text:
    STATE OF CONNECTICUT v. OSCAR MELENDEZ
    (AC 22785)
    Foti, Bishop and Dupont, Js.

      Argued October 16
    officially released December 24, 2002

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

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

FOTI, J.

The defendant, Oscar Melendez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and an enhanced sentence pursuant to General Statutes § 53-202k. On appeal, the defendant claims that the trial court improperly (1) refused to instruct the jury on manslaughter as a lesser included offense, (2) charged the jury concerning the effects of impeachment evidence and the credibility of witnesses, (3) charged the jury concerning consciousness of guilt and (4) restricted his cross-examination of the state’s key witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of August 10, 1998, the victim, James Lindsay, and his girlfriend, Janette Rodriquez, were in the area of State Street and Iranistan Avenue in Bridgeport. The defendant and his father, Andres Melendez, who operated a nearby barbershop, approached in a van from which the two men exited. The men then approached the victim and began arguing with him, accusing him of having taken two dogs from the father’s yard. Approximately two weeks earlier, in the same area, the victim and Rodriquez had found two pit bull puppies on a sidewalk next to a fence that ran to the backyard of the father’s barbershop. Rodriquez and the victim had taken the dogs and had sold one of them.

The father went inside his barbershop while the defendant and the victim continued arguing outside. The father came back and told the defendant that he had spoken with his other son and that the problem was resolved. Despite that, the victim and the father resumed arguing. As they continued to argue, the defendant moved behind them. After five or ten minutes, the defendant, without warning, produced a gun and began firing at the victim, stating repeatedly: “Don’t disrespect my father.” The victim at first fell against a wall and then fell to the sidewalk as the shooting stopped. Rodriquez heard ten shots fired. The defendant ran to the van and fled. Rodriquez ran to a pay telephone on the street comer. Finding the telephone in use, she ran back and asked the defendant’s father to call the police. Rodriquez later was taken to the police station where she identified a photograph of the defendant as being of the shooter.

Sergeant Mark Straubel of the Bridgeport police department came to the crime scene. Straubel found the victim lying on the sidewalk in great pain, short of breath and bleeding from the waist. Straubel asked the victim if he knew who shot him, and the victim replied that it had been “the son.” Straubel observed empty shell casings on the victim’s stomach and a spent bullet nearby.

The victim was transported to a hospital where he died the next day as a result of seven gunshot wounds, one each to the back of the left elbow, the third finger of the left hand and the lower left leg, and two each to the buttocks and the left lower abdomen. According to Ira Kanfer, a pathologist in the office of the chief medical examiner, the bullets injured the victim’s pelvic organs, intestines and ileac artery, causing the victim to bleed to death. Two bullets were recovered from the victim’s abdominal wall and turned over to the Bridgeport police.

Bridgeport Detective Joseph Adiletta, who processed the crime scene, found seven empty shell casings, two spent bullets and a copper jacket that was the outer shell of one of the bullets. Marshall Robinson, a firearms expert, determined that the casings found at the scene were all fired from the same semiautomatic pistol. According to Robinson, before the weapon could be fired, the shooter had to chamber the first bullet manually and then had to pull the trigger every time to fire a shot.

Officer Femado Oquendo, who also came to the crime scene, unsuccessfully tried to locate the defendant after the shooting. Detective Richard Donaldson of the state violent crimes fugitive task force attempted to execute an arrest warrant for the defendant on several occasions. It later was learned that the defendant had fled to Puerto Rico. The defendant subsequently returned and was arrested on November 23, 1999.

The defendant was charged with murder in violation of § 53a-54a (a) on December 6, 1999. The defendant waived a probable cause hearing and was tried before the jury. At trial, the defendant maintained that he was not the shooter and was not involved in the incident. He explained that when he saw on television that he was wanted in connection with the shooting, he became frightened and left the area. The juiy found the defendant guilty of murder on December 6, 2000. He was sentenced on January 19, 2001, to the custody of the commissioner of correction for a term of thirty years, twenty-five years on the murder count plus an additional five years due to the enhancement of sentence under § 53-202k.,

I

The defendant first claims that the court committed reversible error by refusing his request to charge the jury on manslaughter in the first degree in violation of General Statutes § 53a-55 (a) as a lesser offense included within the greater offense of murder. We disagree.

Our review of a court’s refusal of a defendant’s request to instruct the jury on a lesser included offense requires us to view the evidence in the light most favorable to granting the defendant’s request. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991). We must reverse a court’s failure to give such an instruction only if, as a matter of law, we cannot exclude the possibility that the defendant is guilty of only the lesser offense. State v. Ray, 228 Conn. 147, 155, 635 A.2d 777 (1993).

“A defendant does not have a fundamental constitutional right to a jury instruction on every lesser included offense . . . rather, the right to such an instruction is purely a matter of our common law. . . . Under [State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980)], [a] defendant is entitled to an instruction on a lesser offense if, and only if ... (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Internal quotation marks omitted.) State v. Solek, 66 Conn. App. 72, 80-81, 783 A.2d 1123, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001).

The parties agree that the defendant has satisfied the first two requirements of the four-pronged Whistnant test. The defendant, however, also must satisfy prongs three and four. “For the third and fourth requirements of Whistnant to be satisfied, there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense.” (Emphasis in original; internal quotation marks omitted.) Id., 83.

The essential element that differentiates the crime of murder from intentional or reckless manslaughter is the mental state or intent of the defendant. “The offense of murder requires that the defendant intentionally cause the death of another; General Statutes § 53a-54a (a); while the offense of manslaughter in the first degree provides that a person is guilty when, with intent to cause serious physical injury to another person, he causes the death of such person; General Statutes § 53a-55 (a) (1); or under circumstances evincing extreme indifference to human life, he recklessly engages in conduct that creates a grave risk of death and causes the death of another. General Statutes § 53a-55 (a) (3).” State v. Solek, supra, 66 Conn. App. 83-84. A person also is guilty of manslaughter in the first degree if that person committed murder under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse. General Statutes §§ 53a-54a (a) and 53a-55 (a).

The defendant claims that the court should have given the jury an instruction on manslaughter because the element of intent was sufficiently in dispute for the jury to have reasonably found that he was not guilty of murder, but guilty of the lesser offense because either he intended only serious injury, was acting recklessly in disregard of the risk of death or was experiencing an extreme emotional disturbance. We are not persuaded.

A

Regarding a charge of intentional manslaughter, the defendant argues that the shooting of the victim was a spontaneous reaction to the argument between the victim and the defendant’s father, and showed intent to harm but not to kill. The defendant explains that, considering Rodriquez’ testimony that in firing the gun the defendant kept “waving it down,” along with evidence of the direction and location of the gunshot wounds, the jury reasonably could have believed that the defendant’s intent was to direct the shots away from vital areas of the victim’s body, because, due to the proximity of the defendant to the victim, he was close enough to have done otherwise. Finally, the defendant contends that because the victim did not fall immediately to the ground and was still alive when the defendant fled the scene, a jury could find that the defendant did not intend to kill the victim.

“We consistently have concluded that the specific intent to kill may be proven solely by circumstantial evidence, as long as that evidence establishes beyond a reasonable doubt that the defendant had the conscious objective to take the life of another. . . . The defendant’s intent to kill, therefore, may be inferred from evidence of the defendant’s use of a deadly weapon, the manner in which the weapon was used, and the nature and number of wounds inflicted. ... It is axiomatic that a factfinder may infer an intent to kill from circumstantial evidence such as 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.” (Citation omitted; internal quotation marks omitted.) State v. Solek, supra, 66 Conn. App. 84-85.

In the present case, the concealed pistol used by the defendant was a deadly weapon; General Statutes § 53a-3 (6); and he fired at the victim from behind, without any warning and in close proximity, at least seven, possibly as many as ten, times. Although the victim’s head and chest were not struck, the seven bullet wounds that the defendant inflicted caused sufficient injury to the victim’s pelvic organs, intestines and ileac artery to cause the victim to bleed to death. Given that most, if not all, of the shots fired actually hit the victim, including multiple wounds in the abdomen and buttocks, the notion that the defendant was aiming down at the ground or only at nonvital areas is unreasonable. The defendant fled the area immediately after the shooting and did not summon any medical assistance. Both are indicia of an intent to kill. State v. Sivri, 231 Conn. 115, 129-30, 646 A.2d 169 (1994). Even after considering all the evidence in the light most favorable to the defendant, we conclude that there is insufficient evidence from which a jury could reasonably and logically have inferred that he intended only to harm, but not to kill, the victim.

B

The defendant repeats the same arguments discussed in part IA as evidence that the jury could find that he did not intend to kill the victim, but was acting only in a reckless manner with extreme indifference to human life. In support of his claim, the defendant relies on three cases in which the defendants were found guilty of reckless manslaughter. The defendant’s actions in the present case, however, cannot reasonably be characterized as merely reckless. The defendant shot a gun at the victim between seven and ten times in close proximity, wounding him at least twice in the abdomen. His actions therefore were far more egregious and thus distinguishable from those of the defendants in the cases referred to in his principal brief.

In State v. Pitt, 28 Conn. App. 825, 828, 612 A.2d 60, cert. denied, 224 Conn. 907, 615 A.2d 1049 (1992), there was evidence that the defendant intended to shoot near the victim’s feet to stop the victim from approaching him, but the defendant lost his balance and a shot went astray, killing the victim. In this case, however, the defendant deliberately had moved behind the victim before firing. The victim was not advancing toward the defendant. The defendant did not lose his balance or otherwise mistakenly make a fatal shot, as occurred in Pitt. Further, the defendant shot at the victim in a waving motion hitting the victim seven times, not once.

In State v. Hallowell, 61 Conn. App. 463, 468, 766 A.2d 950 (2001), the defendant, from a distance of forty to sixty feet, twice fired a shotgun at several individuals who had been chasing him in an automobile. In doing so, the defendant killed a passenger in the automobile. Id. In the present case, the defendant shot the victim at close range, not from forty feet away, and the defendant was not shooting at something else, such as a car, but specifically fired at the victim.

In State v. Best, 56 Conn. App. 742, 749, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000), the defendant mother struck her twenty month old child several times in the abdominal area, causing death. In a case of child abuse, death reasonably might be an unintended consequence of reckless behavior; in the present case, the defendant inflicted the fatal abdominal wounds not with his hands, but with multiple shots from a deadly weapon.

Further, the state presented evidence through its expert, Robinson, that the defendant had to chamber the first round before he could fire the weapon and that he had to pull the trigger each time he fired. This is not a case in which the gun kept firing accidentally. The jury reasonably could have inferred intent to kill, but not mere recklessness, from the defendant’s actions. As with intentional manslaughter, there was insufficient evidence to require the court to instruct the juiy on the lesser included offense of reckless manslaughter.

C

Finally, the defendant claims that the court should have instructed the jury on the defense of extreme emotional disturbance. See General Statutes §§ 53a-54a (a) and 53a-55 (a) (2). The defendant argues that he was upset by the argument over the dogs and that his repeating of “[d]on’t disrespect my father” while shooting showed his agitated state.

“Extreme emotional disturbance ... is ... an affirmative defense upon which the burden of persuasion rests on the defendant.” State v. Small, 242 Conn. 93, 117, 700 A.2d 617 (1997) (Borden, J., concurring). “To sustain his burden of establishing extreme emotional disturbance by a preponderance of the evidence, the defendant must persuade the trier of fact that: (1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” (Internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 202-203, 672 A.2d 488 (1996).

On the basis of our review of the record and transcript, we conclude that the defendant has failed to sustain his burden of production. The defendant’s counsel admitted to the court that he had failed to put on evidence in that regard. Because there was insufficient evidence regarding the defendant’s emotional state, the court properly did not instruct the jury on manslaughter founded on an extreme emotional reaction defense.

We conclude, therefore, that because the defendant’s state of mind was not sufficiently in dispute, the court did not improperly fail to instruct the jury on lesser included offenses because the jury could not reasonably have found the defendant innocent of murder, but guilty of manslaughter in the first degree under any of the proffered theories.

II

The defendant’s second claim is that the court’s instruction to the jury regarding the effects of impeachment evidence and the credibility of witnesses was inadequate, inaccurate and did not, in substance, conform to his requested instruction.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instmction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial. . . . [T]he trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) State v. Solek, supra, 66 Conn. App. 87-88.

In the present case, defense counsel requested a supplemental credibility charge concerning Rodriquez’ convictions for larceny and forgery, and her use of aliases. The defendant believed it was paramount to his defense that the instruction to the jury specifically address Rodriquez’ credibility, as her testimony was the only eyewitness account of the shooting. Although any relevant and accurate request to charge 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.” Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977). The court gave a charge on credibility and impeachment that provided the same substantive instruction without emphasizing credibility as to Rodriguez. Although the defendant would have us believe the general instruction was inadequate to guide the jury properly in applying the law, for the following reasons, we are not persuaded.

Only two witnesses testified that they had been convicted of felonies, Rodriquez and the defendant’s brother, who testified that the defendant had not been present at the crime scene. The trial lasted only a few days, so it is improbable that the jury would have been confused or misled as to whom the court’s instruction regarding past convictions referred. The court, in addition to giving its general instruction, specifically instructed the jury that testimony of identification should be “thoroughly scrutinized” and that the reliability of each such witness was “of paramount importance.” Although Rodriquez was not mentioned by name, the jury, which heard testimony about not only Rodriquez’ past crimes but about her drug use, in all likelihood could not have been misled as to whom those instructions pertained or of the importance of careful scrutiny.

Further, despite the defendant’s contention that Rodriquez was the state’s “star witness” and the only witness to identify him, thereby justifying a more specific jury instruction, there was other evidence, namely, the victim’s dying declaration that the defendant had shot him, from which the jury could have found the defendant guilty even after fully discounting Rodriquez’ testimony. Even though the victim’s declaration rendered harmless any error regarding the court’s instruction, we nonetheless conclude that under the circumstances presented and, when the charge is read as a whole, the instruction given was sufficient to guide the jury and, therefore, was not improper.

Ill

The defendant’s third claim is that the court improperly instructed the jury that his flight to Puerto Rico was evidence of consciousness of guilt and that the instruction, as given, was misleading and inadequate. Our standard of review of jury instructions is set out in part II. We reiterate that we will not dissect an instruction or read portions out of context; “jury instructions need not be exhaustive, perfect, or technically accurate.” (Internal quotation marks omitted.) State v. Solek, supra, 66 Conn. App. 88.

The defendant argues for the first time on appeal that the court’s instruction that “flight, when explained, tends to prove circumstances of guilt,” was improper and misleading. If defense counsel believed that the court had misspoke and that this somehow was misleading, he should have brought it to the attention of the judge. Our review of the transcript shows that although defense counsel objected to giving the jury an instruction on consciousness of guilt, he did not object at any time to the wording of the instruction as given and therefore failed to preserve that issue for review. See State v. Pinnock, 220 Conn. 765, 796, 601 A.2d 521 (1992) (review of defendant’s challenge to jury instruction declined because defendant failed to apprise trial court of specific objection).

We note, however, that our Supreme Court has upheld the validity of an instruction on flight as evincing consciousness of guilt despite attacks on its appropriateness; see State v. Hines, 243 Conn. 796, 815-16, 709 A.2d 522 (1998); and “[t]he decision whether to give an instruction on flight, as well as the content of such an instruction, if given, should be left to the sound discretion of the trial court.” Id., 816. We cannot say that the court here abused its discretion in giving this particular charge. When read as a whole, the overall charge was correct in the law and provided the jury with a sufficient guide to apply the facts of this case to the law properly. We conclude, therefore, that the court did not improperly instruct the jury on flight as consciousness of guilt.

IV

Finally, the defendant claims that the court improperly and unduly restricted the cross-examination of Rodriguez about her drug use and its affect on her ability to recall, thereby violating his rights to confrontation and to put on a defense as guaranteed by the sixth amendment, which is applicable to state prosecutions by incorporation through the fourteenth amendment. We disagree.

“Although it is within the trial court’s discretion to determine the extent of [impeachment] and the admissibility of evidence, the preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the [confrontation clause] of the sixth amendment. . . . Whether limitations on impeachment, including cross-examination, are so severe as to violate the confrontation clause of the sixth amendment is a question of law reviewed de novo.” (Citation omitted; internal quotation marks omitted.) State v. Abernathy, 72 Conn. App. 831, 836-37, 806 A.2d 1139, cert. denied, 262 Conn. 924, 814 A.2d 379 (2002).

We note that the United States Supreme Court has stated that the sixth amendment’s confrontation clause does not prevent a trial judge “from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination .... [T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Emphasis in original; internal quotation marks omitted.) Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).

“The [sixth amendment to the] federal constitution [also] require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, an accused must comply with established rules of procedure and evidence in exercising his right to present a defense.” (Citations omitted; internal quotation marks omitted.) State v. Cerreta, 260 Conn. 251, 260-61, 796 A.2d 1176 (2002).

Rodriquez testified on direct examination that at the time of the shooting, she used drugs regularly but that the fact that she had used drugs on that day had not prevented her from recalling what she had seen. On cross-examination, the defendant further elicited from Rodriquez that she was addicted to heroin and that approximately one and one-half hours prior to the shooting, she had injected heroin and smoked crack cocaine. Defense counsel then asked whether the victim had been present, to which the state objected on the ground of relevancy.

During the ensuing dialogue between counsel and the court about the relevance of the victim’s drug use, defense counsel suggested that he planned to inquire into whether ingestion of narcotic substances affected the ability of the witness to observe, recall and report what she had seen. The court informed defense counsel that he had to provide some foundation, such as competent medical authority, that such an effect existed before such questioning would be allowed. Defense counsel then stated that he would try to lay such a foundation by asking Rodriquez specifically about her drug use. The court agreed to allow that.

Defense counsel then asked: “Based upon your use back then, how often would you need to consume the heroin before you began going through any sort of physical withdrawal?” The state objected without stating a reason, and the court sustained the objection without comment. Defense counsel made no attempt to rephrase the question or to otherwise continue with that questioning, but immediately moved on to other questions. The defendant is therefore inaccurate when he states in his principal brief that “the court prohibited any further inquiry.” Counsel in fact abandoned the inquiry.

Again, before recross-examination, defense counsel was instructed by the court that he could ask Rodriquez whether she had experienced withdrawal symptoms or other effects of drug use that would affect her ability to perceive or to recall events. Defense counsel then questioned the witness on the effect known as “nodding out” in which heroin users lose consciousness for various periods of time. The court did not prevent defense counsel from further pursuing that line of questioning; in fact, the court asked several clarifying questions of Rodriquez about “nodding.” Rodriquez testified that beginning addicts might “nod” all day, but that she, as an addict of twenty years, could control the effect. The court asked both the state and the defense to ask any further questions they had, and that invitation was not accepted.

On the basis of our review of the transcript, we conclude that the court did not improperly prevent defense counsel from exploring the degree to which Rodriquez’ drug use affected her mental capabilities; the court simply required the defense to lay a proper foundation under our established rules of procedure and evidence. The defendant, therefore, had a full opportunity to effectively cross-examine all witnesses and to put on a defense as permitted under the sixth amendment.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm . . . shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       The reasonableness of such a claim “is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be . . . .” General Statutes § 53a-54a (a).

       General Statutes § 53a-3 (6) provides in relevant part: “ ‘Deadly weapon’ means any weapon, whether loaded or unloaded, from which a shot may be discharged . . . .” “A pistol, dirk-knife, or gun is a deadly weapon per se.” State v. Litman, 106 Conn. 345, 352, 138 A. 132 (1927).

       “In both State v. Greenfield, [228 Conn. 62, 78, 634 A.2d 879 (1993)], and State v. Francis, 228 Conn. 118, 128-29, 635 A.2d 762 (1993), we noted the defendant’s failure to summon medical assistance for his victim as part of the evidence from which the jury could have inferred an intent to kill. The reasoning underlying those cases is that it can be inferred that, if the defendant has caused a grievous wound that could cause the victim’s death if not treated promptly, the failure to summon that treatment is consistent with an antecedent intent to cause death.” State v. Sivri, supra, 231 Conn. 129. Additionally, the defendant’s fleeing the scene and subsequent flight to Puerto Rico are evidence of his consciousness of guilt. “We have in the past considered consciousness of guilt evidence as part of the evidence from which a jury may draw an inference of an intent to kill. See State v. Patterson, 229 Conn. 328, [333-34], 641 A.2d 123 (1994); State v. Francis, supra, 228 Conn. 131; State v. Reid, 193 Conn. 646, [655-56], 480 A.2d 463 (1984).” State v. Sivri, supra, 130.

       In Pitt, the defendant and the victim were arguing outside the defendant’s apartment. “The defendant turned to walk back into the apartment building and the victim ran toward the defendant. The defendant then turned and fired two shots at the ground near the victim’s feet. The victim stopped. The defendant again turned to walk into the apartment and the victim again ran toward the defendant. The defendant turned and again fired two shots at the ground near the victim’s feet. The victim stopped. The defendant turned for a third time to enter the apartment. The victim again approached the defendant. This time, however, the defendant lost his balance when he turned toward the victim, and the gun went off, fatally wounding the victim.” State v. Pitt, supra, 28 Conn. App. 828.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    IN RE JEISEAN M

    Lavery, C. J., and Foti, Mihalakos, Pellegrino, Dranginis, Flynn, Bishop and West, Js.
    Argued September 11
    officially released December 24, 2002

      William, S. Bingham, in support of the motion.

      Michael J. Besso, assistant attorney general, in opposition.

       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

BISHOP, J.

In this termination of parental rights proceeding, the respondent mother has filed a motion for review seeking reversal of the decision of a Superior Court judge denying her application for a waiver of fees, costs and expenses to pursue an appeal. We grant the respondent’s motion for review and grant the relief requested therein.

The following facts and procedural history are relevant to our consideration of the respondent’s motion. The respondent and John Doe are the parents of Jeisean, who was bom on December 3, 1999. The child was placed with the department of children and families in March, 2000.

On June 20,2000, the child was adjudicated neglected on the grounds that he was uncared for and required specialized care following the respondent’s plea of nolo contendere. The court then approved specific steps for the respondent’s rehabilitation so that reunification with the child could take place. On May 17, 2001, the court, Swienton, J., found that farther efforts at reunification were not appropriate.

The petitioner, the commissioner of the department of children and families, thereafter sought to terminate the respondent’s parental rights due to her alleged failure to achieve sufficient personal rehabilitation. The court, Dannehy, J., found that the respondent had failed to achieve the degree of personal rehabilitation required under the applicable statutory provisions, and terminated the respondent’s parental rights.

The respondent sought to appeal from the court’s termination of her parental rights, and filed an application for relief from payment of the fees, costs and expenses associated with the appeal. In her application, the respondent alleged that she was indigent. She wanted to challenge the constitutionality of the termination statute in light of Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), and further claimed that there was insufficient evidence for a finding that it was in the best interest of the child to terminate her parental rights. She also claimed that there was insufficient evidence of her failure to achieve sufficient personal rehabilitation and that there might be other grounds for appeal that would manifest themselves after a review of the record by her counsel. The petitioner objected to the respondent’s application.

The court, Keller, J., denied the respondent’s application for a waiver of fees, finding that she was indigent, but that her proposed appeal was without merit. The court noted that in determining whether the proposed appeal had merit, it had heard argument on two occasions, and had reviewed the contents of the court file, the exhibits, the transcripts and the detailed memorandum in support of the trial court’s decision.

The respondent filed a timely motion for review of the denial of her application for a waiver of fees. She argues that the trial court should not have determined whether her appeal had merit at that preliminary stage of the appellate process when she had not received the trial transcript and when counsel has been unable to review the case completely. She also argues that her proposed issues for appeal have merit.

In response, the petitioner argues that the language of Practice Book § 63-6 is permissive, not mandatory, and that accordingly, in the exercise of its discretion, the court could reasonably consider the merits of a proposed appeal in ruling on an application brought under that section. We agree with the respondent and hold that the trial court may not consider the relative merits of a proposed appeal when acting on an application for waiver of fees filed pursuant to Practice Book § 63-6 by a parent in a termination of parental rights proceeding.

We are aware that trial courts, in prior termination of parental rights cases, have interpreted the “entitled to appeal” requirement of Practice Book § 63-6 as permitting an assessment of the merits of the proposed appeal in deciding applications for fee waivers. See In re Rayshawn P., Superior Court, Juvenile Matters at Hartford (January 29, 2001); In re Sheena I., Superior Court, Child Protection Session at Middletown, Docket Nos. FO4-96-003792A and F04-003794A (September 7, 2000). Review of the denial of the applications in those cases was not sought. This is the first time the issue of the reasonable parameters of the court’s discretion in determining an application brought pursuant to Practice Book § 63-6 in a termination of parental rights proceeding has been fully briefed and argued before this court. The respondent has specifically raised the argument that the trial court does not have the authority to decide whether an appeal has merit in making a determination on an application for a waiver of fees in a termination of parental rights case. Her motion presents this court with the first opportunity to consider directly the interplay between the appellate and Superior Court rules and the statutes regarding fee waivers and appointment of counsel in termination of parental rights cases, and to provide guidance to the trial courts in deciding such applications.

Our rules of statutory construction also apply to the rules of practice and our review of an issue of construction is plenary. Connor v. Statewide Grievance Committee, 260 Conn. 435, 438-39, 797 A.2d 1081 (2002). “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Clements v. Jones, 71 Conn. App. 688, 690, 803 A.2d 378 (2002).

In M.L.B. v. S.L.J., 519 U.S. 102, 116-17, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996), the United States Supreme Court found that the “State’s authority to sever permanently a parent-child bond, demands the close consideration the Court has long required when a family association so undeniably important is at stake.” The court analogized the respondent in a termination of parental rights case to a defendant resisting criminal conviction and concluded that a state may not withhold from the respondent in a termination of parental rights case, “a record of sufficient completeness to permit proper [appellate] consideration of [her] claims.” (Internal quotation marks omitted.) Id., 128. By analogy, we hold that the conclusion of the trial judge that an indigent’s appeal is frivolous is an inadequate substitute for full appellate review in a termination of parental rights case. See Draper v. Washington, 372 U.S. 487, 499, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963).

In making our determination in the present case, we have considered the interplay among statutes and the rules of practice giving an indigent parent the right to appeal and the right to counsel in a termination of parental rights case, and Practice Book § 63-6 relating to the waiver of costs, fees and expenses to appeal. Pursuant to General Statutes § 52-263: “Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment of the court or of such judge . . . .” The respondent is aggrieved by the granting of the petition to terminate her parental rights, and there is an appealable final judgment in this case.

Because it is axiomatic that the separate provisions of the rules of practice should be read to be in harmony with one another; see Farmington v. Dowling, 22 Conn. App. 564, 566, 577 A.2d 1128, cert. denied, 216 Conn. 816, 580 A.2d 66 (1990); we believe that the right to counsel is a factor to be considered in assessing the reasonable parameters of a judge’s discretion in ruling on an application filed under Practice Book § 63-6. Pursuant to Practice Book § 63-6, if a party in a civil case in which fees and costs may lawfully be waived is indigent and desires to appeal, that party may make a written application for relief from the payment of fees, costs and expenses. The rule provides in relevant part: “If the court is satisfied that the applicant is indigent and entitled to an appeal because of a statutory or constitutional right to court appointed counsel or allowing an indigent party to appeal without payment of fees, costs and expenses, the court may (1) waive payment by the applicant of fees specified by statute and of taxable costs, and waive the requirement of Section 63-5 concerning the furnishing of security for costs upon appeal, and (2) order that the necessary expenses of prosecuting the appeal be paid by the state. . . .” Practice Book § 63-6.

This provision must be read in light of an indigent parent’s right to counsel in a termination proceeding. In a termination of parental rights case, an indigent party is entitled to appointed counsel at trial and on appeal by statutory provision and the rules of the Superior Court. Pursuant to General Statutes § 45a-717 (b): “If a party [in a termination of parental rights action] appears without counsel, the court shall inform such party of the party’s right to counsel and upon request, if he or she is unable to pay for counsel, shall appoint counsel to represent such party. . . .”

An appeal is a continuation of the underlying action. See Knutson Mortgage Corp. v. Salata, 55 Conn. App. 784, 788, 740 A.2d 918 (1999); see also Hamilton v. New Haven, 82 Conn. 208, 212, 73 A. 1 (1909). Pursuant to Practice Book § 34-1 (b), parties in juvenile matters may be represented by counsel in all proceedings, including appeals, and if they are unable to afford counsel, counsel will be appointed for them if they so request. If an indigent party in a juvenile matter wants to appeal, that party is entitled to appointed appellate counsel. If the party’s appointed trial counsel determines that an appeal would lack merit, that counsel may move to withdraw, and new counsel will be appointed to review the case for purposes of appeal. Even if trial counsel and the second appointed counsel decline to pursue an appeal on behalf of the indigent party, if the party can find counsel who wants to represent him or her, the court can appoint that counsel. Even if counsel believes that there is no merit to an appeal, new counsel can be appointed and there is no implication in the rule that an appeal cannot be filed or that the filing of an appeal should be based on a determination of the merits of a proposed appeal.

Having been afforded the statutory right to counsel, the respondent also is entitled to the effective assistance of counsel. State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939 (1979); In re Amanda A., 58 Conn. App. 451, 459, 755 A.2d 243 (2000). We conclude that to represent an indigent party in a termination of parental rights case effectively on appeal, or even to review meaningfully a matter to determine whether an appeal should be taken, court-appointed counsel must be able to obtain access to the portions of the trial transcript necessary for assessment and presentation of the proposed appellate issues. This view gives meaning to a parent’s right to counsel. The right to counsel on appeal afforded by statute and by rule could too readily become illusory if we were to permit trial judges effectively to block counsel’s access to the information necessary for counsel to evaluate properly whether an appeal should be advanced in the exercise of his or her professional responsibilities to the litigant and to the court.

Accordingly, we hold that in deciding an application for a waiver of fees, costs and expenses pursuant to Practice Book § 63-6 in a termination of parental rights proceeding, the factors to be weighed by the trial court are limited to a consideration of whether the applicant has a statutory right of appeal pursuant to General Statutes § 52-263 and whether the applicant is indigent. Once the court has determined that there is a statutory right to appeal from a final judgment and that the applicant is indigent, the proposed issues for appeal are to be considered only to determine the extent to which a waiver of fees should be granted to enable the applicant adequately to pursue those issues on appeal.

Practice Book § 63-6 requires that prior to incurring any expense in excess of $100, including the expense of obtaining a transcript of the necessary proceedings or testimony, counsel for the applicant shall obtain the permission of the judge who presided at the applicant’s trial. The rule also provides that the judge shall authorize a transcript at state expense only of the portions of testimony or proceedings that may be pertinent to the issues on appeal. The court has the discretion to determine what expenses over $100 should be waived and may use the proposed issues to make that determination concerning the appropriateness of the anticipated fees, costs, and expenses.

We further hold that in deciding an application for a waiver of fees pursuant to Practice Book §63-6 in a termination of parental rights case, the trial court may review the financial circumstances of the applicant to determine indigency and may consider the proposed issues on appeal only in determining the extent to which fees or costs should be waived.

The respondent’s motion for review is granted, the denial of her application for a waiver of fees, costs and expenses is reversed and the matter is remanded with direction to grant the respondent’s application for a waiver of fees, costs and expenses to appeal; however, the determination of the extent of transcript that should be provided to the respondent is left to the trial court’s discretion such that that court shall ensure that the respondent is provided with a record of sufficient completeness to permit proper appellate consideration of her claims.

In this opinion the other judges concurred.

       We refer to the mother as the respondent throughout this opinion.

       Pursuant to Practice Book § 63-6, “[t]he sole remedy of any party desiring the court to review an order concerning the waiver of fees, costs and security shall be by motion for review under Section 66-6."
      Practice Book § 66-6 provides in relevant part: “The court may, on written motion for review stating the grounds for the relief sought, modify or vacate any order made by the trial court . . . relating to the . . . procedure of prosecuting or defending against an appeal . . . .”

       The respondent has not identified the child’s father, and no one has acknowledged paternity. John Doe’s parental rights were terminated. No appeal was taken from that decision.

       We note that Judge Keller was not the trial judge. Because we hold that a court faced with an application made pursuant to Practice Book § 63-6 may not include a consideration of the merits of an appeal in its determination whether to waive fees, costs and expenses, we need not address whether it is more appropriate for the trial judge or an administrative judge to make a determination pursuant to Practice Book § 63-6.

       Practice Book § 35-4 (b) provides: “If an indigent party wishes to appeal a final decision and if the trial counsel declines to represent the party because in counsel’s professional opinion the appeal lacks merit, counsel shall file a timely motion to withdraw and to extend the time in which to take an appeal. The judicial authority shall then forthwith appoint another attorney to review this record who, if willing to represent the party on appeal, will be appointed for this purpose. If the second attorney determines that there is no merit to an appeal, that attorney shall make this known to the judicial authority at the earliest possible moment, and the party will be informed by the clerk forthwith that the party has the balance of the extended time to appeal in which to secure counsel who, if qualified, may be appointed to represent the party on the appeal.”
      Effective January 1, 2003, Practice Book § 35-4 (b) is repealed, and this language is transferred to Practice Book § 35a-21 (b).

       If a party to the appeal believes that an appeal is frivolous, a proper motion seeking dismissal of the appeal as frivolous can be made pursuant to the provisions of Practice Book §§ 85-2 (5) and 85-3. Such motions may be scheduled on an expedited basis. See Practice Book §§ 60-1 and 60-3. Motions and appeals involving juvenile matters are particularly apt for application of the rules regarding expedited consideration. It is the policy of this court, moreover, to expedite consideration of juvenile matters. This court also may schedule a hearing if it determines sua sponte that an appeal may be frivolous.

       The state must furnish indigent defendants with a trial record adequate to allow meaningful review of their claims. Draper v. Washington, supra, 372 U.S. 499. However, “part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal and a State will not be required to expend its funds unnecessarily in such circumstances.” (Internal quotation marks omitted.) Mayer v. Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971).


author: DUPONT, J.

text:
    MARY MATTSON v. JEFFREY C. MATTSON
    (AC 22082)
    Laveiy, C. J., and Foti and Dupont, Js.
    Submitted on briefs October 31
    officially released December 24, 2002

      Thomas W. Beecher filed a brief for the appellant (defendant).

      Michael R. Kaufman and Marvin Borofsky filed a brief for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant, Jeffrey C. Mattson, appeals from the judgment of the trial court denying his motion to open the judgment dissolving the parties’ marriage. In his motion to open, the defendant alleged that the plaintiff, Mary Mattson, fraudulently misrepresented certain information on the financial affidavit that she submitted at the time of the dissolution. On appeal, he claims that the court (1) abused its discretion in denying his motion because he presented evidence of fraud sufficient to open the judgment and (2) improperly disallowed him from conducting discovery prior to the hearing on the motion. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of the defendant’s appeal. The parties, who were married in 1985, obtained a judgment of dissolution on March 3, 1999. Incorporated in the judgment was their separation agreement, which the they had prepared with the assistance of a mediator. The parties met with the mediator several times commencing in October, 1998. The agreement and the financial affidavits underpinning it were signed and dated February 12, 1999. On June 15, 2000, the defendant filed a motion to open the judgment on the ground of alleged fraud by the plaintiff.

On April 18,2001, the defendant filed a revised motion to open the judgment of dissolution in which he alleged that the plaintiff, on her February 12, 1999 financial affidavit, had overstated her tax and credit card liabilities, and understated the value of her stock and stock options.* The court held a hearing on the motion on June 4, 2001, at which the parties presented evidence and testimony. Thereafter, the court denied the defendant’s motion, stating that “there has been no evidence presented to the court to indicate that [the plaintiff] made a statement . . . that she knew was untrue, and that it was made at the time of her signing of her financial affidavit.” This appeal followed.

“Our review of a court’s denial of a motion to open [based on fraud] is well settled. We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Pospisil v. Pospisil, 59 Conn. App. 446, 449, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000).

“Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed. . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment. ... A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud.” (Citations omitted; internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 217-18, 595 A.2d 1377 (1991). A court’s determinations as to the elements of fraud are findings of fact that we will not disturb unless they are clearly erroneous. Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn. App. 471, 478, 767 A.2d 118 (2001).

There are three limitations on a court’s ability to grant relief from a dissolution .judgment; secured by fraud: “(1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different. Billington v. Billington, supra, [220 Conn.] 218.” (Emphasis added.) Pospisil v. Pospisil, supra, 59 Conn. App. 450.

The defendant first claims that the plaintiffs listing on her February 12, 1999 affidavit of two credit card debts totaling $35,000 was fraudulent because she paid those debts in full in January, 1999, and failed to amend the affidavit, which was prepared by the mediator on the basis of information that previously had been provided. Because the payments necessarily caused corresponding reductions in her assets, we agree with the court that the plaintiffs satisfaction of those obligations was inconsequential. Additionally, the undisputed evidence was that the plaintiff had made the payments via a joint checking account of which the defendant necessarily was aware. Furthermore, the defendant presented no evidence other than his assertion to demonstrate that the plaintiff had paid her bills with the intent of deceiving him and that he had relied to his detriment on the assumption that they remained outstanding. The court was entitled to reject his testimony as not credible.

The defendant also claims that the plaintiffs listing of an estimated $80,000 tax liability for two bonuses she had received from her employer was fraudulent because the actual amount due later turned out to be only $40,000. At the hearing, the plaintiff testified that the estimate was provided by the parties’ joint accountant and that the defendant was present when she solicited that estimate. There was no evidence that the plaintiff, at the time she signed her financial affidavit, knew her tax liabilities to be other than what was represented therein. To the contrary, the defendant conceded that it was a good faith estimate that the plaintiff did not know to be untrue. The court apparently relied on both parties’ testimony, and we will not revisit its credibility determinations. See Cadle Co. v. Errato, 71 Conn. App. 447, 459, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).

The defendant last claims that the plaintiff fraudulently underestimated the value of her stock and stock options. At the hearing, the plaintiff testified that the cumulative gross value of those assets, based on the most current information available during the preparation of her affidavit, was $379,000, and that after consulting with the defendant, she listed them on the affidavit, net of tax, at $255,000. The defendant offered no evidence to the contrary and made no argument that the figure was inaccurate or that an alternate figure should have been used. Although he now claims, in a conclusory fashion, that the plaintiff should have used the gross figure, we need not address that. See Legnos v. Legnos, 70 Conn. App. 349, 355, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002).

On the basis of the foregoing analysis, we conclude that the court’s findings as to fraud were not clearly erroneous. Accordingly, its denial of the defendant’s motion to open the judgment of dissolution was not an abuse of discretion.

The defendant also claims that the court improperly denied him the opportunity to conduct discovery prior to the hearing; however, he has provided no legal analysis of his claim. We note that “[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Id.

We note, however, that we previously have rejected a claim identical to the defendant’s, i.e., that a party seeking to open a judgment of dissolution on the basis of allegations of fraud has a right to conduct discovery based only on its filing of a motion to open. Oneglia v. Oneglia, 14 Conn. App. 267, 269, 540 A.2d 713 (1988). As we explained, “[t]his is clearly an incorrect premise; until the court acts on a motion to open, the earlier judgment is still intact and neither our rules of practice nor our statutes provide for such a thing as postjudgment discovery.” Id. “If the [defendant] was able to substantiate [his] allegations of fraud beyond mere suspicion, then the court would open the judgment for the limited purpose of discovery, and would later issue an ultimate decision on the motion to open after discovery had been completed and another hearing held.” Id., 270. Because the defendant in this case was unable to meet that minimal evidentiary threshold, the court’s ruling was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the motion to open the judgment was filed more than four months from the date of dissolution; see Practice Book § 17-4; the court has inherent power to determine if fraud exists. Kenworthy v. Kenworthy,
        180 Conn. 129, 131, 429 A.2d 837 (1980). Furthermore, the four month provision in the rules of practice may be waived by the conduct of the parties, such as the participation of the parties in the determination of the motion without objection. See In re Baby Girl B., 224 Conn. 263, 292, 618 A.2d 1 (1992).

       The defendant alleged other instances of fraud and, additionally, undue influence and duress, but does not pursue those claims on appeal.

       At the hearing, the defendant proceeded pro se.

       Citing Ledgebrook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 584, 376 A.2d 60 (1977), and One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn. App. 524, 525, 589 A.2d 892 (1991), which involve prejudgment attachments sought pursuant to General Statutes § 52-278a et seq., the defendant argues that a lesser, probable cause standard is applicable. It is evident, however, that Billington and Pospisil, both of which concerned a procedural posture identical to that in the present case, are controlling and that to prevail, the defendant was required to present “clear proof’ of the plaintiffs alleged fraud at the hearing on his motion to open. Although the parties referred to the proceedings as a “probable cause hearing,” the court properly cited the Billington standard when rendering its judgment. This is not a case in which the defendant sought Hie granting of a motion for disclosure and production contingent on probable cause that fraud existed in obtaining a judgment. See Oneglia v. Oneglia, 14 Conn. App. 267, 540 A.2d 713 (1988).


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. MARCUS GREGORY
    (AC 22337)
    West, Landau and McDonald, Js.

      Argued September 25
    officially released December 24, 2002

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

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

MCDONALD, J.

The defendant, Marcus Gregory, appeals from the judgment of conviction rendered upon his entering conditional pleas of nolo contendere to two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2), one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and one count of burglary in the second degree with a firearm in violation of General Statutes § 53a-102a (a). In his conditional plea, the defendant reserved the right to appeal from the denial of his motion to suppress seized evidence. See Practice Book § 61-6 (2). We affirm the judgment of the trial court.

After an evidentiary hearing on the motion to suppress, the court found the following facts in its memorandum of decision. “In the early morning hours of January 10, 1997, Troopers Edward Wooldridge and Richard Gregory of the state police were ‘backing up’ another trooper who was engaged in a stop of a suspected drunken driver on the Route 25 connector in Bridgeport. At approximately 1:53 a.m., they observed a red Subaru station wagon operated by a black male with no apparent passengers traveling southbound on the connector without headlights on. Trooper Wool-dridge, who was already in his cruiser, immediately pursued the vehicle with emergency lights and siren activated for a short distance, pulling within one-half car length of the vehicle, where he managed to obtain the license plate number and reported that via radio to the Troop G dispatcher.

“At exit one, the vehicle abruptly exited the highway after the driver attempted an evasive maneuver, driving over an area between the highway and the exit ramp. At the bottom of the exit ramp, the vehicle took a right onto Prospect Street, then made a right turn onto Park Avenue heading north. After traveling a short distance, the vehicle appeared to be making a U-tum at the intersection of Hancock and Park Avenues. At this point, the driver jumped out of the vehicle while the vehicle continued down Hancock Avenue until it came to rest after striking a parked vehicle. The driver began running southbound on Park Avenue. Trooper Wooldridge attempted to observe the driverless car heading down Hancock Avenue as well as the driver running down Park Avenue at the same time.

“Wooldridge then reversed his direction and traveled southbound on Park Avenue, and began to travel the perimeter of the block consisting of Park Avenue, Cottage Street, Seeley Street and Hancock Avenue in an attempt to locate the driver of the vehicle. During this search, Wooldridge was informed by the Troop G dispatcher that the vehicle was registered to a white male from Ansonia. As Wooldridge began traveling back toward Park Avenue on Hancock Avenue, Trooper Gregory arrived in the area. While looking in his rear-view mirror, Wooldridge observed aperson appear from an alleyway and then disappear. This alleyway, formed by 91 and 99 Hancock Avenue, is approximately ten feet wide and is divided down its length by a chain-link fence. It is approximately four or five houses away from where the Subaru came to rest after being abandoned. Trooper Gregory, along with Trooper Wooldridge, walked down the alleyway along 91 Hancock Avenue, searched the backyard area, found nothing and returned to the street.

“At this point, the two troopers were joined by Officer Orlando Lanzante, a Bridgeport police officer. At Lan-zante’s suggestion, the three returned to the backyard in an effort to locate the driver of the Subaru. On their way back to the street from the backyard, Lanzante noticed the defendant hiding next to a couch, which was standing on end against 91 Hancock Avenue, an abandoned building. The officers had walked by this couch on their way into the backyard both prior to and after the arrival of Lanzante, and although the two troopers were carrying flashlights, the defendant remained unnoticed. Upon being seen by Lanzante, [the defendant] was ordered at gunpoint several times to get on the ground and he failed to comply. He was then physically placed on the ground by Trooper Gregory and handcuffed behind his back. The area where this confrontation took place was closely confined by the house, couch and chain-link fence. After being handcuffed, the defendant was then assisted to his feet and led out to the street to the rear of Lanzante’s cruiser where the lighting conditions were better.

“The defendant initially denied any wrongdoing. As he was being led out of the alleyway, he indicated that he had been smoking marijuana and was attempting to avoid the police for that reason. All three officers testified that they did not observe anyone else on the street prior to the detention of the defendant. Trooper Wool-dridge indicated that he did not smell the odor of marijuana in the area. The defendant also was unable to produce any form of identification.

“At the rear of Lanzante’s cruiser, the defendant was patted down by Wooldridge to determine if he had any weapons in his possession. Wooldridge found no weapons, but testified that in the course of the patdown, he felt what he believed to be a plastic bag with some substance in it in the right front pants pocket of the [defendant]. Upon removing the item from the pocket, Wooldridge discovered aplastic bag containing a green, plant-like substance, which he believed to be marijuana. At that time, Wooldridge considered the defendant to be under arrest and read him his rights. He was then placed into the back of Lanzante’s police cruiser. Approximately five minutes had elapsed from the time the Subaru was first seen on the Route 25 connector until the time that the defendant was placed into the cruiser.

“Within minutes, [Wooldridge] began to receive additional information from [his] dispatcher relating to the vehicle, including the fact that the car was recently stolen from Ansonia and may have been involved in a home invasion and sexual assault, which had occurred in that city approximately twenty minutes earlier. After being informed that a Derby class ring had been stolen in the Ansonia robbery, the troopers recalled that they had seen a Derby class ring in the possession of the [defendant] when they seized the marijuana and had returned it to him. The troopers then took the [defendant] out of the vehicle to look for the ring. The defendant no longer had possession of the ring, but it was located under the seat cushion of the police vehicle, where he had been sitting. The troopers found that the ring bore the initials of the victim of the Ansonia robbery. The red Subaru was packed with items that matched those reportedly stolen in the Ansonia robbery.

“Wooldridge had broadcast a description over the radio immediately after catching a fleeting glimpse of the [driver] as he ran away from him. Wooldridge initially described the driver as a black male with gray pants and a black jacket. Shortly thereafter, when asked by his radio dispatcher to repeat his description, [Wool-dridge] responded: ‘Black male in a gray jacket, black hoody, gray pants, short hair, they look like black sneakers.’ When the defendant was found hiding in the couch, he was wearing a black hoody, blue jeans and dark brown shoes. His hair was almost shoulder length and was worn in thinly stranded, tight braids. The defendant, however, appeared to be the same race, about the same height, the same overall build and was wearing the same kind of black hoody that Wooldridge had seen earlier under a jacket. [Wooldridge] further noted that the color of the blue jeans was not clearly distinguishable from gray when viewed under streetlights.

“Since Wooldridge perceived differences in the appearance of the [defendant] compared to what he recalled seeing as the man from the Subaru, efforts were initiated to bring a dog capable of tracking human scent to the scene in order to attempt to track the path of the driver of the vehicle. The officers tried to locate an available K-9 unit through the state police and then through the West Haven police department. Eventually, at 2:20 a.m., Officer Robert Novia of the Bridgeport police department was summoned from his home. At 2:35 a.m., he arrived at the scene on Hancock Avenue with his dog, Timmy, approximately thirty-seven minutes after the defendant was originally detained. After meeting with the officers at the scene, the dog began his track from the front seat of the abandoned Subaru and followed an apparent scent trail down Hancock Avenue, which eventually led to the area of the couch where the defendant had been discovered. Officer Novia testified that in his opinion, the driver of the Subaru, after leaving the vehicle, eventually went to the couch, where a ‘pool scent’ was left, indicating that the driver had been standing in that particular location.

“As a result of the investigation which followed the original detention of the defendant, he was arrested for possession of marijuana and for various charges, including robbery, burglary and sexual assault relating to the Ansonia home invasion. A search warrant including information obtained by this investigation was obtained for a sample of the defendant’s blood. A subsequent DNA analysis and comparison of the defendant’s blood led the police to conclude that the defendant was responsible for a sexual assault that had occurred in Bridgeport several days prior to the Ansonia incident. The defendant was arrested .... Also, the boots [that the defendant] was wearing at the time of his arrest were subsequently matched with footprints found at the scene of a robbery for which the defendant was arrested.”

The defendant was charged with kidnapping in the first degree, sexual assault in the first degree and burglary in the first degree in relation to crimes that occurred in Bridgeport on January 6, 1997, and kidnapping in the first degree and burglary in the second degree with a firearm in relation to crimes that occurred in Bridgeport on January 5, 1997. Upon his conviction, the defendant was sentenced to a total effective term of 100 years imprisonment to run concurrently with the ninety year sentence he was serving as a result of his conviction arising out of the crimes that occurred in Ansonia.

The defendant had sought to suppress the blood and boot print evidence, claiming that they were the fruits of an illegal search. He contended that because the police did not have a warrant or probable cause to arrest him, nor did they have a reasonable and articulable suspicion to conduct a Terry stop, his seizure was improper and any evidence that resulted, his DNA and the boot print, should have been suppressed.

The court found that the defendant’s arrest was proper because there was probable cause to support an arrest for the motor vehicle offenses. In the alternative, the court found that there were sufficient facts for the police to detain the defendant temporarily for investigative purposes and to conduct a patdown, which revealed that the defendant had a bag of marijuana in his pocket and supported his arrest for drug possession.

The crux of the defendant’s argument rests on his proposition that the court improperly determined that there was probable cause or, in the alternative, a reasonable and articulable suspicion, that he was the driver of the Subaru station wagon. Although the defendant concedes that the police had probable cause to stop the driver of the station wagon, he claims that at the time the police first encountered him in the alley, they had no justification either to arrest him or to conduct a temporary stop. We disagree.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. 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 ....

“Because a trial court’s determination of the validity of a [Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] patdown search implicates a defendant’s constitutional rights ... we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279-80, 764 A.2d 1251 (2001); see State v. Gregory, 56 Conn. App. 47, 51-52, 741 A.2d 986 (1999), cert. denied, 252 Conn. 929, 746 A.2d 790 (2000).

“Under the fourth amendment to the United States constitution and article first, §§ 7 and 9, of our state constitution, a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. . . . Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.

“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. ... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. ... A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime.” (Citations omitted; internal quotation marks omitted.) State v. Lipscomb, 258 Conn. 68, 75-76, 779 A.2d 88 (2001).

The court concluded that the police had the authority to detain the defendant temporarily when they found him hiding in the alley. In determining the legality of a Terry stop, we do not look at each fact in isolation, but at the totality of the circumstances presented to the police at the time they detain an individual. State v. Gregory, supra, 56 Conn. App. 52. On the basis of the totality of the circumstances presented to the officers and applying an objective standard, we agree with the court’s conclusion that the officers had a reasonable and articulable suspicion.

“The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the reaction of the suspect to the approach of police are all facts which bear on the issue of reasonableness.” (Internal quotation marks omitted.) State v. Wylie, 10 Conn. App. 683, 687, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987). “Proximity in the time and place of the stop to the crime is highly significant in the determination of whether an investigatory detention is justified by reasonable and articulable suspicion.” (Internal quotation marks omitted.) State v. DaEria, 51 Conn. App. 149, 158, 721 A.2d 539 (1998).

After a careful review of the record, we conclude that the court’s factual findings were supported by substantial evidence. The court found that when Wool-dridge attempted to stop the driver of a Subaru station wagon being operated at night without its headlights turned on, the driver did not stop. The trooper began a chase, using his cruiser’s siren and flashing lights, which ended in Bridgeport when the driver jumped from the still moving vehicle and ran. When the trooper began searching the area for the driver, a person appeared in an alleyway and then disappeared. The alleyway was four or five houses away from the location where the Subaru came to rest. After once searching that alleyway with another trooper and not finding anyone, the troopers were joined by a Bridgeport police officer, and, in a second search, found the defendant hiding behind a couch next to an abandoned building. The defendant was found there less than five minutes after the car chase began at 2 a.m. He was alone in the alley and without a coat in midwinter. Furthermore, when discovered, the defendant refused to abide by the officers’ requests to get on the ground. Considering the facts together, the officers were justified in temporarily detaining the defendant.

The defendant argues that because the clothing description that Wooldridge provided to his radio dispatcher differed from what the defendant was wearing when he was found in the alley, the police had no basis to conclude that he was the driver of the vehicle. When Wooldridge saw the driver fleeing, he reported that the driver had short hair and was wearing gray pants, black sneakers, a gray jacket and a black hooded sweatshirt. The defendant was found wearing jeans, brown boots, a black hooded sweatshirt and with a tightly braided cornrow hairstyle. Wooldridge testified that the physical characteristics of the individual he saw fleeing the scene matched the defendant’s physical characteristics. The officer wanted to determine if the defendant was the driver of the vehicle. That was a proper goal of a Terry stop. The courts have pointed out that the purpose of a Terry stop is to investigate whether a suspect committed, or was in the process of committing, a criminal offense. See Terry v. Ohio, supra, 392 U.S. 1. As our Supreme Court has stated, the purpose of the stop is to “confirm or dispel [the officer’s] suspicions [that an individual has committed or is about to commit a crime].” State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992).

The police are therefore not required to confirm every detail of a description of the perpetrator before that person can be detained. State v. DaEria, supra, 51 Conn. App. 158. Rather, “[w]hat must be taken into account [when determining the existence of a reasonable and articulable suspicion] is the strength of those points of comparison which do match up and whether the nature of the descriptive factors which do not match is such that an error as to them is not improbable . . . .’’(Internal quotation marks omitted.) Id. Wooldridge’s description came after he saw the defendant jumping from a moving vehicle at 2 a.m. Given the limited amount of time that Wooldridge had to view the driver and the lack of lighting in the area, combined with the fact that the description provided was similar, although not identical, to what the defendant was found wearing, and that the defendant’s physical characteristics were the same as the individual Wooldridge saw fleeing the vehicle and the circumstances under which the defendant was found, we conclude that there was a reasonable and articulable suspicion for the police to detain him.

Having found that the police properly stopped the defendant, we now turn to the propriety of the patdown search that followed. It is the defendant’s contention that because Wooldridge testified that when he patted the defendant down, he was searching for drugs, as well as weapons, the search exceeded the scope of a patdown under Terry. We disagree.

If an officer possesses a reasonable suspicion that the individual stopped is in possession of a weapon, the officer may conduct a patdown frisk. See Ybarra v. Illinois, 444 U.S. 85, 93, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). We again use an objective standard in determining whether a police officer had a particularized basis for suspecting whether an individual should be patted down for weapons. See State v. Clark, supra, 255 Conn. 282. “When conducting a patdown search of a suspect, the officer is limited to an investigatory search for weapons in order to ensure his . . . own safety and the safety of others nearby. . . . The officer cannot conduct a general exploratory search for whatever evidence of criminal activity [he] might find.” (Citations omitted; internal quotation marks omitted.) Id. However, “[i]n order to justify the reasonableness of an investigatory search, [an] officer need not be absolutely certain that [an] individual is armed; [rather] the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his . . . safety or that of others was in danger.” (Internal quotation marks omitted.) Id., 284-85.

In State v. Gregory, supra, 56 Conn. App. 47, we stated: “During a Terry detention, the police may conduct a pat-down search to locate weapons if they reasonably believe that the suspect may be armed and dangerous. . . . According to Terry v. Ohio, [supra, 392 U.S. 20-27], where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for a crime or the absolute certainty that the individual is armed. Once a reasonable and articulable suspicion exists, an officer may detain a suspect to conduct an investigative stop to confirm or dispel such suspicions. Suspicious conduct during a Terry stop, including flight at the approach of officers and a refusal to comply with officers’ instructions, are other integral factors that will justify a pat-down for weapons. . . .

“To determine whether an investigatory detention and pat-down are permissible a two part inquiry is utilized: (1) was the officer justified in initially detaining the individual based on specific and articulable facts; and (2) did specific and articulable facts exist that suggested that the individual presented a harm to the officers or others so as to justify the pat-down. . . . The wanton and reckless conduct by the defendant to avoid detection by the police suggests a strong consciousness of guilt.” (Citations omitted; emphasis added.) State v. Gregory, supra, 56 Conn. App. 52-53.

Although Wooldridge testified that he also was searching for drugs when he patted the defendant down, he also testified that he was searching for a weapon. The fact that Wooldridge stated that he also was searching for drugs does not invalidate the officers’ conduct. The officers were searching for an individual who fled a car that was being driven without its headlights on after ignoring the police siren and flashing lights of the police cruiser following him. Rather than stop for the pursuing cruiser, the driver, whose description did not match that of the vehicle’s owner, leaped from the moving vehicle and ran from the scene. That vehicle then crashed into a parked vehicle. When the police encountered the defendant, who generally matched the driver’s description, hiding in a nearby dark alley at 2 a.m. next to an abandoned building, he refused to adhere to repeated requests by the police to get on the ground. We conclude that the defendant’s headlong and reckless flight from the police, considered with his hiding in a darkened alley near abandoned buildings, justified the patdown. Viewed by the objective standard we apply, a reasonably prudent person would have been warranted in the belief that either his safety, or the safety of others, was in jeopardy. See id., 52.

“In Minnesota v. Dickerson [508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993)], the United States Supreme Court established the plain feel exception to the warrant requirement, as a matter of federal constitutional law. Under Dickerson, a police officer acting without a warrant may seize contraband that the officer detected through the sense of touch during a lawful patdown search. . . . Specifically, the United States Supreme Court held that, [i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Clark, supra, 255 Conn. 287-88. We conclude that Wooldridge properly seized the marijuana in the defendant’s possession when he recognized its presence during the patdown search. Accordingly, we conclude that Wooldridge’s patdown of the defendant and the seizure of the marijuana were proper.

The defendant also argues that the officers’ use of drawn guns and handcuffs went beyond their authority under Terry. In appropriate circumstances, however, the police may take such reasonable steps during a Terry investigative stop to protect themselves. See State v. Wilkins, 240 Conn. 489, 495-504, 692 A.2d 1233 (1997); State v. Casey, 45 Conn. App. 32, 41-44, 692 A.2d 1312, cert. denied, 241 Conn. 924, 697 A.2d 360 (1997); United States v. Jordan, 232 F.3d 447, 449-50 (5th Cir. 2000); United States v. Vega, 72 F.3d 507, 515-16 (7th Cir. 1995), cert. denied sub nom. Early v. United States, 518 U.S. 1007, 116 S. Ct. 2529, 135 L. Ed. 2d 1053 (1996); Allen v. Los Angeles, 66 F.3d 1052, 1056-57 (9th Cir. 1995); United States v. Alexander, 907 F.2d 269, 272-73 (2d Cir. 1990), cert. denied, 498 U.S. 1095, 111 S. Ct. 983, 112 L. Ed. 2d 1067 (1991).

The court also found that there was probable cause to arrest the defendant as the driver of the vehicle who had refused to stop when pursued by a police vehicle and fled the scene as the car crashed driverless into another vehicle. We need not consider that conclusion because, upon finding the marijuana during the pat-down of the defendant, the officers had independent probable cause to arrest him for possession of a controlled substance. Following the defendant’s arrest, the officers also found the Ansonia victim’s ring that had been concealed by the defendant in the backseat of the police cruiser. Additionally, in the victim’s stolen Subaru station wagon, the officers found the remainder of the property that had been stolen from the Ansonia victim. That also constituted probable cause.

The judgment is affirmed.

In this opinion the other judges concurred.

       For a description of those crimes, see State v. Gregory, 56 Conn. App. 47, 741 A.2d 986 (1999), cert. denied, 252 Conn. 929, 746 A.2d 790 (2000).

        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       We reach that conclusion without the need to consider the defendant’s statement to the police that he was hiding in the alley to smoke marijuana, which would strengthen the suspicion. The defendant now claims on appeal that this statement was elicited by the police in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). He did not, however, raise that issue before the trial court. The absence of any finding by the court as to the circumstances surrounding the statement prohibits review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Furthermore, the police may ask some questions during a Terry stop without giving Miranda warnings. See Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); State v. Gregory, supra, 56 Conn. App. 53-54.