author: SULLIVAN, J. FLYNN, C. J.,

text:
    STATE OF CONNECTICUT v. MICHAEL D. PIRES, SR.
    (AC 30860)
    Flynn, C. J., and DiPentima and Sullivan, Js.

      Argued February 16
    officially released July 27, 2010

      April E. Brodeur, special public defender, for the appellant (defendant).

      Paul J. Narducci and John P. Gravalec-Pannone, senior assistant state’s attorneys, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SULLIVAN, J.

The defendant, Michael D. Pires, Sr., appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims that the trial court improperly (1) denied him the constitutional right to self-representation and (2) instructed the jury in several ways, including on the requisite intent for the charged crime and on his right not to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the alleged offense, the defendant was staying at 121 Fourth Street, Norwich, with his son, Michael Pires, Jr., who engaged in the sale of illegal drugs. On the evening of June 27, 2004, the defendant and Pires, Jr., consumed several alcoholic beverages at a local club. While there, Pires, Jr., received a telephone call from the victim, who wanted to buy drugs from him. The victim subsequently arrived at the club and drove the defendant and Pires, Jr., to 121 Fourth Street, where they all entered the house. The victim and Pires, Jr., discussed the purchase of drugs, which turned into an argument when the victim offered to pay for the drugs with a check and Pires, Jr., rejected the offer and refused to provide the victim with any drugs.

As the disagreement between Pires, Jr., and the victim escalated, an associate of Pires, Jr., Tamir Dixon, intervened in the argument by punching the victim in the face. The victim fell to the floor, and Dixon and Pires, Jr., began kicking and hitting the victim. Several other young men also punched, kicked or hit the victim with a dumbbell weight. During the altercation, the defendant was nearby. Pires, Jr., began hitting the victim with a dumbbell weight, which Pires, Jr., testified that he had been instructed to do by the defendant. At some point in the altercation, the defendant was observed pounding nails into the victim’s head with the dumbbell. The defendant also was observed choking the victim. After the assault concluded, the victim was wrapped in a carpet and carried out to the trunk of his own car.

At about 2:10 a.m. on June 28,2004, Douglas A. Bisson was delivering newspapers on Fourth Street and Gilmore Street when he observed a youth acting as if he might be a “lookout.” The youth then ran toward a car and joined two other individuals standing around the open trunk of a car. When Bisson drove past the car again, the three individuals were no longer there but he called the police to report the suspicious activity.

Officers Anthony Gomes and Andre Rosedale of the Norwich police department, in response to the call, approached the car described by Bisson and observed that the trunk was closed and that near the car there was a rug, plastic bag and blanket that appeared to have moist red stains on them. As the officers were investigating, the defendant exited the side door of the residence at 121 Fourth Street. When the officers asked him about the car, the defendant said that “the guy [whose car it was had been there] before but hadn’t come back yet.” When asked about the items near the car, the defendant claimed that children had spilled Kool-Aid on the items. The officers did not believe that the red stains looked consistent with Kool-Aid, so they opened the trunk and discovered the lifeless body of the victim. An ambulance was called for the victim, and the police transported the defendant to the police station to make a statement. The others involved had left the 121 Fourth Street house but were arrested later elsewhere.

Prior to the commencement of trial, the defendant made several requests to the court to remove defense counsel, special public defender Linda Sullivan, from the case. On May 25, 2005, the defendant requested that the court, Clifford, J., remove Sullivan from the case. The court found no cause to do so. Similar exchanges occurred on October 12 and November 15, 2005, in appearances before Judge Handy. On December 20, 2005, the defendant renewed his request, and the court, Schimelman, J., also denied the request. When the defendant mentioned his constitutional rights, the court informed him that as an indigent defendant, he had the right to counsel but not the right to choose his own counsel. After a recess granted by the court so that the defendant could discuss strategy with Sullivan, the court reconvened and Sullivan reported that the defendant had not discussed strategy but had told her that he wanted to represent himself. The court ordered the case to the firm trial list, and the hearing concluded.

The next time the defendant appeared before the court, in March, 2006, Sullivan filed a motion to withdraw as counsel, and attorneys Kevin Barrs and Bruce Sturman asked to be appointed due to the conflict between Sullivan and the defendant. The court granted the motion to withdraw and appointed Barrs and Stur-man with the proviso that it did not want the defendant to continue requesting a new attorney at every hearing. The defendant did not make another request to replace counsel until August 2, 2006, at the start of trial, when he filed a pro se motion to dismiss counsel. At a hearing on August 3, 2006, the defendant withdrew that motion. The defendant filed another motion at the time of sentencing, titled “motion to dismiss,” that the court treated as a motion to dismiss counsel, and the court denied the motion.

Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims he was denied the right to self-representation because the court failed to canvass him pursuant to the federal and state constitutions and Practice Book § 44-3 thereby violating his sixth amendment right to self-representation and his right to due process. We disagree.

We begin by noting that “[t]here is no doubt that a defendant has a right under both the state and the federal constitutions to represent himself at his criminal trial. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II); State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I); State v. Johnson, 185 Conn. 163, 178, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Beaulieu, 164 Conn. 620, 630, 325 A.2d 263 (1973); see also Practice Book § [44-3]. The constitutional right of self-representation depends, however, upon its invocation by the defendant in a clear and unequivocal manner. Faretta v. California, supra, 835 ... .

“In the absence of a clear and unequivocal assertion of the right to self-representation, a trial court has no independent obligation to inquire into the defendant’s interest in representing himself, because the right of self-representation, unlike the right to counsel, is not a critical aspect of a fair trial, but instead affords protection to the defendant’s interest in personal autonomy.” (Citations omitted.) State v. Carter, 200 Conn. 607, 611-13, 513 A.2d 47 (1986). “The clear and unequivocal request formulation has been said to have developed primarily as a standard designed to minimize abuses by criminal defendants who might be inclined to manipulate the system. ... If an unequivocal request were not required, convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel.” (Citation omitted; internal quotation marks omitted.) State v. Gathers, supra, 197 Conn. 377 n.8.

In order to determine whether the court was required to canvass the defendant concerning his waiver of the right to counsel and his desire to proceed pro se, as he claims, we first must determine whether the request was made in a clear and unequivocal manner. The defendant argues that he made two clear and unequivocal requests for self-representation—at the pretrial hearing on December 20, 2005, and at the sentencing hearing on October 13, 2006. The question of whether the defendant’s request is clear and unequivocal presents a mixed question of law and fact that this court reviews de novo. See State v. Flanagan, 293 Conn. 406, 420-21, 978 A.2d 64 (2009).

“To invoke his [s]ixth [a]mendment right [to self-representation] under Faretta [v. California, supra, 422 U.S. 806] a defendant does not need to recite some talismanic formula hoping to open the eyes and ears of the court to his request. Insofar as the desire to proceed pro se is concerned, [a defendant] must do no more than state his request, either orally or in writing, unambiguously to the court so that no reasonable person can say that the request was not made. . . . Moreover, it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry. That is, the triggering statement in a defendant’s attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement.” (Citations omitted; emphasis in original.) State v. Flanagan, supra, 293 Conn. 423-24.

A

Pretrial

The defendant argues that he made, through his attorney, a clear and unequivocal request to represent himself at a pretrial hearing on December 20, 2005, which the court improperly denied by failing to canvass the defendant, informing him that his constitutional rights included only the right to counsel, and remaining silent when his attorney stated that she had informed the defendant that the court would likely deny a request for self-representation. We disagree.

The following additional facts are relevant to the resolution of the defendant’s claim. At the December 20, 2005 hearing, Sullivan reported that the defendant had cut short their discussions concerning the case. When the court inquired into the reason for the defendant’s refusal to communicate with his attorney, the defendant expressed the desire to “fire” his attorney. The court informed the defendant that he did not have the right to fire his attorney and that no cause existed for dismissing Sullivan from the case. The defendant mentioned his constitutional rights while making his request to remove his attorney. In response, Judge Schi-melman told him that his constitutional rights only include the right to be represented by an attorney, not to be represented by the attorney of his choice. After several similar exchanges, Judge Schimelman told the defendant and Sullivan to try and work things out between them and then return to the courtroom. The record reflects that when they returned, the court asked for an update. Sullivan stated: “Well, I did go downstairs and attempt to talk to [the defendant]. He did want to discuss strategy with me. He indicated now that he wishes to represent himself in this matter. I informed him that I didn’t think Your Honor was going to allow him to represent himself on a murder charge simply because that would be much too dangerous and it would not be in his best interest. And that’s about where we stand, Your Honor.”

The court then asked Sullivan whether the defendant refused to discuss evidence and whether he had copies of the transcripts from the probable cause hearing. Sullivan affirmatively answered the court’s questions, and the court responded: “I’m going to put this on the trial fist because at some point you need to communicate with Ms. Sullivan. You’re on the firm trial list. You’re on two hour notice.” The hearing ended. On March 8, 2006, after granting Sullivan’s motion to withdraw, the court, Handy, J., appointed attorneys Sturman and Barrs as counsel. The court engaged in the following colloquy with the defendant:

“The Court: Simply because you may not like the advice that you’re getting from your attorneys, who happen to have law degrees and happen to know what they’re doing, is not a reason for me to remove an attorney. Do you understand that?
“The Defendant: Yes. I do, ma’am.
“The Court: I think you’re going to have differences of opinions with these guys as well, and, you know, I don’t want to hear complaints about the fact that you feel you’re not being properly represented. Do I make myself clear?
“The Defendant: Yes, ma’am.”

On the basis of our review of the record, we must conclude that any pretrial request by the defendant to represent himself was not clear and unequivocal such that it would trigger the trial court’s responsibility to engage in an inquiry under Practice Book § 44-3, which governs the court’s inquiry into a defendant’s waiver of the right to counsel. Sullivan did inform the court that the defendant had expressed to her a desire to represent himself but she immediately qualified that statement by telling the court that she had advised him that the court was not likely to grant the request. The court reasonably could have interpreted counsel’s statement to mean that the defendant did not want to pursue self-representation as an option. Such an interpretation is bolstered by the fact that the court, unlike the court in Flanagan, never responded to the defendant’s request in any manner.

Although the court discussed the constitutional right to counsel without noting self-representation as an option, we cannot conclude that the discussion amounted to a denial of the defendant’s right to self-representation. The court is not obligated to suggest self-representation to a defendant as an option simply because the defendant repeatedly expressed dissatisfaction with his court-appointed counsel. The defendant’s argument is further belied by the fact that the statement that he now claims was a clear and unequivocal request for self-representation came after the court’s statements concerning his constitutional rights to court-appointed counsel.

Finally, the defendant urges that because the court remained silent when counsel stated that she had informed him that the court was likely to deny his request for self-representation, the silence equaled agreement with counsel's statement. The defendant cites no law to support the proposition that the court’s silence, in the face of advice given by an attorney to a defendant and relayed to the court, amounts to agreement with the attorney. We already have concluded that the court reasonably could have interpreted the statement by Sullivan to mean that the defendant accepted her advice concerning the likely ruling of the court and did not want to pursue self-representation. Because no motion was pending before the court concerning self-representation or any other matter, the court properly did not respond to the statement made by Sullivan.

In March, 2006, the defendant appeared before Judge Handy following what he argues was a clear and unequivocal invocation of his right to self-representation, and he accepted the appointment of new counsel and the removal of Sullivan as his counsel. He had been requesting the removal of Sullivan since May, 2005. The defendant made no attempt to protest the appointment of new attorneys or in any way indicate that he was not satisfied with the resolution to his requests to remove Sullivan. Flanagan holds that a defendant does not waive his right to self-representation merely by failing to reassert it, but in the present case the court granted the defendant precisely what he had requested—the dismissal of Sullivan as his counsel.

The defendant argues that he had only requested that counsel be removed but he never actually requested a replacement, which amounted to a request to proceed with self-representation. “A trial court, faced with the responsibility of reconciling a defendant’s inherently inconsistent rights to self-representation and to counsel, is entitled to await a definitive assertion of a request to proceed pro se. Any other ruling would permit a defendant on appeal to claim a violation of his rights whether he defended himself or was represented by an attorney.” State v. Carter, supra, 200 Conn. 614. No such unequivocal assertion occurred in the present case, and, therefore, the court’s obligation to canvass the defendant pursuant to Practice Book § 44-3 was not triggered.

B

Sentencing

The defendant also argues that the motion to dismiss counsel that the court, Schimelman, J., denied prior to sentencing on October 13, 2006, amounted to a clear and unequivocal request to proceed pro se. The defendant argues that this request was clear because he did not request replacement counsel and that the court noted that if the request were granted, the defendant would proceed either without counsel or the proceedings would need to be put on hold until new counsel could be appointed.

The following facts are relevant to the resolution of the defendant’s claim. On October 2, 2006, the defendant filed a handwritten “motion to dismiss.” On October 13, 2006, the court took up the motion prior to the sentencing portion of the hearing, giving the defendant the opportunity to make his claims concerning counsel. After the defendant stated several complaints concerning the evidence in the case, the following colloquy occurred between the court and the defendant:

“The Court: . . . [S]o that I’m clear, are you telling me why it is that I should dismiss your lawyers at this point? Is that why you’re telling me this? Is that what you want?
“The Defendant: I asked that from the beginning. That’s why I wrote you the motion to dismiss.
“The Court: I’m well aware of what you wrote me, and I’m well aware of what I have done to date. I’m asking you now, sir, whether or not you are asking me to dismiss your lawyers prior to this sentencing hearing. Is that what you’re asking?
“The Defendant: Yes.”

After allowing the defendant further opportunity to explain his request, during which the defendant continued to comment on the evidence and facts, the court stated: “There is nothing that you said to me that leads me to believe that I [should dismiss] them at this time. In fact, it would be to your disadvantage, in my mind, to dismiss them because they have the ability to explain to the court in a way that perhaps you, as a layperson, [do] not have, those matters that need to be discussed during this sentencing. And it would be counterproductive, in my mind, to dismiss them and to leave you without representation or to make the determination that this sentencing should be delayed. I think neither is necessary, nor neither would be beneficial to you and, or, to the family of the victims in this case and, or, to the judicial process. Accordingly, your motion to dismiss your attorneys is denied.”

Again, we cannot conclude that the defendant made a clear and unequivocal request to proceed with self-representation. The defendant made a vaguely worded motion and then proceeded to regale the court with his perspective on the evidence in the case. The court had to redirect the defendant to the issue of dismissing counsel. The defendant nonetheless argues that the court acknowledged that his request was one for self-representation because the court stated that granting his request to dismiss counsel would result in either him proceeding pro se or in delaying the hearing. Such an acknowledgement, however, simply stated the possible outcomes of a dismissal of counsel at that point in time. At no time was the issue of self-representation ever raised by the defendant in either the motion or in his statements to the court.

Unlike the trial court in Flanagan, which stated that “if you’re making a request of me that you be allowed to represent yourself or that you be allowed to retain or have new counsel appointed for you, that request is denied”; (internal quotation marks omitted) State v. Flanagan, supra, 293 Conn. 413; the court here did not treat the defendant’s request as one for self-representation. The court simply noted that if it were to grant the request to dismiss counsel, the defendant would proceed on his own or the court would need to delay the sentencing in order to appoint new counsel for him. Such a statement by the court does not turn statements by the defendant expressing dissatisfaction with counsel into a clear and unequivocal request for self-representation.

II

The defendant next claims that the court improperly instructed the jury in a variety of ways. The defendant did not object to any of the challenged instructions and, therefore, requests review of his unpreserved claims concerning jury instructions pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although we conclude that the record is adequate for review and that the claims are of constitutional magnitude, we conclude that the challenged jury instructions did not deprive the defendant of a fair trial.

“When a challenge to a jury instruction is of constitutional magnitude, the standard of review is whether it is reasonably possible that the jury [was] misled. . . . [T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Gaymon, 96 Conn. App. 244, 247, 899 A.2d 715, cert. denied, 280 Conn. 906, 907 A.2d 92 (2006).

A

The defendant first claims that the court’s instructions to the jury impermissibly included language on general intent for the specific intent crime of murder. The defendant argues that the general intent language used by the court “obscures the essential factual question of whether the defendant acted with the intent to kill the victim, or only intentionally acted and the victim died.” We do not agree that the instructions concerning intent were misleading.

This court has held that it is improper for the trial court to include in its jury instructions the entire definition of intent found in General Statutes § 53a-3 (ll). State v. Sivak, 84 Conn. App. 105, 110, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004). We also, however, frequently have upheld the decisions of trial courts that improperly read to the jury the entire definition of intent found in § 53a-3 (11) but nonetheless gave the proper intent instruction. See, e.g., State v. Brown, 97 Conn. App. 837, 848, 907 A.2d 118, cert. denied, 280 Conn. 944, 912 A.2d 477 (2006).

In the language challenged by the defendant, the court told the jury that “[i]ntent relates to the condition of mind of the person who commits the act, his purpose in doing it, as defined by our statute. A person acts intentionally with respect to a result when his conscious objective is to cause such result. Intentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent.” Although the defendant relies on cases holding that jury instructions containing the general intent language found in § 53a-3 (11) are improper when the crime at issue involves only specific intent, the court in the present case did not, in fact, read the improper language.

The defendant also challenges the court’s instruction as to liability as an accessory. The court instructed: “A person acting with the mental state required for the commission of an offense who intentionally aids another person to engage in conduct which constitutes an offense . . . .” The defendant focuses on the “ ‘engage in conduct’ ” language because that is part of the impermissible definition of general intent found in § 53a-3 (11). In the challenged statement, however, the words “engage in conduct” refer not to the required intent but rather explain that the person being aided by the accessory must be doing the action that constitutes the crime, as opposed to simply thinking about the criminal act or perhaps engaging in conduct other than the criminal act. In the very same sentence, the court said that the person who is an accessory must be acting with the “mental state required for the commission of an offense,” and that mental state already had been properly defined and explained.

B

The defendant next claims that the court improperly used general intent language and failed to instruct the jury adequately that the accessory must share the principal’s specific intent to cause the death. As we concluded previously, the court’s instructions on accessory liability included a statement that the defendant must have had the mental state required for the commission of the crime in question. The court properly instructed the jury concerning the requirement of specific intent on the murder charge and then properly instructed the jury that the same intent applied to the commission of the crime as an accessory.

C

The defendant next claims that the court improperly instructed the jury that it could infer intent from the instrument used to inflict injury, as well as from the number and type of wounds without specifying how that instruction applied to accessory liability. The defendant argues that the instructions confused the jury because they did not differentiate between wounds that he allegedly inflicted personally and wounds that were inflicted by the others involved, and did not explain how the instructions applied for purposes of accessorial liability.

Jury instructions allowing, but not requiring, an inference as to intent from the instrument used and the number and type of wounds inflicted have been approved by our courts. See State v. LaSalle, 95 Conn. App. 263, 275-77, 897 A.2d 101, cert. denied, 279 Conn. 908, 901 A.2d 1227 (2006). In the present case, there were numerous actors who all allegedly inflicted various wounds on the victim, which, the defendant argues, could have confused the jury and required that the court, in giving the challenged instructions, adapt such instructions appropriately to the facts of the case.

In the context of all of the instructions, we cannot conclude that the jury reasonably would have been misled by the court’s instructions on the number and type of wounds inflicted on the victim. The challenged instruction was part of the overall instruction on intent that was part of the court’s discussion of principal liability. Accessory liability was not discussed immediately, and the court included sufficient instruction on the dual intent requirements necessary for that offense. Furthermore, after discussing the possibility of drawing an inference from the wounds, the court concluded: “Therefore, you may draw all reasonable and logical inferences from the conduct you may find the defendant engaged in . . . .” The court’s instructions made it apparent that it was referring to the conduct of the defendant and did not, on the whole, improperly confuse the jury as to whose conduct was appropriate from which to infer intent.

D

The defendant next claims that the corut’s instructions allowed the jury to find him guilty without reaching a unanimous agreement on the facts because the court told the jury that it did not need to reach a unanimous agreement on whether he was hable as the principal or as an accessory. The defendant argues that the jury, given the variations in the descriptions of the attack on the victim provided by the state’s witnesses, could have come to different conclusions as to which acts he committed. The defendant further argues that the court’s instructions allowed the jury to find him guilty under a variety of mental states. We disagree.

In State v. Smith, 212 Conn. 593, 563 A.2d 671 (1989), our Supreme Court held that the trial court did not improperly fail to give a specific unanimity charge to the jury in a case involving principal and accessorial liability. In considering whether such a charge was necessary, the Supreme Court determined that “principal and accessory liability are not conceptually distinct within the meaning of [United States v. Gipson, 553 F.2d 453 (5th Cir. 1977)].” State v. Smith, supra, 605. In State v. Correa, 241 Conn. 322, 345, 696 A.2d 944 (1997), the jury found the defendant guilty of a capital felony and, when polled, it was revealed that ten jurors had found him guilty as the principal and two jurors had found him guilty as an accessory. The court upheld the verdict and rejected “the claim that the defendant has a right under the Connecticut constitution that the jury unanimously agrees on his liability as a principal or an accessory in his commission of a capital felony. Such a rule would lead to absurd results where, as here, the jury disagreed only about the defendant’s exact role in the murders and there was ample evidence that he had intended the two victims to be killed.” Id., 348.

The defendant has made no argument distinguishing the present case from the controlling precedent of Smith and Correa. The fact that the court’s instructions did not require unanimity as to whether the defendant was the principal or an accessory does not render the instructions improper. Although the defendant stated that a variety of mental states were plausible, the court’s instructions, as discussed previously, properly instructed the jury as to the mental state required for a conviction as a principal or an accessory.

E

The defendant last claims that the court improperly commented on his exercise of his constitutional right not to testify because the court noted, as part of its jury instruction on consciousness of guilt, that his inconsistent statements to the police were unexplained. We do not agree that the court impinged on the defendant’s constitutional right to refrain from testifying.

The court instructed the jury that “it is permissible for the state to attempt to show that conduct of the defendant after the alleged offense was influenced by the criminal act; that is, that the conduct shows a consciousness of guilt. The conduct of the defendant allegedly giving the police false information may be considered in determining the defendant’s guilt. Since it is unexplained. It may show a consciousness of guilt.”

The defendant does not challenge the propriety of giving a consciousness of guilt instruction. Furthermore, the defendant correctly asserts the well settled rule that “comment by the prosecuting attorney or the trial court on the defendant’s failure to testify is prohibited by the fifth amendment to the United State constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965).” State v. Arline, 223 Conn. 52, 66, 612 A.2d 755 (1992). “Repeated comments ... on the failure of a defendant to tell or to explain certain events . . . have been held to be improper.” (Internal quotation marks omitted.) Id., 67.

“In determining whether a prosecutor’s comment has encroached on a defendant’s right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? ... To determine the natural and necessary impact on the jury, the court looks to the context in which the statement was made.” (Citation omitted; internal quotation marks omitted.) State v. Wilson, 111 Conn. App. 614, 630-31, 960 A.2d 1056 (2008), cert. denied, 290 Conn. 917, 966 A.2d 234 (2009). The defendant has not argued that any other test applies for determining whether the language of the court encroached on his right to remain silent.

The court’s statement concerning the lack of explanation for the defendant’s allegedly false statements was not an impermissible comment on the defendant’s failure to testify. Read in the context of the consciousness of guilt instruction, the court’s statement serves to explain why false statements could be found to be evidence of guilt. The defendant argues that his testimony is the only means by which the false statements could have been explained, but the court’s comment refers only to the lack of any explanation, and the jury would not naturally and necessarily take it to be a comment on the defendant’s failure to testify.

The court did not improperly fail to canvass the defendant on his waiver of counsel because the defendant did not clearly and unequivocally make a request to proceed pro se. Additionally, when read as a whole, the court’s jury instructions could not have reasonably misled the jury and impinged on the defendant’s right to a fair trial.

The judgment is affirmed.

In this opinion DiPENTIMA, J., concurred.

FLYNN, C. J.,

dissenting. I respectfully dissent. The majority opinion accurately sets forth the facts of this case, so I need not recite them again except to say that while the defendant, Michael D. Pires, Sr., was represented by an attorney, on December 20, 2005, the attorney informed the court that outside of the courtroom, the defendant “indicate [s] now that he wishes to represent himself in this matter.” In my opinion that was an unequivocal request made under Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). If there was any doubt about that, it was incumbent on the court “to elicit that elevated degree of clarity through a detailed inquiry.” (Internal quotation marks omitted.) State v. Flanagan, 293 Conn. 406, 424, 978 A.2d 64 (2009).

I recognize that the trial court in this case did not have the benefit of our Supreme Court’s decision in Flanagan at the time the defendant made his request for self-representation. Nonetheless, the request was clear enough to trigger the court’s obligation to canvass the defendant in accordance with Practice Book § 44-3. I realize that this places an additional trial management burden on the court, but the right of self-representation is an important civil right guaranteed to all citizens by both the state and federal constitutions, which the Flanagan court found to be structural, requiring a new trial when a Practice Book § 44-3 canvass has not been made.

For the foregoing reasons, I would reverse the judgment of the trial court and remand the matter for a new trial. Accordingly, I respectfully dissent.

       Practice Book § 44-3 provides: “A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       The state argues that the claim was not preserved properly. The inquiry into whether the claim was preserved parallels the question of whether a clear and unequivocal request has been made. It would be a bizarre result for the court to conclude that the claim, while properly preserved, had not been clearly and unequivocally made. Alternatively, if the court determined that the claim had not been preserved, but reviewed the claim under State v. Golding, 213 Conn. 233, 239—10, 567 A.2d 823 (1989), it would be similarly contradictory to conclude that the claim had been clearly and unequivocally made.

       The following colloquy ensued between the court and the defendant:
      “The Court: . . . [W]e’ve been through this before.
      “The Defendant: Yes. My constitutional . . . rights; I’m firing my lawyer.
      “The Court: . . . [Y]our constitutional rights are as follows: you have the right to be represented by an attorney. If you can afford to hire an attorney yourself, then you are entitled to be represented by the attorney of your choice. If you are unable and financially incapable of hiring an attorney, then the court appoints an attorney to represent you. Ms. Sullivan has been appointed to represent you, and for some reason you’re not cooperating with that; and I don’t understand why because it’s clearly in your best interest to do so, sir, because she is the attorney who is going to be representing you. So, I suggest very strongly that you sit down and speak with her and that I don’t have you coming out of lockup every time you’re here, saying, I want a new attorney, because it’s not going to happen .... This is the attorney who has been selected to represent you. She has a great deal of experience. She’s been trying cases for years. She knows what she’s doing. So, instead of bucking her, I expect that you will cooperate with her.”
      The defendant yet again mentioned his constitutional rights and stated, “I am firing my lawyer,” leading to this exchange:
      “The Court: You can’t fire her; you didn’t hire her .... [Under] [t]he United States constitution and the constitution in the state of Connecticut, sir, you are entitled to be represented by an attorney. . . . You, unfortunately, are not in a financial situation to hire who you would like. Therefore, the court is required to appoint someone to represent you. That has been done. That individual is attorney Sullivan. With all due respect . . . you cannot fire her; you did not hire her. The only situation under which a new attorney would be appointed for you ... is if for some reason Ms. Sullivan was deemed incompetent or incapable of representing you.
      “The Defendant: There you go. There you go. 1 put in a motion for question—
      “The Court: She is not incompetent and she is not incapable. You, sir, have refused to speak with her, to work with her and to help her with your defense. And so I am passing this case and asking you to do so because the case is on for accept or reject today, and we either need to go to trial or you need plea. So, speak with your client. Please take [the defendant] downstairs, and Ms. Sullivan will meet him there.”

       The only case cited by the defendant, State v. Leecan, 198 Conn. 517, 522-23, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), for the proposition that “silence gives consent” concerns the admissibility of prearrest silence of a criminal defendant in the face of accusations that would naturally prompt a denial or explanation.

       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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       General Statutes § 53a-3 (11) provides that “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . (Emphasis added.)


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    JOHN CALTABIANO ET AL. v. L AND L REAL ESTATE HOLDINGS II, LLC, ET AL.
    (AC 29256)
    Bishop, Haiper and West, Js.

      Argued February 3
    officially released July 27, 2010

      Laurence V. Pamoff for the appellants (plaintiffs).

      Duncan J. Forsyth, with whom were Ernesto Castillo and, on the brief, Thomas C. Blatchley, for the appellees (defendant John Raffa et al.).
   Opinion

WEST, J.

The plaintiffs, John Caltabiano and The Dohnna, LLC, appeal from the judgment of the trial court granting the motion to dismiss filed by the defendant L & L Real Estate Holdings II, LLC (L & L). On appeal, the plaintiffs claim that the trial court improperly concluded that it lacked subject matter jurisdiction. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs’ appeal. Cumberland Farms, Inc., is the owner of commercial property located at 1211-1223 Boston Post Road, within the commercial town center district of Westbrook. The Dohnna, LLC, of which Caltabiano is an owner, owns the abutting property. In 2004, L & L applied to the zoning board of appeals of the town of Westbrook (board) for variances from the zoning regulations that would allow it to demolish the existing structures on the subject property owned by Cumberland Farms, Inc., and to replace them with two retail buildings and related signage. L & L argued that it was “[n]ot possible to develop this environmentally compromised property which constitutes an eyesore in downtown Westbrook without the requested variances to bring in a quality developer/ occupant; property configuration and parking provide further hardship.” Following public hearings on January 26 and March 23, 2005, the board found that L & L had demonstrated adequate hardship as a result of the unique size and shape of the lot in question, and granted the variances.

On March 3,2005, in his capacity as Westbrook zoning enforcement officer, Anthony Beccia filed a petition to amend the zoning regulations on behalf of the town. The petition sought to amend § 8.04.00, which limited the use of drive-up windows to banks in the commercial town center district with certain design requirements. Following review of the amendments by the Westbrook planning commission, pursuant to General Statutes § 8-3a, and a finding that the amendments were consistent with the master plan of development, public hearings were held on April 26, 2005. Thereafter the Westbrook zoning commission (zoning commission) voted to approve the amendments, which allowed drive-up windows in areas outside of the commercial town center district and allowed pharmacies to have drive-up windows in those areas in which drive-up windows were then permitted.

The plaintiffs appealed from the decisions by the board and the zoning commission to the Superior Court, pursuant to General Statutes § 8-8 (b). The court, Auri-gemma, J., dismissed those appeals on October 6 and November 21, 2006, respectively. Caltabiano v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV-05-4002899S (October 6, 2006); Caltabiano v. Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV-05-4003006-S (November 21, 2006). The plaintiffs did not file a petition for certification to appeal to this court, pursuant to § 8-8 (o), in either case.

The plaintiffs thereafter commenced an action by service of a writ of summons and a complaint dated January 23, 2007. An amended complaint was filed on April 9, 2007. The first two counts of the three count amended complaint attack the decisions of the board and zoning commission, as well as three decisions regarding applications for an unrelated project referred to as Westbrook Flat Rock, LLC (Flat Rock). The first count, which concerned the property located at 1211-1223 Boston Post Road, sought to have the court issue orders “rescind[ing]” the variances and approval of the amendments and enjoining town officials from issuing permits based on the approvals. The plaintiffs’ first count further requested that the court enjoin L & L from “acting upon” the approvals, order L & L to “restore” the subject property and order that the first selectman “compel” the zoning commission and board to rescind their approvals. The second count, which concerned Flat Rock, asked the court to order the defendants to “rescind” applications regarding the property and to enjoin town officials from “acting” on the applications and from making any changes to the flow of traffic that would affect the plaintiffs’ nearby property.

L & L moved to dismiss the first and second counts of the amended complaint. It argued that the court lacked subject matter jurisdiction because the two counts were an attempt to raise issues for which the exclusive remedy is an administrative appeal. The plaintiffs contended that the approvals of the variances and zoning regulation changes were effected by improper and unethical conduct by Robert Landino and his engineering firm, BL Companies, Inc. (BL), which tainted the decisions made by the board and zoning commission. Concluding that the plaintiffs should have raised those claims in their direct appeal pursuant to § 8-8 (b), the court, Arnold, J., dismissed those counts of the amended complaint in their entirety. This appeal followed.

The plaintiffs claim that the court improperly concluded that it lacked subject matter jurisdiction over the action. Specifically, they argue that they exhausted their administrative remedies by appealing from the decisions of the board and zoning commission and, thus, the court could hear the action seeking injunctive relief, and, even if they had failed to exhaust their administrative remedies, this case falls within an exception to the exhaustion doctrine because it would have been futile to further appeal from the court’s decision. Because allowing the plaintiffs to proceed with the present action would constitute a collateral attack on the judgments rendered in their direct appeals, we disagree.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo.” (Internal quotation marks omitted.) R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008). Furthermore, “[w]e have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006).

A brief overview of the statutory scheme that governs administrative appeals, including land use appeals, is necessary to our resolution of this issue. “There is no absolute right of appeal to the courts from a decision of an administrative agency. . . . Appeals to the courts from administrative [agencies] exist only under statutory authority .... Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. ... In the absence of statutory authority, therefore, there is no right of appeal from a planning commission’s decision . . . .” (Internal quotation marks omitted.) Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2004). “Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum. ... In the absence of exhaustion of that remedy, the action must be dismissed.” (Internal quotation marks omitted.) George v. Watertown, 85 Conn. App. 606, 609-10, 858 A.2d 800, cert. denied, 272 Conn. 911, 863 A.2d 702 (2004).

As an initial matter, the second count of the plaintiffs’ amended complaint, which considers decisions of the board and zoning commission concerning Flat Rock, is devoid of any reference to an underlying administrative appeal. “[W]hen a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. . . . The only relevant exception to this rule is where the administrative action is void.” (Citations omitted.) Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). The plaintiffs failed to bring an administrative appeal and make no argument that the administrative action is void. We thus decline to consider further the second count of the amended complaint. The court properly dismissed that count.

With regard to the first count of the amended complaint, both sides agree that the plaintiffs did not petition this court for certification to appeal from the trial court’s decision. General Statutes § 8-8 (o) (“There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish. The procedure on appeal to the Appellate Court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the Superior Court unless modified by rule of the judges of the Appellate Court.”). The plaintiffs thus failed to exhaust their administrative remedies.

“Notwithstanding the important public policy considerations underlying the exhaustion requirement, our Supreme Court has grudgingly carved several exceptions from the exhaustion doctrine . . . although only infrequently and only for narrowly defined purposes.” (Citation omitted; internal quotation marks omitted.) Sobczak v. Board of Education, 88 Conn. App. 99, 103-104, 868 A.2d 112, cert. denied, 273 Conn. 941, 875 A.2d 43 (2005). “One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate. ... It is well established that [a]n administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief. ... It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.” (Citations omitted; internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 258-59, 851 A.2d 1165 (2004).

The plaintiffs contend that exhaustion of the administrative appeals process was futile because the record did not include all of the evidence that was necessary to overturn the decisions of the board and zoning commission. According to the plaintiffs, prior to July 25, 2006, Landino represented that he was a licensed engineer and appeared on behalf of BL at hearings before the town, board and zoning commission where he made professional representations regarding L & L’s applications for variances. The plaintiffs claim, however, that at the public hearing on July 25,2006, Landino represented that he was no longer working for BL, that he was, and had been for the previous thirty months, a developer, not a professional engineer, and that he had a financial interest in L & L. The plaintiffs also allege that he made a more extensive disclosure on August 21,2006, stating that he was a one-third partner in both L & L and Flat Rock. The plaintiffs claim that this financial interest taints any favorable decisions made by the board and zoning commission that considered engineering representations made by Landino.

That argument is one that should have been raised in the direct appeal from the action of the zoning board. Section 8-8 (k) provides in relevant part: “The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if ... (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. ...” Our Supreme Court has further interpreted § 8-8 to give parties “the right to produce any relevant evidence ... to support their allegations that the commission’s action was illegal or unreasonable.” Chucta v. Planning & Zoning Commission, 154 Conn. 393, 397, 225 A.2d 822 (1967).

The plaintiffs, however, made no effort to submit evidence to the court concerning Landino’s alleged tainting of the decisions of the board and zoning commission. The plaintiffs’ failure to do so was despite the fact that the hearing at which Landino’s financial interest came to light occurred on July 25, 2006, and the court did not render its decisions until October 6 and November 21, 2006. The plaintiffs contend that this is because they did not have a transcript of the hearing until after the court had rendered its decisions, but there is no evidence that they alerted the court to Landino’s statements or that they were awaiting transcripts of the statements. The plaintiffs had the responsibility to attempt to present this evidence to the court, and their failure to do so does not make those actions ones that could not result in favorable decisions.

Even though the plaintiffs did not exhaust their administrative remedies, there are certain instances in which parties may institute collateral actions. “In Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992), we reaffirmed and applied the general rule that one may not institute a collateral action challenging the decision of a zoning authority. We stated that the rule requiring interested parties to challenge zoning decisions in a timely manner rest[s] in large part . . . on the need for stability in land use planning and the need for justified reliance by all interested parties— the interested property owner, any interested neighbors and the town—on the decisions of the zoning authorities.” (Internal quotation marks omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 767, 806 A.2d 1020 (2002). Although the court further noted that “a collateral attack may be justified in exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy, the defendants have not endeavored to make such a showing in this case.” (Internal quotation marks, omitted.) Lallier v. Zoning Board of Appeals, 119 Conn. App. 71, 79, 986 A.2d 343, cert. denied, 295 Conn. 914, 990 A.2d 345 (2010).

We note that the conditions now complained of were challenged previously in the appeals to the Superior Court. Additionally, the plaintiffs fail to make any argument that either the board or zoning commission exceeded its power. The only attack they make on the decisions of the board and zoning commission is that the decisions violated public policy because they were tainted by the representations made by Landino at the public hearings. Not only did the plaintiffs fail to raise Landino’s conflict of interest at the appropriate time, but they have not alleged any misconduct or conflict of interest by members of the board or zoning commission of the sort that would rise to the level of a public policy violation sufficient to support a collateral attack. See Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 150-51, 763 A.2d 1011 (2001) (continued maintenance of no rental condition violates strong public policy against restrictions on free alienability of property). The plaintiffs thus cannot maintain a collateral action, and because they failed to exhaust their administrative remedies by not seeking certification to appeal to this court from the October 6 and November 21, 2006 dismissals of their actions, the court properly concluded that it lacked subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       During oral argument before this court, it came to light that Caltabiano had died and that no one had been substituted for him in the present action. This court subsequently granted a motion to substitute Donna C. Vogel, executrix of the estate of John Caltabiano, as a plaintiff.

       In addition to L & L, the defendants in this action are Cumberland Farms, Inc., Westbrook first selectman John Raffa, Westbrook building official Roger Zito, the zoning commission of the town of Westbrook, Westbrook zoning enforcement officer Anthony Beccia, the zoning board of appeals of the town of Westbrook, Robert Landino and BL Companies, Inc.
      On November 16, 2007, L & L filed a motion to dismiss this appeal for lack of a final judgment. This court granted the motion to dismiss as to L & L only on February 27,2008, because the third count of the amended complaint remained pending as to L & L. See Brown v. Soh, 280 Conn. 494, 508 n.8, 909 A.2d 43 (2006); Practice Book § 61-4. Thereafter, on April 16, 2008, this court, on its own motion, dismissed the appeal for lack of a final judgment as to Cumberland Farms, Inc., Landino and BL Companies, Inc., on the same ground. Because the third count of the amended complaint did not include the defendants associated with the town of Westbrook, the appeal remained pending as to them, and it is those parties who are the defendants in this appeal.

       The plaintiffs also claim that the court improperly concluded that (1) they failed to state a cognizable cause of action and (2) Caltabiano did not have standing in this case. Because we conclude that the court did not have jurisdiction over this matter, we need not consider those issues.

       The application requested variances from Westbrook Zoning Regulations §§ 4.56.04 and 10.27.03. Section 4.56.04 provides that the minimum yard requirements are: “[a] Front Yard: Minimum: Five (5) feet. Maximum: Twenty (20) feet, [b] Side Yard: One side, six (6) feet. Second side, twenty (20) feet, [c] Rear Yard: Thirty-five (35) feet.” Section 10.27.03 pertains to maximum signage area and provides: “Only one sign per business, freestanding or attached to, but not painted on the building, the principal sign area not to exceed the following: Commercial Town Center (CTC), 9 square feet .... In addition to the above, a supplemental sign not to exceed two (2) square feet.”

       General Statutes § 8-8 (b) provides: “Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147Í, any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

       General Statutes § 8-8 (o) provides: “There shall be no right to further review except to the Appellate Court by certification for review, on the vote of two judges of the Appellate Court so to certify and under such other rules as the judges of the Appellate Court establish. The procedure on appeal to the Appellate Court shall, except as otherwise provided herein, be in accordance with the procedures provided by rule or law for the appeal of judgments rendered by the Superior Court unless modified by rule of the judges of the Appellate Court.”

       To the extent that the plaintiffs argue that § 8-8; see footnote 5 of this opinion; does not divest the court of subject matter jurisdiction over this case, we note that § 8-8 governs the appeal from a decision of a zoning board or commission to the Superior Court, not a collateral attack on the court’s decision affirming the action of the board or commission. Subject matter jurisdiction over a case, as in the present action, which seeks a remedy that could be provided through an administrative proceeding, does not vest in the Superior Court until a party has exhausted that remedy in the administrative appeals process. See, e.g., Balf Co. v. Planning & Zoning Commission, 79 Conn. App. 626, 629-30, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003).