source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALBERT KALIL
    (AC 32804)
    Lavine, Robinson and Bear, Js.

      Argued March 7
    officially released July 3, 2012

      Daniel J. Krisch, special public defender, with whom, on the brief, was Dana M. Hrelic, for the appellant (defendant).

      Michele C. Lukban, with whom, on the brief, were Michael L. Regan, state’s attorney, and Peter A. McShane, state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Albert Kalil, appeals from the trial court’s judgment of conviction, following a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a) and larceny in the second degree in violation of General Statutes (Rev. to 2009) § 53a-123 (a). On appeal, the defendant contends that (1) the court improperly admitted the testimony of a Rhode Island police officer because the prejudicial effect of his testimony far outweighed its probative value, (2) there was insufficient evidence to prove that the defendant was guilty of burglary in the third degree or larceny in the second degree and (3) the court improperly joined the defendant’s trial with that of his codefendant, Joseph Cote, when their defenses were mutually antagonistic. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 10 a.m. on January 27, 2009, Judith Stanton left her home located at 677 Pequot Trail in Stonington (Stonington property). When Stanton returned at approximately noon, she realized that the telephone was no longer on the wall, the liquor cabinet was open and drawers had been opened in every room upstairs. Her jewelry box had been “tom apart,” and pocket watches that were on display in a cabinet were missing. Jewelry, several $2 bills, a federal note and six $100 bills were missing from the property.

Lucinda Wesson, a resident of 672 Pequot Trail in Stonington lives directly across from the Stonington property. On the morning of January 27, 2009, she noticed a car she did not recognize parked on her street. It was a dark colored convertible Saab with a Massachusetts license plate. At that time, no one was in or near the car. Some time later, Wesson went to the other side of her home, and she again saw the car because it was stationed outside of her property. At this time, the passenger’s side door was open, and a man was wandering in the middle of the street, appearing as if he were looking for something. The person driving the car told the passenger to get in the car, and the parties then left. Each of the individuals had a “very thick Massachusetts accent.” From her standpoint in her home, she believed the individual outside of the vehicle was approximately six feet tall, and she apprised police that he was of Italian descent, with black hair, between forty and fifty years old, approximately 200 pounds and wearing a red sweatshirt type of jacket.

An investigation at the Stonington property revealed that force had been used to open the rear door. An area of weather stripping that ran down the exterior of the door had been manipulated or moved. The damage was consistent with forced entry into the house. There were footprints in the snow outside the Stonington property that ran from the front of the home to the back door; however, the police were not able to get foot impressions. The Stonington police filed a report with the National Clime Information Center detailing the incident.

On January 27, 2009, at approximately 1:45 p.m., Raymond Driscoll, the police chief in Richmond, Rhode Island, drove past the home of an acquaintance located at 122 Kingston Road in Richmond (Rhode Island property). The homeowner’s truck was not on the property; however, there was a black Saab convertible with Massachusetts license plates parked in the yard. Driscoll observed two men standing in front of the garage door looking into the garage through a window. He then observed one of the men looking through a door at the front step next to the garage. This man was “alternately looking over his shoulder between looking into the house. ” One of the men noticed that Driscoll was watching, and both men quickly walked to the Saab and drove away.

Driscoll followed the vehicle, which pulled into an abandoned gasoline station parking lot. While Driscoll was calling for additional police support, the operator of the vehicle got out of the car and walked over to him. Driscoll asked the operator for his license and registration, which he retrieved. The license identified the operator of the vehicle as Cote, and his passenger was identified as the defendant. Cote volunteered that he and the defendant were on their way from the casino and had gotten lost. Cote stated that they had stopped at the house to ask for directions and that they were running out of gasoline. Driscoll asked Cote to turn the vehicle on, and Driscoll observed that the vehicle had more than one quarter of a tank of gas remaining.

The defendant was wearing a “sweatshirt type jacket,” and he had a pair of blood-stained, white athletic socks in his jacket pockets. There was also a cut on the defendant’s hand. When asked why he had socks in his jacket pocket, the defendant responded that he had “bad feet.” The defendant stated that he and Cote were at the casino, and he had won $100. When asked why he was at the Rhode Island property, the defendant stated they were lost and running out of gasoline and had stopped to ask for directions. When asked how they could be running out of gasoline when there were four gasoline stations within a mile and one quarter of where they were located, the defendant responded that he did not know. When asked why they chose to stop at the Rhode Island property and ask for directions when there were no cars in the driveway, the defendant responded that he did not know.

After obtaining Cote’s consent, Driscoll searched the vehicle, finding some articles of clothing in the backseat, a pair of black gloves on the center console and a screwdriver, a pry bar and a hatchet/hammer in the trunk. When the additional police support arrived, Dris-coll went back to the house and noticed two sets of footprints in the snow leading from the front of the home to the rear of the home and back to the front. He could see where an individual had stopped on the back step and presumably looked into the house through the back door. There did not appear to be any entry into the house.

Driscoll placed the defendant in the backseat of an officer’s cruiser and asked Cote to follow him to the police station. He pulled into the parking area behind the station, and Cote pulled up to the front of the station. After parking, Driscoll went to the front of the police station, and “Cote was standing on the sidewalk in front of the Saab . . . right in front of a row of small shrubbery that’s in front of the police station.” Driscoll again obtained consent to search Cote’s vehicle, and he seized the hatchet/hammer, screwdriver and pry bar. When looking through the interior of the vehicle, the police seized a costume jewelry gemstone. The gemstone was approximately one-quaxter inch by one-quarter inch in size and blue or green in color. It was found between the driver’s seat and the passenger’s seat in the Saab.

The Richmond police later recovered a bag from the bushes in front of the Saab that was parked in the police department parking lot. Inside the bag, there were various types of jewelry, including pocket watches, rings and bracelets. The bag contained approximately fifty pieces of jewelry. The bag also had a piece of jewelry with gemstones that matched the gemstone found inside the vehicle.

The Stonington police were notified that the Richmond police department had found individuals and goods that were consistent with the Stonington burglary. The Stantons viewed the jewelry obtained by the Richmond police department and identified it as their property. The defendant and Cote thereafter were arrested by the Stonington police and charged with burglary in the third degree and larceny in the second degree.

The jury found the defendant and Cote guilty of burglary in the third degree in violation of § 53a-103 (a) and larceny in the second degree in violation of General Statutes (Rev. to 2009) § 53a-123 (a). The defendant was sentenced to a total effective sentence of nine years incarceration. Additional facts will be set forth where necessary.

I — H

The defendant s first claim on appeal is that the court improperly admitted the testimony of Driscoll when the prejudicial effect of his testimony far outweighed its probative value. The defendant contends that Driscoll’s testimony was not relevant to complete the story of the burglary and the capture of the defendant nor was it proof of the defendant’s intent. Rather, the defendant argues it was evidence only of his bad character, and, therefore, was unduly prejudicial.

The following additional facts are relevant to the resolution of the defendant’s claim. Prior to trial, defense counsel filed a motion in limine to bar Driscoll’s testimony about any observations that he made prior to stopping the defendant and Cote in Rhode Island on January 27, 2009. Counsel argued that allowing Driscoll to testify as to the nature of the incident he observed would be extremely prejudicial to the defendant, as the defendant was not charged for that incident and it was separate from the charges in Connecticut. The state, in turn, argued that the testimony would complete the story of the Stonington burglary and demonstrate the defendant’s intent to commit the Stonington burglary. The court determined that the testimony was admissible to complete the story. The court cited State v. Ali, 233 Conn. 403, 427, 660 A.2d 337 (1995), for the proposition that misconduct evidence is admissible to “complete the story of the charged crime by placing it in the context of nearby and nearly contemporaneous happenings.” (Internal quotation marks omitted.) Further, the court determined that the evidence was relevant to the defendant’s intent. The court therefore denied the motion in limine.

After Driscoll testified as to his observations of the defendant prior to stopping the Saab, the court gave a limiting instruction to the jury directing the jury to consider such testimony only if it determined that the conduct occurred and that it supported the issue of intent or completing the story. Similarly, during its charge to the jury after closing arguments, the court again instructed the jury that it could consider this portion of Driscoll’s testimony only if it concluded that it demonstrated the defendant’s intent during the Ston-ington burglary or if it completed the story of the Ston-ington burglary.

On appeal, the defendant contends that Driscoll’s testimony was relevant only to demonstrate why he stopped the defendant and Cote in Rhode Island. The defendant argues that by admitting the evidence, the state painted the defendant as a habitual criminal and suggested that the behavior observed by Driscoll made it more likely that the defendant and Cote were guilty of the Stonington burglary.

“We review the defendant’s evidentiary claim by employing the abuse of discretion standard. The admission of evidence of . . . uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . Our review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did. . . .

“ [E] vidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . .

“Connecticut Code of Evidence § 4-5 (b) provides: Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. . . . Moreover, our Supreme Court has held that [prior misconduct] evidence may be used to complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings. . . .

“To determine whether evidence of [other] misconduct falls within an exception to the general rule prohibiting its admission, [the court has] adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Citations omitted; internal quotation marks omitted.) State v. Scheck, 106 Conn. App. 81, 88-90, 940 A.2d 871, cert. denied, 286 Conn. 918, 945 A.2d 979 (2008).

To prove that the defendant was guilty of both burglary in the third degree and larceny in the second degree, the state needed to prove that the defendant intended to commit those crimes. “Because intent is almost always proved, if at all, by circumstantial evidence, [other] misconduct evidence, where available, is often relied upon.” (Internal quotation marks omitted.) State v. Pereira, 113 Conn. App. 705, 713, 967 A.2d 121, cert. denied, 292 Conn. 909, 973 A.2d 106 (2009).

It was not an abuse of the trial court’s discretion to admit Driscoll’s testimony concerning his observations of the defendant and Cote prior to stopping the automobile in Rhode Island as evidence relevant to the defendant’s intent. Misconduct evidence may be admitted “where it is independently probative and relevant to establish intent.” State v. Amaral, 179 Conn. 239, 244, 425 A.2d 1293 (1979). Our appellate courts have affirmed convictions where misconduct evidence that was similar in some facets to the crime charged was admitted to demonstrate intent. In State v. Amaral, supra, 244-45, our Supreme Court stated: “Under a charge of possession with intent to sell, the fact that in the past the defendant had been a seller of the drug would tend to characterize the nature of his possession of the drug at the time of the alleged offense.”

Furthermore, in State v. McFarlane, 88 Conn. App. 161, 162, 868 A.2d 130, cert. denied, 273 Conn. 931, 873 A.2d 999 (2005), the defendant was convicted of burglary. On appeal, the defendant argued that uncharged misconduct evidence involving other burglaries should not have been admitted to demonstrate intent. Id., 163-64. This court held that the evidence was indeed relevant to the defendant’s intent. The court determined that “the fact that the defendant previously had served as a lookout for the other codefendants in similar burglaries made it more likely that he was serving as a lookout during the crimes at issue and was not an innocent bystander as he claimed.” Id., 164-65. The court continued by stating that although the crimes were dissimilar in some ways, “they bore a sufficient similarity to the charged crimes to be admissible on the issue of the defendant’s intent.” Id., 165.

Similarly, in State v. Holliday, 85 Conn. App. 242, 243, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004), this court upheld a judgment where misconduct evidence was used against a defendant convicted of attempt to commit robbery and conspiracy. On the day of the attempted robbery, the defendant parked his vehicle in the no parking zone outside of a credit union. Id., 244. The defendant and another individual got out of the vehicle wearing latex gloves and dust masks, and the defendant was holding a black bag. Id., 244-45. An employee saw the defendant and locked the door, and the defendant fled the scene. Id., 245. On appeal, the defendant argued that evidence of prior misconduct, namely, another robbery that the defendant had committed, should not have been admitted. Id., 249. This court determined that the prior misconduct evidence was relevant to intent. Id., 250. The court concluded that “the fact that the defendant previously had robbed a bank would tend to characterize the nature of his actions outside the credit union . . . as a step toward his attempt to rob the credit union, rather than an innocent visit to the credit union.” Id.

Driscoll testified that the defendant and Cote had parked the Saab and were looking into multiple windows of the Rhode Island property when the homeowners were not home. Upon observing Driscoll watching them, the defendant and Cote walked to their black Saab convertible with Massachusetts license plates and drove away. Driscoll’s observation of the defendant and Cote was close in time to the Stonington burglary, occurring only a few hours later. These observations made it more likely that the defendant’s presence outside of the Stonington property was not innocent. It was not an abuse of discretion to admit Driscoll’s observations of the defendant and Cote on the Rhode Island property to demonstrate that they held the requisite intent to commit a burglary in Connecticut.

The defendant contends that misconduct evidence that is used to demonstrate intent generally is more probative than prejudicial if the misconduct is the same or very similar, and that Driscoll’s observations of the defendant and Cote in Rhode Island were too dissimilar to the Connecticut crime to be admissible. “The high degree of similarity required for admissibility on the issue of identity is not required for misconduct evidence to be admissible on the issue of intent.” (Internal quotation marks omitted.) State v. McFarlane, supra, 88 Conn. App. 165. Here, Driscoll observed a black Saab convertible with Massachusetts license plates and the defendant and Cote peering into multiple windows of the Rhode Island property. Hours earlier, Wesson had observed two men fitting the descriptions of the defendant and Cote in front of the Stonington property in a dark colored Saab convertible with Massachusetts license plates. The fact that the house in Stonington was burglarized and the defendant and Cote were observed peering into windows of an empty house in Rhode Island is sufficiently similar to allow for the evidence to be admissible on the issue of the defendant’s intent.

We further note that when the back-up Rhode Island officers arrived at the abandoned gas station, Driscoll went back to the house and noticed two sets of footprints in the snow leading from the front of the home to the rear of the home and back to the front. He observed where an individual had stopped on the back step and apparently looked into the house through the back door. Likewise, during the investigation of the incident on the Stonington property, police observed footprints in the snow outside the property that ran from the front of the home to the rear door.

Having determined that Driscoll’s testimony regarding his observations of the defendant and Cote on the Rhode Island property was relevant and material, we now must address the court’s determination that the probative value of the evidence outweighed its prejudicial effect. “Prejudicial evidence is evidence that tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence . . . but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The problem is thus one of balancing the actual relevancy of the other [misconduct] evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Internal quotation marks omitted.) State v. Bunker, 89 Conn. App. 605, 634, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). “Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. . . . On review by this corut, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 582, 10 A.3d 1005, cert. denied, U.S. , 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011).

Driscoll’s testimony concerning his observations of the defendant and Cote was not evidence that would “improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Bunker, supra, 89 Conn. App. 634. Although some damage to the defendant’s case naturally flows from the disputed evidence, the evidence of Driscoll’s observations and why he later stopped the Saab was not unduly prejudicial to the defendant.

Furthermore, the court minimized any potential undue prejudice of the prior misconduct evidence by giving the jury detailed limiting instructions as to the role the evidence was to play in its deliberations, and the court repeated its admonition to the jury in its final instructions. “Proper limiting instructions often mitigate the prejudicial impact of evidence of [other] misconduct.” (Internal quotation marks omitted.) State v. Orellana, 89 Conn. App. 71, 89, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). The court, therefore, did not abuse its discretion when it admitted Driscoll’s testimony concerning his observations of the defendant and Cote on the Rhode Island property.

II

The defendant’s next claim on appeal is that there was insufficient evidence to prove that he was guilty of burglary in the third degree or larceny in the second degree. “In reviewing a sufficiency of the evidence claim, we 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 evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] 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. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

“[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts. . . . Moreover, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 339-40, 746 A.2d 761 (2000).

To convict the defendant of burglary in the third degree, the state is required to prove beyond a reasonable doubt that the defendant “enter[ed] or remain[ed] unlawfully in a building with intent to commit a crime therein.” General Statutes § 53a-103 (a). “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.” General Statutes § 53a-100 (b). At the time of the crime, larceny in the second degree required that an individual intentionally deprive another of property and that the value of the property exceed $5000. See General Statutes § 53a-119; General Statutes (Rev. to 2009) § 53a-123 (a).

The defendant contends that there was insufficient evidence to prove that he committed the charged offenses because the state did not establish the essential elements of identity and intent. He argues that the evidence and the inferences drawn therefrom simply demonstrated that the defendant was arrested in a car belonging to Cote’s sister, that Cote had the opportunity to place the stolen property in the bushes outside of the Rhode Island police station and that an individual vaguely fitting the defendant’s description was seen by Wesson outside of the Stonington property on the morning of the burglary. Taken together, he argues that this evidence was insufficient to prove guilt beyond a reasonable doubt. We disagree.

In proving that the defendant entered the Stonington property unlawfully and intentionally deprived another of property, the state may rely upon direct or circumstantial evidence. See State v. Sherman, 127 Conn. App. 377, 386, 13 A.3d 1138 (2011). “[I]t 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.” (Internal quotation marks omitted.) Id.

We begin by determining that the jury reasonably could have found that the car that was pulled over by Driscoll in Rhode Island was the same car that was parked outside of the Stonington property. The defendant and Cote were pulled over in a black Saab convertible with Massachusetts license plates. This closely matched the description of the vehicle Wesson observed outside of the Stonington property. Further, the tapestry bag with jewelry from the Stonington property was found in the bushes outside of the Richmond police station, and a gemstone matching a piece of jewelry found in the bag was located in the Saab. Taken together, the jury reasonably could have determined that the black Saab convertible that was stopped by Driscoll in Rhode Island was the same vehicle observed by Wesson parked in front of the Stonington property.

Because the Saab was registered to Cote’s sister, and the jury also reasonably could have found that the car pulled over in Rhode Island was the same car parked outside the Stonington property, the jury could infer that Cote was at the Stonington property. Although the defendant was not related to the vehicle’s owner, because the defendant’s description did not contrast with the description given by Wesson, and he was with Cote in the car at the time that they were picked up in Rhode Island shortly after the Stonington incident, it was reasonable for the jury to infer that he was with Cote at the Stonington property. Wesson saw the Saab sometime between 10 a.m. and noon outside the Ston-ington property. Wesson thereafter observed two individuals leave the Stonington property in the vehicle. At approximately 1:45 p.m., Driscoll observed the defendant and Cote peering into the windows of the Rhode Island property. It was reasonable and permissible for the jury to infer that the individual with Cote in Rhode Island was the same individual observed by Wesson with Cote at the Stonington property just a few hours earlier.

“[I]n sustaining [burglary] convictions based entirely on circumstantial evidence, this court has relied on evidence that the defendant was at or near the residence at about the time of the burglary and that the defendant was in possession of items stolen from the residence thereafter.” Id., 387-88. In State v. Correa, 57 Conn. App. 98, 108, 748 A.2d 307, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000), the defendant argued that there was insufficient evidence to sustain his conviction of burglary in the third degree because the state had not presented evidence that he entered the victim’s residence. On appeal, this court noted that there was evidence that a car belonging to the defendant’s girlfriend was parked near the residence prior to the burglary, the defendant had used the car on the day of the burglary, the defendant matched a witness description of an individual seen in the victim’s driveway around the time of the burglary and that some of the victim’s jewelry was found after the burglary in the apartment where the defendant was staying. Id., 100-101, 104. This court determined that the cumulative weight of the evidence was sufficient to demonstrate that the defendant unlawfully entered the victim’s residence. Id., 110; see also State v. Spikes, 111 Conn. App. 543, 555-56, 961 A.2d 426 (2008) (“[i]n the present case, on the basis of evidence that the defendant was seen at or near 291 Church Street at about the time of the burglary and that he had on his person at the time he was arrested some of the jewelry stolen from the premises, we conclude that the jury reasonably could have found that he illegally entered 291 Church Street on February 19, 2005, and stole that jewelry”), cert. denied, 291 Conn. 901, 967 A.2d 114, cert. denied, 558 U.S. 898, 130 S. Ct. 249, 175 L. Ed. 2d 170 (2009).

In the present case, the jury reasonably could have inferred that the defendant unlawfully entered the Ston-ington property and deprived the owners of their property. As already discussed, the jury reasonably could have determined that the defendant was at the Stoning-ton property during the time of the burglary. There was evidence that the door frame of the Stonington property had been manipulated by some type of tool, and a screwdriver, a hatchet/hammer and a pry bar were found in the trunk of Cote’s vehicle. Although there was no direct evidence of the defendant’s unlawful entry into the Stonington property, items taken from the Stonington property were later located in Rhode Island after the defendant and Cote were stopped. After being stopped by Driscoll, there was a period of time where Cote was unobserved by the Richmond police, as he drove to the front of the station instead of following Driscoll to the rear of the station. Afterward, the Richmond police located a tapestry bag in the bushes outside of the police station, directly in front of where Cote had parked the Saab. This tapestry bag contained items that were stolen from the Stonington property. Further, the Richmond police later found a gemstone matching a piece of jewelry stolen from the Stonington property in Cote’s vehicle.

The defendant argues that he did not have dominion and control over the tapestry bag later found by the Richmond police or the car where the gemstone was later discovered. He contends, therefore, that such evidence cannot be linked to him. We disagree.

Even if we were to assume that the car, gemstone and tapestry bag were not directly linked to the defendant through possession, that is not sufficient for us to conclude that the circumstantial evidence does not link him to the Stonington crimes. Although the evidence indicates that it was Cote who had the chance to deposit the tapestry bag outside of the police station, the jury reasonably could have inferred from the evidence presented that the defendant and Cote worked together on January 27, 2009, and each was involved in the Ston-ington burglary. There was sufficient evidence presented to allow the jury to infer that the defendant worked together with Cote during the Stonington burglary, and was fully aware of the presence of the tapestry bag and gemstone in the vehicle. Wesson observed a car matching a description of the car pulled over in Rhode Island parked in front of the Stonington property and two individuals leaving the scene in the vehicle. Wesson observed the vehicle twice; the first time nobody was in or around the vehicle. On the basis of Wesson’s testimony, at one point both men were away from the vehicle and the jury reasonably could infer that it was dining this time that the men entered the Stonington property. Further, because both the defendant and Cote were observed by Driscoll peering into the house in Rhode Island, the jury reasonably could have inferred that such action was in preparation for jointly entering the Rhode Island property. While on the Rhode Island property, both the defendant and Cote were away from the vehicle, as was true in Stonington, and actively were involved in peering into the property when the homeowners were not home. Based on the fact that the men were working together in Rhode Island, the jury could reasonably infer that they worked together in the Stonington burglary as well. The jury was entitled to infer through the cumulative evidence outlined previously that the defendant unlawfully entered the Stonington property.

We also note that the defendant made statements to the police that evinced a consciousness of guilt. “Additionally, the state of mind that is characterized as guilty consciousness or consciousness of guilt is strong evidence that a defendant is indeed guilty. . . . We have held that misstatements of an accused, which a jury could reasonably conclude were made in an attempt to avoid detection of a crime or responsibility for a crime or were influenced by the commission of the criminal act, are admissible as evidence reflecting a consciousness of guilt.” (Citation omitted; internal quotation marks omitted.) State v. Moody, 214 Conn. 616, 626, 573 A.2d 716 (1990). Testimony was provided that after the defendant and Cote were pulled over, the defendant made statements that were indicative of a consciousness of guilt. When asked why he and Cote were at the Rhode Island property, the defendant stated that they were lost, running out of gas and needed directions. When the car was turned on, however, the car had over one quarter of a tank of gas. When asked how they could be running out of gas when there were multiple gas stations in the area, the defendant responded that he did not know. When asked why they chose to stop at the Rhode Island property to ask for directions when there was no vehicle on the property indicating that someone was home, he responded that he did not know. Through these statements, the jury reasonably could have inferred that the defendant was attempting to avoid detection of his improper actions at both the Rhode Island and the Stonington properties. Although the evidence in this case is circumstantial, the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.

Ill

The defendant’s last claim on appeal is that the court improperly joined the defendant’s trial with that of his codefendant, Cote, when their defenses were mutually antagonistic. The defendant contends that the core of his defense was directly at odds with the core of his codefendant’s defense, as he intended to highlight that the evidence only linked Cote to the crime and not him, and that the joint trial therefore made it impossible for him to disassociate himself from Cote.

The following additional facts are relevant to the resolution of the defendant’s claim. The state filed a motion to consolidate the defendant’s case with Cote’s case. Defense counsel opposed the motion and argued that joinder of the trials would be prejudicial to the defendant because the defenses in the two cases were antagonistic to each other. Defense counsel argued that he expected to argue at the end of trial “that if th[e] jury finds that there was enough evidence to convict anyone of burglary it would not be [the defendant] it would be the other gentleman.” The court stated that there had to “be more than mere pointing” to consider defenses to be antagonistic. The court determined that it could keep the evidence separate and issue appropriate charges to the jury to make it clear what evidence was to be used against the defendant and against Cote. The court thereby granted the state’s motion for consolidation. The defendant moved to sever the trials on February 17, 2010, but the court denied the motion.

“[Wjhether to consolidate or sever the trials of defendants involved in the same criminal incident lies within the sound discretion of the trial court. ... A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. . . . [T]he phrase prejudicial to the rights of the [accused] means something more than that a joint trial will probably be less advantageous to the accused than separate trials.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 620, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

“The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded. . . . [W]e will reverse a trial court’s ruling on joinder only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more of the defendants.” (Citation omitted; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 575-76, 747 A.2d 487 (2000).

“The test for antagonistic defenses provides: When . . . the jury can reasonably accept the core of the defense offered by either defendant only if it rejects the core of the defense offered by his codefendant, the defenses are sufficiently antagonistic to mandate separate trials. ... To compel severance the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. . . . Such compelling prejudice does not arise where the conflict concerns only minor or peripheral matters which are not at the core of the defense.” (Citation omitted; internal quotation marks omitted.) Id., 576.

The defendant contends that the core of his defense was directly at odds with that of Cote, because his strategy was to highlight that the evidence linked only Cote to the Stonington burglary. The defendant contends that it was impossible to employ this strategy at trial because he and Cote were jointly tried. Accordingly, he contends that he was prejudiced by the trial court’s granting of the state’s motion for consolidation and the court’s denial of his motion to sever.

The defendant cites State v. Vinal, 198 Conn. 644, 504 A.2d 1364 (1986), in support of his argument that because he wanted to argue that the evidence linked Cote to the burglary, he and Cote had antagonistic defenses. In State v. Vinal, supra, 650, the state sought to prove that either the defendant or his codefendant had shot the victim. At trial, each of the defendants introduced evidence to incriminate the other. Id. The Supreme Court determined that the trial court had abused its discretion in holding a joint trial when both defendants “out of necessity, sought to blame each other for the victim’s death and constantly fought to frustrate each other’s attempt to create doubt in the minds of the jurors.” Id., 652.

State v. Vinal, supra, 198 Conn. 644, however, is distinguishable from the facts of the present case. In State v. Vinal, supra, 650, the prosecutor sought to prove that one of the defendants shot the victim. In the present case, burglary and larceny are not crimes that only can be committed by one person at a time, rather they are crimes which can be committed simultaneously by more than one individual. Furthermore, in Vinal, each defendant sought to prove that the other defendant was solely responsible for the crime and introduced evidence to incriminate the other defendant. Id. In the present case, the defendant did not present evidence nor argue that Cote was the sole individual responsible for the crime. Instead he argued that the evidence did not link him to the crime. The vehement arguments and evidence introduced to incriminate the other defendant in Vinal simply are not present in this case.

Applying the standard to the facts of this case, we conclude that the court did not abuse its discretion in consolidating the trials of the defendant and Cote. Both of them were charged with the same crimes, involving the same evidence and alleged acts. Neither the defendant nor Cote testified or presented witness testimony. Each presented his defense through cross-examination of the state’s witnesses and through closing argument only. The defendant and Cote attempted to cast doubt on the investigations that took place in Connecticut and Rhode Island and each contended that there was insufficient evidence to demonstrate that they committed the alleged crimes. The defendant also argued that if the evidence was connected to anyone it was Cote and not the defendant, as Cote was the driver of the vehicle and was the only one who could have put the tapestry bag in the bushes outside the police station in Rhode Island. This argument, however, is not sufficient to demonstrate that he had an antagonistic defense such that his and Cote’s defenses were at “the point of being irreconcilable and mutually exclusive.” (Internal quotation marks omitted.) State v. Ortiz, supra, 252 Conn. 576. The defenses were not incompatible because the jury reasonably could have accepted the defenses simultaneously, finding that there was insufficient evidence to convict either the defendant or Cote.

Moreover, the risk of prejudice to the defendant was mitigated by the court’s repeated instructions to the jury. “Cautionary instructions to the jury concerning what evidence may be considered against which defendant can often alleviate any potential prejudice. The spillover effect . . . usually is best avoided by precise instructions to the jury on the admissibility and proper uses of the evidence introduced by the government.” (Internal quotation marks omitted.) State v. Jackson, 73 Conn. App. 338, 368, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002). “The jury [is] presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Booth, supra, 250 Conn. 626. We therefore conclude that the trial court did not abuse its discretion in finding that no substantial injustice was likely to result from a joint trial of the defendant and Cote. Accordingly, the motion to consolidate was properly granted and the motion to sever was properly denied.

The judgment is affirmed.

In this opinion the other judges concurred.

       In her statement to the police, she indicated that the vehicle was dark green.

       She also testified that she was looking at the individual from an angle and that it was hard to estimate his exact height.

       Although she reviewed her statement to the police in which she indicated that the passenger was wearing a red sweatshirt, she testified that she could not remember what color sweatshirt the passenger was wearing.

       The police later determined that the car was registered to Cote’s sister.

       Driscoll testified that the owner of the property indicated that there should not have been any footprints in the back of his house.

       Stanton created a list with all of the items taken from her properly, and the approximate value of each of the items. The list identified thirly-nine pieces of jewelry and their approximate values as well as money and a telephone that was taken. The total value of the property taken was approximately $8104.50.

       The court stated the following in its limiting instruction: “The evidence offered by the state of alleged subsequent acts of misconduct by the defendants at 122 Kingston Road in Richmond, Rhode Island is not being admitted to prove the bad character of either of the defendants or either of the defendant’s tendency to commit a criminal act. This evidence is being admitted to show or establish the existence of each of the defendant’s intent on the charges of burglary and/or larceny, which is a necessary element of each of those crimes.
      “It is also being offered to place in the context the events alleged to have occurred on the date in question. You may not consider such evidence as establishing a predisposition on the part of either defendant to commit the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you conclude that such conduct occurred and further find that it logically, rationally, and conclusively supports the issues for which it is being offered by the state, but only as it may bear on the issue of intent or placing the events of the date in context.
      “On the other hand, if you do not conclude that such conduct occurred or even if you do, if you find that it didn’t logically, rationally and conclusively assist on the issue of the intent or placing into context the alleged events that occurred on the date in question, you may not consider the testimony for any purpose, for some only on the issue of intent and place in context the events that alleged to have occurred on January 27, 2009, and for no other purpose.”

       The court stated the following in its charge to the jury: “Any testimony or evidence which I identified as being limited to a purpose, you will consider only as it relates to the limits for which it was allowed, and you will not consider such testimony and evidence in finding any other facts as to any other issue.
      “For example, the state offered evidence of the alleged act by one or both of the defendants which occurred shortly after the act alleged to have occurred at the home of Judith Stanton on January 27, 2007. The evidence offered by the state of subsequent acts of alleged misconduct by the defendants at or near 122 Kingston Road in Richmond, Rhode Island was not admitted to prove the bad character of either of the defendants or either of the defendant’s tendency to commit criminal acts. This evidence was admitted solely to show or establish the existence of each of the defendant’s intent on the charges contained in each information of burglary and/or larceny, which is a necessary element of each of these crimes. It was also offered to place into context of the events alleged to have occurred on the date in question.
      “You may consider such evidence as establishing a predisposition on the part of either defendant to commit the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you conclude that such conduct occurred and further find that it logically, rationally, and conclusively supports the issues for which it is being offered by the state, but only as it may bear on the issue of intent or placing the events of the date . . . into context.
      “On the other hand, if you do not conclude that such conduct occurred, or even if you do, if you find that it doesn’t logically, rationally, and conclusively assist on the issue of intent or placing into context the events alleged to have occurred on the date in question, you may not consider this testimony for any purpose.”

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.” (Emphasis added.)
      General Statutes § 53a-123 (a) provides in relevant part: “[A] person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119 . . . .”

        General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with 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.” (Emphasis added.)

       We do note that misconduct evidence that is similar to the crime charged generally will make the evidence more probative. See State v. Baldwin, 224 Conn. 347, 355, 618 A.2d 513 (1993).

       “ [W]e recognize that [t]here are situations [in which] the potential prejudicial effect of relevant evidence would suggest its exclusion. . . . These are: (1) where the facts offered may unduly arouse the [jurors’] emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it. . . . We note that [a]ll adverse evidence is [by definition] damaging to one’s case, but [such evidence] is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.” (Citations omitted; internal quotation marks omitted.) State v. James G., 268 Conn. 382, 398-99, 844 A.2d 810 (2004).

       See footnotes 7 and 8 of this opinion.

       We need not address whether admitting the testimony for the purpose of completing the story was proper because the testimony was properly admitted to show the intent of the defendant, and therefore any evidentiary impropriety by the trial court was harmless. See State v. Orr, 291 Conn. 642, 668 n.24, 969 A.2d 750 (2009) (“We note that the trial court admitted the testimony of these witnesses for the perhaps improper purpose of corroborating the state of mind of the victim. . . . Because the testimony was otherwise properly admissible to show the intent of the defendant, however, any evidentiary or instructional impropriety by the trial court was harmless.”).

       We note that our Supreme Court recently decided State v. Payne, 303 Conn. 538, 549, 34 A.3d 370 (2012), in which it rejected the “blanket presumption in favor of joinder” in cases involving multiple informations against the same defendant. The Payne decision did not indicate whether its holding would apply in cases involving the joinder of multiple defendants, however, we recognize that the same issues addressed in Payne may be present in such cases. In Payne, however, the court concluded that “[djespite our reallocation of the burden when the trial court is faced with the question of joinder of cases for trial, the defendant’s burden of proving error on appeal when we review the trial court’s order of joinder remains the same.” Id., 550 n.11. Therefore, for the purposes of this appeal, our standard of review remains the same and we seek to determine whether joinder resulted in manifest prejudice to the defendant. State v. Ortiz, supra, 252 Conn. 575-76.

       In closing argument defense counsel argued: “I suggest that a serious review of the evidence . . . will lead you to conclude that the state has not reached that level of proof required to convict [the defendant].” Defense counsel also pointed out apparent inconsistencies such as Wesson’s description of the perpetrators as being six feet tall, her description of the vehicle as green and that an individual was wearing a red sweatshirt and no red sweatshirt was recovered. Cote’s counsel also pointed out apparent inconsistencies in the evidence and finished by arguing that “what [the state] would like you to believe is that these guys were there in Rhode Island with [the jewelry], therefore they went into the Stanton residence and took it. That’s a big leap, ladies and gentlemen. There’s a lot of reasonable doubt of one to the other.”

       Defense counsel argued in closing arguments: “Who was the driver? It seems to be, under the state of the evidence, Mr. Cote. Consistent. Who was the person in control of the car? Mr. Cote. The chief asked his permission to search. He doesn’t ask for [the defendant’s] permission. Why would that be? Because the driver’s in control of the car. Were those items ultimately recovered outside of the police station and [identified] by Mrs. Stanton in that car at the time the car was searched by the chief? I think you might conclude that I’m not telling you how to make that judgment. You might conclude that. And if you do, I think you might assume those items were well hidden. They escaped the police search. How do you attribute knowledge of the existence of those things to [the defendant]? How is conscious or constructive possession of those items and the implications controlled therefrom attributable to [the defendant]? I suggest on the evidence it can’t.”

       During the preliminary instructions to the jury before the start of evidence, the court advised: “There are two defendants on trial here, although the defendants are being tried together you must consider the case against each separately. That is your findings in one case do not in themselves establish a basis for similar finding in the other case, each defendant is to be considered as if it was alone in the offenses for which he stands charged. You will be required therefore to render a verdict upon each defendant separately.”
      During its charge to the jury, the court stated: “Now, there are multiple defendants in this case. There are two defendants on trial here. Although the defendants are being tried together, you must consider the case against each separately. That is, your findings in one case do not in themselves establish a basis for similar findings in the other case. ... I remind you that during the course of the trial, certain evidence was admitted for you to consider in the case of Joseph Cote, but you were not instructed to consider this particular evidence in connection with the other defendant .... This evidence was the statements alleged to have been made by Mr. Cote to Chief Raymond Driscoll ... in Rhode Island. Similarly, certain evidence was admitted for you to consider of the [defendant], but you were instructed not to consider this particular evidence in the charges against Mr. Cote. This evidence was statements alleged to have been made by [the defendant] to Sergeant Arnold .... Your verdict for each defendant must be based solely on the evidence that was admitted for your consideration with respect to that particular defendant.”


author: BEAR, J. MIHALAKOS, J.,

text:
    ANN MYLES v. ROBERT MYLES
    (AC 32635)
    Lavine, Bear and Mihalakos, Js.

      Argued November 15, 2011
    officially released July 3, 2012

      Kenneth J. Bartschi, with whom were Brendon P. Levesque, and, on the brief, DanaM. Hrelic and Joseph T. O’Conner, for the appellant (plaintiff).

      Steven D. Ecker, with whom was M. Caitlin S. Anderson, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Ann Myles, appeals from the judgment of the trial court granting the motion of the defendant, Robert Myles, for an order that the plaintiff refrain from further disseminating or discussing the content of the transcript of the court’s November 25, 2008 hearing on custody and parenting issues (visitation hearing). On appeal, the plaintiff claims that the court, Shay, J., exceeded its authority by expanding the original sealing order of the court, Hon. Dennis F. Harrigan, judge trial referee. Specifically, she claims that Judge Shay erred in that he expanded Judge Harrigan’s sealing order by improperly prohibiting her from (1) disseminating to third parties the transcript, or portions thereof, of the visitation hearing and (2) discussing with third parties the subject matter of the transcript of the visitation hearing. We agree that the prohibition on discussing the subject matter of the visitation hearing was an improper expansion of Judge Hamgan’s order and, accordingly, reverse in part the judgment of the trial court.

The relevant facts are as follows. The plaintiff and the defendant were married on November 5, 1988, and have two minor children. In February, 2007, the plaintiff initiated a dissolution proceeding against the defendant. On November 17, 2008, the defendant filed a motion requesting that the court order that the courtroom be closed for the visitation hearing and that the record of that hearing be sealed pursuant to General Statutes §§ 46b-!! and 46b-49. On November 25, 2008, Judge Harrigan granted that motion, finding that the private interests of the minor children and the parties overrode the interest of the public. On December 23, 2008, a judgment of dissolution entered. On April 26, 2010, the defendant filed a motion for an order requesting that the court order the plaintiff to stop disseminating copies of the visitation hearing transcript to third parties. Following a July 19, 2010 hearing, Judge Shay granted the defendant’s motion and ordered the plaintiff to refrain from disseminating to anyone the transcript, excerpts of the transcript, verbal summaries of the transcript or the subject matter contained in the transcript of the visitation hearing. Judge Shay further ordered that any copies of the transcript that had been disseminated to third parties be returned to the attorney for the minor children. On August 4, 2010, the plaintiff filed a motion for reconsideration, which was denied. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that Judge Shay improperly construed Judge Harrigan’s order and expanded its prohibitions. She argues that Judge Harrigan, in his November 25, 2008 order, closed the courtroom and sealed from public inspection the transcript and record from the visitation hearing, but that he did not enter a gag order on the parties prohibiting them from releasing copies or verbal summaries of the transcript or prohibiting them from discussing with others the subject matter of the hearing. She contends that the order prohibited court personnel, not the parties, from releasing information. We conclude that Judge Shay properly construed Judge Harrigan’s order as prohibiting the dissemination of the transcript, excerpts of the transcript, and verbal summaries of the transcript of the visitation hearing, but that he improperly expanded the order to include discussion of the subject matter of the hearing.

“The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The judgment should admit of a consistent construction as a whole. ... To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances.” (Internal quotation marks omitted.) Waterbury v. Phoenix Soil, LLC, 128 Conn. App. 619, 626, 20 A.3d 1 (2011).

In this case, the defendant filed a motion, pursuant to §§ 46b-ll and 46b-49, to close the visitation hearing to the public and to keep “confidential and not . . . open to public inspection” the record of that hearing. Judge Harrigan. granted that motion, closed the courtroom and sealed the record. Although the plaintiff argues that Judge Harrigan’s order did not prohibit the parties from disseminating the transcript of the visitation hearing, but only prohibited court personnel from disseminating it, we conclude that the order clearly provided (1) that the hearing be closed to the public and that, except by order of the court, (2) the record be kept confidential and (3) the record be sealed and not be open to public inspection. The portion of the order keeping the record, including the transcript, of the visitation hearing confidential was binding on the parties unless and until modified by further order of the court.

Section 46b-ll provides in relevant part that “[t]he records and other papers in any family relations matter may be ordered by the court to be kept confidential and not to be open to inspection except upon order of the court or judge thereof for cause shown.” (Emphasis added.) The defendant requested, in part, in his motion for order that the court order that the record of the visitation hearing be kept confidential pursuant to § 46b-ll. Judge Harrigan granted that motion. Although the dissent posits that we have “nonetheless concluded, through a single declarative statement, that the statute prohibited the parties from disseminating the visitation hearing transcript,” we have made no such declaration. Section 46b-ll clearly states that the court, inter alia, may order that the record and papers be kept confidential. In this case, Judge Harrigan granted the defendant’s motion that the “records and other papers pertaining to the custody and parenting issues” remain confidential, which Judge Harrigan had the discretion to do under § 46b-ll.

The dissent also asserts that Judge Harrigan’s intent to allow the parties to disseminate the transcript can be discerned from his failure to grant a gag order in this case. We have found nothing in the record to demonstrate that any party requested a gag order in this case, i.e., an order in addition to or separate from the order sought by the defendant in his motion. The defendant requested, in part, that the record, which includes the transcript, be kept confidential, and Judge Harrigan clearly granted that motion.

The dissent also attempts to support its position by arguing that Judge Harrigan’s refusal to grant a request made by the plaintiffs counsel that the attorneys, but not the parties, could obtain a copy of the sealed order regarding visitation is further proof of the judge’s intent that the parties were not prohibited from disseminating the sealed transcript. We see no correlation or contradiction between Judge Harrigan’s ruling that the parties were entitled to copies of the sealed order and his order granting the motion that, in part, prohibited the plaintiffs dissemination of the sealed transcript, a copy of which the parties also were entitled to as one of the “records and other papers pertaining to the custody and parenting issues.” Judge Harrigan did not abuse his discretion either in ruling that the parties were entitled to copies of the sealed order related to visitation, or in granting the defendant’s motion to seal and to keep confidential the record of the visitation hearing, which, of necessity, meant that the parties were not at liberty to disseminate such materials to members of the public prior to seeking a further order of the court giving them permission to do so. See Arrington v. Arrington, 930 So. 2d 1068, 1070 (La. App. 2006) (discussing trial court’s previous finding of contempt against wife for violating order that sealed record in dissolution proceeding when “[the wife] sat right here in the courtroom while the [c]ourt ordered the record to be sealed because of the allegations by [the wife] towards [the husband] . . . [a]nd ... in response to that [the wife] makes copies of the amended and supplemental petition and passes them out to her friends at the church”). The fact that the parties, because of their status as parties, were entitled to receive a copy of the sealed order and the transcript does not permit them to ignore Judge Harrigan’s order to keep each document confidential.

Judge Harrigan ordered that the record from the visitation hearing be sealed and kept confidential, in part to “to secure the privacy and security of the minor children and the parties.” The dissent fails to explain how such a clear order could be effectuated if the non-moving party simply could disseminate her copy of the transcript freely to the public without further order of the court. In this case, there was a contested hearing for which Judge Harrigan ordered the record sealed and kept confidential. The only reasonable interpretation of such an order is that neither court personnel nor the parties could disseminate parts of the record to members of the public. The dissent’s interpretation of the order simply fails to effectuate its purpose, namely, unless otherwise permitted by the court, to keep the record sealed and confidential in order “to secure the privacy and security of the minor children and the parties.”

After reviewing the record in this case, we conclude that Judge Shay properly determined that Judge Harri-gan’s order prohibited the parties from disseminating copies, portions or summaries of the transcript and the record of the visitation hearing prior to seeking a further order of the court giving them permission to do so, and that the plaintiff violated that order.

We further conclude, however, after review of the record, that the parties are not prohibited from merely stating or discussing their independent knowledge of the subject matter of the visitation hearing, provided the statements or discussion do not include any details of or information from the confidential proceeding. Thus, although Judge Shay’s 2010 order was intended to effectuate Judge Harrigan’s original order by keeping the details and content of the visitation hearing confidential, it was overbroad to the extent it prohibited the parties from stating or discussing their independent knowledge of the subject matter of the hearing. We note that the defendant’s attorney, during oral argument before this court, indicated that he could not defend Judge Shay’s order as prohibiting the parties from verbally conveying their independent knowledge of the subject matter of the visitation hearing. We appreciate counsel’s statement on behalf of the defendant, and we agree that this portion of Judge Shay’s order was an extension rather than an explication of Judge Harrigan’s original order.

The judgment is reversed only insofar as the order prohibits the parties from merely stating or discussing the subject matter of the visitation hearing, provided the statements or discussion do not include any details of or information derived solely from the confidential proceeding and also providing such statements or discussion are based on their independent knowledge and not on information obtained from the hearing, and the case is remanded with direction to vacate that part of the order. The judgment is affirmed in all other respects.

In this opinion LAVINE, J., concurred.

MIHALAKOS, J.,

concurring in part and dissenting in part. I agree with the majority that the trial court improperly prohibited the plaintiff from discussing with third parties the subject matter of the transcript of the visitation hearing; however, I respectfully disagree with the majority’s conclusion that the trial court properly prohibited the plaintiff from disseminating to third parties the transcript of that hearing.

The following facts are relevant to this discussion. In February, 2007, the plaintiff initiated a dissolution proceeding against the defendant. On November 17, 2008, the defendant filed a motion pursuant to General Statutes §§ 46b-ll and 46b-49 for a closed hearing and to seal the records relating to the custody and parenting issues being contested by the parties at that time. On November 25, 2008, the trial court, Hon. Dennis F. Harrigan, judge trial referee, held the visitation hearing and granted the defendant’s motion, ordering that two motions and the exhibits attached thereto be sealed, the courtroom be closed to the public and the transcript of the proceedings that day be kept under seal.

On April 26, 2010, the defendant filed a motion seeking an order that the plaintiff, in accordance with Judge Harrigan’s order, not disseminate or disclose to any other individual the transcript of the November 25,2008 hearing, nor discuss the contents of that transcript. On July 19, 2010, the trial court, Shay, J., held a hearing on that motion. Judge Shay granted the defendant’s motion for order and noted that Judge Harrigan’s order was “simple” and “straightforward,” and that he was “not expanding” Judge Harrigan’s order but merely was “enforcing” it. Judge Shay ordered that any copies of the transcript that had been disseminated to third parties be returned to the attorney for the minor children. He also indicated that the parties were prohibited from talking about the subject matter of the transcript. This appeal followed.

Whether Judge Shay properly construed the order of Judge Harrigan is a question of law subject to plenary review. See State v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010). “As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making .... Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The [order or] judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 91-92, 952 A.2d 1 (2008).

The conclusion of the majority that the parties are prohibited from disseminating the transcript of the visitation hearing is one reached through its analysis of § 46b-ll, pursuant to which the defendant requested that Judge Harrigan seal the record of that hearing. Section 46b-ll provides in relevant part: “[T]he records and other papers in any family relations matter may be ordered by the court to be kept confidential and not to be open to inspection except upon order of the court or judge thereof for cause shown.” Although it is unclear from the plain meaning of the statute whether the court may order the parties, or only court personnel, to keep the record “confidential,” the majority has nonetheless concluded, through a single declarative statement, that the statute prohibited the parties from disseminating the visitation hearing transcript.

The majority offers its statutory construction of § 46b-ll as if it alone decides the issue; however, our standard of review clearly indicates that when construing a court order, “[t]he determinative factor is the intention of the court as gathered from all parts of the [order or] judgment.'’'’ (Emphasis added; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 91. Even assuming that the majority’s interpretation of § 46b-ll is valid, its statutory construction is of no moment here precisely because the intention of the court is determinative of the analysis under our standard of review.

If Judge Harrigan meant to prevent the parties from disseminating the record he should have specifically ordered such a result or imposed a gag order. He did neither of these. It is my view that Judge Harrigan not only impliedly but expressly conveyed his intention that the parties were not prohibited from disseminating the visitation hearing transcript.

Because we conclude that Judge Shay improperly interpreted Judge Harrigan’s order to be a prohibition on the parties’ ability to discuss the subject matter of the visitation hearing, then we must likewise conclude that Judge Harrigan did not intend to issue a prohibition on the parties’ ability to disseminate the visitation hearing transcript. Inherent in a court’s authority to impose a gag order is the nondissemination of the transcript of the courtroom proceeding. To not issue such a gag order and then to order that the parties cannot disseminate the transcript yields an inconsistent result. It is to say that one can freely discuss the subject matter of the hearing with anyone one chooses (since a gag order was not made) but that one cannot disseminate the transcript, even though such an order was not given. Judge Harrigan did not issue a gag order here, and, therefore, he did not intend to prevent the parties from disseminating the visitation hearing transcript.

Similarly, during the visitation hearing, Judge Harri-gan expressly conveyed that he did not intend such a result. The defendant specifically asked Judge Harrigan to issue an order prohibiting the parties from disseminating his signed order, which was entered on a ten page portion of the transcript of that hearing. Judge Harrigan declined to grant the request during the following colloquy with counsel:

“[The Plaintiffs Counsel]: One question I have, Your Honor, is at some point could we get a copy of Your Honor’s signed order?
“The Court: Once I get the transcript, I will have it reduced to a written order that I will sign. That will also be under seal but each of you will be entitled to it.
“[The Plaintiffs Counsel]: Okay.
“The Court: Does that satisfy you?
“[The Plaintiffs Counsel]: That’s fine.
“[The Defendant’s Counsel]: Except, Your Honor, may we have an order that that order that is signed remain with counsel and not be disseminated beyond counsel? That is the concern.
“[The Plaintiffs Counsel]: I think the parties are entitled to a copy of the order.
“The Court: Well, it is their case.
“[The Plaintiffs Counsel]: Absolutely.
“The Court: I can’t control that but it seems to me that if they want to upset the apple cart at this late date, that is unfortunate. They are entitled to a copy of the order counsel. It is their case, like it or not.”

It is impossible to reconcile Judge Harrigan’s refusal to grant this request with the majority’s position that he prohibited the parties from disseminating this transcript. Judge Harrigan had the opportunity at this juncture to specifically order that the parties could not disseminate the visitation hearing transcript. He chose not to. Instead, short of issuing such a prohibition, he merely acknowledged that it would be “unfortunate” if the parties disseminated the visitation hearing transcript and, in so doing, “upset the apple cart . . . .” The record is, moreover, bereft of a reasonable basis on which to conclude that Judge Harrigan intended otherwise. Contrary to our standard of review, the majority has fashioned a result inconsistent with Judge Harrigan’s intention. Because Judge Harrigan did not issue a gag order and did not issue an order prohibiting the parties from disseminating the visitation hearing transcript in spite of the fact that such a request was made, his intention to seal the record only as it pertained to court personnel was unequivocal.

Accordingly, I would reverse the judgment of the trial court.

       General Statutes § 46b-ll provides: “Any case which is a family relations matter may be heard in chambers or, if a jury case, in a courtroom from which the public and press have been excluded, if the judge hearing the case determines that the welfare of any children involved or the nature of the case so requires. The records and other papers in any family relations matter may be ordered by the court to be kept confidential and not be open to inspection except upon order of the court or judge thereof for cause shown.”

       General Statutes § 46b-49 provides: “When it considers it necessary in the interests of justice and the persons involved, the court shall, upon the motion of either party or of counsel for any minor children, direct the hearing of any matter under this chapter and sections 17b-743, 17b-744, 45a-257, 46b-1, 46b-6, 47-14g, 51-348a and 52-362 to be private. The court may exclude all persons except the officers of the court, a court reporter, the parties, their witnesses and their counsel.”

       The term “gag order” appears in at least two Supreme Court opinions and three opinions of this court. See State v. Lenarz, 301 Conn. 417, 432 n.11, 22 A.3d 536 (2011); New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 489, 491, 492 nn.8 and 9, 496-97, 970 A.2d 570 (2009) (parties had been ordered “not to have any communication . . . regarding this litigation, or any ramification of this litigation, or what to do with proposed settlement funds that are coming in . . . [including] any and all communication on a website, letters, e-mails, any type of communication between the parties” [internal quotation marks omitted]); Vargas v. Doe, 96 Conn. App. 399, 414 n.11, 900 A.2d 525 (2006); State v. Kelly, 45 Conn. App. 142, 147, 695 A.2d 1 (1997); Cassella v. Civil Service Commission, 4 Conn. App. 359, 361, 494 A.2d 909 (1985), aff'd, 202 Conn. 28, 519 A.2d 67 (1987). A gag order is “[a] judge’s order directing parties, attorneys, witnesses, or journalists to refrain from publicly discussing the facts of a case. . . .” Black’s Law Dictionary (7th Ed. 1999).

       The text of the defendant’s motion for closed hearing and records pen-dente lite is as follows: “The [defendant respectfully moves the [c]ourt pursuant to . . . §§ 46b-ll and 46b-49, that the courtroom be closed, and the public and press be excluded from any portion of the proceeding scheduled on Tuesday, November 25, 2008, as it pertains to the custody and parenting issues in this matter by reason of the fact that it is in the best interest of the minor children of the parties. The [defendant further moves that the records and other papers pertaining to the custody and parenting issues be kept confidential and not be open to inspection except by order of the [c]ourt for cause shown.
      “Such orders are necessary to preserve interests that override the public’s and/or press’ interest in attending such proceedings and/or viewing such records and papers, and to secure the privacy and security of the minor children and the parties. The order sought is no broader than necessary to protect the interests of the minor children and parties.”
      On November 25, 2008, Judge Harrigan granted the defendant’s motion, including but not limited to the portions thereof “that the records and other papers pertaining to the custody and parenting issues be kept confidential and not be open to inspection except by order of the [c]ourt for cause shown . . .’’in order “to secure the privacy and security of the minor children and the parties.”

       According to Black’s Law Dictionary (7th Ed. 1999), the court record is “[t]he official report of the proceedings in a case, including the filed papers, a verbatim transcript of the trial or hearing (if any) and tangible exhibits.”

       We are unable to find any support in the record for the dissent’s assertion that Judge Harrigan refused to prohibit the parties from disseminating the visitation hearing transcript. The portion of the transcript that is cited by the dissent for this point does not support the dissent’s assertion.

       The majority states that the order of Judge Harrigan granted the defendant’s motion “that, in part . . . prohibited the plaintiffs dissemination of the sealed transcript . . . .” My review of the order indicates no such language. On November 25, 2008, Judge Harrigan granted the defendant’s motion for closed hearing and records pendente lite, which stated in relevant part: “The [defendant respectfully moves the [cjourt pursuant to . . . §§ 46b-ll and 46b-49, that the courtroom be closed, and the public and press be excluded from any portion of the proceeding .... The [defendant further moves that the records and other papers pertaining to the custody and parenting issues be kept confidential and not be open to inspection except by order of the [c]ourt for cause shown.”