text:
    STATE OF CONNECTICUT v. HALROYD GORDON
    (AC 18143)
    O’Connell, C. J., and Hennessy and Dupont, Js.
    Argued November 2, 1999
    officially released February 1, 2000

      Glen W. Falk, special public defender, for the appellant (defendant).

      Michele Lukban, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Nanis, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Halroyd Gordon, appeals from the judgment of conviction of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and assault in the first degree in violation of General Statutes § 53a-59 (a) (5). He claims that the trial court improperly denied his motion to suppress photographic identification evidence. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On September 16,1994, Sonya Floyd was a passenger in a car driven by Franklin White. White pulled the car to the curb to purchase cocaine from the defendant, who approached the passenger side. The defendant leaned into the passenger window to talk to Floyd. After the defendant gave Floyd a bag of cocaine, Floyd told White to drive away. The defendant then took out a gun and fired shots at the car. Both Floyd and White were shot, and Floyd subsequently died as a result of the shooting.

On October 10, 1994, a detective showed an array of photographs to White. The array consisted of photographs of similar looking males. White was not able to identify positively any photographs as that of the perpetrator in the shooting incident. White did select, however, three photographs as being similar in appearance to the perpetrator. One of those photographs was that of the defendant. At a showing of a second array a few weeks later, White once again selected three similar looking males. He chose one as the perpetrator. The detective said that he chose wrongly and that the perpetrator was shorter.

During trial, the defendant moved to suppress evidence regarding the photographic identification by White. The court denied the motion because there was no unnecessarily suggestive procedure involved in the showing of the photographic array. The defendant challenges that decision on appeal.

“It is well settled that [i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . The burden rests on the defendant who moves to suppress identification evidence to establish that the identification resulted from the employment of an unconstitutional procedure by the police.” (Citations omitted; internal quotation marks omitted.) State v. Sparks, 39 Conn. App. 502, 508-509, 664 A.2d 1185 (1995).

In the present case, the record does not reveal that the photographic array was unduly suggestive. Any comments by the police were made after White had made his choice as to who was the perpetrator in the shooting. Accordingly, we conclude that the defendant failed to meet his burden, and that the trial court acted properly in denying the motion to suppress.

The judgment is affirmed.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANTHONY BROCUGLIO
    (AC 18521)
    Foti, Schaller and Mihalalcos, Js.

      Argued October 21, 1999
    officially released February 1, 2000

      Emmet Hibson and Michael Richards, certified legal interns, with whom was Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Donna Mambrino, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Anthony Brocuglio, appeals from the judgment of conviction, rendered after a trial to the jury, of assault in the third degree in violation of General Statutes § 53a-61 (a) (l). On appeal, the defendant claims that the trial court improperly (1) sustained his conviction because the state failed to disprove beyond a reasonable doubt his defense of justification and (2) made a number of evidentiary rulings that deprived him of his rights to confrontation and to present a defense. We reverse the judgment and remand the case for a new trial.

The jury reasonably could have found the following facts. The defendant is the father of the victim, who was fourteen years old during the spring of 1995. On May 24, 1995, the two became embroiled in a heated argument that resulted in a physical confrontation. When the victim said that he would call the police and picked up the telephone, the defendant unplugged it. The victim then banged the hand receiver on a coffee table, and the defendant slapped him severely on the side of his head and pulled him off the couch by his feet, causing him to bang his elbow and buttock on the floor. The defendant then forcefully hit or grabbed the victim to hold him down and sat on him. The victim succeeded in putting his arm around the defendant’s neck in a choke hold. The victim was then able to break free and leave the house. The victim had a visible red mark on his face caused by being hit by the defendant.

I

The defendant claims that there was insufficient evidence to sustain his conviction for assault in the third degree because the state failed to disprove beyond a reasonable doubt his defense of justification. He argues that there was sufficient evidence to establish the justification of reasonable force under General Statutes § 53a-18 (l) and that because the state failed to disprove this defense, the conviction must be vacated.

On appeal, the standard for reviewing sufficiency claims in conjunction with a justification offered by the defense is the same standard used when examining claims of insufficiency of the evidence. “Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997). “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. Francis, 228 Conn. 118, 127, 635 A.2d 762 (1993).

Construing the evidence in the light most favorable to sustaining the verdict, i.e., most favorable to the state, we conclude, without the necessity of further review of the evidence presented, which was obviously accepted by the jury, that the defendant intended to cause and did in fact cause physical injury to the victim. The jury did not find the defendant’s defense of justification proven. Whether the force used by a parent under § 53a-18 (1) is justifiable and not criminal depends on whether it is “reasonable” physical force that the parent believes “to be necessary to maintain discipline or to promote the welfare of [the] minor . . . .”

While there exists a parental right to punish children for their own welfare, to control and restrain them and to adopt disciplinary measures in the exercise of that right, whether the limit of “reasonable” physical force has been reached in any particular case is a factual determination to be made by the trier of fact. State v. Leavitt, 8 Conn. App. 517, 522, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986).

We conclude that there exists ample support for the jury’s implicit finding that the physical force used by the defendant was not reasonable and that he exceeded his limited right as a parent to discipline his son.

II

The defendant alleges that numerous evidentiary rulings by the trial court deprived him of his constitutional rights to confrontation and to present a defense. He argues that the court’s actions prevented him from impeaching the credibility of the victim and from showing that the victim had a motive to testify falsely. The defendant also claims that because the court excluded from evidence a photograph of the defendant taken on the night in question, his defense was curtailed and the jury was not allowed to view the fingerprints in the photograph in the form of bruises left on his neck by the victim.

While the defendant recognizes that a claim of cumulative error caused by the effect of many improprieties, none of which individually renders his trial unfair, would not warrant reversal of judgment; State v. Cassidy, 236 Conn. 112, 145-46, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996); he claims that the court’s rulings excluded evidence that so bore on motive of the state’s key witness that they infringed on his confrontation rights. See State v. Colton, 227 Conn. 231, 250, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). “If an impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt.” State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996). “The standard for determining whether a nonconstitutional error is harmless is that [t]he defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) Id., 721-22.

While the defendant claims that the court abused its discretion in approximately twelve evidentiary rulings during the testimony of witnesses for the state and the defense, we need not review each and every ruling because we find the following issues to be determinative.

On direct examination, the victim testified that he chose to live at his sister N’s house because it was safer and healthier. The defendant was precluded from attempting to impeach the victim on the conditions, relative to safety at N’s house, on the reasons for the confrontation relative to the defendant’s claim that the victim had behavioral problems and required parental restraint, and on the victim’s motive, if any, for falsifying his claim as to the cause of the altercation. Because the state opened the door as to the conditions that existed at N’s house, the defendant had the right to inquire on cross-examination about this line of questioning.

On direct examination, the victim testified that the defendant struck him on the side of the head for no apparent reason. The defendant was precluded from inquiring of the victim whether he had ever assaulted his father and whether he had a history of violent behavior in an attempt to impeach him relative to who was the aggressor in the incident at issue.

The defendant was precluded from presenting evidence in the form of testimony from his daughter J relative to the victim’s credibility on who was the aggressor that evening. In an offer of proof, she testified that she had seen the victim attack his father, hit him and throw things at him many times before, and that the victim had initiated those attacks and given the defendant a lot of trouble.

The defendant was precluded from introducing evidence of the victim’s violent propensity when the court refused to allow into evidence a photograph of the defendant taken that night depicting marks on his neck caused by the victim. The court ruled the photograph inadmissible under the best evidence rule because the photographer was not in court to testify. The defendant should have been allowed to present that physical evidence to corroborate his testimony.

“To the extent that evidence offered in defense is relevant and mitigates a crime charged, it should not be excluded from the factfinder. . . . When defense evidence is excluded on evidentiary grounds, such exclusion may give rise to a claim of denial of the right to present a defense. . . . [Evidence] is admissible if it tends to support a relevant fact even in a slight degree . . . .” (Citations omitted; internal quotation marks omitted.) In re Adalberto S., 27 Conn. App. 49, 57, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992).

We conclude that the court improperly excluded as irrelevant the proffered evidence and that exclusion more probably than not affected the result of the trial. See State v. Cavell, supra, 235 Conn. 720.

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

In this opinion the other judges concurred.

       The defendant’s motion for judgment of acquittal was granted by the trial court on an additional charge of risk of injury to a child in violation of General Statutes § 53-21.

       The defendant also claims that the court improperly ordered the defendant’s wife sequestered during voir dire, instructed the jury on justification and ruled on numerous other evidentiary claims, thereby restricting him from producing evidence critical to his defense. The defendant further claims that he was deprived of a fair trial because of the prosecutor’s misconduct during the trial and improper arguments to the jury. We need not, however, address these claims to resolve this appeal.

       General Statutes § 53a-18 (1) provides in relevant part: “A parent . . . entrusted with the care and supervision of a minor . . . may use reasonable physical force upon such minor . . . when and to the extent that he reasonably believes such to be necessary to maintain discipline or to promote the welfare of such minor . . . person.”

       The defendant’s version of the incident was that the victim was involved in an unprovoked attack on him and that he merely responded by holding the victim so that he would not hurt himself or others. The state argues that the defendant did not produce sufficient evidence to satisfy the elements of justification or to raise a question of fact sufficient for the jury not to resort to guess and speculation. See State v. Tyson, 23 Conn. App. 28, 33, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990). The state recognizes that a defendant may present alternative or even inconsistent defenses at trial. State v. Shabazz, 246 Conn. 746, 764-65, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999).

       During an offer of proof, the defendant testified that he prohibited his son from visiting N not only because of her lifestyle but because of her prior arrests for cocaine sales and prostitution, and because a proven child molester frequented that home. The defendant claimed that the victim was the aggressor because he was not allowed to visit N’s house and not because of any other reason.

       The state concedes that the court was incorrect in indicating that the photographer was required to testify for the photograph to be admitted. The state argues that the ruling was “preliminary” and that the defendant was not harmed by the ruling.

       Because we agree with the defendant on these claims, we find it unnecessary to address his remaining claims.


author: O’CONNELL, C. J.

text:
    NEW MILFORD SAVINGS BANK v. JOHN D. MULVILLE, JR., ET AL.
    (AC 19964)
    (AC 19966)
    O’Connell, C. J., and Foti, Hennessy, Mihalakos and Vertefeuille, Js.

      Considered December 8, 1999
    officially released February 1, 2000

      William C. Franklin, in support of the motions.

      Stephen C. Robinson, United States attorney, and James K. Filan, Jr., assistant United States attorney, in opposition to the motions.
   Opinion

O’CONNELL, C. J.

This is a mortgage foreclosure action in which the defendants John D. Mulville, Jr., and the United States Internal Revenue Service each appeal from the judgment approving the committee sale. Jonathan M. Jadow, the successful bidder at the foreclosure sale, has filed a motion to be made a party defendant appellee in each of the appeals. Because he has a direct and immediate interest in the outcome of these appeals, we grant his motions to be made a party.

The plaintiff, New Milford Savings Bank, commenced this foreclosure action against the defendants, John D. Mulville, Jr., Anne Mulville and the Internal Revenue Service, seeking to foreclose a mortgage on residential property the Mulvilles owned in Salisbury. The trial court rendered a judgment of foreclosure by sale on September 15,1997. Subsequently, John D. Mulville, Jr., filed two bankruptcy petitions and a motion to open the judgment, all of which delayed the foreclosure sale date until July 24, 1999. On that date, Jadow was the successful bidder at the sale, entering a bid of $275,000.

Subsequently, the committee filed a motion requesting, inter alia, approval of the committee sale and acceptance of its report. The plaintiff bank and the defendants John D. Mulville, Jr., and the Internal Revenue Service objected to approval of the sale. The trial court, however, granted the committee’s motion over the parties’ objections and rendered judgment approving the sale. The defendants John D. Mulville, Jr., and the Internal Revenue Service each filed a timely appeal from the judgment. Thereafter, Jadow, the successful bidder, filed motions to be made a party defendant appellee in both appeals.

Jadow has moved to be made a party defendant appellee pursuant to Practice Book § 62-5, which provides in relevant part that “[a]ny change in the parties to an action pending an appeal shall be made in the court in which the appeal is pending. . . .’’In the present case, it was not until after two of the defendants appealed from the judgment approving the committee sale that Jadow had any reason to seek party status. His motion to be made a party defendant appellee is, therefore, properly before this court.

A successful bidder’s motion to be made a party defendant appellee is analogous to a motion to intervene filed in the trial court. In the trial court, “[a]n applicant for intervention has a right to intervene under Practice Book [§ 9-18] where the applicant’s interest is of such a direct and immediate character that the applicant will either gain or lose by the direct legal operation and effect of the judgment.” (Internal quotation marks omitted.) Washington Trust Co. v. Smith, 241 Conn. 734, 740, 699 A.2d 73 (1997), quoting Horton v. Meskill, 187 Conn. 187, 191, 445 A.2d 579 (1982). “[A] person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.” Horton v. Meskill, supra, 195.

In Dime Savings Bank of New York v. Grisel, 36 Conn. App. 313, 314 n.1, 650 A.2d 1246 (1994), this court granted a successful bidder’s motion to appear as an appellee. As in Grisel, the trial court in this case approved the committee sale of the subject property to the movant, and an appeal was taken from the judgment rendered. Unlike an unsuccessful bidder at a foreclosure sale, a successful bidder has a direct and sufficient interest in the outcome of an appeal. If the judgment were reversed on appeal, Jadow would lose his right to purchase the subject property for $275,000, the amount of his successful bid. Because his interest as a successful bidder will be impacted directly by this court’s decision on the merits, he should be allowed to appear as an appellee in these appeals.

The motions to be made a party defendant appellee are granted.

In this opinion the other judges concurred.

       Practico Book § 9-18 provides in relevant part: “If a person not a party has an interest or title which the judgment will affect, the judicial authority, on its motion, shall direct that person to be made aparty.” (Emphasis added.)


author: PER CURIAM.

text:
    IN RE FELICIA B. ET AL.

    (AC 19122)
    Lavery, Mihalakos and Daly, Js.
    Argued December 16, 1999
    officially released February 1, 2000

      Michael J. Melly, for the appellants (intervenors).

      Paula D. Sullivan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Eric J. Palladino, for the minor children.

       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

PER CURIAM.

The intervenor appellants, the respondent father’s parents and sister, appeal from the judgments of the trial court terminating the respondents’ parental rights. The intervenor appellants challenge the denial of their motion for custody or visitation issued incidental to the dispositional phase of the proceedings. They claim that the trial court improperly (1) precluded them from calling as witnesses supervisors in the department of children and families, (2) based its decision on facts not in evidence and (3) denied them their rights to due process. We disagree.

At a dispositional hearing under General Statutes § 17a-112 (d), the emphasis appropriately shifts from the conduct of the parents to the best interests of the children. In re Romance, 229 Conn. 345, 356-57, 641 A.2d 378 (1994). “Our review is limited to determining whether the trial court’s judgment was clearly erroneous or contrary to law.” In re Martin K., 56 Conn. App. 10, 11, 741 A.2d 10 (1999).

“This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Id.

In this case, the trial court filed a detailed and comprehensive memorandum of decision reciting the facts that it found to support its decision. The court stated, inter alia, that the paternal grandmother “was aware that her son pled guilty to the charges stemming from the abuse . . . [but that] she had doubts that her son sexually abused the children and does not believe that he did so.” As to the paternal grandfather, “he did not believe that there was any physical or emotional abuse . . . by ... his son, although he stated that he believed there was sexual abuse. . . . [T]he paternal aunt . . . took much the same position.”

In addition, the trial court found that the intervenor appellants “did not demonstrate empathy for the plight of these children and could not, from the court’s observations, place the children’s needs ahead of their own needs for family integrity.” The trial court concluded specifically that “[the paternal relatives] have not grasped the very crux of the matter; that they cannot safeguard and provide care in the children’s best interests while still clinging to the hope that their son did not sexually abuse their grandchildren.”

After a complete review of the record, we find no denial of due process and conclude, therefore, that there was sufficient evidence to support the trial court’s determination that it was in the best interests of the children to deny the motion.

The judgments are affirmed.

       The trial court terminated the parental rights of both the father and mother, to which both parents consented. In addition, after admitting to sexually abusing Felicia and causing sexual contact between both children, the father was convicted of sexual abuse of the children. Furthermore, the mother also admitted to sexually abusing Felicia, although she claimed the father coerced her to participate in the abuse. Neither parent has appealed.


text:
    PATRICK NEMHARD v. COMMISSIONER OF CORRECTION
    (AC 18472)
    O'Connell, C. J., and Laveiy and Hennessy, Js.
    Argued October 18, 1999
    officially released February 1, 2000

      Avery S. Chapman, for the appellant (petitioner).

      Ellen A. Jawitz, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and David I. Cohen, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The petitioner, Patrick Nemhard, appeals from the habeas court’s denial of his petition for certification to appeal the denial of his petition for a writ of habeas corpus. The petitioner claims that his counsel failed to recognize that his ability to knowingly and intelligently enter into the plea agreement was substantially impaired by medication he was taking.

We have fully reviewed the records and briefs and considered the oral arguments of both parties. In his appeal, the petitioner relies on fact bound issues and has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice had been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s denial of the petition for a writ of habeas corpus was based on a factual review of his claim and a finding that (1) he had been evaluated by a clinical team, including a psychiatrist, who found him competent to stand trial, (2) he had assisted in jury selection, (3) he had exhibited no mental deficits during the proceedings and that (4) his attorney was not aware that he was taking medication. Accordingly, the habeas court concluded that the petitioner had failed to carry the burden of proof required to establish that he was not competent to stand trial.

We conclude that the habeas court had before it sufficient evidence to find that the petitioner was competent to enter his guilty plea and that it did not abuse its discretion in denying his petition for certification to appeal.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. HERIBERTO QUINONES
    (AC 18412)
    O’Connell, C. J., and Lavery and Healey, Js.
    Argued June 2, 1999
    officially released February 8, 2000

      Michael R. Hasse, with whom, on the brief, was John F. Cocheo, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Mary Jean Kanabis, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, Heriberto Quinones, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and breach of the peace in violation of General Statutes § 53a-181 (a) (2). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence inculpatory statements he made during his postarrest interview and (2) declined to deliver a Secondino missing witness instruction. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On March 12, 1997, the defendant punched his girlfriend, Prudencia Ferrar, with whom he lived, causing her physical injury. The incident took place at a nightclub in Groton, in an area reserved for female patrons, where Ferrar had gone to observe a male striptease performance. The defendant was arrested on March 13,1997, and was taken to the Groton police headquarters.

Prior to being questioned by Officers Jeffrey Scribner and David Menard, the defendant signed an acknowledgment form indicating that he had been advised of his Miranda rights. Although he refused to sign a waiver or to provide a written statement, he waived his rights verbally and spoke freely, admitting that he had hit Ferrar. At no time during his postarrest interview did the defendant request an attorney or the cessation of police questioning.

Scribner testified that the defendant originally denied hitting Ferrar. The defendant objected to this testimony solely on the ground that such testimony constituted hearsay. The trial court overruled the objection, however, on the ground that the statements constituted admissions of a party opponent. The defendant does not challenge this ruling on appeal. Menard testified that the defendant admitted that he hit Ferrar. The defendant did not object to this testimony. Ferrar did not testify.

I

The defendant claims, for the first time on appeal, that the trial court improperly admitted Menard’s testimony, thereby violating his federal and state constitutional rights against compelled self-incrimination. When a claim is raised for the first time on appeal, our review is limited to either the plain error doctrine or the standard expounded in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). State v. Barnett, 53 Conn. App. 581, 600, 734 A.2d 991 (1999).

In his brief, the defendant argues, in passing, that it was plain error for the trial court to admit Menard’s testimony. We decline, however, to review this claim under the plain error doctrine because it was inadequately briefed. See State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998) (declining review of issues inadequately briefed).

Furthermore, the defendant did not request Golding review, and we will not conduct such review unless it is requested. See State v. Rodriguez, 44 Conn. App. 818, 823-24, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997). Accordingly, we will not review it sua sponte under the Golding doctrine.

II

The defendant next claims that the trial court improperly failed to instruct the jury that it could draw a negative inference from the state’s failure to produce Ferrar as a witness. We do not agree.

In Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960), our Supreme Court held that the failure to produce a witness for trial who is available and whom a party would naturally be expected to call, warrants an adverse inference against that party. Subsequent to the trial court’s decision in the present case, and also subsequent to oral argument in the Appellate Court, our Supreme Court decided State v. Malave, 250 Conn. 722, 739, 737 A.2d 442 (1999). In Malave, our Supreme Court abandoned the Secondino rule in criminal cases. The Malave decision applies retroactively to this case because so doing will not produce substantial inequitable results and because our Supreme Court did not stipulate that the Malave decision should apply prospectively only. See Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (“judgments that are not by their terms limited to prospective application are presumed to apply retroactively”); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985) (where retroactive application of decision could produce substantially inequitable results, injustice or hardship may be avoided by holding of nonretroactivity). When our Supreme Court has intended a decision to apply prospectively only, it knows how to say so clearly. State v. Delvalle, 250 Conn. 466, 475-76, 736 A.2d 125 (1999) (“we . . . direct our trial courts to refrain from using the [jury instruction at issue in that case] in the future” [emphasis added]); State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996) (en banc) (“rule that we announce today will apply only to . . . [testimony admitted after] the date of the publication of this opinion”); State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (“we now hold that henceforth a trial court must [follow the announced rule]” [emphasis added]).

The trial court, here, declined to give the missing witness instruction because it found that the Secondino criteria were not satisfied. In light of the Malave decision, we need not analyze whether this determination was correct because the defendant was not entitled to the instruction under any circumstances.

For this reason we conclude that the trial court properly refused to give the Secondino instruction.

The judgment is affirmed.

In this opinion the other judges concurred.

        Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).

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

       The defendant, concedes that he did not, preserve the constitutional claim and 1 hat a party is not entitled to have a claim reviewed on appeal on grounds different from those presented at trial. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 47-49, 717 A.2d 77 (1998).

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all, of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Domian, 235 Conn. 679, 692, 668 A.2d 1333 (1996). The defendant has not provided an analysis to support reversal of the trial court’s judgment on the ground of plain error, and we do not perceive any such basis.

       This is commonly referred to as the Secondino, or missing witness rule. The jury charge explaining the rule is known as the Secondino instruction or missing witness instruction. We use these terms interchangeably in this opinion.

       In 1998, the General Assembly abolished the use of the Secondino charge in civil cases. General Statutes § 52-216c.


author: DUPONT, J.

text:
    IN RE ANTONIO M.

    (AC 18812)
    Landau, Mihalakos and Dupont, Js.

      Argued October 18, 1999
    officially released February 8, 2000

      David B. Rozwaski, with whom, on the brief, was Sara R. Martin, for the appellant (respondent).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Eric J. Palladino, for the minor child.

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

   Opinion

DUPONT, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her child, Antonio M. On appeal, the respondent claims that the trial court improperly (1) found that she committed an act of omission or commission that denied the care, guidance and control necessary for the child’s welfare pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (C), (2) admitted certain hearsay statements in violation of her constitutional right to due process, (3) refused to draw an adverse inference against the petitioner, the commissioner of children and families (commissioner), for failing to call certain witnesses, (4) concluded that the department of children and families (department) had made reasonable efforts to reunify the respondent with the child as required by § 17a-112 (c) (1), and (5) waived the one year requirement of General Statutes (Rev. to 1997) § 17a-112 (d). We affirm the judgment of the trial court.

The trial court found the following facts. The respondent is the mother of Lorenzo M., born July 16, 1992, and his younger brother, Antonio M., born April 28, 1993. The father of the children is deceased. On April 17, 1997, the children were placed in foster care after a referral was made to the department by Lorenzo’s school, which reported that Lorenzo had a scar under his left eye and that the child stated that his “mommy” did it. An investigation by the department revealed that the respondent had thrown a shovel at her son after telling him that she would do so if he did not obey her. When the child did not obey, she threw the shovel, which hit him in the face and caused a mark that was visible one month after the incident.

On April 21, 1997, the commissioner filed neglect petitions as to both children, alleging that the children were being permitted to live under conditions, circumstances or associations injurious to their well-being. On that same date, the commissioner secured an ex parte order of temporary custody, which was sustained by the trial court after several days of trial. The trial court ordered that the neglect petitions for the two children be consolidated for trial and that all evidence presented at the temporary custody hearing would be evidence at the neglect trial.

After Antonio was placed in foster care, he immediately began to disclose sexual abuse by his mother. On November 5, 1997, the commissioner amended the neglect petition as to Antonio and filed a coterminous petition for the termination of the respondent’s parental rights as to Antonio. The termination petition alleged, pursuant to § 17a-112 (c) (3) (C), thatAntonio was being denied, by reason of an act of parental commission or omission, the care, guidance or control necessary for his physical, educational or emotional well-being.

The trial began on June 22,1998, and lasted two days. The court heard testimony from various witnesses, including a department social worker, a court-appointed psychologist, Lorenzo’s primary therapist and Antonio’s foster mother. The respondent offered testimony from nine witnesses and testified on her own behalf. Twelve exhibits were introduced into evidence. The court also considered the trial transcripts of the contested order for temporary custody hearing and the exhibits introduced in that trial pursuant to the court’s previous ruling.

The trial court first considered the neglect petitions and then considered whether the statutory ground alleged in the termination petition was proven by clear and convincing evidence. The trial court determined by a fair preponderance of the evidence that Antonio and Lorenzo had been neglected and that the respondent permitted the children to live under conditions, circumstances or associations injurious to their well-being. The court ordered Lorenzo committed to the commissioner for one year.

With respect to the termination petition, the trial court found that the commissioner had proven the statutory ground for termination by clear and convincing evidence. The court made the required findings pursuant to § 17a-l 12 (d) and concluded that termination was in Antonio’s best interest. The court rendered judgment terminating the respondent’s parental rights with respect to Antonio on July 31, 1998. The respondent appeals from the judgment of the trial court terminating her parental rights with respect to Antonio.

“Our statutes define the termination of parental rights as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent .... It is a most serious and sensitive realm of judicial action. ... To justify the termination of parental rights in the absence of consent, one or more of the grounds set forth in General Statutes § [17a-112 (c) (3)] must be proven by clear and convincing evidence. . . .

“Section [17a-112 (c) (3)] carefully sets out . . . [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. [The commissioner], in petitioning to terminate those rights, must allege and prove [by clear and convincing evidence] one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. No all-encompassing best interests standard vitiates the requirement of compliance with the statutory criteria. ... In re Michael M., 29 Conn. App. 112, 117-18, 614 A.2d 832 (1992).” (Internal quotation marks omitted.) In re Anna B., 50 Conn. App. 298, 303-304, 717 A.2d 289 (1998).

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . .

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Michael M., [supra, 29 Conn. App. 121]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991) .... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 222, 435 A.2d 24 (1980)]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Denzel A., 53 Conn. App. 827, 831-32, 733 A.2d 298 (1999).

I

The respondent first claims that the trial court improperly found that she had committed an act of omission or commission affecting the welfare of Antonio. We disagree.

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear' and convincing evidence ... (3) that . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facia evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .”

The crux of the respondent’s claim is that there was insufficient evidence to support the court’s finding that Antonio had suffered serious physical and emotional injury. The respondent claims that there was no basis for the allegations of sexual and physical abuse by her or her boyfriend and no basis for testimony concerning sibling fights. She takes exception to the trial court’s alleged failure to credit any of the respondent’s witnesses, stating in her brief: “The court apparently does not credit any of [the] respondent’s witnesses. Although it is the purview of the trier of fact to determine credibility of witnesses, under the facts of this case, the selective allowance of evidence has violated [the] respondent’s rights to due process under the law.”

It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony. “On appeal, we do not retry the facts or pass on the credibility of witnesses. . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . . .” (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn. App. 768, 782, 740 A.2d 896 (1999). In its memorandum of decision, the trial court specifically set forth its reasons for believing or disbelieving certain testimony. As the trier of fact, the trial court may properly accept or reject, in whole or in part, certain testimony offered by a party. Id. Accordingly, we reject the respondent’s claim.

As to the respondent’s claim concerning the sufficiency of the evidence, we conclude that the record supports the trial court’s finding that Antonio had suffered serious physical and emotional injury. Antonio’s foster mother testified that Antonio made a number of disclosures of sexual abuse subsequent to his placement in her care. Specifically, she testified, without objection, that Antonio told her that the respondent “pulled his pee-pee, stuck a needle in it, sucked it and hit it.” He also told her that the respondent choked him and held him under water in the bathtub and that the respondent’s boyfriend, Louie, swears at him and that he “sucked on his pee-pee” and inserted “a [toy] car up in my butt.”

In addition to the disclosures Antonio made to his foster mother, he disclosed sexual and physical abuse by the respondent and Louie to a department social worker, Jennifer Carey. Carey testified that Antonio disclosed to her: “My mommy hit me. My mommy had sucked my pee-pee; Mommy held me under the water. Mommy says bad words. Louie told me to touch him. He told me to do it. He told me to do it.” He also stated to her that “Louie is bad because he hits—he hits hard and it hurts.”

Antonio also disclosed to Bruce Freedman, the court-appointed psychologist who evaluated the family, that the respondent and Louie sexually and physically abused him. Freedman testified that the disclosures were consistent with the material that Antonio had reported to his foster mother. Freedman testified that both children “together required a high level of skill in a parent to provide them with a well-organized and stimulating environment to allow them to do ‘o.k.’ in school and in life” and that the respondent did not demonstrate any capacity to meet those needs. He found that the respondent could not set appropriate boundaries and manage the behavior of the children and that at times, she was trying to intimidate the children in his presence, which he stated was a “dangerous thing.” He testified further that the respondent’s failure to acknowledge the problems that the children had and her failure to admit any wrongdoing meant that she had only a slim chance of rehabilitation.

The respondent also testified at trial. She stated that she believed that the allegations of sexual and physical abuse were false and that Antonio’s foster mother coached him into making them because she wanted to adopt him. She testified that if someone could show her physical proof of such abuse, she would seek counseling for herself and her children.

The trial court found that the respondent’s “testimony highlighted the fact that [she] neither accepted responsibility for the many bad events which befell her children while in her care nor had benefited from any of the services offered to her.” The court rejected her testimony concerning the incident where she threw a shovel at Lorenzo and concerning her denials of Louie abusing the children. The court found that she “was aware of Lorenzo physically acting out against Antonio” and that she failed to protect Antonio from abuse by his older brother.

The court found that “[w]hile the testimony concerning Antonio’s sexual abuse is fraught with issues of confirmation and some issues concerning its reliability, what is without question is that this child had sexually explicit knowledge beyond his years and that he was exposed in his own household to this, if not to actual sexual abuse, although such abuse appears likely.” The court concluded that the respondent’s “treatment of Antonio and her inability to protect him both from the acts of her boyfriend and from his own brother not only caused Antonio physical injury, but great emotional damage which continues to require treatment at the present time and is likely to require treatment in the years to come.”

“Section 17a-112 authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to a child.” In re Lauren R., 49 Conn. App. 763, 773, 715 A.2d 822 (1998); In re Felicia D., 35 Conn. App. 490, 501-502, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). In In re Felicia I)., the trial court found that the respondent had committed an act of parental commission or omission by continually exposing her child to the risk of serious physical injury by associating with dangerous men, even though she was not the person who actually had inflicted the serious physical injury. In re Felicia D., supra, 501-502.

Here, although the court did not conclusively state that Antonio was the victim of sexual abuse, it concluded that the respondent’s failure to protect Antonio from the acts of her boyfriend and his own brother caused Antonio physical and emotional injury. To the extent that the respondent claims that she is uncertain as to what specific injury the court refers, she should have filed a motion for articulation and, having failed to do so, cannot now be heard to complain. See Gladstone, Schwartz, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 128, 728 A.2d 1140 (1999). We conclude that the trial court’s finding that grounds existed under § 17a-112 to terminate the respondent’s parental rights was not clearly erroneous.

II

The respondent next claims that the trial court improperly admitted certain hearsay statements and failed to draw an adverse inference against the commissioner for failure to call certain witnesses to testify, which deprived her of her constitutional right to due process. Specifically, she claims it was improper to admit the hearsay statements Antonio made to his foster mother, to the court-appointed psychologist and to the social worker concerning the alleged sexual and physical abuse by the respondent and her boyfriend. The respondent did not object to the admission of this evidence at trial and now seeks review of her unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). She states in her brief that the alleged error is evidentiary, but she nevertheless claims that the alleged impropriety is constitutional because it interferes with her fundamental right to a familial relationship.

We conclude that the respondent has failed to meet the second prong of Golding because her claim is not one of constitutional magnitude. We recognize that “[t]he right of a parent to raise his or her children has been recognized as a basic constitutional right”; In re Alexander V., 25 Conn. App. 741, 743, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992); however, “[ujnpreserved hearsay claims do not automatically invoke constitutional rights . . . .” State v. Grenier, 55 Conn. App. 630, 646, 739 A.2d 751 (1999). The appellate courts of this state have consistently held that “admission of statements that are either irrelevant or impermissible hearsay is not a constitutional error.” State v. Booth, 250 Conn. 611, 662, 737 A.2d 404 (1999); State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997); see State v. Jones, 44 Conn. App. 476, 487, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997) (evidentiary claim not of constitutional magnitude and therefore not subject to Golding review). The respondent “ ‘has put a constitutional tag on a nonconstitutional evidentiary [claim].’ ” State v. Grenier, supra, 647. Because the respondent has failed to allege a claim of constitutional magnitude, she cannot prevail under Golding.

The respondent also claims that the trial court improperly failed to draw an adverse inference against the commissioner for failing to call certain witnesses to testify. The respondent offered one sentence and no analysis in her appellate brief on this issue. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. State v. Sewell, 38 Conn. App. 20, 29, 658 A.2d 598, cert. denied, 234 Conn. 918, 661 A.2d 98 (1995); State v. Gaines, 36 Conn. App. 454, 460, 651 A.2d 1297 (1994). Analysis, rather than mere ‘abstract assertion,’ is required in order to avoid abandoning an issue by failure to brief the issue properly. State v. Cain, 25 Conn. App. 503, 524, 596 A.2d 449 (1991) [aff'd, 223 Conn. 731, 613 A.2d 804 (1992)].” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). We conclude that the respondent has abandoned the issue.

Ill

The respondent next claims that the trial court improperly concluded that the department had made reasonable efforts to reunify Antonio with her. We do not agree.

“Before a termination of parental rights can be granted, the trial court must be convinced that the department has made reasonable efforts to reunite the [child with the] family. The term reasonable efforts was recently addressed by this court: Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. ... [In re Tabitha T., 51 Conn. App. 595, 600, 722 A.2d 1232 (1999)]. . . . In re Antony B., 54 Conn. App. 463, 474-75, 735 A.2d 893 (1999).” (Internal quotation marks omitted.) In re Savanna M., 55 Conn. App. 807, 812-13, 740 A.2d 484 (1999).

The respondent claims that her right to due process was violated because the department failed to give adequate notice of what she needed to do to be reunited with Antonio. She claims to have met all of the expectations set by the court and complied with all of the department’s requests. The trial court, however, found to the contrary. Here, the court found that the respondent did not fully meet those expectations. The court stated in its memorandum of decision that the department “has offered services to [the respondent] to assist her in securing the return of her children and rehabilitating herself as a parent. Many of those services she has rejected.”

“[Reasonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case.” (Internal quotation marks omitted.) In re Hector L., 53 Conn. App. 359, 372, 730 A.2d 106 (1999). In the present case, the trial court found by clear and convincing evidence that the department “made reasonable efforts to reunify the family, given the situation and circumstances, as far as possible. Without participation [by the respondent] in the services offered . . . without her acceptance of responsibility for the abuse which took place in the home and her acknowledgment of her own need to improve as a parent, further services would have been of no benefit toward any reunification.” We are not persuaded, considering the circumstances of this case, that the trial court’s conclusion that the department made reasonable efforts to reunite the family was clearly erroneous.

IV

The respondent’s final claim is that the trial court improperly waived the one year requirement of General Statutes (Rev. to 1997) § 17a-112 (d). We disagree.

At the time the petition was filed in the present case, General Statutes (Rev. to 1997) § 17a-112 (c) authorized the court to grant a petition to terminate parental rights “if it finds by clear and convincing evidence ... (3) that over an extended period of time, which except as provided in subsection (d) of this section shall not be less than one year . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. . . .” General Statutes (Rev. to 1997) § 17a-112 (d) provided in relevant part: “The court may waive the requirement that one year expire prior to the termination of parental rights if it finds: (1) From the totality of the circumstances surrounding the child that such a waiver is necessary to promote the best interest of the child. . . “ ‘Because the statute entrusts the decision concerning waiver to the discretion of the trial court, the only issue on appeal is whether the trial court abused its discretion.’ In re Baby Girl B., 224 Conn. 263, 301, 618 A.2d 1 (1992).” In re Romance M., 30 Conn. App. 839, 856-57, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).

Here, the trial court concluded from the totality of the circumstances that a waiver of the statutory one year period was necessary to promote the best interest of the child. Specifically, the court concluded: “The waiver is appropriate in this case where the biological mother has not benefited from the services offered to her and where her own son does not speak of her or wish to see her. She has not taken the steps necessary to learn how to provide a safe home for her son and is unlikely to do so in the reasonably foreseeable future. Waiting for the time required by the general provisions of the statute to pass until the one year has elapsed would serve no purpose and is not in the best interests of Antonio, who deserves permanency in his life.” We are unable to conclude that the trial court abused its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The respondent has not appealed from the judgment of the trial court adjudicating both children neglected and committing Lorenzo to the custody of the commissioner.

       The respondent relies on In re Jessica M., 49 Conn. App. 229, 241, 714 A.2d 64 (1998), to support her claim. On September 28, 1999, however, our Supreme Court vacated our decision in that case because the issues in the decision had become moot. See In re Jessica M., 250 Conn. 747, 738 A.2d 1087 (1999). We, therefore, do not rely on In re Jessica M., supra, 49 Conn. App. 229, in deciding this case.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The case of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), which held that the failure of a party to produce a witness who naturally would have been produced permits the inference that the testimony of the witness would have been unfavorable, was overruled in criminal cases in State v. Malave, 250 Conn. 722, 730, 737 A.2d 442 (1999), and rendered nugatory in civil cases by the 1998 session of the legislature. See Public Acts 1998, No. 98-50, codified as General Statutes § 52-216c.

         Section 17a-112 was amended by Public Acts 1998, No. 98-241, § 8, effective July 1, 1998. Section 17a-112, as amended, no longer requires that the grounds for termination have existed for one year prior to the termination of parental rights. We, however, limit our review of this case to § 17a-112 as it. existed as of the date of the petition. See In re Migdalia M., 6 Conn. App. 194, 200-201, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986); see also In re Eden F., 250 Conn. 674, 687 n.16, 741 A.2d 873 (1999).


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. SOEUN KIM PIN
    (AC 18644)
    Lavery, Schaller and Hennessy, Js.
    Argued October 19, 1999
    officially released February 8, 2000

      Judith M. Wildfeuer, deputy assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Soeun Kim Pin, appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a), attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (2), and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). The defendant claims that the trial court improperly failed to suppress statements he made to medical personnel and the police. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1994, the victim, Kunteri Sem, who lived in Vermont, met the defendant, who lived in Bristol. Thereafter, the two became engaged and the defendant sent the victim money for marriage related expenses, including an engagement ring, which she purchased. The two agreed that the victim would visit the defendant at Christmastime, but she broke off the engagement before then. The victim offered to mail the engagement ring to the defendant, but he declined. She then agreed to deliver it in person and took a bus to Bristol on December 23, 1994.

Shortly after 3 p.m. on that day, the defendant picked' up the victim from the bus station and drove to a highway overpass, where he pulled over to the side of the road and parked in such a way that the car’s passenger door could not be opened. While the engine was running, the defendant punched the victim in the face and spit hot pepper into her eyes. While holding the victim by her hair, the defendant tried with his teeth to remove the top of a plastic container filled with gasoline, but the victim wrestled the container away from him and placed it on the car floor.

At approximately 4:06 p.m., Trooper Tina Marie Miller of the Connecticut state police, while on routine patrol, observed the defendant in his vehicle, striking the victim and pulling her hair while the victim was shouting that the defendant was trying to kill her. In an attempt to get the defendant’s attention, Miller banged on the windshield and the driver’s door window and ordered the defendant to stop. The defendant acknowledged Miller’s presence but continued to strike the victim. Miller attempted to enter the vehicle, but found the driver’s door locked and the passenger door obstructed. Miller returned to her cruiser, called for assistance, got her police baton, returned to the defendant’s vehicle and broke the driver’s door window. In an attempt to break the defendant’s grip on the victim, Miller hit the defendant’s wrists and forearms with her baton to no avail. Miller also was unable to pull the defendant from the vehicle. Eventually, a civilian passerby helped Miller break the defendant’s grip on the victim and extract him from the vehicle, whereupon Miller immediately handcuffed him. The defendant told Miller that he wanted to go to sleep, closed his eyes and fell to the ground.

The defendant was taken by ambulance to John Dempsey Hospital in Farmington. Miller followed the ambulance in her cruiser. The ambulance personnel found the defendant to be “unresponsive” and as having a Glasgow coma score of four on a scale of three to fourteen, indicating that he was opening his eyes only to painful stimulus without any verbal or motor response. The ambulance personnel administered a three part “coma cocktail,” intended to bring the defendant back to a conscious state.

At the hospital emergency room, several medical personnel examined the defendant in the presence of Miller. The first was Sharon Levesque, a registered nurse. When Levesque asked the defendant what had happened, he admitted four times that he wanted to kill the victim and himself. Marc Alan Borenstein, an emergency room physician, also examined the defendant. Borenstein’s notes indicate that the defendant stated that the victim was returning the engagement ring and had told lies to the defendant. The defendant again admitted that he wanted to kill the victim and himself. Borenstein ordered a psychological examination to be performed by A. Aziz, a psychiatrist. During the examination, the defendant repeated his admission and added that he had intended to pour gasoline on the victim and himself and set them both on fire but that he was stopped by the police. Monica Driscoll and Diana Christensen of the Mobile Crisis Center (center) visited the defendant in the emergency room. When they asked the defendant what had happened, he responded that he had tried to kill the victim by setting her on fire with gasoline and a lighter, and that he also was going to set the vehicle and himself on fire and jump off the bridge, but that the police showed up and ruined his plan.

The defendant was discharged from the hospital at 11:30 p.m. Miller transported him to the state police barracks, where she read him his Miranda rights. Because the defendant spoke broken English, Miller also explained the defendant’s rights to him in layman’s terms. The defendant stated that he understood his rights and signed a form to that effect at 11:59 p.m. The defendant also stated that he did not want to have an attorney present and that he wanted to speak with Miller. Thereafter, Miller prepared a statement and read it back to the defendant, who signed it. The statement contained the following relevant language: “Two nights ago, I planned to kill my girlfriend. I wanted to put gas on her and on me, and put a light on her and me and burn her. I wanted to bum my car and then jump off the bridge and kill myself. I went to a gas station and put gas in my car and in a white plastic bottle. I hid a lighter in my pocket. I drove around yesterday and found the place to kill my girlfriend. . . .

“I hit my girlfriend in the car. I put hot red pepper spice in my mouth and chewed it. I spit it in her eyes so she won’t look at me. I wanted to kill her. I don’t want her to see me put gas on her. I want to put a light on her and burn her and put gas on me. I want to jump off the bridge. I hit her in her chest and neck. I kicked her with my legs. She was holding on to my hands so I kicked her. I tried to take out her eyes. I don’t want her to see me. I wanted to take her eyes out of her head with my hands. I wanted to kill her with no problem. I wanted to kill her for changing her mind [about marrying me], ... I don’t want to kill her now because there is no more fighting.”

The jury found the defendant guilty of one count each of attempted murder, attempted assault in the first degree and kidnapping in the first degree. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that all of his statements were involuntary and, therefore, improperly admitted into evidence. The defendant concedes that there were no police threats or coercion and that, therefore, a federal constitutional claim is foreclosed by the United States Supreme Court’s decision in Colorado v. Connelly, 479 U.S. 157, 167-68, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). The defendant contends, however, that under article first, § 8, of the constitution of Connecticut, he is afforded greater rights than under the due process clause of the federal constitution. The defendant argues that notwithstanding the lack of police coercion or misconduct, the court should have suppressed his statements because his mental condition coupled with the “inherently coercive” environment of a hospital emergency room and a police barracks rendered his statements involuntary.

At issue is the admission into evidence of five separate inculpatory statements. The defendant contests the admissibility of statements he made at the hospital to Levesque, Borenstein and Aziz, and to Driscoll and Christensen of the center, as well as the statement he gave to the police. During his trial, before any of these statements were admitted, the defendant orally moved to suppress, on the basis of involuntariness, the statements to Levesque, the members of the center and the police. Whether the court properly admitted those three statements are, therefore, issues properly preserved for our review.

With respect to the remaining two statements, the defendant posits that he is entitled to review of these unpreserved claims pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40.

Because the defendant argued before the trial court that the statements made to Levesque and the members of the center were inadmissible under article first, § 8, of the constitution of Connecticut, the parties and the court developed a record adequate for the appellate resolution of the admissibility of those statements. In addition, the circumstances surrounding the statements made to Borenstein and Aziz were virtually identical to those surrounding the statements made to the other medical personnel. The record is, therefore, equally adequate to review the defendant’s claims of error with respect to the Borenstein and Aziz statements. See id. Furthermore, “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law . . . .” Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). Thus, the defendant’s claims are of constitutional magnitude alleging the violation of a fundamental right. See State v. Golding, supra, 213 Conn. 239-40. Having established that the admissibility of all five statements is reviewable, we turn to the merits of the defendant’s appeal.

In support of his argument that we should depart from federal methodology, the defendant utilizes four of the six criteria our Supreme Court recognizes for determining whether our state constitution affords Connecticut citizens greater individual liberties than does its federal counterpart, namely, holdings and dicta of our Supreme Court, federal precedent, decisions of our sister states and history. See State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). Whether our state constitution might render a defendant’s involuntary statements inadmissible even if they were motivated by factors other than police coercion is an open question. State v. Roseboro, 221 Conn. 430, 443, 604 A.2d 1286 (1992); State v. Northrop, 213 Conn. 405, 420, 568 A.2d 439 (1990); State v. Gonzalez, 206 Conn. 213, 222, 537 A.2d 460 (1988); State v. Barrett, 205 Conn. 437, 452, 534 A.2d 219 (1987). Because we conclude that the record before us does not support a finding that the defendant’s will was overborne to the point that his statements were given involuntarily, we need not resolve the state constitutional issue. See State v. Roseboro, supra, 444.

It is well settled that “[t]he state has the burden of proving the voluntariness of [a defendant’s] confession by a fair preponderance of the evidence.” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999); see Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. James, 237 Conn. 390, 411, 678 A.2d 1338 (1996). Our Supreme Court has recently clarified the proper scope of appellate review of a trial court’s determination of voluntariness. See State v. Pinder, supra, 420. “To begin, we note the established rule that the [t]rial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. ... As [is] true concerning appellate review of determinations of custodial interrogation, although we give deference to the trial court concerning these subsidiary factual determinations, such deference is not proper concerning the ultimate legal determination of voluntariness. In its review of state court determinations of voluntariness, the United States Supreme Court long has concluded that the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination. . . . Consistent with the well established approach taken by the United States Supreme Court, we review the voluntariness of a confession independently, based on our own scrupulous examination of the record. The ambiguity apparent in [prior Connecticut Supreme Court] cases is that, while correctly citing to the relevant federal case law for the proposition that we will conduct an independent determination of voluntariness . . . [our Supreme Court has also] continued to state in these same cases that [o]n the ultimate issue of voluntariness ... we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. . . . [Continued use of the substantial evidence language, when it is inconsistent with the plenary review that we in fact conduct, perpetuates a misstatement of the law. . . . [Therefore, [the proper scope of review regarding] the ultimate issue of voluntariness requires us, not to ascertain whether the trial court’s finding is supported by substantial evidence, but to conduct a plenary review of the record in order to make an independent determination of voluntariness.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 420-21.

I

We first examine the four statements made by the defendant to medical personnel. Our plenary review of the record leads us to conclude that a preponderance of the evidence shows that the statements were voluntary.

In his brief, the defendant alleges that the following circumstances rendered his statements to medical personnel involuntary. The defendant is a Cambodian immigrant who speaks broken English. Immediately after being removed from his vehicle, the defendant was forcibly restrained and taken into police custody. The defendant immediately collapsed in a “catatonic state” in which he remained until ambulance personnel arrived and put him in four-point restraints. The defendant was so unresponsive that the ambulance crew had to administer a “coma cocktail.” Within twenty minutes of his arrival at the hospital, restrained, in police custody and very upset, the defendant made the statement to Levesque while Miller looked on. Then the defendant confessed to Borenstein, who was so concerned about the defendant’s mental condition that he ordered the Aziz examination. The defendant also confessed to Aziz. Aziz concluded that the defendant was suicidal. Nearly five hours after arriving at the hospital, in restraints, under police guard and suicidal, the defendant confessed to the members of the center.

A review of the record reveals that the defendant’s statements to medical personnel were consistent, detailed and coherent. There is no evidence that anyone to whom a statement was made acted in any way to compel the defendant to inculpate himself. Any inquiry was limited to that normally present in obtaining a medical history and current physical condition. A fair reading of the record indicates that the defendant’s responses were the product of his will, not his surroundings.

As to the defendant’s mental state, the record does not support his implicit contention that he was “catatonic” and that the medication administered to combat his condition acted to overbear his will. Miller testified at the suppression hearing that the defendant was acting, or “playing dead,” when he went into his “catatonic state” at the crime scene to avoid cooperating with authorities. The court found Miller to be a highly credible witness. Also, Borenstein testified at trial that the ambulance personnel’s administration of the “coma cocktail” was protocol and not necessarily indicative of a particular mental state. It was Borenstein’s expert opinion, based on the circumstances, that the defendant “chose not to respond.” Furthermore, Levesque testified that a “coma cocktail” has no sedative effect and is, rather, designed to bring one back to a conscious state. Finally, Levesque and Borenstein testified that the defendant was alert and awake when he arrived at the hospital.

The fact that the defendant was a Cambodian immigrant who spoke broken English does not compel the conclusion that his statements were involuntary. Again, the defendant testified at the suppression hearing that he had no recollection of making statements. This is in direct contradiction with his theory that his nationality or lack of ability to speak English influenced his making of the statements. Moreover, the defendant had been in the United States six years at the time and spoke English well enough to be understood by others and to understand the language himself. The defendant also has not articulated any nexus between his “suicidal” condition and his independent compulsion to confess consistently four separate times to medical personnel, nor do we find any support for this contention in the record. We note also that the record fails to reveal any instance of the defendant being treated less than appropriately and that he was, in fact, offered food and drink.

On the basis of our plenary review of the entire record, we conclude that a preponderance of the evidence shows that the defendant’s statements to Levesque and members of the center were voluntary. The weight of the evidence is not tipped in the defendant’s favor by his perfunctory assertion that the emergency room was “inherently coercive.” With respect to the defendant’s statements to Borenstein and Aziz, the court’s admission of these statements was proper. We conclude that the alleged constitutional violation does not clearly exist and that the defendant’s claim, therefore, fails to satisfy the third requirement of Golding. State v. Golding, supra, 213 Conn. 240.

II

In support of his claim that his statement to the police was involuntary, the defendant adds that he was, by the time he made the statement, in custody for seven hours, under suicide watch, and had not been offered any food, drink, bathroom access or use of a telephone and had no interpreter present. We conclude that the state has satisfied its burden with respect to the voluntariness of this statement.

The record reveals that the defendant gave normal responses to the explanation of his rights. He was not threatened or deprived of any necessities. Having been read his rights, the defendant indicated that he wanted to speak with Miller, demonstrating that he felt comfortable in his surroundings and was in control of his will. His actions while making the statement also were normal. Furthermore, the signed statement that the defendant gave to Miller was coherent, consistent with and in greater detail than his four previous statements.

During the time he spent at the police barracks, the defendant did not exhibit symptoms consistent with being either “catatonic” or suicidal. The record contains no direct evidence that the defendant’s will was overborne by his mental condition or the environment of the police barracks. On the basis of our plenary review of the entire record, we conclude that a preponderance of the evidence shows that the defendant voluntarily confessed to Miller.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       Under Connelly, “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, supra, 479 U.S. 167.

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

       In support of his motion, the defendant relied on article first, § 8, of the constitution of Connecticut.

       We note that at his motion to suppress hearing, the defendant maintained that he did not remember making any of the statements. The trial court responded in its oral decision that the defendant’s testimony was internally inconsistent, convenient and not credible.

       “We may consider the testimony adduced both at the trial and at the suppression hearing when determining the propriety of the trial court’s ruling on a motion to suppress a confession.” State v. Lapointe, 237 Conn. 694, 704 n.15, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996).

       The defendant also claims that his waiver of his Miranda rights was invalid. The court found that the defendant’s rights were understood and validly waived. The state must prove by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. State v. Gonzalez, supra, 206 Conn. 217. Our review of the entire record shows that the state has met its burden.


text:
    STATE OF CONNECTICUT v. JOHN MITCHELL
    (AC 18366)
    O’Connell, C. J., and Spear and Dupont, Js.
    Argued September 13, 1999
    officially released February 8, 2000

      William S. Palmieri, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Amy Sedensky, deputy assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, John Mitchell, appeals from the judgment of conviction rendered on the trial court’s acceptance of his conditional plea of nolo contendere to the charge of carrying a pistol or a revolver on his person in violation of General Statutes § 29-35 (a). The defendant claims that the trial court improperly (1) refused to grant his motion to suppress the evidence and (2) determined that the seizure was a permissible Terry stop. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. Shortly after midnight, on the night of the arrest, the arresting New Haven police officer received a dispatch from his sergeant informing him that the police had received a number of telephone calls complaining of gunshots. Shortly thereafter, the officer noticed the defendant riding his bicycle at high speed and began following him in his police cruiser. The officer observed the defendant, on several occasions, remove his right hand from the handlebars, reach across his stomach to his left side and then return it to the handlebars. At that time, the officer was uncertain as to the defendant’s purpose, but he later concluded that the defendant could have been checking on the security of a weapon being carried on his left side.

Subsequently, the officer observed the defendant drop his bicycle in front of a multifamily dwelling and run inside. He characterized the defendant’s behavior as moving fast, running and fleeing. As the defendant ran up the stairs, the officer noticed a bulge on the defendant’s left side. The officer followed him into the apartment building, up its common stairway and then into the private residence of a friend’s mother. Once in the apartment, the police officer seized the defendant around the waist and found a handgun in a holster strapped to his side.

The defendant filed a pretrial motion to suppress the evidence of the handgun. After the hearing, the trial court denied the motion, and the defendant entered a conditional plea of nolo contendere. The trial court accepted the plea and rendered the judgment in accordance therewith.

I

The defendant argues that the police officer unlawfully entered the apartment without a warrant and, therefore, the evidence resulting from the subsequent seizure must be suppressed because it was obtained in violation of his rights guaranteed by the United States and Connecticut constitutions. The defendant relies on Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981), for the principle that an officer cannot search the premises of a third party without a warrant. Absent exigent circumstances or consent, the police, even armed with an arrest warrant, cannot search for a subject in the home of a third party, without first obtaining a search warrant directing entry. Id., 211-16. A close examination of Steagald does not support the defendant’s argument because the circumstances in Steagald are not the same as those in the present case. In Steagald, a resident’s rights were implicated as a result of a search of the resident’s premises for a third party. Furthermore, Steagald, in dicta, actually supports a position contrary to that of the defendant.

The defendant’s first issue raises two questions: (1) does the defendant have standing to invoke the fourth amendment and, if he does, (2) were those rights violated? The trial court correctly focused first on the issue of standing and concluded that the defendant lacked standing to assert the fourth amendment. Accordingly, the trial court denied the defendant’s motion to suppress.

The trial court correctly determined that standing was the threshold issue. The United States Supreme Court in United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), overruled Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), thereby eliminating the rule that defendants had automatic standing to challenge the legality of a search that produced evidence against them. Under the automatic standing rule, a defendant had the right to challenge the legality of a search without first showing that he had a reasonable expectation of privacy that was violated by the search. Salvucci held that a defendant must first establish a reasonable expectation of privacy in the premises before he may assert that his fourth amendment rights have been violated by improper intrusion into those premises. United States v. Salvucci, supra, 93.

Our Supreme Court adopted Salvucci in State v. Altrui, 188 Conn. 161, 179 n.6, 448 A.2d 837 (1982). In State v. Hill, 237 Conn. 81, 92, 675 A.2d 866 (1996), our Supreme Court reconfirmed its adoption of United States v. Salvucci, supra, 448 U.S. 83, stating that “[t]he touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994).”

In Hill, our Supreme Court went on to state, “ [a]bsent such an expectation, the subsequent police action has no constitutional ramifications.” (Internal quotation marks omitted.) State v. Hill, supra, 237 Conn. 92, quoting State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). Additionally, in Hill, our Supreme Court reiterated the two-prong test for determining standing under article first, § 7, of the Connecticut constitution. “[T]o meet this rule of standing . . . a two-part subjective/objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation, of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable.” (Internal quotation marks omitted.) State v. Hill, supra, 92, quoting State v. Joyce, supra, 229 Conn. 20. The court also held that this is the same test as that under the United States constitution. State v. Hill, supra, 92 n.17.

In the present case, the defendant’s argument is predicated on his establishing that he had a reasonable expectation of privacy in the apartment of his friend’s mother at the time of the seizure. Unless the defendant is able to establish that he had a reasonable expectation of privacy in the apartment, he lacks standing to claim any fourth amendment violations. The defendant has the burden of proving that he had a reasonable expectation of privacy in the premises. State v. Callari, 194 Conn. 18, 23, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985). This allocation of burden was reaffirmed in State v. Hill, supra, 237 Conn. 92-93.

The defendant ruges a contrary view by (1) relying on State v. Geisler, 222 Conn. 672, 682, 610 A.2d 1225 (1992), for the principle that “warrantless searches and seizures inside a home are ‘presumptively unreasonable’ ” and (2) arguing that this presumption directly applies to the circumstances in the present case. We are not persuaded.

The defendant applies an overly broad and self-serving construction to Geisler. A close reading of the majority opinion reveals that this quotation is qualified by the statement, “[a]bsent consent to entry or exigent circumstances, a judicial determination of probable cause must stand in between the police and the door of a person’s home, whether the object of an entry is to search and seize or to arrest.” (Internal quotation marks omitted.) Id., quoting State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980). When we consider these two quotations from Geisler, it is clear that the holding is limited to the circumstances of Geisler and Ruth, namely, when the party is in his or her own home. In the present case, the dwelling was not the defendant’s home. Nowhere in Geisler is there support for the much broader construction suggested by the defendant. See State v. Geisler, supra, 222 Conn. 672.

In denying the motion to suppress, the trial court articulated its findings of fact. It found, inter alia, that although the defendant was welcome to visit the apartment, he was not an overnight guest, there was no evidence that he had been to the apartment at any time in the immediate past, there was no evidence that on the night of the arrest the defendant had been invited by any of the apartment’s residents, and there was no evidence that the defendant had any prior meaningful contact with the premises. On the basis of the totality of these findings, the trial court concluded that (1) the defendant had not carried the burden of demonstrating subjectively that he had a reasonable expectation of privacy or (2) that society would recognize that the defendant had a reasonable expectation of privacy under the circumstances.

The trial court clearly articulated the facts and the law that formed the basis of its conclusion that the defendant did not meet the burden of establishing a reasonable expectation of privacy and, accordingly, held that the defendant did not have standing to invoke his fourth amendment rights. On the basis of our plenary review of this question of law, which we conduct in light of the trial court’s factual findings; see Connecticut Associated Builders & Contractors v. Anson, 251 Conn. 202, 209, 740 A.2d 804 (1999); we do not find that the court’s decision was clearly erroneous. Because we agree with the trial court’s finding that there was no reasonable expectation of privacy and, therefore, a lack of standing, we do not reach the other elements of the defendant’s first issue.

II

The defendant next claims that the seizure was not permitted under the Terry stop doctrine set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Terry stop doctrine deals with the reasonable, articulable suspicion required to stop and search a suspect without a warrant. Id. The defendant has not briefed the law on reasonable articulable suspicion as it applies to the present case. The portion of the defendant’s brief pertaining to the Terry stop doctrine is limited to an argument based on the propriety of the officer’s entry into the apartment. The defendant’s argument is based solely on his claim that he had a reasonable expectation of privacy in the apartment where he was seized. We disposed of this claim in part I of this opinion. Accordingly, we do not reach the Terry stop issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s plea was conditioned on his right to appeal the denial of his motion to suppress evidence in accordance with General Statutes § 54-94a.

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

       “The right of the people to be secure in their persons, houses, papers, and effects, against, unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV.

       “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Conn. Const., art. I, § 7.

        Steagald clearly states that “the narrow issue before us is whether an arrest warrant—as opposed to a search warrant—is adequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances.” Steagald v. United States, supra, 451 U.S. 212.

       “[T]he house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house, or the goods of any other which are brought and conveyed into his house, to prevent a lawful execution, and to escape the ordinary process of law; for the privilege of his house extends only to him and his family, and to his own proper goods. [Semayne’s Case, 5 Co. Rep. 91a, 92b-93a. 77 Eng. Rep. 194, 198 (K. B. 1603)]. The common law thus recognized, as have our recent decisions, that rights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched. See United States v. Salvucci, 448 U.S. 83 [100 S. Ct. 2547, 65 L. Ed. 2d 619] (1980); Rakas v. Illinois, 439 U.S. 128 [99 S. Ct. 421, 58 L. Ed. 2d 387] (1978).” (Internal quotation marks omitted.) Steagald v. United States, supra, 451 U.S. 219.