author: HARPER, J.

text:
    STATE OF CONNECTICUT v. VERNOL KELVIN GARY
    (AC 30740)
    Flynn, C. J., and Harper and Dupont, Js.

      Argued October 21, 2009
    2009—officially released April 27, 2010

      Robert E. Byron, for the appellant (defendant).

      Mitchell, S. Brody, senior assistant state’s attorney, with whom, on the brief, were David Shepack, state’s attorney, and Dawn M. Gallo, assistant state’s attorney, for the appellant (state).

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

   Opinion

HARPER, J.

The defendant, Vemol Kelvin Gary, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). The defendant claims that (1) the prosecutor did not disclose potentially exculpatory evidence to him in a timely manner, thereby depriving the defendant of his constitutional right to a fair trial, and (2) the court improperly instructed the jury with respect to the kidnapping charge. We affirm the judgment with respect to the defendant’s conviction of sexual assault and attempted sexual assault. We reverse the judgment with respect to the defendant’s conviction of kidnapping. Accordingly, the case is remanded for a new trial on the kidnapping charge.

The jury reasonably could have found the following facts. The victim is a female who was bom in 1983. The defendant is a male who was bom in 1962. The victim met the defendant for the first time in November, 2006, at the residence of the victim’s drug supplier. On November 30, 2006, several weeks after their initial encounter, the defendant called the victim at approximately 2 a.m. The defendant asked the victim if she wanted to “hang out.” The victim agreed to see the defendant and gave him directions to her apartment. Upon the defendant’s arrival, he and the victim began drinking vodka together. They spent the early morning hours in the victim’s bedroom but did not have any sexual contact with one another. At approximately 8 a.m., the defendant and the victim walked to a liquor store, where they purchased more vodka. Upon returning to the apartment, the victim and the defendant had several alcoholic mixed drinks and were joined by the victim’s roommate, who had been asleep when the defendant initially arrived. The roommate left for work after a few drinks.

After the victim’s roommate left, the defendant indicated that he was tired and asked if he could lie down. The victim told the defendant that he could, but that she needed to remove some pillows from her bed. After the victim removed the pillows from her bed, the defendant asked the victim to close the window because he was cold.

It is at this point that the defendant’s attack on the victim began. The victim moved to close the window and, when she turned back, the defendant grabbed her by the throat. The defendant proceeded to throw the victim on the ground. As he held the victim down, the defendant removed his pants and then the victim’s pants. The victim struggled with the defendant and pulled his earring out of his ear, causing him to bleed. The victim also bit the defendant on his chest. As the victim continued to fight, the defendant forced her legs apart and forcibly engaged in vaginal intercourse with her. After penetrating the victim’s vagina with his penis several times, the defendant discontinued vaginal intercourse and attempted to engage in anal intercourse with the victim. Unsuccessful, the defendant forced the victim to perform oral sex on him. Eventually, the victim managed to get out from under the defendant and reach the door, which was locked. The defendant grabbed the victim and prevented her from opening the door. The victim was screaming and continued to struggle with the defendant. She then heard a knock at the front door of the apartment. The victim managed to escape from the defendant, and ran from her bedroom and out the front door of her apartment in a state of total undress. When she exited the apartment, she discovered that the knocking had been from two police officers who were standing outside her apartment.

The two police officers were John Marchi and Earn Maher of the Winchester police department. They had been dispatched to the victim’s apartment because of a complaint by the tenant who lived below the victim. When the officers arrived outside the victim’s apartment, they banged on the door several times and identified themselves as police officers. There was no answer, but the officers heard cries for help emanating from within the victim’s apartment. The officers were about to enter the apartment using a master key they had obtained from the building’s manager when the door flung open and the victim ran out screaming, “get him away from me, get him out of here.” The victim ran past the officers, curled into a fetal position and began crying. Officer Marchi looked into the apartment and saw the defendant standing with no clothes on. Marchi observed that the defendant had fresh injuries, including trauma to his chest and blood on his ear and toe. Marchi immediately detained the defendant while Maher attended to the victim. An ambulance was called for the victim, and the defendant, after putting on clothes, was taken by Marchi to the police station, where photographs were taken of his injuries. Additional facts will be set forth as necessary.

I

The defendant first claims that the state committed prosecutorial impropriety by failing to disclose exculpatory evidence. Specifically, the defendant alleges that the state improperly redacted portions of a medical report that revealed the victim’s prior diagnosis of bipolar disorder as well as medications she was taking to treat bipolar disorder. He claims that the redacted portions were potentially exculpatory and that, because he was not able to view the unredacted version until the first day of evidence, he was denied a fair trial. We conclude that the defendant waived his suppression of exculpatory evidence claim and therefore decline to afford it review.

The following additional facts and procedural history underlie the defendant’s claim. On March 7, 2008, the court granted the defendant’s request to subpoena the victim’s medical records. On March 12, 2008, the court heard testimony from witnesses for the first time. Before any witnesses were called to testify, the defendant’s counsel informed the court that the victim’s medical records had arrived and were in the custody of the clerk of the court and under seal. Defense counsel stated that he previously had received a copy of the medical records from the state, but that certain information had been blacked out by the prosecutor. Defense counsel requested that the court review the records and determine whether the blacked out portions were admissible because he believed they “could affect the credibility of [the victim], specifically, anything to do with drug or alcohol intake or medications that she might have been on that’s been redacted.” The court agreed to review the records to determine their admissibility. During a recess, the court reviewed the victim’s medical records and determined that certain portions that had been redacted by the state were admissible, including the victim’s report to emergency room personnel of a prior diagnosis of bipolar disorder and the medications she was taking to treat it.

During cross-examination of the victim, defense counsel questioned the victim about her prior diagnosis of bipolar disorder and the medications she was taking to treat it. The following colloquy took place:

“Q. What medications were you on?
“A. I was on, run, lithium, Lamictal, Wellbutrin and Topamax for a misdiagnosis of bipolar.
“Q. For a misdiagnosis?
“A. Correct.
“Q. You are not bipolar?
“A. I am not.”

Later that day, the court heard the testimony of Julia Bamas, the nurse who initially treated the victim when she arrived at a hospital following the attack. During direct examination, the prosecutor established that the victim had reported to Bamas that she was bipolar. The prosecutor asked Bamas whether the victim presented clinical symptoms of a manic episode at the time she was evaluated:

“Q. Did the patient appear to be in a manic phase at the time you treated her?
“A. No.
“Q. Did she appear to be controlled in her situation?
“A. Yes.
“Q. If a patient with that condition were in a manic phase, or uncontrolled, in an uncontrolled phase of that disease, would there then be cause for concern as to their recollection of events?
“A. Yes.
“Q. Was that the case here?
“A. No.”

The next day, defense counsel began his cross-examination of Bamas. After confirming that the victim had informed Bamas that she was taking the drugs Wellbu-trin, lithium and Lamictal, the following colloquy took place:

“Q. What is [Lamictal] for?
“A. Lamictal is for—it’s used in bipolar.
“Q. And for what effect?
“A. It is often used with a combination of the Lamictal and the other pills to help stabilize a patient.
“Q. It’s a mood stabilizer, correct?
“A. Yes.
“Q. For someone who is bipolar. And what is the purpose for Wellbutrin?
“A. That has many. It could be for depression. It could be used also in conjunction with the other medications for bipolar.
“Q. And how about lithium?
“A. Same.
“Q. Antidepressant?
“A. No, more of, um—it’s not used for depression, it’s more for, um, to stabilize a patient.
“Q. More of a mood stabilizer?
“A. Yes.
“Q. But all three in your experience are prescribed for bipolar patients?
“A. Yes.”

At the conclusion of testimony that day, defense counsel told the court that he had concerns regarding the victim’s self-reported diagnosis of bipolar disorder and the medications she was taking, and requested that he be allowed to do more research into the matter over the weekend, and possibly call an expert to testify or publish a learned treatise to the jury. When court resumed several days later, on March 18, 2008, defense counsel requested that he be allowed to introduce three exhibits pertaining to the medications the victim was taking for the treatment of bipolar disorder. The exhibits were extracts from the online version of the Physicians’ Desk Reference. In response to the prosecutor’s objection that the extracts were hearsay and not relevant, defense counsel made the following argument: “[The extracts are] not offered ... as evidence of any kind of treatment of the [victim] in this particular case. They’re offered because they explain some of the effects and contraindications of the three medications, Wellbu-trin, lithium and Lamictal, that the [victim] in this case— complaining witness in this case told the nurse in the emergency room.” The court subsequently admitted the three excerpts into evidence.

Thus, by the time the jury began its deliberations, the jurors had before them the unredacted medical report that was filled out by Bamas along with her testimony, both of which demonstrated that the victim self-reported a prior diagnosis of bipolar disorder and was taking medications consistent with the treatment of bipolar disorder. There was also the testimony of the victim herself, who, although she claimed that she was misdiagnosed with bipolar disorder, admitted to taking Wellbutrin, lithium and Lamictal. Finally, the jury also had the excerpts from the Physicians’ Desk Reference that described these medications. The Physicians’ Desk Reference description of lithium that was admitted into evidence notes that it is used to “treat the manic episodes of manic-depressive illness, a condition in which a person’s mood swings from depression to excessive excitement. A manic episode may involve some or all of the following symptoms: [aggressiveness; [e]lation; [f]ast, urgent talking; [frenetic physical activity; [g]randiose, unrealistic ideas; [hostility; [l]ittle need for sleep; [p]oor judgment.” The description for Wellbutrin noted that it is prescribed to “help relieve major depression” and warns that it should not be taken with alcohol or cocaine because such use might increase the likelihood of a seizure. The description for Lamictal stated that it “is used to help prevent the manic and/or depressive phases of bipolar disorder.”

The defendant claims the prosecutor committed pros-ecutorial impropriety by withholding exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Specifically, he argues that because the prosecutor did not disclose redacted portions of the victim’s medical records pertaining to bipolar disorder until ordered to do so by the court, he was denied his constitutional right to a fair trial. We conclude, however, that due to the defendant’s deliberate decision to address the disclosure of the victim’s diagnosis of bipolar disorder and treatment through the introduction of Physicians’ Desk Reference extracts and his failure to claim at trial that he was unfairly prejudiced by the allegedly late disclosure, the defendant waived any potential Brady claim.

We begin our discussion by setting forth the fundamental legal elements of the defendant’s claim that the prosecution’s allegedly late disclosure of potentially exculpatory evidence deprived him of a fair trial. “In order to establish a violation under Brady and its progeny, [the] defendant has the burden of demonstrating not only that the state suppressed information that was favorable and material to him but also that it was not disclosed upon request. . . . The circumstance that claimed Brady material was disclosed during, and not after, trial hardly precludes the application of Brady which declared the right to material and favorable evidence as part of the fundamental right to a fair trial. . . . Brady's due process basis, therefore, requires a determination of when disclosure must be made to ensure a fair trial. . . . The unmistakable tone of Brady is that evidence required to be disclosed must be disclosed at a time when it can be used. ... No denial of due process occurs if Brady material is disclosed ... in time for its effective use at trial. . . . It must, nevertheless, be pointed out that [a] delayed disclosure [of exculpatory material] by the prosecution is not per se reversible error. . . .

“Whether the tardy disclosure of Brady material fairly requires a continuance or a delay in order to make effective use of such matter is essentially a factual question in each case. . . . The focus is not on the fact of nondisclosure, but the impact of the nondisclosure on the jury’s verdict. . . . The effect then of disclosable evidence should be viewed in terms of its likely effect upon those on whom the outcome rests—the jury. . . . Submission to the factfinder carries out the promise of Brady and its progeny by its fair trial guarantee that an accused has constitutional access through the prosecution to evidence that is favorable and material to guilt or punishment.” (Citations omitted; internal quotation marks omitted.) State v. Pollitt, 199 Conn. 399, 413-15, 508 A.2d 1 (1986).

Given this legal framework, it is apparent that the defendant might have had a colorable Brady claim had he wanted to raise an objection related to the allegedly late disclosure or request a mistrial. When there is a late disclosure of potentially exculpatory evidence, a defendant is entitled to a factual determination of whether the suppressed information was revealed at a point in the trial when it fairly could be used. See id., 416 (case remanded for factual determination of likely effect on jury of late disclosure). The state argues that the defendant waived any potential claim arising from the allegedly late disclosure because, being well aware of the circumstances surrounding the disclosure and the nature of the information contained in the redacted portions of the medical report, he chose an alternative means by which to address this issue and did not claim during trial that the timing of the state’s disclosure affected his right to a fair trial. We agree.

It is well established that “when a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal.” State v. Smith, 289 Conn. 598, 621, 960 A.2d 993 (2008). Waiver may occur either expressly or impliedly by a defendant’s deliberate action. Id. As the state points out in its brief, on March 13, 2008, the defendant personally aired concerns to the court regarding the timing of the prosecution’s disclosure of the redacted portions of the victim’s medical report. Specifically, the defendant sought to obtain new counsel because of what he perceived to be the ineffectiveness of his own lawyer in obtaining the unredacted medical report earlier. In denying the defendant’s request, the court made the following statement to the defendant outside the presence of the jury: “[I]t was on my order that the portion of the medical record which indicated that there was a diagnosis, which we’ve not heard an explanation of, and certain medications prescribed, one of which I can take judicial notice is indeed consistent with a diagnosis of manic depression, and that is lithium; you now have that known to you. I will note that in the event that there is an interest on the part of the defense of publishing to the jury information, which is, has scientific value, information pertaining to what that drug is and what its side effects can be, that that is something . . . that . . . wasn’t revealed until yesterday, as appears to be in the case, is a matter that doesn’t, I think, in any way interfere with your ability or your counsel's ability to put information pertaining to that on the record of this case. It can be done. And in the event that it is a path that makes sense, it’s something that can be considered, and this is actually fairly normal. It’s nothing out of the ordinary at all.”

The defendant then expressed satisfaction with the court’s explanation and suggested approach for addressing the information contained in the redacted portions of the medical report. He also apologized to his attorney for questioning his effectiveness. Later that day, after reviewing the Physicians’ Desk Reference sections on the various medications that the victim was taking to treat bipolar disorder, defense counsel made the following statement to the court. “I am very concerned, especially about the—again, I have not been able to digest [the Physicians’ Desk Reference], but the Wellbutrin description, I think, is of interest. So, what I would propose is that I be able to prepare something or we be able to prepare something prior to [the next court session]. And I can do this in the form of a witness to present evidence of the effects of these medications or with a smooth copy of the Physicians’ Desk Reference or another learned treatise.” The court agreed to the defendant’s request, and court recessed until March 18, 2008. When the court reconvened, defense counsel requested that he be allowed to publish to the jury portions of the Physicians’ Desk Reference describing the medications the victim reported taking to Bamas. The court allowed the Physicians’ Desk Reference extracts into evidence over the state’s objection.

As demonstrated previously, the record reveals that the defendant and his counsel were well aware of the potentially exculpatory nature of the information disclosed in the medical records. Following a lengthy explanation by the court of why it believed the defense had a reasonable opportunity to make use of the information, it was defense counsel who proposed that he be given time to “prepare something” in regard to the diagnosis of bipolar disorder. After being granted this request, and following a recess of several days, the defense made the deliberate decision to address the issue of the allegedly late disclosure by publishing to the juiy the Physicians’ Desk Reference extracts. No request for a further continuance or a mistrial was made.

The defendant had a fair opportunity to raise a Brady claim at trial but deliberately chose to address the alleged late disclosure by a different avenue. As such, the defendant waived his right to raise a Brady claim on appeal, and we conclude that no injustice was done to the defendant. “To reach a contrary conclusion would result in an ambush of the trial court by permitting the defendant to raise a claim on appeal that his or her counsel expressly had abandoned in the trial court.” State v. Holness, 289 Conn. 535, 543, 958 A.2d 754 (2008).

II

The defendant next claims that the court committed instructional error when it failed to instruct the jurors that if they found that the defendant had restrained the victim, such restraint would not constitute kidnapping if it merely was incidental to the commission of other crimes, namely, sexual assault and attempted sexual assault. We agree with the defendant and remand the case for a new trial on this issue.

The defendant seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Under Golding, a defendant may prevail on an unpreserved claim only if 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. . . . The first two prongs govern whether we may review the claim, while the second two control whether the defendant may prevail on his claim because there was constitutional error that requires a new trial.” (Citation omitted; internal quotation marks omitted.) State v. Smith, supra, 289 Conn. 619-20. We find that the record is adequate to review the alleged claim of error, and therefore the first prong is satisfied. We also find that, because an improper jury instruction on an element of an offense is of constitutional dimension, the second prong of Golding is satisfied. See, e.g., State v. Singleton, 292 Conn. 734, 745, 974 A.2d 679 (2009).

Having determined that the claim is reviewable, we move on to the third prong of Golding. “ [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. . . . Moreover, as to unpreserved claims of constitutional [impropriety] injury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if . . . it is reasonably possible that the jury was misled . . . .” (Citations omitted; internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 452-53, 978 A.2d 1089 (2009).

Thus, our inquiry is twofold. We must first determine whether the instructions in totality were sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. If we find the instructions were deficient in this regard, then we must determine whether it is reasonably possible that the jury was misled. For the reasons we will set forth, we conclude that (1) the instructions in totality were legally deficient, and (2) it is reasonably possible that the jury was misled. Therefore, the defendant is entitled to a new trial as to the charge of kidnapping in the first degree.

Pursuant to § 53a-92 (a) (2) (A), a person is guilty of kidnapping in the first degree when he abducts another person and “restrains the person abducted with intent to . . . inflict physical injury upon him or violate or abuse him sexually . . . .” While the defendant’s appeal was pending, our Supreme Court decided State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008) (en banc), in which it determined that the crime of kidnapping requires an intent “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit [another] crime.”

In Salamon, our Supreme Court “reconsidered [its] long-standing interpretation of our kidnapping statutes, General Statutes §§ 53a-91 through 53a-94a. . . . The defendant had assaulted the victim at a train station late at night, and ultimately was charged with kidnapping in the second degree in violation of § 53a-94, unlawful restraint in the first degree, and risk of injury to a child. . . . At trial, the defendant requested a jury instruction that, if the jury found that the restraint had been incidental to the assault, then the jury must acquit the defendant of the charge of kidnapping. . . . The trial court declined to give that instruction. . . .

“[W]e [thus] reexamined our long-standing interpretation of the kidnapping statutes to encompass even restraints that merely were incidental to and necessary for the commission of another substantive offense, such as robbery or sexual assault. . . . We ultimately concluded that [o]ur legislature . . . intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime. . . .

“We explained in Salamon that a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that had independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant’s risk of detection and whether the restraint created a significant danger or increased the victim’s risk of harm independent of that posed by the separate offense. . . . Applying this standard to the facts in Salamon, we concluded that, although the defendant had not been charged with assault, the judgment of conviction of kidnapping in the second degree had to be reversed and the case remanded for a new trial because the defendant was entitled to a jury instruction explaining that a kidnapping conviction could not lie if the restraint was merely incidental to the assault.” (Citations omitted; internal quotation marks omitted.) State v. Hampton, supra, 293 Conn. 459-61.

In this case, following closing arguments, the court explained to the jury that “the offense of kidnapping in the first degree has two essential elements which the state must prove beyond a reasonable doubt to obtain a conviction: one, that at the time and in the place specified in the count in question, the defendant abducted [the victim]; and, two, that in abducting [the victim] the defendant restrained her with intent to violate her sexually.” The court then went on to define the term “abduct.” The court explained that “[u]nder our law, as it applies to this case, abduct means to restrain a person with intent to prevent her liberation by using or threatening to use physical force or intimidation. In light of this definition, the state must prove three essential subelements beyond a reasonable doubt to establish that the defendant abducted [the victim]: one, that the defendant restrained [the victim]; two, that in so restraining her, the defendant intended to prevent her liberation; and, three, that the means by which the defendant restrained her was by using or threatening to use physical force or intimidation.” The court instructed the jury that “restrain” means “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with her liberty, by confining her in the place where the restriction commences without consent. ... [A] person intentionally restricts another person’s movements when he acts with the conscious objective of restricting her movements.” A written charge that was given to the jury was substantially the same as the oral charge delivered by the court.

The kidnapping instructions in the case before us plainly were not in conformity with Salamon, and therefore were not sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. Moreover, the defendant was charged with and convicted of multiple sexual assaults and an attempted sexual assault that were in close temporal proximity to the defendant’s restraint of the victim. The evidence reasonably supports a finding that the restraint merely was incidental to the commission of other crimes, namely, sexual assaults and attempted sexual assault. Given this factual posture, we conclude that it is reasonably possible that the jury was misled as to the essential element of intent.

Having concluded that it is reasonably possible that the jury was misled as to the requisite intent for kidnapping, we next consider the appropriate remedy for the instructional error. In State v. Sanseverino, 287 Conn. 608, 624, 949 A.2d 1156 (2008), our Supreme Court relied on its opinion in Salamon “to reverse the defendant’s conviction of kidnapping in the first degree, reasoning that although the question of whether kidnapping may stand as a separate offense is one for the jury . . . under the facts of [that case], no reasonable juiy could have found the defendant guilty of kidnapping in the first degree on the basis of the evidence that the state proffered at trial. . . . [Having] found no evidence that the defendant [had] restrained [the victim] to any greater degree than that necessary to commit the sexual assault . . . we reversed the defendant’s conviction of kidnapping in the first degree and remanded the case to the trial court with direction to render a judgment of acquittal. . . .

“In State v. DeJesus, [288 Conn. 418, 434, 953 A.2d 45 (2008)], we considered the appropriate remedy for the instructional impropriety identified in Salamon and Sanseverino, and concluded that in such situations, the appropriate remedy ... is to reverse the defendant’s kidnapping conviction and to remand the case to the trial court for a new trial. Accordingly, we recognized the impropriety in our procedural conclusion in Sansev-erino, and insofar as the proper remedy in that case should have been a new trial, we overruled Sansever-ino.” (Citations omitted; internal quotation marks omitted.) State v. Hampton, supra, 293 Conn. 461. Thus, because the instructional impropriety was of the variety identified in Salamon, we reverse the defendant’s kidnapping conviction and remand the case to the trial court for a new trial on that charge.

The judgment is reversed only as to the conviction of kidnapping in the first degree and the case is remanded for a new trial on that charge. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

       In his statement of the issues, the defendant appears to claim that, after becoming aware of the allegedly late disclosure, the court improperly allowed the victim to testify. The defendant provides no further factual or legal analysis in support of this claim. Therefore, we find that this claim is briefed inadequately and decline to afford it review. See State v. Brown, 256 Conn. 291, 312, 772 A.2d 1107 (declining to review claims of prosecutorial impropriety where no analysis or authority presented to support claims), cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151 L. Ed. 2d 584 (2001).

       On December 6, 2007, the state filed a motion for joinder to consolidate this case with two other criminal cases pending against the defendant in the Litchfield judicial district. Attached to this motion was a copy of the redacted version of the victim’s medical records. The defendant did not subpoena these records until March 4, 2008.

       It should be noted that we make no determination of whether there was an actual Brady violation in the case at hand. Because the prosecutor furnished the redacted versions of the victim’s medical records to the defendant as early as December 6, 2007, the state claims that there was no suppression of evidence or late disclosure. Essentially, the state argues that the defendant cannot sustain a Brady claim because he and his trial counsel were at least aware of the possible existence of potentially exculpatory evidence contained within the redacted portions of the medical report and failed to request access to this information in a timely maimer. Indeed, our Supreme Court previously has held that there is “no reason why a defendant who is aware of [the existence of potentially exculpatory] evidence should not be required to seek it at a point in time when any potential constitutional infirmity arising from the state’s failure to provide the evidence can be avoided without the need for a new trial.” State v. Skakel, 276 Conn. 633, 706, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). Although Skakel appears to support the state’s argument in this regard, due to our determination that the defendant waived any potential Brady claim, there is no need for us to engage in a separate analysis of whether potentially exculpatory evidence was suppressed or disclosed in an untimely manner. Such an analysis would only be necessary if we were to review the substance of the defendant’s Brady claim.

       The rule announced in Salomon is applicable to the present case because the present case was pending when our Supreme Court articulated a new construction of the kidnapping statutes in Salamon. See State v. DeJesus, 288 Conn. 418, 429 n.9, 953 A.2d 45 (2008).


source: Caselaw Access Project

author: TYMA, J.

license: Public Domain

text:
    MICHAEL MOURNING v. COMMISSIONER OF CORRECTION
    (AC 30744)
    Bishop, DiPentima and Tyma, Js.

      Argued January 4
    officially released April 27, 2010

      Wayne A. Francis, special public defender, for the appellant (petitioner).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Warren C. Murray, supervisory assistant state’s attorney, for the appellee (respondent).

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

   Opinion

TYMA, J.

After the habeas court granted certification to appeal, the petitioner, Michael Mourning, filed this appeal from the judgment of the court dismissing his amended petition for a writ of habeas corpus for lack of subject matter jurisdiction. The petitioner claims on appeal that the court improperly dismissed his petition because the court failed (1) to consider the challenge to his current conviction based on his claim that he was “in custody” for sale of narcotics within the meaning of General Statutes § 52-466, (2) to construe his amended petition liberally as a challenge to his conviction of sale of narcotics to the extent that the sentence may have been enhanced by the allegedly invalid findings that he violated his probation, which was imposed when he was convicted of certain crimes in 1996, and (3) to construe his petitions for a writ of habeas corpus as a writ of error coram nobis. We affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. On August 7, 1996, the trial court, Mihalakos, J., sentenced the petitioner in three criminal dockets to a total effective term of twenty years imprisonment, with execution suspended after ten years, and five years probation. The court sentenced the petitioner as follows: (1) docket number CR-94-90346-S (docket A) to a term of fifteen years imprisonment, with execution suspended after ten years, and five years probation; (2) docket number CR-95-91109-S (docket B) to a term of fifteen years imprisonment, with execution suspended after ten years, to run concurrently to docket A; and (3) docket number CR-95-92193 (docket C) to a term of five years imprisonment, with execution suspended, to run consecutively to dockets A and B.

The petitioner was remanded to the custody of the respondent, the commissioner of correction, and released from incarceration after completing the unsus-pended portion of his sentence. After his release, the petitioner was arrested in 2007 and charged with one count of sale of narcotics in violation of General Statutes § 21a-277. He also was charged with three counts of violation of probation in contravention of General Statutes § 53a-32. The probations had resulted from his 1996 convictions. On February 25, 2008, as part of a plea agreement, the petitioner admitted before the trial court, Iannotti, J., to violating his probation on each of the three criminal dockets relating to his 1996 convictions. The court terminated the probations, accepted the petitioner’s guilty plea to sale of narcotics and sentenced him on that charge to fifteen years imprisonment, with execution suspended after three years, and four years probation.

On June 6, 2008, the petitioner, acting as a self-represented party, filed a petition for a writ of habeas corpus. At the time that he filed his petition, the petitioner had served his period of incarceration in connection with his 1996 convictions, and the associated findings of violation of probation had been terminated by the court. Therefore, those sentences were no longer in existence. The petitioner was serving only the sentence that he had received for his conviction of sale of narcotics.

The petitioner alleged in his original petition that he could not be charged with, and found to have violated, his probation as a consequence of his arrest for sale of narcotics. He maintained that his probation was imposed by the trial court in his 1996 sentencing only on docket C and not on dockets A and B. More particularly, the petitioner asserted that his probation on docket C, which was a suspended sentence, was served and completed while he remained incarcerated on dockets A and B. The petitioner argued, consequently, that he was no longer on probation at the time he was arrested in 2007 for sale of narcotics, and the resulting findings of violation of probation were invalid. He requested that the habeas court make a “correct calculation of probation.” The petitioner then filed an amended petition on July 15, 2008, in which he alleged that his “several dirty urines were insufficient proof of violating the conditions of [his 1996] probation[s]” and that in relation to “[t]he criminal arrest on August 6, 2007 the evidence was insufficient proof of his conduct selling narcotics to be in violation of probation in violation of [§] 21a-277 (a).”

The respondent filed a motion to dismiss the petition on the ground that the habeas court lacked subject matter jurisdiction. The respondent claimed that the petitioner could not demonstrate that he was “in custody” at the time he filed his petition challenging the findings of violation of probation because the probationary terms had been terminated by Judge Iannotti immediately prior to the petitioner’s being given his current sentence on the sale of narcotics charge.

The habeas court agreed with the respondent and concluded that the petitioner was no longer “in custody” on the findings of violation of probation. In reviewing the procedural posture of the case, the court noted that “[t]he sentencing transcript indicates that [the trial court] sentenced the petitioner to five years probation on the first docket, i.e., [docket A].” The court reasoned that “[t]he petitioner initiated this matter on June 6, 2008, several months after Judge Iannotti ordered the probations in [dockets A, B and C] terminated. Thus, the petitioner was neither serving [the] to-serve portion of any [of the] three sentences imposed for those dockets, nor was he on parole, nor was he on probation. The petitioner simply was not in anyone’s ‘custody’ for the sentences in [dockets A, B and C] because all three had completely expired. It was, therefore, impossible for the petitioner to be legally restrained due to any or all of the sentences originally imposed by [the trial court] in [those] docket[s].” (Emphasis in original.) In view of its conclusions, the court rendered judgment dismissing the petition for lack of subject matter jurisdiction.

On October 14,2008, the habeas court granted certification to appeal. This appeal ensued.

I

The petitioner first argues that the court improperly granted the respondent’s motion to dismiss on the ground that the petitioner was not “in custody” on the challenged conviction. Specifically, the petitioner claims that he was “in custody” on the 2008 narcotics conviction when he filed his petition and that his petition challenged that conviction. The petitioner asserts that the habeas court erred in failing to address on the merits his attack on that conviction. We disagree.

“As a preliminary matter, we set forth the applicable standard of review. The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 512, 876 A.2d 1178 (2005).

“A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy.” (Internal quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn. App. 188, 191, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). “Our Supreme Court has held that the party bringing the action bears the burden of proving that the court has subject matter jurisdiction. . . . [W]ith regard to subject matter jurisdiction, jurisdictional facts are [fjacts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court . . . .” (Citation omitted; internal quotation marks omitted.) Id., 193.

Our state’s habeas proceedings are defined by General Statutes § 52-466 (a) (1), which provides in relevant part that “[a]n application for a writ of habeas corpus . . . shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person’s liberty.”

In Lebrón, our Supreme Court held that “the custody requirement in § 52-466 is jurisdictional.” Lebron v. Commissioner of Correction, supra, 274 Conn. 526. Accordingly, “a habeas court has subject matter jurisdiction to hear a petition for a writ of habeas corpus only when the petitioner remains in custody on that conviction . . . .” Samuels v. Commissioner of Correction, 117 Conn. App. 740, 743, 980 A.2d 945 (2009). “ [Considerations relating to the need for finality of convictions and ease of administration . . . generally preclude a habeas petitioner from collaterally attacking expired convictions. . . . Thus, once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it.” (Citations omitted; internal quotation marks omitted.) Young v. Commissioner of Correction, supra, 104 Conn. App. 191-92.

The petitioner asserts that the habeas court improperly failed to construe his amended petition as a challenge to his current conviction of sale of narcotics. He argues that the court improperly limited its consideration to the sole issue raised by the respondent in the motion to dismiss; that is, that the petitioner was no longer “in custody” on the findings of violation of probation, and, therefore, the court lacked the subject matter jurisdiction to consider his challenge to those findings. The petitioner seeks to have the matter remanded to the habeas court for an evidentiary hearing on his claim.

The original petition filed by the petitioner consisted of a preprinted department of correction form. On the line provided for identifying the name of the sentencing judge, the petitioner wrote the name of Judge Miha-lakos. On the line provided for listing his sentences, the petitioner clearly set forth only the 1996 convictions, which he specifically referred to by docket number. In the section of the standard form for the petitioner to set forth his claim as to the nature of the illegality of his conviction, the petitioner wrote that his “sentence is not being calculated accurately (Probation).” The petitioner indicated on the form that he was requesting the court to “correct calculation of probation.” The form does not contain either a direct or indirect reference to the petitioner’s 2008 narcotics sentence.

In his handwritten amended petition, the petitioner alleged that in relation to “[t]he criminal arrest on August 6, 2007 the evidence was insufficient proof of his conduct selling narcotics to be in violation of probation in violation of [§] 21a-277 (a)” and “[t]he several dirty urines were insufficient proof of violating the conditions of probation in violation of [§] 53a-32.”

“It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, supra, 274 Conn. 519.

In its memorandum of decision granting the respondent’s motion to dismiss, the habeas court indicated that it would “view” both the original and amended petitions “as containing all of the petitioner’s claims.” The court stated that “[t]he claims in the amendment challenge the sufficiency of proof for the violations of probation. The court notes that the transcript of the February 25, 2008 plea and sentencing proceeding before Judge Iannotti shows that the petitioner specifically admitted that the facts recited by the state’s attorney were essentially correct.” (Emphasis added.)

We conclude that the habeas court properly construed the petitions as challenging only the findings of violation of probation. The original petition concerned only the findings of violation of probation. The petitioner alleged in his amended petition that there was “insufficient proof of his conduct selling narcotics to be in violation of probation in violation of [§] 21a-277 (a).” (Emphasis added.) He did not allege, as asserted on appeal, that there was insufficient evidence to support his conviction of sale of narcotics.

The case of Oliphant v. Commissioner of Correction, 274 Conn. 563, 877 A.2d 761 (2005), involves similar facts. Therein, the petitioner appealed from the judgment of the Appellate Court affmning the habeas court’s sua sponte dismissal of his petition for a writ of habeas corpus. Id., 565. “The opinion of the Appellate Court sets forth the following facts and procedural history. On April 25, 1995, the petitioner was convicted of two crimes under docket numbers CR7-16272 and CR7163805. On CR7-16272, he was sentenced to incarceration for one year; on CR7-163805 he was sentenced to incarceration for three months to run consecutive to the one year term for a total effective sentence of fifteen months incarceration (April sentences or April convictions). On September 1, 1995, the petitioner was convicted on another charge and sentenced to fifteen years of incarceration, execution suspended after seven years, with five years of probation (September sentence or September conviction). The September sentence was to run concurrent to the April sentences. One hundred and twenty-nine days passed between the imposition of the April sentences and the imposition of the September sentence.” (Internal quotation marks omitted.) Id., 565-66.

The petitioner in Oliphant, acting as a self-represented party, filed his petition after the April sentences fully were completed and when he was “in custody” only on his September conviction. Id., 568-69. His petition, on its face, challenged only his April convictions. The petitioner claimed that “the Appellate Court failed to construe his petition broadly as an attack on his September conviction.” Id., 569.

Our Supreme Court held that the habeas court properly construed the petition as contesting only the petitioner’s April convictions. Id., 571. In reaching its conclusion, the court stated: “In his habeas petition, the petitioner listed only the April convictions, which he referred to specifically by docket number. Under ‘[t]otal effective sentence,’ the petitioner typed: ‘Fifteen (15) Months.’ He listed April 25,1995, as the sentencing date. Although his petition makes an indirect and passing reference to the September sentence, this reference cannot be read as an allegation that the September sentence had been enhanced by the April convictions, even under a broad and liberal reading.” (Emphasis in original.) Id., 570-71.

Similarly, under the circumstances of this case, the petitioner’s passing reference in his amended petition to his arrest in 2007 for sale of narcotics cannot be read as an attack on his resulting sentence on that charge, even under the most liberal reading of the petitions. Accordingly, we conclude that the habeas court properly construed the original and amended petitions together as contesting only the findings that the petitioner violated his probation.

II

The petitioner further claims that the habeas court erred in not liberally construing his amended petition as a challenge to his conviction of sale of narcotics on the basis of his argument that his sentence may have been enhanced by the allegedly invalid findings of violation of probation. In this regard, the petitioner asserts that he is permitted to challenge the violation of probation findings in accordance with Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001).

As discussed in part I of this opinion, we conclude that the habeas court properly construed the petitions as an attack on the findings that the petitioner violated his probation and not on his present sentence for sale of narcotics. Unlike the facts in Lackawanna County District Attorney, the record here demonstrates that the petitioner failed to raise before the habeas court the claim that he was challenging his current sentence as it may have been improperly enhanced by the prior findings of violation of probation. Nevertheless, the petitioner maintains that because he filed his petitions as a self-represented party, the court should have construed his petitions liberally as challenging his conviction of sale of narcotics. We disagree.

“[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . The modem trend ... is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their lack of legal education and experience .... This rule of construction has limits, however. Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. . . . A habeas court does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. ... In addition, while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the bounds of rational comprehension.” (Citations omitted; internal quotation marks omitted.) Oli-phant v. Commissioner of Correction, supra, 274 Conn. 569-70.

We decline to “strain the bounds of rational comprehension” by construing the petitions in this case as challenging the petitioner’s current sentence for sale of narcotics as possibly enhanced by his probation violations. The habeas court stated in its decision that it considered the claims raised in both petitions. The petitioner’s original petition clearly concerned only his probation violations. The amended petition references the petitioner’s 2007 arrest for “selling narcotics . . . .” It fails to mention his subsequent conviction in 2008 on that charge. In view of the foregoing, the court reasonably construed the petitions only as attacking the petitioner’s probation violations. We conclude that the habeas court properly construed the petitions in granting the respondent’s motion to dismiss.

Ill

Finally, the petitioner claims that, if this court concludes that the habeas court lacked subject matter jurisdiction over the petitions for a writ of habeas corpus, then the habeas court improperly failed to construe his petitions as a writ of error coram nobis. The petitioner asserts that the court properly could have exercised jurisdiction based on such a pleading. The petitioner concedes in his brief that the issue is being raised for the first time on appeal.

“We have stated repeatedly that we ordinarily will not review an issue that has not been properly raised before the trial court.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 550, 911 A.2d 712 (2006) (declining to review petitioner’s claim that habeas court should have construed petition as writ of error coram nobis because claim had not been preserved). The petitioner, however, invites us to review his claim pursuant to our inherent supervisory authority. We decline to do so. “[I]n certain instances, dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under the . . . plain error [doctrine]. . . . [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Citation omitted; internal quotation marks omitted.) Smith v. Andrews, 289 Conn. 61, 79, 959 A.2d 597 (2008). Our supervisory powers are reserved for extraordinary circumstances that are not implicated by the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sentencing transcript reflects the following: “Accordingly, this court is going to sentence you as follows: In the file CR-94-90346-S, this court is going to sentence you to fifteen years, execution suspended after ten; in the file CR-95-91109-S, fifteen years, execution suspended after ten. These are to run consecutive—I’m sorry—concurrent. These are going to run concurrent. On the third, CR-95-92193, this court sentences you to five years, execution suspended, and that’s to run consecutive with the other two, making it an effective sentence of twenty years, execution suspended after ten, five years probation. They cannot run on a consecutive basis, so this court will just sentence you to five years probation on the first charge, CR-94-90346-S. Again, the effective sentence being twenty years, execution suspended after ten, five years probation.”
      The mittimus record concerning docket A shows the petitioner’s sentence of imprisonment as “15 years, suspended after 10 years, probation 5 years [cjoncurrent with CR-95-91109-S.” The mittimus record concerning docket B shows the petitioner’s sentence of imprisonment as “15 years, suspended after 10 years, [concurrent with CR-94-903465-S.” The record of the sentencing reflects that the court imposed probation only on docket A and not on dockets B and C. Such a sentence is not in accordance with General Statutes § 53a-28 (b) providing that any suspended sentence requires a period of probation. The respondent states in its brief that the “sentence was understood as meaning that probation was imposed on all three files.”

       The habeas court’s memorandum of decision states the following: “On July 15, 2008, the petitioner filed a pleading captioned ‘Amended Petition.’ As ascertained by the court during the hearing on [the] respondent’s motion to dismiss, the petitioner intends the claims pleaded on July 15, 2008, to be added to those in the petition filed June 6, 2008. Accordingly, the court will view both pleadings as containing all of the petitioner’s claims.”

       It is undisputed that the petitioner’s probation had been terminated before he filed his petition.

       The respondent claims that the habeas court expressly found that Judge Mihalakos sentenced the petitioner to probation on docket A, and that finding “obviates any need to venture further in this case,” including reaching the issue of the habeas court’s subject matter jurisdiction. We disagree. “[TJJnlike jurisdiction over the person, subject matter jurisdiction cannot be created through consent or waiver. . . . Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented. . . . The court must fully resolve it before proceeding further with the case. . . . Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002). “Indeed, [i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006).

       It is undisputed that the petitioner was “in custody” within the meaning of § 52-466 on his conviction of sale of narcotics when he filed his original petition for a writ of habeas corpus and his amended petition.

       “In Lackawanna County District Attorney [v. Coss, supra, 532 U.S. 401-104], a majority of the United States Supreme Court . . . concluded] that . . . ‘[the] petition can be (and has been) construed as asserting a challenge to the [current] sentence], as enhanced by the allegedly invalid prior [1986] conviction[s].’ . . . The court then considered ‘the question ... [as to] the extent to which the [prior expired] conviction itself may be subject to challenge in the attack upon the [current] sentence] which it was used to enhance.’ ... A majority of the court concluded that ‘considerations relating to the need for finality of convictions and ease of administration’ . . . generally preclude a habeas petitioner from collaterally attacking expired convictions. Accordingly, the majority held that ‘once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. ... If that conviction is later used to enhance a criminal sentence, the [petitioner] generally may not challenge the enhanced sentence through a petition under [28 U.S.C.] § 2254 on the ground that the prior conviction was unconstitutionally obtained.’ ” (Citations omitted.) Lebron v. Commissioner of Correction, supra, 274 Conn. 516-17.

       The petitioner admits in his brief that he failed to make such a claim in his petitions.

       “A writ of error coram nobis is an ancient common-law remedy which authorized the trial judge, within three years, to vacate the judgment of the same court if the party aggrieved by the judgment could present facts, not appearing in the record, which, if true, would show that such judgment was void or voidable. . . . The facts must be unknown at the time of the trial without fault of the party seeking relief. ... A writ of error coram nobis lies only in the unusual situation [in which] no adequate remedy is provided by law. . . . Moreover, when habeas coipus affords a proper and complete remedy the writ of error coram nobis will not he.” (Citations omitted; internal quotation marks omitted.) State v. Das, 291 Conn. 356, 370-71, 968 A.2d 367 (2009).


author: BISHOP, J.

text:
    CARMINE J. ESPOSITO ET AL. v. LORI DIGENNARO ET AL.
    (AC 30165)
    Bishop, Gruendel and Schaller, Js.
    Argued January 19
    officially released April 27, 2010

      Bruce S. Beck, with whom was Mark K. Ostrowski, for the appellants (defendants).

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellees (plaintiffs).
   Opinion

BISHOP, J.

The defendants, Lori DiGennaro and Robert DiGennaro, appeal from the judgment of the trial court in favor of the plaintiffs, Carmine J. Esposito and National Waste Associates, LLC (NWA). The defendants claim that the court improperly concluded that they had waived certain rights provided for by way of a stipulated judgment in a prior action. We agree and, accordingly, reverse in part the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of the defendants’ appeal. At one time, Esposito and the defendants jointly owned NWA, Esposito owning 50 percent of the business and each of the defendants owning 25 percent. As a result of disagreements concerning the operation of NWA, Esposito fired Lori DiGennaro from NWA in December, 2004, and Robert DiGennaro in early 2005. The defendants commenced an action against Esposito in March, 2005, DiGennaro v. Esposito, Superior Court, judicial district of Hartford, Docket No. CV-05-4008298-S. On August 25, 2005, Esposito caused to be distributed the surplus cash of NWA. The amount of surplus cash distributed was $1.6 million—$800,000 to Esposito and $400,000 to each of the defendants. On August 31, 2005, that litigation was settled by a stipulated judgment.

Although Esposito represented that all of the surplus cash in NWA was distributed as of August 26, as part of the stipulated judgment, the defendants reserved the right to conduct an audit to see if there was any additional surplus cash to which they would be entitled. The stipulation specifically provided: “Esposito has represented that all of the surplus cash in NWA was distributed as of Friday, August 26. . . . [The defendants] can perform an audit, [they] asked for accounting information to verify this, and to the extent, Your Honor, that it’s deemed that there is any additional surplus cash that hasn’t been distributed, then we agree 50 percent of that additional surplus cash belongs to the [defendants].” In the late fall of 2005, the defendants determined that they would not conduct the audit because they lacked sufficient financial data.

On October 28, 2005, pursuant to the terms of the stipulated judgment, the parties held a closing at which time Esposito purchased the defendants’ interest in NWA for a total payment of $4 million—$2 million to each of the defendants. At that time, the parties provided one another with general releases, but those releases specifically provided that they were not to be construed as releasing the parties from any obligations under the stipulated judgment.

The plaintiffs initiated this action by filing a two count complaint in which they alleged that the amount of surplus cash that Esposito had distributed in August, 2005, exceeded the sum that they were required to distribute under the terms of the stipulation and that the defendants had improperly refused to reimburse them for the overpayments. In response, the defendants filed an answer and a three count counterclaim. In the second count of their counterclaim, the defendants alleged, on the basis of information obtained through the course of discovery, that the amount of surplus cash that was disbursed to them in August, 2005, was insufficient. By way of memorandum of decision filed June 4, 2008, the court found in favor of the defendants on the plaintiffs’ complaint and found that the defendants were entitled to an award of attorney’s fees for having to defend against the plaintiffs’ complaint. The court also found that the defendants had waived their rights to conduct an audit and to obtain additional payments of surplus cash. The defendants filed this appeal, challenging only the court’s resolution of the waiver issue as to the second count of their counterclaim.

On appeal, the defendants claim that they did not waive their right to seek an audit or their right to surplus cash. “Waiver involves an intentional relinquishment of a known right. . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it. . . . Waiver may be inferred from the circumstances if it is reasonable so to do. . . . Whether conduct constitutes a waiver is a question of fact . . . [and is] dependent on all of the surrounding circumstances and the testimony of the parties.” (Citation omitted; internal quotation marks omitted.) Roy v. Metropolitan Property & Casualty Ins. Co., 98 Conn. App. 528, 532, 909 A.2d 980 (2006). “Our review of the trial court’s determination [therefore] is guided by the principle that, because waiver [is a question] of fact ... we will not disturb the trial court’s [finding] unless [it is] clearly erroneous. ... 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.” (Citation omitted; internal quotation marks omitted.) Grey v. Connecticut Indemnity Services, Inc., 112 Conn. App. 811, 815, 964 A.2d 591 (2009).

The court concluded that the defendants waived their rights both to an audit and to their claim for any alleged underpayment of surplus cash. In support of that determination, the court found that the defendants indicated that they did not pursue an audit in the fall of 2005 because they “lacked certain information and felt it wasn’t worth it.” We agree that the evidence supports the court’s determination that the defendants’ conduct constituted a knowing relinquishment of their right to conduct an audit. In finding, however, that the defendants also waived their right to excess surplus cash, the court conflated two independent rights provided for in the stipulated judgment. The audit was the contemplated mechanism by which the defendants might discover that there was excess surplus cash. There is no evidence that the defendants’ right to their share of excess surplus cash was dependent on an audit. Thus, although the evidence supports the court’s finding that the defendants waived their right to an audit, there is no evidence in the record to support the court’s finding that the defendants knowingly or intentionally relinquished their right to their share of excess surplus cash. Accordingly, the court’s finding in that regard was clearly erroneous.

The judgment as to the second count of the defendants’ counterclaim is reversed and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendants are sister and brother, and Esposito is a cousin of the defendants.

       Surplus cash is defined as “the difference between cash and receivable versus the liabilities of NWA.”

       Count one alleges breach of contract and breach of the implied covenant of good faith and fair dealing; count two alleges unjust enrichment.

       The court awarded attorney’s fees under the first count of the defendants’ counterclaim. That ruling is not being challenged on appeal. The defendants withdrew the third count of their counterclaim.


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. LARRY L. BIGELOW, JR.
    (AC 29787)
    Bishop, DiPentima and Schaller, Js.

    Argued January 6
    officially released April 27, 2010

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom, on the brief, were David Shepack, state’s attorney, and Devin T. Stilson, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

DiPENTIMA, J.

The defendant, Larry L. Bigelow, Jr., appeals from the judgment of conviction, rendered after a court trial, of possession of a controlled substance in violation of General Statutes § 2 la-279 (c) and possession of a controlled substance within 1500 feet of a school in violation of § 21a-279 (d). On appeal, the defendant claims that the court abused its discretion in not finding him incompetent to stand trial. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. On June 15, 2006, members of the Torrington police department executed search and seizure warrants at the defendant’s residence, a first floor apartment located at 10 Grove Street. After entering the residence, Lieutenant Todd M. Schaller observed the defendant lying on a couch. Officers, after detecting the odor of marijuana, searched the residence and seized marijuana located in a computer room. The defendant was placed under arrest, and he made a general statement to the effect of “you got me.”

The defendant elected a trial to the court. After several days of evidence, the court found the defendant guilty of possession of a controlled substance, marijuana, and possession of that substance within 1500 feet of a school. With respect to the charges relating to cocaine found in a vehicle used by the defendant, the court concluded that the evidence was insufficient as to the issue of possession. Accordingly, it found him not guilty of these offenses. The court sentenced the defendant to five years incarceration, suspended after three years, and three years probation. This appeal followed.

On appeal, the sole issue raised by the defendant is that the court abused its discretion in not finding him incompetent to stand trial. Specifically, he claims that the court improperly found that he had a rational understanding of the facts and procedures and was capable of rationally assisting his counsel in defending against the charges. We are not persuaded by the defendant’s arguments.

The following additional facts are necessary for our discussion. At a hearing held on January 23, 2007, the defendant rejected a plea offer and elected to proceed to a trial. During a discussion with the court, the defendant stated that his attorney, Mark S. Solak, had failed to provide him with certain “critical documents” and that Solak had “switched” documents received from the police. The defendant then indicated that he was not comfortable with Solak.

On May 7, 2007, Solak filed a motion to withdraw as the defendant’s counsel pursuant to Practice Book § 3-10. He stated that the attorney-client relationship had broken down irretrievably, such that he could not represent the defendant effectively. A hearing on Solak’s motion was conducted on May 15, 2007. Solak represented that the defendant had filed “grievances” against members of the judiciary assigned to the Litchfield courthouse and that the defendant was insisting on pursing a defense strategy that would place Solak in danger of violating rule 3.1 of the Rules of Professional Conduct. The defendant stated that he believed that the signature on the warrants had been forged and that the judge, prosecutor and Solak had conspired to “get [the defendant] to plead guilty . . . .” After hearing from Solak and the defendant, the court, Gill, J., denied the motion to withdraw as counsel. Immediately following the court’s ruling, Solak requested a competency examination pursuant to General Statutes § 54-56d. The court denied that request.

At the next court proceeding, Solak renewed his motion for a competency hearing. Solak was concerned with the defendant’s belief of a conspiracy to convict him that included the office of the state’s attorney and three judges assigned to the Litchfield judicial district. The court, O’Keefe, J., granted the motion for a competency examination over the defendant’s objection.

Pursuant to the court’s order, a competency evaluation was performed on June 6, 2007. The team conducting the evaluation consisted of Paul Amble, a psychiatrist, Robert Sutton, a clinical psychologist, and Julie M. Wilson, a licensed clinical social worker. The team unanimously concluded that the defendant was able to understand the legal proceedings pending against him and was able to assist in his defense. The basis for this opinion was a ninety minute evaluation and consideration of various documents. Although the report ultimately concluded that the defendant was competent to stand trial, it contained the following statement: “It is also important to note that during this evaluation the defendant engaged in legal discussions that the team was unable to interpret whether they were reality based due to our limited legal background.”

After receiving the report, the court held a hearing on June 15, 2007, to obtain additional information. Wilson, the author of the competency report, testified and was asked to expound on the statement in the report regarding the team’s limited legal background. Wilson stated that the defendant had discussed complex allegations of misconduct by various people and that the team was unable to determine the veracity of those claims. Following Wilson’s testimony, the court stated: “My belief is that I probably, after argument, could make a call on this based on [a section of the report], but in a system like ours, it’s never a mistake to take a little more time to focus on this issue, which appears to be an important one for you and for your client and for me because it’s my job to make sure he gets a fair trial.” Solak then requested a second competency evaluation on the basis of the defendant’s fixed beliefs regarding the conspiracy and forged signatures and what Solak called the defendant’s traits of delusional paranoia. The court ordered a reexamination of the defendant.

The second competency examination was conducted on June 28,2007, by the team of James Phillips, a psychiatrist, Sutton and Wilson, the author of the second report. Solak observed the evaluation and provided legal clarification to the team when needed. The team unanimously concluded that the defendant exhibited a factual, but not a rational, understanding of the legal proceedings pending against him and that he was unable to assist in his defense. The team described the defendant’s thought content as “grandiose and persecutory and consisted of rigid beliefs regarding alleged misconduct perpetrated by the police and various court personnel . . . .’’He also exhibited rigid beliefs regarding Solak’s knowledge of the instances of misconduct and believed that Solak had lied to him. The defendant further expressed his belief that Solak was “ ‘working with the state.’ ” The report concluded by indicating that there was a substantial probability that the defendant could be restored to competency following inpatient psychiatric evaluation and treatment.

On July 10, 2007, the court conducted a hearing regarding the second competency report. Wilson again testified and stated that the examination of the defendant took approximately ninety minutes. She further stated that the team unanimously recommended that the defendant receive treatment in the least restrictive form consistent with restoration at the Whiting Forensic Division of Connecticut Valley Hospital (Whiting). The court found the defendant not to be competent to stand trial and that there was a substantial probability that he would regain competency within sixty days.

On August 31,2007, Harry Hernandez, a licensed clinical social worker, evaluated the defendant and subsequently wrote a report dated September 5, 2007, detailing the defendant’s time at Whiting. The defendant had attended most of the assigned therapeutic groups and had not displayed any mood fluctuations, paranoia or disorganization. Although he described the judicial system as “corrupt,” he was “able to discuss his charges, understand potential penalties and describe various ways that the charges could be resolved.” During the evaluation, the defendant stated that he was willing to listen to Solak and work with him. The defendant further indicated that Solak was “ ‘on [his] side.’ ” The report also noted that although the defendant displayed a mistrust of the judicial system, this was “not a product of any thought disorder or any mental illness. Since his admission . . . [the defendant] hasn’t shown any evidence of delusional thinking or paranoid ideation. There is no evidence that he suffers from a mental illness. [The defendant] might choose not to cooperate with his attorney or to act out in court as a way to prolong his hospitalization and avoid resolution of his case.” The report ultimately recommended that the defendant be found competent to stand trial.

The court held a third hearing on September 26,2007, during which Hernandez testified. Hernandez stated that his report was done in consultation with the treatment team that had worked with the defendant. Hernandez also testified that two forensic psychiatrists had seen the defendant and that he had reviewed their notes. He indicated that an individual can only suffer from fixed false beliefs if that individual was mentally ill and that the two forensic psychiatrists believed that the defendant was not suffering from any mental illness that would prevent him from being competent. Hernandez further stated that he had spoken with the defendant at length about “everything” and did not find that the defendant suffered from any fixed false beliefs about the case pending against him.

During questioning by the prosecutor, Hernandez expressly testified that the defendant did not have a fixed false belief with respect to the forgery of the search warrants or certain facts reported in the police affidavit that was the basis of the search warrants. In response, Solak asked if, assuming that the defendant had a fixed false belief that the signatures on the search warrants were forged even though there was not a legitimate rational basis for that belief, Hernandez still believed that the defendant did not suffer from a fixed false belief. Hernandez responded that there would be no fixed false belief because the defendant did not suffer from a mental illness. Last, Hernandez stated that he did not believe that the defendant maintained the belief that a conspiracy of judges, prosecutors and police officers were out “to get him.”

The court found both Hernandez and the report to be credible. The court, after citing to various sections of the report, agreed with its conclusion and found the defendant competent to stand trial. Specifically, the court stated: “As I said . . . [the defendant] has demonstrated to my satisfaction and to the standard required by law that he has the ability to cooperate with the court process and assist his attorney. He certainly understands the charges against him.”

Before addressing the specific claims of the defendant, we set forth the applicable standard of review and legal principles germane to this case. “We review the court’s determination of competency under an abuse of discretion standard. State v. Johnson, 253 Conn. 1, 27 n.26, 751 A.2d 298 (2000). In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. . . . State v. Hernandez, 254 Conn. 659, 665-66, 759 A.2d 79 (2000).” (Internal quotation marks omitted.) State v. Williams, 65 Conn. App. 59, 84, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001); see State v. Garcia, 81 Conn. App. 294, 299-300, 838 A.2d 1064 (2004).

“The conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1 . . . .” (Citation omitted; internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 67, 658 A.2d 947 (1995). “Connecticut jealously guards this right. Therefore, [t]his constitutional mandate is codified in ... § 54-56d (a), which provides that [a] defendant shall not be tried, convicted or sentenced while he is not competent.” (Internal quotation marks omitted.) State v. Johnson, supra, 253 Conn. 20; see also State v. Gonzalez, 205 Conn. 673, 686-87, 535 A.2d 345 (1987).

“The standard we use to determine whether a defendant is competent under state law to stand trial, as set forth in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960), is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him.” State v. Bag-ley, 101 Conn. App. 653, 654, 922 A.2d 1128 (2007); see also State v. Ouellette, 271 Conn. 740, 753 n.17, 859 A.2d 907 (2004) (Dusky standard codified at § 54-56d [a]).

“Because a defendant is presumed to be competent, § 54-56d (b) provides that if he raises his competency as an issue, he must prove incompetence by a preponderance of the evidence. Competence is a legal question, which, pursuant to § 54-56d (f), must be determined by the trial court. . . . We review a determination of competency under the abuse of discretion standard. ... In the application of that standard, we make every reasonable presumption in favor of the correctness of the action of the trial court.” (Citations omitted.) State v. Bagley, supra, 101 Conn. App. 655.

“The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. . . . Although § 54-56d (b) presumes the competency of defendants, when a reasonable doubt concerning the defendant’s competency is raised, the trial court must order a competency examination. . . . Thus, [a]s a matter of due process, the trial court is required to conduct an independent inquiry into the defendant’s competence whenever he makes specific factual allegations that, if true, would constitute substantial evidence of mental impairment. . . . Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency.” (Internal quotation marks omitted.) State v. Cuesta, 68 Conn. App. 470, 481, 791 A.2d 686, cert. denied, 260 Conn. 914, 796 A.2d 559 (2002). We are mindful that “[t]he trial judge is in a particularly advantageous position to observe a defendant’s conduct during a trial and has a unique opportunity to assess a defendant’s competency. A trial court’s opinion, therefore, of the competency of a defendant is highly significant.” (Internal quotation marks omitted.) State v. Connor, 292 Conn. 483, 523-24, 973 A.2d 627 (2009).

The defendant first argues that the court abused its discretion in not finding him incompetent because Hernandez’ opinion rested on the incorrect premise that the defendant must suffer from a mental illness to be found incompetent. Specifically, the defendant claims that due to this incorrect belief, Hernandez’ testimony and report do not constitute competent evidence on which the court could properly base its opinion. We are not persuaded.

At the outset, we are mindful of the statement from our Supreme Court that “[cjompetence to stand trial ... is not defined in terms of mental illness. An accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense . . . and the fact that the defendant was receiving medication and would require medication during the course of the trial does not render him incompetent.” (Citation omitted.) State v. DeAngelis, 200 Conn. 224, 230, 511 A.2d 310 (1986); see also State v. Mordasky, 84 Conn. App. 436, 446, 853 A.2d 626 (2004). A fortiori, a finding of mental illness is not required for a court to find a defendant incompetent to stand trial.

During his testimony, Hernandez stated that he believed an individual could only suffer from fixed false beliefs if that individual suffered from a mental illness. He also opined that the defendant did not suffer from fixed false beliefs because the defendant was not mentally ill. Last, Hernandez indicated that the defendant’s mistrust of the judicial system was not a product of a mental illness.

In concluding that the defendant had failed to sustain his burden of showing that he was incompetent, the court explicitly credited the September 5, 2007 report and testimony of Hernandez as “a representative of the team” from Whiting. The court, relied on the nine paragraphs of the report detailing the defendant’s understanding of the proceedings, including his discussion of the charges and the various ways they would be resolved, as well as the defendant’s understanding of the potential penalties and courtroom process. As to the issue of the defendant’s ability to assist in his defense, the court found that the defendant had indicated that he was willing to work with Solak, to listen to him and knew that Solak was “on [his] side” and would defend him against the state’s charges. Finally, the court referenced the team’s conclusion that the defendant had demonstrated a sufficient understanding of the proceedings and had the ability to assist in his defense. Notably, the court did not mention the issue of whether the defendant suffered from a mental illness.

Although Hernandez’ testimony indicated his opinion that the lack of mental illness established that the defendant did not suffer from fixed false beliefs, it is clear that the team’s opinion, as set forth in the September 5,2007 report, and, more importantly, the court’s ruling, did not rest on the mental illness question. Simply put, we agree with the state that the court did not base its decision that the defendant was not incompetent on whether the defendant suffered from a mental illness but, rather, on whether the defendant was able to understand the proceedings and assist in his defense. Outside of the issue of mental illness, the report provided the court with sufficient evidence to conclude that the defendant was not incompetent. See State v. Bagley, supra, 101 Conn. App. 658. We further conclude, on the basis of these facts, that the court did not abuse its discretion in not finding the defendant incompetent. The court properly considered the statutory factors and determined that the defendant had failed to satisfy his burden of establishing incompetence. See State v. Garcia, supra, 81 Conn. App. 303 (trial court is in particularly advantageous position to observe defendant’s conduct and its opinion regarding competency of defendant is highly significant).

The defendant next argues that the meaning of “rational understanding” must be determined by using an objective rationality standard, where the issue is what is rational to an average person, as opposed to what is rational to a psychiatrist or the defendant. This claim was not raised at trial, and the defendant requests review pursuant to either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. We conclude that the record is inadequate to review this claim under Golding or the plain error doctrine. See Mozell v. Commissioner of Correction, 291 Conn. 62, 69 n.3, 967 A.2d 41 (2009) (when record inadequate for Golding review, it is also inadequate for consideration under plain error).

“Golding holds 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. In the absence of any one of these conditions, the defendant’s claim will fail. . . . The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Bozelko, 119 Conn. App. 483, 504, 987 A.2d 1102 (2010).

“The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” (Internal quotation marks omitted.) State v. Riggsbee, 112 Conn. App. 787, 791-92, 963 A.2d 1122 (2009).

There is nothing in the record regarding the meaning used by the court with respect to the “rational understanding” test. Absent any information, we cannot speculate as to whether this claim satisfies Golding. Accordingly, we will not engage in review of this argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found the defendant not guilty of possession of a narcotic substance in violation of § 21a-279 (a), possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). These charges stemmed from cocaine that was seized from a vehicle used by the defendant.

       See footnote 1 of this opinion.

       Rule 3.1 of the Rules of Professional Conduct provides: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”

       “In Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), the United States Supreme Court held that, under the due process clause of the fourteenth amendment to the federal constitution, a person charged by a [s]tate with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the [s]tate must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. . . . Section 54-56d codifies this aspect of the constitutional right to due process.” (Citation omitted; internal quotation marks omitted.) State v. Jenkins, 288 Conn. 610, 618-19, 954 A.2d 806 (2008).

       The report was signed by Hernandez and Patrick K. Fox, a physician and the director of Whiting.