author: HARPER, J.

text:
    STATE OF CONNECTICUT v. CALVIN N.

    (AC 29020)
    Harper, Robinson and West, Js.

      Argued November 20, 2009
    officially released June 29, 2010

      William B. Westcott, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Gail P. Hardy, state’s attorney, and, on the brief, Anthony J. Spinella, assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

HARPER, J.

The defendant, Calvin N., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). The defendant claims that the trial court improperly (1) restricted his cross-examination of the complainant and (2) failed to inquire as to the existence of a conflict of interest involving his trial counsel. We reverse the judgment of the trial court and remand the case to that court for a new trial.

At trial, the state presented evidence that in the summer of 2004, the defendant resided with the complainant, the complainant’s mother and four of the complainant’s younger siblings. At that time, the female complainant was fourteen years old. According to the complainant, on four separate occasions during the summer of 2004, the defendant approached her from behind, while she was washing dishes at a kitchen sink, and touched her breasts. Also, the complainant testified that, on August 24, 2004, the defendant approached her while she was in her mother’s bedroom, held her down on a bed and penetrated her vagina with one of his fingers. The defendant testified, denying that he had touched the complainant’s breasts or had inserted his finger into her vagina, as alleged. The defendant’s attorney argued that the complainant had fabricated the allegations against the defendant in an attempt to get him out of her residence. The defendant’s attorney suggested that the fabrication occurred, in part, because the defendant restricted the complainant’s activities in her home, such as her telephone and computer privileges. Additional information will be set forth as necessary.

The defendant’s first claim is that the court improperly restricted his cross-examination of the complainant, thus violating his right to confront his accuser. We agree.

The following additional facts and procedural history are relevant to the defendant’s claim. Prior to the evi-dentiary phase of the trial, the state filed a motion in limine “to preclude any evidence of untruthfulness [concerning the complainant] with respect to her allegations of sexual assault by the defendant.” In the motion, the state explained that it expected the defense to attempt to impeach the complainant by introducing a handwritten letter that, on its face, was authored by the complainant and, in which, the complainant admitted to her mother that she had fabricated her allegations of sexual abuse by the defendant. The state argued that such cross-examination of the complainant by the defendant would be unduly prejudicial because it would entitle the state to rebut the cross-examination by demonstrating that the complainant’s mother authored the letter and that she was arrested and charged with several crimes in connection with the letter. Additionally, the state represented that, in connection with its right to rebut the letter, it intended to call as witnesses the police officer who investigated the charges against the complainant’s mother as well as the defendant’s trial attorney, whose role was limited to delivering the letter to the office of the state’s attorney.

During trial, the court heard argument concerning the state’s motion. The prosecutor represented that, in the letter, the complainant allegedly stated that she had fabricated the allegations of sexual abuse because she was upset that the defendant had taken away certain of her household privileges. The prosecutor argued that the only way the state could rebut the defendant’s cross-examination of the complainant concerning the letter was to present testimony that the complainant’s mother had fabricated the letter. The prosecutor argued: “Now, we know that [the complainant] didn’t write that letter, her mother did. . . . The only way I can rehabilitate [the complainant] is through putting testimony in that this is what happened, the mother made this up . . . the state police officer who did the investigation said, yes, the mother wrote this letter. She’s responsible for these claims. And then it directly involves [the defendant’s trial counsel], and that’s what I’m trying to avoid.” The prosecutor reiterated that the role of the defendant’s trial counsel in connection with the letter was limited to delivering the letter to the office of the state’s attorney, at the state’s request. The prosecutor emphasized that he wanted to avoid a mistrial related to calling the defendant’s trial counsel as a witness.

After hearing the representations of the prosecutor, the court stated that it did not believe a mistrial would be warranted “based on the limited amount that [the court knew] about the letter for which the handwriting exemplar was sought.” The court then stated: “I don’t think that it’s at all appropriate to have any questioning about truthfulness of the accuser based on that letter.” The court made clear, however, that the defendant had the right to attempt to impeach the complainant’s credibility by means other than the letter. The court ruled: “I think the limitation should be [that] if there’s any other allegations of untrathfulness or [that the complainant is] not being credible, unrelated to that letter, certainly those come in. And with regard to the allegation in the letter, if there’s a source that you have that is other than the information in that letter, then I think you can cross-examine on that. But I think anything in that letter is suspect; well, it’s beyond suspect.” The defendant’s attorney replied, “[r]ight.”

Before the court issued its ruling, the defendant’s attorney stated that the defense had means other than the letter by which to impeach the complainant’s credibility and that he was perplexed by the state’s attempt to preclude all means of impeaching the complainant’s credibility. He stated that such an approach was patently unfair. After the court issued its ruling, the following colloquy occurred:

“[Defense Counsel]: Although for what it’s worth, Your Honor, [the complainant’s mother] hasn’t been convicted of anything yet. It’s accusations in her case, as well.
“The Court: Right. I do understand.
“[Defense Counsel]: But I do have other, I don’t have to rely on that letter as to—
“The Court: Okay. I think, you know, absolutely you have the right to cross-examine for impeachment and credibility, but not as to the letter and not as to the allegations in the letter unless you have an alternative source.
“[Defense Counsel]: Right.
“[The Prosecutor]: That’s what I was trying to avoid.
“The Court: Okay. All right. That’s my ruling. Somehow, I will craft that in writing and give it to you both at some point.” The court issued a written order consistent with its ruling, and neither the court nor either party revisited the issue during the remainder of the trial.

First, we address whether the claim raised on appeal is reviewable. The defendant posits that the claim was “fully preserved for review” by virtue of the hearing related to the state’s motion in limine and the court’s ruling on the motion. In the alternative, the defendant requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The state urges this court to conclude that, at trial, the defendant’s attorney waived any objection to the court’s ruling limiting cross-examination of the complainant. In this vein, the state observes that the defendant did not object to the court’s ruling, either orally or in writing, and asserts that trial counsel, through his statements to the court, had assented to the court’s ruling. “[Wjaiver is the intentional relinquishment or abandonment of a known right. ... [A] valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review [and it] also thwarts plain error review of a claim.” (Citation omitted; internal quotation marks omitted.) State v. Wells, 111 Conn. App. 84, 88-89, 957 A.2d 557, cert. denied, 289 Conn. 958, 961 A.2d 423 (2008). Having reviewed the relevant transcripts from the trial, we do not agree that the defendant either explicitly or implicitly waived any objection to the court’s ruling. Although the record does not reflect that the defendant’s attorney objected to the court’s ruling, his statements at the hearing on the state’s motion did not convey the defendant’s acquiescence in or agreement with the court’s ruling.

The defendant did not waive this claim, but the record does not reflect that he properly preserved the claim for our review, as he did not raise the present claim before the trial court. Thus, we must determine whether the defendant’s unpreserved claim is reviewable under Golding. The first prong of Golding is satisfied, as the record is adequate for review. With regard to the second prong of Golding, the state asserts that the claim is evidentiary, rather than constitutional in nature. The defendant, however, argues that he was deprived of his right to confrontation under the federal constitution. “One of the required conditions under Golding is that the claim is of constitutional magnitude alleging the violation of a fundamental right. . . . The appellate tribunal is free ... to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . [State v. Golding, supra, 213 Conn. 239-40]. The defendant bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. . . . The defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right. . . . Generally, the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Wells, supra, 111 Conn. App. 90.

Here, the defendant asserts that the court violated his sixth amendment right to confrontation when, relying solely upon the state’s representations concerning the authorship of the letter, it denied him all meaningful cross-examination into a legitimate area of inquiry. Here, the court did not rely expressly on any rule of evidence in precluding the letter, and, as the defendant argues, the prior inconsistent statements in the handwritten letter would have afforded him a significant ground on which to challenge the complainant’s credibility on cross-examination. Thus, although the claim centers around the court’s preclusion of evidence, it is not merely evidentiary in nature but fundamentally implicates the defendant’s sixth amendment right to confront his accuser and, therefore, satisfies Golding’s second prong.

Turning to Golding’s third prong, we must determine whether a constitutional violation clearly exists and clearly deprived the defendant of a fair trial. “The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him .... The primary interest secured by confrontation is the right to cross-examination. ... As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. . . . [Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. . . . Further, the exclusion of defense evidence may deprive the defendant of his constitutional right to present a defense. . . .

“However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Thus, [t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . [Furthermore, the] trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . [Finally, the] proffering party bears the burden of establishing the relevance of the offered testimony. . . .

“Although [t]he general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. . . . The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . Indeed, if testimony of a witness is to remain in the case as a basis for conviction, the defendant must be afforded a reasonable opportunity to reveal any infirmities that cast doubt on the reliability of that testimony. . . . The defendant’s right to cross-examine a witness, however, is not absolute.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 273 Conn. 330, 338-40, 869 A.2d 1224 (2005).

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.” (Citation omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).

On its face, the handwritten letter at issue, dated November 28, 2005, was written by the complainant and addressed to her mother. The letter stated that the complainant had fabricated her allegations of sexual abuse by the defendant because she had been upset with the defendant for restricting her telephone and computer privileges. In ruling on the state’s motion to preclude cross-examination related to the letter, the court made clear that the only information it knew about the letter was that a handwriting exemplar had been sought in relation to the letter. During the hearing, the prosecutor stated that it was obvious that the complainant’s mother authored the letter and that, if the letter became a subject of cross-examination, he would expect to call a police investigator and the defendant’s trial counsel. The defendant’s attorney did not state that the factual issue concerning the authorship of the letter was not in dispute, but he noted that the state’s case against the complainant’s mother was based only on accusations made by the state. The court, however, apparently relying on the state’s allegations and nothing more, deemed the letter to be “suspect” and precluded any cross-examination related to it. The court was not presented with any evidence related to the authorship of the letter, did not hold a hearing related to the authenticity of the letter and did not make any finding concerning the authorship of the letter.

In confronting his accuser, the defendant had the right to present relevant and admissible evidence. The relevance of the letter is clear; if it was authored by the complainant, its existence made it significantly less likely that the complainant’s allegations were credible. With regard to the admissibility of the letter, the court merely stated that the letter was “suspect . . . .” On the record before us, we cannot conclude that a sound basis in law existed for the court’s preclusion of this evidence or any cross-examination related to the evidence. The court’s preclusion of the letter reflected an abuse of discretion.

As we already have observed, the precluded inquiry was of a significant nature in that it had a great potential of casting doubt on the complainant’s credibility. Although the defendant had the opportunity to, and did, cross-examine the complainant, the defendant did not have the opportunity to question the complainant about the letter. The court’s ruling had the effect of depriving the defendant of a significant means of attacking the complainant’s version of events. It was central to the defendant’s theory of defense to demonstrate that the complainant had fabricated her allegations of abuse to retaliate against the defendant because he was overly controlling and she resented his presence in her home. The statements in the letter were directly related to these matters. Clearly, such area of inquiry was completely foreclosed and was not covered by any permitted areas of inquiry. For these reasons, we conclude that the restriction on the defendant’s cross-examination of the complainant violated his right to confrontation and clearly deprived him of a fair trial.

With regard to Golding's fourth prong, the state argues that the court’s ruling was harmless beyond a reasonable doubt “because the defendant cross-examined the complainant about the subjects covered in the letter without restriction.” In this regard, the state accurately observes that, at trial, the defendant cross-examined the complainant about her resentment toward him because he had restricted her telephone and computer privileges, as well as whether she had fabricated her allegations against him. Although these topics were covered during cross-examination by means of evidence unrelated to the letter, and the complainant denied that her allegations were fabricated, the defendant was, because of the court’s ruling, unable to inquire as to whether the complainant had authored a letter to her mother in which she admitted that the allegations had been fabricated. The precluded inquiry was highly relevant to assessing the complainant’s credibility. We do not conclude that the areas of inquiry that were permitted were similar in nature or would have had the same effect on the jury as an inquiry related to the letter. The line of inquiry related to the letter was not, and, in keeping with the court’s ruling, could not have been covered during cross-examination. The defendant was deprived of the right to present the prior inconsistent statement to the complainant and to ask her about it before the jury. Because the precluded inquiry was directly related to the complainant’s motive and could not have been addressed by any related inquiry during cross-examination, we do not conclude that the constitutional violation was harmless beyond a reasonable doubt.

For all of the foregoing reasons, we conclude that the defendant has prevailed under Golding. The constitutional deprivation affected all of the crimes with which he stands convicted, and he is entitled to a new trial as to all of these crimes.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The court imposed a total effective sentence of twelve years imprisonment.

       “[I]f a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, [supra, 213 Conn. 239-40]. ... A party is obligated . . . affirmatively to request review under these doctrines. . . . Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if the following conditions are satisfied: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.” (Citations omitted; internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 324-25, 977 A.2d 209 (2009).

       Also, the defendant claims, for the first time on appeal pursuant to Golding, that the state’s arguments in support of its motion to preclude inquiry related to the letter alerted the court to an apparent conflict of interest involving his trial counsel, that the court improperly failed to investigate whether his trial counsel had a conflict of interest due to his roles as trial counsel and a possible witness at trial and that the court’s failure to investigate the matter amounted to a structural error requiring reversal of his conviction. Given our resolution of the defendant’s first claim, from which we order a new trial, we need not address this claim to resolve the appeal. In determining that we need not address this claim, we are persuaded that this issue is not likely to arise during a new trial.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    DANIEL D’AMICO v. ACE FINANCIAL SOLUTIONS, INC., ET AL.
    (AC 30124)
    Robinson, Alvord and Mihalakos, Js.
    Argued November 12, 2009
    officially released June 29, 2010

      Jennifer B. Levine, with whom was Harvey L. Levine, for the appellant (plaintiff).

      Philip T. Newbury, Jr., for the appellee (named defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Daniel D’Amico, appeals from the summary judgment rendered by the trial court in favor of the defendant ACE Financial Solutions, Inc., on the plaintiffs claims of breach of contract, breach of the implied covenant of good faith and fair dealing, negligent and intentional infliction of emotional distress, and violation of the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., in the processing of his workers’ compensation claim. The plaintiff claims that the court erred in rendering summary judgment on the basis of its determination that his claims were barred by the exclusivity provision of General Statutes § 31-284. We conclude that the court properly rendered summary judgment in favor of the defendant and, accordingly, affirm the judgment of the trial court.

The court’s memorandum of decision reveals the following relevant facts and procedural history. “The plaintiff was employed as a correction officer by the state ... at the Manson Youth Correctional Facility. On September 24, 1992, the plaintiff sustained injuries to his neck, back, shoulder, arm and hand while attempting to restrain an inmate. The plaintiff was also diagnosed as suffering from post-traumatic stress disorder, depression, fibromyalgia, hypertension and reflex sympathetic dystrophy of his right arm, and filed a claim for his injuries under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The state . . . accepted the plaintiffs expenses related to post-traumatic stress disorder and orthopedic injuries as com-pensable but did not accept as compensable expenses related to the plaintiffs claims of depression, fibromyal-gia, hypertension, reflex sympathetic dystrophy of his right arm and treatment at an out-of-state inpatient program. Following a formal hearing on April 12,1999, the workers’ compensation commissioner ordered that the state provide benefits related to all but the hypertension claim. On May 18, 2000, the workers’ compensation review board upheld the commissioner’s order.

“Pursuant to [Public Acts, Spec. Sess., June, 2001, No. 01-07], the state . . . transferred the responsibility for a number of workers’ compensation claims, including the plaintiffs claim, to [the defendant]. [The defendant, a corporation involved in the business of financial derivatives], engaged [Berkley Administrators of Connecticut, Inc. (Berkley)] to administer the claims on [the defendant’s] behalf. On November 19,2003, Berkley filed notice with the workers’ compensation commission that the plaintiffs psychiatric medication and psychiatric treatment would no longer be paid because it was considered palliative and no longer necessary. On February 2,2004, Berkley filed an additional notice with the workers’ compensation commission that treatment for the plaintiffs fibromyalgia would no longer be paid because it was palliative rather than curative treatment.”

The plaintiff filed a nine count complaint dated November 8, 2005. The first five counts were against the defendant, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, negligent and intentional infliction of emotional distress and a violation of CUIPA and CUTPA. Counts six through nine were directed at Berkley and sound in breach of the implied covenant of good faith and fair dealing, negligent and intentional infliction of emotional distress, and violations of CUIPA and CUTPA. The defendant and Berkley filed their answers and special defenses on February 6, 2006.

On April 18, 2007, the defendant and Berkley filed a motion for summary judgment, arguing that the plaintiffs claims were barred by § 31-284 (a) and our Supreme Court’s decision in DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2005), and also that the defendant was not a proper party to the action because it was Illinois Union Insurance Company (Illinois Union), not the defendant, that issued the workers’ compensation policy under which the plaintiff claimed that he is entitled to benefits. The plaintiff filed an opposition to the motion for summary judgment on June 11, 2007, and a supplemental memorandum of law on March 13, 2008. The court heard argument on the motion on April 14, 2008, and, on July 11, 2008, granted the motion for summary judgment on all counts except that count that alleged intentional infliction of emotional distress against Berkley. This appeal followed.

On appeal, the plaintiff claims that the court erred in rendering summary judgment on the basis of its determination that his claim against the defendant was barred by the exclusivity provision, as construed by our Supreme Court in DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 487, and its progeny. Specifically, the plaintiff argues that the defendant is an “independent third party,” as that term is used in General Statutes § 4a-25a, and, thus, DeOliveira does not control this case. We disagree.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ....

“On appeal, [this court] must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the defendant as a matter of law, our review is plenary . . . .” (Citation omitted; internal quotation marks omitted.) Bragdon v. Sweet, 102 Conn. App. 600, 603-604, 925 A.2d 1226 (2007).

Our review of the plaintiffs claim is governed by DeOliveira. In DeOliveira, the issue was whether Connecticut recognizes a cause of action against an insurer for bad faith processing of a workers’ compensation claim. DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 490. The court observed that General Statutes §§ 31-278, 31-288 (b), 31-300 and 31-303 authorize a workers’ compensation commissioner to provide financial remedies to reimburse an employee for costs associated with unwarranted delay in the receipt of workers’ compensation payments. Id., 497. The court concluded that Connecticut did not recognize a cause of action against an insurer for such bad faith processing of a claim. Id., 499. Additionally, the court stated that “we must construe the exclusionary provision’s prohibition on damages actions for injuries arising out of and in the course of . . . employment to include injuries arising out of and in the course of the workers’ compensation claims process.” (Emphasis in original; internal quotation marks omitted.) Id., 504. The court also recognized that “there could be an instance in which an insurer’s conduct related to the processing of a claim, separate and apart from nonpayment, might be so egregious that the insurer no longer could be deemed to be acting as an agent of the employer and, thus, a claim arising from such conduct would not fall within the scope of the act.” Id., 507.

Following DeOliveira, this court had the opportunity to decide whether an employee who has suffered an injury arising out of or in the course of her employment could bring a tort action against her employer to recover for infliction of emotional distress attributable to the employer’s bad faith administration of the employee’s compensation claim. Yuille v. Bridgeport Hospital, 89 Conn. App. 705, 874 A.2d 844 (2005). Even though Yuille concerned an employer, not an insurer, this court considered it “a distinction without a difference” and found that because the case was indistinguishable from DeOliveira, there was no cause of action against an employer for the bad faith processing of a workers’ compensation claim of an employee. Id., 708.

In Almada v. Wausau Business Ins. Co., 274 Conn. 449, 876 A.2d 535 (2005), our Supreme Court adjudicated the question of whether an injured worker could recover against a third party administrator for bad faith administration of the workers’ compensation claim of the employee. The court concluded, as it did in DeOli-veira, that the employee’s remedies for the third party administrator’s alleged bad faith processing of her workers’ compensation claim were limited to those afforded under the act. Id., 457.

The plaintiff argues that the present case is distinguishable from DeOliveira and its progeny because the defendant is an “independent third party,” not an insurer as in DeOliveira, an employer as in Yuille or a third party administrator as in Almada. He further contends that the exclusivity provision of the act contemplates protection only for employers; see General Statutes § 31-284 (a) (“[a]n employer who complies with the requirements of subsection [b] of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment” [emphasis added]); and that the decision in DeOliveira cannot be extended to the facts of this case because no agency relationship exists between the plaintiffs employer and the defendant.

Our Supreme Court has “consistently held that the exclusivity provisions of the [workers’ [c]ompensation [a] ct operate as a total bar to actions brought by employees against their employers for job related injuries. . . . This bar operates whether or not the employee actually collects compensation . . . .” (Citations omitted.) Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989). As noted, DeOliveira recently construed the “exclusionary provision’s prohibition on damages actions for injuries arising out of and in the course of . . . employment to include injuries arising out of and in the course of the workers’ compensation claims process.” (Emphasis in original; internal quotation marks omitted.) DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 504. DeOliveira makes clear that an action for injuries arising out of and in the course of the workers’ compensation claims process is barred by the exclusivity provision.

Although the exclusivity provision speaks solely in terms of employers, DeOliveira, Yuille and Almada have extended its protection to insurers and third party administrators, as well, in the context of the workers’ compensation claims process. There can be no question that any injuries attributable to the defendant, as alleged by the plaintiff, arose out of and in the course of the workers’ compensation claims process. The exclusivity provision, as interpreted by DeOliveira and its progeny, bars the plaintiffs action against the defendant, even if the defendant is an “independent third party,” as alleged by the plaintiff. The court’s granting of the defendant’s motion for summary judgment was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff commenced this action against ACE Financial Solutions, Inc., and Berkley Administrators of Connecticut, Inc. (Berkley), by a complaint dated November 8,2005. On July 31,2008, Berkley filed a cross appeal. The plaintiff moved to dismiss Berkley’s cross appeal for lack of a final judgment on August 5, 2008, which this court granted on November 5, 2008. This court also ordered, sua sponte, that the appeal proceed as to ACE Financial Solutions, Inc., only. Accordingly, we refer in this opinion to ACE Financial Solutions, Inc., as the defendant.

       General Statutes § 31-284 (a) provides: “An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the iivjury or from enforcing any agreement for additional compensation.”

       The plaintiff also claims that the court erred in granting the defendant’s motion for summary judgment because (1) the defendant waived its claim of misjoinder and (2) there were genuine issues of material fact. Because our conclusion that the plaintiffs action against the defendant is barred by the exclusivity provision is dispositive, we need not address these claims.

       Public Acts, Spec. Sess., June, 2001, No. 01-07, authorized the commissioner of administrative services to enter into a loss portfolio arrangement program for the purpose of transferring a group of workers’ compensation claims to an independent third party.

       General Statutes § 4a-25a provides: “The Commissioner of Administrative Services is authorized to enter into a loss portfolio arrangement program for the purpose of transferring a group of workers’ compensation claims to an independent third party. Claims that qualify for transfer to such program shall be approved state employees’ claims which require payment of future indemnify benefits and payment of medical benefits to certain disabled workers. Such program shall provide that the independent third party shall, as part of the assumption of liability, become responsible for the management and administration of the transferred liability and shall require such party to administer the individual workers’ compensation claims in accordance with the Connecticut general statutes.” (Emphasis added.)

       To the extent that the plaintiff argues that this case is one of those that the court in DeOliveira referred to as “so egregious” as to be outside the coverage of the exclusivity provision, we note that the court cited two cases as examples of that proposition. DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 507. In one, an agent of the insurer misrepresented his identity to the claimant, caused her to become emotionally involved with him and then induced her to engage in activities beyond her normal physical capabilities resulting in aggravation of her injuries and a physical and mental breakdown requiring hospitalization when she discovered the deceit. Id., citing Unruh v. Truck Ins. Exchange, 7 Cal. 3d 616, 620-21, 498 P.2d 1063, 102 Cal. Eptr. 815 (1972). The other case involved an insurance carrier that allegedly insisted on a psychiatric examination with the deliberate intent that the plaintiff either commit suicide or drop her claim. DeOliveira v. Liberty Mutual Ins. Co., supra, 507, citing Young v. Hartford Accident & Indemnity Co., 303 Md. 182, 193, 492 A.2d 1270 (1985). This case is not of the type the court had in mind when it carved out the exception for egregiousness.


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. SCOTT E. RHOADS
    (AC 30675)
    DiPentima, C. J., and Harper and Pellegrino, Js.

      Argued April 12
    officially released June 29, 2010

      Martha Hansen, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Mary Jean Kanabis, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Scott E. Rhoads, appeals from the trial court’s finding of guilty following his conditional plea of nolo contendere, pursuant to General Statutes § 54-94a, of assault in the third degree in violation of General Statutes § 53a-61, unlawful restraint in the first degree in violation of General Statutes § 53a-95 and threatening in the second degree in violation of General Statutes § 53a-62. On appeal, the defendant claims that the court improperly denied his motion to dismiss on speedy trial grounds. Because we conclude that the defendant filed a premature appeal and, thus, has not appealed from a final judgment, we dismiss the appeal.

The record reveals the following factual and procedural history. At the time of the plea, the state set forth the following details regarding the defendant’s criminal conduct. The victim and the defendant had been in a dating relationship. While at the defendant’s residence, the defendant struck the victim in the forehead. This caused swelling. The defendant initially prevented the victim from going into the bathroom but eventually allowed her to do so. When she exited the bathroom, the defendant swung at her, brushing the top of her head. He then head-butted the victim and struck her in the face with both hands. He also told the victim that he would have to kill her. Eventually, the defendant left her, and the victim was able to call for help. As a result of the assault, the victim’s left eye was swollen shut and both of her eyes were bruised. Additionally, she suffered a hematoma on her forehead and bruising on her left hand.

Attorney T. J. Morelli-Wolfe represented the defendant following his arrest. The court, Strackbein, J., held a hearing on November 27, 2007, to address the defendant’s request to replace Morelli-Wolfe with new counsel. The court stated that a motion for a speedy trial had been filed on behalf of the defendant and had been granted. The defendant then stated: “I withdraw my motion for [a] speedy trial to obtain counsel . . . .” After being questioned by the court, the defendant again indicated that he wanted to withdraw the speedy trial motion and search for new representation. The court stated that it would grant the defendant three weeks to obtain new counsel and that it would hold in abeyance Morelli-Wolfe’s motion to withdraw as counsel until that time.

On January 16, 2008, the court, Abrams, J., held a hearing on Morelli-Wolfe’s motion to withdraw as counsel. Judge Abrams noted that the defendant’s motion for a speedy trial had been withdrawn. The defendant disputed this statement, and the court reviewed the transcript of the November 27, 2007 proceeding on the record. The court then explicitly stated: “The motion [for a speedy trial] was withdrawn. That’s my finding, that [the] motion was withdrawn. We do not have a speedy trial motion pending.” The court then granted Morelli-Wolfe’s motion to withdraw as counsel for the defendant.

On December 9, 2008, the defendant, then represented by attorney Kevin M. Smith, filed a motion to dismiss on the ground that he had not been brought to trial within thirty days of the filing of his motion for a speedy trial. On December 10,2008, the court, Frechette, J., held a hearing on the defendant’s motion. At this hearing, Smith argued that Morelli-Wolfe, after his motion to withdraw was held in abeyance, had a duty to press forward with the motion for a speedy trial instead of “standing by mutely . . . .” The court ruled that the defendant had withdrawn his motion for a speedy trial. Accordingly, it denied the defendant’s motion to dismiss on that basis.

Later that day, the defendant appeared before the court, McMahon, J., and entered a plea of nolo conten-dere conditioned on the right to appeal from the denial of his motion to dismiss. After conducting a canvass, the court accepted the defendant’s plea. Smith requested that the imposition of the sentence be stayed until December 30, 2008. The court informed the defendant that its sentence would be imposed on December 30, 2008. After a discussion regarding credit for time served, the court stated: “[T]wo years on the unlawful restraint, one year on the assault third, one year on the threatening second. All to run consecutive. Total effective sentence is four years to serve. Stay the imposition of sentence until [December] 30.” The defendant filed the present appeal on December 23, 2008.

On December 30, 2008, Judge McMahon held a hearing and found that the defendant’s nolo plea was dispos-itive. See General Statutes § 54-94a. At this hearing, counsel for the defendant indicated that his appeal had been filed.

On appeal, the defendant argues that the court improperly denied his motion to dismiss because his right to a speedy trial was violated. Because the defendant’s appeal was filed prematurely and not taken from a final judgment, we lack jurisdiction to consider the merits of this appeal.

We begin by setting forth our standard of review. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [over which we exercise plenary review].” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 651-52, 954 A.2d 816 (2008); see also State v. Thomas, 106 Conn. App. 160, 165-66, 941 A.2d 394, cert. denied, 287 Conn. 910, 950 A.2d 1286 (2008).

“There is no constitutional or common law right to appeal. . . . The right of appeal is purely statutory; State v. Audet, 170 Conn. 337, 341, 365 A.2d 1082 (1976); and appellate tribunals may hear only those appeals over which they have been granted jurisdiction by statute. The principal statutory prerequisite to invoking our jurisdiction is that the ruling from which an appeal is sought must constitute a final judgment. See General Statutes §§ 51-197a and 52-263. . . . We cannot hear appeals from preliminary rulings of the trial court .... Piecemeal appeals, particularly in criminal proceedings, are not only outside our jurisdiction, but also contravene the long-standing case law of this state and the United States.” (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 22 Conn. App. 73, 75-76, 576 A.2d 553, cert. denied, 215 Conn. 814, 576 A.2d 544 (1990); see State v. Rupar, 293 Conn. 489, 511, 978 A.2d 502 (2009); State v. Morrissette, 265 Conn. 658, 663, 830 A.2d 704 (2003); State v. One or More Persons over Whom the Court’s Jurisdiction Has Not Yet Been Invoked, 107 Conn. App. 760, 768, 946 A.2d 896, cert. denied, 289 Conn. 912, 957 A.2d 880 (2008).

Put another way, “the subject matter jurisdiction of the Appellate Corut and of this court is governed by ... § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court.” (Emphasis in original; internal quotation marks omitted.) State v. Jenkins, 288 Conn. 610, 617, 954 A.2d 806 (2008); see generally General Statutes § 54-95. It is well established that “[i]n a criminal proceeding, there is no final judgment until the imposition of a sentence.” (Emphasis added; internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 63, 658 A.2d 947 (1995), overruled in part on other grounds by State v. Jacobs, 265 Conn. 396, 828 A.2d 587 (2003); see also State v. Thomas, supra, 106 Conn. App. 166.

We now turn to the specific procedural route taken by the defendant in this case. General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” (Emphasis added.) Our Supreme Court has explained that “[b]ecause this right to appeal the denial of a motion to dismiss is statutory, it is accorded only if the conditions fixed by the statute are met.” State v. Gilnite, 202 Conn. 369, 375-76, 521 A.2d 547 (1987); see also State v. Commins, 276 Conn. 503, 516-17, 886 A.2d 824 (2005); State v. Bookless, 82 Conn. App. 216, 220, 843 A.2d 675, cert. denied, 269 Conn. 903, 852 A.2d 734 (2004).

The defendant filed his appeal on December 23, 2008. A review of the record, however, reveals that the court did not impose the sentence until December 30, 2008. We have no choice but to conclude that the defendant failed to comply with the explicit requirements of § 54-94a. As a result, we lack jurisdiction to consider the defendant’s premature appeal. We acknowledge that the court, McMahon, J., accepted the defendant’s nolo plea and discussed the issue of sentencing on December 10, 2008. Nevertheless, imposition of the sentence did not occur until December 30, 2008, after the defendant had filed his appeal.

At oral argument before this court, the defendant argued that the denial of his motion to dismiss, filed on the ground that he had been denied the right to a speedy trial, terminated a separate and distinct proceeding. In State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), our Supreme Court stated: “In both criminal and civil cases, however, we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.”

In State v. Ahern, 42 Conn. App. 144, 145, 678 A.2d 975 (1996), this court concluded that the denial of a motion to dismiss based on speedy trial grounds was not an appealable final judgment. “The denial of the defendants’ motion to dismiss on speedy trial and due process of law grounds did not terminate the criminal proceeding because the trial has not yet occurred. Nor does the denial of the motion to dismiss conclude the defendants’ rights so that further proceedings cannot affect them because, if the defendants are convicted and sentenced, they could appeal and, at that time, raise the issue of the denial of their motion to dismiss. . . . If, after the defendants are found guilty at trial, an appellate court concludes that the convictions cannot stand as a result of the violation of the defendants’ rights to a speedy trial and due process of law, that court could set aside the convictions and remand the cases to the trial court with direction to grant the defendants’ motion to dismiss the charges. Because the defendants’ rights could be vindicated upon appeal from the final judgment in each case, immediate appellate review is not necessary to prevent the loss of the rights involved.” (Citations omitted.) Id., 146-47. We also noted that the right to a speedy trial is distinguishable from the right to be free from double jeopardy in the context of the denial of a motion to dismiss and the issue of a final judgment. Id., 147. Last, we stated: “Our Supreme Court has been disinclined ... to extend the privilege of an interlocutory appeal in criminal cases beyond the double jeopardy circumstance. . . . The denial of the defendants’ motion to dismiss on speedy trial . . . grounds is not final for the purpose of appeal.” (Citation omitted; internal quotation marks omitted.) Id.

We conclude that the reasoning of Ahem applies to the present case. We therefore reject the defendant’s argument that the denial of this motion to dismiss concluded a separate and distinct proceeding.

The appeal is dismissed.

In this opinion the other judges concurred.

       After the defendant left the courtroom, the court stated that the motion for a speedy trial had been denied.

       The state noted that it had been prepared to proceed with its case against the defendant and that “any delays to trial have been a result of the defendant’s actions.”

       Smith filed an appearance on behalf of the defendant on April 9, 2008.

       On March 30, 2010, prior to the time of oral argument before this court, the appellate clerk’s office sent a letter to the parties, stating: “The [c]ourt has directed that you be prepared to address . . . the following issue: ‘In light of the mittimus indicating the date of disposition as December 30, 2008, and the appeal form indicating that the appeal was filed on December [23], 2008, was there an appealable final judgment at the time the defendant’s appeal was filed?’ ”


author: PER CURIAM.

text:
    WILLIAM L. ANKERMAN v. COMMISSIONER OF CORRECTION
    (AC 30527)
    Bishop, Gruendel and SchaUer, Js.
    Argued March 16
    officially released June 29, 2010

      Darcy W. Ankerman, with whom was William L. Ankerman, pro se, for the appellant (jpetitioner).

      Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, William L. Ankerman, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly denied his petition for a writ of habeas corpus. The petitioner’s appeal is dismissed.

The following factual and procedural history is relevant to our resolution of the petitioner’s claim. On April 12, 2002, the petitioner was convicted of larceny in the first degree by embezzlement in violation of General Statutes §§ 53a-122 (a) and 53a-119 (1), and on June 7, 2002, he was sentenced to a term of three years incarceration, suspended after six months, with three years of probation. The petitioner appealed, raising twelve separate claims, all of which were rejected, either for lack of merit or because they had not been preserved at trial. State v. Ankerman, 81 Conn. App. 503, 505, 840 A.2d 1182, cert. denied, 270 Conn. 901, 853 A.2d 520, cert. denied, 543 U.S. 944, 125 S. Ct. 372, 160 L. Ed. 2d 256 (2004).

On August 11, 2005, the petitioner filed an amended petition for a writ of habeas corpus. The court, T. Santos, J., denied the petition, finding that the petitioner had failed to satisfy his burden of proving the first count of his petition, which alleged ineffective assistance of counsel, and determined that he was procedurally defaulted from bringing his second and third counts, both of which alleged perjury by various witnesses and prosecutorial misconduct. The petitioner appealed, and this court affirmed the habeas court’s denial of the first and second counts of the petition. See Ankerman v. Commissioner of Correction, 104 Conn. App. 649, 654-55, 935 A.2d 208 (2007), cert. denied, 285 Conn. 916, 943 A.2d 474 (2008). As to the third count, we remanded the matter on the basis that because the respondent, the commissioner of correction, had not affirmatively pleaded procedural default as to the allegations in that count, it should not have been dismissed on that basis. Id.

Subsequently on remand, on May 21,2008, the respondent filed an amended return, affirmatively pleading that the petitioner’s third count was procedurally defaulted because the claims it embodied had not been raised at the criminal trial or on direct appeal and that the petitioner could not demonstrate cause and prejudice for this failure. The petitioner filed a reply, denying the allegations in the amended return without explanation or elaboration but raised what he termed a “special defense,” claiming that the amended return was defective because the respondent failed to attach a commitment order pursuant to Practice Book § 23-30 (a). Subsequently, atrial was held on September 8 and October 29, 2008. At the hearing, the petitioner did not deny that his claims were not raised at trial or on direct appeal but argued that, pursuant to Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), he was not required to show cause and prejudice because he was “actually innocent” of the charges, and any procedural defects must yield to the interests of justice. Thereafter, the habeas court, Simón, J., issued its decision denying the sole remaining count of the petition. The court found that the petitioner was procedurally defaulted from raising the claims within count three because he had failed to raise the claims at the trial or on appeal, and he had not proven cause and prejudice in regard to this failure. In reaching its conclusion, the court rejected the petitioner’s claim that he was not required to demonstrate cause and prejudice on the basis that his claim was one of actual innocence because the petitioner had not, in fact, raised a claim of actual innocence. Rather, the court found that the petitioner was merely attempting to bootstrap an actual innocence argument into his overarching due process claim relating to his criminal trial. Having denied the petition, the court, thereafter, denied the petition for certification to appeal.

The petitioner now appeals, asserting, at the outset, that the court abused its discretion in denying his petition for certification. He contends that his petition for certification to appeal raised two questions that are debatable among jurists of reason: (1) whether he was required to plead “actual innocence” in order for his claim to be considered on the merits and (2) whether the respondent’s amended return was legally sufficient to require a reply by the petitioner. We are unconvinced.

“Faced with the habeas court’s denial of certification to appeal [under General Statutes § 52-470 (b)], a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. . . . A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, [498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991)], is not, however, frivolous and warrants appellate review if the appellant can show: that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . Thus, if an appeal is not frivolous, the habeas court’s failure to grant certification to appeal is an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Rivera v. Commissioner of Correction, 254 Conn. 214, 226-27, 756 A.2d 1264 (2000). “In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria identified in [Lozada v. Deeds, supra, 432] and adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed [and the appeal dismissed].” Gibson v. Commissioner of Correction, 118 Conn. App. 863, 871, 986 A.2d 303, cert. denied, 295 Conn. 919, 991 A.2d 565 (2010).

Accordingly, in determining whether the court abused its discretion in denying the petition for certification to appeal, we first turn to the petitioner’s claim that he was not required to plead actual innocence in order for such a claim to be considered by the court. The petitioner argued before the court that pursuant to Murray v. Carrier, supra, 477 U.S. 478, even though he did not allege facts to satisfy his burden of demonstrating cause and prejudice for failing to raise his perjury and prosecutorial misconduct claim at trial or on direct appeal, his claim should not be procedurally defaulted because it was actually one of actual innocence. The court, having found that the petitioner never raised a claim of actual innocence, rejected the petitioner’s argument and found that his perjury claim was procedurally defaulted because he had not asserted it on direct appeal. In response, the petitioner argues that Murray does not prescribe any particular, required pleading formula in order to place the issue of actual innocence before the habeas court, and, thus, the court could have used an assertion of actual innocence as a basis to review his claim despite the fact that he failed to set forth allegations, which, if proven, would have satisfied his burden of establishing cause and prejudice. On the basis of our scrupulous review of the record, we conclude that this claim lacks merit.

Murray does not prescribe a specific formula for raising a claim of actual innocence. Indeed, it is not an actual innocence case. In Murray, the court held that a petitioner cannot escape procedural default merely by establishing that competent defense counsel inadvertently failed to raise a substantive claim of error. While reaffirming its confidence in the cause and prejudice standard, the court recognized, as well, that “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Id., 496. Contrary to the petitioner’s assertion, Murray does not suggest that a habeas petitioner need not assert a claim of actual innocence in order to trigger its ameliorative holding. More pointedly, Murray does not state that procedural default can be avoided for claims of perjury that, even if proven, would not establish actual innocence. Applied to the facts at hand, it is undisputed that the petitioner never specifically raised a claim of actual innocence; rather, he has asserted irregularities in his underlying criminal trial. He argues that an actual innocence claim is embedded in his assertion that he was convicted in the “absence of constitutionally competent proof of scienter . . . .” Thus, he argues, because the state failed to prove specific intent, he was not guilty of embezzlement. Tellingly, he does not allege that he did not commit the acts that are the basis for the embezzlement claim. As the record reveals, the petitioner’s claim is essentially one of sufficiency of the evidence and not one of actual innocence. Our review of the record leads us to the firm conviction that the question raised by the petitioner, simply, is not one that is debatable among jurists of reason. Accordingly, the corut did not abuse its discretion in denying the petitioner certification to appeal.

The petitioner also claims that he was not required to set forth facts establishing cause and prejudice because the amended return filed by the respondent was not sufficient to require the petitioner to do so. Specifically, he claims that the amended return did not contain factual allegations, as required by Practice Book § 23-30 (b). In support of this argument, the petitioner claims that the respondent’s return did not include a mittimus, as required by Practice Book § 23-30 (a), and that the amended return could be described more accurately as a motion to dismiss, which does not require a reply pleading. These claims are without merit.

The respondent’s amended return plainly alleges facts in support of the claim of procedural default, as required by Practice Book § 23-30 (b). The amended return stated that “[the petitioner] did not raise the claim before the trial court at sentencing ... or on direct appeal,” as well as that the petitioner could not “establish ‘cause’ for the procedural default and ‘prejudice’ sufficient to excuse the default and permit review of the claim for the first time in this habeas corpus proceeding.” These statements are plainly factual allegations. It is true that the respondent failed to attach a commitment order pursuant to Practice Book § 23-30 (a); however, the court deemed this issue to be abandoned because it had not been argued or briefed on appeal. The petitioner presents no logical support for a contrary conclusion. Last, the claim that the respondent’s amended return was, in fact, a motion to dismiss is utterly devoid of merit.

On the basis of our review of this record, we conclude, accordingly, that the petitioner has failed to establish a claim that would satisfy any of the criteria set forth in Lozada, and, thus, the court did not abuse its discretion by denying the petitioner certification to appeal.

The appeal is dismissed.

       “Claims of judicial error that a criminal defendant failed to raise on direct appeal are renewable in a petition for habeas corpus only if the petitioner can show ‘cause and prejudice’ for his prior default.” Delgado v. Commissioner of Correction, 114 Conn. App. 609, 611, 970 A.2d 792 (2009).

       The petitioner based his reliance on Murray on the following language: “Respondent’s petition for federal habeas review of his procedurally defaulted discovery claim must therefore be dismissed for failure to establish cause for the default, unless it is determined on remand that the victim’s statements contain material that would establish respondent’s actual innocence.” Murray v. Carrier, supra, 477 U.S. 497.

       General Statutes § 52-470 (b) provides in relevant part: “No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried ... to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”


author: ALVOKD, J.

text:
    JOHN M. MORGAN v. DAVID WRIGHT ET AL.
    (AC 31188)
    Harper, Alvord and Pellegrino, Js.

      Argued April 14
    officially released June 29, 2010

      Robert J. Williams, Jr., for the appellant (plaintiff).

      Mary Anne A. Charron, for the appellees (defendants).
   Opinion

ALVOKD, J.

The plaintiff, John M. Morgan, appeals from the judgment of the trial court dismissing his complaint for lack of subject matter jurisdiction. He claims that the court improperly determined that he lacked standing. We agree and reverse the judgment of the trial court.

This case arises from a residential construction contract entered into on September 27, 2005, by the defendants, David Wright and Tracy Wright, and Aecon, Inc., a company associated with the plaintiff. By a two count complaint filed February 13, 2009, the plaintiff brought this action against the defendants for breach of contract and unjust enrichment. The complaint alleged that the plaintiff and the defendants entered into a contract for improvements to the defendants’ property, the plaintiff furnished materials and rendered services to the defendants in accordance with the contract, and the defendants failed to pay the plaintiff $99,556 for the materials furnished and services rendered. On February 19, 2009, the defendants filed a motion to dismiss the plaintiffs complaint for lack of subject matter jurisdiction. They argued that the plaintiff did not have standing to pursue either claim because (1) no contract existed between the parties and (2) the decision in Wright v. Aecon, Inc., Superior Corut, judicial district of Fairfield, Docket No. CV-08-5013350-S (November 6, 2008), barred the plaintiff in his individual capacity from recovering in equity. In support of their motion, the defendants submitted a copy of the September 27,2005 contract and an affidavit by David Wright. On March 16, 2009, the plaintiff filed a memorandum of law and an affidavit in opposition. He claimed and attested that, as the named architect, he was a party to the September 27, 2005 contract and that he acted in his individual capacity, and not as an agent for Aecon, Inc., when he rendered architectural services to the defendants. On April 7, 2009, the court granted the defendants’ motion to dismiss for lack of standing. In its memorandum of decision, the court stated that this “exact issue” was raised and decided in Wright v. Aecon, Inc., supra, Superior Court, Docket No. CV-08-5013350-S. We disagree.

The plaintiff was not a party to Wright v. Aecon, Inc., supra, Superior Court, Docket No. CV-08-5013350-S. Consequently, that decision did not and could not address whether the plaintiff, in his individual capacity, had standing to sue the defendants for breach of contract or unjust enrichment. Indeed, the only question answered in Wright v. Aecon, Inc., supra, Superior Court, Docket No. CV-08-5013350-S, was whether the Home Improvement Act; General Statutes § 20-418 et seq.; barred Aecon, Inc., from enforcing its mechanic’s lien. See footnote 2 of this opinion.

In contrast, “[s]tanding is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009). “[W]hen standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [that may be remedied].” (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn. App. 699, 704, 905 A.2d 1236 (2006). “Standing requires no more than a colorable claim of injury . . . .” (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., supra, 214. “[W]hether a party has standing, based upon a given set of facts, is a question of law for the court”; (internal quotation marks omitted) Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003); and our review is plenary.

Although we note that several facts remain in dispute, our jurisdictional determination is not dependent on the resolution of these issues. See Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 348, 977 A.2d 636 (2009) (evidentiary hearing required when a jurisdictional determination is dependent on the resolution of a critical factual dispute). The complaint and affidavits indicate that the plaintiff was named in the contract as the architect, the plaintiff provided architectural services to the defendants and the defendants did not pay the plaintiff for the services he provided. “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., supra, 294 Conn. 214. Accordingly, we conclude that the plaintiff has standing to pursue his claims.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The contract named the plaintiff as the project architect and was signed by the plaintiff as the president of Aecon, Inc.

       In Wright v. Aecon, Inc., supra, Superior Court, Docket No. CV-08-5013350-S, the defendants filed an application to discharge a mechanic’s lien in the amount of $123,233 filed against them by Aecon, Inc. The defendants claimed that (1) Aecon, Inc., was a contractor under the Home Improvement Act (act); General Statutes § 20-418 et seq.; (2) the September 27, 2005 contract did not conform to the requirements of the act and (3) the mechanic’s lien was invalid. The court agreed and discharged Aecon, Inc.’s mechanic’s lien.

       David Wright attested that the contract was a complete and accurate copy of the agreement he entered into with Aecon, Inc.

       To the extent that the defendants’ reliance on Wright v. Aecon, Inc., supra, Superior Court, Docket No. CV-08-5013350-S, raises questions of issue preclusion, we note that these questions pertain to the merits of the plaintiff’s case and are improperly raised in a motion to dismiss. See Rosenfeld v. McCann, 33 Conn. App. 760, 762, 638 A.2d 631 (1994) (“Res judicata does not implicate a court’s subject matter jurisdiction. The doctrine is invoked when a litigant alleges that a party is reasserting a claim that has already been decided on the merits. The doctrine must be raised as a special defense and may not be raised by a motion to dismiss, which is the appropriate vehicle to assert a lack of jurisdiction.”).

       The defendants acknowledged that the plaintiff provided design services for the project during argument on their motion, stating: “He provided design services. We are not disputing that he provided design services.”


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. EUGENE O. FOOTE, JR.
    (AC 30362)
    Bishop, Gruendel and Schaller, Js.
    Argued March 16
    officially released June 29, 2010

      Jodi Zils Gagne, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were John A. Connelly, state’s attorney, and, on the brief, Patrick J. Griffin, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Eugene O. Foote, Jr., appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes (Rev. to 2007) § 53a-101 (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). He claims that (1) the trial court abused its discretion in denying his motion to suppress evidence of his pretrial identification and (2) the evidence adduced at trial was insufficient to sustain his conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 6 o’clock in the morning of July 2, 2007, Glorimary Guerra heard a knock on her door at 45 Long Hill Road in Waterbury. Expecting her boyfriend, she opened the door to instead find the defendant there. When he inquired if anyone was hiding inside the apartment, Guerra responded in the negative. As she began to close the door, the defendant pushed her back into the apartment and entered. The defendant then brandished a black-handled knife and proceeded through each room of the apartment with Guerra. As this transpired, the defendant repeatedly insisted that Guerra was hiding someone, and Guerra attempted to convince him otherwise. Because she was unsure of his intent, Guerra constantly looked at the defendant’s face. When they entered the kitchen, the defendant proceeded to the back door, at which point Guerra attempted to flee to the front door of the apartment. That effort proved unsuccessful, as the defendant ran after her and closed the door. Fearful, Guerra sat down and began to cry. The defendant then attempted to calm Guerra. As she testified at trial: “[H]e was just telling me . . . that he’s just looking for the person, that he wants me to tell him who the person is, and I’m telling him I don’t know where the person is. He’s telling me to calm down, that he’s not going to hurt [me]. But I don’t know how he wants me to calm down because he’s already in my house with the knife out, I’m pregnant, I’m seven and a half months pregnant, and I’m just scared, I don’t know what to do . . . .” The defendant gave Guerra $3 and exited the apartment, at which point Guerra called 911 to report the incident.

Officers Steven Láñese and Brian DeStefano of the Waterbury police department arrived minutes later. Guerra described her assailant as a black male, slightly taller than Lanese, who wore a white shirt and black jeans and had a chubby face with facial hair. She further described the knife as one with a silver blade and black handle. After spending five minutes at the apartment with Guerra, the officers left to search for the perpetrator. Approximately thirty to forty-five seconds later, they encountered the defendant on East Farms Street and detained him, as he matched the description provided by Guerra. During that detention, the defendant acknowledged that he had a knife in his possession, which also matched Guerra’s description. The officers placed the defendant in the rear of the police car and summoned Officers Renauto Crea and Jay Costanzo to bring Guerra to their location for possible identification. While transporting Guerra, Crea read her an advisement from a prepared police form titled “witness instructions for one-on-one identification.” The instructions indicated that she was being “asked to view a person”; that “[t]he person you will view may or may not be the person involved in this incident”; that “[i]t is as important for the police to clear innocent people as it is to identify the guilty”; and that “[t]he police will continue to investigate this incident, whether or not you identify someone.” Minutes later, the defendant was asked to exit the police car, and Guerra immediately identified him as the perpetrator. She further identified the knife found in his possession as the one brandished in her apartment. As a result, the officers placed the defendant under arrest.

The defendant thereafter was charged by long form information with burglary in the first degree in violation of General Statutes (Rev. to 2007) § 53a-101 (a) (1) and unlawful restraint in the first degree in violation of § 53a-95 (a). On March 4, 2008, the defendant moved to suppress all evidence of his pretrial identification “as well as any in-court identification of the [defendant . . . .” Following a hearing thereon, the court denied the motion. A trial followed, at the conclusion of which the jury found the defendant guilty on both counts. The court rendered judgment accordingly and sentenced the defendant to a total effective term of twenty years incarceration. This appeal followed.

I

The defendant claims that the court abused its discretion in denying his motion to suppress evidence of his pretrial identification. He maintains that the one-on-one identification was both unnecessarily suggestive and unreliable in violation of his state and federal constitutional rights to due process and a fair trial. We disagree.

“[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . . Furthermore, [w]e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Citation omitted; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

In accordance with those principles, we begin our analysis by inquiring whether the identification procedure was unnecessarily suggestive. “[A] claim of an unnecessarily suggestive pretrial identification procedure is a mixed question of law and fact.” State v. Marquez, 291 Conn. 122, 137, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S. Ct. 237, 175 L. Ed. 2d 163 (2009).

In concluding that the identification procedure was not unnecessarily suggestive, the court, in its oral decision, found as follows: “Based upon the testimony presented [at the suppression hearing], I find the following facts. That on July 2, 2007, [Guerra] answered a knock on her door sometime before 6 a.m. That a black male she did not know was at the door when she opened it. That she partly opened the door. His face was two feet away from her face at the door. That she got a good look at his face. That he pushed his way into the house and at some point took out a knife when she indicated that she wanted him to leave. That he indicated he was looking for someone. She denied that person was in her apartment. That he then proceeded to march her around the apartment with his knife out. She being in front of him and he being behind her, and then he proceeded to check every room in the house looking for this individual. That he subsequently left. That, according to her testimony, he was in her house approximately ten or fifteen minutes. That she had conversations with him. And that during those conversations she was looking at his face. That she waited five minutes after he left and went upstairs to a neighbor’s apartment and called 911. . . . [S]he called 911 at 6:02 a.m. [and] at 6:07 [a.m.] two patrol officers arrived at her apartment. She told them what happened. She gave a description both in the 911 call and to the officers . . . that it was a black male, approximately five foot, nine, five foot, ten [inches tall], chubby face, white shirt, black pants, little hair on his head and some facial hair. That the police officers immediately went to their patrol car, searched the neighborhood to see if they could find this black male at a short distance away from the victim’s apartment.

“[The officers] found the defendant . . . walking on East Farms Street. He matched the description given by . . . Guerra. They investigated, detained him. She also indicated to the police officers . . . that she described the knife. That it was a black-handled knife with a silver blade, and it was folded. That [the defendant], when he was detained, indicated he had a knife. The officers . . . retrieved the knife, and it matched the description given to them by . . . Guerra. They called for backup. Second patrol car arrived. First patrol car on East Farms Road then went to . . . Guerra’s apartment and brought her back for a one-on-one identification. She remained in the second patrol car. [The defendant] was then asked to exit the first patrol car, which he did. He was standing next to the two officers. Exited the patrol car with his hands behind him. . . . Guerra then identified him as the person who invaded her apartment. He was about twenty, twenty-five feet away from where she was sitting. She got a good look at his face, and she identified him without hesitation. Prior to the one-on-one identification, she had been informed by a patrol officer on the way to East Farms Road that the suspect that she was about to identify may or may not—that the individual that she was about to identify may or may not be the suspect. That the entire time from when the incident occurred at . . . Guerra’s apartment, to the one-on-one identification was approximately thirty-five to forty minutes, according to the testimony. The incident occurred sometime before 6 a.m., and the one-on-one identification occurred at approximately 6:35 a.m.

“That while . . . Guerra was in her apartment with the intruder, while there were no lights on, there was light outside. She had no blinds drawn. That the intruder had nothing covering his face. That he was entirely visible to . . . Guerra while he was in the apartment. That during the one-on-one identification, it was a clear day. It was not dark. It was light.

“Based on those facts, the issues before me are twofold. First, the defendant has the obligation to establish that the identification was unnecessarily suggestive. If it was, the defendant must then establish that the identification was not otherwise rehable based on the totality of the circumstances. With respect to the first prong, that test, if clear it’s that a one-on-one identification, is inherently suggestive, standing out in front of a police car with two police officers next to you, certainly suggests that this is the intruder. There is no question about that. But the issue is whether exigencies necessitate that such a suggestive procedure be used. And the court has established a number of factors that I’m to look at in determining whether an exigency existed. Those factors are whether the defendant was in custody. The availability of the victim. The practicality of alternate procedures. The need for the police to determine quickly if they are on the wrong trail. And whether the identification procedure provided the victim with an opportunity to identify his or her assailant while the memory of the incident was still fresh.

“Those last two factors in this case are substantial. The police clearly had a strong and substantial need to act quickly here. They had been informed that a person armed with a knife had invaded someone’s apartment. That that person was looking for someone. That that person was not at the apartment that he first invaded. And so there was a strong likelihood that he would be going into somebody else’s apartment, looking for that individual. And that he was armed with a knife. With respect to the acting while the memory was still fresh, this one-on-one identification happened approximately thirty-five to forty minutes after the incident. It’s a very short period of time. And it certainly provided . . . Guerra with an opportunity to determine whether this, in fact, this person that was being detained was, in fact, the intruder.

“With respect to the other factors, I find that [the defendant] had not yet been arrested. He had been detained for investigative purposes. That while certainly the police might have been able to ask [the defendant] whether he was willing to go to the police station to have a photographic array done, it seems to me, and I think the evidence reflects, that this one-on-one identification was a much quicker way for the police to determine they had the right guy or whether they should be looking for someone else or something unfortunate happens to someone else. So, I do not find that this one-on-one identification was unnecessarily suggestive. I find that there was an exigency that existed and that the one-on-one identification was appropriate under the circumstances.”

On appeal, the defendant challenges the court’s determination that the identification was not impermissibly suggestive. The defendant claims that the one-on-one identification was unnecessary, arguing that the officers easily could have brought him to police headquarters or later prepared a photographic array. In response, the state contends that this case presents a classic example of exigency that justified the prompt one-on-one identification. We agree with the state.

As our Supreme Court has observed, “almost any one-to-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively suggestive . . . because it conveys the message to the victim that the police believe the suspect is guilty.” (Citation omitted; internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 686, 631 A.2d 271 (1993). At the same time, “[i]t has been held repeatedly . . . that one man confrontations do not per se constitute a denial of due process of law.” (Internal quotation marks omitted.) State v. Thompson, 81 Conn. App. 264, 272, 839 A.2d 622, cert. denied, 268 Conn. 915, 847 A.2d 312 (2004). “Prompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation . . . .” State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). As a result, “[a]n immediate viewing of the suspect may be justified where it [is] important for the police to separate the prime suspect gold from the suspicious glitter, so as to enable them ... to continue their investigation with a minimum of delay.” (Internal quotation marks omitted.) State v. Wooten, supra, 686-87.

Our Supreme Court has recognized that “the existence of exigencies may preclude such a procedure” from being impermissibly suggestive. State v. Ledbetter, supra, 275 Conn. 549. “[Wjhen we have been faced with the question of whether an exigency existed, [the court has] considered such factors as whether the defendant was in custody, the availability of the victim, the practicality of alternate procedures and the need of police to determine quickly if they are on the wrong trail,” as well as “whether the identification procedure provided the victim with an opportunity to identify his assailant while his memory of the incident was still fresh.” (Internal quotation marks omitted.) Id.

For example, in State v. Wooten, supra, 227 Conn. 677, our Supreme Court held that, although suggestive, the “one-to-one show-up or confrontation” on the scene between the victim and the defendant “was nonetheless not unnecessarily [suggestive] because the exigencies of the situation justified the procedure .... The confrontation was not unnecessary because it was prudent for the police to provide the victim with the opportunity to identify her assailant while her memory of the incident was still fresh . . . and because it was necessary to allow the police to eliminate quickly any innocent parties so as to continue the investigation with a minimum of delay, if the victim excluded the defendant as a suspect or was unable to identify him.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 686. The court reached a similar conclusion in State v. Ledbetter, supra, 275 Conn. 550-53, State v. Austin, 244 Conn. 226, 248, 710 A.2d 732 (1998), and State v. Amarillo, 198 Conn. 285, 292-93, 503 A.2d 146 (1986).

A consideration of the entire identification procedure in light of the factual circumstances of the case persuades us that the identification procedure, although suggestive, was not unnecessarily so. See State v. Marquez, supra, 291 Conn. 146. When they responded to the 911 call, Guerra provided the officers a detailed description of her knife-wielding assailant. The officers encountered the defendant, who matched that description, less than one minute after departing Guerra’s residence, and he had a knife in his possession that also matched Guerra’s description. The officers sought a prompt identification from Guerra, while her memory was fresh, to ensure that the defendant was, in fact, the perpetrator. Such prompt identification served to “eliminate quickly any innocent parties so as to continue the investigation with a minimum of delay.” State v. Amarillo, supra, 198 Conn. 293. In addition, such prompt identification served to prevent a similar attack on others. See State v. Ledbetter, supra, 275 Conn. 550 (at time of identification, police had received three separate telephone calls reporting robberies in general vicinity of detention and “some possibility existed that [the perpetrators] remained active in the area”). Given Guerra’s report of a knife-wielding assailant on the hunt for an individual in her community, the facts of the case presented a quintessential example of exigent circumstances. Furthermore, the defendant at the time of the identification was not under arrest. Id.; State v. Austin, supra, 244 Conn. 248. Finally, the officers instructed Guerra prior to her identification of the defendant that “[t]he person you will view may or may not be the person involved in this incident.”

In light of the foregoing, the court determined that the one-on-one identification was not impermissibly suggestive due to the exigencies of the situation. On our careful review of the record, we agree. The court did not abuse its discretion in denying the motion to suppress.

II

The defendant also argues that the evidence adduced at trial was insufficient to sustain his conviction. His claim is wholly dependent on his contention that the testimony of Guerra should have been suppressed.

In her testimony, which it would serve no useful purpose to recount in detail, Guerra described her encounter with the defendant at her apartment on the morning of July 2, 2007. The jury, as sole arbiter of credibility, was free to believe that testimony. See State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007). Guerra’s testimony constituted evidence sufficient to establish burglary in the first degree and unlawful restraint. In light of our determination that the court properly denied the defendant’s motion to suppress, his claim of evidential insufficiency fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Guerra signed that instruction form following her identification of the defendant, initialing each of the four specified instructions.

       Our Supreme Court explicitly has held that article first, § 8, of the state constitution provides no greater protection than its federal counterpart in the realm of identification procedures. State v. Ledbetter, 275 Conn. 534, 568, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

       Despite the fact that State v. Marquez, supra, 291 Conn. 122, was decided prior to the filing of their appellate briefs, neither the defendant nor the state has addressed the applicability of Marquez to the present case. In that recent decision, our Supreme Court revisited the unnecessarily suggestive standard in the context of photographic identification procedures. The court noted “two factors that courts have considered in analyzing photographic identification procedures for improper suggestiveness. The first factor concerns the composition of the photographic array itself. . . . The second factor, which is related to the first but conceptually broader, requires the court to examine the actions of law enforcement personnel to determine whether the witness’ attention was directed to a suspect because of police conduct.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 142-43. Noting that “this continues to be an issue particularly ill suited to generic, bright line rules”; id., 156; the court stated that “a determination as to whether a particular identification procedure is ‘unnecessarily suggestive’ must focus on the foregoing factors”; id., 144; and further held that “it is the entire procedure, viewed in light of the factual circumstances of the individual case, that must be examined to determine if a particular identification is tainted by unnecessary suggestiveness.” (Emphasis in original.) Id., 146.
      That decision was silent as to the applicability of the aforementioned factors in the context of nonphotographic identification procedures. Plainly, the first factor set forth in Marquez is largely impertinent to one-on-one show-up identifications, as no photographic array is involved. As such, it is unclear whether the clarification of the unnecessarily suggestive standard articulated in Marquez governs one-on-one show-up identifications. One possibility is that the standard simply does not apply in such instances. Alternatively, the Marquez standard may apply, subject to a modified first factor that pertains to the unique nature of one-on-one identifications. Cf. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (modifying prejudice prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), for ineffective assistance of counsel claims resulting from guilty pleas). A third possibility is that instances of exigency altogether are distinguishable from the analytical framework set forth in Marquez, requiring an independent analysis in accordance with Ledbetter, Wooten and other related precedent. In any event, even if we were to apply the Marquez standard, our outcome would remain the same in the present case, as our review of the entire identification procedure in light of the factual circumstances of the case convinces us that the identification procedure was not unnecessarily suggestive. See State v. Marquez, supra, 291 Conn. 146.

       Although the defendant quarrels with the court’s finding that the officers informed Guerra that “the individual that she was about to identify may or may not be the suspect” prior to her one-on-one identification, that finding is supported by the suppression hearing testimony of Crea and Guerra and, thus, is not clearly erroneous. That finding, which also was supported by the evidence adduced at trial, obviated the need for &Ledbetter instruction to mitigate the potential risk of mistaken identification. See State v. Ledbetter, supra, 275 Conn. 578-80.