author: O’Connell, J.

text:
    State of Connecticut v. Douglas Jaynes
    (13076)
    Dupont, C. J., and O’Connell and Spear, Js.

      Argued September 14
    decision released December 20, 1994

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendant claims that (1) the trial court and the state’s attorney improperly denied him access to exculpatory material, (2) the trial court improperly admitted identification testimony into evidence, (3) the trial court improperly instructed the jury on intent to kill, and (4) the trial court improperly failed to conduct a hearing as to whether a juror felt pressured. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Early in the morning of February 23,1989, the victim, Eugene Deis, and Pamela Teague were seeking to purchase cocaine in New Haven. Deis was driving his car and Teague was in the front passenger seat. On Southwest Drive near its intersection with Dixwell Avenue, they were flagged down by two drug runners, Michael Little and Nessie Jacobs.

Deis told the runners what he wanted, and they relayed the order to Reggie Cash. Cash was nearby with drugs that he had previously received from the defendant. Cash and Little approached Deis’ car to complete the transaction. As Cash handed Deis the cocaine, Deis started the car, giving the impression that he intended to drive away without paying. Cash and Little reached into the car and grabbed the victim, preventing him from leaving.

Teague got out of the car and went toward the intersection looking for a telephone or a police officer. Finding neither, she stood on the sidewalk and watched the struggle. She saw Jacobs and the defendant approach the car. The defendant pulled a handgun, fired into the car and hit Deis, who died within minutes.

Jacqueline Ellis, who had known the defendant for many years, also witnessed the incident. She saw the defendant, with a handgun, walk over to the victim’s car. She then heard a shot. Little also saw the defendant reach into the car with a gun and then heard a shot. Cash and Jacobs both heard the shot but neither saw who fired the gun.

The defendant testified that he saw an unidentified male run up to Deis’ car, fire one shot and run away. No one else saw this man. Additional facts are included in our analysis of the issues.

I

The defendant first claims that the state’s attorney and the trial court denied him access to discoverable exculpatory material in violation of his constitutional rights to due process, to present a defense and to the assistance of counsel.

The state police forensic laboratory analyzed the bullet taken from the victim’s body and concluded that it came from the same gun that was fired in an unrelated crime in Hamden on December 23,1988. The state disclosed this information but, because the Hamden case was still open, refused to allow the defendant access to the Hamden police reports.

The defendant subpoenaed the Hamden police file and, following completion of the state’s case-in-chief, moved for its production. The trial court examined it in camera, determined that it contained no exculpatory evidence and declined to order its production. The defendant argues that discovery of the Hamden file would have allowed him to develop exculpatory evidence contained therein (1) to support the defendant’s testimony of third party culpability and (2) to impeach the observations and credibility of the two state witnesses who claim to have seen the gun in the defendant’s hand.

The state is constitutionally obligated to disclose evidence that is material and potentially exculpatory. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Quintana, 209 Conn. 34, 37, 547 A.2d 534 (1988); see also General Statutes § 54-86c; Practice Book § 741 (l). In addition, an independent right to disclosure of exculpatory evidence has been recognized under the due process provision of article first, § 8, of the Connecticut constitution. State v. Simms, 201 Conn. 395, 405 n.8, 518 A.2d 35 (1986).

A

“ ‘In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.’ ” State v. Rasmussen, 225 Conn. 55, 90, 621 A.2d 728 (1993).

It is not disputed that after a proper request the state refused to release the Hamden file to the defendant and that, subsequently, the trial court denied the defendant’s discovery motion. Accordingly, the first Brady prong has been satisfied.

We will analyze the second prong — favorableness— and the third prong — materiality—together. “Favorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt . . . and this doubt must be one that did not otherwise exist.” (Citations omitted; internal quotation marks omitted.) State v. Green, 194 Conn. 258, 265, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). On the other hand, “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Rasmussen, supra, 225 Conn. 92; State v. Pollitt, 205 Conn. 132, 142-43, 531 A.2d 125 (1987).

“ ‘Impeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused.’ ” State v. Demers, 209 Conn. 143, 161, 547 A.2d 28 (1988). The defendant argues that evidence in the Hamden file was favorable because the Hamden witnesses described the weapon as a big black or blue-black revolver, whereas in the present case two state witnesses described the weapon as silver in color. The defendant contends that this discrepancy might have caused the jury to discredit the state’s witnesses in this case. The fallacy in the defendant’s argument is that, because the gun has never been recovered, the evidence in the Hamden file could show only that the witnesses in one of the cases were apparently mistaken. Particularly damaging to his argument is the fact that the defendant himself testified that he witnessed the shooting and the gun was silver. Thus, the defendant puts himself in the unique position of seeking evidence to impugn his own credibility.

The defendant loses sight of the fact that the purpose of discovery is to obtain information. The possible color discrepancy was already known to the defendant. The state’s ballistic expert had testified in the jury’s presence that the gun that fired both bullets was probably a Charter Arms .44 caliber Bulldog revolver and that in his experience such guns were made of blue steel.

The defendant fully cross-examined the state’s ballistic expert on the color of the gun in the presence of the jury. The jury also heard the state’s witnesses, as well as the defendant, testify that the gun in the present case was silver. Accordingly, the jury was well aware that witnesses in this case were of the opinion that the gun was not the same color as that which the state’s expert described.

This case turns on the “material” Brady prong. “[T]he mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial . . . does not establish materiality in the constitutional sense.” (Emphasis in original; internal quotation marks omitted.) State v. Pollitt, supra, 205 Conn. 149. Because the determination of materiality is inevitably fact bound, a reviewing court must give deference to the trial court’s determination, especially in the weighing of the evidence. United States v. Kelly, 790 F.2d 130, 136 (D.C. Cir. 1986); State v. Pollitt, supra, 149.

Materiality is not determined in a vacuum; rather, it must be made in the context of all the evidence adduced at trial. State v. Pollitt, supra, 205 Conn. 143. Accordingly, the trial court properly determined that even if the Hamden witnesses’ descriptions of the gun were favorable to the defendant, they were not material because they involved only a mere possibility that they might have helped the defendant as opposed to the required reasonable probability that the result of the proceeding would have been different. United States v. Bagley, supra, 473 U.S. 682; State v. Pollitt, supra, 149.

B

The defendant also contends that discovery of the Hamden file would have supported his claim of third party culpability. “[A] defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime .... It is not enough ... to raise a bare suspicion that some other person may have committed the crime . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Holeman, 18 Conn. App. 175, 182, 556 A.2d 1052 (1989); see 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 93g (3).

The defendant’s third party theory was based solely on his own testimony. No other witness saw the phantom shooter appear suddenly, shoot the victim and run away. Moreover, the Hamden file does not contain a description of any person who resembles the defendant’s description of the unknown shooter.

The defendant argues that if he had been given access to the Hamden file it might have given him leads that he could have followed, which might have furnished helpful evidence. This argument runs afoul of the standard that the mere possibility that undisclosed evidence might have helped the defense or might have affected the outcome is not enough. State v. Pollitt, supra, 205 Conn. 149.

In the usual scenario in this type of case, the trial court has denied the defendant access to a desired file and sealed it for our review. Lack of knowledge of the file’s contents is an understandable handicap to appellate counsel’s arguing that the trial court improperly denied access. In this case, however, counsel was not so handicapped. The Hamden case was concluded after the verdict in the present trial but before sentencing. At that point, the trial court unsealed the file and gave the defendant full access to it. Despite the advantage of this access, however, the defendant has not persuaded us that the information in the Hamden file would have been both favorable and material to his defense. See United States v. Bagley, supra, 473 U.S. 682.

We conclude that neither the state’s attorney nor the trial court violated the defendant’s constitutional or statutory rights, or his rights under the rules of practice, to any exculpatory material.

II

We turn next to the defendant’s claim that the trial court improperly allowed Teague’s identifications of the defendant into evidence. “ ‘The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence when the procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). “In order to establish that a pretrial identification procedure has violated a defendant’s constitutional right to due process, the defendant must prove (1) that the identification procedure was unnecessarily suggestive, and (2) that the resulting identification was not reliable under the totality of the circumstances.” State v. Hunt, 10 Conn. App. 404, 407, 523 A.2d 514 (1987). Whether such an identification procedure is unnecessarily suggestive, depends on the facts and circumstances of each case. State v. Findlay, 198 Conn. 328, 337-38, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).’ State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988). To prevail on his claim the defendant ‘must show that the trial court erred in determining both the “suggestiveness” and “reliability” of the identification. State v. Sims, [12 Conn. App. 239, 242, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988)].’ State v. Barnes, 16 Conn. App. 333, 343-44, 547 A.2d 584 (1988).” State v. Gagnon, 18 Conn. App. 694, 701-702, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989).

In State v. Daniels, 13 Conn. App. 133, 135, 534 A.2d 1253 (1987), this court, in an opinion written by now Justice Borden, disposed of challenges to identification evidence as follows: “The trial court held an evidentiary hearing regarding the identifications and specifically found that none of them was the result of an impermissibly suggestive procedure, and that they were reliable. ... It would serve no useful purpose to recite those findings here. We have fully reviewed the record, and we conclude that those findings are amply supported by the evidence.” (Citation omitted.) The same is true in the present case.

The trial court properly allowed Teague’s identifications into evidence.

Ill

The defendant next claims that the trial court’s instruction improperly allowed the jury to find the defendant guilty of murder on the basis of proof of intent to engage in conduct, rather than the required intent to cause a specific result, i.e., death.

Because the defendant did not file a request to charge or except to the charge as given, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under the Golding guidelines, a defendant can assert a constitutional claim, 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.” Id. If any one of these conditions is missing, the defendant’s claim will fail. Id., 240.

The relevant portion of the instruction commenced with the statement: “You must find proved beyond a reasonable doubt that Mr. Deis died as a result of the actions of the defendant. Next, you must conclude that the person causing the death of the victim must have done so with the intent to cause the death.” The court then read the statutory definition of when a person acts intentionally. General Statutes § 53a-3 (ll). Six sentences later the trial court instructed that “[i]f you find that the state has proved beyond a reasonable doubt that the defendant had the intent to cause the death of and that having that intention to cause the death of Mr. Deis, the defendant did cause his death, then you may find the defendant guilty of the crime of murder.” The court concluded this portion of its charge by commenting: “So let me just summarize by reading the statute. ‘A person is guilty of murder, when, with intent to cause the death of another person, he causes the death of such person.’ This means that the state must prove beyond a reasonable doubt that the defendant intended to cause the death of another person and that in accordance with that intent the defendant caused the death of that person.”

When the court finished its instruction, defense counsel advised the court that the charge on intent was “proper” and “perfectly fine” with one exception. The court had used the example of drinking a glass of water to demonstrate intent, and defense counsel thought that may have been misleading. The court recalled the jury and, after speaking of the water drinking example, told the jury, “I don’t want to give you the impression that every time a course of conduct leads to a result that that’s the intended result. I mean, that’s for you to decide.” The court repeated this clarification twice and defense counsel expressed satisfaction with it.

During its deliberations, the jury asked, inter alia, to rehear the definition of murder including the matter of intent. The court instructed the jury that the state had to prove two elements for a murder conviction, “[one] that the defendant intended to cause the death of another person and, two, that in accordance with that intent the defendant caused the death of that person.”

The defendant’s challenge to the charge on intent arose out of the trial court’s reading of the statutory definition of intent from § 53a-3 (11). Even if it were improper, it would not destroy the propriety of the instruction as a whole.

Viewing the challenged language in isolation is unjustified. Immediately before first using that language, the court properly told the jury that it must find that the defendant had intended to cause the victim’s death, and six sentences later reiterated that the jury may find the defendant guilty of murder if “the defendant had the intent to cause the death of . . . Mr. Deis [and] the defendant did cause his death.”

It strains reason to believe that the jury could have heard the challenged instruction as not requiring that the state prove beyond a reasonable doubt that the defendant intended to kill Deis. Furthermore, the court’s reply to the jury question also properly informed the jury that the state must prove that the defendant possessed a specific intent to kill Deis.

It is axiomatic that a jury charge is to be read as a whole and that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Suggs, 209 Conn. 733, 755, 553 A.2d 110 (1989); State v. Washington, 15 Conn. App. 704, 713, 546 A.2d 911 (1988). The test is whether the charge as a whole tended to mislead the jury. State v. Quintana, supra, 209 Conn. 44; State v. Boone, 15 Conn. App. 34, 55, 555 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988).

A similar issue was raised in State v. Boles, 223 Conn. 535, 541-43, 613 A.2d 770 (1992). The language of the Boles court is singularly applicable to the facts of this case. “[T]he trial court gave instructions, both prior and subsequent to the instruction at issue, that properly informed the jury that it had to find proven that the defendant intended to cause the victim’s death before it could convict him of murder. ... We conclude that the instruction of the trial court, on which the defendant focuses in isolation, did not, in the context of the entire charge, deprive him of his constitutional due process right to a fair trial nor did it result in an injustice. . . . Because there was no constitutional violation, the defendant does not have a valid claim for relief under Golding. Further, because there was no manifest injustice, the defendant’s claim does not warrant plain error review.” (Citations omitted.) Id., 543.

The defendant also argues that by reading the statutory definition of intent the trial court created a mandatory presumption of intent in violation of the principle laid down in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). In view of our analysis of the charge as a whole, this contention does not merit further discussion.

The defendant has not satisfied the third Golding prong and is thus not entitled to further review of his claim that the trial court improperly instructed the jury on intent.

IV

In his final claim, the defendant argues that the trial court improperly failed to conduct an inquiry into the significance of a remark made by a juror and overheard by an attorney. The attorney, who was not involved in the case, passed four or five jurors standing outside the courthouse as he entered. The jurors appeared to be “just talking about the weekend,” when the attorney overheard an unidentified female juror say “if she feels pressured.” That was all he heard. The attorney reported this incident and explained the circumstances to the trial court. The court, however, did not think the incident “in any way taint[ed] the integrity of the deliberations at all.”

When possible concerns regarding juror misconduct or improper influence are brought to the attention of the court, it has a duty to determine whether and to what extent, improper influence or undue pressure may have violated the defendant’s constitutional right to a fair trial. State v. Gonzalez, 25 Conn. App. 433, 439, 596 A.2d 443 (1991), aff’d, 222 Conn. 718, 609 A.2d 1003 (1992). In the present case, however, the defendant did not show that the snippet of overheard conversation was related to this case in any way. It could just as easily have been a comment referring to a person other than a member of the jury who felt pressured in some way by the vicissitudes of life. The trial court acted within its discretion in not inquiring into the matter.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

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

       General Statutes § 54-86c provides in relevant part: “(a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or materia] to the defendant.
      “(b) Any state’s attorney, assistant state’s attorney or deputy assistant state’s attorney may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is tried to the court, to determine whether any material or information is exculpatory. ...”

       Practice Book § 741 provides in relevant part: “Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials;
      “(1) Exculpatory information or materials . . . .”

       The constitution of Connecticut, article first, § 8, 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 . . . .”

       The trial court’s charge to the jury on intent was as follows: “You must find proved beyond a reasonable doubt that Mr. Deis died as a result of the actions of the defendant. Next, you must conclude that the person causing the death of the victim rmist have done so with the intent to cause the death. So, I’ll define intent for you. And it’s not as complicated as it might seem. A person acts ‘intentionally’ with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. Intent is a mental process. To discern what a person is thinking, the question of intent may be determined by considering all the facts and circumstances leading up to, surrounding and following the events in question. You may consider any statement made and any act done or omitted by the defendant, along with other facts and circumstances in evidence, and from those you may infer what his intention was. If you find that the state has proved beyond a reasonable doubt that the defendant had the intent to cause the death of and that having that intention to cause the death of Mr. Deis, the defendant did cause his death, then you may find the defendant guilty of the crime of murder. On the other hand, if after reviewing all of the evidence, you find that the state has failed to prove beyond a reasonable doubt either or both of the elements of the crime charged, then you must find the defendant not guilty.”
      The court then gave as an example that the jury could infer intent from watching the court drink a glass of water. See footnote 9. It then continued its charge as follows:
      “So let me just summarize by reading the statute. ‘A person is guilty of murder, when, with intent to cause the death of another person, he causes the death of such person.’ This means that the state must prove beyond a reasonable doubt that the defendant intended to cause the death of another person; and that in accordance with that intent, the defendant caused the death of that person. . . .”

       The defendant mentioned plain error review but did not furnish analysis of his claim under this doctrine. Accordingly, we deem it abandoned. State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991).

       General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .”

       During jury instructions the court drank a cup of water and said to the jury, “Now, if you were watching me, I didn’t say a word. Could you figure from what I did, what I meant to do? Sure, I meant to have a drink of water. Now you didn’t have to look inside my mind ... to figure that out. How were you able to judge my intent? By simply observing my actions and the circumstances surrounding the event. That’s the way you judge a person’s intent .... It’s all common sense.”

       The third prong of Golding requires that “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 239-40.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Oakland Heights Mobile Park, Inc. v. James Simon
    (12595)
    O’Connell, Foti and Heiman, Js
    Argued October 28
    decision released December 20, 1994

      Edward E. Moukawsher, for the appellant (plaintiff).

      James Simon, pro se, the appellee (defendant).
   Heiman, J.

The plaintiff in this summary process action seeking possession for nonpayment of rent appeals from the judgment of the trial court rendered in favor of the defendant. On appeal, the plaintiff claims that the trial court improperly (1) found that the defendant had sufficiently raised the equitable defense of relief from forfeiture, (2) granted the defendant equitable relief from forfeiture without considering whether the defendant’s nonpayment of rent was willful or grossly negligent, and (3) found that the defendant had cured the rental arrearage that prompted the summary process action.

The following facts are relevant to this appeal. The defendant leased lot forty-one in the plaintiff’s mobile home park located in Norwich. Pursuant to a month-to-month oral lease, the defendant was obligated to pay $220 per month to rent the lot on which his mobile home sits, as well as the cost of propane fuel provided by the plaintiff. A 5 percent late charge was applied to late payments of rent.

In December, 1992, the defendant failed to pay rent. As á result, the plaintiff served the defendant with a notice to quit on December 31, 1992, for nonpayment of rent. On January 5, 1993, the defendant tendered a check in the amount of $100, along with a note apologizing for the delay in payment. The plaintiff refused to accept the check because it did not represent total payment of the amount owed and, instead, commenced a summary process action on February 8, 1993.

In his answer, the defendant admitted all of the plaintiff’s allegations, except that the notice to quit was duly served. He admitted in his pleadings and in his testimony at trial, however, that he did receive the notice to quit. The defendant asserted as a special defense that all rent had been paid, with the reservation that he had made several attempts to make payment on the arrearage, but they were refused. The plaintiff denied the allegations in the defendant’s special defense.

The defendant appeared pro se. In its memorandum of decision, the trial court determined that the defendant was not in arrears and was entitled to equitable relief from forfeiture. The plaintiff’s claim to possession of the property was, therefore, denied and judgment was rendered in favor of the defendant. This appeal followed.

I

The plaintiff first claims that the trial court improperly addressed the equitable defense of relief from forfeiture when the defense was not properly raised by the defendant. We agree.

The following facts are necessary for the proper resolution of this issue. The defendant did not raise the equitable defense of relief from forfeiture in his pleadings. The only defense asserted was that he attempted to make partial payment to the plaintiff, but that such attempts were rebuffed. He did not assert any counterclaims against the plaintiff.

At trial, the defendant called Francis Beauregard, one of the owners of the plaintiff corporation, to testify. The defendant proceeded to ask Beauregard questions concerning a move of the defendant’s mobile home from one lot in the park to another, prior to the defendant’s purchase of the home. He claimed that the evidence was relevant to establish the amount of time and money he had invested in his mobile home. Upon objection by the plaintiff’s counsel, the court reminded the defendant that any claims he might have against the plaintiff for damage to his mobile home would have to be addressed in a separate proceeding. It was at this time that the defendant claimed that his questioning was relevant to the equitable defense of relief from forfeiture. Counsel for the plaintiff objected that the defense had not been pleaded and the court explained to the defendant that even if judgment was rendered for the plaintiff, the plaintiff would not gain possession of his mobile home. The court further informed the defendant that his line of questioning was remote to the case at hand and, the defendant, at that point, indicated that he had no further questions of the witness. The plaintiff did not cross-examine the witness and the trial ended without argument by either party.

In Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991), our Supreme Court held that equitable defenses such as relief from forfeiture are available to tenants in summary process proceedings. In order to establish the defense, a tenant must show: “(1) the tenant’s breach was not willful or grossly negligent; (2) upon eviction the tenant will suffer a loss wholly disproportionate to the injury to the landlord; and (3) the landlord’s injury is reparable.” Cumberland Farms, Inc. v. Dairy Mart, Inc., 225 Conn. 771, 778, 627 A.2d 386 (1993). This defense is available, however, only if properly raised. Fellows v. Martin, supra, 62-63.

It has long been established that “[t]he purpose of pleadings is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until after the close of the evidence.” Biller v. Harris, 147 Conn. 351, 357, 161 A.2d 187 (1960). Practice Book § 164 provides that “[fjacts which are consistent with [the plaintiffs statements of fact] but show, notwithstanding, that [the plaintiff] has no cause of action, must be specially alleged.” The equitable defense of relief from forfeiture does not deny the allegations of a plaintiff’s complaint for summary process. A defendant asserting a defense of relief from forfeiture does not dispute that a lease has been terminated and that rent is owed and has not been paid. Such a defendant alleges, however, that there are equitable reasons that establish that possession should not be taken away from the defendant. Therefore, the equitable defense of relief from forfeiture must be pleaded as a special defense. See Cumberland Farms, Inc. v. Dairy Mart, Inc., supra, 225 Conn. 777; Elliott v. South Isle Food Corp., 6 Conn. App. 373, 376, 506 A.2d 147 (1986); Seven Fifty Main Street Associates v. Spector, 5 Conn. App. 170, 171, 497 A.2d 96, cert. dismissed, 197 Conn. 815, 499 A.2d 804 (1985); Mobilia v. Santos, 4 Conn. App. 128, 130, 492 A.2d 544 (1985); cf. Fellows v. Martin, supra, 217 Conn. 64-65 (defense considered sufficiently before trial court even though raised as counterclaim).

A defendant’s failure to plead a special defense precludes the admission of evidence on the subject. DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971). Therefore, the defendant’s failure to assert the equitable defense of relief from forfeiture in his pleadings constituted a waiver of that defense and it should not have been considered by the trial court. Although our courts are “consistently . .. solicitous of the rights of pro se litigants,” the rules of practice cannot be ignored to the detriment of other parties. Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519, 370 A.2d 1306 (1976); see also Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929). It would be fundamentally unfair to allow any defendant to await the time of trial to introduce an unpleaded defense. Such conduct would result in “trial by ambuscade” to the detriment of the opposing party. See Manning v. Michael, 188 Conn. 607, 613, 452 A.2d 1157 (1982).

The defendant did not properly raise the equitable defense of relief from forfeiture and, therefore, the trial court should not have considered it.

II

The plaintiff next claims that the trial court improperly granted the defendant equitable relief from forfeiture without considering whether the defendant’s nonpayment of rent was willful or grossly negligent. Because we have determined that the defense of relief from forfeiture was not properly before the trial court, we need not decide this issue.

III

The plaintiff’s final claim is that the trial court improperly found that the defendant had cured the arrearage that was the basis of the summary process action. We agree.

The following facts are necessary for the resolution of this issue. At trial, a representative of the plaintiff offered as an exhibit a document purporting to summarize her testimony regarding the amount still owed to it by the defendant. This document listed the moneys owed by the defendant for rental, late fees, and propane fuel for the months from December, 1992, until April, 1993. It also listed the amounts paid by the defendant until the date of trial. A comparison of these figures established the plaintiff’s claim that the defendant was still in arrears in the amount of $230.88. The defendant did not object to the admission of the document into evidence, but objected only to the amount claimed owed. His objection was grounded on his assertion that he thought the figure to be overstated by approximately $15. The trial court admitted the document into evidence and assured the defendant that it would take into consideration his belief that the amount represented was incorrect.

In addition, the defendant took the stand as a witness. On cross-examination by the plaintiff, the defendant admitted that he was in arrears. Despite the undisputed testimony, the trial court found that the defendant had cured the arrearage and was current as of the date of trial.

“On appeal, this court may reverse or modify the decision of the trial court only ‘if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record.’ Practice Book § 4061. ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.’ (Internal quotation marks omitted.) Lukas v. New Haven, 184 Conn. 205, 208, 439 A.2d 949 (1981); Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 88, 612 A.2d 1130 (1992); Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).” Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 503-504, 646 A.2d 1289 (1994).

“A finding of fact is clearly erroneous when there is no evidence in the record to support it; Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993); or ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); see also Web Press Services Corp. v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987).’ (Internal quotation marks omitted.)Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 504.” Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636-37, 646 A.2d 772 (1994).

Our review of the record persuades us that the trial court improperly found that the defendant was not in arrears at the time of trial. The plaintiff established that the defendant was in arrears and presented testimony to that effect. The defendant in no way contradicted this evidence, except as to the specific amount of arrearage. The defendant admitted in no uncertain terms that he had not paid to the plaintiff all that he owed as of the date of trial. The evidence was, therefore, undisputed that the defendant remained in arrears and the finding of the trial court to the contrary is clearly erroneous. See John J. Brennan Construction Corp. v. Shelton, 187 Conn. 695, 701, 448 A.2d 180 (1982).

The judgment is reversed and the case is remanded with direction to render judgment in favor of the plaintiff.

In this opinion the other judges concurred.

       General Statutes §§ 47a-23 through 47a-42 establish Connecticut’s summary process procedures. Section 47a-23 (a) provides in pertinent part: “When the owner or lessor . . . desires to obtain possession or occupancy of . . . any land upon which a trailer is used or stands, and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons . . . (D) nonpayment of rent . . . such owner or lessor . . . shall give notice to each lessee or occupant to quit possession or occupancy of such land
      General Statutes § 47a-23a (a) further pro vides in pertinent part: “If . . . the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the superior court may issue a writ, summons and complaint . . . which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises. . . .”

       The objection by the defendant was as follows:
      “The Defendant: Your Honor, I would object to this being entered into evidence. I believe that it is incorrect. It does not correctly state — it is certainly a small amount, but I think it is off by about $15. Other than that, I don’t object to it being entered.
      “The Plaintiff’s Counsel: Your Honor, it is being offered just as a summary of [the plaintiff’s] testimony as made to the court. If [the defendant] has any quarrel to the amount, he can certainly testify about that if the court would like to examine it.
      “The Court: Your claim is to the effect that . . . it is off by maybe $15.00 or so?
      “The Defendant: That’s correct.
      ‘ ‘The Court: Well, the court will take that into account. It may be marked and I will be mindful of that.”

       The plaintiff’s questions concerning the arrearage and the defendant’s responses were as follows:
      “The Plaintiffs Counsel: Let’s run down for a moment, at this point .. . you still owe over $215 today? Even at your figure?
      “The Defendant: That’s correct.
      “The Plaintiffs Counsel: So you still have not paid all the arrears as of this date?
      “The Defendant: Yes. To answer, no I have not paid them all.”


author: Dupont, C. J.

text:
    State of Connecticut v. Willie McFarland
    (12549)
    Dupont, C. J., and Lavery and Heiman, Js.
    Argued October 24
    decision released December 20, 1994

      Brian S. Carlow, assistant public defender, with whom, on the brief, was Michael Alevy, legal intern, for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Clark, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the trial court’s judgments revoking his probation and committing him to the custody of the commissioner of correction to serve a sentence of six years. The only issue on appeal is whether the defendant could be lawfully subjected to a charge of violating his probation for conduct committed at a time when he had been mistakenly released from prison and had not yet served his properly calculated prison term. The defendant argues that his probation could not have commenced at the time he allegedly violated probation because he had not yet been “released” from imprisonment as required by General Statutes § 53a-31.

Certain facts are relevant to this appeal. The defendant was convicted on July 29, 1988, of sexual assault in the first degree and escape from custody. He was sentenced to terms of thirteen years, suspended after seven years, with five years of probation on the sexual assault charge, and ten years, suspended after five years, with five years of probation on the escape charge. He was released from the Connecticut correctional institution at Somers on August 25, 1992. Six days later, on August 31, he was arrested and charged with burglary in the first degree and sexual assault in the first degree. Subsequently, the state filed separate informations alleging the same offenses and violations of probation arising from that criminal conduct.

The state filed a motion to consolidate all three cases for trial, which was granted over the defendant’s objection. The cases were consolidated, and the substantive case was tried to the jury and the charges of violation of probation were tried to the court. The jury was unable to agree on a unanimous verdict as to either the burglary or sexual assault charges, or on any of the lesser included offenses of those charges, and the trial court declared a mistrial and discharged the jury. The court then heard additional evidence as to the charges of violation of probation. The court found the defendant in violation of probation and sentenced the defendant to a term of six years of imprisonment, the time remaining to be served on the July 29,1988 convictions.

The defendant argues that he was not lawfully on probation on August 31,1992, because he should not have been released from incarceration for the July 29,1988 convictions until September 18, 1992. The defendant claims that he was mistakenly awarded “pretrial credit” pursuant to General Statutes § 18-98d, to which he was not entitled. This erroneous award of pretrial credit resulted in his release from prison on August 25, 1992, rather than on September 18,1992, the date the defendant argues he should have been released. In addition, the defendant argues that the August 25, 1992 release was unlawful because although the commissioner of correction could have awarded him 120 days of outstanding meritorious performance credit pursuant to General Statutes § 18-98b, making August 25, 1992, a proper date of release, the department of correction records indicated that the defendant had been awarded only ninety-five days of such credit. In essence, his claim is that the commissioner of correction has no authority to “accelerate” a defendant’s release from the commissioner to the office of adult probation.

The defendant argues that despite the fact that he was physically released from the authority of the commissioner of correction on August 25, 1992, he remained in actual custody on that date, rather than being subject to the supervision of the office of adult probation, and, therefore, on August 31, 1992, his probationary period had not yet commenced. He claims that probation, as a matter of law, does not commence until the end of the properly calculated custodial portion of a sentence. In claiming that he was in “actual custody” of the department of correction on August 31, 1992, the date of the underlying offenses that were the subject of the probation revocation hearing, the defendant equates his status to that of an escapee or one placed in an alternative incarceration program.

The state argues that General Statutes § 53a-31 does not require the calculation of a proper release date from which to determine the commencement of probation. Rather, according to the state, probation commences by operation of law on the actual date of release. The state conceded at oral argument that in this case, the defendant’s release may have been a mistake. A state’s witness, the probation officer who supervised the defendant’s probation, testified that she considered the defendant to have commenced probation on the date of his release, August 25, 1992. She relied on a computer printout from the department of correction, which the office of adult probation uses to determine the date of release.

The transcript of the trial court’s oral ruling indicates that the court found that the state had proved beyond a fair preponderance of the evidence that on August 31, 1992, the defendant committed acts of burglary in the first degree and sexual assault in the first degree. The court also found that the properly calculated date of release was irrelevant to the commencement of the defendant’s probation and ruled that the defendant’s probation commenced under § 53a-31 on the date of his actual release from imprisonment. We affirm the judgments of the trial court.

A trial court “ ‘may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.’ ” State v. Davis, 229 Conn. 285, 290, 641 A.2d 370 (1994), quoting General Statutes § 53a-32 (b). In making this determination, the trial court is vested with broad discretion. State v. Davis, supra, 290. In this case, however, an issue of law must be determined before any question of discretion is reached. The court’s legal conclusion that the defendant was subject to a charge of violation of probation is subject to our plenary review. State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994), citing State v. Geisler, 222 Conn. 672, 693, 610 A.2d 1225 (1992). The issue is capable of resolution because there is an undisputed factual record. State v. Torres, supra, 380.

The determination of when probation “commences” is an issue of first impression in Connecticut. Its resolution requires an interpretation of § 53a-31 (a). There is no reported case law interpreting the phrase “commences on the day the defendant is released from such imprisonment,” as used in that statute. The defendant construes the phrase to mean that probation commences, as a matter of law, on the properly calculated date of release, whereas the state construes it to mean that probation commences as a matter of law on the date of actual release, even if the date of actual release is earlier than the date the defendant should have been released. Basic to the defendant’s argument is that until release on the properly calculated date, the defendant is in the custody of the commissioner of correction.

Although it is true that a person, while on home release, is subject to the authority of the commissioner of correction; State v. Deptula, 34 Conn. App. 1, 10, 639 A.2d 1094 (1994); see also Asherman v. Meachum, 213 Conn. 38, 48, 566 A.2d 663 (1993); the defendant in this case was not a participant in a home release program. He presented no evidence to support his claims that he was either an escapee or a participant in an alternative incarceration program. Escape from prison is a crime under General Statutes § 53a-169. Generally speaking, one who escapes from prison is a fugitive from justice. See State v. Gordon, 197 Conn. 413, 424, 504 A.2d 1020 (1985). In the present case, the defendant was released from prison by the commissioner of correction, and his whereabouts were known; he was not an escapee. Similarly, he cannot claim that he was a participant in an alternative incarceration program, such as home release, because such programs involve restrictions on liberty and close supervision. See Asherman v. Meachum, supra, 41.

Although there is no case law directly on point, guidance can be gleaned from previous cases. Probation commences upon the termination of the custodial portion of the sentence by operation of law. State v. Wright, 24 Conn. App. 575, 579, 590 A.2d 486 (1991). The crux of the defendant’s claim in Wright was that the state’s failure to inform him on his release from prison that he was on probation constituted a violation of his due process rights. In rejecting that claim, we noted that the record indicated that “the defendant understood that probation was part of the sentence imposed on him, the terms of that sentence being announced in open court. The court never specified when probation would commence; it has no duty to do so. Nor is there any such requirement upon his release from prison. ” (Emphasis added.) Id. Implicit in the decision is the rationale that neither the judicial system nor the department of correction has an affirmative duty to inform the defendant when probation commences because the termination of custody provides the demarcation between service of a sentence and the beginning of a probation period.

We must next decide whether custody terminates on the day the “defendant is released from such imprisonment” as described in § 53a-31 (a). Although penal statutes such as § 53a-31 et seq. are to be strictly construed in favor of the accused, such construction should not exclude common sense so that absurdity results and the evident design of the legislature is frustrated. State v. Pastet, 169 Conn. 13, 21-22, 363 A.2d 41, cert. denied, 423 U.S. 937, 96 S. Ct. 297, 46 L. Ed. 2d 270 (1975). If two constructions of a statute are possible, we will adopt the one that makes the statute effective and workable, not the one leading to difficult and bizarre results. Muller v. Town Plan & Zoning Commission, 145 Conn. 325, 331, 142 A.2d 524 (1958).

The construction of § 53a-31 et seq. argued by the defendant would lead to a bizarre result. To hold that the defendant was not on probation until his properly calculated release date would in effect allow him to commit acts that could be the subject of a criminal prosecution and yet remain immune from the possibility of a revocation of probation simply because he was prematurely released from custody, mistakenly or otherwise. The defendant cannot take advantage of an early release from imprisonment and then expect to be immune from a charge of probation violation for acts he committed thereafter.

The word “release” has been interpreted by our Supreme Court in other contexts to connote a physical release from confinement or imprisonment. See State v. Hanson, 210 Conn. 519, 556 A.2d 1007 (1989). We have been unable to find any support for the defendant’s reading of “release” as being contingent on a properly calculated date of discharge.

The defendant has presented no compelling argument for this court to adopt the strained interpretation he urges. The public policy consideration of discouraging criminal activity is fostered by the state’s interpretation, and is a factor in our consideration of the issue. The case of Payton v. Albert, 209 Conn. 23, 547 A.2d 1 (1988), supports our conclusion. Payton was an appeal by the commissioner of correction from the granting of an application for a writ of habeas corpus. The gist of the petitioner’s complaint in Payton was that the commissioner of correction had erroneously calculated the effective release date on the petitioner’s two concurrent sentences of two and one-half years each. The petitioner claimed that he was entitled to a sentence reduction for the time he had spent in presentence confinement, regardless of which sentence caused his subsequent imprisonment. In effect, he sought to credit jail time accrued for one offense toward the sentence imposed in another. The court rejected this argument and remanded the matter to the trial court with instruction to deny the petition. “A petitioner should not, upon posting bail, leave a correctional center with the perception that there is jail time accrued in his name which may be applied to subsequent sentences that may follow criminal activity occurring after his release on bail but before the disposition of the original charges.” Id., 33-34. The court further noted that “ ‘[t]he principle that extra time served on a criminal sentence may not be “banked” is strongly rooted in the public policy that individuals should not be encouraged to commit crimes knowing they have a “line of credit” that can be applied against future sentences.’ ” Id., 34. Nor should individuals be allowed to “cheat” the system of justice twice, first by being released before a full sentence has been served, and second, by seeking immunity from a finding of a violation of probation based on a mistaken release.

We hold that the term release as used in General Statutes § 53a-31 includes physical release from custody, whether by mistake or not, and that probation commences by operation of law on the date of the actual release from imprisonment.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant concedes that if he was lawfully on probation, the state produced sufficient evidence to establish a violation of probation, and we do not discuss the facts of the alleged conduct found by the trial court to constitute a violation of probation.

       General Statutes § 53a-31 (a) provides in pertinent part: “A period of probation or conditional discharge commences on the day it is imposed, except that, where it is preceded by a sentence of imprisonment with execution suspended after a period of imprisonment set by the court, it commences on the day the defendant is released from such imprisonment. . . .”

       Between August 22 and October 16, 1987, the defendant was serving a sentence for a previous offense unrelated to either the July 29,1988 convictions for sexual assault and escape from custody or the alleged conduct that resulted in the revocation of his probation at issue here. The state’s evidence was that the defendant was not entitled to pretrial credit toward his sentence for the sexual assault and escape charges until October 16, 1987, when he was discharged from his sentence for the previous unrelated offense. See General Statutes § 18-98d (1).

       The defendant relies on the trial testimony of the records specialist at the New Haven correctional center, Charlene Apuzzo, in calculating his proper release date.

       According to the testimony of the victim of the alleged burglary and sexual assault, and according to the defendant’s own testimony, the defendant, more likely than not, understood that he was on probation. The victim testified that after the alleged sexual assault, the defendant told her, “I just got out of jail, and [am] probably going to go back.” The defendant testified that he told the victim, “I just recently got out of jail. I want no trouble.”


text:
    State of Connecticut v. Michael Person
    (13336)
    O’Connell, Lavery and Schaller, Js.
    Argued September 27
    decision released December 27, 1994

      Donald D. Dakers, special public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Turcotte, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a and criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (2). The trial court granted the defendant’s motion for a judgment of acquittal of risk of injury to a child in violation of General Statutes § 53-21. Thereafter, the state filed a substitute information charging the defendant with murder and criminal trespass in the first degree.

On appeal, the defendant claims that the trial court improperly refused to instruct the jury on the affirmative defense of extreme emotional disturbance. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant and Leshea Pouncy, the victim, had been romantically involved and had lived together for a brief time. Their relationship deteriorated, and the defendant moved out in January or February of 1991. On April 16, 1991, the victim obtained a protective order prohibiting the defendant from entering the premises where she lived. The defendant was aware of this restraining order.

After Pouncy broke up with the defendant, she and Donald Moody became close friends. On the evening of May 19, 1991, Moody was at Pouncy’s apartment prior to their departure on a movie date. The defendant telephoned and spoke to Moody. He sounded upset and threatened to kill both Moody and Pouncy. Monique Pouncy, the victim’s sister, accompanied Pouncy and Moody on the May 19 movie date. In explaining the delay in leaving for the theater, Pouncy told Monique of the defendant’s threatening phone call.

In the afternoon of May 19, Earl Carthens, a friend of the defendant, had also received a telephone call in which the defendant had expressed his intention to harm Pouncy. The defendant was upset and told Carthens that he was “going to get even with [Pouncy]” and was “going to make her pay” for what she had done to him.

On the evening of May 19, the defendant went to Pouncy’s house to recover personal belongings. He found the premises locked, and forced the exterior door open, and then forced his way through a locked interior door into her apartment. While he was gathering his things in the rear bedroom, he heard the apartment door shut and heard Pouncy talking on the telephone to his mother. Although Pouncy mentioned his name, the defendant was not upset by what he overheard of the telephone conversation.

Pouncy then walked into the bedroom, armed with a can of Mace in one hand and two knives in the other. The defendant detailed a scenario in which Pouncy sprayed Mace into his eyes as they struggled to gain possession of the knives. The struggle ended when Pouncy fell to the floor after the defendant stabbed her in the chest with one of the knives. The defendant panicked and ran off to Carthens’ house. At about 1 a.m., the defendant surrendered at the New Haven police station where he gave both oral and written statements.

The victim died of a knife wound to the front of her chest, approximately five inches in depth, which pierced three-quarters of her aorta. The medical examiner stated that this wound probably was fatal within one minute of its infliction. Additional facts are included in our analysis.

In his brief, the defendant concedes that the evidence was sufficient to establish that he had the intent to kill Pouncy at the time he caused her death. He sought, however, to justify the killing as an act of self-defense. There was evidence that, if believed by the jury, would support this defense.

The sole issue raised in the defendant’s appeal is that the trial court improperly denied his request for a jury instruction on the affirmative defense of extreme emotional disturbance. The state responds that the trial court properly denied the instruction for two reasons: (1) the defendant was not entitled to such instruction on a defense that directly contradicted his trial testimony, and (2) the defendant had not carried his burden of establishing sufficient evidence to warrant the requested instruction.

I

The state argues that the defendant expressly denied that he was emotionally distressed. This contention is supported by the defendant’s testimony on cross-examination in which he explicitly stated that he was not upset by any feeling that Moody was “moving in” on his girlfriend. Furthermore, he specifically testified that he was not bothered by Moody’s relationship with the victim. Despite his express denial of any emotional reaction to Moody’s relationship with his former girlfriend and his testimony that he had acted in self-defense, the defendant maintains that he was nevertheless entitled to an extreme emotional disturbance jury instruction. He bases his contention on the argument that the jury could have disbelieved his testimony.

This is not a case of first impression. State and federal courts have both considered whether a defendant is entitled to a jury instruction that contradicts his own evidence. The cases hold that “[w]hen the jury instruction has the effect of contradicting the defendant’s own evidence, he is not entitled to it. United States v. Crowder, 543 F.2d 312, 317 (D.C. Cir. 1976), cert. denied, 429 U.S. 1062, 97 S. Ct. 788, 50 L. Ed. 2d 779 (1977); State v. Cassino, [188 Conn. 237, 244, 449 A.2d 154 (1982)].” State v. Zayas, 3 Conn. App. 289, 295, 489 A.2d 380, cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985).

The defendant testified that he was not upset; this testimony was in direct contradiction to his request to charge. “[T]o allow the charge would have led to an absurd result, namely, if the jury found for the defendant on his [extreme emotional disturbance] claim, they would have to conclude he was lying in his trial testimony.” State v. Folson, 10 Conn. App. 643, 649 n.5, 525 A.2d 126 (1987) (discussing Zayas).

The doctrine of Zayas and Cassino does not contradict the rule that a defendant may maintain inconsistent defenses. See State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983). “ ‘[T]he fact that one defense is on the theory that [the] accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses ....’” Id. Where, however, as in the present case, the defendant specifically disavows having the requisite mental state for the instruction that he seeks, Cassino and Zayas preclude the defendant from obtaining the contradicting instruction.

The trial court properly declined to give the requested extreme emotional disturbance instruction because it directly contradicted the defendant’s trial testimony.

II

The state also argues that there was insufficient evidence to support the extreme emotional disturbance instruction. Our analysis in part I of this opinion concerning the contradictory nature of an extreme emotional disturbance instruction in the present case is dispositive of this appeal. Accordingly, we do not reach the sufficiency of evidence claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a provides in relevant part: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. ...”

       General Statutes § 53a-107 (a) provides in relevant part: “A person is guilty of criminal trespass in the first degree when ... (2) he enters or remains in a building or any other premises in violation of a restraining order issued pursuant to section 46b-15 or a protective order issued pursuant to section 46b-38c by the superior court.”

       The defendant testified about the overheard telephone call as follows: “[Defense Counsel]: Did you hear any conversation that she had?
      “A. Yes, I heard a little.
      “Q. Who was — do you know who she was talking to?
      “A. I assume she was talking to my mother. . . .
      “Q. Why did you assume she was talking to your mother?
      “A. I heard her mention my name a few times.
      “Q. You can’t get into the content of that telephone call.
      “A. No.
      “Q. But were you upset when you overheard this telephone call?
      “A. No, not really. I was—
      “The Court: The answer is, no, not really. Ask your next question.”

       “ ‘[A]n extreme emotional disturbance is one where self-control and reason are overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions.’ State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979).” State v. Bryan, 34 Conn. App. 317, 322, 641 A.2d 443 (1994).

       The following is an excerpt from the defendant’s testimony:
      “[The State]: When you entered that apartment that was indeed your intent to kill Donald Moody and Leshea Pouncy, wasn’t it?
      “A. No, sir.
      “Q. Because you were upset, because you felt that Donald was moving in on your gal.
      “A. Not really.
      “Q. Not really?
      “A. No.
      “Q. That didn’t bother you?
      “A. No.”

       For example, charged with robbery in the first degree, a defendant could put forward an alibi defense and also contend that the weapon allegedly used in the crime was nonfunctional. See General Statutes § 53a-134.


author: Spear, J.

text:
    State of Connecticut v. Robert Gaines
    (12724)
    Dupont, C. J., and Schaller and Spear, Js.

      Argued September 26
    decision released December 27, 1994

      Richard S. Cramer, for the appellant (defendant).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from a judgment of conviction of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-lll (a) (3) and (4), and arson in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-lll (a) (3) and (4). On appeal, he claims that the trial court improperly (1) denied his motion for judgment of acquittal because the state failed to produce sufficient evidence to establish beyond a reasonable doubt that Steven Pappas had started a fire or in the alternative had caused an explosion within the meaning of § 53a-lll, (2) admitted the testimony of Dan Lewis, president of Pequot Insurance Agency, regarding whether the additional fire insurance premium had been paid, and (3) denied his motion to suppress tape-recorded conversations between the defendant and his nephew, Larry Anglin. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. The defendant leased property located on Route 156 in Old Lyme for the purpose of operating a restaurant named Swordfish Sally’s. The restaurant opened on June 10,1988, but closed after a few weeks. The defendant had purchased fire insurance coverage in the amount of $250,000 on the building and $75,000 on its contents effective May 31, 1988. On June 24, 1988, he increased the coverage on the building to $350,000.

The defendant offered Anglin $35,000 to burn down the restaurant, and Anglin in turn arranged for Steven Pappas, an employee of the restaurant, to set the fire. On the morning of June 30, 1988, Anglin and Pappas filled six containers with gasoline and hid them in the restaurant. Later that night, Pappas returned and spread the gasoline in various areas of the restaurant. Although Pappas intended to ignite the gasoline, the vapors ignited spontaneously before he had a chance to do so. The restaurant was destroyed by the resulting fire.

Pappas and Anglin were arrested and charged for their participation in the fire. Pappas pleaded guilty, and Anglin was found guilty after a trial. After his conviction, Anglin cooperated with the police in their investigation of the defendant. Anglin agreed to speak to the defendant, who had not been arrested or charged, and to allow his conversations to be recorded. Anglin taped five telephone conversations with the defendant. In the course of these conversations, the defendant made inculpatory statements. The trial court denied the defendant’s motion to suppress the tapes and admitted them into evidence at the defendant’s trial.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal. In support of this claim, the defendant asserts that the state failed to produce sufficient evidence to establish beyond a reasonable doubt that Pappas either started a fire or caused an explosion within the meaning of General Statutes § 53a-lll. We disagree.

In reviewing a sufficiency of the 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. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993), quoting State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992). To convict a defendant of arson, the state must prove beyond a reasonable doubt that the defendant possessed the specific intent to destroy or damage a building by starting a fire or causing an explosion. The defendant maintains that the state failed to introduce sufficient evidence that Pappas either started a fire or caused an explosion within the meaning of § 53a-111.

We conclude from our review that there was sufficient evidence from which the jury could have reasonably inferred that Pappas started a fire or caused an explosion. We have repeatedly held that statutory language is to be given its plain and ordinary meaning. Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981); Glastonbury Education Assn. v. Freedom of Information Commission, 35 Conn. App. 111, 117, 643 A.2d 1320, cert. granted on other grounds, 231 Conn. 922, 648 A.2d 162 (1994). “It is appropriate for us to look at dictionary definitions in order to clarify the ordinary meaning of various terms.” State v. Domian, 35 Conn. App. 714, 724, 646 A.2d 940 (1994). Webster’s Third New International Dictionary (1966) defines “start” as “to begin an activity or undertaking . . . to bring into being: initiate, originate.” Given Pappas’ clear intent, his actions in carrying out that intent and the plain, common sense meaning of the statutory language, the jury reasonably could have found that Pappas indeed started the fire.

“Explosion” is defined by Webster’s Third New International Dictionary (1966) as “a violent expansion or bursting that is accompanied by noise and is caused by a sudden release of energy from a very rapid chemical reaction.” At trial, Pappas testified that he poured six cans of gasoline throughout the interior of the restaurant. After he had finished spreading the contents of the sixth can, he heard a whooshing sound, and the restaurant spontaneously caught on fire. It was reasonable for the jury to infer from Pappas’ testimony that the fire resulted from the gasoline vapors igniting into a sudden burst of energy that produced the whooshing sound that Pappas described. In light of Pappas’ testimony, it was reasonable for the jury to have concluded beyond a reasonable doubt that Pappas caused an explosion.

“It is true that penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create. ... On the other hand, [t]he rule of strict construction does not require that the narrowest technical meaning be given to the words employed in a criminal statute in disregard of their context and in frustration of the obvious legislative intent.” (Citations omitted; internal quotation marks omitted.) State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); see Singh v. Singh, 213 Conn. 637, 646, 569 A.2d 1112 (1990).

Were we to accept the defendant’s argument that Pappas’ actions did not cause an explosion or start a fire, we would be interpreting the statute in such a narrow manner that the legislative intent would be thwarted. The defendant cannot prevail on his sufficiency claim.

II

The defendant next claims that the trial court improperly admitted Lewis’ testimony into evidence. He argues that Lewis, president of Pequot Insurance Agency, should not have been allowed to testify that he did not believe the premium payments for the additional fire insurance had been paid.

Our Supreme Court and this court have consistently held that an issue that is not adequately briefed will not be addressed on appellate review. See Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991); Cohen v. Security Title & Guaranty Co., 212 Conn. 436, 437 n.1, 563 A.2d 510 (1989); Isaac v. Mount Sinai Hospital, 210 Conn. 721, 732, 557 A.2d 116 (1989); New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn. App. 585, 591, 630 A.2d 131, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). As this issue involves an evidentiary ruling, the defendant has the burden of showing, not only that the ruling was erroneous, but also, that it is more probable than not that the error affected the result. See State v. Campbell, 225 Conn. 650, 657, 626 A.2d 287 (1993). In his brief, the defendant fails to offer any legal argument or authority in support of his claim that the testimony should not have been admitted. “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed . . . .” (Citations omitted; internal quotation marks omitted.) Cohen v. Security Title & Guaranty Co., supra, 437 n.1. Given that the defendant did not adequately brief this issue we decline to review it.

Ill

The defendant’s final claim is that the trial court improperly admitted tape-recorded conversations between the defendant and Anglin. On appeal, the defendant argues that the conversations should have been suppressed because they were made after the defendant had announced he had retained counsel, and therefore were made in violation of the Rules of Professional Conduct. We disagree.

The following additional facts are necessary to resolve this issue. Anglin agreed to allow his conversations with the defendant to be tape-recorded and relayed to the investigators. At that time, the defendant was considered a suspect, but had not been arrested or charged with any crime. Anglin recorded five telephone conversations with the defendant beginning on September 9, 1991. The first telephone conversation with the defendant was relayed to Agent Thomas Viens, an inspector with the division of criminal justice. On September 13, 1991, Viens questioned the defendant regarding a third party’s involvement with the arson at Swordfish Sally’s. At this meeting, the defendant mentioned that he was going to talk to an attorney to get some advice, and he mentioned the names of a few attorneys to Viens.

The second and third tape recordings were made on September 16, 1991. During one of the September 16 conversations, the defendant told Anglin that he had seen an attorney. Anglin recorded two subsequent conversations with the defendant on September 18 and September 21. On September 24, 1991, Attorney William McCoy informed Viens that he was representing the defendant in this matter. Upon hearing that the defendant .was represented, Viens told Anglin not to tape any further conversations with the defendant.

The issue framed by the defendant on appeal is whether the Rules of Professional Conduct require the suppression of evidence that an informant elicited and recorded from a suspect prior to an indictment or arrest, but after the suspect has sought the advice of an attorney. Rule 4.2 of the Rules of Professional Conduct provides that “a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” (Emphasis added.) The purpose of this rule “is to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. The rule is designed to prevent situations in which a represented party may be taken advantage of by opposing counsel.” Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 236, 578 A.2d 1075 (1990).

The trial court found as a matter of fact that the state was not clearly aware that the defendant was represented by counsel during the period of time when Anglin was tape-recording his conversations with the defendant. On the basis of this finding of fact, we do not have to reach the issue of whether rule 4.2 applies when a defendant has retained counsel.

As the state was unaware that the defendant had retained a lawyer, rule 4.2 is inapplicable and the trial court properly refused to suppress the recorded conversations between the defendant and Anglin.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-111 (a) provides in pertinent part: “A person is guilty of arson in the first degree when, with the intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       On August 28,1991, Anglin taped a face-to-face conversation with the defendant. The admissibility of this tape is not contested by the defendant.

       Pappas testified: “Well, it caught fire. I guess the gas, the vapors caught on the electrical or something, and it just — the vapors from the gasoline ignited with the electrical wires and caused an explosion.”

       The defendant concedes in his brief that his interpretation of the statute “may not be thoroughly convincing.”

       The federal circuit cases cited by both sides discuss the applicability of the Code of Professional Responsibility disciplinary rule 7-104 (A) (1), which was the predecessor of rule 4.2. The two rules are substantively the same.

       Since the state was not aware that the defendant was represented by counsel, we do not have to determine at what stage in a criminal investigation rule 4.2 becomes operative. In United States v. Ryans, 903 F.2d 731 (10th Cir.), cert. denied, 498 U.S. 855, 111 S. Ct. 152, 112 L. Ed. 2d 118 (1990), the Tenth Circuit decided a case that addressed the issue of when a disciplinary rule becomes applicable in a criminal investigation. The Tenth Circuit held that the disciplinary rule 7-104 (A) (1) did not apply to the initial investigatory phase of law enforcement even when the state knows that the suspect is represented by counsel.


author: E. Y. O’Connell, J.

text:
    State of Connecticut v. Janice L. Cox
    (12272)
    O’Connell, Foti and Landau, Js.
    Argued October 27
    decision released December 27, 1994

      William T. Koch, Jr., special public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Mary Jean Kanabis and Geoffrey Marion, assistant state’s attorneys, for the appellee (state).
   E. Y. O’Connell, J.

The defendant appeals from the judgment of conviction, following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1). The defendant claims that the trial judge (1) improperly absented himself from the courtroom during jury voir dire and (2) improperly denied her motion to suppress statements made by the defendant. We affirm the judgment of trial court.

The jury could reasonably have found the following facts. About 1:30 a.m. on September 13,1991, Officer John Fiore of the Stonington police department was on routine patrol on Route 1 in that town. In the course of his duties, he stopped an erratically operated vehicle and approached the driver’s door to speak with the operator, the defendant in this case. Fiore detected a moderate odor of alcohol and noticed that the defendant appeared confused and fumbling when asked to produce her license and registration. He ordered the defendant out of the car and at trial testified as follows concerning his conversation with her.

“[Fiore]: I asked her if she had had — how much she had had to drink.

“[Prosecutor]: What did she respond?

“[Fiore]: She answered, ‘A lot.’

“[Prosecutor]: What did she — did she say anything when you asked her to perform field tests?

“[Fiore]: I asked for the field tests and she made a statement to the effect, ‘Simply lock me up.’ ”

After failing field sobriety tests, the defendant was arrested for operating a motor vehicle while under the influence of intoxicating liquor and transported to the police station. For technical reasons, the police were unable to obtain a usable breathalyzer test. The trial court denied the defendant’s motion to suppress the roadside exchange between Fiore and the defendant.

I

The defendant first claims that the trial judge improperly failed to remain in the courtroom during the voir dire jury selection process. She bases this claim on this court’s decision in State v. Patterson, 31 Conn. App. 278, 303, 624 A.2d 1146, cert. granted, 227 Conn. 901, 630 A.2d 72 (1993). In Patterson, we held that “the trial judge’s absence from the courtroom during voir dire in a criminal trial is per se reversible error”; id.; and cannot be waived. Id., 294. This was the state of the law when the defendant filed her appellate brief on September 9, 1993. On July 26, 1994, the state Supreme Court reversed our decision, holding that “even assuming that the trial judge must be present in the courtroom throughout the voir dire of a criminal trial, the defendant can waive such a requirement.” State v. Patterson, 230 Conn. 385, 390, 645 A.2d 535 (1994). The Supreme Court then proceeded to find a valid waiver in Patterson. Id., 390-97.

In the present case, the trial judge addressed the defendant directly, and she clearly waived her right to have the judge present during voir dire. Accordingly, we conclude that the trial court acted properly in accordance with the law in effect at the time the voir dire in this case took place.

Lest this decision be read too broadly by the bench or bar, we hasten to add a caveat. Despite its ruling on this court’s Patterson decision, the Supreme Court, acting under its supervisory power, declared “that henceforth the trial judge must continuously be present to oversee voir dire in a criminal case. Because this requirement is imposed by [the Supreme Court] pursuant to its supervisory power, the requirement cannot be waived by either party in future criminal cases.” State v. Patterson, supra, 230 Conn. 400. Accordingly, the precedent of our decision here is limited to criminal cases in which the trial judge absented himself, pursuant to a proper waiver, prior to July 26, 1994.

II

The defendant next claims that the arresting officer was required, under article first, § 8, of the Connecticut constitution to give Miranda warnings to the defendant prior to asking her how much she had to drink. Because the officer did not, the defendant concludes that testimony about the roadside exchange should have been suppressed. We do not agree.

The United States Supreme Court has addressed this issue and determined that under the United States constitution roadside questioning of a motorist detained pursuant to a traffic stop does not constitute custodial interrogation mandating Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 429, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). The defendant wisely concedes that her claim lacks merit under the United States constitution.

On appeal, the defendant briefs her claim solely under the state constitution. This argument, however, was not raised in the trial court. The defendant suggests that she raised the state constitutional issue at trial because her motion to suppress recited that it was filed pursuant to Practice Book § 821, which incorporates the Connecticut constitution by reference. We are not persuaded that this single general reference to the state constitution, unsupported by oral argument, was sufficient to alert the trial court to her claim that she was entitled to greater protection under the state constitution than under the federal constitution.

We are not bound to consider claims of law not distinctly raised in the trial court. State v. Pettersen, 17 Conn. App. 174, 185, 551 A.2d 763 (1988), on appeal after remand, 20 Conn. App. 288, 566 A.2d 714 (1989), cert. denied, 213 Conn. 814, 569 A.2d 550 (1990). We may, however, consider a claim of constitutional error if it meets the requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under the Golding guidelines, a defendant can assert a constitutional claim, 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 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.” Id. If any one of these conditions is missing, the defendant’s claim will fail. Id., 240. The first prong is implicated in the present case.

Miranda warnings are not required unless the defendant is in custody. On appeal, the defendant argues that she was in custody for Miranda purposes under the state constitution, even though not in custody under the United States constitution.

Custody for Miranda purposes is a factual determination. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982). The defendant did not testify as to whether she felt free to leave the scene of the traffic stop. Without an evidentiary hearing applying the stricter constitutional standard urged by the defendant, it is impossible for us to know whether the trial court would have found that the defendant was in custody at the time of the stop.

In declining to review an unpreserved claim of constitutional error, our Supreme Court recently declared that “[s]ince such a determination is a question of fact, even if we were to agree with the defendant [on his interpretation of the Connecticut constitution], we would have to remand the case to the trial court for that factual determination, rather than to grant the defendant a new trial. Since, under the test in Golding, we must determine whether the defendant can prevail on his claim, a remand to the trial court would be inappropriate. The first prong of Golding was designed to avoid remands for the purpose of supplementing the record.” (Emphasis in original.) State v. Medina, 228 Conn. 281, 301, 636 A.2d 351 (1994), quoting State v. Stanley, 223 Conn. 674, 689-90, 613 A.2d 788 (1992).

Because the state constitutional issue was not raised in the trial court and cannot be resolved short of a remand for an evidentiary hearing, we conclude that the record on that issue is inadequate for review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state . . . (1) while under the influence of intoxicating liquor . . . .”

       “The Court: All right, we are going to proceed on one count, operating under the influence. Ms. Cox, you have a right to have me present here sitting while the individual venire persons are questioned. I have already talked to your lawyer, Mr. Koch, and he has indicated that you are agreeable to excuse me from that as long as I am either in the next room or here in the building to answer any questions or rule on any problems that come up. Is that all right and agreeable with you?
      “[The Defendant]: Yes, Your Honor.
      “The Court: All right, you are willing for me not to sit on the bench but I will be, as I say, I’ll be either in this room immediately adjacent or in the building at all times while the jury selection is going on in the event that anything comes up.
      “[The Defendant]: Yes, Your Honor.
      “The Court: All right. And that I assume is all right with you, Ms. Kanabis?
      “[Prosecutor]: Yes, Your Honor.”

       The pertinent part of article first, § 8, of the Connecticut constitution provides: “No person shall be compelled to give evidence against himself.”

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

       Practice Book § 821 provides: “Upon motion of the defendant, the judicial authority shall suppress potential testimony or other evidence if he finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.”

       In the trial court, the defendant limited her argument to whether the case involved testimonial or nontestimonial evidence.

       The present case can be distinguished from State v. Torres, 230 Conn. 372, 378-79, 645 A.2d 529 (1994). In Torres, the record contained an undisputed factual basis for a determination of the constitutional claim but there was no determination made by the trial court. Here, the factual basis, as well as the trial court’s determination, is lacking, making this case analogous to State v. Stanley, 223 Conn. 674, 689, 613 A.2d 788 (1992), in which the factual basis did not appear in the record.