text:
    SOUTH WINDSOR CEMETERY ASSOCIATION, INC. v. RICHARD R. LINDQUIST
    (AC 29927)
    Flynn, C. J., and Gruendel and Stoughton, Js.

      Argued February 2
    officially released May 26, 2009

      Richard R. Lindquist, pro se, the appellant (defendant).

      Suzanne E. Caron, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

This case involves a dispute over a right-of-way. The pro se defendant, Richard R. Lindquist, appeals from the judgment of the trial court in favor of the plaintiff, South Windsor Cemetery Association, Inc., on both the plaintiffs complaint and on his counterclaim. On appeal, the defendant claims that (1) the court improperly granted the plaintiffs motion to strike four counts of his seven count counterclaim and (2) he was deprived of due process of law. We affirm in part and reverse in part the judgment of the trial court.

The court found the following relevant facts. “Center Cemetery is an ancient burying ground in the old historic section of South Windsor, nestled between the Connecticut River on the west and Main Street on the east. . . . The newer, northern end [of the cemetery] is owned by the [plaintiff]. The [plaintiff] is responsible for the care and maintenance of burial plots in the cemetery. ... To get to [portions of the cemetery], visitors must cross lots fronting on Main Street .... Among the landowners on Main Street blocking in the cemetery are the First Congregational Church of South Windsor and [the defendant].

“The [plaintiff] uses three driveways for visitor ingress [and] egress. The first ... is actually a driveway belonging to the First Congregational Church .... The [plaintiff] is allowed to use that driveway, but permission is not in writing, and it is at the pleasure of the church. At times, particularly when the church is running a fair, that driveway is not available to the [plaintiff]. The second driveway ... is owned by [the town of South Windsor] .... Due to the awkward circumstance involving the first two driveways, and to acquire a more direct [route], and [a legal] right of access to its section of the cemetery, the [plaintiff], in 1963, purchased a twelve foot right-of-way over a driveway ... on land [then] owned by Elizabeth Parker. . . . That driveway thus provides the third access to the cemetery [and is] the one that is at issue in [this] case.”

Parker’s property containing the right-of-way was conveyed several times during the fifteen years after the plaintiff purchased the right-of-way, and, in 1978, the defendant acquired the parcel subject to the plaintiffs right-of-way. The defendant is therefore “the successor in title to the Parker lot, and he uses the same driveway to access his land and home, sharing it with the [plaintiff]. . . .

“The [plaintiff] and [the defendant] coexisted relatively peacefully at first. . . . [But] [f]fiction developed over the years, particularly over vegetation. The [defendant’s] lot is almost completely overgrown with vegetation . . . which grew into the driveway. [The defendant’s wife] once complained to the [plaintiff] that she almost was hit by a car while tending her flowers in the driveway. The [plaintiff] told her that she should not grow flowers in the driveway. A compromise was reached, and the [plaintiff] put up a sign restricting the speed limit in the right-of-way to five miles per hour. Further friction developed over the encroaching jungle of vines and plants, which were scratching cars as they entered the cemetery, and as potholes . . . developed in the driveway. The potholes and vines were inconvenient obstacles at best and caused rerouting of cemetery traffic on occasion to avoid damage. A truck got stuck in a hole once. . . .

“After [the defendant’s wife died] in 2003, the potholes and vegetation were getting out of control. Hearses were occasionally forced to use the other entrance for fear of getting stuck. [Representatives of the plaintiff] attempted to communicate with the [defendant], but they were unable to reach any accord. Face to face discussions were treacherous. When a [representative of the plaintiff] dumped a pail of gravel in one pothole, [the defendant’s] son came out of the house and said that his father did not want the right-of-way touched . . . . In . . . written correspondence . . . it was made clear that [the defendant] would resist any efforts to fix the right-of-way. When [representatives of the plaintiff] attempted to cut back the encroaching vegetation, [the defendant] called the police. . . .

“The crux of the dispute is that [the defendant’s] primary operating entrance and exit door from his house is . . . near the driveway. [The defendant] is very concerned about cemetery traffic in the driveway and his personal safety when entering and exiting his house from that door. . . . [The door] did not exist when Parker granted the right-of-way in 1963, but was there when [the defendant] bought the house in 1978.

“[The defendant] experiences severe anxiety from the fact that the door is so near the right-of-way. When he hears a car pass, he is concerned about speeding and his physical safety, and he experiences painful anxiety. He does not want the potholes in the right-of-way fixed because he believes they serve as speed control devices to slow the traffic. . . . There is very little traffic associated with this ancient cemetery, and those that use it are not in a hurry. There have never been any reports or complaints about speeding cars in the driveway made to the [plaintiff], even from [the defendant’s wife].”

The plaintiff filed an action against the defendant, seeking (1) a declaratory judgment that the plaintiffs right-of-way is enforceable and that the plaintiff may maintain the right-of-way to ensure that traffic may pass and (2) a permanent injunction preventing the defendant from interfering with the plaintiffs maintenance of the right-of-way. The defendant filed a seven count counterclaim, seeking, inter alia, injunctive relief and damages. The plaintiff moved to strike the defendant’s counterclaim, which the court granted as to counts two, five, six and seven because it determined that those counts did not arise out of the same transaction as that giving rise to the plaintiffs complaint. See Practice Book § 10-10. The two surviving counts of the counterclaim sought (1) a permanent injunction preventing the plaintiff from removing the potholes in the right-of-way and (2) a permanent injunction preventing the plaintiff from obstructing the defendant’s use of the driveway. The remaining claims of both parties were tried to the court, which ruled in favor of the plaintiff on both its complaint and on the defendant’s counterclaim. This appeal followed.

I

MOTION TO STRIKE

We first address the defendant’s claim that the court improperly granted the plaintiffs motion to strike counts two, five, six and seven of his counterclaim. In striking those counts, the court ruled that they did not arise from the same transaction as that giving rise to the plaintiffs complaint. The defendant asserts that the allegations contained in the counterclaim are indeed grounded in the same transaction as the plaintiffs complaint.

“Practice Book § 10-10 provides that ‘[i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiffs complaint . . . .’ This section is a commonsense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy. . . . The transaction test is one of practicality, and the trial court’s determination as to whether that test has been met ought not be disturbed except for an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn. App. 125, 131-32, 952 A.2d 56 (2008).

A

The subject of the plaintiffs complaint is the status of the right-of-way and the plaintiffs right to make use of and to repair that right-of-way without interference from the defendant. On the other hand, the counts stricken from the defendant’s counterclaim (with the exception of the second count, which will be addressed separately) do not address the status of the right-of-way. Count five seeks damages for negligent and intentional infliction of emotional distress for the plaintiffs attempt to repair the potholes, count six seeks damages for endangering the defendant’s physical health and count seven seeks damages for endangering the defendant’s mental health.

Our Supreme Court has instructed that the “ [r]elevant considerations in determining whether the ‘transaction test’ has been met include whether the same issues of fact and law are presented by the complaint and the [counter] claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts.” Jackson v. Conland, 171 Conn. 161, 166-67, 368 A.2d 3 (1976). The disposition of the plaintiffs complaint necessarily requires an analysis of the scope of the conveyance from Parker to the plaintiff and the parties’ rights relating to the real property comprising the right-of-way. See Posick v. Mark IV Construction Co., 109 Conn. App. 777, 781, 952 A.2d 1271 (2008). Conversely, the disposition of the counts stricken from the counterclaim would require a fact intensive investigation into personal interactions between the defendant and the representatives of the plaintiff, which occurred after the purchase of the right-of-way and allegedly resulted in physical and emotional distress to the defendant. Those allegations relate to the behavior of the plaintiff and do not pertain to the specific subject of the plaintiffs complaint. See JP Morgan Chase Bank, Trustee v. Rodrigues, supra, 109 Conn. App. 132.

The issue presented by the present case is similar to that in JP Morgan Chase Bank, Trustee. In that case, the plaintiff filed a complaint seeking the foreclosure of a mortgage. The defendants filed a counterclaim, asserting, inter alia, a claim for intentional infliction of emotional distress due to the plaintiffs failure to comply with the terms of an agreement allegedly requiring the plaintiff to forbear from collection of the debt and foreclosure of the mortgage. The plaintiff filed a motion to strike the defendants’ counterclaim, which the trial court granted. Id., 127-28.

On appeal, this court held that the trial court did not abuse its discretion in striking the defendants’ counterclaim. The opinion focused on the fact that the transaction giving rise to the complaint was the execution of a document transferring an interest in land (namely, a mortgage), whereas the counterclaim “related to the conduct of the plaintiff that occurred after the execution of the mortgage note and with respect to documents other than the mortgage note.” Id., 133. Likewise, in the present case, the transaction underlying the complaint involves the transfér of an interest in land, while the transactions underlying the stricken counts of the counterclaim involve interactions between the plaintiff and the defendant that occurred well after the transfer took place.

Therefore, the court did not abuse its discretion in finding that the stricken counts involved issues of fact and law different from those in the complaint and that bringing the counterclaim as a separate action would not “involve a substantial duplication of effort by the parties and the courts.” Jackson v. Conland, supra, 171 Conn. 167. We conclude that the court did not abuse its discretion in striking counts five, six and seven of the defendant’s counterclaim.

B

Count two of the counterclaim is different from the other stricken counts. It seeks a permanent injunction preventing the plaintiff from obstructing the defendant’s use of the driveway comprising the right-of-way for medical assistance and medical supply deliveries. At first blush, this count appears very similar to count three, which seeks a permanent injunction preventing the plaintiff from generally obstructing the defendant’s use of the driveway. In its decision on the plaintiffs motion to strike, the court ruled that count three of the counterclaim did arise from the same transaction as the plaintiffs complaint but that count two did not. We fail to see the logic or the law that led to different conclusions on the two counts.

Count two involves the defendant’s right to use the property that is the subject of the plaintiffs right-of-way. The claim, therefore, arises from the same transaction as the plaintiffs complaint—namely, Parker’s conveyance of the right-of-way to the defendant. It appears that resolution of the same issues of fact and law— namely, the plaintiffs interest in and right to use the driveway—would be required in the disposition of the complaint and the surviving counts of the counterclaim as would be required to adjudicate count two of the counterclaim. It would follow, therefore, that bringing count two as a separate action would involve a substantial duplication of effort by the parties and the courts. See id. Particularly in light of the fact that the court determined count three arose out of the same transaction as the complaint but count two did not, we conclude that the court abused its discretion in striking count two.

II

PROCEDURAL CLAIMS

We next address the defendant’s claim that he was deprived of due process of law. Specifically, he asserts that the court (1) deprived him of his right to a fair trial by permitting undisclosed witnesses to testify and undisclosed evidence to be admitted and (2) violated his rights to due process by declining to dismiss the plaintiffs complaint due to its failure to comply with Practice Book § 17-56 (b). We address each in turn.

A

On July 15, 2006, the defendant served a set of interrogatories on the plaintiff. The eighth question in that set requested that the plaintiff “[i]dentify individuals, testimony, affidavits and/or documents [that the plaintiff will use] in part or full, to substantiate its prayer for redress . . . .” In its response served upon the defendant on September 22, 2006, the plaintiff stated that its answer to question eight would “be supplied when required pursuant to the provisions of the Connecticut Rules of Court.” The defendant did not seek an order requiring compliance pursuant to Practice Book § 13-14 at that time, and he did not otherwise move to compel the plaintiff to answer question eight or to disclose the witnesses and exhibits it intended to utilize at trial.

On the morning of the first day of trial, October 1, 2007, both parties disclosed their witness and exhibit lists to each other and to the court for the first time. On the same day, the defendant filed a motion with the court entitled “Motion to Exclude All Plaintiffs Witnesses and Exhibits from Trial Not Disclosed.” In that motion, the defendant argued that because none of the plaintiffs witnesses or exhibits were disclosed prior to trial as requested in the interrogatories, permitting them to testify would work an unfair surprise on the defendant and deprive him of due process of law. After a brief oral argument on the motion, the court denied the defendant’s motion, and the trial proceeded. On appeal, the defendant claims that the court’s failure to grant his motion to exclude deprived him of due process of law.

“[A] court may, either under its inherent power to impose sanctions in order to compel observance of its rules and orders, or under the provisions of [Practice Book] § 13-14, impose sanctions”; Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 14, 776 A.2d 1115 (2001); including “[t]he entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence . . . .” Practice Book § 13-14 (b) (4). We review the court’s decision regarding such orders under the abuse of discretion standard: “The court’s decision on whether to impose the sanction of excluding . . . testimony . . . is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Wyszomierski v. Siracusa, 290 Conn. 225, 233, 963 A.2d 943 (2009); see Wallbeoff v. Wallbeoff 113 Conn. App. 107, 113-14, 965 A.2d 571 (2009).

In light of the deference given to the court’s ruling, we conclude that the court did not abuse its broad discretion in refusing to grant the defendant’s motion to exclude the plaintiffs witnesses from testifying. This is true particularly in light of the fact that the defendant did not notify the court or the plaintiff of the insufficiency of the plaintiffs answer to the interrogatories for more than one year after the answers were submitted. Similarly, the defendant filed his motion to exclude at the eleventh hour—on the morning of trial—at which point it was already too late for the plaintiff to respond adequately to the interrogatory with sufficient time for the parties to utilize the response in preparation for trial. Thus, the defendant’s excessive delay in asserting his alleged right to a list of the plaintiffs witnesses and exhibits further bolsters the court’s decision not to grant the defendant’s motion, and we will not disturb that decision on appeal.

B

We next address the defendant’s claim regarding the plaintiffs failure to comply with the provisions of Practice Book § 17-56 (b). Section 17-56 (b) provides in relevant part: “All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof. . . .” The defendant claims that third parties, namely, Michael Paul and June Paul or their successors, have an interest in the right-of-way at issue. He argues that the court lacked subject matter jurisdiction over the claim because the Pauls were not made parties to the action, nor were they notified of the pendency of the action as required by § 17-56 (b). He also asserts that the failure to join the Pauls as parties to the action deprived him of due process of law.

To the extent that the defendant claims that the failure to comply with the provisions of § 17-56 (b) implicates the court’s subject matter jurisdiction, we note simply that our Supreme Court has held that “the failure to notify interested persons in a declaratory judgment action does not implicate the court’s subject matter jurisdiction.” Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 289, 914 A.2d 996 (2007). To the extent that the defendant contends that his due process rights were violated by the court’s failure to dismiss the case, we note that with limited exceptions not applicable here, “no declaratory judgment action shall be defeated by the nonjoinder of parties or the failure to give notice to interested persons. The exclusive remedy for nonjoinder or failure to give notice to interested persons is by motion to strike . . . .” Practice Book § 17-56 (c). The defendant did not file a motion to strike, and, therefore, we determine that his due process claim is not preserved properly for appeal. See Hall v. Kasper Associates, Inc., 81 Conn. App. 808, 813 n.2, 846 A.2d 228 (2004) (defendant waived claim of misjoinder by failing to file motion to strike). As such, we need not determine whether his rights were violated absent a request for review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine under Practice Book § 60-5. As our courts often have stated, “[w]here a defendant fails to seek review of an unpreserved claim under either Golding or the plain error doctrine, this court will not examine such a claim.” (Internal quotation marks omitted.) State v. Parham, 70 Conn. App. 223, 231 n.9, 797 A.2d 599 (2002); see also Johnson v. Commissioner of Correction, 288 Conn. 53, 60, 951 A.2d 520 (2008).

The judgment is reversed with respect to the striking of count two of the defendant’s counterclaim and the case is remanded for further proceedings on that count consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant also claims on appeal that “[t]he trial court erred by not granting [the] defendant [a] declaratory judgment . ...” In resolving this claim, we simply point out that the defendant’s counterclaim did not request a declaratory judgment but only injunctive relief and damages. We do note that the stricken count four of the counterclaim might be construed to request a declaratory judgment, but the defendant on appeal does not challenge the order striking that count, and its subject matter is unrelated to his claim on appeal. See footnote 3. Because the defendant never sought a declaratory judgment at trial, he cannot raise this claim for the first time on appeal. See Traggis v. Shawmut Bank of Connecticut, N.A., 72 Conn. App. 251, 264, 805 A.2d 105 (“we ordinarily will not review an issue that has not been properly raised before the trial court” [internal quotation marks omitted]), cert. denied, 262 Conn. 903, 810 A.2d 270 (2002).

       The defendant sets forth most of the facts and procedural history relevant to his appeal in the appendix to his brief. Because the facts and procedural history also may be gleaned from the court’s memorandum of decision and the plaintiffs brief, and because it is our policy to be mindful of the fact that pro se parties may not be as well equipped to comply with the rules of procedure as members of the bar, we do not find it necessary to take any action with regard to the defendant’s appendix. We remind litigants, however, that it is impermissible to utilize the appendix of a brief to elude the thirty-five page limitation for briefs set forth in Practice Book § 67-3 or to avoid including required statements in the appellate brief under Practice Book §§ 67-4 and 67-5. See Papic v. Burke, 113 Conn. App. 198, 217 n.11, 965 A.2d 633 (2009). “Although we are solicitous of the fact that the defendant is a pro se litigant, the statutes and rules of practice cannot be ignored completely.” (Internal quotation marks omitted.) Cooke v. Cooke, 99 Conn. App. 347, 352, 913 A.2d 480 (2007).

       The court also struck count four of the counterclaim, but for a different reason—that it properly should be pleaded as a special defense. The defendant repleaded the count as a special defense and does not contest the court’s ruling as to that count on appeal.

       The defendant also claims that he was denied equal protection of the laws. He does not allege, however, any specific instance of discrimination. Cf. Fillion v. Hannon, 106 Conn. App. 745, 756, 943 A.2d 528 (2008) (equal protection claims involve discrimination at hands of government). We decline to review the equal protection claim because it was inadequately briefed. See Lederle v. Spivey, 113 Conn. App. 177, 192, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009).

       We note that the defendant did file a motion to compel the plaintiff to respond to the interrogatories generally, but that motion was filed as the result of a delay in the mail and was unrelated to the issue on appeal.

       To resolve the defendant’s claim, we do not find it necessary to determine if it is indeed of a constitutional nature. We note that calling an alleged evidentiary or discovery error a due process violation does not transform it into a claim of constitutional magnitude. See State v. Taylor, 239 Conn. 481, 502-503, 687 A.2d 489 (1996) (“ ‘it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party’ ”), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

       The defendant asserted at oral argument that, on the basis of the plaintiffs response to question eight, he reasonably believed that the plaintiff would not be calling any witnesses or introducing any evidence at trial. He claims that it was because of that belief that he did not file a motion regarding the response to the interrogatory prior to the first day of trial. We believe this claim to be disingenuous, as the record indicates that the defendant arrived at the courthouse on the first day of trial with the motion to exclude evidence already prepared, despite a supposed belief that the plaintiff would not be submitting any evidence.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JASMINE BEREIS
    (AC 29420)
    Bishop, Robinson and Peters, Js.

      Submitted on briefs February 10
    officially released May 26, 2009

      Sebastian O. DeSantis, special public defender, filed a brief for the appellant (defendant).

      Michael L. Regan, state’s attorney, and Melissa Patterson and Christa L. Baker, deputy assistant state’s attorneys, filed a brief for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Jasmine Bereis, appeals from the judgment of conviction, rendered after a jury trial, of evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (b) and failure to appear in the second degree in violation of General Statutes § 53a-173. On appeal, the defendant claims that the trial court improperly denied her motion for a judgment of acquittal because the evidence was insufficient to support her conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The state filed a substitute information on September 5, 2007, which charged the defendant with evasion of responsibility in the operation of a motor vehicle under § 14-224 and failure to appear in the second degree under § 53a-173. The evasion of responsibility charge stemmed from an incident on June 24, 2005, when the police responded to a report of a minor vehicular accident on High Street in New London. The defendant had been driving a 1987 Toyota pickup truck belonging to her boyfriend, Steven Potter, on that date. The complainant’s van was parked on the street when the defendant backed the pickup truck out, struck the right side of the unoccupied van and drove away.

The complainant gave Charles Flynn, the responding police officer, a brief description of the vehicle, and Flynn subsequently contacted Potter and the defendant. The defendant went to the New London police department the next day and admitted to Flynn that she had been operating the truck and that it had hit the van. She also admitted to Potter that she had hit something while driving his truck after he had noticed that the bumper was bent in, the taillight was cracked and there was blue paint transfer on the bumper. She indicated to Flynn that she left the accident scene because “she was having a bad day and whatever crisis she was having, she couldn’t stick around for the investigation of the accident.” The defendant subsequently failed to appear at a scheduled court appearance, and the state charged her with failure to appear in the second degree.

A trial was held on both counts on September 13, 2007, and the jury returned a verdict of guilty on that date. The defendant filed a motion for a judgment of acquittal on October 23, 2007, which was denied by the court on October 25, 2007. She was sentenced on October 25, 2007, to a total of two years incarceration, execution suspended, and two years probation. This appeal followed. Additional facts will be set forth as necessary.

The defendant challenges the sufficiency of the evidence to support her conviction on both the charge of evasion of responsibility in the operation of a motor vehicle and the charge of failure to appear in the second degree. We address each claim in turn.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proven beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all of the elements of the crime charged beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) State v. Jason B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009). “Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Goodspeed, 107 Conn. App. 717, 724, 946 A.2d 312, cert. denied, 287 Conn. 920, 951 A.2d 570 (2008).

I

The defendant first claims that there was insufficient evidence to support her conviction of evasion of responsibility in the operation of a motor vehicle. She asserts that because she was unaware that she had been in an accident, she did not satisfy the element of § 14-224 (b) that she was “knowingly involved in an accident . . . .” General Statutes § 14-224 (b). We are not persuaded.

“To establish a violation of § 14-224 (b), the state first had to prove that (1) the defendant was operating a motor vehicle, (2) the defendant was knowingly involved in an accident and (3) the accident caused physical injury to any other person or damage to property. . . . Once those predicate elements were established, the state could prove a violation of § 14-224 (b) if it proved that the defendant failed to fulfill any one or more of the following duties required of him under the statute: (4) that the defendant failed to stop at once and render such assistance as may have been needed; or (5) unless there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to give his name, address, operator’s license number and registration number to the person injured or to the owner of the damaged property, or to any officer or witness to the accident; or (6) if there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to report immediately the physical injury or property damage to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and to give his name, address, operator’s license number and registration number together with the location and circumstances of the accident causing the physical injury or property damage.” (Citation omitted.) State v. Goodspeed, supra, 107 Conn. App. 725-26. Our Supreme Court has “previously . . . held that whether a defendant has knowledge that an accident caused injury or damage is irrelevant to the crime of evading responsibility; rather, it is a mandatory stop, ascertain and assist statute, which provides criminal penalties for the failure to do so. ” (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 259, 856 A.2d 917 (2004).

The evidence adduced at trial was sufficient to support the defendant’s conviction. The state submitted evidence that the defendant was operating the vehicle at the time that the accident occurred, that she knew that she had been in an accident and that the accident caused damage to property, namely, the parked van. The state also put forth evidence, and the defendant did not dispute, that she failed to stop at once and render such assistance as may have been needed as required by § 14-224 (b). Although the defendant testified that she did not find out until the next day that she had been involved in an accident, when Potter questioned her about the damage to his truck, and that she did not realize that she had been in an accident because she was very upset that day, the jury was free to disbelieve this testimony. This is particularly true because there was testimony that the defendant admitted to both Flynn and Potter that she had hit something that day while driving Potter’s pickup truck. In reaching its conclusion, the jury, as it was free to do, disbelieved the defendant and, thus, rejected her version of the events.

On the basis of this evidence, the jury reasonably could have found that the defendant knew that she had been in an accident. In construing the evidence in the light most favorable to sustaining the conviction, we conclude that the evidence was sufficient to support the defendant’s conviction of evasion of responsibility in the operation of a motor vehicle.

II

The defendant also claims that the evidence was insufficient to support her conviction of failure to appear in the second degree. She asserts that the state failed to prove the element of wilfulness that is required under § 53a-173. We disagree.

“[T]o secure a conviction for failure to appear. . . the state must prove beyond a reasonable doubt that the defendant was legally ordered to appear under the terms of his bail bond, that he failed to appear and that such failure was wilful. To prove the wilful element of failure to appear the state must prove beyond a reasonable doubt . . . that the defendant received and deliberately ignored a notice to appear . . . .” (Internal quotation marks omitted.) State v. Pauling, 102 Conn. App. 556, 568, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007). “[T]he word wilful means doing a forbidden act purposefully in violation of the law. It means that the defendant acted intentionally in the sense that his conduct was voluntary and not inadvertent .... Thus, wilful misconduct is intentional misconduct, which is conduct done purposefully . . . .” (Emphasis in original; internal quotation marks omitted.) State v. Outlaw, 108 Conn. App. 772, 777, 949 A.2d 544, cert. denied, 289 Conn. 915, 957 A.2d 880 (2008). Because there “is no direct evidence of a defendant’s state of mind . . . intent must be proved by circumstantial evidence.” Id., 785.

In reviewing the defendant’s claim that the evidence was insufficient to establish wilfulness, we must first construe the evidence in the light most favorable to the state. We must then determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. See State v. Cassidy, 236 Conn. 112, 136, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), overruled in part on other grounds by State v. Alexander, 254 Conn. 290, 296, 755 A.2d 868 (2000).

The state presented the following evidence with respect to the failure to appear charge. The defendant had a court date of July 18, 2005, in New London for which she failed to appear, and a bail commissioner’s letter was sent to her, ordering her to appear in court on August 8, 2005, and informing her that if she failed to appear on that date that she could be ordered rearrested. The letter was addressed to the defendant and sent to 33 Myrock Avenue in Waterford, which is the address the clerk’s office had on file for the defendant.

The defendant’s attorney, Sean Kelly, was present in court on August 8, 2005; however, the defendant was not present, and the prosecutor requested that the defendant be rearrested. The court ordered her rearrested on that date and set bond at $1000, and on September 23, 2005, she was rearrested on this charge.

The defendant admitted that she was not present in court on August 8, 2005, but testified that she did not deliberately miss her court date because she did not realize that she was due to appear in court on that date. She testified that she had assumed that her case would be combined with other cases that were pending against her in New London. She also testified that she was living in Canterbury at the time that she was rearrested because the house where she had been living, at 33 Myrock Avenue, which was her mother’s house, had burned down in August. The address on the defendant’s appearance bond form was 108 Packer Avenue in Canterbury, which was dated June 25, 2005, the day of her arrest, and which was the address the defendant stated that she believed that the court had on file for her.

The defendant appears to claim that because the bail commissioner’s letter was sent to her mother’s address, she was not aware that she was in jeopardy of being rearrested. She also puts forth the argument that because she had more than one case pending in the New London courthouse, she assumed that her cases would all be combined, and, therefore, she did not wilfully fail to appear for her scheduled court date in this matter. She further claims that her failure to appear could not have been wilful because she appeared in court on several occasions after August 8, 2005, but prior to her arrest in September.

The defendant cites State v. Khadijah, 98 Conn. App. 409, 909 A.2d 65 (2006), appeal dismissed, 284 Conn. 429, 934 A.2d 241 (2007), in support of her position that she may have been negligent, but not wilful, regarding the scheduling of her court dates and in assuming that her cases had been combined and that her public defender would represent her in all of her cases. In Khadijah, jury selection for the defendant’s trial commenced on August 12, 2003. At the end of the day, the court ordered the parties to appear the following morning at 10:45 a.m. The next day the defendant had not arrived for jury selection by 11:25 a.m., and the prosecutor requested that the defendant be rearrested. The defendant’s attorney telephoned the defendant and returned to the courtroom to report that the defendant was on her way. After further discussion with counsel, the court ordered the defendant’s bond forfeited at 11:28 a.m. Id., 411.

Evidence was introduced during the trial in Khadijah on the failure to appear charge that the defendant was working two jobs and had delivered newspapers from 1 a.m., to 8 a.m., the morning of August 13, 2003. When the defendant returned home, she asked her boyfriend to wake her in the event that she should inadvertently fall asleep. At some point, the defendant did, in fact, fall asleep and did not wake until her attorney telephoned her from the courthouse. The defendant immediately departed for the courthouse and arrived later that morning. Id., 415. This court held that the evidence of the defendant’s conduct of inadvertently falling asleep, after having asked her boyfriend to wake her in time for her court date if she fell asleep, and appearing at court after she woke up, did not establish beyond a reasonable doubt that she wilfully failed to appear in court at her scheduled time. Id., 418-19.

Khadijah does not support the defendant’s position because there is no evidence in the record that the defendant took any steps to appear in court on August 8, 2005. Furthermore, the defendant does not acknowledge the fact that regardless of whether attorney Kelly was representing her in both of her files or only her initial file, she was still required to appear in court herself.

The record in this matter is similar to that in State v. Laws, 39 Conn. App. 816, 668 A.2d 392 (1995), cert. denied, 236 Conn. 914, 673 A.2d 1143 (1996). The defendant, like the defendant in Laws, did not arrive in court at all on the scheduled date and, likewise, there was no contact between the defendant and her attorney before her failure to appear in court, nor on her court date. The defendant also did not attempt to contact the court or the prosecutor or make any effort to obtain receipt of correspondence that may have been sent to her mother’s address.

We conclude that the jury reasonably could have found from the evidence that the defendant was not present in court on her assigned date and that her failure to appear was wilful and not the result of circumstances out of her control. “Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role . . . .” (Citations omitted; internal quotation marks omitted.) In re Emerald C., 108 Conn. App. 839, 859 n.15, 949 A.2d 1266, cert. denied, 289 Conn. 923, 958 A.2d 150 (2008). The jury heard the defendant’s testimony about why she was not present in court on her assigned date and chose to reject it. We must defer to the jury’s assessment of the credibility of the defendant and its finding that the defendant’s conduct was wilful. Accordingly, we conclude that there was sufficient evidence to sustain the defendant’s conviction of failure to appear in the second degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-224 (b) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a-3, to any other person or ir\jury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to the owner of the injured or damaged properly, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of the motor vehicle causing the physical injury of any person or injury or damage to any property is unable to give his name, address and operator’s license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator’s license number and registration number.”
      General Statutes § 53a-173 provides: “(a) A person is guilty of failure to appear in the second degree when (1) while charged with the commission of a misdemeanor or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, or (2) while on probation for conviction of a misdemeanor or motor vehicle violation, he wilfully fails to appear when legally called for a violation of probation hearing.
      “(b) Failure to appear in the second degree is a class A misdemeanor.”

       The defendant also made an oral motion for a judgment of acquittal after the close of the state’s evidence, which was denied by the court.

       The conditions of probation included submitting to mental health evaluations, taldng prescribed medication, submitting to alcohol evaluation and treatment, remaining drug and alcohol free and submitting to random drug testing.

       Before beginning our discussion, certain relevant procedural facts must be stated. At the close of the state’s case-in-chief, the defendant made an oral motion for a judgment of acquittal, which was denied. The defendant then put evidence before the jury. “Because the waiver rule has been deemed constitutional; State v. Perkins, 271 Conn. 218, 228-45, 856 A.2d 917 (2004); we review [a] defendant’s insufficiency of the evidence claim by examining all of the evidence before the jury. It is the propriety of the jury’s verdict of guilty, not the propriety of the court’s denial of a motion for a judgment of acquittal after the state’s case-in-chief has been concluded, that we review.” State v. Khadijah, 98 Conn. App. 409, 413-14, 909 A.2d 65 (2006), appeal dismissed, 284 Conn. 429, 934 A.2d 241 (2007). In this case, we therefore consider all of the evidence, regardless of whether it was introduced by the state or the defendant. See id., 414.

       The defendant had other cases pending in the New London courthouse at the time, and a bail commissioner’s letter also was sent to the defendant at the 33 Myrock Avenue address on another file besides the one in question. In her other file, a bail commissioner’s letter was sent to her on August 2, 2005, to appear in court on August 23, 2005.

       Kelly had been appointed to represent her on April 29,2005, on her other file and testified that “technically speaking, I wasn’t her attorney on [this] file although I was acting as her attorney on that day.”

       The state pointed out that the bail commissioner’s letter had been sent to that address in July, but the defendant testified that her mother and sister were not the kind of people who would give her any of her mail that was sent to that address.

       The deputy clerk at the New London courthouse testified that as a matter of general procedure, the clerk’s office is given a defendant’s address from the police, who obtain the addresses directly from the defendant. The clerk also testified that the defendant is ultimately responsible for notifying the clerk’s office of any address change and that the office did not receive any address change by the defendant.

       The state in Khadijah conceded at oral argument in this court that the defendant arrived at the courthouse on August 13, 2003, at approximately 11:30 a.m. State v. Khadijah, supra, 98 Conn. App. 415 n.6.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. HAKIM RASHEED JEFFERSON
    (AC 29892)
    DiPentima, Robinson and Schaller, Js.
    Argued December 8, 2008
    officially released May 26, 2009

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

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Paul J. Ferencek, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Hakim Rasheed Jefferson, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly failed to give an instruction to the jury on intentional manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a and 53a-55 (a) (1), as a lesser offense included within the crime of murder. We affirm the judgment of the trial court.

The defendant was charged with murder in connection with the shooting death of Edward Gordon on May 11, 2002. In his statement to the police following the incident, the defendant admitted to being the shooter but denied that he had intended to kill the victim. The principal issue at the defendant’s trial was whether he had intended to cause the death of the victim.

The jury reasonably could have found the following facts. In early May, 2002, the defendant witnessed an argument between his friend, David Wash, and the victim, a man he had never met before, on Stillwater Avenue in Stamford. Approximately one week later, on May 11, 2002, the defendant and Wash went to a Stamford nightclub called Sonny’s Cafe. They arrived at the club between 12:15 and 12:30 a.m. Shortly thereafter, the defendant noticed that the victim was also at the club. The victim “was staring at [Wash and the defendant] in a provoking manner.” This made the defendant “nervous and scared . . . that [the victim] was going to do or say something to [him].” The defendant left the club and waited outside until closing time.

After the club closed at approximately 1:45 a.m., fifty to sixty people continued to mingle outside. At approximately 2 a.m., the defendant saw the victim leaning on a vehicle parked in front of the club. The victim stared at the defendant and Wash and then approached a group of men as he pointed at the defendant. The victim said to the group: “I’m [going to] set it on these guys. Watch my back.” The victim walked away, heading up the street and away from the club. The defendant followed the victim, pulled out his loaded gun and fired two gunshots in the victim’s direction. The victim began to run, with the defendant chasing him and firing three more gunshots from about three to four feet away. Those three bullets hit the victim, causing him to collapse to the ground in the middle of the road. The defendant stood over the victim and fired two more gunshots at point blank range into the victim’s body. The defendant fired a total of seven gunshots at the victim. The medical examiner found evidence of five gunshot wounds on the victim’s body, all of which were located in the back portion of the trunk area.

In the course of an in camera discussion after the close of evidence, defense counsel represented to the court that he was not pursuing jury instructions on any of the lesser included offenses contained in his October 19,2003 draft request to charge. A conversation ensued regarding two lesser included offenses that were not included in that document, namely, intentional manslaughter in the first degree with a firearm in violation of §§ 53a-55a and 53a-55 (a) (l) and reckless manslaughter in the first degree with a firearm in violation of § § 53a-55a and 53a-55 (a) (3). The parties specifically agreed that, given the nature of the murder and the evidence produced at trial, the jury should be instructed on the latter crime. Defense counsel represented that he did not intend to request an instruction on the former crime, as he believed there would be no practical advantage in arguing to the jury that the defendant possessed inconsistent mental states.

Immediately following this in camera discussion, the court held a charging conference on the record. Defense counsel stated: “I will withdraw all requests included in that preliminary charge related to a lesser included offense with the exception of two and that is, reckless manslaughter with a firearm, which I must advise the court that I respectfully request to be given in your charge.” Defense counsel then stated: “I still have mixed feelings about the intentional manslaughter and quite honestly my feelings are that it [is] . . . certainly not as applicable as the reckless charge and so I’m focusing on a specific request for the reckless charge as we speak. . . . [A]ny other charges unrelated to a lesser included offense that were made in my preliminary draft I will leave to the discretion of the court.”

The prosecutor responded: “[W]e’ve spoken about this in chambers. . . . [T]he state’s not objecting to the reckless manslaughter with a firearm charge coming in as a lesser included offense. ... I didn’t quite understand counsel as to whether he was withdrawing his request as to the intentional manslaughter with a firearm. If he is still pressing it, I would argue that the evidence doesn’t support the giving of that charge. [The defendant] testified [that] he couldn’t control his conduct at the time, he was too intoxicated. And my understanding based on the totality of this testimony was that . . . essentially, he didn’t know what he was doing. He also indicated in his statement that he was scared when he fired the shots. So, I don’t see any evidence of intent to merely cause serious physical injury.”

The court stated to defense counsel: “I think that’s consistent with what you just said . . . .” Defense counsel replied: “I think it is, too. . . . [C]learly, [the] reckless manslaughter charge applies here . . . along with intoxication. I leave it to the court’s discretion with respect to the intentional manslaughter. I am not pressing that. . . . I’m not really prepared to say I’m going to remove that from my body of requests, but if . . . someone put a gun to my belly and asked me to make the right decision, the odds are that I don’t think I could argue to this jury intentional manslaughter, but I know I can argue [recklessness]. And I hate being wishy-washy, I really do, and I apologize, Your Honor, if that’s the way it comes through, but I think some can [see] my dilemma here and for that purpose I think what I’ve said is about as much as I can say.” The court stated: “All right. At this point in time, from what I have heard, it is clearly my intent . . . from the evidence that has been produced here and the testimony, specifically, of the defendant, I think a fair and reasonable request would be to include a charge on intoxication and reckless manslaughter by means of a firearm. . . . Anything else you want to talk about right now?” Both counsel replied: “No, Your Honor.”

In its final instructions, the court instructed the jury on the charges of minder and reckless manslaughter in the first degree with a firearm as a lesser offense included within the crime of murder. In light of the defendant’s testimony that he was intoxicated at the time of the shooting because he had ingested both marijuana and a substantial amount of alcohol during the course of the evening and, therefore, could not control his actions, the court also instructed the jury on intoxication as a defense. At the conclusion of the court’s charge, both counsel indicated that they were not taking any exceptions to the instructions. The jury returned a guilty verdict on the murder charge, and the defendant was sentenced to a term of fifty years incarceration.

On appeal, the defendant claims that the court improperly failed to instruct the jury on the lesser included offense of intentional manslaughter in the first degree with a firearm. The state argues in response that the defendant is not entitled to review of this claim because he waived it when he withdrew his request for that instruction. The state further argues that the defendant is not entitled to review of his claim because it is unpreserved, and the defendant did not seek review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Finally, the state argues that even if the defendant’s claim is reviewable, it fails to satisfy the Whistnan test.

We are not persuaded that the defendant waived his claim. “Waiver consists of the intentional abandonment or voluntary relinquishment of a known right. . . . [It] involves the idea of assent, and assent is an act of understanding. . . . [W]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) State v. Ross V., 110 Conn. App. 1, 4-5, 953 A.2d 945, cert. denied, 289 Conn. 939, 958 A.2d 1247 (2008). The circumstances of this case, in particular, the argument and colloquy that took place at the charging conference, do not persuade us that the defendant waived his request that the court instruct the jury on the lesser included offense of intentional manslaughter in the first degree with a firearm. During that colloquy, defense counsel explicitly stated that he would leave it to the court’s discretion as to whether to charge the jury on that particular lesser included offense. Cf. State v. Fabricatore, 281 Conn. 469, 481, 915 A.2d 872 (2007) (concluding there was waiver when defense counsel expressly stated he was satisfied with challenged juiy instruction). The defendant’s failure to object once the court had declined to instruct the jury may bear on the issue of preservation, but it does not constitute waiver.

This leads us to the state’s argument that the defendant’s claim, if not deemed waived, was unpreserved. Under our mies of practice, to preserve a claim of instmctional error, a defendant must either cover the matter by a written request to charge or take exception immediately after the charge is delivered. Practice Book § 16-20. In this case, it is clear that the defendant did not take exception to the court’s charge after it was delivered. What is not clear is whether the defendant filed a written request to charge. The defendant asserts that the October 19, 2003 document was his formal written request to charge. Yet, the court, in its memorandum of decision on the defendant’s motion for rectification, stated: “At the commencement of jury selection, the court solicited the state and the defense to provide it with rough drafts of possible jury instructions which they might request of the court at the close of evidence. In response, the defendant’s attorney . . . submitted the [October 19, 2003] twenty-four page request to charge. The document constituted, in large measure, a compilation of jury instructions which [the defendant’s attorney] had apparently used in other, earlier cases. That the document was not meant to constitute a formal request to charge pursuant to Practice Book § 42-16 et seq. is demonstrated by the fact that it was filed prior to the presentation of evidence, and refers, at times, to other defendants and victims not connected to [this] case. In submitting this draft to the court, defense counsel never represented that he intended to file it with the clerk as a pleading, nor did he in fact do so.”

On the basis of our review of the October 19, 2003 draft request to charge, we agree with the court’s characterization of that document. Because that document was not filed with the court in compliance with Practice Book § 42-17, it cannot be considered a written request to charge in accordance with Practice Book § 16-20. As a consequence, the defendant did not properly preserve his claim under our rules of practice. Despite the failure to preserve, however, because the instruction at issue concerns a lesser included offense, a question is raised as to whether the Whistnant test supplants our general preservation requirements, in that the first prong of that test asks this court to determine whether the defendant requested “an appropriate instruction.” Whistnant, in a sense, supplies its own preservation requirement. See State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

The answer to this question is significant in the present case because, as we will discuss, relatively recent case law has expanded the concept of a “request for an ‘appropriate instruction’ ” under Whistnant to allow an appellate court to consider oral requests and colloquies with the court; see State v. Smith, 262 Conn. 453, 467-68, 815 A.2d 1216 (2003); whereas previously, if the request was not in writing, it was considered inadequate. See State v. Rudd, 62 Conn. App. 702, 706-708, 773 A.2d 370 (2001). Moreover, that same case law also provides that as long as the trial court’s attention was drawn to the factual and legal bases for the request, the defendant is regarded as having requested an “appropriate instruction.” See State v. Smith, supra, 467-68. Accordingly, under existing case law, an unpreserved claim that the court improperly refused to charge on a lesser included offense does not preclude the satisfaction of the first prong of the Whistnant test. As a result, we must determine whether Whistnant supersedes our general preservation requirements in these particular circumstances.

Our existing case law provides no clear answer to this question. In State v. Henning, 220 Conn. 417, 427, 599 A.2d 1065 (1991), the defendant did not request an instruction on the lesser included offense and took no exception to the charge as given by the court. Our Supreme Court first applied the general preservation rule, stating: “Since the defendant neither requested an instruction on [the lesser included offense] nor took an exception to the trial court’s charge, this court is not bound to review the defendant’s claim.” Id. The court, however, went on to analyze the defendant’s claim under Whistnant and assumed, “for the purposes of [its] analysis,” that the first prong was satisfied, even though its previous determination that the defendant did not request the instruction on the lesser included offense indicated that the first prong was not satisfied. Id., 428. In State v. Ortiz, 71 Conn. App. 865, 878, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002), this court, referring to Henning, stated: “Despite [Whistnant’s] mandating that one party must request a charge to be entitled to have the charge given to the jury, our Supreme Corut has reviewed an unpreserved Whistnant claim.” This statement indicates that we interpreted Henning to mean that the first prong of Whistnant does, in fact, supplant our general preservation analysis.

We therefore proceed to determine whether the defendant in the present case made a request for an “appropriate instruction” in accordance with the first prong of Whistnant. “In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, [179 Conn. 588] we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. . . . [T]he jury’s role as fact-finder is so central to our jurisprudence that, in those cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence. . . . Under Whistnant, the evidence is sufficiently in dispute where it is of such factual quality that would permit the [jury] reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. . . . Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on the evidence . . . from which inferences can fairly be drawn. . . . They should not [however] be encouraged to engage in speculation. ... On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense.” (Citations omitted; internal quotation marks omitted.) State v. Ray, 228 Conn. 147, 154-55, 635 A.2d 777 (1993).

“A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book § 854 [now § 42-18].” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 261, 681 A.2d 922 (1996). Practice Book § 42-18 (a) provides in relevant part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .” “[I]n the context of a written request to charge on a lesser included offense, [the] requirement of [Practice Book § 42-18] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) State v. Corbin, 260 Conn. 730, 746, 799 A.2d 1056 (2002).

In State v. Smith, supra, 262 Conn. 466, however, the defendant conceded that his written request to charge lacked a statement of the essential facts and, therefore, did not comply with all the provisions of Practice Book § 42-18. Our Supreme Court determined that this noncompliance did not conclusively indicate that the defendant failed to satisfy the first prong of Whistnant. State v. Smith, supra, 466. The court stated: “Although strict compliance with the provisions of [Practice Book] § 42-18 is certainly the least perilous method of satisfying Whistnant's first prong, failure to do so is not, by itself, fatal to the defendant’s claim. We have deemed the first prong of Whistnant satisfied when the record indicates that the trial court knew the precise point to which the defendant wished to call attention. . . . Indeed, even partial compliance "with [Practice Book] § 42-18, accompanied by substantial additional support in the record from either party, such as detailed colloquies with the court and opposing counsel and a postcharge exception, will also satisfy the first prong of Whistnant. This is true as long as the trial court is informed adequately of the factual and legal bases for the instructional request. . . .

“In [this] case, despite the deficiency in the written request, the colloquy among the trial court, the state and the defendant indicates that the trial court was aware of and understood the facts underlying the defendant’s request for the lesser included . . . instruction. The trial court, during the colloquy, acknowledged the significance of the defendant’s statement in the context of the request. Moreover, after the jury was charged, the defendant took an exception, further alerting the trial court to his disagreement with the refusal to give the lesser included offense instruction. Because the record . . . demonstrates that the trial court’s attention amply was drawn to the factual and legal bases for the request to charge on the lesser included offense, we conclude that the defendant requested an appropriate instruction, thereby satisfying the first prong of State v. Whistnant, supra, 179 Conn. 588.” (Citations omitted; internal quotation marks omitted.) State v. Smith, supra, 262 Conn. 466-68.

In the present case, the defendant argues that the October 19, 2003 document, which included a request for the court to instruct on intentional manslaughter in the first degree, coupled with his oral request for an instruction on intentional manslaughter in the first degree with a firearm made during the in camera discussion, amply drew the court’s attention to the factual and legal bases for his request to charge and, therefore, constituted a request for an “appropriate instruction” under Smith. The circumstances of this case, however, are distinguishable from those of Smith. In Smith, the defendant filed a formal, written request to charge, and the issue was that it “lacked a statement of the essential facts and, therefore, did not comply completely with the provisions of Practice Book § 42-18.” State v. Smith, supra, 262 Conn. 466. Aside from the fact that the defendant’s October 19,2003 document cannot be considered a written request to charge because the defendant failed to comply with Practice Book § 42-17, it is clear that the document makes no reference to the lesser included offense of intentional manslaughter in the first degree with a firearm, nor does it set forth the evidentiary basis for such an instruction.

In addition, the defendant failed to offer any factual or legal basis for his request to instruct on intentional manslaughter in the first degree with a firearm during the in camera discussion or the colloquy with the court. On both occasions, he stated that he might want an instruction on that specific lesser included offense, but he did not make an argument as to the evidence that supported the giving of that instruction. Moreover, the defendant did not take exception to the court’s charge as given and, therefore, failed to alert the court to his objection to the refusal to give the lesser included offense instruction. We cannot say, therefore, that the court was informed adequately of the factual and legal bases for the instruction at issue. We conclude that the defendant did not make a request for an “appropriate instruction” in accordance with the first prong of Whistnant. The defendant, therefore, was not entitled to a jury instruction on intentional manslaughter in the first degree with a firearm as a lesser offense included within the crime of murder.

The defendant further argues that “in the unlikely event [that] this court finds [that] the first prong [of Whistnant] has not been satisfied, the claim should be reviewed for plain error.” In support of this argument, the defendant cites State v. Horne, 19 Conn. App. 111, 144-45, 562 A.2d 43 (1989), rev’d, 215 Conn. 538, 577 A.2d 694 (1990). In Horne, this court held: “Even in the absence of ... a request . . . the trial court may, sua sponte, properly submit a lesser included offense to the jury. . . . Similarly, an appellate court may invoke the [Whistnant] doctrine where the trial court record justifies its application. . . . We may do so . . . and thus satisfy the first requirement.” (Citation omitted.) Id., 145.

Our decision in Home essentially created an exception to the first prong of Whistnant. The defendant incorrectly characterizes it as plain error review. In any event, the trial court record does not justify the application of this exception in the present case. A person is guilty of the crime of intentional manslaughter in the first degree with a firearm when, “(1) with the intent to cause serious physical injury to another person, (2) [he] caused the death of such person or a third person (3) using, or threatening to use by displaying or representing by his words or conduct, that he possesses a firearm.” (Emphasis in original; internal quotation marks omitted.) State v. Mourning, 104 Conn. App. 262, 270, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007). During the trial, when asked why he shot the victim, the defendant responded that he “was very intoxicated so . . . [he] really had no control over [his] actions,” and he “didn’t know what [he] was doing.” This testimony is entirely inconsistent with the defendant’s claim on appeal that when he shot the victim, he possessed the specific intent to cause serious physical injury to the victim. Therefore, we conclude that the evidence does not support an instruction on intentional manslaughter in the first degree with a firearm.

The judgment is affirmed.

In this opinion the other judges concurred.

       To establish a violation of General Statutes § 53a-54a (a), the crime of murder, the state must prove beyond a reasonable doubt that the defendant not only caused the death of the victim but did so with the specific intent to cause death.

       At the start of jury selection, the court instructed the parties “to provide it with rough drafts of possible jury instructions . . . which they might request of the court at the close of evidence.” In response, defense counsel submitted to the court a document dated October 19, 2003. That document contained a number of suggested jury instructions, including instructions on five lesser offenses included within the crime of murder.
      Those five lesser included offenses were manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2), manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1) and criminally negligent homicide in violation of General Statutes § 53a-58 (a).

       A person is guilty of intentional manslaughter in the first degree with a firearm when, “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person”; General Statutes § 53a-55 (a) (1); and “in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .” General Statutes § 53a-55a (a).

       A person is guilty of reckless manslaughter in the first degree with a firearm when, “under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”; General Statutes § 53a-55 (a) (3); and “in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .” General Statutes § 53a-55a (a).

       The court, in its memorandum of decision on the defendant’s motion for rectification, stated that “[t]o the extent this comment suggests that the October 19, [2003] request included a proposed instruction for first degree reckless manslaughter with a firearm, defense counsel obviously misspoke, as that document clearly contains no such request.”

       The court, in its memorandum of decision on the defendant’s motion for rectification, noted that defense counsel’s references to intentional manslaughter during this colloquy, when properly placed in context, relate to the crime of intentional manslaughter in the first degree with a firearm, as it had just been discussed in chambers.

       In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), our Supreme Court developed the following test to determine whether a trial court properly refused to give an instruction on a lesser included offense. “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. ” Id.

       See footnote 2.

       When the defendant appealed from his conviction directly to the Supreme Court on August 1, 2006, the October 19, 2003 document was not included in the record. On October 11,2007, the defendant filed a motion for rectification, requesting that the record be rectified to incorporate the October 19, 2003 document into the court file and be reflected on the docket sheets as being filed. On December 11, 2007, the trial court denied the motion for rectification because it found, among other things, that the October 19, 2003 request to charge was a preliminary draft of possible jury instructions that was not intended to constitute a formal request to charge.

        Moreover, the court determined that the unfiled draft request did not include an instruction on intentional manslaughter in the first degree with a firearm. Thereafter, the defendant filed a motion for review of the denial of his motion for rectification, requesting as relief that the October 19, 2003 document either be included in the court file or be marked as an exhibit. On January 23, 2008, the Supreme Court granted the motion to review but denied the relief requested.
      The defendant’s brief and accompanying appendix contained, respectively, quotations from the October 19,2003 request to charge and a complete copy of that document. On March 6, 2008, the state filed a motion requesting that the Supreme Court strike those portions of the defendant’s brief and appendix. The court denied the motion to strike on April 9, 2008. On May 21, 2008, the defendant’s appeal was transferred to this court.

       Practice Book § 42-17 provides in relevant part: “Written requests to charge the jury must be filed in triplicate with the clerk before the beginning of the arguments or at such earlier time during the trial as the judicial authority directs, and the clerk shall file them and forthwith hand one copy to the judicial authority and one to opposing counsel. . . .”

       See footnote 7.

       The court noted in a footnote that the defendant did not request review pursuant to Golding. See State v. Henning, supra, 220 Conn. 427 n.14.

       See also State v. Faria, 47 Conn. App. 159, 182-83, 703 A.2d 1149 (1997) (first prong satisfied despite incomplete factual statement in written request when court aware of legal and factual basis for request via off record chambers conference and on record colloquy), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998); State v. Preston, 46 Conn. App. 778, 783, 700 A.2d 1190 (1997) (defendant’s written request to charge and colloquy with court complied with first prong by alerting court to basis of request), rev’d on other grounds, 248 Conn. 472, 728 A.2d 1087 (1999).

       The defendant admitted during the charge conference that on the basis of the inconsistent mental states, “[he did not] think [he] could argue to this jury intentional manslaughter [in the first degree with a firearm].”

       Given this evidence, we also conclude that it was not plain error for the court not to instruct the jury on the lesser included offense of intentional manslaughter in the first degree with a firearm. “[This] court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Practice Book § 60-5. “Plain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 287-88, 963 A.2d 11 (2009).


author: GRUENDEL, J.

text:
    IN RE LYRIC H.

    (AC 29904)
    DiPentima, Gruendel and Lavery, Js.
    Argued March 18
    officially released May 26, 2009

      David J. Reich, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      John F. Daly III, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

GRUENDEL, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her minor daughter, Lyric. On appeal, the respondent claims that Lyric was entitled, under the state and federal constitutions, to conflict free legal representation in the termination proceedings and that she was deprived of that right. Because the record is not adequate for us to determine that Lyric’s attorney indeed had a conflict of interest, we do not reach the substantive claims set forth by the respondent and, accordingly, affirm the judgment of the trial court.

The facts and procedural history relevant to the respondent’s appeal are not in dispute. The petitioner, the commissioner of children and families, filed a petition seeking to terminate the respondent’s parental rights with respect to Lyric pursuant to General Statutes § 17a-112 (j) (3) (B) (i). Throughout the proceedings, John F. Daly III served both as Lyric’s guardian ad litem and as her attorney pursuant to General Statutes § 46b-129a (2). During his closing argument at trial, Daly made the following representation to the court: “I have visited Lyric at her foster home many times. I have found the surroundings to be quite appropriate. The house is a very large structure, which can easily hold five children and does so with ease. I’ve always found Lyric to be clean and well groomed, and she thinks of the foster home as her home—not a temporary home, but where she lives, grows and learns. . . . [W]e heard testimony that Lyric thinks of [her foster mother] as her psychological mother, and, as I’ve observed, I think that [the foster mother] will be a suitable and worthy adoptive parent.

“Now, why not the two biological parents? First of all, I don’t think either of them are evil, just unsuited. [The respondent] has led a nomadic existence. She’s gone from place to place. She’s now with her brother, but where will she be tomorrow, next week, next month, next year? And if Lyric were to trail along in her wake, what would happen to this little girl? Lyric needs the stability that she’s found in the foster home.

“And also, [the respondent] has a history of drug abuse and, yes . . . she is to be commended for seeking out treatment, but treatment has always failed. As late as [approximately five weeks ago] [the respondent] tested positive for marijuana. This is not something that we want a little girl to be exposed to, and, granted, today, [the respondent] is alert and oriented and clean and sober, but again, what of tomorrow, next month, next year? [The respondent’s] history is just too unstable, and she may have been the psychological parent at one time, but as [the psychologist] has testified, she is no longer. . . .

“Right now, Lyric is in a situation that works. And so my point, Your Honor, is that I ask this court to grant the petition for termination of parental rights. Let Lyric have a normal, stable, secure life.”

The respondent’s sole claim on appeal is that the foregoing excerpt from Daly’s closing argument evinces a conflict of interest between advocating for the express wishes of Lyric and advocating for a result that is in Lyric’s best interest. In support of her claim, the respondent cites a May, 2006 report authored by the court-appointed psychologist, noting, inter alia, that the respondent “fills the role of psychological parent for Lyric at this time.” That same report noted that “[a]t one point, [the respondent] said to [Lyric], ‘I want you to come and live with me.’ Lyric ignored this remark, asking her mother for a piece of gum in response. Overall, however, the two appeared to have a close relationship.” The respondent further cites a March, 2007 social study performed by the department of children and families (department) that notes that “Lyric has weekly visits with both [of her biological parents]. Lyric appears to have a strong bond with [both]. Lyric has cried after recent visits with [the respondent] stating she ‘wants her mommy.’ Lyric has stated when asked where she would like to live that she wants to live with mommy, daddy, maternal grandmother, or foster mother.” (Emphasis added.)

The respondent asserts that the foregoing evidence illustrates a desire on the part of Lyric for the respondent’s parental rights not to be terminated. The respondent further claims that Daly’s support of the petition to terminate her parental rights, despite Lyric’s supposed desire to the contrary, deprived Lyric of her right to conflict free representation.

We begin our analysis of the respondent’s claim by pointing out that the respondent did not preserve her claim by bringing it to the attention of the trial court. See Practice Book § 60-5 (“[t]he [reviewing] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial”). Rather, the respondent contends that the court knew or reasonably should have known that Daly had a conflict of interest and, as such, had an independent obligation to intervene and to conduct an investigation into whether Daly was representing Lyric in accordance with the Rules of Professional Conduct. The respondent further asserts that because Lyric’s attorney agreed with the petitioner that the respondent’s parental rights should be terminated despite, according to the respondent’s view, Lyric’s desire to the contrary, the court had a constitutional duty to appoint, sua sponte, a separate guardian ad litem.

The respondent’s claim on appeal and the facts of the present case are remarkably similar to those set forth in In re Christina M., 280 Conn. 474, 908 A.2d 1073 (2006). In that case, our Supreme Court addressed the claim of the respondents in a termination of parental rights action that “when a trial court has reason to believe that an attorney for a minor child is not advocating for that child’s express wishes, the court has an independent obligation to intervene and conduct an inquiiy to determine whether the attorney is representing the child in accordance with the Rules of Professional Conduct.” Id., 487. We conclude here, just as our Supreme Court did in In re Christina M., that the record in this case does not support the existence of a conflict of interest as claimed by the respondent. See id., 488.

Applying the conflict of interest analysis from a criminal context to the juvenile context, the court in the In re Christina M. decision noted: “ ‘There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial . . . or (2) when the trial court knows or reasonably should know that a particular conflict exists .... Before the trial court is charged with a duty to inquire, the evidence of a specific conflict must be sufficient to alert a reasonable trial judge that the defendant’s [constitutional] right to effective assistance of counsel is in jeopardy. . . .’ Accordingly, it is a high threshold that must be satisfied before the trial court affirmatively must inquire as to whether a conflict exists.” (Citation omitted.) Id., 489-90, quoting State v. Gaines, 257 Conn. 695, 706-709, 778 A.2d 919 (2001).

Utilizing the framework of analysis set forth in In re Christina M., even if we were to assume that Lyric has a constitutional right to effective, conflict free representation, and that the court had an obligation to act, sua sponte, if it knew or reasonably should have known that a particular conflict existed, the record in this case does not support the respondent’s claim that the court indeed knew or should have known that such a conflict existed. See In re Christina M., supra, 280 Conn. 493. The only evidence the respondent cites to demonstrate that there was a conflict between Lyric’s wishes and Daly’s position at trial are reports of the department and the court-appointed psychologist. The respondent cites the psychological evaluation indicating that she was Lyric’s psychological parent at one time (though this was no longer the case by the time of trial). She also cites language in a report indicating that Lyric “feels kind of sad . . . sometimes” about the fact that she is not living with either of her biological parents. The clearest example given by the respondent that may indicate a desire on the part of Lyric not to have the respondent’s parental rights terminated was set forth in the department’s social study: “Lyric has stated when asked where she would like to live that she wants to live with mommy, daddy, maternal grandmother, or foster mother.”

These examples do not, however, rise to a level that would cause the court to know that a particular conflict of interest exists. At the time of trial, Lyric was referring to her foster mother as “mommy” and considered herself to be a member of the foster family. The foster mother wanted to adopt Lyric, and the department supported such a plan. Despite uncontested evidence that Lyric, at the time of trial, had a relationship with her biological parents, the record is insufficient to support a determination that the court knew or reasonably should have known that a particular conflict existed between what Lyric wanted at the time of trial and what her attorney advocated. See In re Christina M., supra, 280 Conn. 494.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner, the commissioner of children and families, instituted these termination proceedings against both the mother and the father of the child, naming both as respondents. Only the mother has filed an appeal from the judgment of the trial court. For simplicity, all references to the respondent herein are to the mother.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court, upon notice and hearing . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent . . . unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ... (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court . . . to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . In a prior proceeding, Lyric was adjudicated neglected or uncared for, and the court ordered specific steps to facilitate the return of Lyric to the respondent.

       General Statutes § 46b-129a provides in relevant part: “In proceedings in the Superior Court under section 46b-129 ... (2) a child shall be represented by counsel knowledgeable about representing such children who shall be appointed by the court to represent the child and to act as guardian ad litem for the child. The primary role of any counsel for the child including the counsel who also serves as guardian ad litem, shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a conflict arises between the child’s wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litem for the child. The guardian ad litem shall speak on behalf of the best interest of the child and is not required to be an attomey-at-law but shall be knowledgeable about the needs and protection of children. In the event that a separate guardian ad litem is appointed, the person previously serving as both counsel and guardian ad litem for the child shall continue to serve as counsel for the child and a different person shall be appointed as guardian ad litem, unless the court for good cause also appoints a different person as counsel for the child. ...”

       The structure of the foster family was somewhat complex. The individuals who technically were Lyric’s foster parents were an elderly couple, one of whom died during the proceedings giving rise to the present appeal. The foster parents’ adult daughter lived with them in the foster home. It is this adult daughter who became Lyric’s psychological parent and who, at the time of the termination proceeding, was seeking to adopt Lyric. We refer to her as the foster mother for simplicity.

       It should be noted, however, that in a subsequent report from approximately fourteen months after the May, 2006 report, the same psychologist opined that “Lyric has a relationship with each of her parents, but neither of them has been able to provide her with the security and consistent nurturance she requires on a day to day basis. She currently looks to her foster mother for these things, and the foster mother appears to fill the role of psychological parent. . . . Neither the mother nor the father currently fills the role of psychological parent for Lyric.”

       Because a lack of standing would implicate our subject matter jurisdiction; In re Christina M., 280 Conn. 474, 480, 908 A.2d 1073 (2006); we point out that the respondent indeed has standing to assert these claims on behalf of Lyric. In In re Christina M., our Supreme Court held, in a similar situation, that the rights of parents involved in termination of parental rights proceedings “are inextricably intertwined with those of their children.” Id., 487. As such, it concluded that parents in such proceedings have standing to assert the constitutional rights of their children. Id.; see also In re Melody L., 290 Conn. 131, 157, 962 A.2d 81 (2009).

       In In re Christina M., our Supreme Court explicitly declined to address the question of whether children in Lyric’s position have a constitutional right to effective assistance of counsel because the record in that case did not “reflect that there was an apparent conflict between the wishes of the children and the position advocated by their attorney.” In re Christina M., supra, 280 Conn. 476. We similarly decline to reach that question in light of the inadequacy of the record in the present case.

       The respondent also cites several other examples with similar content to those set forth previously in support of her argument on appeal.