author: DALY, J.

text:
    STATE OF CONNECTICUT v. BROOKS TURNER
    (AC 20332)
    Schaller, Flynn and Daly, Js.
    Argued September 21, 2001
    officially released January 1, 2002

      Francis L. O’Reilly, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Brooks Turner, appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a), possession of a weapon in a motor vehicle in violation of General Statutes (Rev. to 1997) § 29-38, criminal possession of a firearm in violation of General Statutes (Rev. to 1997) § 53a-217 (a) and criminal possession of a pistol in violation of General Statutes § 53a-217c (a) (1). The defendant claims that the trial court improperly (1) used inflammatory language during its description of circumstantial evidence to the juiy and (2) diluted the state’s burden of proof when it incorrectly instructed the jury on the defendant’s consciousness of guilt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 11 p.m. on November 14, 1997, the defendant was driving his motor vehicle with three female passengers, Marketta Williams, Marissa Coles and Starr Coles. The defendant parked his car on Elm Street in New Haven and exited the vehicle with Marissa Coles, leaving Williams in the front passenger seat and Starr Coles in the backseat behind Williams. Approximately fifteen minutes later, Officer John C. Magoveny and Sergeant Raymond Hassett of the New Haven police department, in separate vehicles, approached the defendant’s vehicle. Magoveny parked his vehicle facing the defendant’s vehicle, and Hassett parked his vehicle behind the defendant’s vehicle. Both police vehicles were angled to illuminate the interior of the defendant’s vehicle. Magoveny inquired of Williams at the passenger side window whether her vehicle was disabled. Williams responded: “No, we’re straight, we’re straight.” Hassett was at the rear of the defendant’s vehicle, looking at the license plate and talking on his radio.

Magoveny heard footsteps from the alleyway that was peipendicular to where the defendant’s vehicle was parked. He glanced over the car from the passenger side and saw the defendant approaching the driver’s side with Marissa Coles following close behind. Magoveny observed the defendant holding a gun waist high, pointed out straight. Magoveny realized that Hassett had not noticed that the defendant approached them with a gun and tried to warn Hassett in code to use extreme caution. The defendant and Marissa Coles proceeded to get into the car, the defendant in the front seat and Coles in the back. Magoveny aimed his service weapon through the passenger side window and shouted to everyone in the car to show him their hands. Magoveny observed the defendant place the weapon under the driver’s seat and then place his hands on the steering wheel while staring straight ahead. Hassett went from the back of the vehicle to the driver’s side, opened the door and removed the defendant from the vehicle, then handcuffed him and escorted the defendant to a police vehicle. Magoveny removed the gun from under the driver’s seat. Thereafter, the defendant was convicted and this appeal followed.

Both of the defendant’s claims pertain to the jury instructions. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. ” (Internal quotation marks omitted.) State v. Cramer, 57 Conn. App. 452, 460, 749 A.2d 60, cert. denied, 253 Conn. 924, 754 A.2d 797 (2000).

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged. ... It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. ... A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and . . . afford[s] proper guidance for their determination of whether those elements were present. . . . Furthermore, it is well established that [a]n instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional.” (Citations omitted; internal quotation marks omitted.) State v. Valinski, 254 Conn. 107, 120, 756 A.2d 1250 (2000). With that standard in mind, we now turn to the defendant’s claims.

I

The defendant first claims that the court improperly used inflammatory language during its description of circumstantial evidence by giving the following example: “[M]y clerk reaches in the [drawer], I’ll take it away from him, all right, reach in the [drawer] in front of me and pick out a pistol, aim it at the sheriff. You see me squeeze the trigger. You hear a bang, maybe a little smoke comes out the front of the pistol. The sheriff grabs his arm, and you see a red spot on — from between his fingers. Unless you’ve got the extra vision of Superman, you didn’t see the bullet leave the pistol, travel the arc — through the air and strike [him]. You saw the trigger being pulled, you heard a bang, a little bit of smoke, the sheriff grabbing his arm, and blood. So, you infer, from all that, that the bullet left the chamber of the pistol, traveled across the room and hit him; that’s circumstantial. One’s as good evidence as the other.” Specifically, the defendant argues that this example of circumstantial evidence was highly prejudicial because it inflamed the passions of the jury and practically directs a verdict for the state. We do not agree.

We initially note that the defendant seeks review of his claim under States. Golding, 213 Conn. 233, 567 A.2d 823 (1989), which applies to unpreserved constitutional claims. Although it is true that the defendant did not object to the example given by the court, he did preserve his claim for our review by his written request to charge on circumstantial evidence. Practice Book § 42-16. Golding review, therefore, is not required.

“[T]he use of a proper example in jury instructions serves to make less abstract and more comprehensible the meaning of a complex legal concept or term. The same considerations, however, would indicate that a jury may give undue weight to examples because they are easier to understand and may even simply compare the defendant’s actions with the example. To prevent these adverse effects, the trial judge must clearly indicate that the examples are only examples, and that the jury must determine guilt or innocence by following the jury instructions as a whole. . . . An illustration is not objectionable merely because it bore hardly upon the defendant, or only because the transaction of which he was charged was one of like character, and indicative of the same intent. ... In considering whether an illustration is fair or prejudicial, it is necessary to consider the instructions as a whole and all the facts and circumstances surrounding the trial and shown by the evidence, such as the complexity or simplicity of the issues and the multiplicity of facts. . . . The extent to which a judge will use hypothetical examples and discuss particular possible factual issues must be left largely to his discretion.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Hines, 187 Conn. 199, 210-11, 445 A.2d 314 (1982).

Our Supreme Court has approved the use of examples by the trial court in jury instructions. In State v. Hines, supra, 187 Conn. 208-209, the trial court’s instructions included an example of self-defense that was very similar to the facts in that case. The example stated by the court was: “Now, let me give an example. Suppose Mr. Smith attacks me with a knife and suppose I repel him by taking the knife away from him, I would not be justified in that instance in then placing the knife in his body, because the danger is now past.” (Internal quotation marks omitted.) Id., 208. The defendant in Hines claimed that the court’s example had the effect of removing the issue of self-defense from the jury’s consideration and misled the jury. Our Supreme Court concluded that the example “did not have the effect of taking the decision on the issue of self-defense away from the jury. It was merely an example; the court specifically said it was. . . . The factual circumstances in the evidence concerning it were left for the jury to pass upon. The example cannot be said to be an unfair statement of the law which it was offered to illustrate. It can hardly be characterized, as the defendant contends, as a ‘direction’ to the jury. Nor did it contain any ‘distinct intimation’ to the jury that this issue was no longer for it to decide because the court was directing it to decide that issue in a given fashion. ... It is stretching matters too far to say that the use of this example, in connection with the proposition of law involved, was such as to warrant a reversal on the theory that the use of it, as the defendant appears to suggest, brought about his conviction.” (Citations omitted.) Id., 212-13.

The example here is similar to that given in Hines. The court specifically stated that it was giving an exam-pie of direct and circumstantial evidence, and that there was no legal distinction between the probative value of the two types of evidence. The court continued to instruct the jury specifically that the factual circumstances in the evidence were left for the jury to pass upon. The example here also cannot be said to be an unfair statement of the law of circumstantial evidence of which it was offered to illustrate. As in Hines, the example can hardly be characterized as a “direction” to the jury. Furthermore, nowhere in the instruction was there a “distinct intimation” to the jury that this issue was no longer for it to decide. The court, in fact, repeatedly informed the jury that it was the sole fact finder. We conclude, therefore, that the court’s example was not improper.

II

The defendant next claims that the court improperly diluted the state’s burden of proof when it incorrectly instructed the jury on the defendant’s consciousness of guilt. Specifically, the defendant argues that the court improperly stated: “The defendant’s possession of or attempt to conceal anything, which is a part of the crime, might be offered because such conduct or statements tend to show a consciousness of guilt.” The defendant argues that the fact that he possessed a weapon was not a proper ground for a consciousness of guilt instruction because the ultimate questions before the jury were whether he possessed the pistol, without a permit, while he was a felon and with an obliterated serial number. We decline to review that claim.

The defendant admits that his claim was not properly preserved at trial; therefore, he seeks appellate review pursuant to State v. Golding, supra, 213 Conn. 239-40. In Golding, our Supreme court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Vicente, 62 Conn. App. 625, 629, 772 A.2d 643 (2001).

The defendant’s claim is not of constitutional magnitude. “It has . . . been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the . . . Golding standard.” (Internal quotation marks omitted.) State v. Payne, 63 Conn. App. 583, 595, 777 A.2d 731, cert. granted on other grounds, 257 Conn. 904, 777 A.2d 195 (2001). We therefore decline to review the defendant’s unpreserved claim as to the court’s consciousness of guilt instruction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon one’s person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes (Rev. to 1997) § 29-38 provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . .”

       General Statutes (Rev. to 1997) § 53a-217 (a) provides: “A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and has been convicted of a capital felony, a class A felony, except a conviction under section 53a-196a, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196b, a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153, or a class D felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and has been convicted of a felony or of a violation of subsection (c) of section 21a-279, section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d . . . .”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    HAROLD BRENT v. SANDRA P. LEBOWITZ
    (AC 21073)
    Landau, Schaller and Mihalakos, Js.

      Argued September 25, 2001
    officially released January 1, 2002

      Emily J. Moskowitz, with whom was Robert J. Kor, for the appellant (defendant).

      Mark Miller, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendant, Sandra P. Lebowitz, appeals from the judgment of the trial court ordering past due child support to be paid by the plaintiff, Harold Brent, in an amount less than that prescribed by the child support guidelines. The defendant claims that the court improperly (1) failed to award child support retroactively to the date of birth of the minor child, (2) based its failure to order retroactive child support on a prior agreement of the parties, and (3) failed to apply the child support and arrearage guidelines (guidelines) to the child support arrearage owed by the plaintiff. We reverse the judgment of the trial court.

The following undisputed facts are relevant to our disposition of the defendant’s appeal. The parties, who have never been married to one another, are the parents of a minor child born on July 20, 1995. In March, 1996, the parties entered into an agreement whereby the plaintiff acknowledged the minor child as his daughter and agreed to pay $400 per month child support. In November, 1996, the defendant signed a letter memorializing the March agreement.

On December 7, 1998, the plaintiff filed a complaint seeking visitation with the child. In her answer, the defendant denied that the plaintiff was the father of the child. The defendant, however, in her cross complaint for custody, requested current child support and child support arrearage from the plaintiff. On January 13, 1999, the court referred the case to family relations for visitation mediation and ordered the parties to return to court to determine financial issues. Thereafter, the court ordered the plaintiff to pay, from January 13, 1999, current child support in accordance with the guidelines and child support arrearage in accordance with the parties’ agreement. This appeal followed.

“As has been repeatedly stated by this court, judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did. . . . Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). Our function in reviewing such discretionary decisions is to determine whether the decision of the trial court was clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061 [now § 60-5]. Turner v. Turner, 219 Conn. 703, 709, 595 A.2d 297 (1991). With respect to the financial awards in a [custody matter], great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. . . . Holley v. Holley, supra, 29.” (Internal quotation marks omitted.) Unkelbach v. McNary, 244 Conn. 350, 366, 710 A.2d 717 (1998). For that reason, we allow “every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Internal quotation marks omitted.) Charpentier v. Charpentier, 206 Conn. 150, 155, 536 A.2d 948 (1988); see also Unkelbach v. McNary, supra, 366.

The defendant first claims that the court improperly failed to award child support retroactively to the date of birth of the minor child. Because our resolution of the remaining claims is dispositive of the defendant’s appeal, we do not reach this claim.

The defendant next claims that the court improperly failed to apply the guidelines to its order for child support arrearage by finding that the issue was controlled by a prior agreement of the parties. Finally, the defendant claims that the court improperly failed to apply the guidelines to the child support arrearage owed by the plaintiff. We agree with the defendant. Because the defendant’s second and third claims are interrelated, we address them together.

General Statutes § 46b-215b provides that the guidelines shall be considered in all determinations of child support amounts, including child support arrearages. Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies provides in relevant part that “the amount of the arrearage [payments] calculated under section 46b-215a-4a of the Regulations of Connecticut State Agencies, are presumed to be the correct amounts to be ordered. The presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case. Any such finding shall state the amount that would have been required under such sections and include a justification for the variance. Only the deviation criteria described in this section establish sufficient bases for such findings.”

The guidelines “[require] the trial court first [to] determine on the record the amount of support indicated by the guidelines schedule before determining whether to deviate from that amount.” (Internal quotation marks omitted.) Unkelbach v. McNary, supra, 244 Conn. 369. Furthermore, “[a]rrearage payments are addressed at length and in extensive detail in the guidelines, and as a result the trial court’s discretion in setting arrearage payments is closely circumscribed by the breadth of the law that it must apply.” Id., 367.

The defendant argues that the court improperly based the child support arrearage order on the March, 1996 agreement because, as a parent, she cannot contract away the rights of her child. Furthermore, she argues that she was coerced into signing the agreement.

The facts in this case are analogous to those in Baker v. Baker, 47 Conn. App. 672, 707 A.2d 300 (1998). In Baker, the trial court had issued a support order in accordance with the parties’ previous financial agreements without identifying the deviation criteria that justified the order. This court stated that “[b]ecause the trial court did not justify its decision to deviate from the guidelines on one of the deviation criteria set forth in the regulations, we cannot conclude that the trial court properly relied on the terms of the parties’ previous financial agreements to justify a deviation from the guidelines.” Id., 677. Accordingly, support agreements that are not in accordance with the financial dictates of the guidelines are not enforceable unless one of the guidelines’ deviation criteria is present, such as when the terms of the agreement are in the best interest of the child. See Regs., Conn. State Agencies § 46b-215a-3 (b) (6) (B).

The plaintiff argues that the court properly concluded that retroactive application of the guidelines would be inappropriate because the court found that the plaintiff had not neglected or refused to make payments as required by General Statutes § 46b-215. That argument is misplaced.

The court did not follow the procedures mandated by § 46b-215b and the guidelines with regard to child support arrearage. There was no calculation of the presumptively correct support order. The court did not make a specific finding on the record that application of the general rule would be inequitable or inappropriate under these circumstances. The court merely stated that “[a]fter reviewing the testimony and briefs filed by the parties, the court finds that the agreement of the parties is controlling up to and including January 13, 1999

The court did not substantiate its decision by making the explicit findings mandated by the guidelines, nor did it restrict its deviation to the criteria prescribed by the guidelines. Thus, the court improperly applied the law, and, therefore, abused its discretion.

The judgment is reversed as to the determination of child support arrearage and the case is remanded for a determination of the plaintiffs child support arrearage in accordance with the child support guidelines.

In this opinion the other judges concurred.

       Although the plaintiff filed a motion to appoint an attorney for the child, none was appointed.

       It does not appear from the record that the plaintiff filed a financial affidavit.

       General Statutes § 46b-215b (a) provides in relevant part: “The child support and arrearage guidelines promulgated pursuant to . . . section 46b-215a shall be considered in all determinations of child support amounts and payment on arrearages and past due support within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support or payment on any arrearage or past due support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.”

       Section 46b-215a-1 (2) of the Regulations of Connecticut State Agencies provides in relevant part: “ ‘Arrearage’ is synonymous with ‘past-due support’ and means any one or a combination of the following . . . (C) support due for periods prior to an action to establish a child support order, provided such amounts are based upon the obligor’s ability to pay during the prior periods if known or, if not known, on the obligor’s current ability to pay if known or, if not known, upon assistance rendered to the obligor’s child.”

       The court found that “both parties entered into these agreements willingly with full knowledge of their financial impact.” The defendant did not ask the court to articulate the factual basis of that finding. It is the appellant’s duty to furnish this court with a record that is adequate to afford review. See Practice Book § 60-5. In light of the inadequate record, we decline to review this claim. See Narcisco v. Brown, 63 Conn. App. 578, 581, 777 A.2d 728 (2001).


author: PER CURIAM.

text:
    GERTRUDE T. BERGEN v. MICHAEL BELFONTI
    (AC 21299)
    Schaller, Mihalakos and Shea, Js.
    Argued November 28, 2001
    officially released January 1, 2002

      Eric R. Gaynor, for the appellant (defendant).

      Robert C. Lubus, Jr., with whom, on the brief, was Dana B. Lee, for the appellees (substitute plaintiffs).

       During the pendency of this action, the plaintiff, Gertrude T. Bergen, died, and Claudia Bergen and Paula Bergen, coexecutrices of the plaintiffs estate, were substituted as plaintiffs.

   Opinion

PER CURIAM.

This is an appeal brought by the defendant, Michael Belfonti, from the judgment of the trial court ordering payments of $500 per week on a judgment against him in the amount of $634,376.97.

The defendant raises four issues on appeal. The substance of these claims is that the evidence adduced at the hearing did not support the court’s imposition of an order of $500 weekly payments.

Our examination of the record and briefs and our consideration of the arguments of the parties persuade us that the judgment of the court should be affirmed. The issues regarding the underlying factual dispute were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. See Bergen v. Belfonti, 47 Conn. Sup. 291, 791 A.2d 723 (2000). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.

       The defendant’s statement of the issues presented on appeal is:
      “1. Did the Trial Court err in granting Plaintiffs Amended Motion for Weekly Order of Payments per [General Statutes] § 52-356d withoutproperly and completely considering Judgment-Debtor’s financial circumstances as required by said statute?
      “2. Did the Trial Court err in granting Plaintiffs Amended Motion for Weekly Order of Payments per [General Statutes] § 52-356d in the amount of $500.00 per week when the evidence presented at the May 23,2000 hearing did not support that finding?
      “3. Did the Trial Court err in finding, as found in its Ruling on Plaintiffs Motion for Order of Payments dated August 2, 2000, that ‘it is reasonable to conclude that the defendant’s ‘financial circumstances’ will substantially exceed [an] annual salary of $52,000.00 in the year 2000’ when no such direct evidence of same was presented to the Trial Court?
      “4. Did the Trial Court err in denying Defendant’s Motion to Reargue?”


text:
    STATE OF CONNECTICUT v. CLARENCE E. PHILLIPS, JR.
    (AC 20843)
    Mihalakos, Dranginis and Daly, Js.
    Argued September 27, 2001
    officially released January 1, 2002

      Jerald S. Barber, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Adam Scott, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Clarence E. Phillips, Jr., appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of two counts of attempt to commit assault of a peace officer in violation of General Statutes § 53a-49 (a) (2) and General Statutes (Rev. to 1997) § 53a-167c (a) (1), and of one count of engaging police in pursuit in violation of General Statutes § 14-223 (b). On appeal, the defendant claims that the trial court abused its discretion when it permitted the state to file a substitute information, after the commencement of jury selection, alleging an attempt to commit the substantive offenses with which the defendant was previously charged. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In a nine count information dated December 7,1998, the state charged the defendant with, inter alia, two counts of assault of a peace officer in violation of § 53a-167c. On August 5, 1999, the state filed a ten count substitute information again charging the defendant with, inter alia, two counts of assault of a peace officer in violation of § 53a-167c.

On May 2, 2000, prior to the commencement of jury selection, the defendant orally moved for a bill of particulars or long form information, which the court granted. Thereafter, jury selection commenced. In its preliminary charge to the venire panel, the court summarized the charges as including two counts of assault of a peace officer in violation of § 53a-167c.

On May 5, 2000, the state filed its first substitute long form information, charging nine counts that included, inter alia, two counts of assault of a peace officer in violation of § 53a-167c (a) (2). Specifically, the state alleged that the defendant, “acting with intent to prevent a reasonably identifiable peace officer, William Proulx, from performing his duty . . . caused to be hurled an object, to wit, a motor vehicle, capable of causing physical harm, damage or injury, at such peace officer . . . .” The same allegations against the defendant were made with regard to Officer Tracy O’Connell. Later that day, the state filed a second substitute long form information that was the same as the prior substitute information except that it changed the first two counts from assault of a peace officer in violation of § 53a-167c (a) (2), to attempt to commit assault of a peace officer in violation of §§ 53a-49 (a) (2) and 53a-167c (a) (1). The information alleged that the defendant, “acting with intent to prevent a reasonably identifiable officer, William Proulx, from performing his duty, attempted to cause physical injury to Officer Proulx . . . .” Again, the same allegation against the defendant was made with regard to O’Connell.

On May 9, 2000, defense counsel filed a motion in opposition to the state’s request to file a second substitute information, which the court denied. Thereafter, the defendant pleaded nolo contendere to two counts of attempt to commit assault of a peace officer in violation of §§ 53a-49 (a) (2) and 53a-167c (a) (1), and to one count of engaging police in pursuit in violation of § 14-223 (b). The defendant conditioned his plea on his right to appeal from the trial court’s decision granting the state’s request to file a second substitute information. The court sentenced the defendant to a total effective term of three and one half years incarceration concurrent to the sentence he was then serving. This appeal followed.

I

The defendant claims that the court improperly permitted the state to file a second long form information in violation of Practice Book § 36-18. He argues that the second substitute information charged an “additional or different” offense from the one charged in the first substitute information because the intent elements of each charge were different. First, we will determine whether the second substitute information charged an “additional or different” offense and second, whether the defendant’s substantive rights were prejudiced by the amendment.

“Before the commencement of trial, a prosecutor has broad authority to amend an information under Practice Book § 623 [now § 36-17], Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 624 [now § 36-18].” State v. Tanzella, 226 Conn. 601, 607, 628 A.2d 973 (1993). This court has held that “for purposes of Practice Book §§ 623 [now § 36-17] and 624 [now § 36-18], a criminal trial begins with the voir dire of the prospective jurors.” State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986). The second substitute information in the present case was filed after the commencement of jury selection. Thus, Practice Book § 36-18 governs the state’s ability to amend the information in the present case.

Under Practice Book § 36-18, the court may “for good cause shown . . . permit the prosecuting authority to amend the information at any time before a verdict or finding . . . .” Practice Book § 36-18. “The sole limiting requirement under [Practice Book] § 624 [now § 36-18], is that no additional or different offense may be charged in an amendment, and no substantive rights of the defendant may be prejudiced by an amendment. . . . It is within the trial court’s discretion to allow an amendment to the information. On appeal, review of the trial court’s decision to permit an amendment to the information is one of abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Prat, 66 Conn. App. 91, 98-99, 784 A.2d 367 (2001). Accordingly, our review of the court’s decision to permit the state to file a second substitute information after the commencement of trial is governed by an abuse of discretion standard.

The second substitute information made two changes to the charges against the defendant. It charged a different subdivision of the assault of a peace officer statute and it charged an attempt to commit the offense rather than the completed offense. The defendant relies on State v. Raymond, 30 Conn. App. 606, 621 A.2d 755 (1993), for the proposition that the charges of assault of a peace officer and attempt to commit assault of a peace officer are different offenses. Raymond, however, is distinguishable from the present case because the offenses in Raymond are not the same as those at issue in the present appeal. Additionally, Raymond dealt with the comparison of offenses for the purpose of a double jeopardy analysis. “Although we compare elements to determine if offenses are the same for purposes of double jeopardy . . . such an analysis is inappropriate here. For purposes of [Practice Book] § 624 [now § 36-18], the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense.” (Citation omitted.) State v. Tanzella, supra, 226 Conn. 608. This includes whether the defendant has sufficient notice of the accusations against him to question jurors effectively. Id.

In the present case, the short form information, in effect at the commencement of the voir dire, char ged the defendant with the substantive offense of assault of a peace officer pursuant to § 53a-167c. General Statutes § 54-60 provides in relevant part: “Whenever any . . . information or complaint is pending before any court, a conviction may be had for any offense sufficiently alleged therein . . . .” Because that information did not specify a particular subdivision of § 53a-167c (a), it provided the defendant with notice that he could be convicted, pursuant to § 54-60, under any of the subdivisions of § 53a-167c (a).

Additionally, under “Practice Book § 867 [now § 42-29] and General Statutes § 54-60 ... a criminal defendant can be convicted of either the crime charged in the information or of the attempt to commit that crime.” State v. March, 39 Conn. App. 267, 271, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995). Neither § 54-60 nor Practice Book § 42-29 requires that an attempt to commit the crime charged in the information must necessarily be a lesser included offense of that crime. See State v. March, supra, 272. Hence, the defendant had statutory notice that he could be convicted of “any offense sufficiently alleged” in the initial information and of an attempt to commit the substantive offense charged therein. Consequently, if the defendant could be convicted of these charges under the initial information then indeed it would not be an abuse of discretion to allow the state to charge him with them before the end of trial. In support of our decision, we are guided by our Supreme Court’s decision in State v. Tanzella, supra, 226 Conn. 601.

In Tanzella, our Supreme Court held that for purposes of Practice Book § 624, now § 36-18, because the subdivisions of the statute at issue in that case described different methods by which the party could have committed the crime, the different subdivisions did not constitute “different crimes but simply different means of committing the same crime . . . .” State v. Tanzella, supra, 226 Conn. 613. We find the present case analogous to Tanzella because the state did not charge the defendant with an “additional or different” crime when it amended the charge from a violation of § 53a-167c (a) (2) to a violation of § 53a-167c (a) (1). It merely changed the method by which it alleged that the defendant had committed the same crime, that is, assault of a peace officer.

Because the defendant had notice that he could be convicted of attempt to commit the substantive offense of which he was charged and because we conclude that subdivisions (1) and (2) of § 53a-167c (a) are not different, crimes but rather two ways of committing the same crime, we conclude that the second substitute information in the present case did not violate the defendant’s rights under Practice Book § 36-18 by charging him with an “additional or different,” offense.

II

Having determined that the amendments to the information did not charge an “additional or different” offense, we now consider whether the amendments prejudiced the defendant’s substantive rights. The defendant claims that his defense was prejudiced because his counsel’s voir dire of the prospective jurors was premised on the previous information. He asserts that because the substitute information was allowed, he was not afforded the opportunity to “question the venire [panel] effectively to uncover and analyze any bias or prejudice that they may harbor as to the particular crime or crimes charged.” We conclude that the defendant was not prejudiced.

“Practice Book § 624 [now § 36-18] is primarily a notice provision. Its puipose is to ensure that the defendant has adequate notice of the charges against which he must defend. ... It is the defendant’s burden to provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend.” (Internal quotation marks omitted.) State v. Prat, supra, 66 Conn. App. 98-99. In State v. March, supra, 39 Conn. App. 272, we held that “[Practice Book] § 867 [now § 42-29] and [General Statutes] § 54-60 are constitutionally sufficient to put a criminal defendant on notice that he can be convicted of an attempt to commit the crime charged as well as any lesser included offenses of the crime as charged.” Thus, there is no merit to the defendant’s claim that he lacked notice during voir dire of the crimes against which he had to defend. Additionally, the defendant has failed to provide us with support for his claim that he was prejudiced by the second substitute information. We, therefore, conclude that under the circumstances of this case, the trial court did not abuse its discretion by allowing the state to file the second substitute information after the commencement of trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53a-167c (a) provides in relevant part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer ... or (2) he throws or hurls, or causes to be thrown or hurled, any rock, bottle, can or other article, object or missile of any kind capable of causing physical harm, damage or injury, at such peace officer . . . .”

       The substitute information filed on the morning of May 5, 2000, was in fact the second substitute information filed in this ease. Because, however, it was the first substitute long form information that was filed and because the parties refer to it in their appellate briefs as the “first” substitute informa.tion, we will refer to it as such.

       At the time, the state noted that it would file a nine count information, leaving the count charging the defendant with operation of a motor vehicle without minimum insurance to be tried to the court after the jury trial.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental slate required for commission of the crime, he . . . (2) intentionally does or omits 1 o do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       Although the defendant asserts that he is appealing from the decision of the court overruling his motion in opposition to the state’s request to file a second substitute information, for clarity, we refer to the defendant’s appeal as an appeal from the decision of the court granting the state’s request to file a second substitute information.

       Practice Book § 36-18 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       Although the trial court record does not contain an explicit finding of good cause for the amendment, we note that defense counsel did not object to the amendment on that ground. His argument focused on the two other restrictions under Practice Book § 36-18 against charging an “additional or different” offense and prejudicing the defendant’s substantive rights. In this case, we conclude that the existence of good cause is implicit in the court’s decision to allow the second substitute information. See State v. McKnight, 191 Conn. 564, 588, 469 A.2d 397 (1983).

       The statutes at issue in State v. Raymond, supra, 30 Conn. App. 606, were § 53a-167c (a) (1), assault of a peace officer, and General Statutes §§ 53a-49 (a) (1) and 53a-59 (a) (2), attempt to commit assault in the first degree. The statutes involved in the present case, however, are § 53a-167c (a) (2), assault of a peace officer, and §§ 53a-49 (a) (2) and 53a-167c (a) (1), attempt to commit assault of a peace officer.

       Practice Book § 42-29 provides in relevant, pari,: “The defendant, if found not guilty of the offense charged, may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein, if the attempt is an offense."

       General Statutes § 54-60 provides: “Whenever any indictment, information or complaint is pending before any court, a conviction may be had for any offense sufficiently alleged therein or for an attempt to commit such offense, and the accused may be convicted or such court may accept a plea of guilty for any of such offenses.”


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. KHARI MILLER
    (AC 21471)
    Lavery, C. J., and Landau and Healey, Js.
    Argued September 13, 2001
    officially released January 8, 2002

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and David Zagaja, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Khari Miller, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. On appeal, he claims that the court (1) improperly denied his motion to suppress his statement to the police and (2) inadequately instructed the juiy on self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the night of October 1, 1998, the defendant and two others were talking in the front yard of a house on Burnham Street in Hartford. Shortly before midnight, the victim drove up to the house. He parked, leaving his three year old son in the car, and joined the men. The victim initially was calm, but soon thereafter began to shout at the defendant.

After three to five minutes, the conversation turned violent, and the defendant shot the victim in the neck from a distance of four or five feet. The victim ran to his car and began to drive away, but crashed into a nearby fence. He died shortly thereafter as a result of the shooting. The police considered the defendant, who had left the scene, to be a suspect.

The next day, October 2, police officers saw the defendant getting into a car. They stopped the car and arrested him pursuant to an outstanding warrant related to an alleged felony murder committed on January 25, 1998. The defendant was taken to the police station for questioning and signed a Miranda waiver for the January, 1998 murder. While being questioned about that murder, he made an inculpatory statement about the October, 1998 murder that is the subject of this appeal. The police also found a gun wrapped in a shirt in the backseat of the car. They later determined that it was the one used to shoot the victim.

The defendant was charged with murder in violation of § 53a-54a and possession of a weapon in a motor vehicle in violation of § 29-38. After waiving his right to a probable cause hearing, he entered a plea of not guilty and elected a jury trial. On January 11, 2000, the court heard evidence and denied the defendant’s motion to suppress a statement that he had made at the police station following his arrest.

The trial began on January 20, 2000. The defendant maintained that the shooting and killing of the victim was done in self-defense. On January 28, the jury found the defendant guilty of both crimes. He was sentenced on March 28 to a total effective sentence of fifty years incarceration. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

The defendant claims that the court improperly denied his motion to suppress a statement he allegedly had made to police about the October murder while they were questioning him about the January, 1998 murder. He argues that the arrest on an eight month old warrant the day after the October, 1998 murder was a pretext “in and of itself’ for questioning him about this case. On the basis of that assumption, he argues that his statement was involuntary under the state and federal constitutions, regardless of whether it was unsolicited. We are not persuaded.

We review a trial court’s findings and conclusions regarding a motion to suppress using a well established standard. “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . . ” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001); see also Practice Book § 60-5. Our review is plenary for questions of law. State v. Clark, supra, 279.

According to the two detectives who testified during the suppression hearing, the defendant was told that they wanted to question him about the January, 1998 murder only. Although he was a suspect in the October, 1998 murder, the police did not have enough evidence about it to secure an arrest warrant. The defendant expressed a willingness to talk and signed a Miranda waiver that listed the docket number for the January, 1998 case at the top. While he was being questioned about the January murder, the defendant blurted out a statement about the October murder.

By contrast, the defendant testified at the suppression hearing that after he had signed a Miranda waiver to answer questions about the January, 1998 murder, the detectives gave him a second paper and asked if he wanted to talk about the October, 1998 murder. He further testified that he declined because he wanted to speak to an attorney on that matter and that despite his request, the detectives continued to mention the October murder while questioning him about the January case. The defendant testified that he again invoked his right to counsel and did not make any statement whatsoever regarding the October case.

In an oral decision denying the defendant’s motion to suppress, the court did not make any factual findings as to whether the defendant’s statement was in response to questions by the police about the October murder or whether the defendant had blurted out the statement. Rather, it found that the defendant’s waiver of his Miranda rights was voluntary in light of his background, experience, conduct, intelligence, age, education, vocabulary, familiarity with English, mental and emotional state, lack of intoxication or drug use and the length of the detention. Additionally, it found no evidence from which it could infer threats or coercive tactics by the police to elicit the waiver. It also specifically discredited the defendant’s testimony that he had requested an attorney.

The defendant assumes that the court implicitly found that the police actually had questioned him about the October, 1998 murder, rationalizing that if the statement had been blurted out, then there was no reason for the court to address the validity of a Miranda waiver. The defendant then reasons that the arrest on the January case was pretextual and argues that such inappropriate police action should preclude his statement as involuntary on three federal and state constitutional grounds.

The defendant first argues that the conduct of the police invalidated his Miranda waiver. Because he was told that he would be questioned only as to the January, 1998 murder and because he signed a waiver to that effect, he argues that any questioning concerning the October, 1998 murder invalidated that waiver. Although there is no requirement that the police tell a person the subject matter of their questioning when obtaining a Miranda waiver; see Colorado v. Spring, 479 U.S. 564, 577, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1987); State v. Hermann, 38 Conn. App. 56, 66, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995); the defendant distinguishes those cases by arguing that the police here affirmatively misrepresented the scope of their questioning. He argues that this is the type of trickery that Miranda protects against and that any waiver of rights was therefore not knowing, intelligent or voluntary.

Second, he argues that his confession was involuntary under the due process clause of the federal constitution. See Colorado v. Connelly, 479 U.S. 157, 170, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v. Medina, 227 Conn. 456, 467, 636 A.2d 351 (1993). He claims that the affirmative misrepresentations of the police “critically impaired his capacity for self-determination” and overbore his will.

In the event that we conclude that the defendant’s statement was voluntary under the federal constitution, the defendant seeks relief under our state constitution’s due process clause, enumerated in article first, § 8. Although that provision’s language nearly mirrors that of the federal constitution, the defendant correctly notes the general proposition that state constitutions may provide higher levels of protection of individual rights than the federal one. See, e.g., State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). He then cites at length Justice Berdon’s dissent in State v. Stanley, 223 Conn. 674, 698-99, 613 A.2d 788 (1992) (Berdon, J., dissenting), which sets forth the historical groundwork that arguably affords greater protection to claims of involuntary confessions under our state constitution.

All of these arguments suffer from the same infirmity. Despite the defendant’s assertion to us at oral argument that he raised the pretext argument “implicitly” at the trial level, we conclude that he raised this claim for the first time before this court. The written motion to suppress his oral statements and the weapon did not address whether the conduct of the police was pretextual, nor, as we will discuss, did he argue pretext at the suppression hearing.

As a result, the arguments are reviewable only if all four prongs of the test set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), are met. Because this is a conjunctive test, we are free to assess the defendant’s claim by “focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. After careful review of the record and transcript, we decline to review the claim because the record is inadequate.

The defendant improperly asks that we make factual findings that his arrest on the January, 1998 murder was a pretext for detaining him for the October, 1998 murder and that the police actually interrogated him about this case. See, e.g., State v. Stanley, supra, 223 Conn. 689-90; cf. State v. Torres, 230 Conn. 372, 378-79, 645 A.2d 529 (1994). This is a determination that the trial court did not make and was not asked to make, and it is not supported by the evidence. During cross-examination of the detectives at the suppression hearing, the defendant elicited only that he was arrested and questioned about the January case, and that both detectives neither intended to nor actually asked him about the October case. Indeed, Detective Luisa St. Pierre denied having questioned the defendant about the October murder and testified that she would have asked him about it only after he was arrested for it. Even the defendant, who testified that the officers had questioned him about the October case, does not challenge that he was questioned about the January murder. His closing argument included what might be construed as a cryptic mention of the pretext claim, but focused on whether his Miranda waiver was limited to the January, 1998 murder — a proposition for which he admitted that he could cite no case law. As a result, the court focused on the voluntariness of the defendant’s waiver and never made a factual finding as to whether the arrest and questioning were pretextual.

The record is similarly lacking as to the alleged disconnect between what the police told the defendant they would question him about and their actual questioning. The police officers testified that the defendant blurted out the statement about the October murder without being questioned about it. The defendant testified that although the police interjected questions about the October murder, he made no statement whatsoever and renewed his request for an attorney. The court made no finding as to whether the police had questioned the defendant about the October murder or whether the defendant had blurted out the statement concerning that murder. Accordingly, we conclude that the record is inadequate as to the defendant’s claim of pretext.

The defendant’s reliance on State v. Pin, 56 Conn. App. 549, 555, 745 A.2d 204, cert. denied, 252 Conn. 951, 748 A.2d 299 (2000), is misplaced. In that case, the defendant challenged the court’s admission into evidence of five inculpatory statements that he claimed were involuntary and, therefore, admitted in violation of article first, § 8, of the constitution of Connecticut. Id., 554. The defendant properly preserved for appellate review his claim as to three of the statements and sought Golding review as to the other two. Id. We undertook Golding review, noting that the parties and the court had developed an adequate record in the proceedings on the motion to suppress and that the other two statements had been made in “virtually identical” circumstances. Id., 555. That is not the case here.

A remand of the present case for further factual findings, which the defendant asks us to do in the event that we do not find the record to be adequate, is not an appropriate alternative. As our Supreme Court has stated, “under the test in Golding, we must determine whether the defendant can prevail on his claim . . . [t]he first prong of Golding was designed to avoid remands for the purpose of supplementing the record.” (Emphasis in original.) State v. Stanley, supra, 223 Conn. 689-90; see also State v. Medina, supra, 227 Conn. 474.

The defendant also asks for review under the plain error doctrine. The defendant cites State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985), and argues that it is clearly “in the interest of justice” to prohibit the use at trial of involuntary confessions or ones obtained in violation of Miranda. While that is true, the inadequate record prevents us from concluding that the court improperly found that his confession was voluntary.

Practice Book § 60-5 provides that we “may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Such review is extremely limited. As our Supreme Court has noted, “[p]lain error review is reserved for truly extraordinary situations . . . and is not even implicated unless 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. Burton, 258 Conn. 153, 174, 778 A.2d 955 (2001). Furthermore, plain error review is appropriate where the record is complete. Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 38, 664 A.2d 719 (1995). Here, the record is inadequate. Therefore, we cannot conclude that the court’s finding that the statement was voluntary was plain error.

II

At the trial, the defendant maintained that the shooting and killing of the victim was justified under General Statutes § 53a-19. On appeal, he alleges that the court improperly charged the jury on this claim. First, he claims that the court failed to explain how the jury could find the victim to be the “initial aggressor.” Second, he alleges that the court confused the jury by giving short shrift to the subjective component of the “subjective-objective” test. We disagree.

In State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995), our Supreme Court set forth the well established standard of review concerning a claim such as this. “An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. . . . [T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) Id.

Furthermore, we previously have noted that “[a] refusal to charge in the exact words of a request . . . will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) State v. DeBarros, 58 Conn. App. 673, 690, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000), quoting State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990).

We also note that the defendant did not take exception to the self-defense instruction during the trial, either during the original charge, when the court reread it at the jury’s request on the first day of deliberations or when it provided a paper copy to the jury at their request on the second day. Because the defendant submitted a request to charge on self-defense, however, he preserved his claim for review. See Practice Book § 42-lb; State v. Prioleau, supra, 235 Conn. 283 n.10. As our Supreme Court in Prioleau acknowledged, however, a defendant’s failure to object at the time “to some extent reflects the fact that the present claim has assumed an importance on appeal that was not evident at trial . . . .” State v. Prioleau, supra, 283 n.10.

A

In what he terms a “glaring deficiency,” the defendant claims that the court did not properly instruct the jury on the initial aggressor concept. We are not persuaded.

Essentially, the defendant takes issue with the fact that the court did not tailor the jury charge to include certain statements made by the victim that the defendant alleges could have affected the defendant’s state of mind. Specifically, he presented evidence that the victim told one person on the morning before the shooting that he was going to “kick [the defendant’s] ass,” and that the victim “got his shit up in his trunk and if anybody want to bring it, then he got it.” Equating his case to State v. Carter, 48 Conn. App. 755, 713 A.2d 255, cert. denied, 247 Conn. 901, 719 A.2d 905 (1998), the defendant argues that although the trial court demonstrated great latitude in allowing evidence that went to show the victim’s violent propensities, it improperly failed to integrate those facts into its charge so that the jury could find that the defendant believed the victim to be the initial aggressor. We are not persuaded.

Section 53a-19 (a) provides in relevant part that “a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary . . . except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” See, e.g., State v. Prioleau, supra, 235 Conn. 292.

Although the court did not explicitly instruct the jury that the initial aggressor may not necessarily be the person who first uses physical force, the concept was implicit throughout the charge. See id., 292-93. Here, just as in Prioleau, “[o]n several occasions, the trial court instructed the jury that the defendant was justified in using deadly physical force against the victim if the defendant had reasonably believed that such force [was] necessary to protect himself from the use or impending use of physical force by the victim.” (Internal quotation marks omitted.) Id., 293. Furthermore, the defendant concedes that he “did not specifically give the trial court the language that he now argues on appeal should have been given by the court . . . .” Finally, the state correctly points out that there is nothing in the record to support that the defendant learned of the victim’s threats or was affected by them. As a result, the court did not mislead the jury by not giving a charge that the defendant not only did not ask for, but also that the evidence did not support. See State v. Diggs, 219 Conn. 295, 299, 592 A.2d 949 (1991).

B

The defendant also claims that the court’s charge on the reasonableness of his belief to use self-defense overemphasized the objective portion of the “subjective-objective” test. We disagree.

The jury was required to make two separate determinations as to the defendant’s, belief regarding what degree of force was required for his self-defense claim to succeed. First, the jury had to determine whether the defendant subjectively believed in fact that he needed to use deadly force. If the jury concluded that the defendant believed that such force was necessary, it then had to determine whether that belief was objectively reasonable, from the perspective of a reasonable person in the defendant’s circumstances. See, e.g., State v. Prioleau, supra, 235 Conn. 286-87.

The defendant claims that the court at one point seemingly conflated the two determinations, charging that “[s]elf-defense requires the jury to measure the justification of the defendant’s action, based upon what the defendant reasonably believed under the circumstances presented to him at the case, and on the basis of what the defendant reasonably perceived the circumstances to be,” rather than what the defendant in fact believed. While the defendant concedes that the court later correctly charged the juiy, he argues, citing State v. Ash, 231 Conn. 484, 496-97, 651 A.2d 247 (1994), that the number of times that it incorrectly charged the jury made “it reasonably certain at best they were confused as to the correct standard.” We disagree.

Viewing the court’s charge as a whole, we conclude that it is clear that the court did not overemphasize the objective portion. After the language that the defendant cites as improper, the court charged the jury correctly on both the subjective and objective determinations. Additionally, the jury was instructed a second time on self-defense and later received that portion of the charge in writing. In light of the requirement of § 53a-19 that the defendant’s actions be reasonable; see State v. Prioleau, supra, 235 Conn. 286-87; we conclude that the court’s instructions did not mislead the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       A jury subsequently convicted the defendant of felony murder, robbery in the first degree and conspiracy to commit robbery in the first degree as a result of that crime. He received a total effective sentence of forty-five years incarceration, to run consecutive to the sentence he received for the October 1, 1998 murder.

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

       The defendant was sentenced to fifty years for the murder charge and five years for possession of a weapon in a motor vehicle. The lesser sentence was set to run concurrently with the greater one.

       Detective Luisa St. Pierre testified: “He told me that what happened to his boy was fucked up. And [I] asked him who was his boy, and he said [the victim]. And I said what happened to [the victim]. That is when he told me [the victim] came to where he was with another friend, and he and [the victim] had been drinking. [The victim] went to the trunk of the car, got a gun and came at him. He managed to get the gun from [the victim]. That is when he shot [the victim].”

       The court rendered its decision as follows: “The defendant filed his motion to suppress his October statements to the Hartford Police Department. On January 11, 2000, this court heard testimony from Detective Luisa St. Pierre, Detective Milton Zaavedra . . . and the accused. Based on the testimony present ed, 1 his court, found, by a preponderance of the evidence, that the defendant knowingly and voluntarily waived his privilege against self-incrimination.
      “The court had reviewed the particular facts and circumstances surrounding the case, including the background, the experience and the conduct of the accused, his level of intelligence, his age, his level of education, his vocabulary, his ability to read and write in the English language in which the warnings were given, his emotional state, level of intoxication or drug use, if any, the existence of any mental disease, defect or disorder, and finally, the circumstances and length of the detention.
      “Reviewing the record in this case, in light of those factors, I find the sta1 e met i1 s burden of showing the defendant had the capacity to understand the meaning of his constitutional rights. He’s an adult who had attended high school, could read English, apparently had no difficulty communicating with the officers and indicated, on multiple occasions, he understood his rights. There’s also no evidence he had the emotional state which would impair his ability to understand those rights. He was fully aware that he had a right not to answer questions, and that, if he chose to answer questions, he had the right to stop answering them at any time and have an attorney present during the questioning.
      “I specifically discredit the defendant’s testimony as to whether he requested an attorney. Specifically, this court finds the defendant’s statement was voluntary, the product of an essentially free and unconstrained choice by its maker. There’s no evidence from which I can infer the police used threats or any other coercive tactic to elicit the waiver of that inculpatory statement. The waiver is clearly inferred from the actions and words of the defendant. Indeed, his lack of hesitation at the time presents indicia he desired to speak and to waive his rights. He was not coerced into responding.
      “The police made no promises or threats. He was not restrained during the time of the interview, nor was he under the influence of any drug or alcohol. He never expressed any desire to remain silent or that the police stop asking him questions.
      “Under the circumstances, there was an expressed willingness to speak that constituted an explicit affirmative act, a waiver. Therefore, based on the totality of the circumstances presented, the statement is admissible as a product, of the essentially free and unconstrained choice by the defendant.”

       Determining voluntariness in the Miranda and due process contexts requires two separate analyses. See, e.g., State v. Shifflett, 199 Conn. 718, 727-34, 508 A.2d 748 (1986); D. Nissman & E. Hagan, Law of Confessions (2d Ed. 2001 Sup.) § 2.1.

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . .

       We note that whether article first, § 8, of the Connecticut constitution provides greater protection than the federal constitution for involuntary confessions is an open question. See, e.g., State v. Pin, 56 Conn. App. 549, 555-56, 745 A.2d 204 (citing four cases from our Supreme Court dating from 1987), cert. denied, 252 Conn. 951, 748 A.2d 299 (2000).

       The defendant withdrew his claim regarding the seizure of the weapon prior to the suppression hearing.

       Pursuant to State v. Golding, supra, 213 Conn. 239-40, constitutional claims not raised at trial can be reviewed by an appellate court only if “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

       The following exchange is illustrative:
      “[Defense Counsel]: If you had a form for the January case, why didn’t you have a form for the October case?
      “[Detective St. Pierre]: Because he was being arrested for the January homicide. Although he was a suspect on the other one, that was not the one I was asking him about.
      “[Defense Counsel]: Had you intended to ask him at all about the October 1st case?
      “[Detective St. Pierre]: After he was placed under arrest for that one, yes, I would have.”

       In his closing argument, the defense counsel argued in relevant part:
      “Your Honor, I don’t think the waiver of rights has any significance here. Clearly, [the defendant] was brought in. He was given this waiver of rights. Although the case law may not say that, it’s specific to cases that specifically did this form with a case anything that first — the January case, which would certainly indicate they are going to question him about the October case.
      * ** *
      “According to [the defendant], he never talked about [the October] case, and the paperwork has certainly indicated there is no waiver of rights for that case, and, in fact, there wasn’t even an interview. So basically, I think that [the defendant’s statement about the October case] is, if you believe that it happened, they’re taking the statement without getting him to sign his rights when that is something that they should have done.”

       As the state points out, remanding the case could be an “exercise in perjury.” The police officers testified that they did not ask any questions about the October murder. The defendant testified that he did not say anything in response to questions concerning the October murder, which the officers testified that they did not ask. The only way that the defendant can proceed with his claim is if he recants his testimony and states that he really did make the statement, but that it should be suppressed as involuntary.

       General Statutes § 53a-19 (a) provides: “Except as provided in subsections (b) and (c) oí this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       The court gave the following instructions on self-defense: “Now, in this particular case, the issue of self-defense has been raised. In claiming that he acted in self-defense, the defendant is claiming that he used deadly force that was justified.
      * * *
      “Although the defendant raised the defense of justification, the state has the burden to prove beyond a reasonable doubt that the defendant was not justified in using deadly physical force.

        “There are three circumstances under which a person is not justified in using deadly physical force. If the state proves to you beyond a reasonable doubt any one of the circumstances, you shall find that the defendant was not justified in using deadly physical force.
      “Under the first circumstance, a person is not justified in using deadly physical force when, at the time he uses the deadly physical force, he does not reasonably believe that the otherpersonis aboutto inflict deadly physical force against him, or about to inflict great bodily harm to him.
      “Great bodily harm is not limited by the definition of serious physical injury. It may encompass other acts, such as sexual assault or threat of sexual assault. The term great has its ordinary meaning and connotes a bodily harm that is substantially more than minor or inconsequential harm.
      “In deciding whether the state has proven beyond a reasonable doubt that the defendant was not justified in using deadly physical force, you -will first focus on the defendant. You will then focus on whether the defendant’s belief was reasonable under all the circumstances that existed when he used deadly physical force.
      “Self-defense requires the jury to measure the justification of the defendant’s action, based upon what the defendant reasonably believed under the circumstances presented to him at the case, and on the basis of what the defendant reasonably perceived the circumstances to be. You look at the defendant first.
      “The defendant’s belief must have been reasonable and not irrational or unreasonable under the circumstances. That is, would a reasonable person in the defendant’s circumstances have reached that belief? It is both a question of what his belief was, and then, whether that belief was reasonable. And I’ll repeat that. It’s a question of, first, what his belief was, and then, whether that belief was reasonable.
      “The acts of [the victim] leading to the defendant’s use of physical— deadly physical force need not be an actual threat or assault. The test is not what the victim actually intended but what the victim’s act caused the defendant to reasonably believe the intention was. In other words, the danger need not have been actual or real.
      “In judging the danger to himself, however, the defendant is not required to act with infallible judgment. Ordinarily, one exercising the right to self-defense is required to act instantly and without time to deliberate or investigate.
      “Under such . . . circumstances, it is often possible to mistake an actual threat when none in fact exited. However, the defendant’s belief of danger must be reasonable, honest and sincere. Apparent danger, with the knowledge that no danger exists, is not an excuse for using any force.
      “If you find the state has proven beyond a reasonable doubt that the defendant did not in fact believe that the victim was using or about to use deadly force against him, or was inflicting or about to inflict great bodily harm to him, the defendant’s self-defense claim must fail.

        “If, however, you determine that the — the defendant did in fact believe that the — the victim was using or about to use deadly physical force, or was inflicting or about to inflict great bodily harm, you must then decide whether that belief held by the defendant was reasonable under the circumstances. That is, would a reasonable person in the defendant’s circumstances have reached that belief?
      “If you find the defendant’s belief was reasonable from the perspective of a reasonable person in the defendant’s circumstances, you must decide whether the defendant reasonably believed that deadly physical force, as opposed to some lesser degree [of] force, was necessary to repel the attack.
      “Deciding the defendant’s belief regarding the necessary degree of force requires that you make two determinations. First, you must decide whether, on the basis of all evidence presented, the defendant in fact believed that he needed to use deadly physical force, as opposed to some other lesser form of force in order to repel [the victim’s] attack. If you decide that the defendant did not in fact believe he needed to use deadly physical force to repel the attack, your inquiry ends, and the defendant’s self-defense claim must fail.
      “If, however, you decide the defendant did in fact believe that the use of deadly force was necessary, you must then decide whether the belief was reasonable under the circumstances. That is, would a reasonable person in the defendant’s circumstances have reached that belief.
      “Now, I'll explain to you another circumstance under which a person is not justified in using deadly physical force. A person is not justified in using deadly physical force upon anther person if he knows that he can avoid the necessity of using such force with complete safety by retreating. That means both that the retreat was completely safe and available, and that the defendant knew it. Complete safety means without any injury whatsoever to him.
      “As I have said, self-defense requires that you focus on the person claiming the self-defense and on what he reasonably believes under the circumstances. It presents a question of fact as to whether a retreat with complete safety was available, and whether the defendant knew that.
      “The law stresses that self-defense cannot be retaliatory. It must be defensive, not punitive. So you must ask yourself: Did the defendant know he could avoid the use of deadly physical force by retreating with complete safety? If so, and yet he chose to pursue the use of deadly physical force, you shall reject the self-defense claim.
      “If you find proven beyond a reasonable doubt that retreat with complete safety was available and that the defendant knew it, you shall then find that the state has proven beyond a reasonable doubt that the defendant was not justified in using deadly physical force.

        “The defendant does not have to prove he acted in self-defense. Rather, it’s the state’s burden to disprove that defense beyond a reasonable doubt.
      “In summary, you’ve heard all the evidence presented in this case in reference to the defendant’s claim of self-defense. The state must disprove this defense beyond a reasonable doubt. If it has not, you must find the defendant not guilty . . .

       See footnote 16.


text:
    STATE OF CONNECTICUT v. GLENN E. OLSON
    (AC 21616)
    Lavery, C. J., and Foti and Dupont, Js.
    Argued November 26, 2001
    officially released January 8, 2002

      Vincent T. McManus, Jr., for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Dow Therkildsen, deputy assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Glenn E. Olson, appeals from the trial court’s judgment of conviction, rendered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that the evidence was insufficient to prove beyond a reasonable doubt that he operated a motor vehicle on a public highway. We reverse the judgment of the trial court and remand the case for further proceedings.

The record reflects that the defendant entered his conditional plea on January 31, 2001. After he did so, the parties stipulated that the information set forth in the police report would constitute the factual basis for the charge. The report was marked as an exhibit, and the court continued to canvass the defendant, noting that both sides believed the police report to be “an adequate record for an appeal to the Appellate Court.” The defendant argues that our review of the report will disclose that the state has failed to prove beyond a reasonable doubt that he was operating a motor vehicle on a public highway, a necessary element to support a conviction under § 14-227a.

Section 54-94a permits a defendant who has entered a conditional plea of nolo contendere to appeal only from the actions of the trial court described in that section. A claim of insufficient evidence is not one of the particular claims that § 54-94a permits to be appealed. An unconditional plea of nolo contendere, in contrast, “intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. . . . Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appeal-able . . . .” (Internal quotation marks omitted.) State v. Kelley, 206 Conn. 323, 327, 537 A.2d 483 (1988).

We conclude that the trial court mistakenly accepted the defendant’s conditional plea of nolo contendere because the record clearly reflects that the defendant intended to enter his plea on the condition that he be permitted to challenge on appeal the sufficiency of the evidence. We cannot permit the defendant’s conviction to stand. The judgment must be reversed and the case remanded for further proceedings. See id., 337; State v. Madera, 198 Conn. 92, 107-108, 503 A.2d 136 (1985).

The judgment is reversed as to the conviction of operating a motor vehicle while under the influence of intoxicating liquor and the case is remanded with direction to vacate the plea and to reinstate that charge.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The defendant also was convicted pursuant to his conditional plea of previously having been convicted of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a, as the state charged in a pari, B information for purposes of sentence enhancement.
      The defendant was also convicted, following his unconditional plea of nolo contendere under the Alford doctrine, of interfering with an officer in violation of General Statutes § 53a-167a. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). That conviction is not a subject of this appeal.

       The defendant did not file either a motion to dismiss on the basis of insufficient evidence or a motion to suppress.