author: PETERS, J.

text:
    IN RE XAVIER D.

    (AC 29991)
    Gruendel, Beach and Peters, Js.
    Argued February 6
    officially released March 31, 2009

      Jonathan D. Chomick, for the appellant (respondent mother).

      John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Jeanette A. A. Johnson, assistant attorneys general, for the appellee (petitioner).

      Marcia McCormack, for the minor child.

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

   Opinion

PETERS, J.

This appeal from the termination of parental rights does not challenge the merits of the adjudication of the mother’s capacity to care for her child. The issue instead is whether the doctrine of res judicata precluded further proceedings on the termination petition by any trial court after another trial court had granted the mother’s motion for dismissal of the petition. A well established exception to the doctrine of res judicata provides, however, that “[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case such as that upon the motion to strike . . . .” (Citation omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 98, 439 A.2d 1066 (1982); see also Signore v. Signore, 110 Conn. App. 126, 133, 954 A.2d 245 (2008) (discussing law of the case doctrine). Because we are persuaded that .Breen governs this case, we affirm the judgment of the trial court.

On May 9, 2007, the petitioner, the commissioner of children and families, filed two petitions against the respondent mother with respect to her son, Xavier D. Following up on an earlier order of temporary custody, the commissioner charged the respondent mother with neglect and sought to terminate her parental rights. The respondent moved to strike the neglect petition and to dismiss the termination petition because they were based on a charge of physical abuse of the child that was not supported by the petitioner’s specific allegations of parental misconduct. Acknowledging her error, the petitioner moved to correct the neglect petition, alleging that, as a result of a clerical oversight, she had mistakenly checked the box on the pleading form charging the respondent with physical abuse rather than the boxes charging that the child had been denied proper care and had been permitted to live under conditions, circumstances or associations injurious to his well-being. On July 19,2007, the court, Hon. William L. Wollenberg, judge trial referee, denied the petitioner’s motion for a technical correction, granted the respondent’s motion to strike the neglect petition and entered an order of temporary custody for the protection of the child. Without further discussion, it granted the respondent’s motion to dismiss the termination petition. The court’s dismissal of the termination petition is the sole basis for the respondent’s claim that the termination of her parental rights should be reversed. We disagree with the respondent.

It is undisputed that orders entered by Judge Wollenb-erg did not end the judicial proceedings with respect to Xavier. On July 27, 2007, the court, Dannehy, J., relying on the absence of a full hearing on the merits of the termination petition before Judge Wollenberg, set the dismissal aside and reinstated the petition. On May 13, 2008, after a full evidentiary hearing on the termination petition, the court, Graziani, J., found, by clear and convincing evidence, that it would be in the best interest of Xavier to terminate the respondent’s parental rights and further found, by a fair preponderance of the evidence, that it was in the best interest of Xavier to be committed to the custody of the petitioner.

The sole focus of the present appeal is the respondent’s claim that Judge Dannehy improperly reinstated the termination petition. If that appeal were to succeed, the further proceedings before Judge Graziani would, of course, also have to be set aside. The respondent has not, however, challenged the sufficiency of the evidence for the substantive findings made by Judge Graziani in terminating her parental rights. The narrow issue before us, therefore, is whether Judge Dannehy had the authority to set aside the dismissal of the termination petition by Judge Wollenberg. The applicability of the doctrines of res judicata or collateral estoppel presents a question of law, over which our review is plenary. Testa v. Geressy, 286 Conn. 291, 306, 943 A.2d 1075 (2008).

The crux of the respondent’s argument is that a trial court may vacate a prior ruling by another trial judge only if the prior ruling was interlocutory. In the respondent’s view, Judge Wollenberg’s dismissal of the termination petition was not an interlocutory order for two reasons. The order of dismissal ended the termination of parental rights proceedings, and it was immediately appealable.

Judge Dannehy rejected the respondent’s argument because it failed to distinguish between a dismissal on procedural grounds and a dismissal on the merits. We agree that this distinction is dispositive. Our Supreme Court repeatedly has held that “[application of the doctrine of res judicata requires that there be a previous judgment on the merits.” (Internal quotation marks omitted.) Listenes v. Listenes, 102 Conn. App. 642, 649, 925 A.2d 1249 (2007), citing Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988); see also In re Juvenile Appeal (83-DE), 190 Conn. 310, 313-15, 460 A.2d 1277 (1983).

In this case, it is undisputed that the only basis for Judge Wollenberg’s dismissal of the termination petition was his decision to strike the neglect petition. It is equally undisputed that that decision was based entirely on procedural grounds. Judge Wollenberg granted the motion to strike without holding an eviden-tiary hearing and without making findings of fact. There may well be close cases on whether a court has rendered a judgment on the merits, but this is not one of them.

In sum, we affirm the judgment terminating the respondent’s parental rights to her son, Xavier. The procedural ground on which the respondent relies to overturn that judgment cannot be sustained. We note, once more, that the respondent has not challenged in any respect the fairness of the proceedings that led to the findings that she had neglected her child and had failed to achieve a sufficient degree of personal rehabilitation within the meaning of General Statutes § 17a-112 0) (3) (E).

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the termination petition also cited the child’s father, he did not appear for trial and was defaulted. The mother is the only respondent for the purposes of this appeal.

       The record is not clear whether Judge Wollenberg actually dismissed the petition or whether he granted a motion to strike the petition. Giving the respondent the benefit of the doubt, we will consider the order to have been a dismissal.

       Judge Dannehy also vacated Judge Wollenberg’s dismissal of the order of temporary custody and reinstated it.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... (3) ... (E) the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHRISTOPHER HASFAL v. COMMISSIONER OF CORRECTION
    (AC 29479)
    Flynn, C. J., and Gruendel and Stoughton, Js.
    Argued February 2
    officially released March 31, 2009

      Dante R. Gallucci, special public defender, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were Gail P. Hardy, state’s attorney, and, on the brief, Erika L. Brookman, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Christopher Hasfal, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. After the court granted the petition for certification to appeal, this appeal followed. On appeal, the petitioner claims that the court improperly found that he had failed to prove that his trial counsel had rendered ineffective assistance. We affirm the judgment of the habeas court.

The following facts and procedural history provide the necessary background for the disposition of the petitioner’s appeal. The petitioner was convicted, after a jury trial, of criminal violation of a protective order in violation of General Statutes § 53a-223 (a). He appealed, and this court affirmed the judgment of conviction. State v. Hasfal, 94 Conn. App. 741, 894 A.2d 372 (2006).

In the petitioner’s direct appeal, we determined that the jury reasonably could have found the following facts. “The [petitioner] and the victim were involved in a romantic relationship that became abusive. On August 22, 2003, the victim telephoned the police following a violent incident with the [petitioner]. Thereafter, the [petitioner] was arrested. On November 4, 2003, the court issued a protective order that, inter alia, explicitly precluded the [petitioner] from entering the dwelling of the victim, coming within 100 yards of the victim or having any contact with the victim. The order also provided that the [petitioner] could return to the dwelling one time with police to retrieve his belongings. On December 15, 2003, at approximately 10:49 a.m., the [petitioner] arrived at the victim’s apartment alone, without police escort. Upon the [petitioner’s] arrival, the victim telephoned the police in what was identified as a hang-up call. Officers Robert Stapleton and George Watson of the Hartford police department were dispatched to the victim’s residence. Stapleton was the first officer to arrive. He knocked on the victim’s door, and she presented him with a copy of the protective order. The [petitioner] told Stapleton that he was at the victim’s apartment to retrieve his belongings. The police arrested the [petitioner] for violating the protective order. On September 2, 2004, the jury found the [petitioner] guilty of violating a protective order. Thereafter, the [petitioner] was sentenced to five years incarceration.” Id., 742-3.

Following his unsuccessful direct appeal, the petitioner brought this petition for a writ of habeas corpus. In his amended petition, the petitioner claimed that his trial counsel provided ineffective assistance because she failed (1) to investigate his assertion that the victim had contacted him and (2) to subpoena the victim’s telephone records, which would have revealed that she had contacted him. In its memorandum of decision, the court denied the petition for a writ of habeas corpus, concluding that the petitioner had failed to prove that counsel had been ineffective under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The court rendered judgment accordingly and granted the petition for certification to appeal. This appeal followed.

“We begin our discussion by noting that the effectiveness of an attorney’s representation of a criminal defendant is a mixed determination of law and fact that . . . requires plenary review .... The sixth amendment to the United States constitution guarantees a criminal defendant the assistance of counsel for his defense. U.S. Const., amend. VI. It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525, 903 A.2d 169 (2006).

The petitioner claims that the court improperly rejected his claim of ineffective assistance of counsel. After reviewing the record, we conclude that it is unnecessary for us to determine whether counsel's failure to conduct an investigation regarding whether the victim had contacted the petitioner or to subpoena the victim’s telephone records constituted ineffective assistance because we conclude that the petitioner cannot demonstrate that he was prejudiced by his attorney’s failure to do those things. See Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989) (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” [Internal quotation marks omitted.]).

The simple fact of this case is that the police caught the petitioner at the victim’s home. This clearly violated the terms of the protective order, which explicitly precluded the petitioner from entering the victim’s home, coming within 100 yards of the victim or having any contact with her. Although the order had provided that the petitioner could return to the dwelling to retrieve his belongings, it mandated that this was a one time return and that it had to be with a police escort. Clearly, the petitioner did not have a police escort when he went to the victim’s home.

“To prove a charge of criminal violation of a protective order, the state must demonstrate that a protective order was issued against the [petitioner] in accordance with General Statutes §§ 46b-38c (e) or 54-lk, and it must demonstrate the terms of the order and the manner in which it was violated by the [petitioner]. . . . Regarding the mental element of the crime, we have explained previously [that] a violation of a protective order does not incorporate the specific intent to harass. ... All that is necessary is a general intent that one intend to perform the activities that constitute the violation.” (Citation omitted; internal quotation marks omitted.) State v. Hasfal, supra, 94 Conn. App. 744 — 45.

In this case, even if the jury were to have heard and believed that the victim had telephoned the petitioner, that would not change the fact that he was in direct violation of the clear dictates of the protective order when he entered the victim’s home without a police escort, satisfying the general intent required to prove a violation of § 53a-223 (a). The petitioner was under a court order to stay out of that home and to have no contact with the victim. The only exception to this was to retrieve his personal belongings while accompanied by the police. Accordingly, the petitioner has failed to demonstrate a reasonable probability that the result of his trial would have been different had counsel sought to prove that the victim had telephoned him.

On the basis of our review of the record, we conclude that the court properly determined that the petitioner failed to satisfy his burden of establishing that he was denied the effective assistance of counsel.

The judgment is affirmed.


author: McLACHLAN, J. MCDONALD, J.,

text:
    STATE OF CONNECTICUT v. MADALENA SILVA
    (AC 25517)
    McLachlan, Harper and McDonald, Js.

      Argued April 24, 2008
    officially released March 31, 2009

      Kim Coleman, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Craig P. Nowak, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

This appeal is before us on remand from the Supreme Court. In State v. Silva, 285 Conn. 447, 461, 939 A.2d 581 (2008), the Supreme Court reversed our decision in State v. Silva, 93 Conn. App. 349, 889 A.2d 834 (2006), with direction to consider the remaining claim of the defendant, Madalena Silva, on appeal. The remaining claim is that the trial court improperly instructed the jury as to consciousness of guilt. We affirm the judgment of the trial court.

The facts relevant to our resolution of the remaining claim are as follows. “At about 5 p.m. on June 22, 2003, the defendant’s brother was involved in an automobile collision on North Avenue in Bridgeport. All three vehicles involved in the collision had to be towed from the scene because of major damage, and the defendant’s brother complained of neck and back pain. Officers Jason Ferri and Todd Sherback of the Bridgeport police department, who were on routine motor patrol, went to the accident scene to help the investigating officer, Officer Mark Gudauskas, complete necessary paperwork. To avoid obstructing the heavy rush hour traffic, Ferri and Sherback parked their police cruiser in a nearby private parking lot.

“As the defendant drove by the scene, Ferri and Sher-back observed her stop abruptly on the street, back up, execute a three point turn and back quickly into the parking lot where they had parked their police cruiser, nearly causing a collision. They also saw that her vehicle did not have a required front license plate. The officers told the defendant that they were going to issue an infraction ticket for unsafe backing and no front license plate. At that time, the officers asked the defendant for her driver’s license, automobile registration and insurance card. She asked to be let alone. To the officers’ second request, she replied, ‘You Bridgeport cops are all the f king same. To protect and serve? Yeah right, my ass.’ When the officers repeated their request, she stated, ‘F_k you. I ain’t giving you s_t, asshole. I’m taking my brother to the hospital, and you are not f_king stopping me.’ She was loud and belligerent, stamping her foot, and a crowd of twenty-five to thirty people gathered. At that time, the officers did not issue the infraction ticket because the defendant became very loud and angry when asked for her registration. At some unknown time, however, the officers did issue an infraction ticket.

“Fern and Sherback decided to arrest the defendant for breach of the peace and interfering with an officer after her belligerent responses to their requests. The defendant’s mother, who was present with the defendant’s father, began to interfere with the officers’ investigation by stating that her daughter had done nothing wrong. Because of this, the defendant was not arrested. At that time, as the officers tried to talk to the defendant’s mother, the defendant immediately ran into the street, entered a vehicle and drove away, leaving her automobile in the parking lot. Ferri had told the defendant not to leave the scene and then asked the defendant’s mother to use her cellular telephone to call the defendant. The defendant’s mother explained to the officer that the defendant was bringing her brother to a hospital. After speaking with the defendant, her mother told the officers that the defendant would return after she went to the hospital.

“The officers waited for one-half hour and conferred with their supervisor, Sergeant Stephen Lougal, whom they called to explain that they intended to arrest the defendant. They also wanted Lougal to speak to the defendant’s mother about the mother’s complaint that her son had not received medical assistance. The officers then went to the nearer of the two hospitals in Bridgeport. They located the defendant at the emergency room and arrested her for breach of the peace and interfering with an officer. When the officers approached her, the defendant stated to them, ‘Not you assholes again,’ and told her friend the officers were coming for her.” State v. Silva, supra, 93 Conn. App. 352-54.

“The state charged the defendant in an amended information with two counts of interfering with a police officer and two counts of breach of the peace. The first count of interference with a police officer charged that the defendant did so by saying to [the officer] when requested to produce [her] license, registration and insurance information during a motor vehicle stop, F_k you. I ain’t giving you s_t, asshole .... The second count charged the defendant with interfering with an officer by running from [the officer] and fleeing on foot across North Avenue and entering the driver’s side of an unidentified green vehicle which left the scene at a high rate of speed, after being instructed by [the officer] not to leave the scene . . . .” (Internal quotation marks omitted.) Id., 351.

The court rendered judgment of conviction, after a jury trial, of two counts of interfering with an officer in violation of General Statutes (Rev. to 2003) § 53a-167a. This appeal followed.

The defendant claims that the court improperly charged the jury with regard to consciousness of guilt. Specifically, the defendant claims that the instruction was improper because (1) it was imbalanced without a reference to her alleged innocent explanation for leaving the scene and (2) only unexplained flight may constitute consciousness of guilt. We disagree.

The state based its request for a consciousness of guilt instruction on the defendant’s flight from the scene and a subsequent statement that she made. Ferri testified that he and Sherback “instructed [the defendant] not to leave the scene.” Sherback testified that when the defendant’s parents arrived, she “immediately darted across [the street] . . . hopped into a small green vehicle and . . . took off . . . .” The defendant also testified that she observed an officer look at her before she crossed the street, point at her and state, “you’re not going anywhere . . . .” The defendant testified that she did not respond to the officer but “proceeded to cross the street . . . walked over to [her mother’s] car and got in and took [her brother to the hospital]. ” The defendant’s mother testified that the defendant left with her brother more than twenty minutes after the accident had happened and that at no point did the mother ever consider calling an ambulance because “[t]here was enough of us there, and there was really no reason

The statement at issue was made after the officers arrived at the hospital to arrest the defendant. Maryann Lee, an acquaintance of the defendant, was called as a witness by the defendant and testified that Lee saw two police officers approaching and stated, “I think there’s two police officers walking toward you.” Lee testified that the defendant replied, “well, I think they’re coming for me . . . .” Lee further testified that the defendant “looked at [the two officers], and all she said was, I have to go in and tell my father or talk to my father. Something like that.”

On the basis of these two issues, the state requested that the court charge the jury on consciousness of guilt. The defendant objected, arguing that her conduct was not indicative of guilt. Over the defendant’s objection, the court instructed the jury regarding consciousness of guilt. The court stated: “In any criminal trial, it is permissible for the state to show that conduct or statements made by a defendant . . . after the time of the alleged offense may fairly have been influenced by the criminal act. That is, the conduct or statements show a consciousness of guilt. It does not raise a legal presumption of guilt but is to be given the weight to which the jury thinks it is entitled under the circumstances shown. It is up to you as judges of the facts to decide whether the statements or conduct of the defendant reflect consciousness of guilt and to consider such in your deliberations in conformity with the instructions.”

I

First, the defendant claims that the instruction was improper because the court failed to present the jury with the specific evidence that it could consider indicative of consciousness of guilt and the evidence that would supply an innocent explanation.

As a preliminary matter, we must determine whether the defendant preserved her claim for appellate review. The state requested a jury instruction regarding consciousness of guilt on the bases of evidence that the defendant ran from the scene after the police directed her to stay and her statement to a friend that the police were coming for her. The defendant preserved her objection to the inclusion of a consciousness of guilt charge by arguing that there were innocent explanations for her actions. The defendant argues that because she objected to the instruction’s inclusion, she also preserved her argument that her innocent actions should have been included in the charge. The state argues that the defendant did not preserve her claim because she failed to object to the charge on those grounds and failed to take an exception following the charge. We agree with the state.

Our Supreme Court has stated: “It is well settled . . . that a party may preserve for appeal a claim that an instruction, which was proper to give, was nonetheless defective either by: (1) submitting a written request to charge covering the matter; or (2) taking an exception to the charge as given. . . . Moreover, the submission of a request to charge covering the matter at issue preserves a claim that the trial court improperly failed to give an instruction on that matter. ... In each of these instances, the trial court has been put on notice and afforded a timely opportunity to remedy the error. ... It does not follow, however, that a request to charge addressed to the subject matter generally, but which omits an instruction on a specific component, preserves a claim that the trial court’s instruction regarding that component was defective.” (Emphasis in original; internal quotation marks omitted.) State v. Gonzalez, 106 Conn. App. 238, 244, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008).

The defendant in this case did not object to the specific contents of the charge or request that the court marshal the evidence for the jury. Following the charge, defense counsel indicated that she had no objection concerning the instruction. The discussion of an instruction prior to the charge does not preserve all aspects of the issue for review. Id., 245. We must therefore conclude that the defendant failed to preserve the claim that her innocent explanations should have been included in the consciousness of guilt instruction.

II

The defendant next claims that the court improperly charged the jury with regard to consciousness of guilt because she had an innocent explanation for her flight. She argues that she was taking her injured brother to the hospital emergency room and that even the arresting officers admitted that the defendant’s purpose in leaving the scene was to take her brother to the hospital. The defendant contends that there was no unexplained flight in this case and, therefore, no possible inference of consciousness of guilt.

To evaluate the defendant’s preserved claim, we begin with the applicable standard of review. A court’s instructions to a jury are reviewed under the abuse of discretion standard. “The decision whether to give an instruction on flight, as well as the content of such an instruction, if given, should be left to the sound discretion of the trial court.” State v. Hines, 243 Conn. 796, 816, 709 A.2d 522 (1998). To prevail on her claim, the defendant must establish both that the court abused its discretion and that she suffered harm as a result. See State v. Hinds, 86 Conn. App. 557, 568, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005).

Undisputed evidence that a defendant acted because of consciousness of guilt is not required before an instruction is proper. “Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous. . . . Moreover, [t]he court [is] not required to enumerate all the possible innocent explanations offered by the defendant.” (Internal quotation marks omitted.) State v. Figueroa, 257 Conn. 192, 196-97, 777 A.2d 587 (2001). “Once [relevant] evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence.” (Internal quotation marks omitted.) State v. Jimenez, 74 Conn. App. 195, 213, 810 A.2d 848 (2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003).

Ambiguity does not render a consciousness of guilt instruction improper. “If there is a reasonable view of the evidence that would support an inference that [a defendant fled] because he was guilty of the crime and wanted to evade apprehension — even for a short period of time — then the trial court is within its discretion in giving such an instruction because the fact finder would be warranted in drawing that inference.” State v. Scott, 270 Conn. 92, 105-106, 851 A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005). Our Supreme Court has stated: “[E]ven if the statement were susceptible to different interpretations, the trial court did not abuse its discretion in determining that the defendant’s assertion was relevant.” State v. Gray, 221 Conn. 713, 725, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992).

For the defendant to prevail in the present case, she would have to show that her flight from the scene of the accident and her statement to her friend at the hospital could not reasonably have supported an inference of consciousness of guilt. See State v. Hinds, supra, 86 Conn. App. 565. There was adequate evidence to support an inference that the defendant fled because she was guilty and wanted to evade apprehension. The defendant ran away from police officers who had instructed her not to leave, crossed a street, entered her mother’s car and drove away. Although the defendant presented evidence suggesting that her only motivation was to take her brother to the hospital, the jury was free to discredit her testimony and to find that her flight was motivated by her desire to evade capture. See State v. Jackson, 75 Conn. App. 578, 589, 816 A.2d 742 (2003). The defendant’s statement that the police were coming for her, especially coupled with her statement that she had to go with them, also was adequate to support an inference of consciousness of guilt. Although the defendant presented evidence that she simply assumed that the police were coming for her because they walked toward her, the jury was free to draw the reasonable inference that she knew that the police were coming for her because she was guilty of interfering with a police officer. See id.

We conclude that the court properly instructed the jury that it was to determine for itself “whether the statements or conduct of the defendant reflect consciousness of guilt . . . .” The jury was free to decide what evidence was accurate, what inferences could be drawn from that evidence and what weight to afford those inferences. Accordingly, we conclude that the court did not abuse its discretion by including a consciousness of guilt instruction in its charge to the jury.

The judgment is affirmed.

In this opinion HARPER, J., concurred.

MCDONALD, J.,

dissenting. This case concerns two counts of interfering with a Bridgeport police officer, Jason Ferri, when Fern attempted to issue an infraction ticket to the defendant, Madalena Silva, for minor motor vehicle offenses. The defendant was convicted on the first count of interfering with Ferri for telling him that she would not do so when he requested that she produce her driver’s license, automobile registration and insurance documents, and on the second count for running from Fern, and fleeing across a street and entering a motor vehicle that left the area after Ferri had told her not to leave the scene. As to the first count, the state’s evidence was that the defendant answered Ferri’s document request by unmanneredly stating that she would not do so, that she was taking her brother to a hospital and that the officers were not stopping her. As to the second count, the state’s evidence was that despite Ferri’s order to stay, the defendant immediately left in a car other than her own when her mother began arguing with Ferri that the defendant had done nothing wrong.

The court charged the jury in part: “In any criminal trial, it is permissible for the state to show that conduct or statements made by a defendant otherwise after the time of the alleged offense may fairly have been influenced by the criminal act. That is, the conduct or statements show a consciousness of guilt.” (Emphasis added.)

The state argued in its brief before us that the defendant’s conduct in fleeing the scene supported the court’s instruction. Our Supreme Court has stated: “The probative value of flight as evidence of a defendant’s guilt depends on the degree of confidence with which four inferences can be drawn: (1) from behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” (Internal quotation marks omitted.) State v. Scott, 270 Conn. 92, 105, 851 A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005). In oral argument before us, the state conceded that consciousness of guilt from flight would not apply to the second count because interfering with Ferri by leaving was in the process of being committed. Because the jury was instructed that it was free to use evidence of the defendant’s conduct, here, flight, to find consciousness of guilt of that flight, the instruction was, I would conclude, improper as to count two.

As to count one, the state argued before us at oral argument that the instruction as to the conduct, in this case, flight, was proper because the offense specified in count one was completed before the defendant left the scene. I reject that argument because there was no evidence of flight to support an inference of consciousness of guilt of the crime charged in count one.

There was no evidence that a sense of guilt over her refusal to produce documents influenced the defendant to leave the scene. To the contrary, the state’s evidence was that the defendant had already begun to leave when she refused to produce the documents. Thus, the state’s evidence established that the defendant’s previous determination to take her brother immediately to the hospital caused her to refuse the officer’s request and to leave immediately.

Also, there was no evidence that the defendant left because Ferri intended to charge her with breach of the peace and interfering with an officer, the charges for which she was on trial. There was no evidence that the officers told the defendant that she was to be arrested for breach of the peace and interfering an officer, and there was no evidence that she was arrested at the scene. The only evidence was that Ferri told the defendant that an infraction ticket was to be issued for unsafe backing and for having no front license plate on her vehicle, charges for which she was not on trial.

Moreover, flight giving rise to a finding of a guilty conscience means running away or an escape from justice. American Heritage Dictionary. Black’s Law Dictionary defines such flight as leaving a jurisdiction or concealing one’s whereabouts within a jurisdiction to avoid being brought to justice. The defendant’s conduct did not approach flight to conceal her identity or to hide her whereabouts. The undisputed evidence was that the defendant told Ferri that she was leaving to take her brother to the hospital and that Ferri had her car and her mother at the scene, that the defendant did take her brother to the hospital and that Ferri went to the nearest hospital emergency room and there arrested the defendant.

I also would reject the state’s argument because in this case the state’s evidence concerned (1) interference with one officer, Ferri; (2) one transaction made up of continuous acts of refusing to supply information as she was leaving to take her brother to the hospital and would not be stopped by the officers, and contrary to Fern’s instructions, leaving; and (3) the same offense, a violation of General Statutes § 53a-167a. See State v. D’Antonio, 274 Conn. 658, 715-17, 877 A.2d 696 (2005), citing State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 1062 (1991). I would conclude that the offense set forth in count one was not distinct from the offense in count two and was not completed before the defendant left the scene, but rather that the conduct charged in the two counts was but one distinct act. See State v. D'Antonio, supra, 717. Addressing the state’s argument, I would hold under the double jeopardy clause of the United States constitution that the state may not charge the defendant in multiple counts of interfering with one officer for the words spoken as she was leaving the scene and for leaving. See State v. Nixon, 92 Com. App. 586, 886 A.2d 475 (2005).

Accordingly, I would order a new trial as to both counts. The undisputed evidence was that the defendant’s brother’s vehicle had to be towed from the scene, the defendant’s brother complained of injuries and the defendant’s mother gave the defendant the mother’s car keys to take the brother to the hospital. The application of consciousness of guilt unfairly characterized conduct of the defendant, who was acting as a dutiful daughter and a concerned sister, and as part of a closely knit family. These family values once made our Connecticut cities, such as Bridgeport, places of freedom from crime and of opportunity. Today, many trace the cities’ fall to the loss of these values. Accordingly, in this case, I would conclude that the instruction deprived the defendant of a fair trial.

Accordingly, respectful of the majority, I dissent.

       The dissent concludes that the defendant improperly was charged in this case in violation of the double jeopardy clause of the United States constitution. Because this issue was never raised or addressed at trial, on appeal to this court or our Supreme Court or on remand, we will not consider it sua sponte.

       The court’s instruction did not marshal the evidence that the jury could consider as reflecting the defendant’s consciousness of guilt. The court did instruct the jury, however, as to the theory of consciousness of guilt and directed it to determine for itself whether the defendant’s statements or conduct reflected consciousness of guilt. Although courts are urged to act within their discretion by fairly marshaling the evidence, we have not required them to do so. See State v. Feliciano, 74 Conn. App. 391, 400, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003).

       The defendant has not requested review under the plain error doctrine; see Practice Book § 60-5; or under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will not engage in a level of review that is not requested, briefed or argued by the parties. State v. Klinger, 103 Conn. App. 163, 169, 927 A.2d 373 (2007).

       The defendant did not argue in her brief that she had an innocent explanation for her statement at the hospital. She argued only that she had an innocent explanation for her flight. The defendant did, however, raise the issue at trial and during her argument before this court. The state has not argued that the defendant has waived her objection to the consciousness of guilt charge.

       The burden rests on the defendant because consciousness of guilt claims do not involve a constitutional issue. See State v. Luster, 279 Conn. 414, 421-22, 902 A.2d 636 (2006).

       The prosecutor stated in summation at trial that the ticket for improper backing and no front license plate “might seem frivolous to some people.”

       On remand, I do not reach the merging the multiple convictions and sentences on the two counts.


author: GRUENDEL, J.

text:
    EDWARD WUCIK ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF PRESTON ET AL.
    (AC 29091)
    DiPentima, Gruendel and West, Js.

      Argued October 23, 2008
    officially released April 7, 2009

      Frank N. Eppinger, with whom was Thomas F. Collier, for the appellants (plaintiffs).

      Harry B. Heller, for the appellees (defendant Hyman Biber et al).
   Opinion

GRUENDEL, J.

The plaintiffs, Edward Wucik, Teresa Izzarelli, Chester Sajkowicz and Shirley Sajkowicz, appeal from the judgment of the Superior Court dismissing their zoning appeal from the decision of the defendant planning and zoning commission of the town of Preston (commission) for lack of subject matter jurisdiction. The plaintiffs contend that the court improperly concluded that their complaint failed to allege a factual basis for statutory aggrievement. We affirm the judgment of the Superior Court.

This appeal concerns a campground in Preston known as Strawberry Park. As we noted in Miskimen v. Biber, 85 Conn. App. 615, 619, 858 A.2d 806 (2004), cert. denied, 272 Conn. 916, 866 A.2d 1287 (2005), “Strawberry Park is a campground located on the east side of Pierce Road in the town of Preston. The defendants received a special exception for a ‘recreation campground’ from the zoning board of appeals in 1973. In 1974, the campground opened with 104 campsites. It currently has 480 campsites.” On January 28, 2005, the defendant Strawberry Park Resort Campground, Inc., filed an application with the commission for a special exception regarding a seventy-six acre parcel of land owned by the defendant Volin, LLC, and situated in a R-80 zone. The application sought to expand the existing special exception for Strawberry Park. A related application for a site plan was filed with the commission days later.

The commission held a public hearing on the special exception and site plan applications on April 5, 2005, and May 3, 2005. The commission thereafter approved the applications subject to certain conditions and published notice of that decision on May 12,2005. From that determination, the plaintiffs appealed to the Superior Court. In their complaint, the plaintiffs alleged: “The [pjlaintiffs are statutorily or classically aggrieved by the decisions of the [commission].” In their subsequent brief in opposition to that appeal, filed on June 30,2006, the defendants asserted that the court “is deprived of subject matter jurisdiction to hear the instant appeal as a result of the failure of the plaintiffs to allege a factual basis for aggrievement in their appeal to this court.”

On May 1,2007, the parties appeared before the court. At the outset of that proceeding, the court informed the parties that it did not have the file or the respective briefs of the parties before it; hence, it was unaware of the defendants’ subject matter jurisdiction claim. After counsel identified themselves, counsel for the plaintiffs sought to call Chester Sajkowicz to establish aggrievement. At that moment, counsel for the defendants acquainted the court with their jurisdictional claim and objected to the introduction of evidence concerning the factual basis for aggrievement. Counsel for the commission then voiced the same objection. After noting those objections, the court stated that it would allow the plaintiffs “to proceed with the evidence . . . I think that’s the prudent thing to do. Then, I will address [the aggrievement] issue after we find out what they have to say.” The court heard testimony from Wucik and Chester Sajkowicz and argument from counsel. During his argument, counsel for the defendants stated that aggrievement “must be both [pleaded] and proven, and the absence of a factual pleading makes that issue fatally defective because, as this court is well aware, aggrievement is a matter of jurisdiction with this court.” In its May 22, 2007 memorandum of decision, the court concluded that the plaintiffs’ complaint failed to allege the requisite factual basis of aggrievement. As a result, it dismissed the appeal for lack of subject matter jurisdiction. From that judgment, the plaintiffs appeal.

It is well established that “[p]leading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiffs appeal. . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved. . . . Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Citations omitted; internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664-65, 899 A.2d 26 (2006). Although aggrievement presents a question of fact for the trial court that is reviewed under the clearly erroneous standard; id., 665; interpretation of pleadings “is always a question of law for the court” over which our review is plenary. (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 573 n.12, 864 A.2d 1 (2005).

Furthermore, because aggrievement implicates subject matter jurisdiction, “[a] possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised.” (Internal quotation marks omitted.) Stauton v. Planning & Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). As we recently observed, “ [i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court. . . . Our Supreme Court has explained that once raised, either by a party or by the court itself, the question [of subject matter jurisdiction] must be answered before the court may decide the case.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Fennelly v. Norton, 103 Conn. App. 125, 136-37, 931 A.2d 269, cert. denied, 284 Conn. 918,931 A.2d 936 (2007); see also Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) (once motion to dismiss for lack of subject matter jurisdiction filed, trial court “obligated” to scrutinize initial complaint and determine whether subject matter jurisdiction was lacking before considering motion to amend); Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (“as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made”); W. Horton & K. Knox, 1 Connecticut Practice Series: Practice Book Annotated (4th Ed. 1998) § 10-30, authors’ comments, p. 355 (“[e]verything else screeches to a halt whenever a non-frivolous jurisdictional claim is asserted”).

On June 30, 2006, the defendants asserted that the court lacked subject matter jurisdiction “as a result of the failure of the plaintiffs to allege a factual basis for aggrievement in their appeal to [the] court.” At that moment, the court was required to decide that jurisdictional question before proceeding further.

The pertinent portion of the plaintiffs’ complaint alleged that “[t]he plaintiffs are statutorily or classically aggrieved by the decisions of the [commission].” Although the plaintiffs on appeal claim that they alleged that they were “statutorily aggrieved in accordance with General Statutes § 8-8 (a) (1),” the complaint never references that statute, in contravention of Practice Book § 10-3 (a). Our Supreme Court has held that “[t]he mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient.” (Emphasis added; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 542-43, 833 A.2d 883 (2003); see also Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978); Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 483, 338 A.2d 497 (1973); Maloney v. Taplin, 154 Conn. 247, 250, 224 A.2d 731 (1966); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 537 (“[i]t is necessary to present specific facts demonstrating the claimed aggrievement”). Likewise, our Supreme Court has held that a complaint that “alleges only that the plaintiffs are aggrieved as owners of real property in the immediate vicinity” of property subject to a land use agency determination is insufficient under § 8-8. Hickey v. New London, 153 Conn. 35, 37, 213 A.2d 308 (1965); see also Hendel’s Investors Co. v. Zoning Board of Appeals, 62 Conn. App. 263, 274-75, 771 A.2d 182 (2001) (conclusory statements averring that “[pjlaintiff is aggrieved by the decision of the [defendant” and “[pjlaintiff has a specific personal and legal property interest which was specifically and injuriously affected by the action of the [d] efendant” insufficient as a matter of law because not accompanied by adequate factual allegations). Bound by that precedent, we agree with the trial court that the plaintiffs’ allegation of aggrievement “is a mere conclusory statement devoid of any specific factual allegations.”

Although the court permitted the plaintiffs to present evidence at the May 1, 2007 hearing, it did so only in light of the clerical anomaly that prevented the court from reviewing the subject matter jurisdiction claim at that time. At the outset of that proceeding, the court expressly conditioned its consideration of the evidence presented by the plaintiffs on its determination of that jurisdictional objection. Moreover, this is not a case in which an evidentiary hearing on a jurisdictional claim was required, as there was no factual dispute between the parties due to the plaintiffs’ failure to plead any allegations as to the particular nature of the aggrievement. Although a hearing may be held when resolution of a disputed fact is necessary to determine the jurisdiction of the court; see, e.g., Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007); Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991); “in the absence of any disputed issues of fact pertaining to jurisdiction,” a hearing is unnecessary. Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994). We also are mindful that in the context of zoning disputes, our Supreme Court has stated that “[bjecause aggrievement is a jurisdictional question, and therefore, the ‘key to access to judicial review,’ the standard for aggrievement is rather strict. T. Tondro, [supra] p. 535.” Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 257, 773 A.2d 300 (2001). The court, therefore, was not compelled to consider the evidence conditionally presented at the May 1, 2007 hearing in determining whether it had subject matter jurisdiction over the present dispute.

We agree with the court that the plaintiffs failed to allege the requisite factual basis for statutory aggrievement. Accordingly, the court properly dismissed the appeal for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants in the complaint were Hyman Biber, Strawberry Park Resort Campground, Inc., doing business as Strawberry Park, and Volin, LLC. Those defendants have submitted a brief in this appeal, which the commission has agreed to adopt. We refer in this opinion to Biber, Strawberry Park Resort Campgrounds, Inc., and Volin, LLC, as the defendants.

       That the defendants raised their subject matter jurisdiction objection in their brief in opposition to the plaintiffs’ appeal rather than in a motion to dismiss is of no consequence. It is fundamental that the issue of subject matter jurisdiction may be raised at any time and in any manner. Practice Book § 10-33; see, e.g., MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 390, 926 A.2d 1035 (2007); Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).

       The court permitted counsel for the plaintiffs to introduce into evidence certified copies of deeds pertaining to the plaintiffs’ properties and a geographic information system map “[s]ubject to the objection previously entered.”

       Only statutory aggrievement is at issue in this certified appeal.

       Practice Book § 10-3 (a) provides: “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.”