author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. DAGOBERTO CUESTA
    (AC 20583)
    Dranginis, Flynn and Daly, Js.
    Argued December 13, 2001
    officially released February 26, 2002

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Stephen J. Sedensky III, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Dagoberto Cuesta, appeals from the judgment of conviction, rendered after a juiy trial, of robbery in the third degree in violation of General Statutes § 53a-136 (a) and assault in the third degree in violation of General Statutes § 531a-61. On appeal, the defendant claims that the trial court improperly (1) excluded evidence of the presence of a third party’s semen, (2) admitted a uniform arrest report into evidence and (3) found the defendant competent to stand trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 23, 1997, the victim was walking in Bridgeport, ready to board a train to New York. She was grabbed from behind by the defendant and dragged to an area away from the road, where she was hidden by shrubs and other vegetation. The defendant repeatedly told his victim, “I’m Cuban. I’m gonna rape and murder you.” During a struggle, the defendant reached into the victim’s pocket and took her train ticket and five dollars. She managed to escape and ran toward a nearby market.

A police cruiser drove by, and the victim reported the incident to Joseph Morales, a Bridgeport police officer. The victim was distraught and told Morales that she had been raped. She gave him a description of the defendant, including a description of his clothing, and stated that he was wearing red underwear. Morales began patrolling the area and saw the defendant about fifty feet away. When Morales stopped the defendant, he said, “I didn’t do nothing to that f***in’ bitch and she has my money.” The victim identified the defendant, whereupon he said to her, “Yeah bitch, it’s me.” A physician later examined the victim and found her bruised and beaten. A search of the defendant’s person revealed one train ticket to New York and five dollars. He was wearing red underwear.

Initially, the victim claimed that the defendant had raped her. She made statements to that effect to both police and Sayad Amir Zafer, a physician. Two weeks prior to trial, however, she recanted and stated that the defendant had not raped her. On direct examination, she testified that he grabbed her, stated that he was Cuban and was going to rape and murder her, they struggled, he took her ticket and money, and that while she was lying on the ground, he pulled down his pants and underwear. He was about to rape her when she pulled out a pair of scissors, pushed him and ran away. She also claimed that she lied to police initially because she thought the police would be quicker to respond. She explained that she lied to hospital personnel about the source of the semen as well because she was involved with a married man and did not want him involved. The scissors never were located by police. The victim claimed that she found them later at the scene, but that she no longer had them in her possession.

The jury returned a verdict of guilty of robbery in the third degree and assault in the third degree. The defendant was sentenced to five years on the robbery count, suspended after three and one-half years, and one year on the assault count, to run concurrently, for a total effective sentence of five years, execution suspended after three and one-half years, with five years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary to resolve the claims on appeal.

I

The defendant first claims that the court improperly excluded evidence of semen from a third party, thereby violating his rights pursuant to General Statutes § 54-86f, and his constitutional rights to confrontation and to present a defense under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. The defendant argues that he improperly was prohibited from cross-examining the victim, Zafer and Morales about the presence of semen to show that the victim was not credible. We do not agree.

The victim initially accused the defendant of assaulting her by forcing her to have sexual intercourse. She claimed that there was penetration and that he ejaculated in her vagina. Semen specimens recovered from the victim’s underpants were compared to DNA samples from the defendant. He was excluded as a possible source of the semen. As a result, the state filed a motion in limine, requesting that pursuant to the rape shield statute, § 54-86f, all evidence relating to semen be excluded because the state would not be offering such evidence to prove the identity of the alleged attacker. The court granted the state’s motion, finding that any probative value of the evidence was outweighed by its prejudicial impact on the victim. The court further ruled on the defendant’s motion to present evidence, which involved a request to question the victim on cross-examination about whether she had sexual intercourse with a third party within seventy-two hours of the alleged incident. The court rejected the request on the ground that the defense sought to impeach the victim by her prior inconsistent statements, a tactic on which the defense already had “spent a good deal of time.”

On appeal, the defendant argues that the evidence went directly to the victim’s credibility and that its exclusion precluded him from presenting a defense that she changed her story only upon learning that his DNA test was negative. The defendant asserts that preclusion of the evidence prevented him from raising doubt that the entire incident happened at all. The defendant further claims that the evidence should have been allowed under § 54-86f (1), (2) or (4) because the victim had placed her credibility and sexual conduct in issue.

“We first set forth the standard of review for determining whether the exclusion of this evidence entitles the defendant to a new trial. Upon review of a trial court’s decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. ... To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial. . . .

“Although the outright denial of a defendant’s opportunity to cross-examine a witness on an element of the charged offense implicates the constitutional protection of the confrontation clause, such a denial is [still] subject to harmless error analysis . . . [which will result in a new trial] only if the exclusion of the proffered evidence is not harmless beyond a reasonable doubt. . . .

“Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Citations omitted; internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 173-74, 777 A.2d 604 (2001).

“[I]n cases involving sexual crimes, [t]he rape shield statute . . . was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. . . . We must remember that [t]he determination of whether the state’s interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the particular case. ... In every criminal case, the defendant has an important interest in being permitted to introduce evidence relevant to his defense. Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . Whenever the rape shield statute’s preclusion of prior sexual conduct is invoked, a question of relevancy arises. If the evidence is probative, the statute’s protection yields to constitutional rights that assure a full and fair defense. ... If the defendant’s offer of proof is sufficient to show relevancy, and that the evidence is more probative to the defense than prejudicial to the victim, it must be deemed admissible at trial. . . . When the trial court excludes defense evidence that provides the defendant with a basis for cross-examination of the state’s witnesses, [despite what might be considered a sufficient offer of proof] such exclusion may give rise to a claim of denial of the right to confrontation and to present a defense.” (Citations omitted; internal quotation marks omitted.) Id., 176-78.

We cannot conclude that the evidence sought to be admitted in this case would be more probative to the defense than prejudicial to the victim. The victim testified that she initially lied to police and medical personnel about having had sexual relations with a third party within seventy-two hours of the alleged incident and gave her reasons for doing so. The jury had a sufficient basis to determine the credibility of the witness. Moreover, defense counsel was free to argue that if the victim would he to police and medical personnel, why should she not he at trial? That being the case, it is difficult to perceive any justification for further questioning about her sexual conduct except to harass and embarrass the victim, and to confuse or mislead the jury. Moreover, we note that the defendant was not convicted on the charge of attempt to commit sexual assault in the first degree. The presence of semen was not relevant to the charges of assault and robbery of which the defendant was found guilty. Therefore, even if we were to conclude that the defendant was deprived of his constitutional rights, the error was harmless.

II

The defendant next claims that the court improperly admitted into evidence the uniform arrest report identifying his place of birth as Cuba. The defendant claims that his statement that he was born in Cuba was admitted in violation of his rights against self-incrimination under the state and federal constitutions. Specifically, he argues that the report should not have been admitted because he was not given Miranda warnings prior to stating his place of birth. We are not persuaded.

“Our standard of review for evidentiaiy matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Bridges, 65 Conn. App. 517, 521, 782 A.2d 1256, cert. denied, 258 Conn. 934, 785 A.2d 230 (2001).

Custodial interrogation under Miranda includes both express questioning, and “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). In Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990), the United States Supreme Court recognized a “routine booking question” exception to the requirement of Miranda warnings. “The exception encompasses questions that secure ‘biographical data necessary to complete booking or pretrial services.’ . . . The court acknowledged that the questions qualify as custodial interrogation but held that questions such as name, address, height, weight, eye color, date of birth, and age fall outside the sweep of Miranda v. Arizona, [384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].” (Citation omitted.) State v. Jones, 37 Conn. App. 437, 444, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995). The exception does not arise, however, if the questions are reasonably likely to elicit an incriminating response in a particular situation. United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983).

The defendant argues that although the question posed to him typically is a routine one, the police were aware that the victim had said that her attacker was Cuban and that he allegedly had said, “I’m Cuban. I’m gonna rape and murder you.” Thus, police knew that the question was likely to elicit an incriminating response. We disagree.

“The test as to whether a particular question is likely to elicit an incriminating response is objective; the subjective intent of the police officer is relevant but not conclusive and the relationship of the questions asked to the crime is highly relevant. . . . Ordinarily, the routine gathering of background, biographical data will not constitute interrogation. . . . We are aware, however, that [a] person’s name, age, address, marital status and similar data, while usually non-incriminatory in character, may in a particular context provide the missing link required to convict. . . . [W]e recognize the potential for abuse by law enforcement officers who might, under the guise of seeking objective or neutral information, deliberately elicit an incriminating statement from a suspect. ... A balance must be struck between information legitimately required by law enforcement to facilitate booking . . . and the protection of a defendant’s constitutional rights.” (Citations omitted; internal quotation marks omitted.) State v. Evans, 203 Conn. 212, 226-27, 523 A.2d 1306 (1987); see also United States v. Mata-Abundiz, supra, 717 F.2d 1280.

Here, the purpose of the questions was not to elicit an incriminating response. Rather, the purpose was to gather the biographical data necessary to complete a booking procedure, specifically, the defendant’s place of birth. That the question was posed in the context of filling out the uniform arrest report lends further support to our conclusion that the police meant only to gather ordinary information for administrative purposes. The only evidence in the record to support the defendant’s argument that the police intended to elicit an incriminating response was that Officer Morales knew that the victim had claimed that the defendant was Cuban and Morales was present during the booking process. It is not clear from the record that it was not the booking officer who asked the question while completing the uniform arrest report. We also cannot say that the question asked was so highly relevant to the crime committed to suggest that an incriminating response would be elicited. The defendant’s country of origin is wholly unrelated to the elements of the crime charged. “Routine questions . . . ordinarily innocent of any investigative purpose, do not pose the dangers Miranda was designed to check . . . .” United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986). We therefore conclude that under the facts of this case, Miranda warnings were not necessary, and the defendant’s statement, as set out in the uniform arrest report, properly was admitted into evidence.

Ill

The defendant’s final claim is that the court abused its discretion in finding him competent to stand trial. We disagree.

We review the court’s determination of competency under an abuse of discretion standard. State v. Williams, 65 Conn. App. 59, 84, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001). “In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 254 Conn. 659, 665-66, 759 A.2d 79 (2000).

“The conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1 .... This constitutional mandate is codified in . . . [General Statutes] § 54-56d (a), which provides that [a] defendant shall not be tried, convicted or sentenced while he is not competent. [A defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.] . . . This statutory definition mirrors the federal competency standard enunciated in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam). According to Dusky, the test for competency must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him. . . . Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial. . . .

“Section 54-56d (b) provides: A defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry. Although § 54-56d (b) presumes the competency of defendants, when a reasonable doubt concerning the defendant’s competency is raised, the trial court must order a competency examination. . . . Thus, [a]s a matter of due process, the trial court is required to conduct an independent inquiry into the defendant’s competence whenever he makes specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency.” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 65 Conn. App. 84—86.

“[T]he rule of Pate v. Robinson [383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966)] imposes a constitutional obligation, under the due process clause, to undertake an independent judicial inquiry, in appropriate circumstances, into a defendant’s competency to stand trial .... When a Pate inquiry is required, a court may not rely on the defendant’s subjective appraisal of his own capacity or on the court’s personal observations of the defendant but must hold an evidentiary hearing into the defendant’s competence. . . . Competence to stand trial is a legal question, which must ultimately be determined by the trial court.” (Citation omitted; internal quotation marks omitted.) State v. George B., 258 Conn. 779, 786, 785 A.2d 573 (2001). “The decision to grant [an evidentiary] hearing [into a defendant’s competence] requires the exercise of sound judicial discretion.” (Internal quotation marks omitted.) Id., 786-87.

The following additional facts are necessary for our resolution of the defendant’s claim. The record reveals that the defendant was the subject of several competency hearings in Connecticut since 1991 and had been committed to the Whiting Forensic Division of the Connecticut Valley Hospital. The record reveals that, at the competency hearing that is the subject of this claim, the court, Thim, J., heard contradictory expert testimony regarding the defendant’s claimed incompetency. The court found the defendant was malingering and, therefore, declared him competent to stand trial. We find no abuse of discretion.

Among the experts for the state was Guay Chatfield, director for the Bridgeport office of court evaluations, forensic services and department of mental health and addiction services for the state of Connecticut. She testified that she led a clinical team that evaluated the defendant. The team conducted a forty-five minute interview with the defendant and reviewed his background, and his psychiatric, neurological and psychological records and evaluations, including a prior diagnosis of malingering from the Whiting Forensic Division. The team, however, was unable to make a competency determination because the defendant was uncooperative. She testified, however, that he would fluctuate between rational and incoherent conversation. He would speak rationally about his medical condition and then become incoherent when asked about the trial process. She further testified that the defendant failed some simple malingering tests, thus indicating that he was faking his symptoms.

Jay Berkowitz, a psychiatrist at the Bridgeport correctional center, who is board certified in forensic psychiatry, testified that he observed the defendant on a regular basis for several months. During that time, he observed the defendant become agitated and anxious, and stop taking his medication before court appearances. He testified that the defendant had no trouble speaking English and that it was his opinion that the defendant was competent to stand trial.

Christina Ciocca, a neuropsychologist and expert in malingering, testified on behalf of the defendant. She evaluated the defendant in his native language, Spanish, and ultimately reported that he exhibited symptoms consistent with traumatic brain injury. She found his understanding of English to be “not very good” and detected no evidence of malingering.

“It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties’ assertions.” (Internal quotation marks omitted.) State v. Alvarado, 62 Conn. App. 102, 112, 773 A.2d 958, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). “[T]he credibility and weight to be given to the testimony of the defendant’s expert was solely within the province of the [jury].” Evans v. Taylor, 67 Conn. App. 108, 113, 786 A.2d 525 (2001). “Where, as here, there is strongly conflicting testimony from the expert witnesses, the trier of fact must determine the credibility of that testimony and may believe all, some or none of the testimony of a particular witness.” Granger v. A. Aiudi & Sons, 60 Conn. App. 36, 43, 758 A.2d 417, cert. denied, 255 Conn. 902, 762 A.2d 908 (2000); 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 118 (c), pp. 1146, 1149. We conclude that the record indicates that the court properly weighed and considered the conflicting testimony, and that it could reasonably conclude as it did. We therefore conclude that the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was charged with attempt to commit first degree sexual assault in violation of General Statutes §§ 53a-70 (a) (1) and 53a-49, and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). He was acquitted of those charges.

       Sayad Amir Zafer, a physician, testified that the victim had bruises on her chin, chest and shoulder blades, and had lost some teeth and that others were loose. Semen was found in the victim’s vagina and was recovered from her underpants.

       The state, therefore, initially charged the defendant with sexual assault in the first degree. A substitute information charging the defendant with attempt to commit sexual assault in the first degree subsequently was filed.

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

       The defendant also claims that the statement was hearsay and was not properly admitted under any exception to the hearsay rule. The defendant does not brief that issue beyond a mere statement of his claim. We therefore deem the claim abandoned. See, e.g., State v. Anderson, 67 Conn. App. 436, 441-42 n.8, 787 A.2d 601 (2001).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LEVERN GRANT v. COMMISSIONER OF CORRECTION
    (AC 21723)
    Schaller, Dranginis and Flynn, Js.
    Submitted on briefs December 13, 2001
    officially released February 26, 2002

      James M. Fox, special public defender, filed a brief for the appellant (petitioner).

      Linda N. Howe, assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, LeVem Grant, appeals following the denial by the habeas court of his petition for certification to appeal from the denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) rejected his claim of ineffective assistance of trial counsel and (2) denied his petition for certification to appeal. We dismiss the appeal.

In his petition for a writ of habeas corpus, the petitioner alleged that his trial counsel was ineffective in that he failed to call certain alibi witnesses, thereby enabling the state to request and to receive a Secondino missing witness jury instruction. Following a hearing, the court concluded that the petitioner failed to demonstrate that “but for any incompetent representation . . . the outcome of the case would have been different.” Moreover, the court found that trial counsel represented the defendant with reasonable competence. Accordingly, the court denied the petition. Following the denial of his petition for certification to appeal, the petitioner filed the present appeal.

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well set-tied. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Stanley v. Commissioner of Correction, 67 Conn. App. 357, 359, 786 A.2d 1249 (2001), cert. denied, 259 Conn. 922, 792 A.2d 855 (2002). “The standard to be applied by habeas courts in determining whether an attorney effectively represented a criminal defendant is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner must prove both deficient performance and actual prejudice.” Rivera v. Commissioner of Correction, 61 Conn. App. 825, 828, 767 A.2d 790, cert. denied, 256 Conn. 903, 772 A.2d 596 (2001). Therefore, for the “petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Internal quotation marks omitted.) White v. Commissioner of Correction, 66 Conn. App. 847, 848-49, 788 A.2d 1261 (2001).

After thoroughly reviewing the record, we conclude that the petitioner has failed to demonstrate that he has been denied the effective of assistance of counsel. In particular, the petitioner has not shown that he suffered actual prejudice as a result of trial counsel’s actions. See Rivera v. Commissioner of Correction, supra, 61 Conn. App. 829. Because we conclude that the habeas court properly determined that the petitioner was not denied the effective assistance of counsel, we also conclude that that court did not abuse its discretion in denying the petition for certification to appeal.

“Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.” (Citation omitted; internal quotation marks omitted.) Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77, 712 A.2d 992 (1998). “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 court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Owens v. Commissioner of Correction, 63 Conn. App. 829, 831, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001).

The habeas court’s denial of the petition was based on its finding that the petitioner failed to establish that trial counsel rendered ineffective assistance. Our thorough review of the record leads us to conclude that the petitioner has similarly failed to demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       See State v. Grant, 221 Conn. 93, 94 n.1, 602 A.2d 581 (1992).

       In November, 1990, the petitioner was found guilty of murder in violation of General Statutes § 53a-54a. His conviction was affirmed on direct appeal. State v. Grant, 221 Conn. 93, 602 A.2d 581 (1992).

       Pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960), “[t]he failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness.” (Internal quotation marks omitted.) Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 306 n.4, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001). Subsequent to the petitioner’s criminal trial, our Supreme Court abandoned the missing -witness rule in criminal cases. State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000).

       Although his argument is unclear, the petitioner seemingly further contends that the decision of our Supreme Court in State v. Malave, supra, 250 Conn. 738, “illuminates” his claim that he received ineffective assistance of counsel. As stated in footnote 2 of this opinion, in Malave our Supreme Court abandoned the missing witness rule in criminal cases. We fail to see how the Malave case “amplifies the errors at [the petitioner’s] trial” given that our Supreme Court decided Malave nine years after the petitioner’s conviction following a jury trial, and seven years after the exhaustion of the petitioner’s direct appeal. See State v. Grant, 221 Conn. 93, 602 A.2d 581 (1992). To the extent that the petitioner claims that the Malave case should apply retroactively to the current situation, we note that holdings issued in court decisions cannot be applied retroactively “to cases in which judgments were already final. . . . Decisional law can apply retroactively only to cases that are pending.” (Citation omitted.) Amodio v. Amodio, 56 Conn. App. 459, 472, 743 A.2d 1135, cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000). Because the defendant’s direct appeal concluded in 1992, long before Malave was decided, the Malave decision cannot affect the present case.


author: MIHALAKOS, J.

text:
    CHIEF OF POLICE OF THE TOWN OF WINDHAM ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 21606)
    (AC 21607)
    (AC 21608)
    Mihalakos, Dranginis and Daly, Js.
    Argued September 11, 2001
    officially released March 5, 2002

      Richard S. Cody, for the appellants (plaintiffs).

      Clifton A. Leonhardt, chief counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Trenton Wright, Jr., pro se, the appellee (defendant).

      Theodore N. Phillips II, for the appellees (defendants Norwich Bulletin et al.).
   Opinion

MIHALAKOS, J.

In these actions, the plaintiffs, the chief of police and the police department of the town of Windham, appeal from the trial court’s judgments dismissing their three consolidated administrative appeals from three virtually identical final decisions of the defendant freedom of information commission (commission). The commission’s final decisions resulted from complaints filed pursuant to the Freedom of Information Act (act), General Statutes (Rev. to 1997) § 1-7 et seq., now § 1-200 et seq., by the remaining defendants, Trenton Wright, Jr., Mark Reynolds, the Norwich Bulletin, Paul Lewis and Fox 61 News. On appeal, the plaintiffs claim that (1) the court improperly concluded that General Statutes (Rev. to 1997) § 54-102r (Megan’s Law) and General Statutes (Rev. to 1997) § 1-19 (b) (3), now § 1-210 (b) (3), require them to disclose the state’s sexual offenders registry (registry), (2) the court further misconstrued § 54-102r to require records to be made solely in the public interest and not for police use in the detection or investigation of crime, (3) the commission’s prospective orders prevent the plaintiffs’ appeals from being moot and (4) disclosure of the registry would have impaired the division of criminal justice in resolving the underlying homicide case. Because subsequent changes in the law and the unlikelihood of further consequences to the plaintiffs have obviated any practical relief that this court may have granted, we dismiss the appeals as moot.

The following facts and procedural history are relevant to the disposition of the plaintiffs’ appeals. The consolidated appeals arise out of the murder of an eleven year old girl in Willimantic on August 13, 1998. Police discovered the girl’s body early on August 14, 1998, and extensive media coverage quickly followed. On that day and on subsequent days, the defendant Fox 61 News requested that the plaintiffs release their most current registry, which was, at that time, a public record registered with the police as required by Megan’s Law. See footnote 2. The defendants, the Norwich Bulletin and Wright, made similar requests on August 18 and August 20, 1998, respectively. The requesting defendants were denied access to the registry until August 28, 1998, following the August 26,1998 arrest of a suspect in connection with the homicide.

The requesting defendants filed complaints with the commission alleging that the plaintiffs had violated the act by failing to grant timely access to the registry. On December 22, 1998, the commission issued notices of final decisions on the complaints. The commission con-eluded in each case that the plaintiffs had violated the act when they refused access to the registry because it was a public record under the act and was required to be released upon request, as it did not fit under any exemption allowing nondisclosure. The commission found specifically that the exemption claimed by the plaintiffs, allowing nondisclosure of records made in connection with the investigation of crime, did not apply because the registry was made before the underlying events occurred and it existed, therefore, independent of any investigation being conducted by the plaintiffs. The commission also ordered the plaintiffs to comply with the act in the future, but it did not impose civil penalties and noted that they had acted in good faith under great pressure.

On February 4,1999, the plaintiffs filed administrative appeals with the court, challenging the commission’s final decisions. On May 27, 1999, the court, Sferrazza, J., declined to dismiss the appeals as moot and denied the defendants’ motion to dismiss. Judge Sferrazza reasoned that although the enactment of Public Acts 1998, No. 98-111, § 9, codified at General Statutes (Rev. to 1999) § 54-258, precluded further controversy regarding the disclosure of the registry, the commission’s prospective orders to comply generally with the act could predicate harsher consequences to the plaintiffs for other future violations, despite the unlikelihood that the same violation will occur again. Nonetheless, the court, Hartmere, J., on January 12, 2001, dismissed the appeals on the merits and found, in accord with the commission, that the plaintiffs were not exempt from producing the registry under General Statutes (Rev. to 1997) § 1-19c, now § 1-201, or under § 1-19 (b) (3). Judge Hartmere concluded that § 1-19c did not apply because the registry was clearly compiled and maintained as an administrative function of the plaintiffs pursuant to § 54-102r. Judge Hartmere also concluded that § 1-19 (b) (3) was inapplicable because the registry was not originally compiled for crime detection or investigation, but rather its puipose, flowing from the legislative history of Megan’s Law and its subsequent amendments, was rooted in the dissemination of information to keep children and the general community safe. Consequently, Judge Hartmere concluded that the registry should have been timely released and that the appeals warranted dismissal. These appeals followed on February 1, 2001, and were consolidated on March 28, 2001.

I

The plaintiffs first make two separate but essentially redundant claims that the court misconstrued § 54-102r and, therefore, misapplied § 1-19 (b) (3). Because no practical relief may be granted, we decline to address those issues and dismiss the appeals as moot.

Our standard of review regarding mootness is well settled. “Mootness implicates [this] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction . . . .” (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 492, 778 A.2d 33 (2001). “It is beyond question that we are without jurisdiction to issue advisory opinions [or to] decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) State v. Hopkins, 62 Conn. App. 665, 679, 772 A.2d 657 (2001). In other words, the “test for determining mootness is not [w]hether the [plaintiffs] would ultimately be granted relief [but] whether there is any practical relief this court can grant the [plaintiffs].” (Internal quotation marks omitted.) In re Amelia W., 62 Conn. App. 500, 505, 772 A.2d 619 (2001).

Courts, however, have developed an exception to the mootness rule for recurring questions that would otherwise completely evade review. “[F]or an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. ” (Internal quotation marks omitted.) Board of Education v. State Board of Education, 243 Conn. 772, 777-78, 709 A.2d 510 (1998).

The plaintiffs argue that the court misconstrued the law applicable at the time of the underlying events. The commission found that Megan’s Law required the plaintiffs to disclose the registry at all relevant times, and the court agreed, stating that § 54-102r, as amended by No. 97-183 of the 1997 Public Acts, was intended clearly to require disclosure of the registry to the public. We need not reach the soundness of those conclusions because even if we were to conclude that they were incorrect, subsequent developments in the law as a result of a decision by the United States Court of Appeals for the Second Circuit have rendered the plaintiffs’ claims moot. Those developments have dispelled any confusion the plaintiffs may yet harbor in relation to their disclosure duties. Further, the developments have significantly diminished any potential harm the plaintiffs may face from the commission’s decisions regardless of whether they were incorrect.

While a decision as to the plaintiffs’ consolidated appeals was pending, the Second Circuit upheld a permanent injunction against the full application of Megan’s Law. The injunction primarily prevents the further dissemination of the registry or registry information to the public. Doe v. Dept. of Public Safety, 271 F.3d 38, 62 (2d Cir. 2001). The court concluded that Connecticut’s version of Megan’s Law is too broad a means of fulfilling its purpose of protecting the health and welfare of the state’s children. Id., 41-42. The court further held that our law “fails to accommodate the constitutional rights of persons formerly convicted of a wide range of sexual offenses who are branded as likely to be currently dangerous offenders irrespective of whether or not they are.” Id.; see footnote 9.

The Second Circuit’s decision to uphold the injunction renders the plaintiffs’ claims moot because no practical relief may be granted to the plaintiffs even if we were to use the injunction as a basis for reversing the decisions of the court and the commission. Although we recognize the importance of the Second Circuit’s decision in Doe, a determination of whether the court, and thereby the commission, incorrectly applied the law in these instances is unnecessary because it would amount to a “determination [from] which no practical relief can follow.” (Internal quotation marks omitted.) State v. Hopkins, supra, 62 Conn. App. 679. Specifically, because the injunction now prevents the plaintiffs and other similarly situated state actors from disseminating the registry or registry information to the public, a determination as to the proper application of a disclosure exemption of the act as it relates to the registry is contextually meaningless. Further, as discussed in part II, reversing the judgments of the trial court at this juncture serves only to enhance potentially the reputation of the plaintiffs and not the ends of justice, as the plaintiffs were not appreciably harmed by the commission’s decisions and they are unlikely to face hardship from those decisions in the future. Therefore, the issues regarding whether the court or the commission misconstrued the earlier version of Megan’s Law in relation to the act’s exemption provisions are moot, and further review would waste judicial resources imprudently and serve no practical purpose.

II

Nonetheless, the plaintiffs claim that review is required because the commission’s prospective orders prevent their appeals from being moot, and this court may offer practical relief by reversing the judgments of the trial court and clearing their names in the event of future violations of the act. See generally Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 9, 688 A.2d 314 (1997) (Appellate Court judgment of mootness reversed because prospective order remained in controversy), on remand, 47 Conn. App. 466, 704 A.2d 827 (1998). Our Supreme Court has recognized, however, that a controversy involving prospective orders can become moot by “a change in circumstances subsequent to the [commission’s] decision . . . .” Id., 9 n.10. Therefore, the present case is unlike the situation in Domestic Violence Services of Greater New Haven, Inc., because here the prospective orders, in relation to the operation of Megan’s Law in conjunction with the provisions of the act, were rendered inert by the subsequent permanent injunction that was upheld by the Second Circuit. Moreover, it is not within our province to intercede on behalf of the plaintiffs merely because prospective orders could result in harsher consequences from future controversies, especially when, with respect to the interaction between Megan’s Law and the act, the potential for such conflicts is now exceedingly slim. Accordingly, the plaintiffs’ appeals do not meet the second prong of the mootness exception because the current state of the law obviates the concern, in all reasonable likelihood, that the issues raised here will arise again.

Furthermore, this is not a situation in which the “potential for harm to the [plaintiffs] if we spurn [their] appeal[s] is of sufficient magnitude to overcome any claim of mootness.” State v. Reilly, 60 Conn. App. 716, 725, 760 A.2d 1001 (2000). In light of the commission’s recognition of the plaintiffs’ good faith and the pressure under which they acted, it does not appear to this court that the commission’s final decisions or its prospective orders will promulgate prejudice against the plaintiffs, as they have contemplated. Thus, even if this court, arguendo, overruled the trial court and, thereby, the commission, the effect on the plaintiffs of these events is unchanged, as their reputations apparently have been unstained by these proceedings.

Ill

The plaintiffs’ final claim is that disclosure of the registry may have impaired the division of criminal justice in resolving the underlying homicide. This court need not address that issue because the division of criminal justice is not a party to these appeals, and the plaintiffs do not have standing to raise issues regarding harm to others. See Russell v. Yale University, 54 Conn. App. 573, 576-77, 737 A.2d 941 (1999). Therefore, after reviewing the record on appeal, evaluating the briefs and arguments of the parties, and accounting for the recent decision of the Second Circuit, we conclude that no practical relief is available to the plaintiffs and that these appeals are nonjusticiable.

The appeals are dismissed as moot.

In this opinion the other judges concurred.

       After a young girl was found dead in August, 1998, the defendants Wright, Reynolds, the Norwich Bulletin, Lewis and Fox 61 News requested that the plaintiffs allow them access to the state’s sexual offenders registry. Following the plaintiffs’ refusal to do so, those defendants filed complaints with the commission. Wright is the father of two children similar in age to the victim of the alleged homicide. The children resided in the immediate area of the alleged crime. Except for Wright and the commission, the other defendants are media outlets or members of the media.

       General Statutes (Rev. to 1997) § 54-102r concerned the registration of sexual offenders and was popularly known as Megan’s Law. That statute, as amended by No. 97-183 of the 1997 Public Acts, was repealed and replaced by law enacted under No. 98-111 of the 1998 Public Acts, which was codified as the new Megan’s Law under General Statutes § 54-250 et seq. and has been effective since October 1, 1998. Slight modifications to the law were made under No. 99-183 of the 1999 Public Acts, which became effective July 1, 1999.

       It is apparent that the plaintiffs, although referencing General Statutes § 1-210 (b) (4) of the act in their statement of issues and the first heading of their argument, actually are referring to General Statutes (Rev. to 1997) § 1-19 (b) (3), now § 1-210 (b) (3). Section 1-19 (b) (3) provides in relevant part that disclosure is not required of “records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of [sensitive information] . . . .”

       We note at the outset that although the parties have neither raised nor briefed the issue of mootness, we have raised it sua sponte because mootness implicates this court’s subject matter jurisdiction and must be addressed. See Lucarelli v. Freedom of Information Commission, 29 Conn. App. 547, 548 n.2, 616 A.2d 816 (1992), cert. denied, 225 Conn. 901, 621 A.2d 284 (1993). We further note that we are aware of our Supreme Court’s holding in Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98-99, 644 A.2d 325 (1994), which reversed this court’s judgment that a new trial was required due to plain error committed by the trial court in a case involving the propriety of a jury’s verdict. Noting that this court could consider only the infirmity of the jury’s verdict, if it concluded that the trial court had committed plain error in accepting it, our Supreme Court stated: “In the absence of a question relating to subject matter jurisdiction, the Appellate Court had only limited authority to reach the issue of possible confusion in the jury’s verdict.” (Emphasis added.) Id., 97-98. Our Supreme Court, based its reversal in part on the fact that this court did not invite the parties to brief the issue of plain error, which we had raised below sua sponte. Id., 99. Unlike Lynch, however, the present case concerns subject matter jurisdiction, and that issue requires our independent review whenever and however it is raised. See In re Shawn S., 66 Conn. App. 305, 309, 784 A.2d 405 (“ ‘[wjhenever a court discovers that it has no jurisdiction, it is bound to dismiss the case’ ”), cert. granted on other grounds, 258 Conn. 948, 788 A.2d 97 (2001). Further, in matters involving subject matter jurisdiction, we have exercised our discretion in determining whether to order parties to brief the issue or to decide the issue in lieu of such an order. See Grabowski v. Bristol, 64 Conn. App. 448, 450, 780 A.2d 953 (2001) (question of subject matter jurisdiction requires court’s independent review despite having not been raised by party on appeal); Lucarelli v. Freedom of Information Commission, supra, 548 n.2.

       The plaintiffs claimed that the registry was exempt from the disclosure requirements of the act pursuant to General Statutes (Rev. to 1997) § 1-19 (b) (3), now § 1-210 (b) (3). See footnote 3.

       Public Acts 1998, No. 98-111, § 9, codified at General Statutes (Rev. to 1999) § 54-258, provides in relevant part: “(a) (1) Notwithstanding any other provision of the general statutes, the registry maintained by the Department of Public Safety shall be a public record and shall be accessible to the public during normal business hours. The Department of Public Safety shall make registry information available to the public through the Internet. Not less than once per calendar quarter, the Department of Public Safety shall issue notices to all print and electronic media in the state regarding the availability and means of accessing the registry. Each local police department and each state police troop shall keep a record of all registration information transmitted to it by the Department of Public Safety, and shall make such information accessible to the public during normal business hours. . . .”

       General Statutes (Rev. to 1997) § 1-201, now § 1-19c, provides in relevant part that “the Division of Criminal Justice shall not be deemed to be a public agency except in respect to its administrative functions.”

       The plaintiffs’ assertion that the commission ignored their exemption defense is without merit because the commission clearly found that General Statutes (Rev. to 1997) § 1-19 (b) (3), now § 1-210 (b) (3), did not apply.

       See generally Doe v. Dept. of Public Safety, 271 F.3d 38 (2d Cir. 2001). In Doe, a person listed on the registry as a sex offender challenged the constitutionality of Connecticut’s Megan’s Law on procedural due process grounds under the fourteenth amendment to the United States constitution and sought a permanent injunction on the dissemination of the registry to the public. The United States District Court for the District of Connecticut had granted summary judgment to the plaintiff and ordered the injunction. Id., 46. In upholding the injunction, the Second Circuit concluded that Connecticut’s Megan’s Law registry implied, as published to the public on the Internet and in printed form, that each person listed on the registry was more likely than the average person to be currently dangerous. Id., 41-42. The court ultimately concluded that publication of the registry to the public violates the due process rights of each listed person until a hearing or other procedurally adequate opportunity is afforded to those persons to address the veracity of the registry’s implication. Id., 62. The court noted that to comply with the upheld injunction and renew publication to the public, “Connecticut will likely adopt new procedures more sensitive to whether those on a widely disseminated registry are likely to be currently dangerous.” Id., 61.

       In Connecticut state courts, great weight is afforded to the decisions of the Second Circuit as to matters involving the federal constitution. State v. Faria, 254 Conn. 613, 625 n.12, 758 A.2d 348 (2000).

       See Presnick v. Freedom of Information Commission, 53 Conn. App. 162, 164, 729 A.2d 236 (1999) (standard of appellate review for trial court review of commission decisions).

       In point of fact, the permanent injunction that was upheld by the Second Circuit prevents the plaintiffs from running afoul of the act in regard to the registry because now it cannot be released to the public. It will be soon enough to deal with actual controversies when and if publication of the registry to the public is reinstated, instead of assuming that controversies do or will exist where there can be none under the current law.