author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. JOSE ARCIA
    (AC 28433)
    Bishop, Gruendel and Peters, Js.

      Argued September 23
    officially released November 25, 2008

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Chris A. Pelosi, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Jose Arcia, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). He alleges evidentiary error and instructional impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant met O in 1996, and a romantic relationship ensued. In the fall of 1999,0 and her daughters, E, L, and J, moved into the defendant’s condominium in Hartford. At that time, E was thirteen years old.

Upon their moving into the condominium, the relationship between O’s daughters and the defendant changed. The defendant became stricter with the girls, frequently punishing them for violating certain rules by having them kneel on the floor with their arms extended and palms up. The defendant at times placed books on their open palms, which he testified was a form of corporal punishment that he learned in Nicaragua.

Furthermore, after the girls moved into the defendant’s condominium, the defendant began to touch E’s intimate parts. At trial, E detailed several physical encounters with the defendant. For example, while lying on the defendant’s bed watching television with him, E confided in the defendant that she was experiencing problems with her boyfriend. The defendant responded by digitally penetrating E’s vagina, telling her that this was what her boyfriend was supposed to do. On another occasion, E was taking a shower when the defendant entered. Once in the shower with E, the defendant shaved her pubic hair. He then instructed E to go to his bedroom and lie down. The defendant then digitally penetrated E’s vagina and fondled her breasts. E testified that the defendant touched her inappropriately on a regular basis.

In November, 2002, the defendant ended his relationship with O. Sometime thereafter, E informed her older sister, J, that the defendant had sexually assaulted her. J shared this information with O, who contacted the police. The defendant subsequently was charged by information with twelve counts alleging sexual assault and risk of injury to a child. Following a trial, the jury found the defendant guilty of one count of sexual assault in the second degree in violation of § 53a-71 (a) (1) and one count of risk of injury to a child in violation of § 53-21 (a) (2); it found him not guilty of the remaining counts. The court denied the defendant’s subsequent motions for a judgment of acquittal and for a new trial, and rendered judgment in accordance with the verdict. It sentenced the defendant to a total effective term of fifteen years incarceration, execution suspended after eight years, with ten years of probation. This appeal followed.

I

The defendant claims that the court improperly admitted into evidence E’s journal. That claim is governed by the abuse of discretion standard of review. “Unless an evidentiary ruling involves a clear misconception of the law, the [t]rial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 532, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).

The following additional facts are relevant to the defendant’s claim. On direct examination, E testified that the defendant began touching her intimate parts shortly after her family moved into his condominium, and she detailed several specific incidents. E also testified that she never told anyone about those incidents “because [the defendant] had control of everything and if I would have told my mom, she would have kicked me out like she did to my sister because [the defendant] told her to. . . . My mom wouldn’t believe me. She was in love with [the defendant].”

On cross-examination, the defendant sought to impeach E’s testimony. Defense counsel confronted E with her February 5, 2004 written statement to the police, referring to inconsistencies in her testimony on direct examination. Defense counsel repeatedly questioned E as to her statement to the police that the defendant had engaged in anal intercourse with her “[every day, two] or three times a day” when she was thirteen years old and in the seventh grade. In response, E testified that “yes, it would be two or three times a day.” On redirect examination, E explained that her reference to “two or three times a day” pertained to sexual encounters generally. She stated that when she made that remark, she “meant everything. . . . When he used to finger me, when he used to touch me, when he used to take a shower with me. When you say ‘every day,’ it was because I lived in a hell.” In addition, E acknowledged on cross-examination that she was unsure precisely when that assault began, stating, “I don’t know the year,” and, “I’m not doing the math.” E also conceded that she did not initially inform her mother or sisters of her sexual encounters with the defendant.

During cross-examination, defense counsel also asked E about discussions she had with counselors. Defense counsel then raised the subject of E’s journals:

“[Defense Counsel]: In front of [your counselors], did you ever say that you had journals or diaries of all the sexual abuse that [the defendant] had committed as the acts were taking place?
“[The Witness]: I never said ... all my journals were about him.
“[Defense Counsel]: No, I’m not suggesting that all your journals were about him. But didn’t you say that you wrote down everything he had done to you in the diary?
“[The Witness]: I write everything that happens to me in my diary.
“[Defense Counsel]: All right. And didn’t you tell [your counselors] when you were interviewed, that you had these journals or diaries that talked about what [the defendant] had done to you?
“[The Witness]: Yes, I had my journals.
“[Defense Counsel]: Right. And what you had said to them was that you were writing down in your diary as these things were happening, correct?
“[The Witness]: Yes.
“[Defense Counsel]: All right. And you went to get your diaries today, didn’t you?
“[The Witness]: Yes.
“[Defense Counsel]: And nothing is in there; isn’t that right?
“[The Witness]: Cause those are not the only diaries I have.
“[Defense Counsel]: Oh, okay. Where are the other diaries that talk about what [the defendant] did to you?
“[The Witness]: I don’t know because I moved out from my mom’s house.”

Later, on recross-examination, counsel for the defendant again asked: “[T]he diaries where you claim you wrote about all the things that [the defendant] did to you while they were happening have . . . disappeared? . . . Where are they now?” E admitted that she did not know the whereabouts of those journals.

On July 13, 2006, Detective Naomi Rivera Cagianello of the Hartford police department testified that she took statements from L, J and O on May 14, 2003, and from E on February 5, 2004. Following her testimony and outside of the courtroom, Cagianello asked the prosecutor why he had not inquired about “the journal entry.” Cagianello indicated that “although not in the warrant, she had tagged as evidence a journal given to her by E at the time that E provided her written statement to her.” It is undisputed that prior to that time, neither the state nor the defendant was aware of that journal’s existence, as Cagianello had not mentioned it in her police report or trial testimony. In addition, counsel for the defendant informed the court that “as to the chain of custody and how the events took place, we’re obviously not claiming any bad faith . . . .”

On July 17, 2006, the state sought to offer into evidence two portions of the recently discovered journal. After hearing from both parties on the matter, the court concluded that the journal entries were admissible on three grounds. It stated: “The portions that the state seeks to introduce will be admitted to corroborate E’s testimony that the defendant had contact with her intimate parts as charged in counts five and six .... It is evidence that tends to show why E did not disclose the abuse at the time .... It is also a prior consistent statement to rebut a claim of recent fabrication, as the [defendant] in his impeachment of E sought to discredit her and [to imply] that she was testifying falsely. The statement is trustworthy, having been written contemporaneously with the events, [and] the witness is here and subject to cross-examination. The court finds that the probative value outweighs the prejudice to the defendant, and it will be admitted.”

E subsequently was recalled to testify about the two journal entries and confirmed that the journal belonged to her and was written by her hand. The state then moved for the admission of the two journal entries, which the court granted after noting the defense counsel’s objection. E then read into the record the first entry from her journal: “I like my mom, but sometimes I think I like [the defendant], but I do not like when he be feeling on me; I just don’t like when he do those things when I’m going to sleep or going to see television.” E testified that when she wrote, “I do not like when he be feeling on me,” she meant the defendant’s touching of her vagina, breasts and buttocks. E next read into the record the second entry from her journal: “My mom thinks [the defendant] is a good man, but he is not. He is always feeling on me; he is always doing that to me. For me to go out with my friends when my mom say no, he says yes but only if he could feel on me, and that’s the only way I could go out. But I do hurt when he be doing this.” E testified that she had to allow the defendant to touch her intimately before he permitted her to go out with friends and that he had hurt her physically and mentally. She stated that “I was scared, and it hurt because I gave him a trust and he broke that trust.” Defense counsel thereafter did not cross-examine E.

On appeal, the defendant claims that the court abused its discretion in admitting into evidence the journal entries. We do not agree. The court properly admitted the journal entries as prior consistent statements offered to rebut a charge of recent fabrication.

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies. . . . Prior consistent statements of a witness are generally regarded as hearsay and are not admissible at trial, either for their truth or for the propose of rehabilitating a witness’ damaged credibility. . . . This rule, however, is not absolute. The trial court, within its discretion, may admit a prior consistent statement if offered to rehabilitate a witness who has been impeached . . . by a claim of recent fabrication .... When a prior consistent statement is admitted under [that exception], it is admitted to affect credibility only and not to establish the truth of the statement.” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 803-804, 709 A.2d 522 (1998). One noted commentator explained the rationale for that exception: “Impeachment on the ground of recent contrivance ... is more nearly connected with the case of impeachment by self-contradiction. The charge of recent contrivance is usually made, not so much by affirmative evidence, as by negative evidence that the witness did not speak of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now, i.e., as a self-contradiction .... The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story . . . .” (Citation omitted.) 4 J. Wigmore, Evidence (Chadboum Rev. 1972) § 1129, pp. 270-71.

Accordingly, § 6-11 (b) of the Connecticut Code of Evidence provides in relevant part that “[i]f the credibility of a witness is impeached by ... (3) a suggestion of recent contrivance, evidence of a prior consistent statement made by the witness is admissible, in the discretion of the court, to rebut the impeachment.” As our Supreme Court recently stated, “the determination of whether to allow the introduction of a prior consistent statement for rebuttal purposes is left to the sound discretion of the trial court. . . . [I]n stating that evidence of a witness’ prior consistent statement is admissible in the discretion of the court, [§] 6-11 stresses the broad discretion afforded the trial judge in admitting this type of evidence.” (Citations omitted; internal quotation marks omitted.) Daley v. McClintock, 267 Conn. 399, 412, 838 A.2d 972 (2004).

In the present case, the court acted well within its discretion in allowing the state to introduce the journal excerpts to rebut a suggestion that E recently contrived her testimony. During cross-examination, defense counsel repeatedly confronted E with her February 5, 2004 written statement to the police, in which she stated that “[t]his happened [every day, two] or three times a day.” After establishing that E had stated that she wrote in her journal everything that the defendant had done to her and that she did so “as these things were happening,” he inquired, “[a]nd you went to get your diaries today, didn’t you?” When E answered affirmatively, defense counsel stated: “And nothing is in there; isn’t that right?” In addition, the following colloquy occurred during defense counsel’s recross-examination of E:

“[Defense Counsel]: Now, I believe we went over this in [cross-examination], but you had indicated, when you were interviewed . . . that you had journals or diaries where you recorded what [the defendant] was doing to you at about the time that it happened, correct?
“[The Witness]: Yes, I had journals.
“[Defense Counsel]: That’s what you told them. But now you’ve brought some journals to court here today, correct?
“[The Witness]: Yes.
“[Defense Counsel]: An inspector from the prosecutor’s office went to Manchester to get those diaries for you, right, this morning?
“[The Witness]: Yes.
“[Defense Counsel]: But the diaries where you claim you wrote about all the things that [the defendant] did to you while they were happening, those have miraculously disappeared?”

After the state objected to the term “miraculously” and the court sustained the objection, defense counsel again asked E the location of the journal containing her accounts of the alleged assaults, to which E replied that she did not know.

In State v. Hines, supra, 243 Conn. 796, the Supreme Court stated that “it is irrelevant that the defendant did not expressly pursue a theory of recent fabrication. The only relevant inquiry is whether the jury reasonably may have been left with the impression that [the witness’] testimony was a recent fabrication.” Id., 804-805. The court reasoned that “[i]t is not necessary that the impeachment be explicit, i.e., that an actual allegation of recent fabrication be made, but only that a jury be able to reasonably infer that such is occurring.” (Internal quotation marks omitted.) Id., 805. It thus held that “[w]hen atrial court reasonably can conclude that there was sufficient evidence to permit a jury to draw an inference of recent fabrication, it may admit a prior consistent statement for rehabilitative purposes.” Id., 806.

Such is the case here. In light of the foregoing colloquies between counsel for the defendant and E, the court reasonably could conclude, as it did, that defense counsel “in his impeachment of E sought to discredit her and [implied] that she was testifying falsely.” E’s inability to produce or to refer to any statement in her journals concerning the alleged sexual assault, when considered in tandem with her earlier statement that she had written in her journal everything that the defendant had done to her as it was happening and her admission that she did not initially tell her mother or sisters about her sexual encounters with the defendant, could lead the jury to conclude that her testimony was recently fabricated. Moreover, the journal entries admitted into evidence contained statements consistent with E’s trial testimony. Affording the court broad discretion and indulging every reasonable presumption in favor of the court’s ruling as our standard of review requires, we cannot say that the court abused its discretion in admitting into evidence, as prior consistent statements, E’s two journal entries.

II

The defendant next contends that the court improperly instructed the jury on the statutory requirements of § 53-21.* 1*3** At trial, the defendant neither filed a request to charge nor objected to the jury instructions that ultimately were given by the court. Because he did not properly preserve that claim, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Smith, 70 Conn. App. 393, 398, 797 A.2d 1190, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002).

In instructing the jury on § 53-21, the risk of injury to a child statute, the court stated in relevant part: “[T]he state must show that the defendant’s behavior was likely to impair the child’s health or morals. ‘Likely’ means in all probability or possibly—or possibility rather. Probability or possibility. Thus, the state must show that it was possible or probable that the sexual and indecent behavior of the defendant would injure or weaken E’s health or morals. There is no requirement that the state prove actual harm to E’s health or morals.” The defendant argues, and the state agrees, that the term “likely to impair” does not mean possible, as the court instructed.

Our analysis is governed by the decision of our Supreme Court in State v. Romero, 269 Conn. 481, 849 A.2d 760 (2004). In Romero, the trial court provided a verbatim instruction to the jury on the “likely to impair” requirement of § 53-21 that was identical to that at issue in the present case. Id., 488. On appeal, the Supreme Court concluded that “the term ‘likely,’ as used in § 53-21 (a), cannot be understood fairly to encompass a meaning of either ‘possible’ or ‘in all possibility’ and, therefore, the trial court’s instructions to the contrary were improper.” Id., 491. The court then considered whether, under Golding’s third prong, there existed “a reasonable possibility that the jury was misled by these improprieties.” Id., 492. The court analyzed the charge as a whole: “[W]e note that the trial court provided the jury with a thorough explanation of the concept of reasonable doubt and the state’s burden of proving each element of each charge beyond all reasonable doubt. We further note that the trial court’s instructions reduced § 53-21 (2) to three elements, reiterating the state’s burden as to each of the elements. In this regard, the trial court instructed that the state had to prove beyond reasonable doubt that: (1) [the victim] was under the age of sixteen at the time of the criminal acts; (2) the defendant had contact with [the victim’s] intimate parts and, in connection with the second risk of injury count, that the defendant had subjected [the victim] to contact with the defendant’s intimate parts; and (3) such contact with intimate parts took place in a sexual and indecent manner that was likely to impair [the victim’s] health or morals.” Id., 492-93. The court concluded that, viewing the charge as a whole, “there does not exist a reasonable possibility that the jury was misled by the trial court’s instructions as to the meaning of the term ‘likely’ in § 53-21 (2).” Id., 494. Guided by the Romero precedent, this court reached a similar result in State v. Michael A., 99 Conn. App. 251, 267, 913 A.2d 1081 (2007), and State v. Ritrovato, 85 Conn. App. 575, 606, 858 A.2d 296 (2004), rev’d in part on other grounds, 280 Conn. 36, 905 A.2d 1079 (2006).

The court’s charge in the present case, viewed as a whole, mirrors that at issue in Romero. The court provided an extensive explanation of reasonable doubt and the state’s burden to establish under that standard that (1) E “was under the age of sixteen at the time of the alleged incident,” (2) that “the defendant had contact with the intimate parts of E,” and (3) that “the contact with the intimate parts of E took place in a sexual and indecent manner, which was likely to impair the health or morals of a child, that is, E.” The court further instructed the jury that said contact “must have taken place in a sexual and indecent manner as opposed to an innocent touching or an accidental, inadvertent or reflexive touching.” In addition, the court later correctly defined “likely,” as that term is used in § 53-21, stating that the term “means in all probability or probably” when instructing the jury on an additional risk of injury to a child count. Finally, as the state observes, because the jury found the defendant guilty of having sexual intercourse with someone younger than age sixteen, “it is difficult to imagine a finding that this conduct could not be deemed likely—in the context of probably—to impair [the victim’s] morals.” State v. Romero, supra, 269 Conn. 493. Accordingly, we conclude that, considering the instructional impropriety within the context of the entire charge, there is no reasonable possibility that the jury was misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”
      General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .”
      We note that the conduct that gave rise to the risk of injury charge allegedly occurred between March, 1999, and October, 2002. Although § 53-21 was amended during that time, there is ho dispute that the conduct in which the defendant allegedly engaged was prohibited under all of the revisions of the statute applicable during that time period. In the interest of simplicity, we refer to the current revision of § 53-21.

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

       The amended information included four counts pertaining to the alleged sexual assault and risk of injury to L. Because the jury found the defendant not guilty of those charges, we do not detail them here.

       The terms journal and diary are used interchangeably in both the parties’ briefs and the record before us.

       Because we conclude that the court properly admitted the journal entries as prior consistent statements offered to rebut a charge of recent fabrication, we do not consider alternate grounds of admission.

       The defendant also claims that the court improperly failed to provide a limiting instruction to the jury regarding the admission of E’s journal entries. The defendant failed to preserve that claim at trial and now requests Golding review. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). This court has held that the failure of the trial court, sua sponte, to provide such a limiting instruction is not of constitutional dimension. We stated: “[T]he failure of the trial court to give a limiting instruction concerning the use of evidence ... is not a matter of constitutional magnitude. . . . Absent a claim of constitutional magnitude, the defendant’s unpreserved claim fails to satisfy the second prong of Golding and is, therefore, not reviewable.” (Internal quotation marks omitted.) State v. Wild, 43 Conn. App. 458, 467, 684 A.2d 720, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996); see also State v. Ramirez, 101 Conn. App. 283, 297, 921 A.2d 702 (well established in Connecticut that trial court generally not obligated, sua sponte, to give limiting instruction), cert. denied, 283 Conn. 909, 928 A.2d 539 (2007), cert. denied, 552 U.S. 1109, 128 S. Ct. 895, 169 L. Ed. 2d 747 (2008). The claim fails.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. Golding’s first two prongs relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Jarrett, 82 Conn. App. 489, 492 n.1, 845 A,2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PATRICK S. WRIGHT
    (AC 29018)
    McLachlan, Gruendel and Borden, Js.

      Argued September 12
    officially released November 25, 2008

      Glenn W. Falk, special public defender, with whom, on the brief, was Caitlin McCann, law student intern, for the appellant (defendant).

      Robin S. Schwarts, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Brannetty Austin, senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Patrick S. Wright, appeals from the judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a (a). The defendant claims that the trial court improperly instructed the jury regarding a theory of criminal liability for which no evidence had been introduced at trial. We affirm the judgment of the trial court.

The defendant was charged under two informations with: (1) two counts of interfering with an officer in violation of § 53a-167a (a); (2) one count of breach of the peace in the second degree in violation of General Statutes § 53a~181 (a) (l); and (3) one count of breach of the peace in the second degree in violation of § 53a-181 (a) (3). The court granted the defendant’s motion for a judgment of acquittal on the first count of breach of the peace in the second degree in violation of § 53a-181 (a) (1). The juiy found the defendant not guilty of one count of interfering with an officer and of the second count of breach of the peace in the second degree in violation of § 53a-181 (a) (3). The jury found the defendant guilty of one count of interfering with an officer in violation of § 53a-167a (a). The court rendered judgment of conviction accordingly.

The jury reasonably could have found the following facts. On Saturday, January 21, 2006, the defendant attended a party at 6 Sunfield Circle in Waterbury. The party extended into the early morning of Sunday, January 22, 2006, and at approximately 3 a.m., a neighbor called the police, complaining about the loud music he heard coming from the party. In response to the call, officers from the Waterbury police department were dispatched to 6 Sunfield Circle. While there, the officers placed the defendant under arrest.

The defendant was turned over to Officer Yolanda Martinez and Officer Michael Allen for transport to the Waterbury police station. Before putting the defendant in a police vehicle, Martinez performed a routine pat-down search on him.

Once at the Waterbury police station, the defendant was escorted by Martinez and Allen to Officer Brian DiStefano for booking. Throughout his transport and delivery to DiStefano, the defendant appeared intoxicated and was belligerent: his speech was slurred, he smelled of alcohol, he staggered and he continuously yelled obscenities such as, “fuck you, you’re a bitch,” “I’m going to fuck up a cop,” and, “I’ll fuck you up.”

When asked to face a wall by DiStefano so that the officer could safely remove the defendant’s handcuffs pursuant to standard booking procedures, the defendant repeatedly turned around to look at Martinez, at the same time yelling, “fuck you," “you can’t arrest me,” and, “I’ll fuck you up.” Eventually, the defendant complied with DiStefano’s orders to face the wall, but as soon as DiStefano removed the defendant’s right handcuff, the defendant turned away from the wall and swung his free arm at DiStefano. DiStefano quickly caught the defendant’s free arm and brought him to the ground. The defendant was immediately put into the closest holding cell.

In one information, the defendant was charged with interfering with an officer in violation of § 53a-167a (a) and breach of the peace in the second degree in violation of § 53a-181 (a) (1), relating to his conduct at 6 Sunfield Circle. In a separate information, the defendant was also charged with interfering with an officer in violation of § 53a-167a (a) and breach of the peace in the second degree in violation of § 53a-181 (a) (3) in connection with his actions at the police station. The two informations were consolidated for trial.

After the state presented its case, the court granted the defendant’s motion for a judgment of acquittal on the breach of the peace charge relating to the defendant’s conduct at 6 Sunfield Circle. The jury thereafter found the defendant not guilty of interfering with an officer in connection with his actions at 6 Sunfield Circle and breach of the peace in relation to his conduct at the police station. The juiy found the defendant guilty, however, on the charge of interfering with an officer in connection with his actions at the police station. The defendant was sentenced to a term of one year imprisonment, execution suspended after six months, followed by three years probation. This appeal followed.

The defendant claims that the court deprived him of his right to a fair trial by instructing the jury on a theory of sexual assault in relation to one of the charges of breach of the peace, namely, breach of the peace in the second degree in violation of § 53a-181 (a) (3), because no evidence regarding sexual assault was introduced at trial. He asserts that the instruction undermined his defense to the charge of interfering with an officer.

The following procedural history is necessary to understand the defendant’s claim. Before jury selection, the court asked the state to give its theory of the case so that the court could begin to prepare its jury instructions. While discussing the second breach of the peace charge in violation of § 53a-181 (a) (3), the court noted that the state was required to prove that the defendant had threatened to commit a crime against another person and asked the state what crime it claimed he had threatened to commit under that statute. The state responded that it was unclear to the state whether, when the defendant was yelling at Martinez during the booking process, his repeated use of the phrases, “fuck you,” and, “fuck you up,” was a threat of a sexual assault in violation of General Statutes § 53a-70 (a) (1) or a physical assault in violation of General Statutes § 53a-61. Accordingly, while instructing the jury regarding the charge that alleged breach of the peace at the police station, the court instructed the jury that it could find the defendant guilty under either of two alternative theories, namely, that he threatened to cause physical injury to Martinez or that he threatened to use force to compel Martinez to have sexual intercourse with him.

The defendant acknowledges that he was found not guilty of the charge for which the challenged instruction was given, namely, breach of the peace in the second degree at the police station, and he does not challenge any instruction regarding the only charge of which he was convicted, namely, interfering with an officer at the police station. Furthermore, the defendant acknowledges that he did not object in any way to the challenged instruction. Nonetheless, he seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),* 1*3* on the theory that the court’s allegedly improper instruction on a charge of which he was found not guilty undermined his defense to the one charge of which he was convicted, We reject the defendant’s claim.

It is axiomatic that the jury is presumed to understand and to have followed the court’s instructions. State v. Clark, 264 Conn. 723, 734, 826 A.2d 128 (2003). The court instructed the jury as follows: “Each one of the three charges must be considered separately by you in determining whether or not the state has proved the defendant guilty beyond a reasonable doubt.” There is nothing in the record to suggest that the jury was in any way confused or misled into misapplying an instruction that was given on one charge to a different charge on which the instruction was not given. The defendant cites no case, and we are not aware of any, that requires the reviewing court to reverse a conviction on constitutional grounds because of an allegedly improper instruction on a charge of which the defendant was found not guilty.

The defendant’s reliance on State v. Ciccio, 77 Conn. App. 368, 823 A.2d 1233, cert. denied, 265 Conn. 905, 831 A.2d 251 (2003), is misplaced. It is true that in Ciccio this court determined that it was error, albeit harmless, for the trial court to . instruct the jury on a theory of criminal liability for which no evidence had been introduced. Id., 379. In that case, however, the defendant had been convicted of the crime for which the improper instruction had been given. It is not a case in which, like the present case, the alleged improper instruction had been given on a charge for which the defendant was found not guilty.

Furthermore, even if we were to consider whether the jury might have somehow transplanted the court’s allegedly improper instruction on the breach of the peace charge into deliberations on the charge of interfering with an officer, the defendant could not prevail under Golding because the claimed error was not truly of constitutional dimension. When a court gives an instruction for alternative theories of liability, one of which was not supported by the evidence, there is no constitutional error because jurors are well equipped to evaluate the testimony presented and to assess whether the evidence adequately supports the charged theory of criminal liability. State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994) (en banc), citing Griffin v. United States, 502 U.S. 46, 59, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991); see also State v. Owens, 39 Conn. App. 45, 49-50, 663 A.2d 1108 (unpreserved claim regarding factually insufficient theory of culpability presented in alternative is not of constitutional magnitude and consequently fails on second prong of Golding), cert. denied, 235 Conn. 927, 667 A.2d 554 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-167a (a) provides in relevant part: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer ... in the performance of such peace officer’s . . . duties.”

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . .

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ... (3) threatens to commit any crime against another person . . .

       The court instructed the jury as follows: “The next element the state must prove beyond a reasonable doubt is that the defendant threatened to commit any crime against another person. The state claims that the defendant threatened to commit the crime of assault or sexual assault against Officer Martinez.
      “Assault in the third degree violates § 53a-61 of the Connecticut General Statutes, which provides as follows, quote, a person is guilty of assault in the third degree when, with intent to cause physical injury to another person, he causes such injury to such person, end quote. A person commits this crime when, one, he intends to cause physical injury to another, and, two, he causes such physical injury to that other person. I earlier defined for you what intent is and how you may go about determining whether it has been proven. Physical injury means impairment of physical condition or pain; that is, reduced ability to act as one would otherwise have acted, or pain. The law does not require that the injury be serious; it may be minor.
      “With respect to the sexual assault, General Statutes § 53a-70 (a) (1) provides, quote, a person is guilty of sexual assault when such person compels another person to engage in sexual intercourse by the use of force against such other person. A person is guilty of sexual assault if, one, he compelled another person to engage in sexual intercourse, and, two, the sexual intercourse was accomplished by the use of force against the victim. Sexual intercourse means vaginal intercourse. Use of force means use of actual physical force or violence or superior physical strength against the victim.
      “Of course, no one claims that the defendant actually assaulted Martinez, and the state does not have to prove that he did so. What the state must prove, however, and prove beyond a reasonable doubt, is that the defendant threatened to commit that crime, assault or sexual assault. Threaten means declaring an intention or determination to injure another person by the commission of the threatened crime. A threat imparts the expectation of bodily harm to one’s person by the crime threatened, thereby inducing fear or apprehension.”

       Under Golding, “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 a constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant’s defense at trial to the charge of interfering with an officer was that he was sexually assaulted by Martinez when she performed the patdown search on him and that the reason he repeatedly turned away from the wall during booking was so that he could obtain Martinez’ badge number in order to file a complaint.

       The defendant also seeks to prevail on his claim under the plain error doctrine. See Practice Book § 60-5. Because we conclude that the defendant cannot prevail under Gólding, and because we see no basis on which the defendant may prevail under the plain error doctrine, we reject his plain error claim.


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. MICHAEL DALY
    (AC 29080)
    Flynn, C. J., and DiPentima and Beach, Js.
    Argued September 5
    officially released December 2, 2008

      Suzanne Z. Curtis, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony J. Spinella, assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The dispositive issue in this appeal is whether a trial court has jurisdiction to consider an objection to the entry of a nolle prosequi filed seven weeks after the nolle was entered in the defendant’s presence. The defendant, Michael Daly, appeals from the judgment of the trial court denying his objection to the entry of a nolle. We conclude that the court lacked jurisdiction to consider the objection. Accordingly, we reverse the judgment and remand the case to the trial court with instruction to dismiss the defendant’s objection.

The record reveals the following relevant facts and procedural history. The defendant was charged with five crimes in three separate files. In CR-06-0205321, the defendant was charged with interfering with an officer in violation of General Statutes § 53a-167a. In CR-06-0205320, the defendant was charged with possession of narcotics in violation of General Statutes § 21a-279 (a) and use of drug paraphernalia in violation of General Statutes § 21a-267 (a). In CR-06-0205317, the defendant was charged with robbery in the third degree in violation of General Statutes § 53a-136 and larceny in the third degree in violation of General Statutes § 53a-124. On February 21, 2007, the defendant pleaded guilty under the Alford doctrine to the charges of robbery in the third degree, larceny in the third degree and possession of narcotics. Following the imposition of the sentence, the court stated: “Costs and fees will be imposed. Nolle noted open counts.” The defendant’s attorney clarified with the court that costs would be waived. The court clerk then asked: “And a nolle on the open file, Your Honor?” The court responded: “Open file.” A nolle was entered for the charges of interfering with an officer and use of drug paraphernalia.

On February 28, 2007, the defendant, representing himself, filed a motion for transcript, requesting a copy of the transcript of the February 21, 2007 proceeding. In this motion, he stated that he was not present when the nolle was entered. On March 5, 2007, the court denied the defendant’s motion, noting that “[the defendant] was present during the entering of the nolle.” On March 19, 2007, the defendant filed a motion for reconsideration of the court’s denial of his motion for transcript, which the court denied on March 20, 2007. On April 11, 2007, the defendant filed an objection to the entry of the nolle, again stating that he was not present when the nolle was entered. The court denied the objection on April 12, 2007. In a subsequent memorandum of decision, dated February 8, 2008, the court explained that it denied the defendant’s objection to the entry of a nolle on the basis of its finding that the defendant was present in court during the entering of the nolle. On August 7, 2007, the defendant filed this appeal from the denial of his objection to the entry of a nolle.

On appeal, the defendant claims that the court improperly denied his objection to the entry of the nolle because the state did not comply with General Statutes § 54-56b and Practice Book §§ 39-29 and 39-30. Specifically, the defendant argues that because the prosecutor did not initiate the nolle or comply with the requirements of the § 54-56b and Practice Book §§ 39-29 and 39-30, the court abused its discretion when it noted the nolle on its own volition. Because the defendant did not object timely to the court’s decision to allow the nolle, but instead appeals from its denial of his later objection to that disposition, we decline to consider the merits of this claim. Rather, we conclude that the court did not have jurisdiction to consider the defendant’s objection.

Preliminarily, we note that a fact critical to our jurisdictional analysis was not properly challenged in the defendant’s appeal. The defendant asserts in his brief that he was not aware that the nolle was entered. Specifically, he argues that it is “pretty certain” that either he had left the courtroom or was in the process of leaving the courtroom when the court noted the nolle or that he misunderstood what was happening. The defendant reasons that we can infer that he was unaware the nolle was entered on the basis of his subsequent motions and his argument before this court. Such speculation is not sufficient to challenge the trial court’s factual finding that “[the defendant] was present during the entering of the nolle”; see State v. Brown, 256 Conn. 291, 311-12, 772 A.2d 1107 (nonreviewability of claim when analysis and authority lacking), cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001); and we do not have grounds to conclude otherwise.* * Moreover, it is well established that as an appellate tribunal, we do not find facts. Gibson v. Commissioner of Correction, 98 Conn. App. 311, 318 n.5, 908 A.2d 1110 (2006), cert. denied, 281 Conn. 908, 916 A.2d 49 (2007); State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995).

Declining to disturb the court’s determination that the defendant was present during the entry of the nolle, we turn now to a discussion of subject matter jurisdiction. The state argues that the court did not have jurisdiction over the defendant’s objection to the entry of the nolle and that “a want of jurisdiction in that court would eliminate our authority to consider the issues raised on this appeal.” Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 477, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980). “[A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly. . . . [T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case.” (Internal quotation marks omitted.) Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 703, 894 A.2d 259 (2006). Our review of this question of law is plenary. State v. Fowlkes, 283 Conn. 735, 738, 930 A.2d 644 (2007).

Subject matter jurisdiction involves a court’s authority to adjudicate the type of controversy presented in the action before it. State v. Carey, 222 Conn. 299, 304, 610 A.2d 1147 (1992), on appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994). “The Superior Court is a constitutional court of general jurisdiction. ... In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.” (Internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 153, 913 A.2d 428 (2007); see Conn. Const., art. V, § 1. The Superior Court’s authority over criminal cases is established by the “proper presentment of the information . . . which is essential to initiate a criminal proceeding.” Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909 (1967).

We apply the previously mentioned principles of subject matter jurisdiction as we determine the status of a criminal case following the entry of a nolle. The effect of a nolle is to terminate the particular prosecution of the defendant without an acquittal and without placing him in jeopardy. State v. Herring, 209 Conn. 52, 57, 547 A.2d 6 (1988); State v. Lloyd, 185 Conn. 199, 201, 440 A.2d 867 (1981); see Bucolo v. Adkins, 424 U.S. 641, 642, 96 S. Ct. 1086, 47 L. Ed. 2d 301 (1976). “Upon entry of a nolle, the individual concerned is no longer a defendant in a criminal case. He stands accused of no crime and his release is unconditional. . . . After entry of [a] nolle [a] defendant . . . [is] not under arrest, not in custody, and not subject to any criminal prosecution.” (Internal quotation marks omitted.) State v. Gaston, 198 Conn. 435, 441, 503 A.2d 594 (1986). “The nolle, like a nonsuit or a discontinuance in a civil suit, [leaves] the matter just where it stood before the commencement of the prosecution.” State v. Main, 31 Conn. 572, 576 (1863).

Therefore, the nolle places the criminal matter in the same position it held prior to the filing of the information. Indeed, no criminal matter exists until, and if, the prosecution issues a new information against the defendant. As our rules explain, “[t]he entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.” Practice Book § 39-31. The defendant is accused of no crime, is released from custody unconditionally and is no longer under the authority of the court. It follows that, generally, a court does not have jurisdiction over the case after the entiy of a nolle. See Reed v. Reincke, supra, 155 Conn. 598; see also General Statutes § 54-56 (“[a]ll courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein . . . .” [emphasis added]).

Our Supreme Court, however, has recognized limited instances in which a trial court may retain jurisdiction following the entry of a nolle. State v. Lloyd, supra, 185 Conn. 205. “We have held that even after the entry of a nolle the court retains limited jurisdiction over the case to hear such matters as the defendant’s motion to dismiss based on the alleged denial of the right to a speedy trial.” (Emphasis in original.) State v. Gaston, supra, 198 Conn. 443. In Lloyd, the state entered a nolle over the defendant’s objection and over his renewed motion to dismiss on speedy trial grounds. State v. Lloyd, supra, 200-201. Our Supreme Court held that the trial court had jurisdiction to consider the defendant’s motion for a speedy trial even after the court’s acceptance of the nolle. Id., 206. The court concluded that “[t]he defendant’s timely, and timely renewed, motions to dismiss required resolution before the pending proceedings could be fully terminated.” Id.

The defendant’s objection in the present case, by contrast, was not timely. Where our Supreme Court has ruled on the entry of a nolle over the defendant’s objection, the objection has been timely. State v. Herring, supra, 209 Conn. 54 (state indicated it intended to enter nolle and defendant objected immediately thereafter); see also State v. Gaston, supra, 198 Conn. 443 (noting that court’s holding in Lloyd “assumed a fortiori that [the motion to dismiss on speedy trial grounds] was properly raised before the entry of a nolle” [emphasis in original]). Practice Book § 39-30 specifically allows for a timely objection. It provides: “Where a prosecution is initiated by complaint or information, the defendant may object to the entering of a nolle prosequi at the time it is offered by the prosecuting authority and may demand either a trial or a dismissal, except when a nolle is entered upon a representation to the judicial authority by the prosecuting authority that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.” (Emphasis added.) Practice Book § 39-30. The defendant here did not make his objection to the entry of the nolle until approximately seven weeks after the nolle had been entered. Unlike the situations in Herring and Lloyd, the defendant did not voice his objection before or immediately after the nolle was entered. See State v. Herring, supra, 54; State v. Lloyd, supra, 185 Conn. 207 (“[t]he purpose of providing judicial oversight over the entry of a nolle prosequi to which the defendant has timely objected is to protect the defendant from the repeated initiation and termination of charges that . . . leave him in legal limbo” [emphasis added]). Instead, as noted previously, the defendant here waited seven weeks to file his objection. Thus, the defendant’s objection was not timely and fell outside of the limited jurisdiction retained by the court following the entry of a nolle. Accordingly, we conclude that the limited jurisdiction retained by the court after the entry of a nolle does not extend to the defendant’s untimely objection.

The form of the judgment is improper. The judgment denying the defendant’s objection to the entry of the nolle prosequi is reversed and the case is remanded with direction to dismiss the defendant’s objection.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The defendant also seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. Because we conclude that the court did not have jurisdiction to consider the objection from whose denial the defendant appeals, we do not reach the merits of his claims. We do acknowledge the common practice of the summary entry of nolles as part of plea agreements. See, e.g., State v. Despres, 107 Conn. App. 164, 165, 944 A.2d 989, cert. denied, 288 Conn. 904, 953 A.2d 649 (2008); Dawson v. Commissioner of Correction, 106 Conn. App. 614, 617, 942 A.2d 519, cert. denied, 287 Conn. 909, 950 A.2d 1285 (2008); Bowden v. Commissioner of Correction, 93 Conn. App. 333, 335, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

       We note that the defendant did not seek an articulation or rectification of the record from the trial court regarding the court’s finding that he was present during the entry of the nolle, nor did he seek an evidentiary hearing to establish whether, as he suggests in his brief, he left the courtroom before the nolle was entered. Instead, on October 26, 2007, the defendant filed a motion with this court to have the audiocassette of the hearing added to the record or considered as an exhibit. On January 10, 2008, we denied the motion. The defendant then moved for a reconsideration of our ruling, which we denied on May 7, 2008. These motions are insufficient to challenge properly the court’s factual finding as clearly erroneous.

       We note that under our erasure statute, thirteen months after the entry of the nolle all pertinent records must be erased. General Statutes § 54-142a (c). Moreover, the entry of a nolle does not toll the statute of limitations on the original offense. State v. Lloyd, supra, 185 Conn. 210.

       In Lloyd, the defendant had made a motion for speedy trial, which was granted, and a subsequent motion to dismiss on the basis of a violation of his right to a speedy trial, which was denied. State v. Lloyd, supra, 185 Conn. 200-201. When the state entered a nolle, the defendant objected and renewed his motion to dismiss on speedy trial grounds. Id.


author: HARPER, J.

text:
    WILLIE MYERS v. COMMISSIONER OF CORRECTION
    (AC 28944)
    Harper, Lavine and West, Js.

      Submitted on briefs September 8
    officially released December 2, 2008

      Robert J. McKay filed a brief for the appellant (petitioner).

      John A. Connelly, state’s attorney, Margaret Gaffney Radionovas, senior assistant state’s attorney, and Robin Lipsky, former senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Willie Myers, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his third petition for a writ of habeas corpus. The petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly dismissed his habeas petition. We dismiss the appeal, as it relates to the ground of ineffective assistance of counsel, and reverse the judgment as to all other grounds.

The following facts and procedural history are relevant to our disposition of the petitioner’s appeal. The petitioner pleaded guilty under the Alford doctrine to the crime of murder in violation of General Statutes § 53a-54a and was sentenced to thirty years of incarceration. The petitioner did not file a direct appeal but has since filed three petitions for a writ of habeas corpus. The first petition, filed on September 10, 1996, then amended on December 28, 1998, alleged that the petitioner’s incarceration was constitutionally invalid because his conviction “was obtained in violation of his right to conflict free counsel” because his trial counsel, Gregory St. John, had a conflict of interest. Myers v. Commissioner of Correction, 68 Conn. App. 31, 32, 789 A.2d 999, cert. denied, 260 Conn. 907, 795 A.2d 545 (2002). This court affirmed the habeas court’s denial of the petition. Id. The second petition, filed on July 10,2003, then amended on September 17,2004, asserted that habeas counsel, Adele V. Patterson, provided ineffective assistance by failing to allege that trial counsel, St. John, was ineffective. The habeas court denied the petition; see Myers v. Commissioner of Correction, 98 Conn. App. 737, 739, 911 A.2d 345 (2006), cert. denied, 282 Conn. 903, 920 A.2d 309 (2007); and this court dismissed the appeal. Id.

On April 2, 2007, the petitioner filed his third pro se petition for a writ of habeas (present petition) alleging ineffective assistance of counsel by St. John and several other grounds.* In addition to the filing of the petition, the petitioner requested a waiver of fees and appointment of counsel. After the waiver of fees was granted, the habeas court sua sponte dismissed the habeas petition and granted the application for appointment of counsel. In dismissing the petition, the court explained that “[u]nder [Practice Book] § 23-29, the judicial authority may, at any time . . . dismiss the petition ... if it determines that . . . the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition .... The petitioner has failed to make a showing that there is new evidence not reasonably available at the time of his two prior petitions. The court finds [that] the claims are res judicata and enters a judgment of dismissal.” (Emphasis in original; internal quotation marks omitted.)

The petitioner then filed a petition for certification to appeal. The petitioner argued that “in the present petition, although the petitioner is attacking an ineffective [ness] issue, [he] is also attacking his guilty plea, mental state at plea, his sentence being illegal [and] a violation of due process which . . . would result from ineffectiveness of . . . trial counsel . . . The petitioner argues that although it may have appeared that he has failed to make a showing, such showing would have been shown on further articulation of an amended petition.” Certification to appeal was denied. This appeal followed.

We begin by setting forth the standard of review and any relevant legal principles. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). “To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a cotut could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 105 Conn. App. 124, 127, 936 A.2d 716 (2008).

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. . . . Res judicata is a doctrine grounded in public policy, whose primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction.” (Citation omitted; internal quotation marks omitted.) Davis v. Commissioner of Correction, 109 Conn. App. 92, 96-97, 950 A.2d 587, cert. denied, 289 Conn. 930, 958 A.2d 157 (2008).

I

The petitioner first claims that the court abused its discretion in denying his petition for certification to appeal without affording him the “right to be heard on the issue of whether [the] dismissal was permissible and warranted under Practice Book [§ 23-29] (3).” He argues that the court improperly denied the petition “with no notice to the parties and no meaningful opportunity for the parties to be heard on the merits.” We partially agree.

“[W]e have recognized only one situation in which a court is not legally required to hear a habeas petition. In Negron v. Warden, [180 Conn. 153, 158, 429 A.2d 841 (1980)], we observed that, pursuant to Practice Book § 531 [now § 23-29], [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing. We emphasized the narrowness of our construction of Practice Book § 531 [now § 23-29] by holding that dismissal of a second habeas petition without an evidentiary hearing is improper if the petitioner either raises new claims or offers new facts or evidence. . . . Negron therefore strengthens the presumption that, absent an explicit exception, an evidentiary hearing is always required before a habeas petition may be dismissed.” (Internal quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn. App. 180, 188-89, 908 A.2d 581 (2006). To demonstrate that an evidentiary hearing was required, the petitioner must show “that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground.” (Internal quotation marks omitted.) Id., 190.

We construe the petition as raising two distinct categories of claims, one related to an ineffective assistance of counsel ground and all others that are unrelated to an ineffective assistance of counsel ground. We will address each in turn.

A

We first turn to the portion of the petition as it relates to the ineffective assistance of counsel. We carefully have reviewed the former and current petitions for a writ of habeas corpus, the record, the court’s ruling and the respective briefs submitted by the parties. The petitioner has not alleged any factual or legal bases to support a finding that a new legal ground is being raised or new facts or evidence introduced. The petitioner argues that there was “no evidence that the issues were identical to those considered in the prior proceeding.” The petitioner is raising an ineffective assistance of counsel ground, however, against the same trial counsel, St. John, as he did in the prior two petitions but on different bases, which is failure “to protect [his] constitutional rights . . . .” Merely reformulating a legal ground of ineffective assistance of counsel, on further allegations, will not, on its own, withstand denial of certification to appeal. See, e.g., Negron v. Warden, supra, 180 Conn. 153 (addressing differences between application asserting new ground from one verbally reformulating preexisting ground). In addition, the petitioner has not alleged any new facts or proffered new evidence not reasonably available at the time of his prior two petitions to support the preexisting legal ground introduced. See, e.g., Harris v. Commissioner of Correction, 97 Conn. App. 382, 387-88, 904 A.2d 280 (discussing petitioner’s failure to meet threshold burden of abuse of discretion because second habeas petition raised same legal grounds and sought relief with allegations and facts reasonably available at time of filing first petition), cert. denied, 280 Conn. 928, 909 A.2d 523 (2006). Without such findings, the court is not required to provide a hearing or notice prior to dismissal of the habeas petition.

Ultimately, the petitioner has not demonstrated that the court’s conclusion regarding the ineffective assistance of counsel ground is debatable among jurists of reason, that a court could resolve the issue in a different manner or that the question raised deserves encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). Having failed to satisfy any of these criteria, the petitioner cannot demonstrate that the court abused its discretion in denying the petition for certification to appeal. See Simms v. Warden, supra, 230 Conn. 612.

Because the petitioner has not demonstrated that the court’s denial of his petition for certification to appeal with regard to this ground reflects an abuse of discretion, we need not address the ground in any further detail. We dismiss this portion of the appeal.

B

In contrast, the portion of the petition unrelated to the ineffective assistance of counsel ground supports a finding that new claims are being raised because the prior two petitions did not address any of these grounds. As noted in Negron, a dismissal without a hearing of a subsequent petition is improper if the petitioner raises new claims or offers new facts or evidence. See Negron v. Warden, supra, 180 Conn. 158. Additionally, the respondent, the commissioner of correction, concedes that the petitioner is entitled to proceed to the pleading stage with respect to those unrelated grounds. We share the view of both the petitioner and the respondent that the court abused its discretion by denying certification to appeal because it improperly dismissed the petition on those unrelated grounds.

II

Because the petitioner has satisfied the first burden of the Simms test on grounds unrelated to ineffective assistance of counsel, we will address the petitioner’s second claim, which is also the second burden of the Simms test, i.e., that the court improperly dismissed the habeas petition, as it relates to those grounds.

The petitioner’s second claim is that the court improperly dismissed his habeas petition without “adequate notice” or a “meaningful opportunity” to be heard on the merits. The petitioner argues that it was “constitutional error to deny [him the] opportunity to present his position to the court” and that the court improperly relied on res judicata because there was no evidence showing that the issues were identical to those raised in his prior petitions. We agree with this claim as it relates to the petition on grounds unrelated to ineffective assistance of counsel.

Res judicata prevents the relitigation of issues already decided in court. The record reflects that the grounds unrelated to ineffective assistance of counsel have not yet been decided before the habeas court in the prior two petitions and have never been litigated fully and fairly. Therefore, the use of res judicata on those grounds was improper. The petitioner is entitled to be heard on those grounds unrelated to ineffective assistance of counsel.

The appeal is dismissed with respect to the portion of the petition that alleged ineffective assistance of counsel. The judgment is reversed with respect to the remaining grounds alleged and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt . . . but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless." (Internal quotation marks omitted.) Almedina v. Commissioner of Correction, 109 Conn. App. 1, 2 n.1, 950 A.2d 553, cert. denied, 289 Conn. 925, 958 A.2d 150 (2008).

       The other grounds alleged by the petitioner are that the “[petitioner's sentence is illegal based on percentage/parole eligibility. [The] [petitioner's plea negotiation is invalid due to involuntary plea. The petitioner was also deprived of due process.”

       The prior two petitions raised an ineffective assistance of counsel ground on the basis of allegations that a conflict of interest affected the petitioner’s right to conflict free counsel and that counsel failed to pursue certain evidence in the trial court.


author: LAVINE, J.

text:
    PAULA-JEAN M. JOHNSON v. ROBERT L. JOHNSON
    (AC 28927)
    (AC 29057)
    DiPentima, Lavine and Dupont, Js.

      Argued September 15
    officially released December 2, 2008

      John T. Asselin-Connolly, with whom, on the brief, was Richard E. Joaquin, for the appellant (defendant).

      Michael A. Blanchard, for the appellee (plaintiff).

      Paige Stevens Quilliam, for the minor child.
   Opinion

LAVINE, J.

The defendant, Robert L. Johnson, brings these consolidated appeals from the trial court’s judgment granting the motion for contempt filed by the plaintiff, Paula-Jean M. Johnson, and from the court’s judgment rendered following the subsequent compliance review hearing. In AC 28927, the defendant claims that the court abused its discretion when it (1) admitted hearsay during a hearing on the motion for contempt, (2) found him in contempt of the court’s orders and (3) ordered him to secure the services of a therapist to effect compliance with the orders. In AC 29057, the defendant claims that the court abused its discretion when, after finding continued noncompliance with its orders, it ordered him to schedule psychological evaluations. We affirm both judgments of the trial court.

The following facts are relevant to both appeals. The plaintiff and the defendant divorced on April 4, 1995. Their only child, a son, was bom on May 6, 1992. On August 18, 2005, the court rendered a postdissolution judgment on the basis of a stipulation the parties entered into on August 9, 2005. In the stipulation, the parties agreed to share legal custody of their son. The defendant obtained primary physical custody, while the plaintiff was granted considerable overnight visitation rights on weekends and during holidays and vacations. The parties agreed that the son would complete therapy sessions for the purposes of “reintroduction” to the plaintiffs new husband and agreed to cooperate regarding these sessions in every reasonable manner. They also agreed to refrain from undermining a healthy parent-child relationship and denigrating the other parent.

On October 27, 2006, the plaintiff filed a motion for contempt, claiming that the defendant had violated the orders of August 18, 2005, by sabotaging the therapy and delaying its commencement. The plaintiff also stated that her relationship with the son had deteriorated and that she had had no visitations with him since July, 2006.

On April 4 and May 17, 2007, the court heard testimony from the plaintiff, the defendant, the family therapist, the son’s guardian ad litem and the attorney for the son. On June 6, 2007, the court issued a corrected memorandum of decision in which it found that the defendant wilfuly violated the orders concerning visitations, therapy sessions and the avoidance of denigrating remarks against the plaintiff. The court ordered the defendant either to deliver the son for the next scheduled visitation or to secure the services of the family therapist to facilitate visitation. On June 20, 2007, the defendant filed appeal AC 28927 from that judgment.

On July 16, 2007, the court called the parties into court to review compliance with the orders of June 6, 2007, and, after hearing from counsel for both parties, concluded that there had been none. The court ordered the defendant to schedule and to pay for a psychological evaluation for himself and the son. On August 1, 2007, the defendant filed appeal AC 29057 from that judgment. Further facts will be set forth as necessary.

I

AC 28927

In his appeal from the judgment of June 6, 2007, the defendant claims that the court abused its discretion when it (1) admitted the testimony of the guardian ad litem, (2) found that the defendant wilfuly and knowingly violated the orders from August 18, 2005, and (3) ordered the defendant to secure the therapist’s services to facilitate the next visitation between the plaintiff and the son if he was unable to comply on his own. We agree with his first claim but conclude that the court’s error was harmless. We disagree with the defendant’s second and third claims.

A

The defendant first claims that during the hearing on the motion for contempt, the court improperly allowed the guardian ad litem, Timothy Lenes, to testify about the contents of out-of-court statements and reports. We agree with the defendant but find this evidentiary impropriety to be harmless.

The following additional facts are relevant to our consideration of the defendant’s claim. At the hearing on the motion for contempt, Lenes testified that (1) Michael Sturgess, a physician previously involved in the case, told him in a telephone conversation that the defendant was interfering with the son’s therapy sessions and that (2) Kelly Reddick, the family therapist, stated in her reports that the defendant was noncooperative during her counseling sessions. The defendant repeatedly objected to Lenes’ testimony on the ground that it was hearsay. Our review of the transcript indicates that the court and both attorneys considered Lenes to be an expert witness. The court’s ultimate rationale for admitting Lenes’ testimony, however, is less than clear.

“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.” Conn. Code Evid. § 8-1 (3). Hearsay is inadmissible except as provided in the Connecticut Code of Evidence, the General Statutes or our rules of practice. Conn. Code Evid. § 8-2. An expert witness may rely on the facts otherwise not admissible in evidence if they are customarily relied on by experts in the particular field in forming opinions on the subject. Conn. Code Evid. § 7-4. “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue . . . and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Pjura, 68 Conn. App. 119, 124, 789 A.2d 1124 (2002).

We conclude that Lenes’ testimony about the content of Sturgess’ statement and Reddick’s reports should have been excluded. Even if we assume that a guardian ad litem may in some circumstances testify as an expert witness, our review of the transcript indicates that Lenes never stated an opinion or made any recommendations stemming from that role. Lenes’ testimony in its essence consisted of relaying Sturgess’ and Reddick’s opinions regarding the defendant’s cooperation with the therapy sessions. Whatever special skills and knowledge Lenes has as a guardian ad litem were neither applicable to the issue of the defendant’s compliance with the court’s orders nor helpful to the court in considering that issue. We therefore agree with the defendant that the court improperly permitted Lenes to act as a conduit for hearsay.

The following facts, however, persuade us that the error was harmless. Prior to Lenes’ testimony, the court heard testimony from Reddick and the plaintiff. Reddick testified that the defendant was angry, frustrated and concerned about the “reunification” therapy between the son and the plaintiffs husband. She also testified that the defendant sat in the waiting room during the sessions although he refused to participate in them. The plaintiff then testified that she had no court-ordered visitations with her son since July, 2006. She indicated that the defendant and his current wife often recorded her communications with the son or the defendant. The plaintiff stated that the defendant delayed the commencement of the sessions. She also testified about the son’s anger and familiarity with the court proceedings. In its memorandum of decision, the court, in addition to finding the defendant’s testimony less than credible, based its finding of noncompliance with the court orders on the following factors: the lack of visitations since July, 2006; the defendant’s presence in the waiting room during the therapy sessions although it was prearranged that the plaintiff would drive the son home; the defendant’s habit of recording his and the son’s communications with the plaintiff; and his statements to Reddick that he disagreed with the imposition of the “reunification” therapy. All of these facts were introduced during the plaintiffs or Reddick’s testimony.

An evidentiary ruling that does not raise a constitutional question “will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 330-31, 718 A.2d 457 (1998), aff'd, 254 Conn. 88, 755 A.2d 202 (2000). In a civil case, the appellant has the burden of establishing the specific harmfulness of the error by demonstrating the likelihood that the evidentiary ruling had affected the result. Constantine v. Schneider, 49 Conn. App. 378, 393, 715 A.2d 772 (1998).

We conclude that the introduction of hearsay during Lenes’ testimony was harmless. The court, in its memorandum of decision, did not rely on any evidence introduced during Lenes’ testimony that had not been introduced by either the plaintiff or Reddick, and the defendant does not explain how Lenes’ testimony affected the court’s decision. See Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 282, 587 A.2d 1056 (1991) (holding that error harmless because appellant failed to identify any specific harm from improper introduction of evidence).

We therefore conclude that the court improperly allowed the introduction of Lenes’ testimony, but we find the admission of such evidence to be harmless.

B

The defendant next claims that the court abused its discretion in finding him in wilful and knowing violation of the judgment rendered on August 18, 2005. We disagree with the defendant.

Our review of a judgment of contempt is limited. “Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . Contempt may be civil or criminal in character.” (Internal quotation marks omitted.) Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992). If the “underlying court order was sufficiently clear and unambiguous, we . . . determine whether the trial court abused its discretion in issuing ... a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Wilson v. Wilson, 38 Conn. App. 263, 273, 661 A.2d 621 (1995). “The credibility of witnesses, the findings of fact and the drawing of inferences are all within the province of the trier of fact.” Lord v. Lord, 44 Conn. App. 370, 376, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140 L. Ed. 2d 125 (1998). “The inability of [a party] to obey an order of the court, without fault on his part, is a good defense to the charge of contempt.” Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974).

The defendant’s principal argument is that he is unable to comply with the court’s orders because his son’s refusal to see the plaintiff is entirely beyond his control. The defendant is asking us to find his testimony that he is unable to effectuate the visits to be an affirmative defense to the charge of contempt.

First, we do not agree with the defendant’s contention that his testimony presents a good defense to noncompliance with the court’s orders under Tobey v. Tobey, supra, 165 Conn. 742. Because the court made a specific finding that the defendant presented insufficient evidence of his inability to facilitate visits between the plaintiff and the son, we need only determine whether that finding was clearly erroneous. See Wilson v. Wilson, supra, 38 Conn. App. 273 (“In light of the specific finding by the trial court ... we need not determine whether a reasonable belief that an order of the court need not be obeyed presents a valid defense to a motion for contempt. Instead, we need determine only whether the trial court’s finding of fact was clearly erroneous.”). The defendant’s innocence of any manipulation of the son was disputed, and the court had discretion to reject the defendant’s testimony. See Mays v. Mays, 193 Conn. 261, 264, 476 A.2d 562 (1984) (court not bound to accept defendant’s testimony that he was unable to comply with orders). We conclude that the court did not, in light of the factors listed in its memorandum of decision and outlined in part I A, improperly find that the defendant not only failed to facilitate the visitations and to help the plaintiff-son relationship, but undermined it by watching the plaintiff and her son “like a hawk,” discussing his anger about the plaintiff’s husband with the son and indicating to the son that the plaintiff was untrustworthy.

Second, it is important to note that the court found the defendant to be in violation of not only its order to facilitate the plaintiffs visitation with the son, which is the focus of the defendant’s argument, but also its orders to cooperate regarding the therapy sessions and to avoid denigrating the plaintiff. We conclude that the court’s finding that the defendant violated the latter orders also was not clearly erroneous. It was within the court’s discretion to infer the violation of the order to cooperate and to avoid denigrating the plaintiff from the defendant’s unnecessary presence during the therapy sessions, his express dissatisfaction with the imposition of those sessions, his habit of recording communications with the plaintiff and the son’s familiarity with the court proceedings he never attended. See Lord v. Lord, supra, 44 Conn. App. 376 (drawing of inferences within court’s discretion).

We therefore conclude that the court’s finding the defendant to be in contempt was not clearly erroneous.

C

The defendant’s final claim in his first appeal is that the court abused its discretion by ordering him either to deliver the son to the plaintiff or to secure Reddick’s services to facilitate the plaintiffs next scheduled visitation. The defendant relies on Savage v. Savage, 25 Conn. App. 693, 596 A.2d 23 (1991), in which this court held that the trial court abused its discretion by ordering a postjudgment order for psychological evaluation. See id., 701; see also Ruggiero v. Ruggiero, 76 Conn. App. 338, 346, 819 A.2d 864 (2003); Janik v. Janik, 61 Conn. App. 175, 179-80, 763 A.2d 65 (2000), cert. denied, 255 Conn. 940, 768 A.2d 949 (2001). Savage stands for the proposition that a court’s power to appoint, among others, psychologists and psychiatrists pursuant to General Statutes § 46b-3 is limited to pending matters by General Statutes § 46b-6. See Savage v. Savage, supra, 699-701. The defendant argues that on the basis of Savage, the court had no authority to appoint Reddick because the present case is no longer pending. We disagree.

“The court’s authority to impose civil contempt penalties arises not from statutory provisions but from the common law. . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both.” (Citations omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982).

As explained by our Supreme Court, this court has held that “even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party’s failure to comply with a court order.” (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 243, 796 A.2d 1164 (2002). The “trial court’s continuing jurisdiction to effectuate its prior judgments ... by summarily ordering compliance with a clear judgment . . . is grounded in its inherent powers . . . .” Id., 246.

We conclude that the precedent relied on by the defendant is inapplicable because the court in the present case did not derive its authority to order Reddick’s participation from § 46b-3 or any other statutory provision. In a contempt proceeding, the court has an inherent, common-law power to coerce compliance with its judgment. See Papa v. New Haven Federation of Teachers, supra, 186 Conn. 737. It has equitable powers to fashion whatever orders are required to protect the integrity of its earlier judgment. Clement v. Clement, 34 Conn. App. 641, 646, 643 A.3d 874 (1994). The defendant offers no support for a proposition that statutory provisions discussed in Savage define or limit the court’s inherent contempt power.

We also conclude that the court’s order in the present case did not exceed the authority available to it in a civil contempt proceeding. The court ordered the defendant either to deliver the son to the plaintiff or to secure the services of the therapist to effectuate the plaintiffs next scheduled visitation. See Mays v. Mays, supra, 193 Conn. 266 (punishment in civil proceeding must be conditional or coercive and contemnor must have opportunity to purge himself). The court therefore, in light of the defendant’s continuous refusal to comply, properly ordered him to do what it deemed necessary to protect the integrity of the judgment of August 18, 2005. See Clement v. Clement, supra, 34 Conn. App. 646 (court properly ordered husband to pay wife value of loss where nonpayment of mortgage by husband undermined integrity of court’s judgment). The court has authority to order additional measures not contained in the original order if they are necessary to effectuate the original judgment. Roberts v. Roberts, 32 Conn. App. 465, 471-72, 629 A.2d 1160 (1993) (order to auction property effectuated original judgment although original judgment did not call for sale at auction).

We conclude that the court did not abuse its discretion when it ordered the defendant to secure the services of a family therapist to effect compliance with the court’s prior judgment.

II

AC 29057

In the second appeal, the defendant claims that the court abused its discretion when, after a compliance review, it ordered him to schedule and pay for a psychological evaluation for himself and the son. We disagree with the defendant.

The following facts are relevant to our resolution of the defendant’s claim. The court held a hearing on July 16,2007, to review compliance with its order from June 6, 2007, that the defendant either deliver the son for the next visitation with the plaintiff or secure Reddick’s services to effectuate that visitation. At the hearing, the defendant’s counsel informed the court that there still had been no compliance with the order because the son had refused to see Reddick. The court recessed and held a conference in its chambers with counsel for both parties, the guardian ad litem and the attorney for the minor child. After the conference, the court stated on the record that it did not anticipate that the son would refuse to see Reddick, and it ordered the defendant to schedule a psychological evaluation for himself and the son. The court also stated its concern that “the fact that a child would go to such lengths to avoid contact with his mother is not common.”

The defendant supports his claim with the same legal argument offered in support of the claim we analyzed in part I C, namely, he argues that the court exceeded the scope of its authority on the basis of Savage v. Savage, supra, 25 Conn. App. 693. For the reasons explained in part I C, we find this precedent inapplicable.

Applying the standard of review we set forth in part IC and using the same legal analysis, we conclude that the court’s order to the defendant to schedule psychological evaluations was yet another attempt to ensure compliance with its original judgment of August 18, 2005. This order is within the scope of the court’s inherent power to effectuate compliance with its earlier judgment. See Papa v. New Haven Federation of Teachers, supra, 186 Conn. 737; Clement v. Clement, supra, 34 Conn. App. 646; Roberts v. Roberts, supra, 32 Conn. App. 471-72. It is clear that the purpose of the court’s order was to protect the integrity of its earlier judgment against what it believed to be more than the son’s stubborn refusal to see his mother. A trial court has the power even to incarcerate contemnors in civil contempt cases until they purge themselves; see Mays v. Mays, supra, 193 Conn. 265-66; Emerick v. Emerick, 28 Conn. App. 794, 797, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992); and we see no reason why it should not be able to order a contemnor to undergo a psychological evaluation if that is necessary to enforce the court’s earlier judgment.

We therefore conclude that the court did not abuse its discretion in ordering the defendant to schedule psychological evaluations for himself and the son.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court also ordered the defendant to pay a $1000 fine but stayed that order on July 16, 2007.

       Near the end of Lenes’ testimony, the court summarized the situation as follows: “On this issue, the court is going to attempt to parse the confluence of issues .... Lenes is qualified as an expert by specialized training, skill, knowledge, experience or education. . . . Lenes’ testimony about what someone else said does not require a specialized skill [or] knowledge .... His testimony about what someone else says is facially hearsay .... The issue is not whether . . . Lenes is an expert. The issue is whether what . . . Sturgess purportedly said is admissible under the rules of evidence. . . . Sturgess’ opinion of whether [the defendant] violated the court orders is not relevant.”

       Relying on Tobey, this court has held that a trial court improperly found a plaintiff in contempt when a number of separately issued court orders rendered her unable to comply through no fault of her own. See Tatro v.
        Tatro, 24 Conn. App. 180, 186, 587 A.2d 154 (1991). Specifically, the plaintiff in Tatro could not comply with the order to bring her child before the court because her passport was impounded, and she was under a court order not to speak to her sister, who had physical possession of the child. See id. We conclude that this defense is unavailable to the defendant in the present case because his alleged inability to comply through no fault of his own is in dispute.

       General Statutes § 46b-3 (a) provides in relevant part that the “judges of the Superior Court shall appoint such domestic relations officers and other personnel as they deem necessary for the proper operation of the family relations sessions. . . . For the purposes of any investigation . . . the judge . . . may employ the services of any . . . physician, psychologist, psychiatrist or family counselor. ...”

       General Statutes § 46b-6 provides in relevant part that in “any pending family relations matter the court or any judge may cause an investigation . . . which may be helpful or material or relevant to a proper disposition of a case. . . .”


text:
    STATE OF CONNECTICUT v. ABDUL N. PEAY
    (AC 29052)
    DiPentima, McLacMan and Lavine, Js.
    Argued September 24
    officially released December 2, 2008

      Abdul N. Peay, pro se, the plaintiff in error.

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Carl R. Ajello III, assistant state’s attorney, for the defendant in error.
   Opinion

LAVINE, J.

The pro se plaintiff in error, Abdul N. Peay, brings a writ of error challenging the decision of the defendant in error, the sentence review division of the Superior Court (panel), affirming his sentence. On appeal, the plaintiff in error claims that the panel abused its discretion and violated his constitutional rights in concluding that he had a long criminal record. We conclude that the plaintiff in error failed to brief his claims adequately and to provide this court with an adequate record for review and, accordingly, dismiss the writ of error.

The following facts and procedural history are relevant. On April 17,2003, the plaintiff in error was arrested after striking the victim with a crowbar. He was found guilty of two counts of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and (2), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and interfering with an officer in violation of General Statutes § 53a-167a (a). See State v. Peay, 96 Conn. App. 421, 423, 900 A.2d 577, cert. denied, 280 Conn. 909, 908 A.2d 541 (2006). On March 8, 2004, the court, Keller, J., sentenced the plaintiff in error to twelve years incarceration with a five year mandatory minimum. On October 24, 2006, the panel, Iannotti, Miaño and Espinosa, Js., affirmed the sentence. In its report, the panel stated that it had considered the plaintiff in error’s “positive attributes,” the severity of the injuries he inflicted on April 17, 2003, and the fact that his “record dates back to 1974” and “is replete with both felonies and misdemeanors.” On July 11, 2007, the plaintiff in error filed a writ of error in our Supreme Court, which transferred it to this court.

On appeal, the plaintiff in error claims that the panel abused its discretion when it found that he had a lengthy criminal record and that it utilized an illegal application of the habitual offender statute. “[T]he legislature passed the Sentence Review Act in 1957 ... to reduce the disparity in sentences meted out by different judges and, thereby, to quell prisoner discontent.” (Citation omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 144, 712 A.2d 947 (1998). “The review division shall review the sentence imposed and determine whether [it] should be modified because it is inappropriate or disproportionate in the light of the nature of the offense, the character of the offender, the protection of the public interest, and the deterrent, rehabilitative, isolative, and denunciatory purposes for which the sentence was intended.” Practice Book § 43-28. The panel’s actions are reviewed for an abuse of discretion. See State v. Johnson, 192 Conn. 471, 475-76, 479, 472 A.2d 1267 (1984). The plaintiff in error bears the burden of providing this court with an adequate record for review. See State v. Hannah, 104 Conn. App. 710, 714, 935 A.2d 645 (2007), cert. denied, 285 Conn. 916, 943 A.2d 475 (2008); see also Practice Book § 61-10. Additionally, “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brie f [it] properly. ” (Internal quotation marks omitted.) State v. Blango, 103 Conn. App. 100, 116 n.11, 927 A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007).

We conclude that we cannot determine, on the basis of the record before this court, whether the panel abused its discretion when it relied on the plaintiff in error’s criminal record. We have not been presented with the presentence report, the transcript of the sentencing hearing from March 8, 2004, or any other information that the panel considered before it affirmed the plaintiff in error’s sentence. We cannot further analyze this claim without an adequate record. We also conclude that we cannot analyze the plaintiff in error’s claims that the panel illegally applied the “habitual offender statute” or designated him to be a “career criminal” because the plaintiff in error does not specify the statute that he is referring to or provide any meaningful legal analysis of either claim. “Although we are solicitous of the fact that the [plaintiff in error] is a pro se litigant, the statutes and rules of practice cannot be ignored completely. . . . We are not required to review issues that have been improperly presented to this court through an inadequate brief.” (Citation omitted; internal quotation marks omitted.) Cooke v. Cooke, 99 Conn. App. 347, 352-53, 913 A.2d 480 (2007).

The writ of error is dismissed.

In this opinion the other judges concurred.