State v. Holley ( 2017 )

 STATE OF CONNECTICUT v. EVER LEE HOLLEY
(AC 38115)
Alvord, Sheldon and Mullins, Js.
Syllabus
Convicted of the crime of possession of narcotics with intent to sell by a
person who is not drug-dependent, the defendant appealed to this court,
claiming that the trial court improperly instructed the jury on reasonable
doubt. Specifically, he claimed that the court improperly instructed the
jury that reasonable doubt ‘‘is such a doubt as, in serious affairs that
concern you, you will heed; that is, such a doubt as would cause reason-
able men and women to hesitate to act upon it in matters of importance.’’
He also claimed that the trial court improperly denied his motion to
suppress certain evidence that had been seized by police during a war-
rantless search of his residence. The defendant, who was on parole,
claimed that a warrantless search of a parolee’s residence that fails
to comply with certain administrative directives of the Department of
Correction is unconstitutional, even if the parolee had previously exe-
cuted an agreement authorizing such searches as a condition of his
parole. The trial court rejected that argument and also denied the motion
to suppress on the ground that the defendant had orally consented to
the search. Held:
1. The defendant’s claim that the phrase ‘‘upon it’’ in the court’s instruction
concerning reasonable doubt effectively diluted the state’s burden of
proof was unavailing; our Supreme Court repeatedly has upheld the use
of instructions employing the very language challenged by the defendant,
and this court, as an intermediate appellate court, was bound by that
controlling precedent.
2. The defendant could not prevail on his claim that the jury was misled by
the trial court’s instructions regarding proof beyond a reasonable doubt,
which was based on his claim that the trial court improperly orally
instructed the jury that reasonable doubt is such doubt as ‘‘you will
heed,’’ rather than ‘‘you would heed,’’ as was stated in the court’s written
instructions; the defendant having failed to object to the discrepancy
between the written and oral instructions, his claim was unpreserved,
and he failed to demonstrate the existence of a constitutional violation
that deprived him of a fair trial pursuant to the third prong of the test
set forth in State v. Golding (231 Conn. 233), as there was no reasonable
possibility that the jury was confused by the court’s use of ‘‘will’’ instead
of ‘‘would’’ when the jury had before it the written instructions, and both
sets of charges adequately explained the principles governing burden of
proof, the presumption of innocence and reasonable doubt.
3. This court dismissed as moot the defendant’s claim that the trial court
improperly denied his motion to suppress evidence that was seized in
a warrantless search of his residence; there was no practical relief that
could be afforded to the defendant with respect to his claim that his
constitutional rights were violated when the police did not follow certain
administrative regulations concerning searches of a parolee’s residence,
as the trial court also determined that the defendant had orally consented
to the search of his residence, which was an independent basis that
supported the trial court’s decision to deny the motion to suppress that
was not challenged by the defendant on appeal.
Argued February 6—officially released July 11, 2017
(Appeal from Superior Court, judicial district of
Middlesex, Diana, J.)
Procedural History
Two part information charging the defendant, in the
first part, with the crime of possession of narcotics with
intent to sell, and, in the second part, with being a
subsequent offender, brought to the Superior Court in
the judicial district of Middlesex, where the court,
Diana, J., denied the defendant’s motion to suppress
certain evidence; thereafter, the first part of the infor-
mation was tried to the jury; verdict of guilty; subse-
quently, the second part of the information was tried
to the jury; verdict of guilty; thereafter, the court
granted the defendant’s motion for a judgment of acquit-
tal on the second part of the information and rendered
judgment in accordance with the verdict as to the first
part of the information, and the defendant appealed to
this court. Appeal dismissed in part; affirmed.
Jeremiah Donovan, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, was Peter A. McShane, state’s attor-
ney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Ever Lee1 Holley, appeals
from the judgment of conviction, rendered after a jury
trial, of possession of a narcotic substance with intent
to sell by a person who is not drug-dependent in viola-
tion of General Statutes § 21a-278 (b). On appeal, the
defendant claims that the trial court improperly (1)
instructed the jury on reasonable doubt and (2) denied
his motion to suppress evidence. We reject both of
these claims and, therefore, affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. On December 11, 2012, the narcotics unit of the
Middletown Police Department executed a search and
seizure warrant on the residence of Rachel Sweeney at
165 South Main Street in Middletown. Sweeney was
arrested on drug possession charges as a result of
the search.
At the time the warrant was executed, the defendant
and another person were sitting in a car parked in the
area behind 165 South Main Street. One officer detained
the defendant while others searched Sweeney’s resi-
dence. After police completed the search, David Skar-
zynski, a parole officer who had assisted the
Middletown officers in executing the warrant, was
alerted to the defendant’s presence outside the resi-
dence. Skarzynski recognized the defendant as a
parolee who previously had been under his supervision.
Skarzynski asked the defendant for permission to
search his residence at 29 Avon Court in Middletown.
The defendant consented.
Skarzynski and officers with the narcotics unit trav-
eled to the defendant’s residence. Upon conducting a
search of the defendant’s bedroom, the officers recov-
ered, among other items, 16.529 grams of crack cocaine
from a locked safe located underneath the defen-
dant’s bed.
The defendant was arrested and charged with posses-
sion of a narcotic substance with the intent to sell in
violation of § 21a-278 (b). After a jury found the defen-
dant guilty of that offense,2 the court sentenced him
to ten years incarceration, five years of which were
mandatory, followed by eight years of special parole.
This appeal followed.
I
REASONABLE DOUBT INSTRUCTION
The defendant’s first claim is that part of the court’s
instruction on reasonable doubt was improper. Specifi-
cally, he argues that the court erred in describing rea-
sonable doubt as follows: ‘‘[Reasonable doubt] is such
a doubt as, in serious affairs that concern you, you will
heed; that is, such a doubt as would cause reasonable
men and women to hesitate to act upon it in matters
of importance.’’ The defendant asserts that the language
used in this part of the court’s charge was defective in
two respects. We address both of his linguistic chal-
lenges herein.
A
The gravamen of the defendant’s first challenge is that
the ‘‘insertion . . . of the prepositional phrase ‘upon it’
render[ed] the instruction nonsensical,’’ causing it to
‘‘mean the opposite of what it should.’’ He argues that
reversal is required because this part of the instruction
effectively diluted the state’s burden of proof by ‘‘mud-
dl[ing] the description of what a reasonable doubt is’’
and by failing to ‘‘impress . . . upon the [jury] the need
to reach a subjective state of near certitude of [the
defendant’s] guilt.’’ (Emphasis altered; internal quota-
tion marks omitted.)
The state responds that the defendant concedes that
our appellate courts have upheld instructions
employing the ‘‘upon it’’ language. Therefore, it con-
tends that this court, as an intermediate court, is con-
strained to following that controlling precedent. We
agree with the state.
We begin by identifying our standard of review and
outlining the relevant legal principles. ‘‘It is fundamental
that proof of guilt in a criminal case must be beyond
a reasonable doubt. . . . The [reasonable doubt con-
cept] provides concrete substance for the presumption
of innocence—that bedrock axiomatic and elementary
principle whose enforcement lies at the foundation of
the administration of our criminal law. . . . At the
same time, by impressing upon the [fact finder] the
need to reach a subjective state of near certitude of the
guilt of the accused, the [reasonable doubt] standard
symbolizes the significance that our society attaches
to the criminal sanction and thus to liberty itself. . . .
[Consequently, the defendant] in a criminal case [is]
entitled to a clear and unequivocal charge by the court
that the guilt of the [defendant] must be proved beyond
a reasonable doubt.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Jackson, 283 Conn. 111,
116–17, 925 A.2d 1060 (2007).
‘‘Because our system entrusts the jury with the pri-
mary responsibility of implementing the substantive
protections promised by the reasonable doubt standard,
reasonable doubt jury instructions which appropriately
convey [the reasonable doubt concept] are critical to
the constitutionality of a conviction.’’ United States v.
Doyle, 130 F.3d 523, 535 (2d Cir. 1997). Accordingly,
‘‘[a] claim that the court’s reasonable doubt instruction
diluted the state’s burden of proof and impermissibly
burdened the defendant is of constitutional magnitude.’’
State v. Alberto M., 120 Conn. App. 104, 115, 991 A.2d
578 (2010).
‘‘A challenge to the validity of jury instructions pre-
sents a question of law over which this court has plenary
review. . . . It is well settled that jury instructions are
to be reviewed in their entirety. . . . When the chal-
lenge to a jury instruction is of constitutional magni-
tude, the standard of review is whether it is reasonably
possible that the jury [was] misled. . . . In determining
whether it was . . . reasonably possible that the jury
was misled by the trial court’s instructions, the charge
to the jury is not to be critically dissected for the pur-
pose of discovering possible inaccuracies of statement
. . . . Individual instructions also are not to be judged
in artificial isolation. . . . Instead, [t]he test to be
applied . . . is whether the charge . . . as a whole,
presents the case to the jury so that no injustice will
result.’’ (Citation omitted; internal quotation marks
omitted.) State v. Brown, 118 Conn. App. 418, 428–29,
984 A.2d 86 (2009), cert. denied, 295 Conn. 901, 988
A.2d 877 (2010).
As acknowledged by both parties, our Supreme Court
repeatedly has upheld the use of instructions that uti-
lized the very language the defendant challenges. See,
e.g., State v. Winfrey, 302 Conn. 195, 218, 24 A.3d 1218(2011) (instruction explaining that reasonable doubt is
‘‘ ‘such doubt as would cause reasonable men and
women to hesitate to act upon it in matters of impor-
tance’ ’’ not constitutionally infirm); State v. Mark R.,
300 Conn. 590, 616–17, 17 A.3d 1 (2011) (‘‘this court has
rejected virtually identical claims on multiple occa-
sions’’); State v. Johnson, 288 Conn. 236, 288–90, 951
A.2d 1257 (2008) (rejecting challenge to instruction
describing reasonable doubt as ‘‘ ‘such a doubt as would
cause reasonable [people] to hesitate to act upon it in
matters of importance’ ’’); State v. Delvalle, 250 Conn.
466, 474 n.11, 473–75, 736 A.2d 125 (1999) (same);3 see
also State v. Vazquez, 119 Conn. App. 249, 258, 259–61,
987 A.2d 1063 (2010) (not improper to instruct jury that
reasonable doubt is ‘‘ ‘doubt as would cause reasonable
men and women to hesitate to act upon it in matters
of importance’ ’’); State v. Hernandez, 91 Conn. App.
169, 178–79, 883 A.2d 1 (same), cert. denied, 276 Conn.
912, 886 A.2d 426 (2005); State v. Otero, 49 Conn. App.
459, 470–74, 715 A.2d 782 (same), cert. denied, 247
Conn. 910, 719 A.2d 905 (1998).
‘‘[A]s an intermediate court of appeal, we are unable
to overrule, reevaluate, or reexamine controlling prece-
dent of our Supreme Court. . . . As our Supreme Court
has stated: [O]nce this court has finally determined an
issue, for a lower court to reanalyze and revisit that
issue is an improper and fruitless endeavor.’’ (Internal
quotation marks omitted.) State v. Brantley, 164 Conn.
App. 459, 468, 138 A.3d 347, cert. denied, 321 Conn. 918,
136 A.3d 1276 (2016).
Accordingly, since our Supreme Court already has
determined that the challenged description of reason-
able doubt is not improper, we cannot conclude to
the contrary.
B
The defendant’s second challenge to the court’s rea-
sonable doubt instruction concerns the language used
in describing reasonable doubt as ‘‘a doubt as, in serious
affairs that concern you, you will heed.’’ (Emphasis
added.) His specific contention is that the court erred
in using the word will instead of ‘‘the subjunctive
‘would’ ’’; (emphasis in original); and that this error
impermissibly diluted the state’s burden of proof.
Although we review this unpreserved claim pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), we conclude that there is no reasonable
possibility that the challenged language misled the jury.
The following additional procedural history is rele-
vant to our resolution of the defendant’s claim. At the
time it instructed the jury, the court provided the jurors
and counsel with typewritten copies of its instructions.
The court informed the jury that it would deliver its
instructions by reading the typewritten version aloud:
‘‘As you see, I’m reading these instructions. I do that
because they were prepared in advance, and I want to
make sure that I say exactly what I intend to say. Do
not single out any sentence or individual point or
instruction in my charge and ignore the others. You are
to consider all the instructions as a whole, and consider
each, in light of all the others.’’ The jurors had copies
of the written instructions during their deliberations.
In the typewritten version of the instructions, reason-
able doubt was described, in relevant part, as a ‘‘doubt,
as in serious affairs that concern you, you would heed.’’
(Emphasis added.) However, the transcript of the trial
court proceedings indicates that the court’s oral instruc-
tion described reasonable doubt as ‘‘a doubt, as in seri-
ous affairs that concern you, you will heed.’’ The
defendant never took an exception to the court’s use
of the word ‘‘will’’ in its oral instructions.4 Also, there
is no indication in the record that the jury, the court,
or counsel noticed the discrepancy between the oral
and written instructions. Moreover, the jury did not
request clarification as to that discrepancy or on any
of the court’s instructions pertaining to reasonable
doubt and the burden of proof.
We next set forth our standard of review and the
relevant legal principles. ‘‘[U]nder Golding review, as
modified in In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015), a defendant can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis omitted; internal quota-
tion marks omitted.) State v. Polanco, 165 Conn. App.
563, 572, 140 A.3d 230, cert. denied, 322 Conn. 906,
139 A.3d 708 (2016). It is an error of constitutional
magnitude to instruct the jury on reasonable doubt in
such a manner as to dilute the state’s burden of proof.
State v. Alberto M., supra, 120 Conn. App. 115.
‘‘[I]n reviewing a constitutional challenge to the trial
court’s instruction, we must consider the jury charge
as a whole to determine whether it is reasonably possi-
ble that the instruction misled the jury. . . . The test
is whether the charge as a whole presents the case to
the jury so that no injustice will result.’’ (Emphasis
added; internal quotation marks omitted.) State v. Fra-
sier, 169 Conn. App. 500, 509, 150 A.3d 1176 (2016),
cert. denied, 324 Conn. 912, 153 A.3d 653 (2017).
Reviewing courts are especially hesitant in reversing
a conviction on the basis of an inaccuracy in a trial
court’s oral instruction if the jury was provided with
accurate written instructions. See, e.g., State v. Warren,
118 Conn. App. 456, 464, 984 A.2d 81 (2009) (no constitu-
tional violation where trial court’s oral charge suggested
written instructions should be used ‘‘only . . . as a
guide’’ because ‘‘the [written] copy of the charge itself
correctly guided the jury by stating . . . that the jury
was obligated to accept the law as provided by the
court’’ [emphasis added]), cert. denied, 294 Conn. 933,
987 A.2d 1029 (2010); United States v. Rodriguez, 651
Fed. Appx. 44, 48 (2d Cir. 2016) (‘‘In this case, there is no
indication that the jurors were confused by the court’s
misreading of the instruction. The jury was able to fol-
low along from the correct written instructions during
the oral charge, and it had access to those written
instructions during its deliberations. . . . [This] miti-
gated any risk of confusion . . . .’’); United States v.
Colman, 520 Fed. Appx. 514, 517 (9th Cir.) (‘‘a [trial]
court’s misstatement while reading instructions aloud
does not constitute reversible error if it provides proper
written jury instructions to the jury members’’), cert.
denied, U.S. , 133 S. Ct. 2817, 186 L. Ed. 2d 876(2013); United States v. Ancheta, 38 F.3d 1114, 1117
(9th Cir. 1994) (‘‘The judge provided the jury with
proper written instructions. We do not suggest that
written instructions necessarily repair an error in oral
instructions, since often oral instructions are used to
cure typographical and other errors in written instruc-
tions. Nevertheless, here there is no reason to suppose
that any juror was confused by the judge’s slip of the
tongue, and probably they understood him to say orally
what he meant to say and did say in the written instruc-
tions.’’); People v. Rodriguez, 77 Cal. App. 4th 1101,
1113, 92 Cal. Rptr. 2d 236 (2000) (‘‘It is generally pre-
sumed that the jury was guided by the written instruc-
tions. . . . The written version of jury instructions
governs any conflict with oral instructions. . . . Con-
sequently, as long as the court provides accurate written
instructions to the jury to use during deliberations, no
prejudicial error occurs from deviations in the oral
instructions.’’ [Citations omitted; internal quotation
marks omitted.]).
Additionally, reviewing courts are less willing to con-
clude that a discrepancy between written and oral
instructions constitutes reversible error where: (1)
defense counsel fails to object to the discrepancy;
United States v. Ancheta, supra, 38 F.3d 1117 (‘‘It was
incumbent upon defense counsel to object if the judge
erroneously instructed the jury . . . because the slip
of the tongue could easily have been corrected before
the jury retired to deliberate. The absence of objection
suggests that the mistake was not noticeable or confus-
ing.’’); and (2) counsel, the parties, the court, and the
jury all fail to notice the discrepancy; United States v.
Jones, supra, 468 F.3d 710 (‘‘The fact that defense coun-
sel as well as the experienced [trial] judge were unper-
turbed by the error, if they noticed it at all, weighs
heavily. . . . If there had been an indication that any-
one in the courtroom—counsel, parties, or jurors—was
confused, we might find this a more difficult question.’’
[Citations omitted.]).
Here, because the defendant did not object to the
discrepancy between the written and oral instructions,
his claim is unpreserved. However, his claim is review-
able because the first two Golding prongs are satisfied.
The record is adequate for review, and the defendant’s
claim that the instruction diluted the state’s burden
of proof is of constitutional magnitude. We conclude,
however, that the defendant has failed to satisfy Gold-
ing’s third prong because he has not demonstrated the
existence of a constitutional violation that deprived him
of a fair trial. When viewed as a whole, the court’s oral
instruction reasonably would not have misled the jury.
Our review of the record convinces us that there is
no reasonable possibility that the jury was confused by
the court’s use of ‘‘will’’ instead of ‘‘would.’’ The court
informed the jury that it would be reading its instruc-
tions from a written version of the instructions. Copies
of those written instructions, which accurately used
‘‘would’’ instead of ‘‘will’’ in describing reasonable
doubt, were given to the jury to use during deliberations.
After the court had read its oral instructions, defense
counsel did not object to its use of ‘‘will.’’ Indeed, there
is no indication that defense counsel, the state, or the
court itself noticed the errant use of the word ‘‘will.’’
Moreover, after the case was submitted to the jury,
the jury did not request any clarification as to the dis-
crepancy relating to ‘‘will’’ and ‘‘would,’’ and it did not
ask any questions regarding reasonable doubt and the
burden of proof. Finally, in reviewing the entirety of
the court’s oral and written instructions, we conclude
that both sets of charges adequately explained the prin-
ciples governing burden of proof, the presumption of
innocence, and reasonable doubt by using several accu-
rate descriptions of those concepts.5 Accordingly, in
the circumstances in this case, we conclude that it was
not reasonably possible that the jury was misled by a
single word in the court’s jury instructions.
II
MOTION TO SUPPRESS EVIDENCE
The defendant’s second claim is that the trial court
improperly denied his motion to suppress evidence that
was seized in a warrantless search of his residence. The
defendant contends that such evidence was obtained in
violation of the fourth and fourteenth amendments to
the United States Constitution6 and article first, § 7, of
the Connecticut Constitution.7 Specifically, he contends
that a warrantless search of a parolee’s residence that
fails to comply with administrative directives promul-
gated by the Department of Correction (department)
is unconstitutional, even if the parolee had previously
executed an agreement authorizing such searches as a
condition of his parole. The state’s principal response
is that we should not review the defendant’s federal
and state constitutional claims because they are moot.
Specifically, it argues that on appeal the defendant fails
to challenge an independent basis supporting the trial
court’s denial of his motion to suppress, namely, the
trial court’s finding that the defendant verbally con-
sented to the search. We agree with the state.8
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to
trial, the defendant filed a motion to suppress evidence
that was seized in a warrantless search of his residence,
including 16.529 grams of crack cocaine. In that motion,
the defendant’s principal argument was that the search
was unconstitutional because it was made without a
warrant and did not comply with administrative direc-
tives promulgated by the department. He also asserted
that he had not consented, verbally or in writing, to the
search. After a two day evidentiary hearing, the trial
court made the following factual findings.
‘‘On December 11, 2012, [in the course of executing
a search and seizure warrant for the residence of . . .
Sweeney, members of the Middletown police force]
encountered a vehicle being operated by [the defen-
dant]. . . . Parole Officer Skarzynski, who assisted in
the execution of the search and seizure warrant, knew
[the defendant,] as [the defendant] was previously on
his caseload. . . . [Skarzynski also] was aware that
[the defendant] was on lifetime parole. . . . Skarzynski
spoke with [the defendant] and obtained his verbal con-
sent to . . . conduct a search of his residence. . . .
‘‘Middletown police officers transported [the defen-
dant] to his residence and room within his boarding
house. . . . Skarzynski made a phone call to his . . .
supervisor, [the defendant’s] current parole officer, and
[the supervisor of the defendant’s current parole offi-
cer,] requesting their authorization to search [the defen-
dant’s] room. . . . [A]ll [three] gave their verbal
consent. When inside the residence . . . Skarzynski
. . . [and] Middletown police detectives . . . con-
ducted a search of [the defendant’s] bedroom. [U]nder
the bed a safe was located . . . where a large amount
of crack cocaine was found.’’
In a written memorandum of decision, the court
denied the defendant’s motion to suppress the seized
evidence. The court articulated two grounds in support
of its ruling. First, it rejected the defendant’s argument
that a warrantless search of a parolee’s residence that
fails to comply with the department’s administrative
directives is unconstitutional, even if the parolee had
previously executed an agreement authorizing such
searches as a condition of his parole. Beginning with
a review of the relevant case law, the court noted that
‘‘[a]s a parolee, a defendant has a reduced expectation
of privacy which allows a warrantless search of his
person and residence by his parole officer.’’ The court
then found that the defendant gave written consent to
the search by executing an agreement called ‘‘Condi-
tions of Parole,’’ which was submitted by the state as
an exhibit. That agreement, which was signed by the
defendant on February 25, 2010, provided in relevant
part: ‘‘You shall be required to submit to a search of
your person, possessions, vehicle, business, residence,
or any area under your control at any time, announced
or unannounced, with or without cause by parole or
its agent to verify your compliance with the conditions
of your parole.’’9
The court’s second ground for denying the defen-
dant’s motion to suppress was its finding that the defen-
dant verbally consented to the search: ‘‘[The defendant]
not only consented in writing to the warrantless search
of his residence as a condition of his parole on February
25, 2010, he also gave his verbal consent to . . . Skar-
zynski on December 11, 2012.’’
On appeal, the defendant challenges only the first of
the trial court’s two grounds for denying the motion to
suppress. That is, he again presents the argument that
a warrantless search of a parolee’s residence that fails
to comply with the department’s administrative direc-
tives is unconstitutional, even if the parolee previously
had executed an agreement authorizing such searches
as a condition of his parole.10 The defendant does not
challenge, however, the court’s finding that he verbally
consented to the search. Because the finding regarding
the defendant’s verbal consent constitutes an unchal-
lenged independent basis for the court’s ruling, we are
compelled conclude that the defendant’s claim on
appeal is moot. Accordingly, we decline to review the
defendant’s claim.
We set forth the relevant legal principles regarding
mootness. ‘‘Mootness is a question of justiciability that
must be determined as a threshold matter because it
implicates [this] court’s subject matter jurisdiction.
. . . The fundamental principles underpinning the
mootness doctrine are well settled. We begin with the
four part test for justiciability established in State v.
Nardini, 187 Conn. 109, 445 A.2d 304 (1982). . . .
Because courts are established to resolve actual contro-
versies, before a claimed controversy is entitled to a
resolution on the merits it must be justiciable. Justicia-
bility requires (1) that there be an actual controversy
between or among the parties to the dispute . . . (2)
that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudi-
cated by the judicial power . . . and (4) that the deter-
mination of the controversy will result in practical relief
to the complainant. . . .
‘‘[I]t is not the province of appellate courts to decide
moot questions, disconnected from the granting of
actual relief or from the determination of which no
practical relief can follow. . . . In determining moot-
ness, the dispositive question is whether a successful
appeal would benefit the plaintiff or defendant in any
way. . . .
‘‘Where an appellant fails to challenge all bases for
a trial court’s adverse ruling on his claim, even if this
court were to agree with the appellant on the issues
that he does raise, we still would not be able to provide
[him] any relief in light of the binding adverse finding[s]
[not raised] with respect to those claims. . . . There-
fore, when an appellant challenges a trial court’s
adverse ruling, but does not challenge all independent
bases for that ruling, the appeal is moot.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Lester, 324 Conn. 519, 526–27, 153
A.3d 647 (2017).
In State v. Lester, our Supreme Court held that the
defendant’s appeal from his conviction on the basis of
an adverse evidentiary ruling was moot because he did
not challenge all of the independent bases supporting
the ruling. Id., 528. In that case, the state filed a motion
in limine to preclude the defendant from introducing
evidence of a supposedly false prior allegation of sexual
abuse that the eight year old victim made against
another person when she was five years old. Id., 521,
523. ‘‘[T]he trial court granted the state’s motion . . .
to exclude evidence of the victim’s prior allegation . . .
on the grounds that: it was not admissible under the
rape shield statute because the defendant had not pro-
vided credible evidence that it was false; it was remote
in time; it was dissimilar from the victim’s allegation
against the defendant; and it was a collateral issue that
would confuse the jury.’’ Id., 527.
On appeal, the defendant in Lester challenged only
one of the four grounds on which the trial court relied
in its evidentiary ruling, namely, that evidence of the
allegation was inadmissible under the rape shield stat-
ute. Id., 524–25. Our Supreme Court reasoned that the
other three grounds were independent bases supporting
the court’s ruling because they were responses to the
state’s separate and distinct evidentiary objections per-
taining to relevancy and probative value. Id., 527–28.
Thus, the court concluded that the defendant’s failure
to challenge those three grounds precluded appellate
review of his claim that the trial court incorrectly
applied the rape shield statute: ‘‘Because there are inde-
pendent bases for the trial court’s exclusion of the evi-
dence of the prior allegation . . . that the defendant
has not challenged in this appeal, even if this court
were to find that the trial court improperly applied the
rape shield statute, we could grant no practical relief
to the defendant.’’ Id., 528; see also State v. A.M., 156
Conn. App. 138, 141 n.2, 111 A.3d 974 (2015) (unchal-
lenged independent basis rendered claim on appeal
moot where trial court admitted forensic interview of
victim under three separate exceptions to hearsay rule
but defendant challenged trial court’s ruling on two
exceptions), aff’d on other grounds, 324 Conn. 190, 152
A.3d 49 (2016).
In the present case, the trial court denied the defen-
dant’s motion to suppress on the following two grounds:
(1) by executing an agreement authorizing searches of
his residence as a condition of his parole, the defendant
gave written consent to the warrantless search at issue;
and (2) the defendant gave verbal consent to Skarzynski
immediately before the warrantless search at issue
occurred. Although not challenged by the defendant in
this appeal, the second of those grounds, his verbal
consent, is an independent basis supporting the trial
court’s denial of the defendant’s motion to suppress.
See State v. Nowell, 262 Conn. 686, 699, 817 A.2d 76(2003) (‘‘[i]t is . . . well settled that one of the specifi-
cally established exceptions to the requirements of both
a warrant and probable cause is a search [or seizure]
that is conducted pursuant to consent’’ [internal quota-
tion marks omitted]); State v. Vaught, 157 Conn. App.
101, 121, 115 A.3d 64 (2015) (warrantless search of
residence constitutional where trial court found that
homeowner gave valid verbal consent).
The trial court’s finding that the defendant verbally
consented to the search is wholly dispositive of the
defendant’s motion to suppress, regardless of whether
it erred in ruling on the defendant’s other arguments
that the search was unconstitutional. That is, once the
defendant verbally consented to the search, the need
for law enforcement to obtain a warrant or comply with
the department’s administrative directives was obvi-
ated. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218,
222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (‘‘a search
authorized by consent is wholly valid’’ [emphasis
added]). The defendant does not challenge the court’s
finding that he verbally consented to the search in this
appeal. Consequently, because the defendant has failed
to challenge that independent basis supporting the trial
court’s denial of his motion to suppress, even if this
court were to rule in his favor on the claim he presents
on appeal, we could grant him no practical relief.
Accordingly, the defendant’s claim is moot.
The appeal is dismissed as moot with respect to the
defendant’s claim that the trial court improperly denied
his motion to suppress evidence; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
It appears that there was some confusion in the trial court proceedings
regarding the defendant’s first name. The state’s substituted long form infor-
mation charged him as ‘‘James E. Holley, a.k.a., Ever Lee Holley,’’ but the
proceedings in the trial court were captioned as State v. Ever Lee Holley.
In its appellate brief, the state now refers to the defendant as ‘‘Ever Lee
Holley, also known as James Holley.’’ Conversely, the defendant asserts in
his appellate brief that his birth name is actually ‘‘James Holley.’’ Specifically,
he notes that ‘‘[a]t sentencing it was determined that the name on [the
defendant’s] birth certificate is ‘James.’ ’’ A review of the sentencing tran-
script reveals that the defendant appears to assert the opposite of what the
presentence investigation report discovered with respect to his first name.
The trial court stated at the sentencing hearing: ‘‘Several discrepancies have
arisen regarding Mr. Holley’s name, he’s been using his dead brother’s name
of James as an alias for decades, but his birth name is Ever Lee Holley.’’
(Emphasis added.) In any event, because the case was docketed in the trial
court and in this court as State of Connecticut v. Ever Lee Holley, and
neither party has filed a motion to correct the defendant’s name, the case
retains its original caption.
2
In a part B information, the state also had charged the defendant with
possession of a narcotic substance with the intent to sell as a subsequent
offender. Although the jury found the defendant guilty of being a subsequent
offender, the court granted the defendant’s motion for acquittal with respect
to this part of the jury’s verdict.
3
Additionally, the United States Supreme Court has endorsed a description
of reasonable doubt that virtually is identical to the one challenged by the
defendant in this case. See Holland v. United States, 348 U.S. 121, 140, 75
S. Ct. 127, 99 L. Ed. 150 (1954) (citing with approval instruction given in
Bishop v. United States, 107 F.2d 297, 303 [D.C. Cir. 1939], which defined
reasonable doubt as ‘‘doubt [that] would cause reasonable men to hesitate
to act upon it in matters of importance to themselves’’).
4
Although in closing argument defense counsel described reasonable
doubt as a ‘‘doubt that, in your own serious affairs, you would heed,’’ he
did not take an exception or request clarification when the court subse-
quently used will instead of would in its instructions. We also note that the
state did not make an argument with respect to either word during its
closing argument.
5
We also note that the United States Court of Appeals for the Second
Circuit recently held that an arguably more problematic discrepancy
between written and oral instructions did not confuse the jury. United States
v. Rodriguez, supra, 651 Fed. Appx. 47–48 (no constitutional violation where
oral charge instructed jury to find defendant not guilty if ‘‘defendant ha[d]
failed to prove [his self-defense claim] beyond a reasonable doubt’’ because
written charge correctly instructed jury that government had burden of
disproving defendant’s claim of self-defense [emphasis in original]).
6
The fourth amendment to the United States constitution provides: ‘‘The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirma-
tion, and particularly describing the place to be searched, and the persons
or things to be seized.’’
The fourth amendment’s protection against unreasonable searches and
seizures is made applicable to the states through the due process clause of
the fourteenth amendment to the United States constitution. See Mapp v.
Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
7
Article first, § 7, of the constitution of Connecticut provides: ‘‘The people
shall be secure in their persons, houses, papers and possessions from unrea-
sonable searches or seizures; and no warrant to search any place, or to
seize any person or things, shall issue without describing them as nearly
as may be, nor without probable cause supported by oath or affirmation.’’
8
The state also argues that the defendant failed to preserve his state
constitutional claims by not presenting an analysis pursuant to State v.
Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), to the trial court. Because we
conclude that the defendant’s state and federal constitutional claims both
are moot, we need not address this preservation argument.
9
The court also made a finding that the search had in fact ‘‘substantially
complied with parole regulations’’ because Skarzynski ‘‘obtain[ed] authoriza-
tion’’ from ‘‘his parole manager and the parole manager of [the defendant’s]
probation officer’’ before conducting the search.
10
The defendant also argues that the court erroneously found that the
search was conducted in ‘‘substantial’’ compliance with the department’s
administrative directives. See footnote 9 of this opinion.