author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. JOHN MOYE
    (AC 30737)
    Lavine, Beach and Pellegrino, Js.

      Argued November 17, 2009
    officially released February 2, 2010

      KentDrager, senior assistant public defender, for the appellant (defendant).

      SusannE. Gill, supervisory assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Jonathan C. Benedict, former state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, John Moye, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and, after his plea of guilty under the Alford doctrine, of criminal possession of a pistol in violation of General Statutes § 53a-217c (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of murder, (2) the court improperly instructed the jury on the murder charge, (3) the prosecutor committed reversible impropriety during the defendant’s testimony and (4) the court improperly canvassed the defendant with regard to his Alford plea to the charge of criminal possession of a pistol. We affirm the defendant’s conviction of murder and carrying a pistol without a permit. We reverse, however, the defendant’s conviction of criminal possession of a pistol.

The following facts, which the jury reasonably could have found, are relevant to the defendant’s appeal. On the evening of April 30, 2005, after Clarence Jones, the victim, asked him for a ride, Jerry Booker picked up Jones, Roderick Coleman and the defendant. The group briefly stopped at Booker’s house in West Haven and then proceeded to the Ebony Lounge in New Haven. Coleman and the defendant went inside for approximately fifteen minutes, while Booker and the victim waited in the car. When Coleman and the defendant returned to the car, Coleman asked Booker to drive to the Pleasant Moments Cafe in Bridgeport, where his girlfriend worked as a dancer.

Upon arriving at Pleasant Moments Cafe, Booker, Coleman and the victim entered the club while the defendant stayed in the car. The three men who went inside the club were searched for weapons before they were allowed to enter. When Pleasant Moments Cafe closed for the night, Booker, Coleman and the victim emerged from the club with Tamara Wilson, Coleman’s girlfriend, Tawana Little and a third woman by the name of Jada. They all got into Booker’s car. Booker was the driver, the victim and Jada rode in the front passenger seat, the defendant sat behind Booker, Little was seated next to him, and Wilson sat on Coleman’s lap behind the front passenger’s seat.

Booker next drove to a nearby gasoline station. Booker, the victim and Jada got out of the car and entered the gasoline station. With the two men and Jada out of the car, the defendant began telling the other passengers about his belief that Booker and the victim planned to rob him. He said that he was going to “act up.” Those who went into the gasoline station returned to the car, and the group left the gasoline station to drop off Jada.

As Booker was driving to Jada’s house, his cellular telephone rang. He answered the telephone and handed it to the victim when he realized that it was the victim’s mother calling. Then a loud bang came from the backseat. The victim’s mother heard someone say: “Call 911. He’s been shot.” The defendant, holding a gun, ordered everyone to get out of the car. Booker and Jada got out of the car, the defendant got into the driver’s seat, pushed the victim’s body out of the car and drove away.

After driving a short distance, the defendant stopped the car, wiped down the steering wheel and car handles, and exited the car with Little, Wilson and Coleman. The group got into a taxicab and went to Little’s house in New Haven. Once at Little’s house, the defendant again told the others that he believed that he was going to be robbed and that was why he shot the victim. He told Little that he had tried to shoot the victim in the face and also told Little and Wilson that they should “take it to the grave.”

The defendant was arrested on May 20, 2005. He was found in a house in Stamford, lying across the seats of several chairs under a dining room table. The defendant was charged with murder, carrying a pistol without a permit and criminal possession of a pistol. He was found guilty of murder and carrying a pistol without a permit, and entered an Alford plea with regard to the criminal possession of a pistol charge. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim on appeal is that there was insufficient evidence to support the jury’s guilty verdict as to the murder conviction. Specifically, he argues that the evidence was insufficient to prove that he intentionally caused the victim’s death. We disagree.

“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. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540-41, 975 A.2d 1 (2009), after remand, 118 Conn. App. 733, 984 A.2d 796 (2010).

“To establish a violation of § 53a-54a, the crime of murder, the state must prove beyond a reasonable doubt that the defendant, with intent to cause the death of another person . . . cause [d] the death of such person or of a third person .... [T]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. . . . Because direct evidence of the accused’s state of mind is rarely available . . . intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. . . . In addition, intent to kill may be inferred from evidence that the defendant had a motive to kill. . . . Our law also provides that the defendant’s state of mind at the time of the shooting may be proven by his conduct before, during and after the shooting. Such conduct yields facts and inferences that demonstrate a pattern of behavior and attitude toward the victim by the defendant that is probative of the defendant’s mental state.” (Citations omitted; internal quotation marks omitted.) State v. Aviles, 107 Conn. App. 209, 217-18, 944 A.2d 994, cert. denied, 287 Conn. 922, 951 A.2d 570 (2008).

Our Supreme Court has stated that a person “who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996). Here, the defendant, seated in the backseat of a car, shot the victim, seated in the front passenger’s seat, in the head. Although the defendant testified that the gun went off accidentally as he straggled with the victim for its control, no other witness testified about such a straggle. Additionally, there was testimony from one of the witnesses that the defendant stated that he had tried to shoot the victim in the face. The defendant’s use of a gun coupled with his later statement, in light of all the circumstances, was sufficient evidence for the jury to conclude that the defendant had the conscious objective to cause the death of the victim.

Furthermore, the defendant’s actions following the shooting are indicative of a consciousness of guilt. “A trial court may admit [e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . In seeking to introduce evidence of a defendant’s consciousness of guilt, [i]t is relevant to show the conduct of an accused ... as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act. ” (Internal quotation marks omitted.) State v. Pascal, 109 Conn. App. 55, 72, 950 A.2d 566, cert. denied, 289 Conn. 917, 957 A.2d 880 (2008). The jury heard testimony from witnesses that the defendant wiped down the steering wheel and car door handles before fleeing the scene of the crime, threatened witnesses by telling them to “take it to the grave” and was found by police hiding by lying on the seats of several chairs under a table. Taken together, the consciousness of guilt evidence in combination with the defendant’s use of a deadly weapon provided sufficient evidence for the jury to find that the defendant intended to cause the victim’s death.

II

The defendant’s next claim is that the court improperly instructed the jury regarding the intent aspect of the murder charge. The defendant argues that the court erred by (1) failing to instruct the jury that the state had the burden of proving beyond a reasonable doubt that the victim’s death was caused by an intentional killing and not by accident and (2) not incorporating within its charge to the jury the defendant’s requested language regarding intentional conduct. We disagree.

The following facts are pertinent to the defendant’s claim. On the basis of the defendant’s theory of defense that the gun accidentally discharged, the defendant requested that the court instruct the jury as follows: “Intentional conduct is purposeful conduct, rather than conduct that is accidental or inadvertent, and my instruction on this point is particularly applicable to this case because it is the defendant’s claim in this case that [the victim’s] death was the result of a tragic accident, rather than any specific intention on the defendant’s part to cause [the victim’s] death. If, in this case, you find that [the victim’s] death was accidental, then you cannot convict [the defendant] of the offense of murder.” (Emphasis in original.) In the defendant’s closing argument, he argued that the state had failed to prove intent because it had not disproved that the shooting was accidental: “This was an accident. A very, very tragic accident, pure and simple. And the judge is going to tell you, you know, when he charges you on the law. He’s going to talk about intent. And I believe he’s going to say something like, you know, intentional conduct has to be purposeful conduct. It cannot be conduct that is accidental or inadvertent. If it’s accidental, it’s not intentional; the state loses here.”

In its charge to the jury, the court instructed on intent but did not incorporate the language requested by the defendant. Following the jury charge, defense counsel objected to the court’s failing to give the requested instruction not only because he had told the jury that such a charge would be given, but also because he believed that the court had agreed to give such a charge. The court noted the objection but determined that it would not add the requested language to the intent instruction.

We begin by setting forth the standard of review. “A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.” (Internal quotation marks omitted.) Mann v. Regan, 108 Conn. App. 566, 576, 948 A.2d 1075 (2008). “[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 452-53, 978 A.2d 1089 (2009).

A

The defendant first argues that the court mistakenly failed to instruct the jury that the state had the burden of proving beyond a reasonable doubt that the victim’s death was the result of an intentional killing, not an accident. He contends that because he asserted that the shooting occurred by accident, the state was required to disprove the theory beyond a reasonable doubt, and because the court did not so instruct, the jury may have been under the impression that the defendant had the burden of proving its theory of accident. Because a claim of accident is not a defense but merely negates the intent element of the crime, we disagree with the defendant’s contention that the court had to charge explicitly that the jury could not convict the defendant unless the state proved, beyond a reasonable doubt, that the death was not an accident.

“Accident is not a justification for a crime ... it negates only one element of the crime, namely, intent.” (Citation omitted.) State v. Schultz, 100 Conn. App. 709, 716, 921 A.2d 595, cert. denied, 282 Conn. 926, 926 A.2d 668 (2007). “A claim of accident, pursuant to which the defendant asserts that the state failed to prove the intent element of a criminal offense, does not require a separate jury instruction because the court’s instruction on the intent required to commit the underlying crime is sufficient in such circumstances.” State v. Singleton, 292 Conn. 734, 752, 974 A.2d 679 (2009).

The defendant admitted that he shot and killed the victim. The jury was left to determine whether the defendant intended to kill the victim, or whether it believed the defendant’s testimony that the gun discharged after a struggle. When defining intent, the court made clear in its instruction that if it was the conscious objective of the defendant to cause the result, namely, the death of the victim, then he acted with the requisite intent, but if the jury failed to find the requisite intent beyond a reasonable doubt, then the defendant must be found not guilty- Given the court’s instructions, it necessarily follows that the jury logically could not have found both that the defendant acted with the specific intent to cause the victim’s death and that he did not intend to inflict such injury.

B

The defendant’s second argument regarding the court’s jury instruction is that the court erred in not incorporating his requested language that “[i]ntentionai conduct is purposeful conduct, rather than conduct that is accidental or inadvertent,” within its charge to the jury. We disagree.

“The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if the charge [given to the jury] is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.” (Internal quotation marks omitted.) State v. Beliveau, 36 Conn. App. 228, 246-47, 650 A.2d 591 (1994), aff'd, 237 Conn. 576, 678 A.2d 924 (1996). “Although [a] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given ... [a] refusal to charge in the exact words of a request . . . will not constitute error if the requested charge is given in substance. . . . Thus, when the substance of the requested instructions is fairly and substantially included in the trial court’s jury charge, the trial court may properly refuse to give such instructions.” (Internal quotation marks omitted.) State v. Ledbetter, 263 Conn. 1, 22, 818 A.2d 1 (2003).

Although the court did not incorporate the requested language, the substance of the defendant’s instruction was included in the actual jury charge. The court instructed the jury that for a person to act intentionally with respect to a result, it must be his conscious objective to cause that result. The court also explained that the jury need not infer the defendant’s intent from his conduct if, based on the testimony it had heard, it was not a reasonable and logical inference. Finally, the court was clear that the state had the burden to prove the defendant’s intent beyond a reasonable doubt. The court’s charge did not specifically address the defendant’s claim that the shooting was accidental, but the court gave instructions in a manner calculated to give the jury a clear understanding of the issues presented for its consideration, under the offenses charged and upon the evidence and suited to its guidance in the determination of those issues. See State v. Beliveau, supra, 36 Conn. App. 246-47. Although the giving of the requested instruction might assist the jury in an appropriate case, we conclude that the failure to give it was not improper in this case.

m

The defendant next claims that, during defense counsel’s direct examination of the defendant, the prosecutor committed impropriety that is grounds for reversal. Specifically, the defendant maintains that, when objecting to a question posed by defense counsel, the prosecutor improperly implied, in front of the jury, that the defendant either had additional convictions for violent crimes or had the character or propensity to commit violent acts. Without deciding whether the prosecutor’s objection constituted an impropriety, we conclude that it did not so infect the trial with unfairness so as to deprive the defendant of his due process right to a fair trial, as contemplated by State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987).

The following additional facts are relevant to the resolution of the defendant’s claim. During defense counsel’s direct examination of the defendant, defense counsel asked the defendant whether he had any past felony convictions on his criminal record. The defendant testified that he had four felony convictions, one of which was attempt to commit assault on a police officer, which resulted from the defendant’s throwing a rock at a police car. Defense counsel followed up by asking if the defendant had ever been convicted of any “violent offenses . . . .” The defendant responded that he had not, at which point the state objected, leading to the following discussion:

“[The Prosecutor]: Your Honor, I’m going to object. This is—this is improper. If he’s trying to bring out something that goes to credibility, this is turning into some sort of [an] offer, which is to show his propensity for violence. I—I’m sure [defense counsel] does [not] want to go down that road, Your Honor.
“The Court: [Defense counsel]—
“[Defense Counsel]: Well, I—I want to object to that last statement.
“The Court:—are you claiming the question?
“[Defense Counsel]: But it is certainly a road that I— I want to go down.
“The Court: The objection as to the question you’ve asked is sustained. Next question.”
The defense counsel next asked the defendant if he had been convicted of any offenses involving dishonesty and then again asked about violent offenses. The state again objected:
“[The Prosecutor]:—I’m going to object. What was he—
“[Defense Counsel]: I didn’t finish my question, Your Honor.
“[The Prosecutor]: Your Honor, this is not—because this is prejudicial. This is what my objection was. He’s asking what would—what would—could possibly be? Have you ever been convicted of any violent offenses? If the offer is—is—if he’s trying to say what? If he’s trying to open up the door, Your Honor, for—to show that he has a good character or a peaceable character, I want to be clear because if he’s offering—
“[Defense Counsel]: That’s not—
“[The Prosecutor]: Well, then what is the claim because—because if it’s what’s the difference is it’s a— if it’s a felony conviction. It’s felony conviction and that’s what goes to credibility. That’s what the charge will be. If he’s trying to distinguish, but [the defendant] you haven’t been convicted of any—any—any charges relating to violence, and he’s going to claim—I will then offer evidence on that issue. And I don’t think [defense counsel’s] going to be happy with it. So, I would say that we should—we should establish that now, Your Honor.”

After the court excused the jury from the courtroom, defense counsel moved for a mistrial. He argued that the prosecutor talked about offering evidence of a violent character in front of the jury. The prosecutor explained that he was objecting to what he believed was an attempt by defense counsel to get evidence of the defendant’s character before the jury without allowing the prosecutor to respond on cross-examination. In denying the motion for a mistrial, the court reprimanded the prosecutor, telling him that his comment about the defendant not being happy if they were to “go down that road” was “unnecessary . . . .”

“The governing legal principles on prosecutorial impropriety are well established. [A] claim of prosecu-torial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, [supra, 204 Conn. 535-40]. . . . [T]he touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in . . . Williams. ... In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. . . .

“If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the six factors enumerated in . . . Williams . . . whether the entire trial was so infected with unfairness so as to deprive the defendant of his due process right to a fair trial. . . . These factors include the extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case. . . . We address the alleged improprieties in turn.” (Citations omitted; internal quotation marks omitted.) State v. Jordan, 117 Conn. App. 160, 162-64, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009).

Assuming, but without concluding, that an impropriety in fact occurred, we will examine the effect that such an impropriety might have had on the defendant’s due process right to a fair trial. The first Williams factor considers the extent to which the impropriety was invited by defense conduct. The defendant argues that because there was no defense misconduct, the impropriety could not have been invited by the defendant. The state counters that the prosecutor’s remarks were made in response to the defendant’s attempts to introduce character evidence under the guise of credibility, thus not allowing the state to rebut the evidence. Although it is true that the prosecutor’s comments were made only after defense counsel questioned the defendant, the prosecutor could have registered his objection with the court without making the statements that he made. We agree with the court’s assessment that the challenged remark was unnecessary.

With regard to the second, third and fourth Williams factors, the defendant concedes that the claimed impropriety was not repeated but argues that it was severe because it went to the heart of the trial—the defendant’s character and credibility. The state contends that the comment was not severe because the central issue of the case was not the defendant’s character and credibility but, rather, his intent. We agree with the state’s characterization of the main issue at trial and also its contention that the impropriety was not severe.

The fifth Williams factor contemplates the effectiveness of the curative measures adopted by the court. Here, after the court denied the defendant’s motion for a mistrial, it did not take any curative measures in front of the jury. The defendant now argues that that was because the defense counsel did not realize the “prejudicial nature of the prosecutor’s impropriety . . . .” The state maintains that defense counsel's failure to request that the court give a curative instruction may have been a tactical decision not to highlight the remark. We agree with the state that this lack of curative measures is attributable directly to the defendant’s failure to request a curative instruction. The defendant bears much of the responsibility for the fact that these claimed improprieties went uncured. “The failure by the defendant to request specific curative instructions frequently indicates on appellate review that the challenged instruction did not deprive the defendant of a fair trial.” (Internal quotation marks omitted.) State v. Angel T., 292 Conn. 262, 291, 973 A.2d 1207 (2009).

The final Williams factor, the strength of the state’s case, also favors the state. As discussed previously, although the defendant testified that the gun went off accidentally during a struggle with the victim, several witnesses testified that they saw the defendant shoot the victim without any struggle having taken place and were threatened to “take it to [their] grave[s].” Little testified that the defendant told her that he was trying to shoot the victim in the face. We conclude that any impropriety that may have occurred did not “so [infect] the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) State v. Williams, supra, 204 Conn. 539.

IV

The defendant’s final claim is that the court improperly canvassed him with regard to his Alford plea to the charge of criminal possession of a pistol in the part B information. He argues that the court failed to comply with the due process requirements for the acceptance of a guilty plea because it did not explicitly canvass him on the three core constitutional rights he waived by pleading guilty. We agree with the defendant and reverse his conviction of criminal possession of a pistol.

The following facts are relevant to the defendant’s claim. Once the jury returned the guilty verdict as to the charges of murder and carrying a pistol without a permit, the jury was excused. At that time, and after conferring with counsel, the defendant entered an Alford plea on the criminal possession of a pistol charge. The court then canvassed the defendant as follows:

“The Court: Have you had enough time to speak with your attorney about entering a guilty plea to the third count of the information, which is a part B information, of criminal possession of a firearm?
“[The Defendant]: Yes, sir.
“The Court: Do you need any more time to speak with your attorney?
“[The Defendant]: No, sir.
“The Court: Are you satisfied with [the] legal representation of you?
“[The Defendant]: Yes, sir.
“The Court: And are you under the influence of anything at all, alcohol, drugs or medication?
“[The Defendant]: No, sir.
“The Court: Have you been forced or threatened by anyone to plead guilty?
“[The Defendant]: No, sir. . . .
“The Court: Okay, no one’s threatening you or forcing you to enter a guilty plea?
“[The Defendant]: No, sir.
“The Court: And you are not being promised anything in exchange for your guilty plea?
“[The Defendant]: No, sir. . . .
“The Court: Now, one more thing that I didn’t ask you, sir; you understand that this is a class B felony with a mandatory minimum of two years that would be added to any sentence to be imposed at the time of sentencing; are you aware of that?
“[The Defendant]: Yes, sir.
“The Court: Do you have any questions?
“[The Defendant]: No, sir.”

The court then found that there was a factual basis for the plea and that the plea was entered knowingly, intelligently and voluntarily.

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. ... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . . We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Internal quotation marks omitted.) State v. Heyliger, 114 Conn. App. 193, 196-97, 969 A.2d 194 (2009).

“The United States Supreme Court has held that for the acceptance of a guilty plea to comport with due process, the plea must be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Boykin set forth three federal constitutional rights of which a defendant must be cognizant prior to entering a guilty plea: (1) the privilege against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s own accusers.” (Internal quotation marks omitted.) State v. Wheatland, 93 Conn. App. 232, 236, 888 A.2d 1098, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006). “Moreover, [t]he constitutional stricture that a plea of guilty must be made knowingly and voluntarily . . . requires . . . that there be a voluntary waiver during a plea canvass of the right to a jury trial, the right of confrontation and the right against self-incrimination . . . .” (Internal quotation marks omitted.) State v. Heyliger, supra, 114 Conn. App. 197.

The court, during its canvass of the defendant, failed to inform him and to obtain a waiver of any of the three constitutional rights discussed in Boykin. Without a record indicating that the defendant understood those rights and voluntarily waived them, the conviction of criminal possession of a pistol cannot stand. See State v. Brooks, 82 Conn. App. 93, 94, 842 A.2d 631 (2004).

The judgment is reversed only as to the conviction of criminal possession of a pistol and the case is remanded for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

         North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The defendant contends that “there was insufficient evidence to prove beyond areasonably doubt that [he] acted with the specific intent (conscious objective) to kill [the victim], or that he caused the death by shooting, or that the death of [the victim] was not an accident.” Although the defendant makes three arguments regarding his insufficient evidence claim, the arguments are essentially identical, so we will address only the argument that there was insufficient evidence to prove that the defendant intentionally caused the victim’s death.

       There was expert testimony that the entry wound was on the left side of the victim’s face, in front of his ear, which is consistent with the positioning of the defendant and the victim in the car. Furthermore, the expert; witness testified that the wound was consistent with the gun being fired while in contact with, but not pressed tightly against, the victim’s face.

       The defendant frames this as a four argument claim. He contends that “the court erred in its instructions on intentional murder: (A) by not instructing that the state had the burden of proving beyond [a] reasonable doubt that the death of [the victim] was caused by killing rather than accident, (B) by not instructing, as properly requested, on the defense theory that [the victim’s] death was an accident, (C) by not instructing, as properly requested, with [the] standard language, ‘intentional conduct is purposeful conduct, rather than conduct that is accidental or inadvertent,’ and/or (D) by mistakenly informing defense counsel [that] the court would instruct with the standard language ‘intentional conduct is purposeful conduct, rather than conduct that is accidental or inadvertent’ so [that] defense counsel was misled to refer to the judge so instructing in his final jury argument to the prejudice of [the] defendant.”
      Although the defendant sets forth four arguments, his brief only analyzes the claim in the two discrete ways set forth in the statement of the claim. While we acknowledge that the defendant’s fourth argument introduces a different legal theory, he does not provide any analysis in his brief that differentiates this argument from the others. Furthermore, were we to address this argument, we note that the charging conference in which the court allegedly informed defense counsel that it would “instruct with the standard language” was held off the record. Therefore, the record is not adequate to review that argument. State v. Rodriguez, 60 Conn. App. 398, 399 n.l, 759 A.2d 123 (2000), cert. denied, 255 Conn. 928, 767 A.2d 103 (2001); see also State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Thus, we will address this claim as set forth in the statement of the claim.

       This language is quoted from D. Borden & L. Orland, 5A Connecticut Practice Series: Criminal Jury Instructions (3d Ed. 2001) § 7.1, p. 1.

       The state also took exception to the intent instruction because the court failed to give a requested instruction about drawing an inference of intent to kill based on the type of weapon used and the manner in which it was used.

       In its jmy charge, the court stated: “Now, as defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause the result.” The court later reiterated that “ [o]ur statutes—as I’ve already indicated but it is worth repeating, our statute provides that, a person acts intentionally with respect to a result when his conscious objective is to cause such result.”

       “Our cases indicate that improper unsworn testimony generally contains the suggestion of secret knowledge ... on the part of the prosecutor. [In
        Holliday], the prosecutor’s statement merely was an explanation of the ground for his objection and not an indication that he possessed secret knowledge of relevant facts. . . . [T]he proper course of action would be for the prosecutor simply to state the grounds upon which [the] objection is made, succinctly and in such form as he or she desires it to go upon the record, before any discussion or argument is had . . . [argument upon such objection . . . arising during the trial of a case shall not be made by either party unless the judicial authority requests it ... . Practice Book § 5-5.” (Citations omitted; internal quotation marks omitted.) State v. Holliday, 85 Conn. App. 242, 260, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004).

       The defendant also argued that his conviction cannot stand because the court canvassed him on the crime of criminal possession of a firearm rather than criminal possession of a pistol. Because we decide this claim on the basis of the defendant’s first argument, we need not address this contention.


source: Caselaw Access Project

author: LA.VINE, J.

license: Public Domain

text:
    VICTOR JOSE VELASCO v. COMMISSIONER OF CORRECTION
    (AC 30405)
    (AC 30814)
    Flynn, C. J., and Lavine and West, Js.

      Argued November 16, 2009
    officially released February 2, 2010

      Lisa J. Steele, special public defender, for the appellant (petitioner).

      Frederick W. Fawcett, special assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

LA.VINE, J.

The petitioner, Victor Jose Velasco, appeals from the judgment of the habeas court, Sahú-man, J., denying his second amended petition for a writ of habeas corpus. The habeas court granted the petition for certification to appeal. The petitioner claims that the court improperly concluded that he failed to prove that trial counsel (1) was ineffective because he failed to argue effectively an oral motion to suppress the principal eyewitness identification, (2) was ineffective in his cross-examination of that witness and (3) failed to offer expert testimony on eyewitness identification at trial. We affirm the judgment of the habeas court.

In 1998, the jury found the petitioner guilty of felony minder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3), and use of a firearm in the commission of a felony in violation of General Statutes § 53-202k. The court, Ford, J., imposed a total effective sentence of sixty years in prison. The Supreme Court affirmed the conviction of felony murder and conspiracy to commit robbeiy in the first degree but vacated the sentence under § 53-202k for use of a firearm in the commission of a felony. State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000). The petitioner’s total effective sentence was reduced to fifty years in prison when the state decided not to retry him on the firearm conviction. The relevant factual histoiy was recounted extensively in our Supreme Court’s decision disposing of the petitioner’s direct appeal. Id., 214-17. We set forth only the most relevant facts pertaining to this appeal.

“At approximately 10:45 p.m. on December 19, 1996, the [petitioner] and another individual entered Maria’s Variety Store in Bridgeport. The two men robbed the store, and one of them shot and killed the owner, Fernando Reis. Several eyewitnesses identified the [petitioner] as one of the assailants who had robbed the store. One witness, Kathryn Curwen, had been standing by the cash register talking with Reis when the [petitioner] and another male, both dressed in black and wearing ski masks, entered the store. According to Cur-wen, one of the assailants wore a jacket with a black and gold emblem that read ‘Billion Bay,’ the same type of jacket that police later seized from the [petitioner]. Both men were armed, and the [petitioner] waved Cur-wen back by brandishing a handgun. Curwen heard one of the two men demand money and then heard a gunshot, but she did not see who had fired the shot. Thereafter, the taller of the two assailants put a nine millimeter gun to Curwen’s head when a second customer refused to comply with his demand to retreat to the back of the store. After the assailants fled, Curwen called the police.

“Officer Richard Mercado of the Bridgeport police department was patrolling the area on the night of the crime when he observed the [petitioner] walking in the general vicinity of the variety store. The [petitioner] matched the description of the suspect that had been broadcast over Mercado’s police radio. Mercado detained the [petitioner] and informed him that he was a suspect. The [petitioner] denied any involvement in the shooting, but acknowledged that he was a member of the Latin Kings street gang. When the [petitioner] was returned to the scene of the crime, Curwen identified him as one of the assailants. Three days later, Curwen singled out the [petitioner] from a photographic array of eight potential suspects, each with black masks drawn over their eyes.” Id., 214-15.

The petitioner filed a petition for a writ of habeas corpus, which was amended on April 15, 2008. He claimed that trial counsel was ineffective in failing (1) to file a motion to dismiss or a request for essential facts to compel the state to specify the “overt act” portion of the state’s conspiracy allegation, (2) to object to a jury charge relating to specific intent, (3) to prepare a defense or to investigate the conspiracy charge, (4) effectively and properly to cross-examine Curwen, a witness for the state, (5) to suppress Curwen’s eyewitness identification of the petitioner, (6) to call an expert on eyewitness identification and (7) to request specific jury instructions on eyewitness identifications. On July 16, 2008, a hearing was held, and on August 13, 2008, the petition was denied. All issues raised in this appeal relate to counsel’s alleged failures relating to Curwen’s eyewitness identification.

We first turn to the standard of review. “The standard of appellate review of habeas corpus proceedings is well settled. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by [an appellate] court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Jarrett v. Commissioner of Correction, 108 Conn. App. 59, 69-70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008). Here, the petitioner does not claim that the court’s findings are clearly erroneous.

“To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [amendment.” (Internal quotation marks omitted.) Jarrett v. Commissioner of Correction, supra, 108 Conn. App. 70.

I

The petitioner first claims that the habeas court wrongly concluded that counsel was not ineffective in arguing an oral motion to suppress Curwen’s identification of the petitioner. The habeas court rejected this claim, concluding that “the petitioner cannot prove prejudice from any failure of [trial counsel] to pursue this claim further unless he can also show a reasonable probability that an attack on the reliability of the identifications would have been successful.” We agree with the habeas cotut.

We construe this amorphous claim to assert that counsel was ineffective because the trial court denied the motion to suppress. We are hard-pressed to say how this court can evaluate meaningfully the extent to which an argument persuaded a court in this, or any, case given the reality that a trial court has before it evidence, here, the photographic array, permitting it to make decisions independent of counsel's argument.

In any event, counsel objected to the admission of the photographic array at trial. During Curwen’s testimony, as the habeas court noted, counsel objected on the grounds that the photographic array was unfairly suggestive, that it was done after the show-up on the scene and that Curwen selected the petitioner’s image based only on having seen his eyes. The trial court initially sustained defense counsel’s objection to the photographic array for lack of foundation but eventually admitted it over further objection.

To prevail on a motion to suppress a pretrial identification, a defendant must prevail on a two-pronged inquiry. “[F]irst, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. . . . The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable.” (Internal quotation marks omitted.) State v. Bell, 93 Conn. App. 650, 660, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006).

As the habeas court noted, at the time of the crime, Curwen saw the suspect from only a few feet away, two officers testified that the suspect fit her description, Curwen recognized the petitioner at the show-up because of his eyes and because the clothing he was wearing resembled that worn by the perpetrator at the crime scene and Curwen was “pretty sure” of her identification based on the photographic array she had viewed several days after the crime. The habeas court concluded that, viewing these factors in their totality, Curwen’s identification of the petitioner was reliable.

Without reaching a conclusion as to counsel’s performance, we address, as did the habeas court, Strickland’s prejudice prong. To prove prejudice, the petitioner must establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). To have prevailed on the suppression issue, counsel would have had to establish both that the pretrial identification procedures were unnecessarily suggestive and that they were unreliable. See id. The petitioner fails to consider that the trial court had the photographic array before it and was able to make its decision independent of counsel’s argument. There is nothing to suggest that any claimed “unprofessional errors” made by counsel led to the court’s ruling as it did on the motion to suppress Curwen’s identification of the petitioner. We agree with the habeas court’s conclusion that the petitioner failed to prove prejudice.

II

The petitioner claims that the habeas court wrongly concluded that counsel’s cross-examination of Curwen was adequate. Specifically, the petitioner asserts that counsel could have done more to bring out alleged inconsistencies between Curwen’s prior statements and her trial testimony. We disagree.

The habeas court determined that counsel adequately cross-examined Curwen, the state’s key identification witness. The habeas court noted that the cross-examination brought out that Curwen focused her attention on the gun, was nervous, could only see the suspect’s eyes and could not be certain about his ethnicity and that, prior to the show-up at the crime scene, the police told her that they had a suspect. Additionally, counsel raised various inconsistencies between Curwen’s testimony and prior statements during his closing argument.

“An attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy.” State v. Drakeford, 63 Conn. App. 419, 427, 777 A.2d 202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002). The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance. We concur with the conclusion of the habeas court that counsel's cross-examination of Curwen did not fall below an objective standard of reasonableness. See Duperry v. Solnit, 261 Conn. 309, 335-36, 803 A.2d 287 (2002).

III

The petitioner’s final claim is that the court improperly failed to find that counsel rendered ineffective assistance because counsel did not retain an expert witness to testify about the reliability of eyewitness identifications. The habeas court cited the observation in State v. Kemp, 199 Conn. 473, 475-79, 507 A.2d 1387 (1986), that “the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question.” Id., 477. The habeas court then concluded that the petitioner had failed to prove prejudice because the notion that he would have been able to produce an expert on eyewitness identification, that such expert would have been permitted to testify and that it was reasonably probable that the outcome of the trial would have been different were all matters of speculation.

The petitioner’s argument is based on a series of suppositions. “[N]umerous state and federal courts have concluded that counsel’s failure to advance novel legal theories or arguments does not constitute ineffective performance. . . . Nor is counsel required to change then-existing law to provide effective representation.” (Citations omitted; internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, supra, 275 Conn. 461-62. Given the state of the law at the time of the petitioner’s habeas trial, the court properly found that the petitioner had failed to prove prejudice. We conclude that the court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court denied the amended petition on August 13, 2008. The petition for certification to appeal was denied as untimely on October 1, 2008, and the petitioner appealed to this court. Subsequently, he was given permission to file his petition for certification to appeal late and, thereafter, filed another appeal with this court. Both appeals were consolidated by order of this court dated April 13, 2009.

       The petitioner also claims that the court improperly failed to find that trial counsel rendered ineffective assistance because, in preparation for trial, he failed to (1) consult an eyewitness identification expert or (2) educate himself about issues relating to eyewitness identifications. He argues that the habeas court mistakenly concluded that counsel was not ineffective for failing to explain properly in his summation the weaknesses in Kathryn Curwen’s identification and to object during trial to the prosecutor’s attempts to support Curwen’s credibility. These issues were neither raised in the petitioner’s second amended petition nor addressed in the habeas court’s memorandum of decision. Consequently, we decline to review them. See Copeland v. Warden, 26 Conn. App. 10, 13-14, 596 A.2d 477 (1991) (reviewing court does not consider claims not raised in habeas court), aff'd, 225 Conn. 46, 621 A.2d 1311 (1993).

       The petitioner also made allegations against his appellate counsel, which are not at issue in this case.

       We do, however, take this opportunity to note the habeas court’s statement that “[e]ven today, there is no appellate case law in Connecticut authorizing the admission of such [eyewitness identification expert] testimony.” We read Kemp to stand for the proposition that a trial court does not abuse its discretion in excluding expert testimony concerning the reliability of eyewitness testimony. It does not stand for the broader proposition that a court may never admit such testimony. Moreover, the assertion in State v. Kemp, supra, 199 Conn. 477, that “the reliability of eyewitness testimony identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question” may have been true in 1986, when Kemp was decided, but it seems dubious today in light of significant research developments in the area. We note that courts seem to be having difficulty keeping up with, and adapting to, the changing landscape in this area. See State v. Marquez, 291 Conn. 122, 168-85, 967 A.2d 56 (2009) (Katz, J., concurring); id., 185-214 (Palmer, J., concurring).


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. NOEL ACOSTA, JR.
    (AC 29954)
    Flynn, C. J., and Lavine and West, Js.

      Argued November 16, 2009
    officially released February 2, 2010

      Norman A. Pattis, with whom, on the brief, was John F. Geida, for the appellant (defendant).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Kevin C. Doyle, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Noel Acosta, Jr., appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). On appeal, the defendant claims that (1) the trial court improperly denied his motion to suppress a statement he made to the police, (2) the court improperly denied his Batson* challenge during jury selection and (3) the jury’s verdict finding him guilty of robbery is inconsistent with the jury’s verdict finding him not guilty of charges of burglary in the first degree in violation of General Statutes (Rev. to 2007) § 53a-101 (a) (1), and conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-101 (a) (1). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 4, 2007, at approximately 5:20 a.m., Mario Olivar was awakened by the sound of his doorbell at his residence, a second floor apartment located at 95 Lombard Street in New Haven. Olivar opened the front door and saw two men: Pedro Rosario and the defendant. Rosario pointed a pistol at Olivar’s head and entered the living room of the apartment while the defendant, who wore a black mask that covered his entire face except for his eyes, stood by the door. Rosario demanded Olivar’s money. Olivar responded that he had none, and Rosario ordered Olivar to lie on the floor. Olivar then told Rosario that he had money in his wallet, which was in his bedroom. Rosario took Olivar to the bedroom, while the defendant told Olivar’s son, Vincen-zio Olivar (Vincenzio), who also was in the living room along with Olivar’s nephew, to remain seated. In the bedroom, Olivar gave Rosario the contents of his wallet, and Rosario demanded the gold chain that Olivar was wearing around his neck.

Rosario and Olivar returned to the living room, and Rosario renewed his demand for money. Olivar responded that he had no more money, and Rosario struck him on the head with his pistol. Rosario threatened Vincenzio, telling him that he was going to kill him and that he had killed before. Vincenzio subsequently gave Rosario his wallet, which contained $250. Rosario told the defendant that they should leave. The defendant exited the apartment but returned immediately saying that the police had arrived. As Rosario and the defendant left the apartment, Vicenzio hit the defendant with a bottle of beer, and Olivar threw a case of beer at the defendant, striking him in the head.

Officers Philip McKnight and Lisa Wexler of the New Haven police department responded to a 911 call from the apartment, arriving at the scene at about the time Rosario and the defendant were attempting to leave. The officers had little information, knowing only that an apparent burglary by two male suspects was taking place at the address. The scene encountered by the officers was chaotic; Rosario and the defendant were descending the staircase to the apartment, and a group of men at the top of the stairs was yelling and throwing items, including beer bottles and a television set. One of the men pointed at the defendant and yelled, “pistola.” Rosario jumped from the staircase leading to the apartment in an attempt to flee. McKnight stopped Rosario and was able to handcuff him, while Wexler held the defendant at gunpoint.

The officers handcuffed the defendant, and Wexler searched him for weapons, finding two firearms. The defendant told Wexler that he had a permit for the firearms. Wexler and McKnight noticed that the defendant, who was lying face down on the sidewalk adjacent to the apartment, was bleeding from the head. The officers also saw that the defendant wore a gold department of correction badge on a chain around his neck. McKnight asked the defendant if he worked for the department of correction, and the defendant responded that he was a counselor there. In fact, the defendant was not an employee of the department of correction. The defendant thereafter was arrested and charged with one count of robbery in the first degree, one count of burglary in the first degree and one count of conspiracy to commit burglary in the first degree.

At trial, the defendant testified that on the morning of the robbery, he and Rosario had gone to Olivar’s apartment to purchase beer after spending the preceding evening drinking. The defendant testified that Rosario pulled a gun on Olivar in a dispute over payment. The defendant recognized the weapon as his own, eventually wrestling it away from Rosario and putting it into his pocket. As to the department of correction badge, the defendant testified that he had borrowed it from his aunt, Stephanie Lozada, who worked for the University of Connecticut Health Center located at the New Haven Correctional Center. The defendant explained that he wanted the badge as a “good luck charm” when he took an examination to qualify as a department of correction employee.

Following trial, the jury found the defendant guilty of the robbery charge and not guilty of the burglary and conspiracy to commit burglary charges. The court denied the defendant’s motions for a judgment of acquittal and for a new trial. The defendant thereafter was sentenced to a term of twenty years imprisonment, execution suspended after twelve years, with a five year term of probation. The present appeal followed. Additional facts will be provided where necessary.

I

The defendant first challenges the court’s denial of his motion to suppress his statement, given to McKnight, that he worked for the department of correction. Specifically, the defendant argues that the court improperly failed to determine that the statement was a product of his custodial interrogation by McKnight and therefore should have been suppressed because it occurred prior to the defendant’s having been advised of his Miranda rights. We disagree.

The following facts pertain to the defendant’s claim. Prior to trial, the court held a hearing on the defendant’s motion to suppress the statement, during which the sole witness was McKnight, who testified as follows. At approximately 5:30 a.m. on the morning in question, McKnight responded to a call of a possible home burglary by two male suspects at 95 Lombard Street in New Haven. Wexler already was present when McKnight arrived. As he approached, McKnight saw a group of men on the porch at the top of the stairway to the apartment shouting and pointing at two men coming down the stairs. McKnight handcuffed Rosario, who had leapt from the staircase in an attempt to flee, and proceeded to assist Wexler, who was with the defendant.

McKnight pulled the defendant away from the stairway and noticed that the defendant was bleeding from the head. After the defendant had been handcuffed and Wexler had searched him for weapons, McKnight noticed the gold department of correction badge hanging from a chain around the defendant’s neck. The sight of the badge surprised McKnight, who determined that the defendant probably was a department of correction employee. McKnight asked the defendant whether he worked for the department of correction, and the defendant responded that he was a counselor there. At this point, neither McKnight nor Wexler had provided the defendant with Miranda warnings. McKnight eventually seized the badge as potential evidence. Only a few minutes had elapsed from the time McKnight arrived on the scene to the time he questioned the defendant.

At the hearing on the motion to suppress, the state conceded that the defendant was in custody at the time McKnight questioned him. Following McKnight’s testimony, the court denied the defendant’s motion. The court found that at the time he questioned the defendant, McKnight did not know fully what had happened, as the chaotic events had unfolded rapidly. The court also credited McKnight’s testimony that he was surprised to see the department of correction badge. The court concluded that the question was a preliminary inquiry and did not constitute interrogation under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

We begin with the applicable standard of review. It is well established that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id., 444. Our review is guided by the fact that resolution of the defendant’s motion to suppress required the court to determine whether the defendant was subjected to interrogation. “[T]he ultimate determination ... of whether a defendant already in custody has been subjected to interrogation . . . presents a mixed question of law and fact over which our review is plenary, tempered by our scrupulous examination of the record to ascertain whether the findings are supported by substantial evidence.” State v. Mullins, 288 Conn. 345, 364, 952 A.2d 784 (2008).

Under Miranda, the definition of interrogation is not limited to express questioning by the police but includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Emphasis added; internal quotation marks omitted.) State v. Canales, 281 Conn. 572, 588, 916 A.2d 767 (2007). However, as this court has stated, “[ejvery question posed to a defendant in custody is not equivalent to an interrogation.” State v. Dixon, 25 Conn. App. 3, 8, 592 A.2d 406 (1991).

Our review of the record leads us to conclude that the court properly determined that McKnight’s question to the defendant did not constitute interrogation. The record reflects the chaotic scene that McKnight and Wexler encountered upon their arrival at the address in the early morning hours. A group of men were on the porch and staircase to the apartment. Some of these men were shouting and pointing at others. One was leaping from the staircase in an attempt to flee. Beer bottles and a television set were being thrown from the porch. One man was bleeding from the head. All of this occurred within the span of a few minutes. Further, McKnight and Wexler possessed scarce information prior to arriving: a call was made from the apartment indicating that a burglary was taking place and that two men were involved. Given this situation, and the prompt arrival of the police during the resulting melee, McKnight’s question to the defendant concerning the department of correction badge and possible employment by the department cannot be categorized as being “reasonably likely to elicit an incriminating response from the suspect.” (Internal quotation marks omitted.) State v. Canales, supra, 281 Conn. 588. Rather, the question was a part of the officer’s initial inquiry into the situation, an effort to assess the circumstances and determine who present, if anyone, was involved in the reported burglary.

Upon arriving at the scene, McKnight knew only that a burglary involving two male suspects had been reported. Facing the defendant under the circumstances, even after the defendant had been handcuffed, McKnight could not have been sure that the defendant was one of those suspects. Certainly, given the nature of the events that occurred in the brief span in question, there was a chance that the defendant had not been involved and, therefore, had been handcuffed improperly and taken into custody. The question posed by McKnight must be viewed in the context of the events as they unfolded. We conclude that the court properly denied the defendant’s motion to suppress his statement, as McKnight’s question did not constitute interrogation for the purposes of Miranda.

II

The defendant next claims that the court improperly denied his Batson challenge during jury selection. He argues that the court incorrectly determined that the state had put forth a race neutral reason for exercising a peremptory challenge to remove an African-American woman from the jury pool. We are not persuaded.

The following facts, taken from the record, are relevant to the defendant’s claim. During jury selection, defense counsel questioned the venireperson, N, an African-American woman, about her previous experiences with the criminal justice system. Responding to defense counsel’s inquiries, N indicated that her probation period had ended in 2002, that she had been treated fairly by the prosecutor and by the public defender who had represented her, and that the police officers involved had “treated [her] normal.” N further stated that her brother had been the victim of an unsolved shooting and robbery but that this fact would not affect her ability to be fair and objective as a juror.

During the prosecutor’s examination, N revealed that she previously had been arrested in New Haven, the city in which the defendant’s trial was being held, for possession of marijuana. N also related that her brother had been shot and robbed in New Haven. The prosecutor asked N about her understanding of the standard of proof in a criminal case. N stated: “I might want to be 100 percent [certain] . . . because I don’t want to like give a verdict out and not be 100 percent” and indicated that it would be hard for her to put this tendency aside. Upon further questioning, N stated that she would be able to follow the judge’s instructions regarding the standard of reasonable doubt.

At the close of questioning, the prosecutor asked that N be excused from the jury panel. The prosecutor cited N’s previous arrest and prosecution in New Haven, the fact that her brother had been a victim of an unsolved crime and her statements about wanting “100 percent” certainty in arriving at a decision as race neutral reasons for the exclusion. Defense counsel objected, offering a Batson challenge. The court denied the defendant’s Batson motion, holding that N’s previous prosecution and her equivocal response with regard to her requiring absolute certainty in reaching a conclusion while asserting that she would follow the court’s instructions constituted race neutral reasons for the prosecutor’s use of the peremptory challenge. The court noted that it had made its own observations of N during questioning about the proper burden of proof, stating that there was “certainly enough in her demeanor and in her answers on that point in and of itself to justify the exercise of a peremptory in this case.”

On appeal, the defendant claims that neither reason cited by the court in making its ruling was proper. He denominates the reason pertaining to N’s previous prosecution a “red herring” “because the prospective juror admitted that she was treated fairly, held no animosity and realized that her involvement with the criminal justice system bore no relationship to the case of [the defendant].” He further contends that the second reason, N’s statements indicating that she might have required absolute certainty to make a decision, was not sufficient because the prosecutor conceded that N had stated that she would follow the law as instructed by the court. We cannot agree with the defendant.

The principles of law and standard of review applicable to this claim are well established. “In Batson [v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)] the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . The court concluded that [although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the Equal Protection Clause forbids [a party] to challenge potential jurors solely on account of their race . . . .” (Internal quotation marks omitted.) State v. Latour, 276 Conn. 399, 408, 886 A.2d 404 (2005).

“Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination. . . .

“[T]he trial court’s decision on the question of discriminatory intent represents a finding of fact that will necessarily turn on the court’s evaluation of the demeanor and credibility of the attorney of the party exercising the peremptory challenge. . . . Accordingly, a trial court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 408-10.

Following our review of the record in the present case, we cannot say that the court’s denial of the defendant’s Batson challenge was improper. Questioning of N by both defense counsel and the prosecutor revealed the fact that she previously had been arrested and prosecuted for possession of marijuana in New Haven where this prosecution was to occur. Under the case law precedent of our Supreme Court, this reason alone was a constitutionally acceptable ground for her excusal. “[A]n arrest record . . . constitutes a neutral ground for the state’s exercise of a peremptory challenge to excuse a black venireperson.” State v. Smith, 222 Conn. 1, 14, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992). As to the second reason offered by the prosecutor, although N ultimately stated that she would be able to follow the court’s instructions, and the prosecutor acknowledged this statement, in such instances “a prosecutor is not bound to accept the venireperson’s reassurances, but, rather, is entitled to rely on his or her own experience, judgment and intuition in such matters.” State v. Hodge, 248 Conn. 207, 231, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). N’s “equivocation with respect to holding the state to a higher burden of proof than proof beyond a reasonable doubt ... [is a] valid, nondiscriminatory [reason] for excusing her.” Id., 232. We conclude that the defendant has not met his burden of demonstrating that the court’s rejection of his Batson challenge was clearly erroneous.

Ill

The defendant’s final claim is that the jury’s verdict finding him guilty of robbery in the first degree is not consistent with its finding him not guilty of burglary in the first degree and conspiracy to commit burglary in the first degree. He argues that the facts demonstrated that the robbery was committed inside the residence and, therefore, was classified properly as a burglary. He contends that the “verdicts are not logically and reasonably consistent” and that they require this court to remand the case for a new trial on the robbery charge. The state argues in opposition that the defendant’s claim is foreclosed by our Supreme Court’s recent decision in State v. Arroyo, 292 Conn. 558, 973 A.2d 1254 (2009). We agree with the state.

In Arroyo, the Supreme Court affirmed its holdings in State v. Whiteside, 148 Conn. 208, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33 (1961), and State v. Rosado, 178 Conn. 704, 425 A.2d 108 (1979), “that factually and logically inconsistent verdicts are permissible.” State v. Arroyo, supra, 292 Conn. 583. The Arroyo court also held that legally inconsistent verdicts are permissible and, thus, not reviewable, adopting the rule of United States v. Powell, 469 U.S. 57, 69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). State v. Arroyo, supra, 585. On the basis of this controlling precedent, we reject the defendant’s final claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

        General Statutes § 53a-133 defines the crime of robbery as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       Rosario also was referred to during the proceedings as Pedro Rosario-Gonzalez.

       “Pistola” is Spanish for “pistol” or “handgun.”

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       We refer to the juror by initial to protect her legitimate privacy interests. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).


author: ALVORD, J.

text:
    IN RE SOLE S.

    (AC 30948)
    Lavine, Beach and Alvord, Js.

      Argued November 19, 2009
    officially released February 2, 2010

      Gary J. Wilson, for the appellant (respondent father).

      Michael J. Besso, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       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

ALVORD, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights as to his minor child, Sole. He claims that the court improperly found that (1) the department of children and families (department) had made reasonable efforts to reunify the child with him, (2) he had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, he could assume a responsible position in the child’s life and (3) the termination of parental rights was in the child’s best interest. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the respondent’s appeal. The child was bom in April, 2000. In 2002, the respondent was incarcerated in Pennsylvania on charges related to the sale and possession of narcotics. While incarcerated, he left the child and her paternal half brother in the care of the child’s mother. In August, 2002, and in January, 2003, the department received reports that the child’s half brother was being physically abused. The ensuing investigation resulted in the arrest of the child’s mother, and on January 16, 2003, both children were removed from her care pursuant to a ninety-six hour hold. On January 17, 2003, the child was adjudicated neglected, and the petitioner, the commissioner of children and families, was granted temporary custody. In March, 2004, the respondent was released from prison. He resumed residence with the child’s mother, and on March 22, 2004, the child was returned to the care and custody of her biological parents under orders of protective supervision. Seven months later, on November 17, 2004, the respondent again was arrested and incarcerated on drug related charges. The child remained in the care of her mother under protective supervision until January 20,2006, when the department invoked a second ninety-six hour hold. On February 3, 2006, the child was committed to the care, custody and guardianship of the petitioner. On March 14, 2008, the petitioner moved to terminate the respondent’s parental rights pursuant to General Statutes § 17a-112 (j) (3) (B). A judgment of termination was rendered on March 4, 2009, and this appeal followed.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child. . . .

“Our standard of review on appeal from a termination of parental rights is limited to whether the challenged findings are clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . [G]reat weight is given to the judgment of the trial court because of [the trial court’s] opportunity to observe the parties and the evidence. . . . [An appellate court does] not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Gabrielle M., 118 Conn. App. 374, 376-77, 983 A.2d 282 (2009).

The respondent first claims that the court improperly found that the department made reasonable efforts to reunify him with his child. He argues that the department’s decision, in 2008, to discontinue its reunification efforts was unreasonable. The record contains ample support for the court’s finding. “[Reasonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) Id., 377. In this case, the department did reunify the respondent with the child. In 2004, the child was returned to the care of the respondent for approximately seven months. The reunification was short-lived because the respondent was reincarcerated. The department nevertheless continued to offer the respondent parenting classes, anger management classes, substance abuse counseling, supervised visitation and assistance securing housing. Accordingly, the court’s finding is not clearly erroneous.

The respondent next claims that the court improperly determined that he had failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3).* * Specifically, he argues that his compliance with the specific steps ordered by the court is indicative of his rehabilitation. Although the record reveals that the respondent did comply with some of the steps ordered by the court, he was not able to meet all of its mandates. In particular, he was unable to find a living arrangement suitable for a child or to secure adequate legal income. He also tested positive for cocaine in violation of his parole on December 8,2008. Consequently, the court’s finding that the respondent had failed to achieve sufficient rehabilitation is supported by the record.

Finally, the respondent claims that the court improperly found that termination was in the child’s best interest. He argues that the court did not give enough credit to the testimony and recommendations of the court-ordered evaluator, licensed psychologist, Tina Schiappa. We disagree. “The best interests of the child include the child’s interests in sustained growth, development, well-being and continuity and stability of its environment.” (Internal quotation marks omitted.) In re Tremaine C., 117 Conn. App. 590, 600, 980 A.2d 330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009). Although Schiappa opined that, in light of the respondent’s recent release and positive strides, it would be in the child’s best interest to give him more time to achieve personal rehabilitation, she also stated (1) that if the respondent “fails to obtain housing in a reasonable amount of time or returns to jail for any violations of his probation or a new arrest, it would seem that long-term rehabilitation is unlikely,” (2) that “continued placement with [the child’s foster parent] appears to be in [the child’s] best interests, whether it be long-term foster care or adoption” and (3) that “[i]f the parents are unable to rehabilitate in a timely manner, adoption would be in the best interest of this child.”

Moreover, Schiappa testified that she considered six to twelve months from the date of her report to be a sufficient amount of time to reevaluate the respondent’s progress. The termination hearing concluded on March 2, 2009, approximately seven months after Schiappa issued her written recommendations. By the conclusion of the proceeding, the respondent (1) had made no additional progress in obtaining appropriate housing, (2) had tested positive for cocaine and (3) had not been capable of independently caring for the child in over four years. As a result, we conclude that the court’s finding that termination is in the child’s best interest is not inconsistent with the evaluator’s testimony and is adequately supported by the record as a whole.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court terminated the parental rights of the child’s mother in the same proceeding. She has not appealed from the judgment of termination. We therefore refer to the respondent father as the respondent in this opinion.

       The child’s mother was arrested for risk of injury to the child’s half brother. She plead guilty to substituted offenses of reckless endangerment and assault in the third degree.

       General Statutes § 17a-101g permits the commissioner to remove a child from unsafe surroundings under a ninety-six hour hold.

       The second ninety-six hour hold was invoked after the department discovered that the child’s mother moved in with a friend and left the child in the home of a relative who lived with a convicted sex offender.

       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 in accordance with subsection (a) of section 17a-lllb ... (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 . . . .”

       The respondent also urges us to apply the “scrupulous” standard of review set forth by Justice Schaller in In re Melody L., 290 Conn. 131, 174-209, 962 A.2d 81 (2009) (Schaller, J., concurring). It is not clear to us what “scrupulous review” means. Moreover, this purportedly more rigorous level of factual review has not been endorsed by our Supreme Court for termination of parental rights cases. Accordingly, we are without authority to apply it now. See West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15, 24, 857 A.2d 354 (“It is axiomatic that. . . this court [is] without authority to overrule the decisions of our Supreme Court. In the absence of direction by our Supreme Court, inferior courts must continue to adhere to its decisions.”), cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).

       In a 2008 social study, the department recommended that reunification with the respondent was no longer appropriate because he had been in and out of prison for most of the child’s life and had failed to refrain from criminal involvement, obtain adequate housing and secure stable employment and income.

       The statute requires a court to find, by clear and convincing evidence, that the level of rehabilitation a parent has achieved “falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in [the] child’s life.” (Internal quotation marks omitted.) In re Selena O., 104 Conn. App. 635, 646, 934 A.2d 860 (2007). In making its determination, “the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child’s life within a reasonable time.” (Internal quotation marks omitted.) Id.

       On November 20, 2003, January 24, 2006, and October 23,2007, the court ordered several specific steps to enable the respondent to regain custody of the child including (1) secure and/or maintain adequate housing and legal income, (2) no substance abuse, (3) no further involvement with the criminal justice system and (4) comply with the conditions of probation or parole.

       The respondent was released from prison to a halfway house on July 20, 2007. He remained in the halfway house until he became eligible for parole on March 17, 2008. Once paroled, the respondent moved to a sober rooming house. At the time of the termination hearing, the respondent worked part-time and still lived in the rooming house. He does not challenge the court’s finding that the rooming house was not a suitable home for the child.

       The respondent will be on parole and subject to possible reincarceration until 2010.