author: Heiman, J.

text:
    Alexander McKee v. Board of Education of the Town of Watertown et al.
    (11381)
    Dupont, C. J., Lavery and Heiman, Js.
    Argued April 30
    decision released July 13, 1993

      Daniel P. Scapellati, with whom, was John W. Lemega, for the appellants (defendants).

      Brian A. Doyle, for the appellee (plaintiff).
   Heiman, J.

The defendants appeal from a judgment of the trial court reversing a decision of the Watertown board of education (board) terminating the plaintiffs employment. On appeal, the defendant claims that the trial court impermissibly substituted its judgment for that of the board. We affirm the judgment of the trial court.

The following facts are undisputed. The plaintiff was a tenured teacher employed as a guidance counselor by the Watertown board of education. The plaintiff holds a standard certification issued by the state of Connecticut certifying him as a school guidance counselor for children in kindergarten through grade twelve. This certification also permits him to work with special education students.

On July 17, 1989, the board considered termination of his services, pursuant to General Statutes § 10-151 (d) (5), due to a reduction in teaching positions. The termination of the plaintiffs employment is also governed by article XXI of the collective bargaining agreement. Article XXI provides in pertinent part:

“2. Termination of Tenured Teachers

“Subject to the provisions herein set forth, no tenured teacher shall be terminated as the result of the elimination of his or her position unless, at the time of the contemplated termination, there is no other position in the Watertown School System for which the teacher is certified which is occupied by a teacher with a shorter period of service.”

Further, the general provisions of the bargaining agreement provide that “[t]his agreement contains the full and complete agreement between the Board and the Association on all negotiable issues . . . .”

The plaintiff sought to “bump” a teacher with a shorter period of service from a position described as “High School Special Education Counselor.” The job description for this position, issued by the board of education, requires certification in school counseling and special education. The state requires certification only in school counseling to fill the position. The plaintiff lacks certification in special education.

The plaintiff requested a hearing before an impartial panel, pursuant to General Statutes § 10-151 (d), concerning his termination. The impartial panel recommended, in a two-to-one decision, that the plaintiffs contract be terminated. The panel stated that “it is found that there is a strong argument for retention of Mr. McKee based on the State’s requirement of only the certification as a School Counselor . . . to be a Guidance Counselor. However, a preponderance of the evidence received . . . dictates that it was the clear intent of the parties to the contract to require that a teacher have the same proper certifications to fill a position when bumping as when the position is originally filled. In the instant matter, it is established that it is necessary to hold certifications in Special Education and as a School Counselor to hold the position at issue of Special Education Counselor at the high school. Alexander McKee does not hold Special Education certification.”

On November 1, 1989, the board accepted the findings and recommendation of the panel and terminated the plaintiff’s employment effective November 2,1989. On November 28, 1989, the plaintiff appealed the actions of the board to the Superior Court, pursuant to General Statutes § 10-151 (f). On April 15,1992, the trial court reversed the decision of the board finding that the board acted illegally. The basis for the reversal was “that the impartial hearing panel improperly departed from the plain language of the collective bargaining agreement to search improperly for the contracting parties’ intent when the language of the bargaining contract is clear and unambiguous. In adding the job description to the collective bargaining agreement, the panel was legally wrong and the board’s reliance thereon was legally wrong.” This appeal followed.

“Our function in reviewing the action of the board pursuant to § 10-151 (f) is to determine whether the board has acted illegally and not to substitute our judgment for that of the board.” Rado v. Board of Education, 216 Conn. 541, 555, 583 A.2d 102 (1990).

The determination of the legality of the board’s decision is controlled by statute. General Statutes § 10-151 (d) (5) provides a discharge procedure for tenured teachers when the position held by the teacher is eliminated. Theriault v. Board of Education, 31 Conn. App. 690, 694, 626 A.2d 781 (1993). The statute is facially clear and unambiguous. Id. Where “a statute is clear and unambiguous, there is no room for statutory construction.” State v. Cain, 223 Conn. 731, 744, 613 A.2d 804 (1992). The statute is to be applied according to its plain language. Theriault v. Board of Education, supra. The statute provides that if the present position of a teacher is eliminated, “such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract ... of employment to be terminated shall be made in accordance with either (A) a provision for layoff procedure [in the collective bargaining agreement] or (B) in the absence of such agreement, a written policy of the board of education . . . .” General Statutes § 10-151 (d) (5). Thus, the statute requires that the board satisfy a two part test for a lawful termination of a tenured teacher upon elimination of a position. First, the position must be eliminated. Second, the teacher must not be qualified to be appointed to any position held by a teacher with less service as provided for in the collective bargaining agreement or, in the absence of a collecting bargaining agreement, as provided for in a written policy of the board.

The first part of the test is satisfied. The position of the plaintiff was eliminated. The board has failed, however, to satisfy the second part of the test.

The language of the collective bargaining agreement controls the process for determining the individual to be terminated pursuant to General Statutes § 10-151 (d) (5) (A). Id. This procedure allows the plaintiff to be appointed to a position held by a teacher with a shorter period of service.

The collective bargaining agreement provides that “no tenured teacher shall be terminated as the result of the elimination of his or her position unless, at the time of the contemplated termination, there is no other position in the Watertown School System for which the teacher is certified which is occupied by a teacher with a shorter period of service.” (Emphasis added.) This provision is clear and unambiguous. As such, “the contract is to be given effect according to its terms. . . . [N]o room exists for construction.” (Citation omitted.) Greenburgv. Greenburg, 26 Conn. App. 591, 596, 602 A.2d 1056 (1992). “The parties’ intent is ascertained by a ‘fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.’ ” Harvey v. Daddona, 29 Conn. App. 369, 375, 615 A.2d 177 (1992). Thus, the collective bargaining agreement provides for a tenured teacher to bump a teacher with less service where the tenured teacher is certified for the position. The collective bargaining agreement does not contain specific language sufficient to warn parties to the agreement that any rule other than those set forth in General Statutes § 10-151 (d) applies with respect to bumping. In the absence of such a provision in the collective bargaining agreement, the certification required for high school special education counselor is the standard certification only. The plaintiff is certified for the position. He properly should have been appointed to this position to replace a less senior teacher as provided in the collective bargaining agreement. The failure by the board to follow this procedure is a violation of the statute and constitutes an illegal act by the board that cannot stand.

The judgment is affirmed.

In this opinion the other judges concurred.

       Other defendants named in the complaint are James Mullen, chairman of the Watertown board of education, and Margaret Poulin, secretary of the Watertown board of education.

       The plaintiff was employed under the terms of the collective bargaining agreement between the board and the Watertown Education Association. The Watertown Education Association is the certified bargaining agent for the teachers employed by the board.

       General Statutes § 10-151 (d) provides in pertinent part: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for ... (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher, if no other position exists to which such teacher may be appointed if qualified, provided such teacher, if qualified, shall be appointed to a position held by a teacher who has not attained tenure, and provided further that determination of the individual contract or contracts of employment to be terminated shall be made in accordance with . . . a provision for a layoff procedure agreed upon by the board of education and the exclusive employees’ representative organization. . . .”

       The term bump refers to the process where a teacher with a longer period of service is appointed to a position occupied by a teacher with a shorter period of service. The teacher with the shorter period of service is thus bumped by the more senior person.

       General Statutes § 10-151 (d) provides in pertinent part: “Within twenty days after receipt of written notice by the board of education that contract termination is under consideration, such teacher may file with such board a written request for a hearing. . . . Within ninety days after receipt of the request for a hearing, the impartial hearing panel . . . shall submit written findings and a recommendation to the board of education as to the disposition of the charges against the teacher, and shall send a copy of such findings and recommendation to the teacher. The board of education shall give the teacher concerned its written decision within fifteen days of receipt of the written recommendation of the impartial hearing panel . . . .”

       General Statutes § 10-151 (f) provides in pertinent part: “Any teacher aggrieved by the decision of a board of education after a hearing as provided in subsection (d) of this section may appeal therefrom ... to the superior court. . . . The court, upon such appeal and after a hearing thereon, may affirm or reverse the decision appealed from. . . .”

       “[WJhile we have frequently added the words ‘arbitrarily or in abuse of discretion,’ this manner of expression merely points to certain aspects in which the illegality may subsist because the conduct of the board would be in violation of the powers granted to and duties imposed upon it.” (Internal quotation marks omitted.) Tucker v. Board, of Education, 177 Conn. 572, 583, 418 A.2d 933 (1979) (Cotter, C. J., dissenting) (cited with approval in Rado v. Board of Education, 216 Conn. 541, 555, 583 A.2d 102 [1990]).

       The board contends that to be qualified to bump, as provided in General Statutes § 10-151 (d) (5), the plaintiff needs dual certification. The board’s reasoning for this contention is that the job description for high school special education counselor, requiring standard certification and certification in special education, has increased the qualifications necessary for the position pursuant to General Statutes § 10-145. The board claims that the job description prescribed additional qualifications to those prescribed by the state and controls the determination of the plaintiff’s ability to bump. This construction violates the plain language of General Statutes § 10-151 (d) (5) which requires that the qualifications be enumerated in the collective bargaining agreement. The job description, as extrinsic evidence, is not incorporated into the agreement because the agreement is unambiguous. Kronholm v. Kronholm, 16 Conn. App. 124, 130, 547 A.2d 61 (1988). Therefore, the job description does not affect the determination of this case.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Connecticut Bank and Trust Company, N.A. v. David A. Linsky et al.
    (10590)
    Lavery, Landau and Schaller, Js.
    Argued April 2
    decision released July 13, 1993

      Michael G. Milazzo, with whom was David R. Purvis, for the appellants (defendants).

      Joseph E. Faughnan, with whom, on the brief, was Richard Mather, for the appellee (plaintiff).
   Landau, J.

The defendants appeal from the deficiency judgment rendered against them by the trial court. On appeal, the defendants claim that the trial court improperly used the leased fee value of the property for the purposes of the deficiency judgment rather than the fee simple value of the property. We affirm the judgment of the trial court.

The subject property is a commercially zoned parcel located at 131 Dwight Street in New Haven. In September of 1990, the plaintiff, Connecticut Bank and Trust Company, N.A., filed a writ against the defendants seeking a strict foreclosure of its mortgage on the subject property. The mortgage secured the defendants’ $390,000 commercial mortgage note to the plaintiff dated January 15, 1988. On May 6, 1991, the plaintiff’s motion to substitute party plaintiff was granted substituting New Connecticut Bank and Trust Company, N.A., as plaintiff to reflect its appointment as receiver of Connecticut Bank and Trust Company, N.A. The defendants disclosed that they had no defenses to the plaintiff’s action and a judgment of strict foreclosure entered on May 6, 1991. The trial court found the debt as of the date of judgment to be $444,640.48 plus attorney’s fees of $3150 and costs of $3190.20. The law day was set for July 8,1991, and title to the property vested in the plaintiff on July 10, 1991.

On July 16, 1991, the plaintiff filed a motion for a deficiency judgment. At the hearing, the plaintiff presented evidence, based on the leased fee method, that the property’s value on July 10, 1991, was $300,000. The defendants presented evidence, based on the fee simple method, that the property’s value on July 10, 1991, was $405,000. The court found the value of the property on July 10, 1991, to be $300,000. The court then rendered a deficiency judgment in the amount of $174,968.84 plus additional costs of $800.

The defendants contend that the trial court improperly used the leased fee value of the property for the purposes of the deficiency judgment rather than the fee simple value of the property. The trial court’s memorandum of decision, however, does not contain any findings regarding the valuation technique it used in arriving at this figure. While it is true that the court’s conclusion coincides with the “leased fee” method, the court does not articulate its reason for arriving at such a figure. Thus, the factual basis for the court’s decision is unclear.

“ ‘[W]hen a party seeks a further articulation of the factual basis of the trial court’s decision or the inclusion in the memorandum of decision of the trial court’s rulings on claims of law properly presented, he should file a motion with the trial court under Practice Book § [4051] setting forth the specific factual issues he seeks to have resolved and the claims of law he seeks to have included.’ ” Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 178, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1383 (1991), quoting Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222 n.5, 435 A.2d 24 (1980). “It is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 4061; DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983); Augeri v. Planning & Zoning Commission, supra. Under normal circumstances, this court will not remand a case to correct a deficiency the appellant should have remedied. Carpenter v. Carpenter, 188 Conn. 736, 739 n.9, 453 A.2d 1151 (1982); Scherr v. Scherr, 183 Conn. 366, 368, 439 A.2d 375 (1981); North Park Mortgage Services, Inc. v. Pinette, 27 Conn. App. 628, 632, 608 A.2d 714 (1992).

In this case, the plaintiff failed to seek articulation as to the method employed by the court to determine the property’s value. The record is unclear as to which method of valuation the court utilized to ascertain that the value of the property on July 10,1991, was $300,000. Therefore, the record fails to provide an adequate basis for our review of the trial court’s findings. Under these circumstances, we have no basis on which to determine whether the trial court’s conclusions were proper. Urban v. Leggio, 1 Conn. App. 226, 228, 470 A.2d 1226 (1984). Without an adequate record on which to review the findings of the trial court, this court must assume that the trial court acted properly. Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979); Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971); State v. James L., 26 Conn App. 81, 86, 598 A.2d 663 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants in this case are Robert Weintraub, Harry Cohn, 131 Dwight Street Associates, Jan E. Cohen, James Litchfield, Arnold Foster, Michael Freda, Jeffrey Berkowitz and Mario DiRenzo III.

       The trial court in its oral decision of August 12, 1991, stated: “I find the value of the property to be $300,000 allocating $125,000 to the land, $175,000 to the improvement thereon. I will find the valuation to be at the appropriate date, being the tenth day of July, 1991.” The trial court properly complied with Practice Book § 4059 by having its oral decision recorded and transcribed by a court reporter, and signing the transcript.


author: Schaller, J.

text:
    Diana Chute v. Mobil Shipping and Transportation Company et al.
    (11725)
    Heiman, Freedman and Schaller, Js.
    Argued May 10
    decision released July 13, 1993

      Jeffrey D. Ginzberg, for the appellant (plaintiff).

      Augustus R. Southworth III, with whom, on the brief, was Kathy S. Bower, for the appellees (defendants).
   Schaller, J.

The plaintiff appeals from a decision of the compensation review board (review board) of the workers’ compensation commission affirming the commissioner’s denial of benefits. The sole issue in this appeal is whether the commissioner properly determined that the decedent, Richard Chute II, was not an employee for purposes of Connecticut’s Workers’ Compensation Act. General Statutes § 31-275 et seq. We affirm the decision of the review board.

The facts necessary to the resolution of this appeal may be summarized as follows. From 1983 until his death in May, 1985, the decedent provided services to the defendant Mobil Shipping and Transportation Company. Through several independent consulting firms, including Richard Chute II and Associates, the decedent contracted with Mobil and provided services as a marine engineer. The various consulting firms with which the decedent was associated billed Mobil on a per diem basis. Federal income tax returns filed jointly by the decedent and his wife, the plaintiff, indicated that in the years 1983 through 1985, the decedent, a marine engineer, was doing business as Richard Chute II and Associates.

In the course of his relationship with Mobil, the decedent did not receive employee benefits. Mobil did not withhold federal income or social security taxes from the decedent’s compensation. While Mobil provided office space for the decedent, it did not provide him with drafting instruments and texts. Moreover, Mobil did not prohibit the decedent from providing services to other clients. Although his principal client undoubtedly was Mobil, the decedent in fact performed similar services for others.

In May, 1985, a project manager for Mobil was scheduled to give a presentation to an affiliate in London, England. Because the decedent had worked on the project, the decedent attended the presentation. Upon his return from England he rented a car in New York and proceeded in the direction of his home in Connecticut. On his way home, tragically, the decedent lost control of the car, struck an oncoming car, and died.

Diana C. Chute, the decedent’s widow, brought a claim for workers’ compensation benefits against Mobil. The commissioner dismissed the claim reasoning that “the decedent’s relationship with [Mobil] was that of an independent contractor, and not that of an employer and employee.” The review board affirmed the commissioner’s decision, and this appeal followed.

The plaintiff argues that the review board improperly upheld the commissioner’s determination that no contract of employment existed between the decedent and Mobil. She posits that, because the decedent was not an independent contractor but an employee of Mobil, the provisions of the Workers’ Compensation Act are applicable. We disagree.

We note at the outset that our resolution of this matter must comport with the well settled standard of review for workers’ compensation appeals. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). The compensation review [board] must review the appeal on the record and must not retry facts. Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466, 573 A.2d 770, cert. denied, 216 Conn. 804, 577 A.2d 716 (1990); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 118, 612 A.2d 82, cert. denied, 223 Conn. 920, 614 A.2d 82 (1992).” (Internal quotation marks omitted.) Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 299-300, 620 A.2d 176, cert denied, 225 Conn. 916, 623 A.2d 1024 (1993).

General Statutes § 31-284 (a) of our Workers’ Compensation Act provides in part that “[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees . . . . ” “Because only employees are entitled to compensation under the act, it is clear that coverage must arise from a contract of employment, either express or implied.” Blancato v. Feldspar Corporation, 203 Conn. 34, 38, 522 A.2d 1235 (1987).

Our courts have long recognized that independent contractors are not within the coverage of the Workers’ Compensation Act. Panaro v. Electrolux Corporation, 208 Conn. 589, 603-604, 545 A.2d 1086 (1988) (because the defendant was not an independent contractor but a fellow employee, Workers’ Compensation Act provided exclusive remedy for plaintiff); Bourgeois v. Cacciapuoti, 138 Conn. 317, 84 A.2d 122 (1951) (the plaintiff was an independent contractor and thus not entitled to workers’ compensation). “The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact. ...” (Citations omitted; internal quotation marks omitted.) Latimer v. Administrator, 216 Conn. 237, 249, 579 A.2d 497 (1990). “ ‘The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.’ ” Id., 248, quoting Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 (1940); see also Panaro v. Electrolux Corporation, supra, 604; White Oak Corporation v. Department of Consumer Protection, 12 Conn. App. 251, 255, 530 A.2d 641 (1987). For purposes of workers’ compensation, an independent contractor is defined as “one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. ...” (Citations omitted; internal quotation marks omitted.) Spring v. Constantino, 168 Conn. 563, 573, 362 A.2d 871 (1975); Panaro v. Electrolux Corporation, supra.

In this case, the commissioner found that Mobil had no right to control or direct the decedent’s work. On this basis, the commissioner concluded that the decedent was an independent contractor and dismissed the plaintiff’s action. We are satisfied that the subordinate facts amply support the commissioner’s finding.

The decedent performed services as a consultant while associated with several independent consulting firms. He drew on his highly specialized background and utilized much of his own equipment to formulate his own feasibility studies and stability calculations. In this capacity, the decedent principally advised Mobil. Nothing in his agreement with Mobil, however, precluded the decedent from engaging in business with other clients. Moreover, the decedent held himself out as an independent contractor, using a separate letterhead and doing business under various firm names, none of which included that of Mobil.

In light of the foregoing, we conclude that the subordinate facts support the commissioner’s determination that the decedent was an independent contractor for purposes of the Workers’ Compensation Act. It follows inescapably that the decedent was not an employee of Mobil and that the plaintiff was not entitled to benefits under the act. Because the conclusions drawn by the commissioner reflect an appropriate application of the law to the subordinate facts, the review board properly affirmed the decision of the commissioner.

The decision of the review board is affirmed.

In this opinion the other judges concurred.


author: Foti, J.

text:
    State of Connecticut v. James R. Davis
    (11603)
    Foti, Landau and Schaller, Js.

      Argued May 7
    decision released July 13, 1993

      Jacques J. Parenteau, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Peter McShane, assistant state’s attorney, and, on the brief, C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). He claims that the trial court (1) improperly failed to declare a mistrial (a) following a claim of juror misconduct and (b) after a violation of a court order on a motion in limine, and (2) improperly instructed the jury regarding (a) identification, (b) flight and consciousness of guilt, and (c) the limited purpose for which they could consider a witness’ prior inconsistent statement. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. Shortly before midnight on June 14, 1990, the defendant, wearing a ski mask and armed with a .45 caliber semiautomatic pistol, entered Dino’s Pizza in Norwich. A restaurant employee, Arthur Patsouris, was alone and about to secure the establishment for the night. The defendant, dressed in jeans and a hip length, olive green army jacket, pointed the weapon at Patsouris and told him not to “do anything stupid.” The defendant, who spoke with a southern accent, then demanded to be shown the safe. After Patsouris told him that there was no safe, the defendant took approximately $1000 from Patsouris. The money included the day’s cash receipts, as well as personal money of the victim. The defendant then asked Patsouris where he could put him. Patsouris suggested the handicapped bathroom, but, because it had to be secured from the inside, the defendant instead ordered Patsouris into a cooler. He told Patsouris he did not want him to freeze. After Patsouris said that he would be fine, the defendant stated that he would leave the cooler unlocked. He ordered Patsouris to remain in the cooler for ten minutes and threatened to come back and kill him if he called the police. After waiting three minutes, Patsouris left the cooler and called 911.

Although Patsouris could make no identification of the man who robbed him, he did describe the man as a six foot tall Caucasian with dirty blond or light brown hair.

On June 14, 1990, the defendant was living at-the Starlight Motel in Niantic with his girl friend, Dani Carlson, her two children and a friend, Sue Donadio. That evening, the defendant and Carlson went on his motorcycle to Great Oak Pizza in Norwich, where he had planned a robbery. The defendant and Carlson argued about the way he was operating the motorcycle. They went to Dino’s Pizza and turned around in the parking lot several times. Carlson got off the motorcycle and began walking along the road. The defendant drove back toward Dino’s Pizza. Sometime thereafter, the defendant drove back to Carlson and told her to get on the motorcycle. After getting on, Carlson felt bulges on both sides of the defendant’s waist that she had not felt earlier. As they left Norwich, the defendant threw something from the motorcycle.

The defendant and Carlson returned to the motel in Niantic, where the defendant removed a .45 caliber semiautomatic pistol from his coat and put it on a dresser. He then stated that he had robbed someone of $1000. The defendant told Carlson that he had argued with the victim when he had been told that there was no safe, and that he had locked the victim in a bathroom or a freezer.

The next morning the defendant told Carlson to pack. After leaving her five month old daughter with her sister, Carlson, her son and Donadio went to the bus station and boarded a bus for Florida. The defendant was with them until they boarded and then followed the bus on his motorcycle. The defendant is from Florida and speaks with a southern accent.

I

A

The defendant first claims that the trial court improperly failed to declare a mistrial sua sponte after a juror was exposed to a newspaper article that mentioned the defendant.

The pertinent facts are as follows. The jury began deliberations on Thursday, April 16,1992. On the following Monday, shortly before the court adjourned for the day, the jury sent a message to the court that it was deadlocked. Over the weekend, the defendant had attempted an escape from Somers prison. Because there had been news articles regarding the escape attempt on Tuesday, the court summoned the jurors and inquired whether any of them had “read, heard or seen anything involving any of the parties.” One juror, the foreperson, answered affirmatively. After excusing the remaining jurors, the court conducted a voir dire.

The juror stated that when she opened the New London Day, she saw a headline about an escape attempt and started to read the article. She stopped reading when she saw the defendant’s name. She added that she did not know whether the defendant had been involved in the escape because she did not read any further than his name. The trial court then advised the juror that this case had to be decided only on the evidence presented at trial and then asked her what effect, if any, the portion of the article she had read would have on her decision in this case. The following colloquy ensued:

“[Juror]: It hasn’t yet — well, let me put it this way. Discussions that we’ve had in the jury, a lot of discussions people have tried to speculate on his character or past practices and—

“[The Court]: I don’t think you have to tell us what was going on in there.
“[Juror]: —I’m a firm believer of this case is what we are looking at no matter what other circumstances there are in his life have no bearing on this particular case. So, I don’t feel that seeing his name in that-attached to that headline has anything to do with this case.
“[The Court]: Okay, so, in other words, you feel confident that you could decide this — even though, no matter what, the little bit you know about that, that would have nothing to do with this case.
“[Juror]: I don’t know enough to even think about it.
“[The Court]: What I would request that you do then is this. In your discussions with your fellow jurors on this particular case would you be able not to discuss this aspect of the situation at all? In other words, just not bring this up at all?
“[Juror]: Yes.
“[The Court]: So, that no matter what your discussions, even somebody ask you, you would not—
“[Juror]: No, it doesn’t bear on this case.
“[The Court]: —Okay. And you feel confident that you could decide the case without — irrespective of reading this portion of the article. And you wouldn’t bring that into the case at all with your fellow jurors?
“[Juror]: No.”

The court then allowed the juror to return to the deliberations. The court stated: “I’m not going to excuse her or declare a mistrial at this time.” Although defense counsel conferred with the defendant, no exception was taken and no motions or requests for further inquiry or curative instructions were made. After additional instructions, the jury deliberated and then returned its verdict.

“Due process requires that a criminal defendant be given a fair trial before an impartial jury. U.S. Const., amend XIV; Conn. Const., art. 1, § 8. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). A new trial, however, is not required every time ‘ “a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” ’ Rushen v. Spain, 464 U.S. 114, 118, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983), quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).

“The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. State v. Hancich, 200 Conn. 615, 624-25, 513 A.2d 638 (1986); State v. Gaston, 198 Conn. 490, 495-96, 503 A.2d 1157 (1986); State v. Ubaldi, 190 Conn. 559, 562, 464 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). The trial court enjoys wide discretion in deciding whether a mistrial is warranted; Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); and its evaluation as to events occurring before the jury is to be accorded the highest deference. United States v. Grasso, 600 F.2d 342, 343 (2d Cir. 1979). Every reasonable presumption will be given in favor of the trial court’s ruling; State v. Rodriguez, 10 Conn. App. 176, 179, 522 A.2d 299 (1987); because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure has prejudiced a defendant. See, e.g., United States v. Wiley, 846 F.2d 150,157 (2d Cir. 1988); State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989); State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).” State v. Harvey, 27 Conn. App. 171, 177-78, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992).

The right to a jury trial means the right to a fair trial by a panel of impartial, indifferent jurors who will decide the case solely on the basis of the evidence presented after proper instructions on the law by the court. State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992).

Whether the juror’s viewing of extrinsic material was prejudicial to a defendant depends on “the magnitude of the juror’s deviation from [her] proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict.” State v. Asherman, supra, 739. Where it appears that a juror has been exposed to prejudicial extrinsic evidence, the trial court must conduct an investigation to determine whether jury misconduct occurred, and whether there was a reasonable possibility of prejudice. State v. Migliaro, supra, 396.

The trial court conducted the necessary inquiry. Since merely reading the newspaper article was not sufficient to disqualify the juror; State v. Marra, 195 Conn. 421, 433,489 A.2d 350 (1985); the court’s inquiry was necessary to determine whether harmful prejudice appeared to have resulted from her inadvertently having seen the newspaper. The court implicitly found no prejudice. Since the question of bias did not rise beyond the realm of speculation to the realm of fact; State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983); the trial court cannot be said to have abused its discretion in ruling sua sponte that it would not declare a mistrial. It was not unreasonable for the trial court to assume that its voir dire examination would disclose any prejudice on the part of the juror; see State v. Vitale, 190 Conn. 219, 229, 460 A.2d 961 (1983); and that, in light of her assurances, the juror could decide the case fairly and impartially.

B

The defendant also argues that the trial court improperly refused to grant his motion for mistrial made during the direct examination of a state’s witness. We disagree.

The defendant filed, and the court granted, a motion in limine whereby the state’s witnesses were prohibited from referring to the defendant’s prior arrests, convictions or trials. During cross-examination of a police officer, defense counsel inquired about the date the officer had arrested the defendant in this case. The officer answered May 14, 1991. Thereafter, the state sought, through Carlson, to introduce the defendant’s gun into evidence. In laying the foundation, the state’s attorney elicited the fact that during the six months Carlson had known the defendant before the robbery, she had seen him with what he told her was a .45 caliber semiautomatic weapon. Carlson affirmed that she had seen the defendant with the same weapon on the day of the robbery. The state then asked Carlson if she had ever seen the defendant with the gun after the robbery. She answered, “Yes, in Florida.” The state asked her what she recalled about the time she saw the gun in Florida. She described how the defendant complained about rust on the gun’s safety. The state asked the witness if she recalled the date, and Carlson said June 27. The state then inquired what happened on June 27 and Carlson answered, “The police came to arrest him.”

After requesting that the jury be excused, the defendant moved for a mistrial, arguing that it was prejudicial to elicit the fact of this June, 1990 arrest when the jury already knew that the defendant had been arrested in connection with the present case in May, 1991. The court asked the state if the June, 1990 arrest had been on another matter. The state answered affirmatively, adding that the jury obviously knew the defendant had been arrested and that the question was designed to allow the jury to infer that the gun that the state intended to offer was one that the defendant had both before and after the robbery. Carlson, who was still present, then interjected that she had answered the question as she did because that was the only way she remembered the date June 27.

The trial court made a finding that the purpose of the testimony was to show why the witness remembered seeing the gun on June 27,1990. The court then denied the motion for mistrial, stating that because there had already been testimony concerning the defendant’s arrest, Carlson’s reference was not going to shock the jury or cause harm. The court further stated its intention to instruct the jurors at the appropriate time that they should draw no inference from the fact that the defendant had been arrested and that an arrest has no probative value, adding “I don’t want to do it now.” The defendant took an exception but made no request to have the witness’ remark stricken.

During Carlson’s direct examination, the parties stipulated that four receipts from the Starlight Motor Inn could be admitted into evidence. Noting that the cards indicated the room was registered to a Sara Bonita, the state asked Carlson about that name. Carlson testified that it was she and explained: “Bonita is my son’s last name. And Jimmy said to use a different last name. A different name, period. So I used Bonita. I knew that the cops were looking for Jimmy.” The defendant immediately objected and asked to have the jury excused, and the court sustained the objection. The defendant then moved to strike the testimony. The court granted the motion and, when the jury returned, instructed the panel to disregard the witness’ answer. The state’s direct examination continued. The defendant later moved for a mistrial on the ground that this remark caused irreparable prejudice. The motion was denied.

During its instructions to the jury after the close of the evidence, the trial court told the jurors that they must consider only the testimony and exhibits that were admitted into evidence. The court further reminded them that if some testimony had been given but stricken, they should not consider it because the rules of evidence “have proven to be the fairest and the most just in most occasions.” Then, in discussing the presumption of innocence, the trial court charged the jury that “nothing that you knew about [the defendant’s] past or might guess about his past should be considered by you at all.” The court also charged: “[The inf or-

mation] is not evidence of anything. It is simply a charging sheet that indicates to the defendant what he is accused of in some detail and it indicates what the state has to prove. But, it doesn’t itself prove anything. Also, there was evidence of the defendant’s arrest. Now, the evidence of arrest is also not really probative of the value of guilt in this particular matter. You have to decide that strictly on the basis of the evidence that came in during the course of the trial.” The defendant took no exception to these aspects of the jury charge.

The defendant now claims that Carlson’s two references to his dealings with the police directly impinged on his presumption of innocence and his constitutional right to a fair trial. The defendant also argues that the state cannot prove that these two references were harmless beyond a reasonable doubt.

In the absence of a clear indication to the contrary, a jury is presumed to follow the trial court’s instructions. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). As to Carlson’s first remark about the defendant’s arrest in Florida, we conclude that under the circumstances of this case the trial court’s final charge to the jury, to which the defendant made no exception, adequately addressed the improper reference. The defendant sought no curative instruction regarding the Florida arrest, nor did he earlier request to have the remark stricken. Additionally the defendant has failed to demonstrate that the admission of this statement affected the jury’s verdict. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990).

As to Carlson’s second remark, regarding the police “looking for” the defendant, the court promptly granted the defendant’s motion to strike and properly instructed the jury to disregard the remark. The defendant relies heavily on State v. Sierra, 213 Conn. 422, 426-29, 568 A.2d 448 (1990), to bolster his claim that it was “more probable than not that the erroneous action affected the result.” This reliance is misplaced, however, since in Sierra evidence of the defendant’s uncharged conduct was introduced by the state and admitted into evidence. In the present case, Carlson’s testimony that the police were pursuing the defendant was not admitted; rather, the witness volunteered this comment before any objection could be interposed. The reference was not prejudicial beyond cure, requiring an automatic mistrial, but rather falls into the category of witness remarks requiring a case-by-case analysis to determine their effect. See State v. Gary, 211 Conn. 101, 108-109, 558 A.2d 654 (1989). We are convinced that any prejudice that the defendant may have initially suffered was eliminated by the trial court’s prompt action and thorough instruction.

The trial court properly denied the defendant’s motions for a mistrial. Because the defendant has not sustained his burden of establishing that he was deprived of a fair trial, we cannot conclude that the trial court abused its discretion in not declaring a mistrial.

II

A

The defendant next claims that the trial court failed to instruct the jury adequately that identification had to be proved beyond a reasonable doubt. He contends that the court did not give a specific instruction regarding identification and the dangers inherent in eyewitness identification. The defendant did not file a request to charge, but did note his exception to the court’s failure specifically to instruct the jury that it had to find beyond a reasonable doubt that the defendant was the person who had committed the robbery.

Failure to instruct on identification does not raise an issue of constitutional magnitude. State v. Tillman, 220 Conn. 487, 501, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). To prevail on this claim, therefore, the defendant must establish that it was reasonably probable that the jury was misled by the court’s instruction. State v. Cerilli, 222 Conn. 556, 567, 610 A.2d 1130 (1992). The defendant’s theory of defense was not misidentification by the victim because eyewitness identification was not possible. His theory of defense was not inconsistent with the identification given by Carlson as to what she saw and heard. Carlson was not an eyewitness to the crime and her identification of the defendant was certain and clear as to his being the person who told her of the robbery. The testimony of the victim, corroborated by that of Carlson, convinces us that there was no reasonable probability that the jury was misled.

We have also examined the entire charge “to determine whether it is reasonably possible that the instruction misled the jury.” State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991). In doing so, wé have been careful not to “sever one part of the instruction and analyze it separately from the whole. State v. Johnson, 185 Conn. 163, 168, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983).” State v. Milardo, 224 Conn. 397, 409, 618 A.2d 1347 (1993).

Our analysis of the entire charge leads us to conclude that the jury was not misled by the trial court’s instruction. The court made it clear that the elements of each crime had to be proven beyond a reasonable doubt and, in so explaining, the court specifically addressed the defendant’s identity. In reviewing the elements of the crime of larceny, the court stated that the first element was that the defendant wrongfully took property from an owner; thereafter, the court instructed that the state had the burden of proving “beyond a reasonable doubt that the defendant committed a larceny in that he wrongfully took property from an owner, here Mr. Pat-souris.” (Emphasis added.) In summarizing the elements of the crime of robbery, the court stated: “To find the defendant guilty of this offense, you have to find that it has been proven beyond a reasonable doubt in accordance with these instructions and the information, one, that the defendant committed a larceny as that crime has been defined for you. Two, that in the course of committing the larceny the defendant threatened the immediate use of physical force against another person. Here Arthur Patsouris.” (Emphasis added.)

The court repeatedly told the jurors that, because the evidence was particularly strong that a robbery and a larceny had been committed, the central question for the jury to resolve was whether the defendant was the one who committed the crimes. These instructions can have left no doubt in the jurors’ minds that, to convict the defendant of the crimes charged, they had to be convinced beyond a reasonable doubt that the defendant was the perpetrator.

B

The defendant next claims that the trial court improperly instructed the jury that flight was strong evidence of guilt rather than evidence justifying an inference of guilt.

The court instructed as follows: “In a criminal trial it is perfectly proper to show that the defendant’s conduct after the commission of the alleged criminal act may fairly [be believed] to have been influenced by the criminal act itself. Such evidence is called consciousness of guilt and you may find that it is strong evidence that the defendant is indeed guilty. Flight is a form of circumstantial evidence [that] when considered with all other facts in the case might justify an inference of the defendant’s guilt. In this case, there was evidence that the defendant left for Florida on June 15,1990, the day after the robbery at Dino’s. The flight of a person accused of committing a crime is a circumstance which when considered together with all of the facts of the case you may conclude is strong evidence of guilt. . . . [I]t is up to you to determine whether or not the defendant did leave for Florida on June 15,1990. And if you find that he did it is up to you to draw what inferences you feel appropriate from this act that you may find to have been proven.”

Unexplained flight tends to prove a consciousness of guilt. State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). It “is a circumstance which, when considered together with all the facts of the case, may justify an inference of the accused’s guilt.” State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976). “Additionally, the state of mind that is characterized as ‘guilty consciousness’ or ‘consciousness of guilt’ is strong evidence that a defendant is indeed guilty.” State v. Moody, supra, 626.

The trial court’s charge, taken as a whole, properly informed the jury that they were to determine if, in light of all of the facts and circumstances established by the evidence, an inference of guilt should be drawn. The charge contained permissive terms such as “you may find,” “you may conclude,” “if you find,” and “it is up to you to determine,” as well as the admonition “when considered with all other facts in the case [that] might justify an inference.” The court also left it for the jury to decide the underlying fact, i.e., whether the defendant actually left for Florida on June 15, 1990, the day after the robbery. Accordingly, we find no merit to the defendant’s claim that the instruction on flight was improper.

c

Finally, the defendant contends that the trial court improperly refused to instruct the jury that it could consider a signed statement given by Carlson to a police officer in Florida for the truth of the matter asserted in it. We disagree.

The pertinent facts are as follows. Carlson testified that the defendant followed the bus that she took to Florida on the day after the robbery. The defendant introduced a signed statement of Carlson’s, given to the Florida police, that indicated that the defendant did not arrive in Florida until the day after her arrival. During the state’s voir dire and later, in response to the defendant’s cross-examination, Carlson testified repeatedly that she did not remember giving the statement. She also testified that she could not recall whether she had been warned regarding the consequences of giving false information, as indicated in a printed warning at the top of the statement. Carlson eventually recalled giving the statement and when the state questioned her regarding the inconsistency, she said that her trial testimony was true and that she remembered that the defendant followed her bus to Florida the day after the robbery.

Carlson’s statement was admitted as a prior incon-. sistent statement, but the jury was instructed that they could consider it for credibility purposes only. The court would not allow substantive use of the statement under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The court determined that in the absence of testimony from the Florida police describing the procedure used in taking the statement, this evidence lacked sufficient reliability.

The admission of prior written statements for substantive purposes is governed by our Supreme Court’s decision in State v. Whelan, supra, 753. “[T]he rationale underlying the Whelan exception to the hearsay rule is that its requirements assure reasonable reliability.” State v. Hopkins, 222 Conn. 117, 123, 609 A.2d 236 (1992). To be admissible for substantive purposes, a prior inconsistent statement must have been given under circumstances ensuring its reliability and trustworthiness. State v. Grant, 221 Conn. 93, 100, 602 A.2d 581 (1992). “It is the trial court’s responsibility to weigh the reliability of each statement on a case-by-case basis.” State v. Hopkins, supra, 126.

From our review of the record, we conclude that the trial court properly determined that Carlson’s prior statement lacked sufficient reliability to permit its admission for substantive purposes. Carlson’s inability to remember having given the statement or the circumstances under which she gave it raised the question of reliability. Even after her recollection was refreshed, Carlson could not recall whether she had been warned about giving false information. The court properly allowed the statement to be used for credibility purposes only.

The judgment is affirmed.

In this opinion the other judges concurred.

       At oral argument before this court, the defendant, through counsel, withdrew an additional claim that the trial court improperly failed to declare a mistrial on the basis of a combination of these two actions.

       The court gave the Chip Smith antideadloek charge. State v. Smith, 49 Conn. 376 (1881); State v. Pinnock, 220 Conn. 765, 795, 601 A.2d 521 (1992).

       Carlson stated: “[T]he reason why I said June 27th, is because I wanted to clearly say, yes, I saw that gun on that day. And that’s the only way I remember that day is that.”


author: Freedman, J.

text:
    Lawrence J. Pelletier, Jr. v. Warden
    (11479)
    Dupont, C. J., Daly and Freedman, Js.

      Argued April 30
    decision released July 13, 1993

      Lori Welch-Rubin, special public defender, for the appellant (petitioner).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, assistant state’s attorney, for the appellee (respondent).
   Freedman, J.

The petitioner appeals from the judgment of the trial court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the record supports his claim that the ineffective assistance of trial and appellate counsel deprived him of his constitutional right to a speedy trial. We affirm the judgment of the trial court.

On April 16, 1979, three security guards were shot to death at the Purolator Armored Car garage in Waterbury. More than $1.7 million in cash, jewelry, food stamps and checks was missing. The following day, the petitioner and others, including Donald Couture, were arrested. The petitioner was arraigned on an information charging three counts of capital felony in violation of General Statutes § 53a-54b and one count of robbery in the first degree;in violation of General Statutes § 53a-134. Pretrial bond was set at $750,000. The petitioner has remained incarcerated since his April 17, 1979 arrest.

On June 4, 1979, a grand jury was convened. On June 6,1979, the grand jury returned a true bill against the petitioner on three counts of felony murder in violation of General Statutes § 53a-54c.

On June 25,1980, the petitioner filed a pro se motion for appointment of new counsel based, in part, on his concern that trial counsel had not filed speedy trial motions as the petitioner had requested. The petitioner withdrew his motion on July 24, 1980, after counsel promised, among other things, that he would pursue the petitioner’s right to a speedy trial. No motion was ever filed by trial counsel regarding the petitioner’s constitutional right to a speedy trial.

On February 18,1981, the petitioner was sentenced to a ninety day term of imprisonment in a different judicial district for an unrelated offense. By letter dated February 23,1981, the petitioner’s trial counsel informed the petitioner that “[w]e filed speedy trial motions in all your cases which were granted by the court and the trial to be reached in the normal course.” No such motion, however, had been filed in the Purolator case.

On March 5,1981, the petitioner filed a pro se notice and request for final disposition pursuant to General Statutes § 54-82c. At an April 7,1981 hearing, the trial court brought up the subject of the petitioner’s statutory speedy trial request. Noting “lengthy motions that have been filed” and arguing that the petitioner should not “have his cake and eat it too,” the state’s attorney requested that the trial court extend the 120 day period set forth in the statute. The petitioner’s counsel objected to the state’s request. After observing that nearly 100 motions had been filed in the petitioner’s case and over 100 had been filed in the case involving his codefendant Couture, and noting that “voluminous work . . . remains to be done before the cases are ready for trial,” the court found “good cause to grant an urgently necessary and reasonable continuance” until October 1, 1981.

Jury selection for the joint trial of the petitioner and Couture began on September 29,1981. Jury selection continued on sixteen separate dates thereafter, concluding on November 5,1981. The presentation of evidence began on November 12, 1981, and ended on January 8,1982. On January 19,1982, the jury found the petitioner and Couture guilty as charged in the indictment, of all three counts of felony murder. The court subsequently sentenced the petitioner to three consecutive terms of imprisonment of twenty-five years to life, for a total effective sentence of not less than seventy-five years and not more than life.

On April 23,1985, our Supreme Court, relying on its decision in the companion case of State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), set aside the judgment and ordered a new trial because “the summation by the prosecutor . . . violated the defendant’s right to due process of law under the fourteenth amendment to the United States constitution and under article first, § 8 of the Connecticut constitution.” State v. Pelletier, 196 Conn. 32, 34, 490 A.2d 515 (1985).

After remand by our Supreme Court, the petitioner filed a motion to dismiss the indictment on double jeopardy grounds. After the court denied the motion, the petitioner appealed. On October 1,1985, our Supreme Court dismissed the petitioner’s interlocutory appeal.

On June 16,1986, the petitioner’s case was severed from that of his codefendant, Couture. On June 30, 1986, the petitioner filed a pro se motion for appointment of new counsel based, in part, on his concern that trial counsel had not pursued matters in a speedy fashion. On July 14, 1986, the court granted the motion, appointed new counsel to represent the petitioner and informed the petitioner that “[mjaybe the day after Labor Day we will begin picking the jury.” The petitioner indicated that he was satisfied with this proposed schedule.

On July 25,1986, a trial schedule was set. The Couture trial was to commence on September 3,1986, with the petitioner’s trial to commence thereafter. On August 4, and again on September 4, 1986, the petitioner’s new trial counsel was granted an extension until September 19, 1986, to file pretrial motions. On September 19, the petitioner’s counsel filed six motions.

On September 8,1986, Couture’s second trial began. On November 10,1986, a mistrial was declared in Couture’s case.

On November 12, 1986, jury selection began in the petitioner’s second trial after the court denied the petitioner’s oral motion for an indefinite continuance or, alternatively, a change of venue due to publicity from the Couture case. Jury selection continued until January 8, 1987. The presentation of evidence began on January 13,1987, and concluded on January 30,1987. On February 2, 1987, the jury found the petitioner guilty of all three counts of felony murder. The court subsequently sentenced the petitioner to a total effective term of imprisonment of seventy-five years to life. This second conviction was affirmed by our Supreme Court. State v. Pelletier, 209 Conn. 564, 552 A.2d 805 (1989).

The petitioner subsequently challenged his conviction in this habeas corpus proceeding. In his petition for a writ of habeas corpus, the petitioner claimed that he was denied the effective assistance of counsel. The petitioner claimed that trial and appellate counsel in proceedings related to his first trial failed to protect adequately his right to a speedy trial guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. The petitioner also claimed that trial and appellate counsel in proceedings related to his second trial failed to protect adequately his speedy trial rights. The petitioner elected to submit these claims to the habeas court on stipulated facts and exhibits. No testimony was elicited.

“[Ojur Supreme Court has adopted the two-pronged test for ineffectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The test requires a conclusive showing that (1) the attorney’s performance was so deficient and the errors made by counsel were so egregious that the attorney was not functioning as counsel; id., 687; and (2) there exists ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Id., 694.” Ostolaza v. Warden, 26 Conn. App. 758, 761, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). “Thus, a habeas corpus petitioner seeking to establish such ineffectiveness must prove both deficient performance and prejudice resulting therefrom.” Bunkley v. Commissioner, 222 Conn. 444, 455, 610 A.2d 598 (1992).

The habeas court did not address the question of counsel’s performance. Instead, it focused on whether the petitioner had shown a reasonable probability that the charges against him would have been dismissed for lack of a speedy trial at any stage or level of the proceedings. “A court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if it is easier to dispose of the claim on the ground of insufficient prejudice.” Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988). The habeas court confined its analysis to the prejudice prong of the Strickland inquiry in evaluating the petitioner’s claims of ineffective assistance of trial and appellate counsel in protecting his speedy trial rights. We will do the same.

“The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of [a] defendant’s constitutional right to speedy adjudication: ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated. State v. Nims, supra, 591-92.” State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983); State v. Foshay, 12 Conn. App. 1, 13-14, 530 A.2d 611 (1987). Our consideration of the facts of the present case in light of the four Barker factors leads us to conclude, as did the habeas court, that the petitioner has not met his burden of proving that, but for the performance of counsel, there exists a reasonable probability that the charges against him would have been dismissed for lack of a speedy trial at any stage or level of the proceedings.

I

Petitioner’s First Trial

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, supra, 530. The protection afforded the petitioner by the constitutional speedy trial guarantee was activated on April 17, 1979, when he was arrested. Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975); State v. Foshay, supra, 14. Voir dire examination of jurors began on September 29,1981. For speedy trial purposes, trial is said to commence when voir dire begins. United States v. Gonzalez, 671 F.2d 441, 444 (11th Cir.), cert. denied, 456 U.S. 994, 102 S. Ct. 2279, 73 L. Ed. 2d 1291 (1982); see also United States v. Fox, 788 F.2d 905 (2d Cir. 1986). The delay of nearly thirty months is certainly sufficiently long to warrant further inquiry. “[Our] Supreme Court and this court have found that similar delays, while not sufficient in themselves to establish a speedy trial violation, were sufficient to warrant inquiry into the other Barker factors. See, e.g., State v. Gasparro, [194 Conn. 96, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985)] (three and one-half years); State v. Davis, 192 Conn. 739, 474 A.2d 776 (1984) (twenty-six months); State v. Cleary, 3 Conn. App. 349, 488 A.2d 831 (1985) (thirty-six months).” State v. Almgren, 12 Conn. App. 364, 369, 530 A.2d 1089 (1987) (thirty-two months).

Application of the Barker balancing test next requires a consideration of the reasons for the delay. The petitioner claims that the delay in the commencement of his first trial was largely attributable to the failure of the court to meet its constitutional obligation to provide him with a speedy trial. Specifically, the petitioner points to the following, which he contends indicates the trial court’s indifference, if not its hostility, toward the interests of speedy justice: (1) the trial court granted the state an extension of time, for speedy trial purposes, greater than what it had requested; (2) the trial court did not resolve pending motions promptly; and (3) the trial court made certain remarks regarding the petitioner’s speedy trial rights. The state, on the other hand, contends that most, if not all, of the delay here was justifiable because it was largely attributable to “the magnitude and complexity of the case and the concomitant need for the [petitioner] to file numerous [pretrial] motions in order . . . adequately [to] prepare a defense.” We agree with the state.

The petitioner’s trial involved a prosecution of extreme complexity involving serious charges and multiple defendants. The seriousness and complexity of the criminal charges involved are appropriate considerations in evaluating the reasons for the delay. Barker v. Wingo, supra, 531; United States v. DeLuna, 763 F.2d 897, 922 (8th Cir.), cert. denied sub nom. Thomas v. United States, 474 U.S. 980, 106 S. Ct. 382, 88 L. Ed. 2d 336 (1985); see State v. Almgren, supra, 374. In this context, it is not surprising that most, if not all, of the pretrial delay was consumed by the trial court’s consideration of an extremely large number of motions, many of them filed by the petitioner. It is a valid reason for delay that a reasonable amount of time was taken to rule on the petitioner’s numerous pretrial motions. United States v. Jones, 524 F.2d 834, 850 (D.C. Cir. 1975); United States v. Auerbach, 420 F.2d 921, 924 (5th Cir. 1969), cert. denied, 399 U.S. 905, 90 S. Ct. 2195, 26 L. Ed. 2d 560 (1970); see also State v. Brown, 172 Conn. 531, 538, 375 A.2d 1024, cert. denied, 343 U.S. 847, 98 S. Ct. 153, 54 L. Ed. 2d 114 (1977). In evaluating the trial court’s pretrial actions, we are mindful that “in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.” United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966). Neither the trial court’s extension of time granted to the state in April, 1981, nor the time involved in its consideration of pending motions or its remarks on the record indicates to us anything that suggests that it did not take seriously its obligation to move the petitioner’s case to trial. Consequently, because there is nothing in the record to suggest that the petitioner’s first trial did not proceed with anything but “orderly expedition”; Smith v. United States, 360 U.S. 1, 10, 79 S. Ct. 991, 3 L. Ed. 2d 1041 (1959); this factor does not weigh in favor of the petitioner.

Our consideration of the third Barker factor, namely, whether the petitioner vigorously asserted his constitutional right to a speedy trial, cannot logically be separated from the fact that the petitioner claims that counsel’s failure to make his speedy trial demand known to the court amounted to the ineffective assistance of counsel. Cf. State v. Milton, 26 Conn. App. 698, 714-15, 603 A.2d 750, appeal dismissed, 224 Conn. 163, 617 A.2d 460 (1992). Notwithstanding this impediment to our full consideration of this factor, there is sufficient information in the record from which it may be concluded that the petitioner had requested and legitimately expected that counsel was pursuing enforcement of his constitutional rights to a speedy trial. Consequently, for purposes of our analysis, we consider this factor to weigh in favor of the petitioner.

The final Barker factor that we must consider is prejudice caused by the delay. Our Supreme Court has observed that “the linchpin of the speedy trial claim is a showing of prejudice . . . .” State v. Lloyd, supra, 209. Prejudice may be actual or presumed; a showing of actual prejudice may not be required at all where other factors weigh heavily against the state. State v. Flowers, 198 Conn. 542, 551-52, 503 A.2d 1172 (1986); State v. Almgren, supra, 373. Because the first three factors do not weigh strongly in the petitioner’s favor, he is not excused from the requirement of showing prejudice. State v. L’Heureux, 166 Conn. 312, 320, 348 A.2d 578 (1974); State v. Foshay, supra, 16.

Prejudice in the context of a speedy trial claim “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. [The United States Supreme Court] has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; (iii) to limit the possibility that the defense will be impaired.” Barker v. Wingo, supra, 532. Of these, the Supreme Court has pointed out, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.

The petitioner, however, focuses his claim on only the first two types of prejudice implicated by pretrial delay. He claims that the conditions of his pretrial incarceration and the accompanying limit on his ability to communicate with family and friends who may have been able to render assistance and offer comfort, as well as the uncertainty of when and how the charges against him would be resolved, all establish sufficient prejudice to tilt this factor heavily in his favor. His claim of prejudice, however, is not sufficiently grave to rise to the level of a constitutional violation when considered with the other Barker factors. “While prejudice in the nature of that asserted here is unfortunately present in every case of pretrial delay, general claims of anxiety are thought insufficient to invoke what has been termed ‘the unsatisfactorily severe remedy of dismissal.’ ...” (Citations omitted.) State v. Flowers, supra, 553; State v. Foshay, supra, 16-17; compare United States v. Simmons, 536 F.2d 827, 831-32 (9th Cir.), cert. denied, 429 U.S. 854, 97 S. Ct. 148, 50 L. Ed. 2d 130 (1976) (nothing in record that distinguished emotional strain experienced by defendant from that of other criminal defendants) with United States v. Dreyer, 533 F.2d 112, 116-17 (3d Cir. 1976) (record contained evidence to support claim of grave personal prejudice due to pretrial delay).

The application of the principles of Barker v. Wingo, supra, to the facts and circumstances surrounding the petitioner’s first trial, therefore, leads us to the conclusion that, even if trial and appellate counsel had pursued the petitioner’s speedy trial rights, the charges against him would not have been dismissed. Accordingly, his claim of ineffective assistance of trial and appellate counsel with respect to that proceeding must fail.

II

Petitioner’s Second Trial

We turn now to an application of the Barker factors in the context of the petitioner’s second trial. The petitioner was granted a new trial on April 23, 1985, and was not retried until November 12,1986. This eighteen month period was certainly sufficiently long to warrant inquiry into the other Barker factors. See State v. Brown, supra, 536; State v. Foshay, supra, 14.

The petitioner correctly points out that there were more than seven years between his arrest and his second trial. We must, therefore, determine whether the time between his arrest and the reversal of his first conviction should also be factored into our speedy trial analysis regarding his second trial.

Because the constitutional right to a speedy trial is intended to prevent delay that is “purposeful or oppressive”; Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); the reason for the additional delay due to the necessity of a retrial is critical to our resolution of this inquiry. Because we have already concluded that there is nothing in the record to suggest that the petitioner’s first trial did not proceed with anything but orderly expedition, it necessarily follows, in our view, that the period between the petitioner’s arrest and his first conviction should not be counted against the state in examining the delay incident to the petitioner’s second trial, unless the trial error that necessitated the second trial occurred for the purpose of delay. See United States v. Ewell, supra, 120-23 (no oppressive or culpable governmental conduct inhering in facts surrounding retrial of defendant); cf. United States v. Jackson, 508 F.2d 1001, 1005 (7th Cir. 1975) (interlocutory appeal by prosecution is generally a valid reason for delay, provided it has not been taken “in bad faith or for the sole purpose of delay”). Although the petitioner, in his brief, draws our attention to “the prosecutor’s deliberately inflammatory and improper summation during the petitioner’s first trial”; see footnote 6, supra; there is nothing in the record to suggest that the prosecutorial misconduct that deprived the petitioner of a fair trial in that first prosecution was in any way motivated by a desire to cause additional delay or otherwise impair the petitioner’s speedy trial rights. Under these circumstances, we confine our analysis of the delay incident to the petitioner’s second trial to an application of the Barker factors to the period of time following the reversal of his first conviction.

Barker therefore requires that we next consider the reason for the delay in bringing the petitioner to trial a second time. The eighteen month delay after remand for a new trial can be divided into three segments, each of which has a different cause. The period of delay, from May 7 to October 1, 1985, is attributable to the petitioner’s motion to dismiss on double jeopardy grounds and his interlocutory appeal from the denial of that motion, which appeal was ultimately dismissed by our Supreme Court. This period of delay is therefore attributable to the petitioner. See United States v. Loud Hawk, 474 U.S. 302, 316-17, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986); United States v. Auerbach, supra. The next period of delay, from October 1,1985, to June 30, 1986, is not as easily explained. The docket sheet shows no activity in either the petitioner’s case or Couture’s case during this period until June 11,1986, when Couture filed a motion to sever the trial of the two cases. Neither the petitioner nor the respondent has offered an explanation for the delay during this period of almost nine months. Ultimate responsibility for such unexplained delay, however, must rest with the government rather than with the petitioner because it is the government’s affirmative obligation to bring the matter to trial promptly. See Barker v. Wingo, supra, 531; United States v. New Buffalo Amusement Corporation, 600 F.2d 368, 377-78 (2d Cir. 1979); United States v. Mann, 291 F. Sup. 268, 274-75 (S.D.N.Y. 1968); State v. Davis, 192 Conn. 739, 742-43, 474 A.2d 776 (1984). The final period of delay, from June 30 to November 12, 1986, when the petitioner’s second trial commenced, is attributable to the appointment of new counsel for the petitioner at his request, to additional pretrial motions filed by new counsel and to the trial of Couture following severance. Each of these is a valid reason for pretrial delay. See United States v. Jones, supra; United States ex rel. Stukes v. Shovlin, 329 F. Sup. 911, 917-18 (E.D. Pa. 1971), aff’d, 464 F.2d 1211 (3d Cir. 1972); State v. Mooney, 218 Conn. 85, 118-20, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). On the whole, the delay incident to the petitioner’s second trial presents a mixture of valid reasons, along with a period of time for which no explanation appears. For this reason, the second Barker factor should weigh slightly in the petitioner’s favor.

As noted above, our consideration of the third Barker factor, namely, whether the petitioner vigorously asserted his constitutional right to a speedy trial, cannot logically be separated from the fact that the petitioner claims that counsel’s failure to assert his speedy trial right amounted to the ineffective assistance of counsel. As was the case with his first trial, there is sufficient information in the record for us to conclude that the petitioner apprised the court in June, 1986, of his concerns regarding the speed with which his case was proceeding toward retrial. This, along with his previous speedy trial requests, pushes this factor to weigh in favor of the petitioner.

Although the first three Barker factors weigh more strongly in the petitioner’s favor with regard to a speedy trial claim upon retrial than they did with regard to such a claim during his first trial, they do not weigh so strongly as to excuse him from the requirement of showing prejudice. See State v. Mooney, supra; State v. L’Heureux, supra; State v. Foshay, supra. The habeas court correctly concluded that this is not a case like State v. Almgren, supra, 373-74, where the state’s inexcusable misconduct required the dismissal of charges on speedy trial grounds notwithstanding the lack of an affirmative showing of actual prejudice. Under the circumstances of this case, by contrast, the petitioner’s failure to show any actual prejudice is fatal to his assertion of a meritorious speedy trial claim.

We conclude, then, that the habeas court properly rejected the petitioner’s claim of ineffective assistance of counsel in failing to safeguard and assert his constitutional speedy trial rights during the proceedings that led to his convictions and the subsequent appellate review of those convictions.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner, throughout his brief, makes passing references to his state statutory right to a speedy trial. We treat that claim as abandoned, however, because the petitioner has not briefed and analyzed that claim separately. Garrity v. McCaskey, 223 Conn. 1, 2-3 n.3, 612 A.2d 742 (1992); State v. Ephraim, 28 Conn. App. 306, 309 n.4, 610 A.2d 1320, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992).

       The petitioner apparently had several criminal cases pending in the Superior Court at that time. Only the Purolator case, however, is the subject of this habeas action.

       Counsel’s letter responded to the petitioner’s letter of February 18,1981, requesting that speedy trial motions be filed in order to dispose of those cases within 120 days. That time frame appears in General Statutes § 54-82c. See footnote 4. Counsel’s letter provided the petitioner with a copy of § 54-82c and advised him to make a proper request for speedy disposition in conformity with the statutory requirements.

       General Statutes § 54-82c provides: “(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.
      “(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, community correctional center administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
      “(c) The warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.
      “(d) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in subsection (a) hereof shall void the request.”

       The trial court granted the continuance until October 1, for the purpose of addressing pretrial motions, notwithstanding the fact that the state’s attorney opined that August 1 would provide adequate time to prepare the case for trial. As the docket sheet shows, the additional two months were necessary to resolve other pretrial motions.
      Additionally, although the court, on September 22, 1981, extended the statutory speedy trial deadline to December 1,1981, jury selection ultimately began on September 29, two days before the expiration of its original deadline.
      Finally, we note that, by virtue of its short duration, the petitioner’s ninety day term of imprisonment would not have permitted him successfully to invoke General Statutes § 54-82c. See State v. Harris, 14 Conn. App. 244, 249-50, 540 A.2d 395 (1988).

       With respect to the claim of prosecutorial misconduct, our Supreme Court concluded that “the prosecutor’s prepared remarks were deliberate, facially improper, persistent and pronounced. . . . [I]n his opening summation the prosecutor’s character assassination of [Couture and Pelletier] so tainted the trial as to deny [them] due process of law.” State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

       In the habeas court, the petitioner also attacked his conviction on due process and equal protection grounds. With regard to these claims, the habeas court found that “the petitioner neither alleged nor proved a lack of deliberate bypass of direct appeal of these issues, and, therefore, habeas corpus review is unavailable.” The petitioner does not challenge this ruling on appeal.

       The sixth amendment to the United States constitution provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” This guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).

       Article first, § 8, of the Connecticut constitution provides in pertinent part that “in all prosecutions by indictment or information [the accused shall have a right] to a speedy, public trial . . . .”
      Although the petitioner relies on both the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state speedy trial claims. We decline to undertake such analysis. State v. Foshay, 12 Conn. App. 1, 14 n.10, 530 A.2d 611 (1987).

       Because a criminal defendant who proves his claim of the denial of his right to a speedy trial is entitled to the extreme remedy of dismissal of the charges against him; Gaines v. Manson, 194 Conn. 510, 516-17, 481 A.2d 1084 (1984); the prejudice analysis for the claim of ineffective assistance of trial counsel and for the claim of ineffective assistance of appellate counsel is the same in the context of a claimed failure to protect a defendant’s speedy trial rights: is there a reasonable probability that, but for counsel’s unprofessional errors, the charges against the petitioner would have been dismissed?

       In addition to arguing that the judgment of the habeas court should be reversed and the case remanded with direction to grant a writ of habeas corpus, the petitioner contends: “Because the habeas court made no independent examination of the first three Barker [v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)] factors, but rather focused solely on its finding of an absence of actual prejudice, the petitioner has been denied a full and fair review of his claim that ineffective assistance of counsel deprived him of his constitutional rights to a speedy trial.”
      Our reading of the habeas court’s memorandum of decision, however, leads us to the conclusion that the habeas court gave careful consideration to both tiie prejudice factor and the reason for the delay factor of the Barker inquiry. When both of these factors are resolved against the accused, it cannot be said that the pretrial delay violates the constitutional right to a speedy trial, which is intended to prevent delay that is “purposeful or oppressive.” Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); see State v. Brown, 172 Conn. 531, 538, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S. Ct. 153, 54 L. Ed. 2d 114 (1977). Consequently, we reject the petitioner’s claim that the habeas court did not fully or fairly review his claim of ineffective assistance of counsel.

       Although neither party has brought it to our attention, last year in Doggett v. United States, U.S. , 112 S. Ct. 2686,120 L. Ed. 2d 520 (1992), the United States Supreme Court refined its assessment of presumptive prejudice under the Barker inquiry. The Doggett case focused primarily on the third type of prejudice implicated by pretrial delay, namely, the impairment of the accused’s defense due to unreasonable pretrial delay. Id., 2692-94. The Doggett court found a speedy trial violation where the lag between indictment and arrest was eight and one-half years, of which six years were due to government negligence in not vigorously pursuing Doggett’s apprehension. Although Doggett failed to make any affirmative showing that the delay weakened his ability to present a defense, the court concluded that “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify”; id., 2693; and that therefore the importance of presumptive prejudice in the Barker mix increases with the length of the delay and the culpability of the government in causing the delay. Id.
      For the reasons that follow, however, we conclude that Doggett is not applicable to the circumstances of this case. First, Doggett may be limited to its peculiar facts, which involve a substantial delay between Doggett’s indictment, of which he was unaware, and his arrest, a time period during which delay is particularly likely to cause difficulty in ways that an accused may be unable to prove or, for that matter, identify. Second, Doggett’s specific focus is on a type of prejudice not claimed by the petitioner in this case. Third, even if Doggett is read broadly as an expansion of all aspects of an accused’s claim of presumptive prejudice due to pretrial delay, the facts of the delay surrounding the petitioner’s first trial, particularly with respect to the length of the delay and the reason for the delay, fall far short of those present in Doggett.

       For the reasons set forth in footnote 12, we conclude that Doggett v. United States, U.S. , 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992), is inapplicable to the circumstances surrounding the petitioner’s second trial.