text:
    STATE OF CONNECTICUT v. FELIX RODRIGUEZ
    (AC 13915)
    Foti, Lavery and Freedman, Js.

      Argued September 15
    officially released November 4, 1997

      Michael J. McAndrews, for the appellant (defendant).

      Lisa Herskowitz, assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Felix Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), attempted assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2), and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48 (a). The defendant was also convicted of violation of probation in violation of General Statutes § 53a-32. On appeal, the defendant claims that the trial court improperly (1) instructed the jury on self-defense, (2) denied him his statutory right to a speedy trial, and (3) denied him his federal and state constitutional rights to a speedy trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On January 30, 1993, the defendant was visiting Hector Silva at Silva’s residence. Silva resided with his family in a fourth floor apartment at 9-11 Wyllys Street, an apartment building in Hartford. At approximately 11 p.m., Javier Ortiz and Christopher May entered the building, unarmed, intending to discuss a previous altercation between Silva and Gene Hilton, a gang member. The previous altercation did not cause the defendant or Silva to fear for their lives or the lives of Silva’s family members. The defendant and Silva, while standing on the second floor landing, opened fire as Ortiz and May entered the building. A bullet entered Ortiz’ back, fatally wounding him. After the shooting, the defendant and Silva returned to Silva’s apartment and watched television. The police arrived a short time later and arrested the defendant and Silva.

At trial, it was not disputed that the defendant fired shots at Ortiz. The defendant claimed that he acted in defense of Silva and his family because he believed that Ortiz was entering the apartment building in order to kill them. The defendant did not testify at trial; however, Silva testified as follows. Approximately one month prior to the shooting, gang members had broken into his apartment and pistol-whipped him in front of his wife and children. Earlier on the evening of the shooting, he was assaulted by Hilton outside of the apartment building. Hilton then threatened to return with more gang members to kill Silva’s family. Silva ran to his apartment, warned his wife in the presence of the defendant and instructed her to lock the door. Silva then picked up a handgun and left his apartment, accompanied by the defendant. Silva saw four people in the foyer of the building, and ten to fifteen people standing outside, carrying bottles and sticks, but did not see anyone carrying a gun. As Silva reached the second floor landing of his building, he heard a gunshot from outside the building. He then fired his own gun two or three times.

I

The defendant claims that the trial court improperly instructed the jury on self-defense. He asserts that the trial court gave an erroneous instruction as to the duty to retreat because it failed to make a distinction between a person who has a right to be on the premises and an invader who has no right to be on those same premises. We disagree.

“Due process requires that a defendant charged with a crime must be afforded the opportunity to establish a defense. . . . This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. . . . [T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. . . . 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 to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Citations omitted; internal quotation marks omitted.) State v. Silva, 43 Conn. App. 488, 491-42, 684 A.2d 725 (1996), cert. denied, 239 Conn. 956, 688 A.2d 329 (1997).

At trial, the defendant claimed that he acted in defense of Silva and his family because he believed that Ortiz was entering the apartment building in order to kill them. In his request to charge, the defendant asked the court to instruct the jury that “[a]s applied in the situation where force is used in defense of a third person, requiring a defendant acting in defense of another to retreat, without regard to the ability to retreat of the person defended, would be inconsistent with the general right to defense of others.” The court instructed the jury in the exact language requested by the defendant. The court’s instructions make it clear that a necessary predicate to the defendant’s claim that he, as Silva’s defender, did not have a duty to retreat, is that Silva himself did not have a duty to retreat. Because Silva did have such a duty, the trial court’s instructions to the jury were proper.

In his appeal before this court, Silva asserted that the common areas of his apartment building are part of his dwelling and, thus, he had no duty to retreat before using deadly physical force upon Ortiz. Id., 492. In that case, we held that “the dwelling exception to the duty to retreat rule does not encompass the common areas of the defendant’s apartment building such as stairways, hallways and foyers.” Id., 493-94; see State v. Sealy, 208 Conn. 689, 694, 546 A.2d 271 (1988).

The defendant asserts that, despite our holding in Silva, neither he nor Silva had a duty to retreat because Ortiz was an “invader” who had no right to be in the apartment building. Section 53a-19 (b) provides that “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling . ...” (Emphasis added.) The language of this statute unambiguously states that the applicability of the retreat exception is dependent on whether a person was in his “dwelling,” not on whether he had a right superior to that of the victim to be in an area outside of his dwelling. Because neither the defendant nor Silva was in his dwelling at the time of the shooting, the trial court properly instructed the jury as to the duty to retreat.

II

The defendant next claims that the trial court improperly deprived him of his statutory right to a speedy trial. We disagree.

General Statutes § 54-82m provides that, when a defendant is incarcerated pending trial, “the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later . . . .” The information or indictment must be dismissed if trial is not commenced within thirty days of the filing of a speedy trial motion by the defendant. Practice Book § 956C provides that certain periods of time are excludable in computing the time within which the trial must commence.

The defendant was arrested on January 31, 1993, and the first information was filed on February 1, 1993. The defendant’s codefendant, Silva, filed a speedy trial motion pursuant to § 54-82m on December 20, 1993, and a hearing was conducted on January 12, 1994. The defendant filed his own speedy trial motion on February 15, 1994, and withdrew it on February 22, 1994. At the hearing on Silva’s motion, the court noted that there was excludable time computed by the clerk. The court denied Silva’s motion for a speedy trial without prejudice and continued the case for three weeks. At the February 2, 1994 hearing on Silva’s motion, the court denied the motion as premature.

The defendant argues that his statutory right to a speedy trial was violated because the delay between the filing of the first information and the commencement of trial was attributable to the prosecutor’s lack of diligence and his trial schedule. The defendant also contests the trial court’s exclusion of the time period between July 22 and December 6,1993, from the computation of time between the filing of the first information and the commencement of trial.

“The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. ...” (Internal quotation marks omitted.) State v. Silva, supra, 43 Conn. App. 496. Pursuant to § 54-82m, the filing of a motion for a speedy trial by the defendant is a prerequisite to dismissal of the information. “Practice Book § 956D requires that if the defendant is not brought to trial within the applicable time limit . . . and a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice .... Therefore, before the defendant may move for dismissal, he must file a motion for a speedy trial. Furthermore, § 956D provides: Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rales. Because a motion to dismiss is waived unless filed before the commencement of trial and a motion for a speedy trial must precede a motion for dismissal, logically a motion for a speedy trial must also be filed before the commencement of trial in order to be afforded a remedy under the rales.” (Internal quotation marks omitted.) State v. Green, 38 Conn. App. 868, 872-73, 663 A.2d 1085 (1995). Because the defendant withdrew his motion for a speedy trial on February 22, 1994, and never tiled a motion for dismissal, he is deemed to have waived his right to the statutory protection afforded by § 54-82m.

Ill

The defendant finally claims that his constitutional right to a speedy trial was violated by the unnecessary delay caused by the prosecutor’s lack of diligence and trial schedule. Because the defendant withdrew his motion for a speedy trial and therefore failed to preserve his claim at trial, he can prevail only if the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

“The right to a speedy trial is guaranteed by the sixth amendment to the United States constitution, applicable to the states through the fourteenth amendment, and by article first, § 8, of the Connecticut constitution. ... In order to determine whether a criminal defendant has been deprived of his constitutional right to a speedy trial, our courts balance the following factors: [l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. . . . State v. Wall, 40 Conn. App. 643, 651, 673 A.2d 530, cert. denied, 237 Conn. 924, 677 A.2d 950 (1996), quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). [N]one of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated. State v. Nims, [180 Conn. 589, 591-92, 430 A.2d [1306] (1980)]. State v. Wall, supra, 651.” (Internal quotation marks omitted.) State v. Silva, supra, 43 Conn. App. 497.

The first factor of the test set out in Barker v. Wingo, supra, 407 U.S. 530, weighs in favor of the defendant. The total delay between the date of the first information and the commencement of trial was nearly fourteen months. Our Supreme Court has held that a delay of such length warrants inquiry into the other factors that go into the balance. See State v. Brown, 172 Conn. 531, 536, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S. Ct. 153, 54 L. Ed. 2d 114 (1977).

As to the second factor, the defendant asserts that the delay of the trial was attributable solely to the prosecutor’s failure to exercise diligence in providing the state’s chief forensic officer, Henry Lee, with the material he needed to perform a reconstruction of the crime scene. The defendant relies on the record from the hearings on codefendant Silva’s speedy trial motion to support his argument that the trial court’s finding of excludable time between July 22 and December 6,1993, to allow the reconstruction was clearly erroneous. We cannot ascertain the basis of the trial court’s computation of excludable time from the record and neither the defendant nor Silva requested an articulation. “It is the sole responsibility of the appellant to provide an adequate record for review. Keiser v. Conservation Commission, 41 Conn. App. 39, 46, 674 A.2d 439 (1996); Practice Book § 4061.” (Internal quotation marks omitted.) State v. Silva, supra, 43 Conn. App. 496. Because the defendant has not provided this court with an adequate record, we are unable to review his claim that the delay of trial was attributable to the prosecutor’s lack of diligence.

As to the third factor, the defendant concedes that he failed to assert his constitutional right to a speedy trial but claims that codefendant Silva’s speedy trial motion alerted the trial court to the issue and should be weighed in his favor. The United States Supreme Court has stated that “[t]he more serious the deprivation [of the right to a speedy trial], the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker v. Wingo, supra, 407 U.S. 531-32.

The defendant filed a motion for a speedy trial on February 15, 1994, and withdrew it on February 22, 1994. Both our state Supreme Court and the United States Supreme Court have emphasized “ ‘that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.’ ” State v. Gasparro, 194 Conn. 96, 101, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985), quoting Barker v. Wingo, supra, 407 U.S. 532. Our review of the record indicates no action that could be construed as the assertion of the speedy trial right, other than the February 15, 1994 motion that was withdrawn a week after it was filed. Furthermore, codefendant Silva’s motion did not serve as an assertion of the defendant’s right to a speedy trial.

“ ‘[T]he linchpin of the speedy trial claim is a showing of prejudice,’ the fourth factor listed in Barker v. Wingo, supra, [407 U.S. 530].” State v. Morrill, 197 Conn. 507, 526, 498 A.2d 76 (1985). “ ‘[U]nlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.’ ” Id. The right to a speedy trial is designed “ ‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ ” Id., 527. “In Barker . . . the court noted that of the three interests served by the right to speedy trial, ‘the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” State v. Morrill, supra, 527.

The defendant claims that he was prejudiced by the prosecutor’s failure to produce in a timely manner an exculpatory statement made by Gene Hilton, thus denying him the opportunity to pursue additional exculpatory and impeachment evidence. Hilton gave a statement to the Hartford police approximately three weeks after the shooting in which he stated that both the victim and a key state’s witness were high ranking gang members. Hilton also indicated that he never saw the defendant fire a gun and that there were fifteen to twenty witnesses to the shooting. This statement was not discovered until more than one year later, after the commencement of the trial. The defendant claims that he was prejudiced because Hilton’s statement contained information as to the identities of fifteen to twenty favorable witnesses who could have been located and who would have testified had the statement been given to the defendant in a timely manner.

“[I]f a defendant merely alleges . . . inability to locate known or unknown witnesses who might testily on his behalf, he has failed to illustrate prejudice with the required degree of specificity. United States v. Ewell, 383 U.S. 116, 122, 86 S. Ct. 773, 15 L. Ed. 2d 627 [1966]; United States v. Churchill, 483 F.2d 268, 273-74 (1st Cir. [1973]). State v. L’Heureux, 166 Conn. 312, 321, 348 A.2d 578 (1974).” (Internal quotation marks omitted.) State v. Morrill, supra, 197 Conn. 528, quoting State v. Johnson, 190 Conn. 541, 546, 461 A.2d 981 (1983). “The defendant must establish that the witnesses would have been available without the delay. . . . Conjectural claims of prejudice from a delay are not persuasive.” (Citations omitted.) State v. Morrill, supra, 528.

The defendant has failed to explain how the delay between the filing of the first information and the commencement of trial prevented him from discovering the identities of the witnesses to whom Hilton referred. To the contrary, because Hilton’s statement was not discovered until April of 1994, it is possible that, had the trial commenced earlier, the defendant might not have had the benefit of the statement at all. Furthermore, the defendant failed to request a continuance following the prosecutor’s disclosure of Hilton’s statement. Because the defendant has failed to establish a nexus between the delay and his inability to produce evidence, his claim of prejudice is conjectural and, therefore, insufficient to support a claim of deprivation of the right to a speedy trial.

The defendant also claims that Hilton would have testified had the trial commenced earlier and that it was only after the lengthy delay that Hilton began to fear for his safety and refused to testify. The defendant relies on Hilton’s statement to the Hartford police, made three weeks after the shooting, to support his argument that Hilton would have been available to testify had the trial commenced earlier. The defendant argues that because Hilton was unavailable at the time of trial, he was forced to enter into an agreement with the prosecutor to admit Hilton’s statement along with prejudicial hearsay information.

The defendant has not challenged the propriety of the early portion of the delay from February 1 through July 21, 1993, but claims that the delay from July 22 through December 6, 1993, was caused by the prosecutor’s failure to make a timely request for a crime scene reconstruction. When Hilton was called to testify at trial on April 28, 1994, he refused because he was “not a snitch” and because if he testified it “could get back to [his] people” and “put [him] in danger.” Thus, it is not clear that the witness would have testified even if the defendant had been tried sooner. Therefore, the defendant has failed to establish a nexus between the delay and Hilton’s unavailability at the time of trial.

After balancing these factors, we find that the defendant was not deprived of his constitutional right to a speedy trial.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant and Silva were codefendants at trial. Silva filed a separate appeal. See State v. Silva, 43 Conn. App. 488, 684 A.2d 725 (1996), cert. denied, 239 Conn. 956, 688 A.2d 329 (1997).

       The trial court instructed the jury: “This, then, brings us to self-defense, or the defense referred to in the law as justification. The defendants, Hector Silva and Felix Rodriguez, have raised self-defense as a justification for the use of force on January 30, 1993, at the Wyllys Street apartment building. That is, defense of themselves and others, family. . . . The defense of self-defense is established in our law, or I should perhaps say, the defense of justification, that is, self-defense, is established in our law by General Statutes § 53a-19, titled, ‘Use of Physical Force in Defense of Person.’ It reads in pertinent part as follows: ‘[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. ... [A] person is not justified in rising deadly physical force upon another person if he knows ... he can avoid the necessity of using such force with complete safety ... by retreating, except that the actor shall not be required to retreat if he is in his dwelling. ’ ”
      “ ‘Dwelling’ is defined in the statute as meaning a building which is usually occupied by a person lodging therein at night, whether or not the person is actually present. ‘Building,’ however, is defined as having its ordinary meaning, but where a building consists of separate units, such as separate apartments, each such unit is a separate building. So that with respect to Mr. Hector Silva, his dwelling would be the particular apartment which he had the exclusive right to occupy, and would not include hallways, foyers and areas of the building which were open to others, which others

        had a right to use, such as the front entrance way, the front foyer. . . ." (Emphasis added.)

       Practico Book § 956C provides in relevant part that the following periods, inter alia, are excludable:
      (4) “the time between the commencement of the hearing on any pretrial morion and the issuance of a ruling on such motion . . .
      “(b) Any period of delay resulting from the absence or unavailability of the defendant, counsel for the defendant, or any essential witness for the prosecution or defense. . . .
      “(g) The period of delay resulting from a continuance granted by the judicial authority at the personal request of the defendant.
      “(h) The period of delay resulting from a continuance granted by the judicial authority at the request of the prosecuting authority, if:
      “(1) the continuance is granted because of the unavailability of evidence material to the state’s case, when the prosecuting authority has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at a later date; or
      “(2) the continuance is granted to allow the prosecuting authority additional time to prepare the state’s case and additional time is justified because of the exceptional circumstances of the case. . . .
      “(j) Other periods of delay occasioned by exceptional circumstances.”

       In State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), our Supreme Court held that “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.)

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall eqjoy the right to a speedy and public trial . . . . ”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right ... in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. . . .”

       The following colloquy took place at the February 2, 1994 hearing on Silva’s speedy trial motion:
      “The Court: You’re absolutely right. Let me just indicate this: The computations I have are that April 5 through May 25 was excludable time; June 9 through June SO was excludable time; July 22 through December 6 was excludable time; and 207 days were excludable. The computation indicates that he’s not eligible until April 20—this April.
      “[Silva’s Counsel]: Your Honor, if the court could please give the underlying facts as to why the last excludable time was until December.
      “The Court: I’ll have to look at my notes. I can’t say that to you now.
      “[Prosecutor]: Well, I—in the fall, I don’t recollect if—many of these pretrials or continuances, I didn’t participate in.
      * ** *
      “The Court: The issue before me right now is whether or not this is ripe for a motion for a speedy trial.
      “[Silva’s Counsel]: Your Honor . . .
      “The Court: All right, now, just hold on. When did you turn these matters, or when did Mr.—Dr. Lee have this information?
      “[Prosecutor]: I believe I contacted him in December, Your Honor.
      “The Court: Oh, I was hoping it was July, and that would explain the July through December excludable time.”

       In his statement, dated February 18,1993, Hilton states: “Everything that I have told Detectives Pollard and Bruno is the truth and I’m willing to testify to what I have said in court.”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    IN RE MICHAEL A.

    (AC 16531)
    Landau, Spear and Hennessy, Js.

      Argued September 16
    officially released November 11, 1997

      Elizabeth Gleason, with whom was Lucy W. Rankin, for the appellant (respondent).

      Sue A. Cousineau, for the appellee (petitioner).

      Jane E. Barry, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Opinion

SPEAR, J.

The respondent mother appeals from the judgment of the trial court that removed her as guardian of her minor child and granted the petitioner father sole guardianship and custody of the child pursuant to General Statutes § 45&-610.

The respondent claims that the trial court (1) improperly failed to address the previous order of temporary custody in its ruling regarding guardianship and (2) incorrectly applied the best interests of the child standard of General Statutes § 45a-605 in reaching its decision. The respondent also claims for the first time on appeal that General Statutes §§ 45a-607 and 45a-610 are substantively and procedurally unconstitutional. We affirm the judgment of the trial court.

The trial court found that the petitioner and the respondent were the parents of a minor child born on March 25, 1992. On June 2, 1995, the father filed a petition in the Guilford Probate Court seeking the removal of the respondent as guardian of the child. On application of the father, the trial court granted temporary custody of the minor child to the child’s paternal grandmother. On October 2, 1995, the respondent filed a motion to transfer the petition for removal of guardianship from the Probate Court to the Superior Court pursuant to General Statutes § 45a-623. That motion was granted. Thereafter, the Superior Court granted the petition to remove the respondent as guardian. This appeal followed.

I

The respondent first claims that the trial court should have addressed the propriety of the order of temporary custody before considering the petition for removal of guardianship. We conclude that any issues involving the order of temporary custody are now moot because that order was subsumed by the permanent order of June 28, 1995, granting sole custody and guardianship to the petitioner. See Schult v. Schult, 40 Conn. App. 675, 692, 672 A.2d 959 (1996), aff'd, 241 Conn. 767, 699 A.2d 134 (1997). “The order of temporary custody is therefore academic. Appellate courts will not consider academic questions, particularly where no appropriate relief may be afforded.” In re Carl O., 10 Conn. App. 428, 434, 523 A.2d 1339, cert. denied, 204 Conn. 802, 525 A.2d 964 (1987), citing Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979). We will not review the respondent’s challenge to the temporary custody order of June 28, 1995, because that claim is moot.

II

The respondent’s second claim is that the trial court improperly applied only the best interests of the child standard of General Statutes § 45a-605 instead of finding a statutory basis for removing the respondent as guardian as required by General Statutes § 45a-610. The respondent asserts that the evidence before the trial court did not satisfy the standard of proof required by § 45a-610 whereby the court “may remove a parent as guardian, if the court finds by clear and convincing evidence [that] ... (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being . . . .” (Emphasis added.) We disagree.

Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).

Our review of the record reveals that the trial court not only admitted nearly forty exhibits into evidence, but also heard testimony from several social workers, two clinical psychologists, the minor child’s pediatrician, several medical experts, and a court-appointed psychologist, among “many other witnesses unfavorable to [the respondent].” The trial court found that “[t]he evidence put forth at trial demonstrates by clear and convincing evidence that the minor child Michael has been denied the care, guidance or control necessary for his physical and emotional well-being as required in General Statutes § 45a-610 (3). The evidence further supports the petitioner’s claim that it is in the child’s best interest to have the mother removed as guardian of the child at this time.”

The record amply supports the trial court’s conclusion that the evidence satisfied the clear and convincing standard of § 45a-610 as well as the best interests of the child standard of § 45a-605. We conclude that the trial court properly adhered to the statutory mandates of both §§ 45a-610 and 45a-605.

Ill

The respondent’s final claim is that §§ 45a-607 and 45a-610 are both procedurally and substantively unconstitutional. The respondent, however, raises this issue for the first time on appeal. Practice Book § 4061 provides that “[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” This court follows the “[long-standing rule] that absent certain exceptional circumstances . . . claims not distinctly raised at trial will not be reviewed on appeal.” Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). This rule encompasses even constitutional issues. State v. Kelly, 23 Conn. App. 160, 167, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991). Our Supreme Court has held that “[s]uch exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. . . . An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omitted.) In re Romance M., 229 Conn. 345, 352-53, 641 A.2d 378 (1994).

While the In re Romance M. court did “recognize that a mother has a fundamental constitutional right to retain her relationship with her child”; id., 352; that court also concluded that the parent-child relationship, standing alone, did not constitute exceptional circumstances. The respondent mother here points only to the parent-child relationship and has demonstrated no exceptional circumstances that would allow this court to consider her claim. We therefore decline to review the claims of unconstitutionality with respect to §§ 45a-607 and 45a-610.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 45a-610 provides: “Removal of parent as guardian. If the court of probate finds that notice has been given or a waiver has been filed, as provided in section 45a-609, it may remove a parent as guardian, if the court finds by clear and convincing evidence one of the following: (1) The parent consents to his or her removal as guardian; or (2) the minor child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility for the minor’s welfare; or (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being, as a result of acts of parental commission or omission, whether the acts are the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and the parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not in the best interests of the minor child be permitted to exercise, parental rights and duties at this time; or (4) the minor child has had physical injury or ir\juries inflicted upon him by aperson responsible for such child’s health, welfare or care, or by a person given access to such child by such responsible person, other than by accidental means, or has injuries which are at variance with the history given of them or is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual moles! ation, deprivation of necessities, emotional maltreatment or cruel punishment. If, after removal of a parent as guardian under this section, the child has no guardian of his person, such a guardian may be appointed under the provisions of section 45a-616.”

       See footnote 6.

       General Statutes § 45a-623 provides: “Transfer of contested proceeding to Superior Court. In any proceeding under sections 45a-603 to 45a-622, inclusive, that is contested, the Court of Probate shall, upon motion of any party other than a party who made application for the removal of a parent as a guardian, under rules adopted by the judges of the Supreme Court, transfer the case to the Superior Court. Upon transfer, the clerk of the Court of Probate shall transmit to the clerk of the Superior Court the original files and papers in the case.”

       The respondent more specifically argues that the trial court did not comply with the statutory mandate of General Statutes § 45a-610 that the court find “by clear and convincing evidence [that] ... (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being . . . .” She also claimed that the order of temporary custody, as a practical matter, shifted the burden of proof on the guardianship issue from the petitioner to her.

       Our review of the record reveals that the respondent mother took no action on this matter after filing a motion to vacate the order of temporary custody in March of 1996. The record does not reflect any ruling on the motion. Additionally, Practice Book § 4061 provides that “[i]t is the responsibility of the appellant to provide an adequate record for review . . . .’’As there was no record of the Probate Court proceedings presented to this court, we could not review the claim even if it was not moot.

       General Statutes § 45a-605 (formerly § 45-42b) provides: “(a) The provisions of sections 45a-603 to 45a-622, inclusive, shall be liberally construed in the best interests of any minor child affected by them, provided the requirements of such sections are otherwise satisfied.
      “(b) All proceedings held under said sections shall, in the best interests of the minor child, be held without unreasonable delay.”

       See footnote 1.

        In re Romance M. is further distinguishable from the present case in that In re Romance M. concerned a more severe and permanent deprivation, the termination of parental rights, whereas the present case concerns a removal of guardianship. Such removal is not necessarily permanent. Section 45a-611 provides a mechanism for reinstatement of guardianship.


author: O’CONNELL, C. J.

text:
    JOHN P. COSTELLO v. MICHAEL KOZLOWSKI, COMMISSIONER OF MOTOR VEHICLES
    (AC 16638)
    O’Connell, C. J., and Spear and Hennessy, Js.

      Submitted on briefs September 26
    officially released November 11, 1997

      Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, filed a brief for the appellant (defendant).

      Norman B. Teague filed a brief for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendant commissioner of motor vehicles (commissioner) appeals from a judgment of the trial court sustaining the plaintiffs appeal from the commissioner’s administrative decision.

The plaintiffs motor vehicle operator’s license was suspended for six months because he refused to submit to a chemical alcohol test following his arrest for operating a motor vehicle while under the influence of alcohol or drugs. General Statutes § 14-227b. The plaintiff challenged the suspension at an administrative hearing. The commissioner affirmed the suspension after finding that the four license suspension criteria set forth in § 14-227b (f) had been met. The plaintiff appealed to the trial court, claiming that the statutory criteria were not satisfied because the plaintiffs arrest was not lawful. The trial court sustained the plaintiffs appeal.

On appeal to this court, the commissioner claims that the trial court improperly determined that the police lacked a reasonable and articulable suspicion to stop the plaintiffs vehicle and, therefore, that the plaintiffs arrest was not lawful. We reverse the judgment of the trial court and remand the case to the trial court with direction to dismiss the appeal.

The plaintiffs suspension was based on the following facts. At 1:07 a.m. on October 20, 1995, a Berlin police officer was informed by his dispatcher that someone was banging on the door of a closed restaurant and attempting to gain entry. The officer was also informed that the person in question might be driving a red Chevrolet Corsica. Upon arrival at the scene, the officer stopped a red Chevrolet Corsica that was exiting from an area behind the restaurant. The plaintiff was operating the Corsica. The officer noticed that the plaintiffs speech was slurred, his eyes were bloodshot and he smelled of alcohol. After administering field sobriety tests, the officer placed the plaintiff under arrest for operating a motor vehicle while under the influence of intoxicating liquor or drugs. General Statutes § 14-227a (a). The plaintiff later refused to submit to a chemical alcohol test. Refusal to submit to such a test is grounds for suspension of an operator’s license. General Statutes § 14-227b.

“[J]udicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act (General Statutes . . . §§ 4-166 through 4-189), and the scope of that review is very restricted. ... In cases involving administrative appeals it is not the function of this court, nor was it the function of the trial court, to retry the case or to substitute its judgment for that of the administrative agency.” (Citations omitted; internal quotation marks omitted.) Redden v. Kozlowski, 45 Conn. App. 225, 228, 695 A.2d 26 (1997).

In order to sustain an administrative decision, all that is required is that the determination be “reasonably supported by the evidence in the record.” Clark v. Muzio, 40 Conn. Sup. 512, 514, 516 A.2d 160 (1986), aff'd, 14 Conn. App. 212, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988). “[T]he plaintiff bears the burden of proving that the commissioner’s decision to suspend a motor vehicle operating privilege was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 708-709, 692 A.2d 834 (1997). “Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Id., 709.

Pursuant to the license suspension criteria set forth in § 14-227b (f), in affirming a police initiated suspension, the commissioner must find, inter alia, that the operator of the vehicle was placed under arrest. The plaintiff contends that this criterion was not satisfied here because the investigatory stop that led to his arrest was unlawful. We are not persuaded.

A police officer does not need to have probable cause to believe that a crime has been committed in order to make a lawful stop of a motor vehicle. An investigatory stop is authorized if the police officer had a “reasonable and articulable suspicion that a person has committed or is about to commit a crime.” State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990). Whether a reasonable and articulable suspicion exists depends on the totality of the circumstances. State v. Anderson, 24 Conn. App. 438, 441, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991). “An investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal.” (Internal quotation marks omitted.) Kolakowski v. Hadley, 43 Conn. App. 636, 644, 685 A.2d 689 (1996). The purpose of an investigatory stop is to maintain the status quo for a brief period of time to allow the police to investigate the circumstances that give rise to the suspicion of criminal wrongdoing. State v. Anderson, supra, 441.

In the present case, the police officer was dispatched to investigate a complaint that someone was banging on the door of a closed restaurant and attempting to gain entry shortly after 1 a.m. He was further informed that the person might be operating a red Chevrolet Corsica. Arriving at the scene, the officer observed a red Chevrolet Corsica departing from the immediate area of the restaurant. Because the vehicle was the same color and make as that identified by the complainant, the officer had a reasonable and articulable suspicion that the vehicle’s operator was the person who had been seeking entry to the restaurant. Banging on the door of a closed restaurant and trying to gain entry in the middle of the night is unusual behavior. Such behavior warranted further investigation, particularly since someone had called the police to complain about it.

It was proper for the officer to execute a brief investigatory stop of the plaintiff in view of the complaint regarding unusual activity at the restaurant. We do not agree with the trial court’s conclusion that the plaintiffs conduct failed to justify a brief investigatory stop. There is substantial evidence in the record supporting the hearing officer’s finding that there was a reasonable and articulable suspicion to justify the police stop of the plaintiffs automobile. The stop was warranted and the plaintiffs subsequent arrest was lawful. Thus, the trial court improperly sustained the plaintiffs appeal in light of the reliable, probative and substantial evidence in the record.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs appeal.

In this opinion the other judges concurred.

       General Statutes § 14-227b provides in relevant part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both . . . and thereafter . . . refuses to submit to the designated test, the test shall not be given ....
      “(c) If the person arrested refuses to submit to such test or analysis . . . the: police officer, acting on behalf of the Commissioner of Motor Vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four-hour period and shall issue a temporary operator’s license ... to such person valid for the period commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report ... to the Department of Motor Vehicles within three business days. . . .
      “(d) Upon receipt of such report, the Commissioner of Motor Vehicles may suspend any license ... of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. . . .”

       General Statutes § 14-227b (f) provides in relevant part: “The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both . . . (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis . . . and (4) was such person operating the motor vehicle. . . .”

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. . . .”

       See footnote 1.

       The hearing officer made asubordinate finding that “[t]here was areasonable or articulable suspicion to stop the respondent’s vehicle . . . .” (Emphasis added.) The plaintiff contends in a footnote that the hearing officer’s use of the word “or” instead of “and” indicates that the hearing officer applied the wrong legal standard in determining the propriety of the stop. This court will not review any claim or any alternative claim to a properly briefed claim that has been presented and argued by way of a footnote. State v. Reddick, 15 Conn. App. 342, 343, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988). Accordingly, we will not review this claim.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. GEORGE EASON
    (AC 16062)
    O’Connell, C. J., and Lavery and Schaller, Js.
    Argued September 16
    officially released November 11, 1997

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, George Eason, appeals from the judgment, rendered after a jury trial, convicting him of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). On appeal, the defendant claims (1) that the trial court’s failure to instruct the jury on the use of prior conviction evidence coupled with the prosecutor’s comments made during closing argument constitute plain error, and (2) that his conviction of both sexual assault and unlawful restraint unconstitutionally placed him in double jeopardy.

The jury could reasonably have found the following facts. On Saturday, March 25, 1995, the victim was sixteen years old and a junior in high school. The defendant was twenty-five years old and the brother of the victim’s boyfriend. Sometime around 10 p.m. on the night of March 25, the victim and her friend Amber visited the victim’s boyfriend’s house in East Hartford. Upon their arrival, the defendant answered the door and let them in. The victim, Amber, the defendant and the defendant’s friend Smith were the only people in the house.

The four were watching television when the defendant attempted to kiss the victim. The victim resisted and attempted to leave but was prevented from doing so by the defendant, who then commanded her to go upstairs. Frightened, the victim obeyed the defendant’s command.

Once upstairs, the two entered a bedroom and the defendant told the victim to sit on the bed. The defendant asked the victim whether she liked him and she responded, “No, I like you as a friend.” The victim then attempted to leave, but the defendant grabbed her with force and pushed her down onto the bed. Despite the victim’s efforts to resist and repeated pleas for him to stop, the defendant sexually assaulted the victim.

After leaving the house, the victim told Amber that she had been raped. When asked why she had not screamed, the victim replied that she was scared of the defendant and that she could not push him off due to his weight. The victim was in physical pain and had a bruise on her arm from the assault.

I

The defendant claims that the trial court’s failure to give, sua sponte, limiting instructions to the jury concerning the use of prior conviction and misconduct evidence, coupled with improper statements made by the prosecutor in the closing argument, encouraged the jury to misuse the evidence and constitutes plain error. We disagree.

The defendant’s argument is based on two separate claims, the trial court’s failure to give, sua sponte, a limiting instruction, and the comments made by the prosecutor in his closing argument. We address these claims in succession.

A

At trial, the defendant failed to request that the trial court give any limiting instructions regarding the jury’s use of evidence of prior convictions and uncharged misconduct, failed to object to the state’s closing argument and failed to object to the trial court’s charge as given. Because the defendant failed to preserve the claim for review, he argues that he is entitled to plain error review. We are not persuaded.

The state argues that the defendant’s claim is not reviewable because it has not been properly preserved for appellate review. We agree.

It is well established that plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992). The failure by the trial court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not mandated by statute or rule of practice is not such an obvious error that it will affect the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Adams, 36 Conn. App. 473, 477-78, 651 A.2d 747 (1994), appeal dismissed, 235 Conn. 473, 667 A.2d 796 (1995); State v. Servello, 14 Conn. App. 88, 94-95, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988).

We decline to review this unpreserved claim of instructional error.

B

In support of his argument that limiting instructions should have been given, the defendant argues that certain remarks made by the prosecutor in his closing argument deprived him of the right to a fair trial. In his rebuttal argument, the prosecutor, responding to the defendant’s closing argument, referred to the defendant as an “animal,” a “convicted felon” and a “rapist.” The defendant did not object to these remarks either during or after the prosecutor’s argument and did not request a curative charge. On appeal, the defendant seeks plain error review.

Both this court and our Supreme Court have held that “where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); State v. Malley, 167 Conn. 379, 387, 355 A.2d 292 (1974). Where counsel fails to object or to request a curative charge we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. State v. Lubesky, supra [484]; State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983). State v. Tyler-Barcomb, [197 Conn. 666, 673, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986)]; State v. Chace, 199 Conn. 102, 108, 505 A.2d 712 (1986); State v. Bell, 13 Conn. App. 420, 426-27, 537 A.2d 496 (1988).” (Internal quotation marks omitted.) State v. Kelly, 23 Conn. App. 160, 170-71, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).

On the basis of our review of the record, we fail to see how the prosecutor’s remarks were so abusive or prejudicial as to deprive the defendant of a fair trial. We conclude, therefore, that the defendant has waived his right to raise on appeal this claim of prosecutorial misconduct.

II

The defendant next claims that his convictions for sexual assault in the first degree and unlawful restraint in the first degree violated his right against double jeopardy under the federal and state constitutions. The defendant did not preserve this claim for appellate review and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). “A claim of double jeopardy which is adequately supported by the record is reviewable under the doctrine of State v. Evans . . . .” State v. Williams, 12 Conn. App. 225, 229, 530 A.2d 627 (1987).

Upon review, we find this claim to be without merit because our Supreme Court and this court have decided this issue in prior cases. In State v. Rothenberg, 195 Conn. 253, 265, 487 A.2d 545 (1985), our Supreme Court held that these two crimes each require proof of a fact not required for conviction of the other. Specifically, the court stated that “[f]or a conviction of first degree sexual assault, the state must prove compelled sexual intercourse, which is not a necessary element of the crime of first degree unlawful restraint. For a conviction of first degree unlawful restraint, the state must prove exposure of the victim to a substantial risk of physical injury, which is not a necessary element of the crime of first degree sexual assault, since the latter crime can be committed by threatening the safety of a third person.” Id.

This court reached the same conclusion in State v. Edwards, 5 Conn. App. 586, 589-90, 501 A.2d 390 (1985), cert. denied, 199 Conn. 802, 505 A.2d 1250 (1986). “A simple comparison of the two statutes . . . makes it quite clear that each [statutory] provision requires proof of a fact [which] the other does not. State v. Wright, 197 Conn. 588, 593, 500 A.2d 547 (1985), quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” (Internal quotation marks omitted.) State v. Edwards, supra, 590.

Despite the foregoing precedents, the defendant urges us to reconsider the matter and to conclude that unlawful restraint in the first degree is a lesser included offense of sexual assault in the first degree. “This, we cannot do. We will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide. Greger v. Greger, 22 Conn. App. 596, 599, 578 A.2d 162, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990).” State v. Adams, supra, 36 Conn. App. 477; State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994). As a result, the defendant is not entitled to Golding review of this issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       Practice Book § 4061 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court . . . .”

       We express no opinion as to the appropriateness of the language used by the state’s attorney. It warrants repeating that “all state’s attorneys should be circumspect in their characterization of a defendant.” State v. Chace, supra, 199 Conn. 108 n.3; State v. Tyler-Barcomb, supra, 197 Conn. 674 n.4.


author: LAVER Y, J.

text:
    IN RE DREW R.

    (AC 16821)
    Lavery, Landau and Dupont, Js.
    Argued September 30
    officially released November 11, 1997

      Bruce B. McIntyre, for the appellant (respondent father).

      Michael McKenna, assistant attorney general, with whom were Linda Pearce Prestley, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pea,riman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Opinion

LAVER Y, J.

This is an appeal by the respondent father from the judgment of the trial court terminating his parental rights with respect to his son. The respondent claims that the trial court (1) was too restrictive in its consideration of the evidence of interest, concern or responsibility for the welfare of the child, (2) was incorrect when it found that reasonable efforts toward reunification had been fostered by the department of children and families (DCF), and (3) incorrectly shifted the burden of permanency planning from DCF to the father. We affirm the judgment of the trial court.

The trial court found the following facts. The child was born on April 10, 1993, and was voluntarily placed by his mother in the care of DCF on April 14, 1993. The child has remained in DCF’s care in foster homes since that date. The respondent and the child’s mother were living in Detroit, Michigan, at the time of the child’s conception. In February, 1993, the respondent, aware that the mother of this child was pregnant, left for California and the mother returned to Connecticut where the child was born. The respondent knew that the mother did not want the child. The respondent, although aware that the child was in foster care, did not contact DCF until June, 1994. The respondent had visited the child twice in April, 1994, and April, 1996. He was in Connecticut on at least one other occasion in that time period and failed to visit the child. He had sporadic contact with the foster parents and with DCF. He sent a Christmas present in 1995, but did not acknowledge birthdays or any other holidays. In June, 1994, the respondent sent a letter to DCF stating that he was interested in obtaining custody of his son. DCF requested an interstate study from California. In November, 1994, DCF received a positive response about the respondent from California and planned to transfer custody to him prior to Christmas, 1994. The respondent asked for a delay in assuming custody. He then relocated, which necessitated another study. In June, 1995, the respondent told DCF he was not in a position to care for his son and requested that an unrelated third party be considered for custody. He also informed DCF that he had moved again. The study of the third party was never completed because the third party failed to cooperate. In November, 1995, the respondent withdrew his request for the child’s placement with the unrelated third party.

In October, 1995, DCF brought a termination petition against both parents. The mother consented to termination and, after a hearing on December 8, 1995, the trial court terminated the mother’s parental rights. The trial as to the respondent was held on three separate days in April and May, 1996. The respondent was present for two of the three days and was excused by the court for the third day. The trial court found that the state by clear and convincing evidence proved that the respondent abandoned the child in accordance with the standard set forth in General Statutes (Rev. to 1995) § 17a-112 (b) (1), as amended by Public Acts 1995, No. 95-238, § 3, and that it was in the best interest of the child that the respondent’s parental rights be terminated under the standards set forth in General Statutes (Rev. to 1995) § 17a-112 (d), as amended by Public Acts 1995, No. 95-238, § 3.

The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. See Practice Book § 1043.1 et seq. In the adjudicatory phase, the trial court determines whether the statutory ground for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether the termination of parental rights is in the best interests of the child. In re Maximino V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997).

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . . [W]e will disturb the findings of the trial court in both the adjudication and disposition phases only if they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 83-84.

I

The respondent’s first claim is that under the facts of this case the trial court was too restrictive in its consideration of the indicia of interest, concern or responsibility for the welfare of the child. The statutory ground found by the trial court is abandonment as set forth in § 17a-112 (b) (1). See footnote 1. That statute provides that the trial court may grant a petition to terminate parental rights if it finds, upon clear and convincing evidence, that for not less than one year “[t]he child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . .” General Statutes (Rev. to 1995) § 17a-112 (b) (1), as amended by Public Acts 1995, No. 95-238, § 3.

“Abandonment focuses on the parent’s conduct. It is a question of fact for the trial court which has the parties before it and is in the best position to analyze all of the factors which go into the ultimate conclusion that [the statutory standard of abandonment] has been satisfied. In re Adoption of Webb, 14 Wash. App. 651, 657, 544 P.2d 130 (1975). In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14, 438 A.2d 801 (1981).” (Internal quotation marks omitted.) In re Rayna M., 13 Conn. App. 23, 36, 534 A.2d 897 (1987).

“The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance. . . .

“It is not lack of interest alone which is the criterion in determining abandonment. Abandonment under General Statutes [§ 17a-112 (b) (1)] requires failure to maintain interest, concern or responsibility as to the welfare of the child. Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child’s welfare, statutory abandonment has occurred. . . .

“General Statutes [§ 17a-112 (b) (1)] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern.” (Citations omitted; internal quotation marks omitted.) In re Rayna M., supra, 13 Conn. App. 37-38.

The trial court found abandonment by clear and convincing evidence in that the respondent’s contact with his son was random at best and that he had not contributed to the child’s support though evidence indicated he was able to contribute a small amount. The trial court further found that the respondent acknowledged birthdays and holidays sporadically and did not often telephone or write inquiring about his son. The respondent failed to visit his son when he was in Connecticut on one occasion. The court further found that the respondent was not involved with his son as of October, 1995, when the petition was filed.

The respondent argues that the criteria set forth are too narrow and do not take into consideration that he resides in California, submitted to studies, requested custody and had telephone contact with DCF. He claims that this showed that abandonment had not taken place. The minimum interest set forth by the respondent does not come close to overcoming the proof of abandonment presented by the petitioner and found by the trial court. Upon our review of the evidence in the record, we conclude that the trial court’s findings are not clearly erroneous.

II

The respondent’s second claim is that the trial court incorrectly found that DCF made reasonable efforts to reunify him with his son. Section 17a-112 (b) provides in pertinent part: “The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds that the department of children and families has made reasonable efforts to reunify the child with the parent and, upon clear and convincing evidence, that the termination is in the best interest of the child . . . .” (Emphasis added.) General Statutes (Rev. to 1995) § 17a-112 (b) (1), as amended by Public Acts 1995, No. 95-238, § 3.

Section 17a-112 (d) (1) provides in pertinent part: “[T]he court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent. . . .” General Statutes (Rev. to 1995) § 17a-112 (d) (1), as amended by Public Acts 1995, No. 95-238, § 3.

The trial court found that although the respondent knew that his son was placed in foster care when the child was three months old, he did not contact DCF until June, 1994. DCF then authorized home studies and made attempts to accommodate the respondent’s request for custody and visitation. The respondent maintained no stable employment or address so that all attempts by DCF to give respondent custody were thwarted. The respondent did not notify DCF of changes of address and employment for lengthy periods of time. DCF notified the respondent in January, 1995, that his inability or unwillingness to take requisite steps for reunification were jeopardizing his relationship with DCF and his son. The trial court found that the respondent was educated, a former employee of the Connecticut department of mental retardation, and was able to appreciate the significance of the situation. The trial court found that DCF had made reasonable efforts to reunify the respondent with his son, but that the respondent’s efforts were too inconsistent to warrant further effort by DCF.

We agree with the trial court that the record and evidence showed by clear and convincing evidence that DCF did everything it reasonably could to give the respondent custody, and that it was the conduct of the respondent that led to the failure of DCF’s efforts. We have consistently held that to allow a child to languish in foster care is not in the child’s best interest. In re Christina V., 38 Conn. App. 214, 224, 660 A.2d 863 (1995).

Ill

The respondent’s final claim is that the trial court shifted the burden of permanency planning from DCF to him in its consideration of the best interest of the child. A review of this claim in the respondent’s brief, the record, the evidence of the whole case and the trial court’s memorandum of decision, leads us to the conclusion that this claim is baseless and totally without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 17a-112 (b), as amended by Public Acts 1995, No. 95-238, § 3, provides in relevant part: “The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds that the department of children and families has made reasonable efforts to reunify the child with the parent and, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child

       General Statutes (Rev. to 1995) § 17a-112 (d), as amended by Public Ac1s 1995, No. 95-238, § 3, provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Adoptions Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


author: PER CURIAM.

text:
    KENNETH DAMON v. COMMISSIONER OF CORRECTION
    (AC 15822)
    Foti, Landau and Schaller, Js.
    Submitted on briefs September 19
    officially released November 11, 1997

      Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner).

      Patricia A. Swords, state’s attorney, and Paul J. Ferencek and Christopher Alexy, assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

After a thorough review of the record and briefs in this habeas action, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal is a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99-100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The dismissal of the petitioner’s petition was predicated on a factual review of the petitioner’s claims that he was denied effective assistance of counsel. The petitioner claims first that his counsel failed to advise him in a proper manner of his right to testify on his own behalf at a suppression hearing and at trial and, second, that his counsel failed to investigate the issue of his competency to stand trial. The habeas court evaluated the petitioner’s ineffective counsel claim employing the two-prong test espoused in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The test analyzes whether the petitioner has proven that counsel’s performance was deficient, and, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

The habeas court found that, even though it was unclear whether the petitioner was aware of his right to testify at the suppression hearing, there was no reasonable probability that, had he testified, the result of the hearing would have been different. The habeas court also found that the petitioner was aware of his right to testify at trial and when asked whether he wanted to exercise that right, he responded in the negative. The habeas court also noted that even if the petitioner had testified at trial, it is unlikely that the jury verdict would have been different due to the overwhelming weight of evidence against him.

We conclude that the habeas court had before it sufficient evidence to sustain its finding and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       On appeal, the petitioner also claims that his counsel was ineffective for not independently investigating the time of the victim’s death. This issue was not properly raised before the habeas court, and, consequently, was never considered and ruled upon. Accordingly, we decline to review this claim. See Simms v. Warden, supra, 230 Conn. 617.


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. ANTHONY SINCHAK
    (AC 16557)
    O’Connell, C. J., and Spear and Dupont, Js.

      Argued September 24
    officially released November 11, 1997

      Pamela S. Nagy, special assistant public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva Lenczewski, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

In this action, the defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a and two counts of first degree kidnapping in violation of General Statutes § 53a-92 (a) (2) (B). The defendant claims that (1) the evidence was insufficient to sustain his conviction of kidnapping in the first degree, (2) his state and federal constitutional rights to a fair probable cause hearing and to a fair trial were violated by the state’s failure to disclose certain allegedly exculpatory evidence until after the state had rested its case-in-chief, (3) the trial court improperly failed to give the jury his requested instruction regarding the motivation of the state’s eyewitnesses, (4) the trial court improperly admitted into evidence certain color slides of the victim’s autopsy, and (5) the misconduct of the state’s attorney throughout the trial deprived him of a fair trial. We affirm the judgment of the trial corut.

The jury reasonably could have found the following facts. The charges stem from an incident that occurred on July 27, 1992, at the Freight Street Social Club, an illegal after-hours social club. At the time, Kathleen Gianni worked as a bartender at the social club, which was jointly owned by her close friend, Jo Orlandi, and by Dennis O’Connor. Dennis O’Connor was the president of the Helter Skelter Motorcycle Club, of which the defendant was also a member. Dennis O’Connor’s brother, Terrence O’Connor, also a motorcycle club member, worked as a doorman at the social club.

On July 26,1992, the motorcycle club held a barbecue fund-raiser to raise bail money for some incarcerated bikers. Both Orlandi and the defendant attended the barbecue. The defendant was accompanied by his girlfriend, Laura Ryan. At approximately 1 a.m. on July 27, 1992, Orlandi, Gianni and another friend opened the social club for business. A number of people visited the club that morning, including the defendant, Ryan, Terrence O’Connor and several other motorcycle club members. Also at the club that morning were Michael Lambo and James Palomba.

The defendant and Ryan remained in the back office when Orlandi began to lock the front doors of the club. The defendant walked out from the back office and fired a shot at Gianni, who was standing behind the far end of the bar. The defendant threatened Orlandi and Ryan with the gun, stating that he could not allow any witnesses to the shooting and then fired several more shots at Gianni who lay on the floor behind the bar moaning and gasping. After the defendant fired the final, fatal shot, he grabbed Orlandi and Ryan, placed the gun to their heads and announced that the three of them were going to leave the club and stay together until the whole incident was straightened out.

The three then went from the club to the Torrington residence of Lisa Fruin, the mother of the defendant’s infant son. Once at Fruin’s residence, the defendant disassembled the gun and ordered Fruin to dispose of the gun parts in a nearby dumpster. The defendant disposed of the clothes that he had been wearing when he shot Gianni. The defendant forced Ryan and Orlandi to remain with him and tied a bell to Orlandi’s ankle while she slept so that he could hear if she attempted to escape.

Around noon the next day, the defendant allowed Orlandi to leave, but ordered Ryan to stay with her for at least twenty-four hours. Orlandi returned home with Ryan and they remained there until approximately 4 p.m. the next day. At that time, Ryan left Orlandi’s home with Dave Martorelli, another motorcycle club member. That night, the defendant and Martorelli disposed of Gianni’s body and attempted to bum down the club.

For the next several days, Orlandi denied any knowledge of Gianni’s disappearance. On July 29, 1992, Orlandi opened the club at the request of the police, where evidence of the attempted arson and signs of the violence were discovered. The next day, Orlandi fled to Long Island, but ultimately returned to Connecticut and gave several statements to the police detailing the murder.

The defendant’s fiurst claim is that the state failed to prove beyond a reasonable doubt that the defendant had the requisite intent for a conviction of first degree kidnapping. Our appellate courts have developed a two part standard of review of an insufficiency of evidence claim. First, the court must construe the evidence in the light most favorable to sustaining the facts found by the trier. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995). Second, the court must determine whether, on the established facts and all reasonable inferences drawn therefrom, the trial court could have reasonably concluded that the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Rasmussen, 225 Conn. 55, 73-74, 621 A.2d 728 (1993); State v. Pinnock, 220 Conn. 765, 770, 601 A.2d 521 (1992).

A person is guilty of first degree kidnapping if he “abducts another person and . . . restrains the person abducted with intent to . . . accomplish or advance the commission of a felony . . . .” General Statutes § 53a-92 (a) (2) (B). The defendant claims that the evidence was insufficient to support a finding of intent to accomplish or to advance the commission of a felony because the underlying felony, murder, was accomplished before any abduction occurred. Contrary to the assertions of the defendant, however, kidnapping is a continuing crime that commences once a person is wrongfully deprived of freedom and continues as long as the unlawful detention lasts. State v. Gomez, 225 Conn. 347, 351, 622 A.2d 1014 (1993); State v. Smith, 198 Conn. 147, 155, 502 A.2d 874 (1985). Persons are “abducted” within the meaning of § 53a-92 when they are restrained with the intent to prevent their liberation, either (1) by secreting or holding them in a place they are not likely to be discovered, or (2) by using or threatening to use physical force or intimidation. General Statutes § 53a-91 (2). Persons are “restrained” when their movements are intentionally restricted so as substantially to interfere with their liberty, either (1) by moving them from one place to another, or (2) by confining them either to the place where the restriction commences or to the place where they have been moved without their consent. General Statutes § 53a-91 (1).

Applying these principles of law to the facts of this case, we conclude that the jury reasonably could have found that the defendant abducted Orlandi and Ryan within the meaning of the kidnapping statute before the three individuals left the club and before the murder was completed. Here, the evidence demonstrated that prior to the final fatal shot, the defendant restrained Orlandi at various times by placing a gun to her head and stating that he would allow no witnesses to the crime. This constituted the use of physical force as well as the use of threats and intimidation to prevent Orlandi from aiding the victim, preventing the final fatal shot, or escaping herself. The defendant engaged in similar threatening acts with Ryan to achieve the same result. By these acts, the defendant accomplished or advanced the murder of Gianni. The evidence further demonstrated that Gianni was still alive and moaning after the restraint of Orlandi and Ryan began. Accordingly, the jury reasonably could have found that the defendant accomplished the kidnapping of Orlandi and Ryan with the intent to advance or accomplish the murder of Gianni. In review of the sufficiency of the evidence to support the jury’s finding of intent, we hold, therefore, that the state has met its evidentiary burden.

The defendant next claims that he is entitled to a new probable cause hearing because the state’s failure to disclose statements given to the police by Lambo and Palomba, who were at the social club on July 27, 1992, deprived him of due process of law and of a fair and valid probable cause hearing. The defendant farther asserts that the state’s nondisclosure deprived him of his right to a fair trial. After the state had rested and during the defendant’s case, the state revealed to the defendant that the Waterbury police had taken written statements from Lambo and Palomba. The court ordered the immediate disclosure of the statements. The defendant claimed that the statements contained exculpatory evidence because, taken together, the statements contradicted the testimony of the state’s eyewitnesses by impheating Terrence O’Connor as the shooter. After reviewing the materials, the court held that the statements, taken together, contained exculpatory evidence and should have been disclosed to the defense.

It is well established that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The constitutional obligation to disclose exculpatory evidence attaches at the time of the probable cause hearing. State v. Sherman, 38 Conn. App. 371, 378, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). In order to establish a Brady violation due to nondisclosure of exculpatory materials at aprobable cause hearing, the defendant must demonstrate that (1) the prosecution “suppressed” evidence, (2) the evidence was “favorable” to the defense, and (3) the evidence was “material.” State v. Gant, 231 Conn. 43, 52, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); State v. Shannon, 212 Conn. 387, 398, 406, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988); State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988). If, after applying this analysis, the court concludes that the state did suppress evidence in violation of Brady at the probable cause hearing, the court must then determine whether “the nondisclosure did in fact taint the defendant’s subsequent prosecution and deprived the defendant of his constitutional right to a fair trial.” (Internal quotation marks omitted.) State v. Sherman, supra, 379; see also State v. McPhail, 213 Conn. 161, 166-67, 567 A.2d 812 (1989). The defendant will be entitled to a new probable cause hearing only if the violation of the defendant’s due process rights at the probable cause hearing denied the defendant the right to a fair trial subsequently held. See State v. McPhail, supra, 166-67.

Given the law of McPhail, this court need not analyze whether the state’s nondisclosure at the probable cause hearing violated Brady. Even assuming, arguendo, that the state did improperly suppress exculpatory evidence at the probable cause hearing, we nonetheless conclude that the nondisclosure did not taint the subsequent prosecution and deprive the defendant of a fair trial. “[E]vidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady.” (Internal quotation marks omitted.) State v. Rasmussen, supra, 225 Conn. 91, quoting State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990).

Here, the statements of Lambo and Palomba were disclosed to the defendant during trial. The defendant, therefore, can complain of the timing of the disclosure but has no basis for a claim of suppression. State v. Reddick, 197 Conn. 115, 121, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). When exculpatory evidence is disclosed for the first time at trial, “the appropriate standard to be applied is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.” (Internal quotation marks omitted.) State v. Walker, supra, 214 Conn. 127. In Walker, the disclosure of the exculpatory material came during the state’s rebuttal, after both the state and the defense had rested. The court determined, however, that despite the late disclosure, the defendant failed to substantiate his claims of prejudice. Id., 128.

No denial of due process occurs if the exculpatory material is disclosed “ ‘in time for its effective use at trial.’ ” State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986). Under these circumstances, the defendant bears the burden of proving that he was prejudiced by the state’s late disclosure. State v. Walker, supra, 214 Conn. 126-27. Here, the defendant has failed to meet his burden. Both Lambo and Palomba testified at trial for the defense regarding the content of their prior statements to the Waterbury police. The defendant had every opportunity to draw attention to any inconsistencies between the statements of Lambo and Palomba and the testimony of the state’s key witnesses. Furthermore, if the defendant wanted to use the statements to impeach the state’s witnesses, he could have moved to recall the witnesses or requested a continuance to conduct further investigation and preparation. See State v. Altrui, 188 Conn. 161, 177-78, 448 A.2d 837 (1982). The defendant did neither of those two things. We conclude that the defendant has failed to demonstrate resulting prejudice due to the state’s failure to disclose the statements at an earlier time and, accordingly, the state’s late disclosure cannot furnish a basis for the reversal of his conviction.

The defendant next claims that the trial court improperly declined to instruct the jury regarding the purported motivation of the state’s key witnesses to testify falsely against him. The defendant requested that the court instruct the jury regarding the motivation of the state’s witnesses, Orlandi, Ryan and Fruin. The trial court did not deliver the requested instruction but instead delivered a standard instruction regarding the assessment of witness credibility in general, including the possible bias or motive to testify falsely.

“ ‘It is the law of this state that a request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given. . . . It is, however, also the law of this state that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.’ ” State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980), quoting Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977). A criminal defendant is not entitled to an instruction singling out any witness who testifies for the state regarding that witness’ possible motivation for testifying falsely. State v. Cooper, supra, 212 n.5.

To be entitled to an instruction regarding a specific witness’ possible motive, the defendant must show that the witness is a complaining witness who could himself be subject to prosecution depending on the veracity of his testimony, and that there was evidence to support the assertion that the witness was the culpable party. Id.; State v. Byrd, 34 Conn. App. 368, 372, 641 A.2d 818 (1994), aff'd in part, 233 Conn. 517, 659 A.2d 1201 (1995), aff'd, 239 Conn. 405, 685 A.2d 669 (1996); State v. Smith, 16 Conn. App. 223, 229, 547 A.2d 102 (1988).

While Orlandi, Ryan and Fruin were all witnesses for the state in the present case, none of them was a complaining witness for the purposes of the murder of Gianni. Further, while Orlandi and Ryan may be considered complaining witnesses with respect to the kidnapping, the evidence introduced at trial was clearly insufficient to support the assertion that any one of the three women was a culpable party to the murder or the kidnapping. To be sufficient to implicate culpability, the evidence must directly connect a complaining witness to the crime with which the defendant is charged. State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987). It is not sufficient to raise a mere suspicion that the witness may have committed the crime. State v. Byrd, supra, 34 Conn. App. 373.

On the basis of the facts of this case, the court was correct in refusing to instruct the jury as requested by the defendant. We are unpersuaded that the instruction that was given by the trial court deprived the defendant of a fair trial.

The defendant next claims that the trial court abused its discretion when it admitted into evidence certain color slides of Gianni’s autopsy. The defendant claims that the slides were irrelevant and that their prejudicial effect greatly exceeded their probative value. We disagree. The balancing of the probative value of evidence against its prejudicial effect has been left to the sound discretion of the trial courts. State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). This determination will be disturbed only where there is a clear abuse of discretion or where manifest injustice has been done. Id.; State v. Alford, 37 Conn. App. 180, 186, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995). Because we conclude that the challenged slides were relevant to the identification of Gianni, the time of death and the mode and manner of death, and were not sufficiently prejudicial to warrant reversal, we will not disturb the trial court’s ruling of admissibility.

In his final claim, the defendant raises the unpreserved claim that the prosecutor’s misconduct throughout the trial deprived him of a fair trial in violation of the due process clause of the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. He seeks review of this claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Although the claim is reviewable under the first two prongs of Golding, the defendant cannot prevail under the third prong. The record here does not “disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Ricketts, 37 Conn. App. 749, 762, 659 A.2d 188, cert. denied, 234 Conn. 913, 660 A.2d 355, cert. denied, 516 U.S. 977, 116 S. Ct. 481, 133 L. Ed. 2d 409 (1995). Our disposition of the issues in the defendant’s preceding claims makes that evident.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), the Supreme Court transferred the appeal to this court.

       Regarding the defendant’s request that this court overrule McPhail, it is axiomatic that this court lacks the authority to overrule Supreme Court precedent.

       Upon close examination of the statements of Lambo and Palomba, we conclude that the statements would have had very limited impeachment value.

       The trial court instructed the jury that when weighing the testimony of a witness, “[y]ou should consider any possible bias or prejudice the witness may have, whether for or against the state or for or against the defendant; the witness’ interest or lack of interest of whatever sort in the outcome of the trial . . .

       A complaining or prosecuting witness is “the person who was chiefly injured, in person or property, by the act constituting the alleged crime . . . and who instigates [causes the instigation of] the prosecution . . . .’’Black’s Law Dictionary (6th Ed. 1990).

       The defendant did not seek a mistrial based on the alleged prosecutorial misconduct. At the defendant’s sentencing hearing, he submitted a “Supplement to Motion for Judgment of Acquittal,” which the court treated as a motion for a new trial. This motion raised prosecutorial misconduct for the first time. The trial court, however, properly refused to consider the motion because it was not timely filed.

       In Golding, our Supreme Court established a four part test to determine if a defendant can prevail on an unpreserved claim. The court held that the following conditions must be met: (1) the record is adequate to review the claim of error; (2) the claim is of constitutional magnitude; (3) the constitutional violation clearly exists and deprived the defendant of a fair trial; and (4) if the claim is subject to harmless error review, the state has failed to demonstrate harmlessness beyond a reasonable doubt. State v. Golding, supra, 213 Conn. 239-40.

       The defendant alleges that the prosecutor’s misconduct falls into the following categories: (1) failing to disclose exculpatory materials; (2) coaching witnesses to testify about irrelevant and prejudicial matters; (3) using gruesome autopsy photographs to inflame the jury; and (4) misstating factual matters to the court by falsely representing that all exculpatory materials had been provided to the defendant.