solicited the loan from Diaz in her capacity as executive director of the Wolcott Organization and on behalf of the Wolcott Organization. The court reasonably credited Diaz’s testimony that he had given $8000 to the defendant as a loan to the Wolcott Organization. He further testified that he placed the funds in the defendant’s account as she directed and that he contacted the defendant at the Wolcott Organization repeatedly for repayment, but the defendant told him that the funds were not available or that difficulties with the bookkeeper were causing the delay. The defendant testified that she had given the Wolcott Organization a personal check for $6000 and kept $2000 for herself as payment for a loan she had made to the Wolcott Organization. The evidence showed that her first check was not honored due to insufficient funds. It was reasonable for the court not to have credited the defendant’s testimony that she gave the Wolcott Organization a second check for $6000 or that she took the remaining $2000 as a loan repayment. “It is not the role of this court to make factual determinations and conclusions. It is the sole province of the trier of fact to evaluate [such] testimony, to assess its credibility, and to assign it a proper weight. . . . We can only review such conclusions to determine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) State v. Menzies, 26 Conn. App. 674, 691, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992).

The fact that the money was deposited directly into the defendant’s account and that the Wolcott Organization at no time possessed it is of no moment. The defendant, as the executive director of the Wolcott Organization and the person with authority over financial matters, specifically loan solicitation and check writing, was entrusted with $8000, a loan intended for the Wolcott Organization, which she converted to her own use. Moreover, the defendant’s own testimony contradicts her claim on appeal that the only conclusion that may be drawn from the evidence is that the Diaz loan was a personal loan to her. We conclude that the evidence was sufficient for the court to conclude that the defendant wrongfully appropriated to herself money loaned from Diaz to the Wolcott Organization.

B

The defendant next claims that the court improperly found that she embezzled the moneys from the Wolcott Organization by cashing a check made in the amount of $3500 through a third party and because the state failed to prove beyond a reasonable doubt that she intended to appropriate the $3500 wrongfully. We disagree.

The following additional facts apply to our resolution of this claim. The court found that the defendant solicited Richard Kish for loans for the Wolcott Organization. During 1995 and 1996, he made several loans amounting to “hundreds of dollars.” He testified, however, and the court credited his testimony, that he had been repaid for all of his loans and he made no additional loans to the Wolcott Organization and did not receive any payments from the Wolcott Organization during 1997.

The evidence showed that, on May 9,1997, the defendant wrote a check from the Wolcott Organization for $3500 made payable to Holly Nastri, an office receptionist at the Wolcott Organization. Nastri cashed the check and delivered the funds to the defendant upon her request. On the memo portion of the check, a notation provided: “Loan repay from s/s.” Nastri and the defendant testified that they had delivered the funds to Kish that same day as repayment for a loan. The court found Kish’s testimony credible and discredited the testimony of Nastri and the defendant. The court further found that there was no evidence to support the defendant’s explanation of this check as a loan payment. There was no evidence connecting Kish or a loan from Kish to the check.

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Lussier v. Spinnato, 69 Conn. App. 136, 141, 794 A.2d 1008 (2002). We conclude that the testimony of Kish supports the conclusion that he did not loan the Wolcott Organization $3500 in 1997 or at any other time, nor did he receive payment from the Wolcott Organization in that amount.

The defendant argues that the court’s finding of wrongful appropriation was clearly erroneous in light of the testimony by Frank Melvin and accounting records that “proved” that the Wolcott Organization owed the defendant $3500. The defendant apparently concedes that “hypothetically” a defendant may still be guilty of embezzlement even when the victim owes the defendant money, but argues that the court’s conclusion is improper because no evidence supports the conclusion that the defendant took the $3500, as it was not proved that it was deposited into the defendant’s personal account. The defendant offers no legal support for this argument and we know of none. We therefore reject it.

The defendant further argues that it was not reasonable for the court to infer that the moneys were misappropriated by the defendant in light of the fact that she made numerous loans to the Wolcott Organization, she was owed $3500 by the Wolcott Organization, the Wolcott Organization’s accounting records were in disarray, an inaccurate audit had been performed and she made “heroic efforts to keep the [Wolcott Organization’s] doors open and to keep [the Wolcott Organization] functioning.” The defendant’s argument suggests that we should reconsider the evidence and reach a different conclusion from the court’s. This we cannot do. The evidence supports, if not compels, the court’s conclusion that the defendant engaged in a scheme or course of conduct to deprive the Wolcott Organization of moneys that were placed in her care and custody. We cannot say, on the basis of the entire evidence, that we are “left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id.

II

The defendant next claims that the court improperly failed to suppress the testimony of Mary Ann Franco, the assistant executive director at the Wolcott Organization from 1995 to 1997, and a check in the amount of $7225 payable to Franco. The defendant claims that because Franco subsequently invoked her fifth amendment privilege against self-incrimination while testifying, the defendant was denied her sixth amendment right to confront the witnesses against her and to present a defense. We decline to review this claim.

The trial court’s lengthy and thorough memorandum of decision provides in relevant part: “The court finds the check, state’s exhibit forty-eight, in the amount of seven thousand two hundred twenty-five dollars, was written at the direction of [the defendant] on December 12, 1995, by Mary Ann Franco, and thereafter cashed by Ms. Franco. The cash proceeds of the check were then delivered to [the defendant] in accordance with her instructions. The payment of seven thousand two hundred twenty-five dollars to [the defendant] was not intended to be a repayment of any previous loans which she may have made to [the Wolcott Organization], The moneys which [the defendant] appropriated to herself were funds belonging to [the Wolcott Organization], which [the defendant] as the executive director was entrusted with protecting. Thereafter, in the months that followed the December 12, 1995 transaction, [the defendant] gave various conflicting explanations of what had occurred. During the course of the trial, [the defendant] provided testimony concerning the check which the court finds not to be credible.”

The record reveals that Franco was called to the witness stand to identify the state’s exhibit and to testify that she signed it for the defendant, cashed it and delivered the proceeds to the defendant. During Franco’s lengthy cross-examination testimony, it appeared that she could be exposed to criminal liability herself. As a result, the witness was referred to a public defender. The defense, however, wanted to call Franco as a defense witness.

At a hearing to determine whether Franco should be allowed to invoke her fifth amendment rights, Franco invoked her privilege in response to defense counsel's questioning as to who would write checks at the Wolcott Organization, whether she cashed other checks for the defendant and whether she signed other checks for the defendant, among other things. Before issuing its ruling, the court inquired of the defendant whether she intended to file a motion to strike any or all of Franco’s testimony. The defendant stated that she did not and further agreed that a redacted transcript could be submitted to the court. The court ordered counsel to agree to a redacted transcript and to submit it to the trial judge. The parties complied without objection.

On appeal, the defendant now claims that she was denied her sixth amendment rights due to Franco’s invocation of her fifth amendment privilege. In light of her failure to move to suppress the evidence or to strike Franco’s testimony, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We decline to review this claim because the defendant expressly waived her objection to the admission of Franco’s redacted testimony by indicating to the court that no motion to strike would be filed and by deferring to the court’s discretion. See State v. Berube, 256 Conn. 742, 747-49, 775 A.2d 966 (2001); State v. Ledbetter, 240 Conn. 317, 325, 692 A.2d 713 (1997) (most basic rights of criminal defendants are subject to waiver). We conclude that the defendant failed to preserve properly, and also actively waived, her right to our review of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”

       Other revenues came from fundraisers, donations and a bakery operated by the Wolcott Organization.

       Pursuant to General Statutes § 53a-121 (b), the court aggregated the amounts that were the subject of the larceny.

       On May 6, 1997, the defendant wrote out a personal check, from her First Union account, to be deposited in the Wolcott Organization’s account. The check was for $6220, the deposit slip indicated that $6000 was for “Joe D. loan” and the defendant testified that the remainder was miscellaneous Wolcott Organization revenue. The defendant claims that $2000 of Diaz’s money remained in her account as repayment for a personal loan she had made to the Wolcott Organization. The defendant’s bank refused to honor the check due to insufficient funds. Thus, the Wolcott Organization never received any portion of the $8000 loaned by Diaz.

       The defendant maintains that she writes her fives like the letter “s” and that the notation actually indicated May 5. Her assertion does not change our analysis, however, as the evidence in the record supports the court’s conclusion that the check was unrelated to Kish and we are not left with a firm conviction otherwise.

       Melvin performed bookkeeping services for the Wolcott Organization in 1996 and 1997 as an Independent contractor.

       The following colloquy occurred between the court and counsel:
      “[Assistant State’s Attorney]: ... I would urge the court to take the latter course. And that would be not to preclude Ms. Franco’s testimony in its entirety, but to [provide a redacted transcript to the court].
      “The Court: Thank you. [Defense Counsel]?
      “[Defense Counsel]: Yes, Your Honor, it would be my position with regard to this that the witness has been given the opportunity and has elected to assert [her] privilege of fifth amendment. ... I take no issue with regards to that based on what we’ve heard here today.
      “What I do take issue with, Your Honor, is partly the way that this matter comes before the corut. ... I am not suggesting that the privilege be asserted in front of the trier of fact ....
      “The problems that I think we now have with regards to it — and I’m not asking the court to strike Ms. Franco’s testimony either in [the state’s] casein-chief or what she’s testified to here today — should that be the election of the court.
      “What I am concerned about, Your Honor, is that she’s called as a state’s witness, the state elicits the testimony that they need. . . . Now we have her as my witness in chief. All of a sudden, now we have the fifth amendment privilege being asserted as it goes directly to how she used the money. . . . I think [the defendant] has been prevented from asking and going through those questions by the fifth amendment assertion. I think that’s essential and I think it prejudices her ability fully to defend herself in this particular case. . . . [M]y motion would be that this constitutes grounds for a mistrial as opposed to just striking the testimony. . . .
      “The Court: You understand the sixth amendment right is not unfettered and that it is within the court’s discretion to decide these issues?
      “[Defense Counsel]: Yes, Your Honor.
      “The Court: Your position is not that you would like any of the testimony stricken, correct? This is not a motion to strike?
      “[Defense Counsel]: No, Your Honor.
      “The Court: This is a motion for a mistrial?
      “[Defense Counsel]: I think at this point in time, Your Honor . . . I’m not sure ....
      “The Court: I just — I want to make absolutely certain that you are not now nor do you intend in the future to file a motion to strike all or any portion of the testimony of this witness aside from — well, with the understanding that any answers to any questions that might invoke the fifth amendment would not be part of this case.
      “[Defense Counsel]: Yes, Your Honor, we are not looking to strike — my feeling with regards to it, Your Honor, I think is — I am trying to articulate— maybe not as accurately as I would like, it’s an all or nothing type of proposition. If the testimony is going to be in, the testimony is going to be in for both of us, we are stuck with the privilege, we live with the privilege, Your Honor.
      “I am not addressing whether or not I think that the appropriate remedy is redacted transcript or whether or not the appropriate remedy — because I think there [are] problems with using it as a transcript in a criminal trial where the trier of fact does not have the opportunity to truly assess the answers as they are coming across from the wit,ness[es] themselves because the case law talks about that.
      “As far as the motion to strike, Your Honor, no. We are not raising a motion to strike and we recognize that if it comes in, it should come in for both parties. . . .
      “The Court: So you are going to file a brief in support of your motion for a mistrial?
      “[Defense Counsel]: Yes, Your Honor.”
      The defendant thereafter filed a motion for a mistrial, which the court denied.

       Prior to the court issuing its decision, the defendant again stated: “And I leave it within the court’s sound discretion to determine how best to present testimony of Ms. Franco be it in terms of a redacted transcript or be it in terms of live testimony. That certainly is a question for your discretion, Your Honor.”

       The defendant concedes on appeal that her motion for a mistrial sought an overbroad remedy. She asserts, however, that the motion preserved her sixth amendment claim. The defendant did not address the denial of her motion for a mistrial in her brief. We therefore decline to address this claim.
      Moreover, a mistrial may be granted in the court’s discretion when there is “substantial and irreparable prejudice to the defendant’s case. . . .” Practice Book § 42-43. “If curative action less drastic [than a mistrial] is appropriate the court should take such action before terminating the trial.” State v. Altrui, 188 Conn. 161, 173, 448 A.2d 837 (1982). The defendant’s failure to move to strike the testimony undermines any claim that she was substantially and irreparably prejudiced.

       In Golding, our Supreme Court held: “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.