author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. PATRICK CORBIN
    (AC 20436)
    Landau, Schaller and Callahan, Js.

      Argued September 25, 2000
    officially released January 30, 2001

      James B. Streeto, deputy assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Joan K. Alexander, former supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Patrick Corbin, appeals from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) and one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress a confession he made to the police, (2) failed to instruct the jury as requested regarding its role in evaluating the credibility of his confession, (3) admitted into evidence for substantive purposes a prior inconsistent statement made by a witness, (4) refused to disclose all of the psychiatric records of a witness and all of the notes of an investigating police officer, (5) denied the defendant’s motion for a judgment of acquittal on the charge of kidnapping in the first degree because of insufficiency of the evidence, and (6) rejected his request to instruct the jury on unlawful restraint in the first degree and unlawful restraint in the second degree as lesser included offenses of kidnapping in the first degree. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 28, 1995, the six year old victim was fishing with two other children at a pond. The defendant, who was at the pond, saw the children and approached them. He offered to show the children a better fishing spot and led them along a dirt trail into a wooded area. The victim continued to follow the defendant but, along the way, the other two children stopped because they noticed that the defendant was drinking beer arid may have been intoxicated.

Upon reaching an isolated part of the wooded area, the defendant sexually assaulted the victim. He placed his hand over her mouth and threatened that if she screamed, he would kill her. Thereafter, the defendant removed the victim’s clothes and placed them in some bushes. He then vaginally penetrated the victim and also performed cunnilingus on her. During the assault, the victim pleaded with the defendant to stop hurting her, but he failed to comply. The entire attack lasted approximately forty-five minutes.

Subsequently, two witnesses saw the defendant running out of the wooded area. Once out of that area, he went to his vehicle and drove off. Meanwhile, the victim went home and reported the incident to her mother, who immediately took her to a hospital. A police officer came to the hospital and took the victim’s statement.

The next day, Detective Edward Spyros went to the defendant’s apartment and asked the defendant to accompany him to the police station. The defendant agreed to do so and at the police station confessed to assaulting the victim. Although audio and video recording equipment was available at the police station, Spyros failed to utilize such equipment to capture the defendant’s confession and, instead, simply reduced it to writing. The state then charged the defendant with the aforementioned crimes. At trial, the defendant requested that the court provide the jury with an instruction regarding the reliability of his confession, but his request was denied. The jury later found the defendant guilty on all counts. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly denied his motion to suppress a confession he made to the police. To support that claim, the defendant advances the following three arguments: (1) the court improperly found that he was not in custody at the time and, therefore, his Miranda rights had not yet attached, (2) he did not make a knowing and intelligent waiver of his Miranda rights, and (3) the confession was not made voluntarily. We are not persuaded.

The following additional facts are necessary for the resolution of this claim. On July 29, 1995, Spyros, in an unmarked car and dressed in plain clothes, went to the defendant’s apartment. Spyros asked the defendant if he would accompany him to the police station to answer questions regarding an incident that had occurred on the previous day. Spyros also indicated to the defendant that his cooperation was completely voluntary. In addition, Spyros offered to drive the defendant and stated that if he changed his mind at any time, he would personally drive the defendant back home. After those initial remarks, the defendant agreed to accompany Spyros to the police station.

Upon leaving his apartment, the defendant rode in the front passenger seat of the unmarked police car. The defendant was not placed in handcuffs or any other restraints. The defendant did not ask if he could drive to the station in his car and entered the police vehicle voluntarily.

Upon reaching the station, Spyros escorted the defendant to the interview room. The defendant, at that point, had not been placed under arrest. Nevertheless, Spyros read the defendant his Miranda rights. The defendant, who indicated that he understood his rights, then initialed each of the five rights listed on the standard waiver of rights form and signed that document. At that point, Spyros reminded the defendant that he was not under arrest and that he was free to leave at any time, but the defendant nonetheless remained at the police station.

Subsequently, the defendant gave oral statements confessing to his involvement in the incident of July 28, 1995. Spyros questioned the defendant for about forty-five minutes and then typed a written statement to record the defendant’s confession. The defendant read and signed the confession. During that time, the defendant was allowed to smoke and was not restrained. The entire interrogation took less than two hours.

A

We first address the defendant’s claim that the court improperly determined that he was not in custody at the time of his confession and, therefore, that his Miranda rights had not yet attached. We are not persuaded.

For Miranda rights to attach, the following two requirements must be met: “(1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. Miranda v. Arizona, [384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].” (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 757, 670 A.2d 276 (1996). “[Although the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. . . . Further, the United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody. . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest. . . .

“In [State v. DesLaurier, 230 Conn. 572, 578, 646 A.2d 108 (1994)], our Supreme Court stated: The defendant had the initial burden of proving custodial interrogation. . . . The trial court’s determination that the defendant was not in custody is a finding of fact. . . . That finding of fact by the trial court will not be overturned unless it is clearly erroneous. . . . We will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence. ” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Harris, 46 Conn. App. 216, 226, 700 A.2d 1161, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997).

Recently, our Supreme Court clarified the proper scope of appellate review of a trial court’s determination of custody. See State v. Pinder, 250 Conn. 385, 411-13, 736 A.2d 857 (1999). It noted that the term “substantial evidence” should not be misinterpreted so that the reviewing court treats a trial court’s determination of custody with complete deference. Our Supreme Court stated: “In spite of our prior use of the ‘substantial evidence’ language . . . our approach long has been to conduct a plenary review of the record in order to make an independent determination of custody.” (Emphasis added.) Id., 412. With that clarified scope of review in mind, we now turn to the present case.

After carefully reviewing the record, we conclude that there is ample evidence supporting the court’s determination that the defendant was not in custody. Spyros told the defendant at his apartment that any cooperation was completely voluntary, and the defendant voluntarily agreed to accompany Spyros to the police station. The defendant, while on the way to the police station, was not placed in handcuffs or other restraints. Upon reaching the police station, Spyros read the defendant his Miranda rights and again told him he was free to leave before questioning him. A reasonable person would not have believed that he was in custody when told repeatedly that he may feel free to leave before any questioning. See State v. Greenfield, 228 Conn. 62, 71 n.10, 634 A.2d 879 (1993) (“an important factor distinguishing a consensual encounter from a seizure is whether the police expressly informed the defendant that he was free to leave at the outset of the interview”). On the basis of those circumstances, we conclude that the court properly found that the defendant was not in custody and, accordingly, that his Miranda rights had not yet attached.

B

The defendant also claims that the court should have suppressed his confession because he did not make a knowing and intelligent waiver of his Miranda rights. “Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda] . . . .” (Emphasis added; internal quotation marks omitted.) State v. Huckaby, 47 Conn. App. 523, 527, 706 A.2d 16 (1998). Because we concluded in part IA of this opinion that the defendant was not in custody and, thus, his Miranda rights had not yet attached, the defendant’s waiver claim is irrelevant, and we decline to review it.

C

The defendant next claims that the court improperly denied his motion to suppress his confession because the confession was not made voluntarily. Specifically, the defendant asserts that the confession was involuntary due to his learning disability, limited education and limited experience with the police. We disagree.

“[T]he use of an involuntary confession in a criminal trial is a violation of due process. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Miranda v. Arizona, supra, [384 U.S. 461-63]; State v. DeAngelis, 200 Conn. 224, 232, 511 A.2d 310 (1986). The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Pinder, supra, 250 Conn. 418.

As with the custody determination, our Supreme Court has also clarified the proper scope of appellate review of a trial court’s determination of voluntariness. Id., 420-21; State v. Lewis, 60 Conn. App. 219, 246-47, 759 A.2d 518, cert. denied, 255 Conn. 906, 762 A.2d 911 (2000). “To begin, we note the established rule that the [t]rial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. ... In its review of state court determinations of voluntariness, the United States Supreme Court long has concluded that the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination. . . . Consistent with the well established approach taken by the United States Supreme Court, we review the voluntariness of a confession independently, based on our own scrupulous examination of the record. The ambiguity apparent in our prior cases is that, while correctly citing to the relevant federal case law for the proposition that w e will conduct an independent determination of voluntariness ... we also have continued to state in these same cases that [o]n the ultimate issue of voluntariness . . . we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. . . .

“Our continued use of the substantial evidence language, when it is inconsistent with the plenary review that we in fact conduct, perpetuates a misstatement of the law. We . . . clarify, therefore, that applying the proper scope of review to the ultimate issue of voluntar-iness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness.” (Citations omitted; internal quotation marks omitted.) State v. Pinder, supra, 250 Conn. 420-21. Having that clarified standard of review in mind, we now must determine whether the defendant’s confession was voluntary.

We make such a determination by examining the totality of the circumstances surrounding the confession, and determining whether the “confession [was] the product of an essentially free and unconstrained choice by the maker. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Citations omitted; internal quotation marks omitted.) State v. James, 237 Conn. 390, 410-11, 678 A.2d 1338 (1996).

Applying those factors to the present case, we conclude that the facts overwhelmingly support the court’s determination that the defendant’s confession was voluntary. The defendant was an intelligent adult who was able to read and write. There was no evidence suggesting that he was physically abused or restrained. Moreover, the defendant, while at the police station, was aware that he could leave at any time. Despite that knowledge, he chose to remain there for about two hours. After conducting a plenary review of the entire record, we conclude that the court properly determined that the defendant’s confession was made voluntarily.

II

The defendant next claims that the court improperly failed to give the jury his requested instruction regarding its role in evaluating the credibility of his confession and its weight. According to the defendant, although the court instructed the jury on its duty to weigh the credibility of testimonial evidence, it failed to instruct the jury specifically concerning nontestimonial evidence or his confession. The defendant argues that his requested instruction regarding his confession was necessary because his confession was a significant piece of evidence at trial. We disagree.

Our standard of review for challenges to jury instructions is well settled. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it 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. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . [this court] will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Whitley, 53 Conn. App. 414, 423, 730 A.2d 1212 (1999).

“In reviewing the charge as a whole, the instructions need not be perfect, as long as they are legally correct, adapted to the issues and sufficient for the jury’s guid-anee. . . . The test to be applied to any part of a charge is whether the charge, considered in its entirety, presents the case to the jury so that no injustice will result.” (Citation omitted; internal quotation marks omitted.) State v. Mackor, 11 Conn. App. 316, 326, 527 A.2d 710 (1987); see also State v. Lepri, 56 Conn. App. 403, 412-13, 743 A.2d 626, cert. denied, 253 Conn. 902, 753 A.2d 938 (2000).

We conclude that no injustice resulted from the court’s failure to give the defendant’s requested jury instruction regarding his confession. The court’s instructions did not mislead the jury as to the law, which assigns different roles to the court and the jury in assessing a confession. “While the preliminary question of admissibility of a confession is for the court, the credibility and weight to be accorded the confession is for the jury.” State v. Vaughn, 171 Conn. 454, 460-61, 370 A.2d 1002 (1976). Contrary to the defendant’s argument, that rule does not require the court to give a particular instruction to the jury regarding the credibility of his confession simply because his confession was a significant piece of evidence. A court has discretion in determining what instructions a jury is to receive. See, e.g., State v. Nguyen, 52 Conn. App. 85, 96, 726 A.2d 119 (1999) (“ ‘a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness’ ”), aff'd, 253 Conn. 639, 756 A.2d 833 (2000). We conclude that the court was not required to give the requested instruction to the jury. Accordingly, we review the charge as a whole to determine if the court’s instructions adequately guided the jury in its task of evaluating all of the evidence, including the defendant’s confession.

In its opening instruction to the jury in the present case, the court explained that the jury’s role differed from the court’s role and stated: “[0]ur functions are very distinct; yours, to find the facts and to ultimately determine the guilt or nonguilt of this defendant on six charges. Mine is totally separate and has to do with attempting to have the trial proceed without undue delay and to put before you only admissible evidence. . . .” After that initial statement, the court instructed the jury on reasonable doubt and its duty of evaluating all of the evidence. The court stated: “What the law does require is [that] after hearing all the evidence, if there’s something in that evidence or lack of evidence which leaves ... a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.” (Emphasis added.) That instruction undermines the defendant’s assertion that the court failed to instruct the jury with respect to nontestimonial evidence. Viewed in combination, those two instructions adequately informed the jury of its distinct role of evaluating the credibility of the defendant’s confession.

Further examination of the charge also reveals that the court referred to all of the evidence, not just the testimonial evidence. It is true that the court instructed the jury at length on its role in evaluating the weight and credibility of the testimonial evidence. While doing so, however, the court paused to remind the jury of its duty to evaluate all of the evidence. It stated: “In determining whether or not the defendant was the person who was involved in the crimes charged, you should take into consideration all of the evidence. . . .” (Emphasis added.) Considered in its entirety, the jury instructions were correct in law and sufficient to guide the jury in its task of evaluating all of the evidence, including the defendant’s confession.

Events that occurred during the trial lead us to the same conclusion. The defendant repeatedly argued that the jury should give his confession little weight because of the circumstances under which it was obtained. That, of course, made the jury aware that the credibility of the defendant’s confession was seriously disputed at trial. In addition, although the confession was a significant piece of evidence, it was not the only evidence of the defendant’s guilt. The state introduced at trial the testimony of several witnesses who provided circumstantial evidence against the defendant. We conclude, therefore, that the court properly instructed the jury so that no injustice resulted.

Ill

The defendant also claims that with respect to his conviction of the third count of sexual assault in the first degree, the court improperly admitted into evidence for substantive purposes the victim’s prior written statement under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). Specifically, the defendant claims that the court improperly allowed into evidence the victim’s written statement to the police on July 28,1995, because (1) the statement was not signed by the declarant and (2) it was not proffered into evidence through the declarant. We agree with the defendant’s first argument and reject his second argument.

The following additional facts are necessaiy for our resolution of this claim. After being sexually assaulted on July 28, 1995, the child victim went to a hospital emergency room with her mother. A police officer arrived at the hospital to interview the child and conducted the interview in the presence of the child’s mother. The child recounted to the police officer what had happened regarding the sexual assault, and the police officer reduced her statement to writing. In the child’s statement, she said at the time: “I forgot to tell you that before he put his pee pee inside me, he made me suck his weiner . . . .” Because the mother told the police officer that the victim could not read, the police officer read the statement back to the child. The police officer then had the mother sign the statement on behalf of the child.

The defendant was later charged with and convicted of four counts of the crime of sexual assault in the first degree in violation § 53a-70 (a) (2). As to count three, the defendant was convicted of violating the statute by forcing the child to perform fellatio on him. When called to testify at trial, the child testified about facts relating to counts one, two and four, but did not recall performing fellatio on the defendant. At that point, the state did not seek to introduce the child’s previous written statement through the declarant herself. Instead, the state proffered it through the police officer who took the statement. The court, over the defendant’s objection, admitted the portion of the child’s statement regarding the fellatio as substantive evidence.

We begin our analysis by setting forth the requirements of Whelan. “In Whelan, we adopted the rule allowing the substantive use of a prior inconsistent statement if: (1) the statement is in writing; (2) it is signed by the declarant; (3) the declarant has personal knowledge of the facts set forth in the statement; and (4) the declarant testifies at trial and is subject to cross-examination.” State v. Hopkins, 222 Conn. 117, 123, 609 A.2d 236 (1992), citing State v. Whelan, supra, 200 Conn. 753.

The defendant first challenges the admission of the child declarant’s prior written statement under the second prong of Whelan because the statement was signed by the declarant’s mother rather than by the declarant herself. The state, on the other hand, contends that the declarant’s signature is not mandatory because the mother’s signature is an adequate substitute under circumstances in which the child declarant was unable to read or write. We agree with the defendant.

We conclude that Whelan should not be extended to cover circumstances in which a written statement is not signed by the declarant or recorded. Our Supreme Court in Whelan departed from the long-standing rule prohibiting the substantive use of prior inconsistent statements. In doing so, however, the court prescribed requirements to assure the reliability of such a statement. State v. Whelan, supra, 200 Conn. 753. It stated that “[although the requirement that prior statements be . . . signed by the declarant is not an absolute guaranty of reliability, it does provide significant assurance of an accurate rendition of the statement . . . .” Id., 754. Although we have disregarded the signature requirement in subsequent cases, we have done so only in the limited circumstances in which the declarant’s statement was tape recorded. See State v. Hermann, 38 Conn. App. 56, 67-68, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995); see also State v. Woodson, 227 Conn. 1, 22, 629 A.2d 386 (1993).

The state relies on the Woodson case and argues that its logic extends to the present case. The mother’s signature, according to the state, adequately establishes the reliability of the child’s statement and, as such, the declarant’s signature is unnecessary. The state’s reliance on Woodson is misplaced. In Woodson, our Supreme Court stated that “the requirement that [a tape-recorded statement] be signed is unnecessaiy because the recording of the witness’ voice imparts the same measure of reliability as a signature.” State v. Woodson, supra, 227 Conn. 21. The above proposition is true because the listener to a tape-recorded statement can identify the declarant’s voice. In addition, a tape-recorded statement is inherently reliable because the words are captured directly from the declarant’s own lips. That essentially eliminates the possibility of a transcription error, which is inherent in the use of a written statement, thereby rendering a tape-recorded statement more reliable than a written statement. That reliability makes the declarant’s signature unnecessary to establish that a tape-recorded statement is accurate.

Unlike the situation in Woodson, reliability cannot be established in the present case. The police officer took the child declarant’s statement in wilting even though he believed the child was unable to read or sign her name. In the presence of the mother, the police officer read the statement back to the child and had the mother sign for the child. The child did nothing to examine, verily or adopt the accuracy of the statement. We conclude that, under the circumstances of this case, the signing by the mother of the child’s statement on behalf of the child fails to satisfy Whelan. The court, therefore, improperly admitted the child declarant’s statement for substantive purposes concerning the third count of sexual assault in the first degree.

Our inquiry, however, does not end there. We must next determine whether the improper admission of the statement was harmless. In making that determination, the allocation of the burden of persuasion will differ depending on whether the error amounts to a constitutional violation. If it does, then the state bears the burden of proving that it was harmless beyond a reasonable doubt. State v. Daugaard, 231 Conn. 195, 212, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). An improperly admitted statement under Whelan does hinder a defendant’s “opportunity to impeach a witness for motive, bias and interest [thereby implicating] the protection of the confrontation clause [under the sixth amendment to the United States constitution] . . . .” State v. Portee, 55 Conn. App. 544, 560 n.12, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A.2d 439 (2000). Thus, a constitutional violation is at issue, and the state must show that the admission of the statement was harmless. See id., 560-61 n.12.

“The correct inquiry for identifying harmless constitutional error is to ask whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. . . . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. . . . Any improper evidence that may have a tendency to . . . influence the judgment, of the jury, cannot be considered as harmless.” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 333, 618 A.2d 32 (1992).

Applying those standards to the present case, we are persuaded that the court’s admission of the victim’s statement was not harmless beyond a reasonable doubt. The victim’s statement provided the crucial evidence to prove that the defendant forced the victim to perform fellatio on him. Other than the defendant’s confession, the state offered no evidence to prove that particular charge. Under those circumstances, we are not satisfied beyond a reasonable doubt that without the victim’s statement the jury would have returned a guilty verdict on count three. We conclude, therefore, that the court’s error in admitting the statement was not harmless and, thus, reverse the judgment on count three.

IV

The defendant’s fourth claim is that the court abused its discretion by denying him full access to documents pertaining to two witnesses after conducting an in camera review, thereby violating his right to confrontation. We are not persuaded.

The facts pertinent to this issue are as follows. At trial, the defendant sought access to two sets of documents for the puipose of cross-examination. The first set of documents was the psychiatric treatment records of Rene Girardin, while the second set of documents was the field notes of Spyros. Girardin was a state’s witness who provided identification evidence against the defendant. The defendant, before trial, discovered that Girardin was an alcoholic and that he had received psychiatric treatment for his problem from the Rush-ford Center, Inc. The defendant subpoenaed Girardin’s psychiatric treatment records under seal and requested the court to conduct an in camera review of them. After doing so, the court released eight redacted pages to the defendant.

The defendant also sought full access to Spyros’ field notes. Spyros was one of the police officers investigating the defendant’s case. During the entire investigation, Spyros had generated fourteen pages of field notes. The defendant, after discovering the existence of those notes, asked the court to review them in camera and release all relevant information. The court did so and released seven of the fourteen pages to the defendant. In essence, the defendant claims that he was entitled to all of the material in both sets of documents because it may have been useful in cross-examination and, therefore, had probative value. We disagree.

A conflict exists between a defendant’s right to confrontation and the public policy interest of preserving the confidentiality of certain records. State v. Pratt, 235 Conn. 595, 607-608, 669 A.2d 562 (1995). To balance those competing interests, a trial court must determine whether the records sufficiently disclose material “probative of the ability to comprehend, know and correctly relate the truth . . . so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation.” (Citation omitted.) State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983). “Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis. ... At this stage in the proceedings, when the trial court has reviewed the records in camera, access to the records must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records. . . . We review the trial court’s decision under an abuse of discretion standard.” (Citation omitted; internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 723, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). In making such a determination, this court must conduct an in camera inspection of the sealed records. See State v. Tyson, 43 Conn. App. 61, 70, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996).

We have carefully reviewed the two sets of disputed records in the present case and conclude that the court did not abuse its discretion. As for Girardin’s psychiatric treatment records, the court reasonably could have found that nothing of probative value existed in the material that it refused to release. The withheld material contained private information that would have been of no use to the defendant. Similarly, the court reasonably could have found that no evidence with probative value existed in the portion of Spyros’ notes that the court refused to disclose. We conclude that the court did not abuse its discretion in denying the defendant access to certain material within the two sets of records.

V

The defendant next claims that the court improperly denied his motion for a judgment of acquittal on the kidnapping charge because there was insufficient evidence. Specifically, he claims that the state failed to present sufficient evidence to establish restraint, a crucial element of kidnapping. We are unpersuaded.

In reviewing claims of insufficiency of the evidence, an appellate court employs a two part analysis. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. ” (Citations omitted; internal quotation marks omitted.) State v. Faria, 47 Conn. App. 159, 186-87, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998).

The defendant is correct in stating that “restraint” is a critical element under the kidnapping statute. Section 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . (Emphasis added.) General Statutes § 53a-91 defines the critical terms and provides in relevant part: “(1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. ... (2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by . . . (B) using or threatening to use physical force or intimidation.”

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient evidence from which the jury reasonably could have inferred that the defendant restrained the victim. The defendant lured the victim into a wooded area by deception. Upon reaching a secluded area, the defendant proceeded to assault her sexually. He placed his hand over the victim’s mouth and threatened that if she screamed, he would kill her. Because the victim was six years old at the time, the jury reasonably could have found that the defendant’s threat was intended to restrain her physically, not just to prevent her from screaming. See State v. Tweedy, 219 Conn. 489, 501, 594 A.2d 906 (1991) (sufficient evidence for kidnapping where defendant told victim he had gun he would use if she screamed). In addition, the defendant removed the child’s clothes and placed them in some bushes. The jury could have inferred that this action was intended to restrain the child from leaving. We conclude that there was sufficient evidence to support the jury’s conviction of kidnapping in the first degree.

VI

The defendant’s final claim is that the court improperly rejected his written request to instruct the jury on unlawful restraint in the first degree and unlawful restraint in the second degree as lesser included offenses of kidnapping in the first degree. We do not agree.

“There is no fundamental constitutional right to a jury instruction on every lesser included offense; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following [Whistnant] conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Internal quotation marks omitted.) State v. Morris, 49 Conn. App. 409, 413-14, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

The defendant argues that he satisfied all of the prongs of Whistnant. The state concedes that the defendant satisfied the second and third prongs of Whistnant, but it argues that the defendant failed to satisfy the first and fourth prongs. Our discussion will begin with an analysis of the first prong.

Before doing so, however, we must set forth our standard of review applicable to Whistnant requests. “In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991); State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). . . .On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Citation omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260-61, 681 A.2d 922 (1996).

We now turn to the issue of whether, under the first prong of Whistnant, the defendant’s request to charge was an appropriate instruction. “A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book [§ 42-18]. State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990); State v. Ostroski, [201 Conn. 534, 556-58, 518 A.2d 915 (1986)]; State v. McIntosh, [199 Conn. 155, 158-61, 506 A.2d 104 (1986)].” State v. Tomasko, supra, 238 Conn. 261. Practice Book § 42-18 (a) provides in relevant part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .” Our Supreme Court has held that “in the context of a written request to charge on a lesser included offense, [the] requirement of [ § 42-18] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) State v. Hall, supra, 591.

In his request to charge, the defendant failed to meet the requirements of Practice Book § 42-18 in several respects. First, his written request did not place the lesser included offense of unlawful restraint in the first degree in a separate paragraph. Rather, he lumped several lesser included offenses all under one paragraph. Second, although the defendant placed the lesser offense of unlawful restraint in the second degree in a separate paragraph, he failed to include a complete statement of the essential facts to justify the charge as requested. The defendant merely recited the relevant statutory sections pertaining to unlawful restraint in the second degree along with a comparison to the charged kidnapping statute. Those omissions made the requested instruction confusing, which Practice Book § 42-18 seeks to prevent. Our Supreme Court has stated: “While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved . . . the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 42-18] is neither unreasonable nor novel.” (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. 262. We conclude that the defendant failed to make a proper request under the first prong of Whistnant. The court, therefore, properly refused the defendant’s request to instruct the jury on unlawful restraint in the first degree and unlawful restraint in the second degree as lesser included offenses of kidnapping in the first degree.

The judgment is reversed as to the conviction of sexual assault in the first degree in count three of the information and the case is remanded with direction to render a judgment of acquittal on that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       General Statutes (Rev. to 1995) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be ipjured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant filed a request to charge, asking that the jury consider the circumstances under which his confession was taken. That request stated in relevant part:
      “6. Statement Attributed to the Defendant
      “The defendant claims that the statement taken by the . . . police department, which the state has attributed solely to him, is unreliable. The law permits you to consider the circumstances under which a statement was taken, including a lack of corroboration for the statement, the failure by the police to electronically record the statement, and the physical condition and mental capability of the defendant in determining the weight to be afforded to it. Accordingly, in this case, it is your task to determine the sufficiency and the weight to be afforded to this statement in light of all attendant circumstances. ...”

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

       In Whelan, our Supreme Court “adopted the rule allowing the substantive use of a prior inconsistent statement if: (1) the statement is in writing; (2) it is signed by the declarant; (3) the declarant has personal knowledge of the facts set forth in the statement; and (4) the declarant testifies at trial and is subject to cross-examination.” State v. Hopkins, 222 Conn. 117, 123, 609 A.2d 236 (1992), citing State v. Whelan, supra, 200 Conn. 753. The defendant claims, under the fourth prong of Whelan, that the court improperly admitted the victim’s prior statement into evidence through a witness who was not the declarant. That claim is without merit.
      We considered and rejected this identical claim in State v. Harris, 22 Conn. App. 329, 577 A.2d 1077 (1990). There, we held that “Whelan does not mandate that the declarant be the party through whom the evidence is admitted.” Id., 334. With regard to that issue, the facts in Harris are identical to those in the present case. We therefore conclude tlxsX,Hari'is is controlling and reject the defendant’s second claim.

       The defendant’s request to charge, in relevant part, was as follows:
      “10. Second Degree Unlawful Restraint
      “The offense of unlawful restraint in the second degree is defined as follows: ‘A person is guilty of unlawful restraint in the second degree when he restrains another person.’
      “The difference between this offense and kidnapping in the [first] degree is that, in kidnapping, there must not only be a restraining but there must also be an abduction; and an abduction, you will recall, is a restraining with the specific, intent to prevent liberation by the use or threat of physical force or intimidation. Here, however, there need only be a restraining, without the necessity of proof of intent to prevent liberation by force or intimidation.
      “I will repeat the definition of ‘restrain’ here for you. ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him in the place where the restriction first begins or in a place to which he has been moved, without consent. This is the same definition of restrain as applied under kidnapping, and it means the same things here as I defined for you there. I am not going to repeat all that I explained to you under kidnapping, regarding the meaning of intentionally, unlawfully, interference with liberty, consent, and the lack of any required minimum time of restraint or distance of moving. All that I said with respect to those matters under kidnapping you should recall and apply under this offense of unlawful restraint in the second degree.
      “Therefore, if you find that the defendant restrained [the victim] as that term has been defined for you, you should find him guilty of the lesser included offense of unlawful restraint in the second degree. . . .”

       Having concluded that the defendant failed to satisfy the first prong of Whistnant, we need not consider the fourth prong. See State v. McPhee, 58 Conn. App. 501, 517, 755 A.2d 893, cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000).


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    JOYCE GILLOGLY v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19959)
    Lavery, C. J., and Dranginis and Peters, Js.
    Argued November 28, 2000
    officially released January 30, 2001

      Milo J. Altschuler, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).

      Conrad Ost Seifert filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
   Opinion

DRANGINIS, J.

The plaintiff, Joyce Gillogly, appeals from the judgment of the trial court dismissing her appeal from the decision by the defendant commissioner of motor vehicles (commissioner) suspending her license to operate a motor vehicle for six months pursuant to General Statutes § 14-227b and denying her motion to reargue. On appeal, the plaintiff claims that the court improperly (1) found sufficient evidence in the record to support the hearing officer’s conclusion that the police lawfully stopped the plaintiffs vehicle and (2) abused its discretion by reversing an evidentiary ruling of the hearing officer. The plaintiff further claims that the suspension of her license violates article first, §§ 7 and 9, of the constitution of Connecticut because the police did not have a reasonable and articulable suspicion of criminal activity to justify a stop of her vehicle. We affirm the judgment of the trial court on the evidentiary issues and, accordingly, we need not address the plaintiffs constitutional claim.

The following facts and procedural history are necessary for our resolution of this appeal. On January 22, 1999, at approximately 3:10 p.m., while assigned to a school crossing post, Officer James Garfield of the Milford police department was flagged down by an unidentified school bus driver. The bus driver informed Garfield that he had observed a blue car driving erratically directly behind his bus and that it had tried to pass the bus at a previous stop. When the bus pulled away, Garfield blocked the road in front of the blue car and signaled for its driver to pull to the side of the road. The driver, later identified as the plaintiff, ignored his request and continued to proceed slowly to a nearby stop sign. Garfield then walked to the driver’s side window, attempted to open the door and again ordered the plaintiff to stop. The vehicle then rolled backward and finally came to a stop.

Garfield immediately detected the odor of alcohol on the plaintiff’s breath. A second police officer, Tom Bassett, arrived at the scene and also detected the odor. Both officers observed that the plaintiff was unsteady and had slurred speech. She refused to perform any field sobriety tests. The plaintiff was arrested and charged with operating a motor vehicle while under the influence of liquor, drugs or both in violation of General Statutes § 14-227a. She further refused to perform a Breathalyzer test.

On January 28, 1999, the commissioner notified the plaintiff that, pursuant to § 14-227b, her license to operate a motor vehicle would be suspended for six months effective February 21, 1999. On February 23, 1999, at the plaintiffs request, a hearing was held to determine if she had been operating her vehicle under the influence of liquor, drugs or both.

At the hearing, the plaintiff, represented by counsel, objected to the admission of Bassett’s police report. The plaintiff argued that the report, which detailed the incident, contained hearsay because it referred to statements made by the bus driver, other police officers including Garfield, and another driver who witnessed the plaintiffs driving. The hearing officer agreed to redact only those statements made by the bus driver, whereupon the report was submitted into evidence. After the hearing, the hearing officer found that the police had probable cause to arrest the plaintiff on the charge of operating a motor vehicle in violation of § 14-227a, that she was arrested and charged with violating § 14-227a and that she refused to submit to a Breathalyzer test. Consequently, her license was suspended.

The plaintiff appealed pursuant to the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. The court affirmed the hearing officer’s decision and dismissed the plaintiffs appeal. On August 6, 1999, the court further denied the plaintiffs motion to rear-gue. This appeal followed.

The plaintiff first claims that the court improperly found that there was sufficient evidence to support the hearing officer’s conclusion because the hearing officer relied on evidence not in the record, specifically, the bus driver’s statement. She further contends that the court improperly reversed the hearing officer’s decision to exclude the bus driver’s statement from the evidence. She argues that because the hearing officer’s decision to redact the statement was in accordance with the law, the court abused its discretion when it reversed the hearing officer’s evidentiary ruling and relied on the statement to affirm the hearing officer’s finding of probable cause. Because these two claims are intertwined, we address them together.

The following additional facts are necessary to address these claims. At the suspension hearing, the hearing officer clearly stated that he would redact from Bassett’s report the statements made by the bus driver as hearsay. The plaintiff, through her counsel, argued that the police did not have a reasonable and articulable suspicion to justify a lawful stop of her vehicle because they did not observe her driving erratically except when Garfield was trying to open her car door. The hearing officer then asked the plaintiffs counsel about the school bus driver’s statement to Garfield, and the focus of the hearing turned to whether that statement would be sufficient to justify the stop. The plaintiff argued that the bus driver’s statement should not be considered because it was an anonymous tip and presented to the hearing officer a copy of a court decision supporting her argument. The hearing officer considered the decision offered by the plaintiff and determined that it was distinct from the case before him.

During the course of the proceedings, there was no additional discussion regarding which statements in Bassett’s report would be redacted. Further, Bassett’s report, as contained in the record, is devoid of any marks indicating that the hearing officer redacted certain statements.

Ultimately, in his decision rendered February 24, 1999, the hearing officer concluded that the stop was lawful on the ground that the police officer had spoken with an unidentified bus driver who reported the plaintiffs erratic driving and that the officer thereafter immediately stopped the plaintiffs vehicle to investigate.

On appeal to the trial court, the plaintiff argued that the hearing officer’s decision was in error because there was insufficient evidence to support the finding that the police had a reasonable and articulable suspicion of criminal activity to justify a stop of her vehicle. The court found that although the bus driver’s statement was purportedly redacted from the record, it was the basis for the hearing officer’s finding of probable cause. It further found, however, that the hearing officer’s initial decision to exclude the statement from the record was improper on the ground that hearsay is admissible in an administrative context to show probable cause. Consequently, it upheld the hearing officer’s decision, ruling that “the bus driver’s report to the police was clearly admissible evidence and was properly considered by the hearing officer . . . .” We conclude that the court was incorrect in its reasoning, but reached the proper result.

It is well established that “[t]his court can sustain a judgment on a different theory than that adopted by the trial court.” State v. Mierez, 24 Conn. App. 543, 547, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991). Thus, we affirm the court’s judgment on the ground that the hearing officer did not redact the bus driver’s statement from the police report and, therefore, it was properly considered as evidence by the trial court.

The standard of review in administrative appeals is well settled. “Judicial review of an agency decision is limited. . . . [W]e must decide, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . .

“Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence. . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary. . . . Pursuant to our standard of review, we examine whether the conclusions of law reached by the trial court resulted from a correct application of the law to the facts of this case.” (Citations omitted; internal quotation marks omitted.) Alexander v. Retirement Board, 57 Conn. App. 751, 757-58, 750 A.2d 1139, cert. denied, 254 Conn. 902, 755 A.2d 217 (2000); see also Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 581, 735 A.2d 231 (1999).

After reviewing the transcript, we conclude that although the hearing officer stated that he would redact the bus driver’s statement and exclude it from evidence, he did not, in fact, do so. Rather, he considered the bus driver’s statement, heard argument from the plaintiff regarding its effect and based his decision on the statement.

We further note that the plaintiff failed to move for reconsideration of the hearing officer’s decision on the basis of an error of fact or law pursuant to General Statutes § 4-181a. Although the plaintiff asserted at oral argument that such a motion was filed, the record reveals no such motion, nor did the plaintiff move to correct the record on appeal pursuant to Practice Book § 7-9.

Because the transcript reveals that the hearing officer did not exclude the bus driver’s statement and the plaintiff did not move for reconsideration, we conclude that the statement of the bus driver properly was part of the record. We therefore conclude that the court did not abuse its discretion when it considered the statement of the bus driver to determine whether the police had a reasonable and articulable suspicion to justify a stop of the plaintiffs vehicle.

The plaintiff does not argue on appeal that there was no probable cause to arrest her even if the bus driver’s statement properly was part of the record. We note, however, that the record before the hearing officer and the trial court clearly supports the hearing officer’s finding of probable cause. Not only did the bus driver indicate that the plaintiff was driving erratically, but the plaintiff initially failed to comply with Garfield’s order to stop and, when she did stop her vehicle, she allowed it to roll backward. In addition, both officers at the scene heard her slurred speech and observed her unsteady gait.

Having determined that the bus driver’s statement was part of the record, we affirm the court’s conclusion that the record contains sufficient evidence to support the hearing officer’s finding of probable cause. We therefore need not discuss the plaintiffs constitutional claim, which founders because of that finding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227b (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.”

       The plaintiff initially identified, in addition to the court’s judgment of dismissal of her appeal, the denial of her motion to reargue as the judgment from which she appeals. The plaintiffs statement of issues on appeal, appellate brief and oral argument did not, however, address the denial of the motion to reargue as a basis for appeal. Therefore, we will consider only those claims that relate to the judgment of dismissal. See State v. Perez, 57 Conn. App. 385, 387 n.3, 748 A.2d 384 (2000).

       The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

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

       See footnote 2.

       The hearing officer stated: “Counsel, with respect to the unidentified school bus driver, that part of the report I will redact, but as to other statements in here, Officer Garfield specifically, there has been case law that says in administrative hearings the police officer can deem as reliable the reports conveyed to him by other police officers as they can be identified; so, as to the statements of the school bus driver, as I stated previously, I will try to, as best as I can, redact those as to Officer Garfield.”

       The hearing officer stated: “Okay. You don’t think alerting of the police on school patrol duty to an erratic operator by the school bus driver [was] sufficient to make a stop for an inquiry?”

       General Statutes § 4-181a (a) (1) provides in relevant part: “[A] party in a contested case may, within fifteen days after the personal delivery or mailing of the final decision, file with the agency a petition for reconsideration of the decision on the ground that: (A) An error of fact or law should be corrected . If the agency grants the request for reconsideration, the agency is then required to conduct additional proceedings “as may be necessary to render a decision modifying, affirming, or reversing the final decision.” General Statutes § 4-181a (a) (3).

       Practice Book § 7-9 provides: “The clerk may, when so directed by a judicial authority, make up, amend and complete any imperfect or unfinished record in such manner as the judicial authority may direct.”


text:
    STATE OF CONNECTICUT v. PAUL R. GUITARD
    (AC 19285)
    Lavery, C. J., and Sehaller and Hennessy, Js.

      Argued October 16, 2000
    officially released January 30, 2001

      Tricia Jessica Johnson, with whom, on the brief, was Claudia D. Jones, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Mark Solak, state’s attorney, and Vincent J. Dooley, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Paul Guitard, appeals from the judgment of conviction, rendered after a trial to the court, of three counts of assault in the second degree in violation of General Statutes § 53a-60 and four counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly denied his (1) request for standby counsel and (2) motion for judgment of acquittal. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On November 8,1996, the defendant arrived at the home of his former wife to pick up his two minor sons, Daniel, age six, and Raymond, age eight. Approximately thirty minutes after the defendant picked up his sons, his vehicle crossed the center line of a highway and collided head-on with another vehicle.

Thereafter, state troopers at the scene of the accident questioned the defendant while emergency medical service personnel attended to his children. The children received serious injuries as a result of the collision and were rushed to an intensive care unit. Daniel suffered severe head trauma from a depression in his skull, and Raymond suffered neck trauma that required a neck brace. The driver of the second vehicle suffered multiple fractures to his left leg.

Rescue and law enforcement personnel at the accident scene made a number of observations regarding the defendant’s condition during the thirty-five minutes it took them to remove him from his vehicle. The troopers detected a strong odor of alcohol from the defendant and found five empty beer cans in a cooler located in the vehicle. The emergency workers who removed the defendant from his vehicle also noticed the odor of alcohol. Blood tests indicated that the defendant had a blood alcohol content of 0.08 percent. At the time of the accident, the defendant also was taking medication, which, according to his own testimony, can interfere with the breakdown of alcohol and allow more alcohol into the bloodstream.

Accident reconstructionists who analyzed the accident concluded that the collision occurred four and one-half feet over the yellow line and in the lane of oncoming traffic. An analysis of the skid marks from the defendant’s vehicle indicated that he did not apply his brakes or swerve away from the oncoming vehicle. There was no evidence adduced to establish a mechanical failure of the vehicle.

The defendant was arrested on January 3, 1997, and was charged with three counts of assault in the first degree in violation of General Statutes § 53a-59, three counts of assault in the second degree in violation of § 53a-60, three counts of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d and four counts of risk of injury to a child in violation of § 53-21. Private counsel entered an appearance for the defendant on February 24, 1997. The court scheduled a pretrial conference for March 26, 1997, at which the defendant pleaded not guilty to all of the charges and elected to be tried to a jury.

On July 8, 1998, the defendant filed a pro se appearance. On August 6,1998, the court canvassed the defendant regarding the pro se appearance and concluded that he had waived his right to counsel. The defendant also changed his election to be tried to a jury and requested a trial to the court. On October 15, 1998, the court denied the defendant’s oral motion for judgment of acquittal. On November 20, 1998, the defendant was found not guilty of the counts of assault in the first degree and assault in the second degree with a motor vehicle, and guilty of the counts of assault in the second degree and risk of injury to a child.

On November 25, 1998, the defendant filed a motion for judgment of acquittal and a motion for a new trial, which the court denied on January 25, 1998. The court imposed a total effective sentence of fifteen years, execution suspended after eighteen months, with five years probation. Additional facts will be discussed where relevant to the issues on appeal.

I

A

The defendant claims that the court improperly denied his motion for standby counsel. Specifically, the defendant argues that the court’s failure to inquire into his financial status when he claimed to be indigent denied him his constitutional right to counsel. We disagree.

The following additional facts are relevant to this issue. On August 6, 1998, before his trial began, the defendant waived his right to counsel. During the canvassing, the defendant admitted that he “exceed[ed] the guidelines for apublic defender.” On September 1,1998, the defendant moved for appointment of standby counsel, claiming that he could not afford counsel and that he desired standby counsel from the public defender’s office for consultation purposes. The defendant admitted that he was employed and that “as such I don’t meet the strict requirements of indigency.” The court denied the motion, stating that “I don’t feel that what you’ve said to the court rises to the level of extraordinary circumstances, and I frankly feel that it’s being asked for purposes of delay.”

“We begin our analysis with the proposition that a defendant does not have a state or federal constitutional right to standby counsel. See State v. Gethers, 197 Conn. 369, 385-87, 497 A.2d 408 (1985). Once a defendant has properly embarked on the path of self-representation, his constitutional right to counsel ceases. . . . The defendant’s claim that he was denied the effective assistance of counsel is without merit because after deciding to proceed pro se, he had no constitutional right to the effective assistance of counsel in any capacity. The language and application of Practice Book §§ 962 through 964 [now §§ 44-4 and 44-5] are based on United States Supreme Court precedent and, accordingly, meet constitutional standards.” (Citation omitted.) State v. Oliphant, 47 Conn. App. 271, 281, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).

At the outset, we note that the defendant does not call into question the validity of his initial waiver of counsel or the court’s decision to allow him to proceed pro se. His claim attempts, in part, to equate a denial of a request for standby counsel with a denial of his right to counsel. Once the defendant “embarked on the path of self-representation,” however, his constitutional right to counsel ceased. Id. His constitutional claim is, therefore, without merit.

B

We next address the defendant’s claim that the court’s refusal to grant his motion for standby counsel constitutes an abuse of discretion. We disagree.

“The standard of review to be applied when reviewing a denial of a request for alternate counsel is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request.” State v. High, 12 Conn. App. 685, 690, 533 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 74 (1988). The appointment of counsel is governed by Practice Book § 44-4, which provides that “[wjhen a defendant has been permitted to proceed without the assistance of counsel, the judicial authority may appoint standby counsel, especially in cases expected to be long or complicated or in which there are multiple defendants. A public defender or special public defender may be appointed as standby counsel only if the defendant is indigent and qualifies for appointment of counsel under General Statutes § 51-296, except that in extraordinary circumstances the judicial authority, in its discretion, may appoint a special public defender for a defendant who is not indigent.” “[T]he applicant for public defender services bears the burden of proving indi-gency.” State v. Melechinsky, 38 Conn. Sup. 464, 467, 451 A.2d 585 (1982).

The defendant, by his own admission and given his state of employment, could not satisfy the statutory definition of “indigent” under Practice Book § 44-4 and General Statutes § 51-297 (f). See footnote 1. The only basis, therefore, for the appointment of a public defender would be if the defendant could establish that there were “extraordinary circumstances”; Practice Book § 44-4; mandating such an appointment. Other than his statement that he was filing for bankruptcy, the defendant made no offer of proof as to the facts of his situation that would convince us that the court abused its discretion in denying his motion for appointment of standby counsel. “The defendant’s failure to sustain his burden of proving indigency fully supports the trial court’s denial of his application.” State v. Melechinsky, supra, 38 Conn. Sup. 467.

The defendant cites State v. Hamilton, 228 Conn. 234, 636 A.2d 760 (1994), as a basis for concluding that the court abused its discretion. The facts in the present case, however, are not analogous to those in Hamilton. The issue in Hamilton was whether the court’s denial of a motion for a continuance constituted an abuse of discretion. See id., 239. A denial of a request for standby counsel was not at issue. The court in the present case did not, in explaining why it considered the defendant’s motion to be a delay tactic, violate any rule of law set forth in Hamilton.

The defendant further argues that the court was required to conduct an evidentiary hearing before denying his motion to determine whether his situation merited the appointment of standby counsel. “We consistently have held that, unless otherwise required by statute, a rule of practice or a rule of evidence, whether to conduct an evidentiary hearing generally is a matter that rests within the sound discretion of the trial court.” State v. Nguyen, 253 Conn. 639, 653, 756 A.2d 833 (2000). Moreover, the office of the public defender is the only entity upon which a statutory duty is imposed to investigate a claim of indigency. See General Statutes § 51-297 (a). The court, therefore, had no statutory duty to conduct an evidentiary hearing and did not abuse its discretion in failing to conduct such a hearing.

The defendant also relies on State v. Harris, 5 Conn. Cir. Ct. 313, 250 A.2d 719 (1968), to support his argument that an evidentiary hearing was required. This reliance is misplaced. In Harris, the defendant applied for a public defender and, in doing so, attested, under oath, to his indigence. Id., 313-14. The court granted the request and appointed a public defender. After the defendant was convicted, the state moved to discharge the public defender, and the court granted the motion without holding a hearing. On appeal, the trial court’s action was held to be improper. Id., 315-16.

The present case is distinguishable from Harris. Unlike in Harris, the defendant here did not fill out any application under oath attesting to his indigence. Likewise, the defendant had not been found to be indigent like the defendant in Hams. The defendant here was represented by a private attorney, whereas the defendant in Harris was represented by a public defender. Finally, the defendant here in fact admitted that he did not satisfy the definition of indigence. We conclude that the court did not abuse its discretion in denying the defendant’s motion for standby counsel.

II

The defendant’s second claim is that there was insufficient evidence to convict him of assault in the second degree and risk of injury to a child. Specifically, the defendant argues that there was insufficient evidence that he caused the accident, that he caused the injuries resulting from the accident and that he was reckless. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).

“As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 586-87, 734 A.2d 991, cert. denied, 250 Conn. 919, 738 A.2d 659 (1999).

A

To convict a defendant of assault in the second degree, the state must prove that the defendant recklessly caused serious physical injury to another person by means of a deadly weapon or a dangerous instrument. General Statutes § 53a-60 (a) (3). The defendant specifically attacks the evidence adduced by the state to establish the first and second elements, claiming that the state failed to establish recklessness and causation beyond a reasonable doubt.

General Statutes § 53a-3 (13) defines “recklessness” and provides that “[a] person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” Furthermore, General Statutes § 53a-7 provides that “when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

In the present case, the state adduced evidence that the defendant had consumed sufficient quantities of alcohol to create a blood alcohol content of 0.08 percent. The defendant also ingested medication, which possibly enhanced the effect of the alcohol that he had consumed. The defendant admitted that he was fatigued when he picked up the children on the evening of the accident. Considering the combined effects of his fatigue and alcohol consumption, the jury reasonably could have concluded that operating a motor vehicle at the time of the accident constituted a substantial and unjustifiable risk.

The defendant also attacks the court’s finding that he caused the accident. “In order for legal causation to exist in a criminal prosecution, the state must prove beyond a reasonable doubt that the defendant was both the cause in fact, or actual cause, as well as the proximate cause of the victim’s injuries. ... In order that conduct be the actual cause of a particular result it is almost always sufficient that the result would not have happened in the absence of the conduct; or, putting it another way, that but for the antecedent conduct the result would not have occurred. . . . On the other hand, proximate cause requires that the forbidden result which actually occurs must be enough similar to, and occur in a manner enough similar to, the result or manner which the defendant intended (in the case of crimes of intention), or the result or manner which his reckless or negligent conduct created a risk of happening (in the case of crimes of recklessness and negligence) that the defendant may fairly be held responsible for the actual result even though it does differ or happens in a different way from the intended or hazarded result . . . .” (Citations omitted; internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 5-6 n.6, 653 A.2d 161 (1995).

The defendant’s attack on the evidence that was adduced to prove that he caused injury to the victims of the accident is similarly unavailing. The state produced accident reconstruction testimony that the defendant crossed into the lane of oncoming traffic and did not appear to decelerate his vehicle. Considering the evidence that he had consumed alcohol and medication that enhanced the effect of the alcohol, the court’s conclusion that he was both the actual .and proximate cause of the injuries is not unreasonable. We will not now entertain the defendant’s request that we discount the state’s evidence and give greater weight to evidence proffered by him. “The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony and, therefore, has the right to accept part or disregard part of a witness’ testimony.” In re Hector L., 53 Conn. App. 359, 366, 730 A.2d 106 (1999).

B

To convict a defendant of risk of injury to a child, the state must prove that the defendant “wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . .” General Statutes § 53-21 (1). The defendant again attacks the evidence establishing causation and recklessness.

To convict a defendant of risk of injury to a child, a court must find that the defendant “acted wilfully and that he either intended the resulting injury to the victim, or he knew that the injury would occur, or that his conduct was of such a character that it demonstrated a reckless disregard of the consequences.” (Internal quotation marks omitted.) State v. Cutro, 37 Conn. App. 534, 539, 657 A.2d 239 (1995). As we stated in part II A of this opinion, the record adequately supports the court’s finding that the defendant acted recklessly and that his recklessness caused injury to his children. We therefore conclude that there was sufficient evidence for the court to convict the defendant of assault in the second degree and risk of injury to a child.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 51-296 (a) provides in relevant part: “In any criminal action . . . the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . . If it appears to the court at a later date that, if convicted, the sentence of an indigent defendant for whom counsel has not been appointed will involve immediate incarceration or a suspended sentence of incarceration wi1h a period of probation, counsel shall be appointed prior to trial or the entry of a plea of guilty or nolo contendere.”
      General Statutes § 51-297 provides in relevant part: “(a) A public defender, assistant public defender or deputy assistant public defender shall make such investigation of the financial status of each person he has been appointed to represent or who has requested representation based on indigency, as he deems necessary. He shall cause the person to complete a written statement under oath or affirmation setting forth his liabilities and assets, income and sources thereof, and such other information which the commission shall designate and require on forms furnished for such purpose.
      “(f) As used in this chapter ‘indigent defendant’ means (1) a person who is formally charged with tile commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation and (2) a child who has a right to counsel under the provisions of subsection (a) of section 46b-135 and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation.
      “(g) If the Chief Public Defender or anyone serving under him determines that an individual is not eligible to receive the services of a public defender under this chapter, the individual may appeal the decision to the court, before which his case is pending.”

       See footnote 1.

       General Statutes § 53a-3 (7) provides in relevant part that a" ‘[djangerous instrument’ . . . includes a ‘vehicle’ as that term is defined in this section . . . .”
      General Statutes § 53a-3 (8) provides in relevant part that “ ‘[v]ehicle’ means a ‘motor vehicle’ . . . .”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. WILLIE SHANNON
    (AC 18741)
    Lavery, C. J., and Schaller and Cretella, Js.
    Argued October 26, 2000
    officially released January 30, 2001

      Sarah F. Summons, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, Richard L. Palombo, Jr., supervisory assistant state’s attorney, and Jeffrey Lee, deputy assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Willie Shannon, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of sentences imposed on September 13, 1991, and November 6, 1996. The defendant claims that the court improperly found that (1) he violated the terms of his probation on the basis of evidence that was neither reliable nor probative and (2) he could no longer benefit from probation in violation of his due process rights. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On September 13, 1991, the defendant was convicted of possession of narcotics and criminal impersonation, and sentenced to twelve years imprisonment, execution suspended after seven years, with three years probation. The term of probation commenced on July 11, 1996. On November 6, 1996, the defendant was convicted of possession of narcotics and sentenced to three years, execution suspended, with three years probation commencing on the same day. The terms of the defendant’s probation expressly provided: “Do not violate any criminal laws of the United States, this state or any other state.” On August 12, 1997, the defendant was arrested for a narcotics offense that occurred on February 25, 1997. On June 4, 1998, the court held a violation of probation hearing.

At the probation revocation hearing, the state called to the witness stand a number of witnesses. The first witness was Michele Emery, the defendant’s probation officer, who had issued warrants for probation violation after the August, 1997 arrest. She testified on cross-examination that she had had no problems with the defendant prior to his arrest. The state then called to the witness stand a series of law enforcement witnesses to testify to the events that transpired on February 25, 1997. Edwin Kohl, a detective with the New Haven police department working undercover on a counter-narcotics operation, testified that he purchased crack cocaine from an individual whom he later identified as the defendant. A second officer from the New Haven police department, Richard Pelletier, who had videotaped the operation, identified the defendant as the individual whom he videotaped selling cocaine to Kohl. Pelletier also testified to firsthand observations of a third police officer purchasing cocaine from the defendant. Joel Milzoff, a toxicology specialist with the department of public health, testified that he had positively identified the substance delivered to him by the police department as crack cocaine. Finally, another witness to the transaction, Jeffrey Lewis, reviewed the videotape footage and identified himself as one party recorded on the videotape, but could not identify the defendant as the individual selling cocaine on the videotape. Lewis further testified that he had known the defendant for a number of years and never knew the defendant to wear a hood like the one worn by the individual identified by the other witnesses as the defendant on the videotape footage.

On June 8, 1998, the court concluded that the defendant had violated the terms of his probation and sentenced him to serve the remaining period of his five year sentence to run concurrently with the three year term for the second conviction. The defendant appeals from the judgment finding him in violation of the terms of his probation.

“[A] probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. . . . General Statutes § 53a-32 (a).” (Citation omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994). In this first stage, “[t]he state must establish a violation of probation by a fair preponderance of the evidence.” State v. Reilly, 60 Conn. App. 716, 725, 760 A.2d 1001 (2000).

When the court finds a violation of the terms of probation, it proceeds to the second stage to determine whether the defendant’s probation should be revoked. “When reviewing the second component of a probation revocation hearing, an appellate court must determine whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In making this second determination, [whether the defendant’s probationary status should be revoked] the trial court is vested with broad discretion. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling . . . [and] [r]eversai is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Bostwick, 52 Conn. App. 557, 563-64, 728 A.2d 10, appeal dismissed, 251 Conn. 117, 740 A.2d 381 (1999).

The state adduced sufficient evidence to establish by a preponderance of the evidence the defendant’s involvement in the sale of narcotics. This offense sufficed to establish a violation of the terms of the defendant’s probation, specifically, that he “not violate any criminal laws of . . . this state . . . .” Once the court found that the defendant had violated the terms of his probation, the question of whether the defendant’s probationary status should be revoked was a matter within the court’s broad discretionary powers. Reviewing the record before us, we conclude that the court did not abuse its discretion in revoking the defendant’s probation.

The judgment is affirmed.

       The defendant also claims that the state violated his due process and statutory rights by failing to process his alleged probation violation within six months and by failing to bring a hearing on the matter within twelve months from the alleged violation. The defendant did not preserve this claim and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant failed to develop this claim sufficiently in the trial court for this court to review the alleged delay for constitutional infirmity under the standard for speedy trials set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which requires the examination of four factors, which are the “[IJength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 568, 747 A.2d 487 (2000).

       The court initially imposed consecutive terms of imprisonment, but modified the sentence to concurrent terms following a motion to correct the sentence.