State v. Walker

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STATE OF CONNECTICUT v. JAMES E. WALKER
(SC 19281)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 14—officially released November 24, 2015
Timothy H. Everett, assigned counsel, with whom
were Stephen Capracotta, certified legal intern, and, on
the brief, Matthew Eagan, certified legal intern, for the
appellant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Stacey M. Miranda, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The present case affords us an oppor-
tunity to clarify the scope of a recent amendment to
our rules of practice, under which appellate review of
an issue is not forfeited due to an inadequate record if
the sole obstacle to review is a party’s failure to obtain
an articulation from the trial court. See Practice Book
§ 61-10 (b). In his certified appeal, the defendant, James
E. Walker, challenges the Appellate Court’s determina-
tion that the absence of an adequate record regarding
an alleged in chambers inquiry into defense counsel’s
possible conflict of interest precluded review of the
defendant’s unpreserved claim that his exclusion from
that proceeding violated his constitutional right to be
present at all critical stages of the prosecution. See
State v. Walker, 147 Conn. App. 1, 15, 82 A.3d 630 (2013).
We conclude that the deficiency in the present case
required a rectification of the record, not an articula-
tion. We further conclude that the forfeiture exception
under § 61-10 (b) is neither applicable to a deficient
record due to the failure to seek a rectification nor
applicable to unpreserved claims. Accordingly, we
affirm the Appellate Court’s judgment.
The record reveals the following undisputed facts. In
connection with the nonfatal shooting of two persons,
the defendant was charged with two counts of assault
in the first degree by means of the discharge of a firearm
in violation of General Statutes §§ 53a-59 (a) (5) and
53a-8 and one count of conspiracy to commit assault
in the first degree in violation of General Statutes
§§ 53a-48 and 53a-59 (a) (5). A key witness for the state,
a jailhouse informant named James Dickerson, was an
acquaintance of the defendant and was incarcerated at
the same facility as the defendant. At trial, Dickerson
testified that the defendant had admitted to him his
involvement in the shooting and his motive for the
shooting. Dickerson denied that he had received any
promises in exchange for his testimony but acknowl-
edged that he hoped to get favorable treatment from
the state on pending narcotics charges.
The connection between Dickerson’s testimony and
the issue on appeal arose during jury selection, when
the following colloquy occurred:
‘‘The Court: Good morning, everybody. We are back
to jury selection in [the present case]. The attorneys
have brought a matter to the court’s attention this
morning which should be put on the record. [Assistant
State’s Attorney Stacey] Haupt [the prosecutor], I don’t
know if you want to go first or—
‘‘[The Prosecutor]: . . . It was brought to my atten-
tion late Friday by [Assistant State’s] Attorney Jack
Doyle [regarding] the [plea offer] between . . . Dick-
erson and the state’s attorney’s office. I asked Attorney
Doyle to write a memo about how exactly that went
down and what promises had been made to [Dickerson]
and in looking at his file attempting to prepare the
memo, Attorney Doyle realized that [defense counsel
in the present case] . . . had spoken to [Dickerson] at
the request of Attorney Jamie Alosi to try to talk to him
about taking some type of deal. However, it was prior
to [Dickerson] cooperating in this case. I don’t believe
that deal came to fruition, but I just thought it should
be brought to the court’s attention that . . . [defense
counsel] in some respect had conversations with one
of the state’s witnesses.
‘‘The Court: Let me flush that out a bit. Apparently,
[Dickerson], and it’s already a matter of knowledge and
public [record] in this case, is going to testify against
[the defendant]. [Dickerson], and I think you put this
on the record earlier, and if not, it should be. [Dick-
erson] was on trial in front of this court, represented
by Attorney Alosi. At some point, he entered a plea
upstairs, and I had nothing to do with the plea. I had
nothing to do with the sentencing. My involvement was
picking a jury up to the point where the matter was
resolved. Apparently, [defense counsel], you can add
to that factual situation. Listen up, Mr. Walker, I just
want to make sure you understand this.
‘‘[Defense Counsel]: [Dickerson] was brought in to
begin jury selection in a matter which he eventually
pled guilty to and is seeking to have consideration for
based on his testimony or anticipated testimony in this
case. I happen[ed] to be on the sixth floor. He was in
the bullpen upstairs with his attorney, and his attorney,
who I know, had told me about the case he was proceed-
ing to trial on.’’ (Emphasis added.)
Defense counsel then went on to explain that Dick-
erson’s attorney had told him about the evidence against
Dickerson relating to the sale of narcotics, which
included a videotape of the purported transaction and
a still photograph from that videotape that appeared to
show Dickerson making the sale, and the fact that the
state had offered Dickerson a plea agreement. Because
defense counsel knew Dickerson, he was asked, or may
have volunteered, to speak with Dickerson about the
sentence that could be imposed in light of the evidence
and Dickerson’s past history. In summarizing the dis-
cussion that ensued, defense counsel noted that Dick-
erson had told him about the plea offer as well as ‘‘what
the plea agreement was that he could accept short of
going to trial.’’ Defense counsel then explained: ‘‘I said,
in my opinion, the evidence was substantial. Then again,
I didn’t spend more than five or six minutes with him,
nor did I, other than the layout, which he probably
already heard from his attorney, have anything that
would impact on [the] decision he made. Then he pro-
ceeded to come down here and begin jury selection
with Your Honor.
‘‘Subsequent to that, it would appear, and I didn’t
know until, let’s say, a month to six weeks after that
he had given that statement because it wasn’t being
handled by [the prosecutor] at that time, this case. . . .
‘‘My client [the defendant] was incarcerated, having
not made bond, and, at some point . . . I became
aware that Dickerson had made a statement. As soon
as I became aware, I asked [the prosecutor] to send
me a copy of that statement. I spoke to [Assistant State’s
Attorney] Doyle. . . . I spoke to them about the param-
eters of the new plea agreement that [Dickerson] had
entered into based on his cooperation and I was told
essentially what happened. I was given a copy of the
statement, and that’s where we are today. My client
[the defendant] is aware I had a limited interaction with
[Dickerson] prior to him giving inculpatory evidence or
[an] anticipated statement that inculpates him, and I
explained to [the defendant] that this in no way would
impede my cross-examination of [Dickerson]. I don’t
think that that conversation is probably relevant to the
deal he eventually entered into, and I would probably
not, in my cross-examination, unless it came out that
we knew each other, but we had known each other
prior to me speaking to him up in court, and I wouldn’t
get into any details of the conversation. I don’t think
that would hamper my cross-examination of him at all.
[The defendant] has indicated to me that he wants me
to continue to represent him.
‘‘The Court: You heard that, Mr. Walker? You’re com-
fortable with that?
‘‘The Defendant: Yes, yes.
‘‘The Court: Let me tell you what I’m concerned about
to protect your rights. As your lawyer, [defense counsel]
owes you a duty of undivided loyalty. He can’t represent
two people at the same time that have any kind of
conflict. From what I’ve heard here today, I haven’t seen
any. Whatever he did with [Dickerson] was unrelated to
whatever deal [Dickerson] now has going, and he can
go after that deal hand and claw, and there’s nothing
that I can see in his prior contact with [Dickerson] that
is even relevant to the situation that developed after
he spoke to [defense counsel]. I don’t see any conflict.
I don’t see any violation of the law by [defense counsel],
and I want to make sure you’re comfortable with it so
we can get on with the trial, and you’ve got to let me
know. Are you okay with it?
‘‘The Defendant: Yes.
‘‘The Court: Good, all right, then we’ll pick it up. Let’s
bring the panel out. Thank you.’’
During his cross-examination of Dickerson, defense
counsel did not attempt to elicit information about any
matter discussed at their prior meeting. At the conclu-
sion of the trial, the jury returned a verdict finding the
defendant not guilty of assault in the first degree, as
either principal or accessory, but guilty of conspiracy
to commit assault in the first degree. The trial court
rendered judgment in accordance with the verdict, from
which the defendant appealed.
Among the issues raised before the Appellate Court,
the defendant claimed that he was entitled to a new
trial because his constitutional right to be present at
all critical stages of the prosecution had been violated.
State v. Walker, supra, 147 Conn. App. 3. The factual
basis for this claim was the defendant’s alleged exclu-
sion from an in chambers discussion regarding defense
counsel’s possible conflict of interest. Id., 7–8. Conced-
ing that this issue had not been raised at trial, the defen-
dant sought review pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989). State v. Walker,
supra, 8; see State v. Golding, supra, 239–40 (setting
forth four factors to obtain review and prevail upon
unpreserved claim of constitutional error).
The Appellate Court determined that the record was
inadequate to review this claim and affirmed the judg-
ment of conviction. Id., 15–16. The court reasoned that
the record revealed ‘‘no information as to whether a
meeting occurred in chambers or whether there was a
discussion in court off the record in the presence or
absence of the defendant, whether or how counsel
alerted the court clerk’s office that something needed
to be put on the record that morning, or whether the
attorneys did something else in the presence or absence
of the defendant to alert the court that there was an
issue that needed to be put on the record.’’ Id., 15. The
court held that it was incumbent upon the defendant
under such circumstances to request a hearing in order
to establish the factual predicate of his claim on the
record, and that his failure to do so precluded appellate
review. Id.
This court thereafter granted the defendant’s petition
for certification to appeal, limited to the following issue:
‘‘Did the Appellate Court properly determine that the
defendant could not prevail on his unpreserved claim
that the trial court improperly excluded him from a
critical stage of the proceeding when trial counsel’s
possible conflict of interest was discussed, because of
the failure of the defendant to seek an articulation,
resulting in an inadequate record on appeal?’’ State
v. Walker, 311 Conn. 919, 919–20, 85 A.3d 654 (2014).
According to the defendant, there are two flaws in the
Appellate Court’s determination: (1) the record is ade-
quate because, ‘‘understood in context,’’ the colloquy
demonstrates the factual basis for his claim—that the
trial court consulted with counsel out of the defendant’s
presence regarding defense counsel’s conflict of inter-
est; and (2) to the extent that an articulation is necessary
to dispel any ambiguity as to that matter, Practice Book
§ 61-10 (b) required the Appellate Court to order one
rather than deny review solely on that basis.
Before turning to the merits of these contentions, we
observe that the certified question does not accurately
reflect the issue before us. The Appellate Court never
determined that an articulation would cure the record
deficiencies that it had identified. Therefore, we must
reframe the certified question. See State v. Wang, 312
Conn. 222, 225–26 n.3, 92 A.3d 220 (2014) (reformulating
certified question to conform to issue actually pre-
sented); State v. Ouellette, 295 Conn. 173, 184, 989 A.2d
1048 (2010) (same). Properly framed, the question is
whether the Appellate Court properly determined that
the defendant could not prevail on his unpreserved
claim because of his failure to augment the record with
the facts related to the alleged in chambers discussion.
We answer that question in the affirmative.
We begin by acknowledging that the defendant’s
claim, broadly stated, is of constitutional magnitude
and therefore potentially amenable to Golding review,
despite not being raised at trial. ‘‘[A] criminal defendant
has a constitutional right to be present at all critical
stages of his or her prosecution. . . . Although the con-
stitutional right to be present is rooted to a large extent
in the confrontation clause of the sixth amendment,
courts have recognized that this right is protected by
the due process clause in situations [in which] the
defendant is not actually confronting witnesses or evi-
dence against him. . . . In judging whether a particular
segment of a criminal proceeding constitutes a critical
stage of a defendant’s prosecution, courts have evalu-
ated the extent to which a fair and just hearing would
be thwarted by [the defendant’s] absence or whether
his presence has a relation, reasonably substantial, to
the fulness of his opportunity to defend against the
charge. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.
Ct. 2658, 96 L. Ed. 2d 631 (1987).’’ (Citations omitted;
internal quotation marks omitted.) State v. Lopez, 271
Conn. 724, 732, 859 A.2d 898 (2004).
Accordingly, ‘‘although an in camera inquiry regard-
ing a potential conflict of interest may constitute a
critical stage of a prosecution . . . it does not follow
that all [in chambers] discussions constitute a critical
stage of the prosecution. . . . [Determining] whether
a particular in camera proceeding qualifies as a critical
stage of the prosecution is a necessarily fact intensive
inquiry. Thus, it is imperative that the record reveal
the scope of discussion that transpired.’’ (Emphasis
added; internal quotation marks omitted.) State v.
Chambers, 296 Conn. 397, 412–13, 994 A.2d 1248 (2010);
State v. Bonner, 290 Conn. 468, 492, 964 A.2d 73 (2009).
When ‘‘we are left to speculate as to whether the [in
camera] conversation[s] consisted of the [trial] court
and counsel conducting an extensive discussion as to
[the] potential conflict[s] of interest at one end of the
spectrum or, at the opposite end, a brief comment to
the court that there was a matter that needed to be
placed on the record, or . . . dialogue that fell some-
where in between . . . we cannot determine the extent
to which a fair and just hearing would have been
thwarted by the defendant’s absence or whether his
presence has a reasonably substantial relation to the
fullness of his opportunity to defend against the crimi-
nal charges.’’ (Internal quotation marks omitted.) State
v. Bonner, supra, 492–93.
In light of this standard, we can readily dispense
with the defendant’s contention that the record, as it
presently stands, is adequate for appellate review. No
matter how ‘‘context[ual]’’ a reading we apply to the
colloquy previously recited, we are unable to glean:
whether counsel alerted the court directly about this
issue or spoke to the court clerk, who in turn alerted
the court; whether any discussion of this matter
occurred with the court off the record; the scope of
any such discussion; and whether the defendant was
in fact absent during any such discussion. Cf. State v.
Lopez, supra, 271 Conn. 736 (record established that
inquiry identified potential conflict of interest for
defense counsel, namely, his conflicting roles of poten-
tial material witness in case and defendant’s legal coun-
sel, and inquiry consisted of single question and
answer). The defendant’s reliance on certain oblique
statements by the court—‘‘[t]he attorneys have brought
a matter to the court’s attention this morning which
should be put on the record,’’ ‘‘[l]et me flush that out
a bit,’’ and ‘‘[l]isten up, Mr. Walker, I just want to make
sure you understand this’’—do not shed light on these
essential questions.
Under long-standing precedent, such deficiencies
would preclude appellate review. See Practice Book
§ 61-10 (a) (‘‘It is the responsibility of the appellant to
provide an adequate record for review. The appellant
shall determine whether the entire trial court record is
complete, correct and otherwise perfected for presenta-
tion on appeal.’’); see, e.g., State v. Hazel, 106 Conn.
App. 213, 220–22, 941 A.2d 378 (deeming record inade-
quate to review claimed violation of right to be present
at critical stage when it did not reflect scope of in
chambers discussions), cert. denied, 287 Conn. 903, 947
A.2d 343 (2008). Therefore, we turn to the question of
whether § 61-10 (b) shields the defendant from forfei-
ture of appellate review.
Practice Book § 61-10 (b), which took effect on Janu-
ary 1, 2013, provides: ‘‘The failure of any party on appeal
to seek articulation pursuant to [Practice Book §] 66-
5 shall not be the sole ground upon which the court
declines to review any issue or claim on appeal. If the
court determines that articulation of the trial court deci-
sion is appropriate, it may remand the case pursuant
to [Practice Book §] 60-5 for articulation by the trial
court within a specified time period. After remand to
the trial court for articulation, the trial court may, in
its discretion, require assistance from the parties in
order to provide the articulation. Such assistance may
include, but is not limited to, supplemental briefs, oral
argument and provision of copies of transcripts and
exhibits.’’ The commentary to § 61-10 explains that this
subsection ‘‘was adopted to effect a change in appellate
procedure by limiting the use of the forfeiture sanction
imposed when an appellant fails to seek an articulation
from the trial court pursuant to [Practice Book §] 66-
5 with regard to an issue on appeal . . . . The adoption
of subsection (b) is not intended to preclude the court
from declining to review an issue where the record is
inadequate for reasons other than solely the failure to
seek an articulation, such as, for example, the failure to
procure the trial court’s decision pursuant to [Practice
Book §] 64-1 (b) or the failure to provide a transcript,
exhibits or other documents necessary for appellate
review.’’ Practice Book § 61-10, commentary.
It is self-evident that Practice Book § 61-10 (b) refers
only to articulations. Our rules of practice, however,
recognize two mechanisms for remedying deficiencies
in a record for appellate review: articulation and rectifi-
cation. See Practice Book § 66-5; see also Practice Book
§ 66-7 (review of such motions). Admittedly, prior to
the enactment of Practice Book § 61-10 (b), our case
law occasionally has failed to properly distinguish the
two. See, e.g., State v. Chambers, supra, 296 Conn.
413–14 (deeming record inadequate to determine
whether meeting in chambers was critical stage of pros-
ecution in absence of articulation or rectification
because only evidence in record concerning what tran-
spired in chambers consisted of two passing references
by trial court indicating merely that there had been
such meeting); State v. Stewart, 255 Conn. 913, 763 A.2d
1039 (2000) (sua sponte order, in connection with grant
of certification, ‘‘that the trial court articulate the facts
concerning discussions, if any, among the state’s attor-
ney, defense counsel and the court during a charging
conference, relative to the court’s giving a ‘no unfavor-
able inference’ instruction to the jury in this matter’’).
Nonetheless, as we explain subsequently in this opinion,
there is ample authority explaining the distinct function
that each mechanism serves. Therefore, the threshold
issue is whether an articulation or a rectification would
be necessary to remedy the particular deficiency in the
present case.
‘‘It is well established that [a]n articulation is appro-
priate where the trial court’s decision contains some
ambiguity or deficiency reasonably susceptible of clari-
fication. . . . [P]roper utilization of the motion for
articulation serves to dispel any . . . ambiguity by clar-
ifying the factual and legal basis upon which the trial
court rendered its decision, thereby sharpening the
issues on appeal.’’ (Internal quotation marks omitted.)
Priest v. Edmonds, 295 Conn. 132, 140, 989 A.2d 588
(2010); accord Barnes v. Barnes, 190 Conn. 491, 494,
460 A.2d 1302 (1983). In other words, an articulation
elaborates upon, or explains, a matter that the trial
court decided. A motion for articulation ‘‘may not . . .
be used to modify or to alter the substantive terms of
a prior judgment . . . .’’ (Internal quotation marks
omitted.) Bauer v. Bauer, 308 Conn. 124, 131, 60 A.3d
950 (2013).
A motion for rectification, by contrast, is appropriate
when the record must be modified or augmented in
some fashion. ‘‘A motion for rectification can be used
to make (1) additions to the record, (2) corrections to
the record or (3) deletions from the record. The motion
cannot be used to add new matters to the record that
were not presented at trial.’’ (Footnotes omitted.) C.
Tait & E. Prescott, Connecticut Appellate Practice and
Procedure (4th Ed. 2014) § 6-2:3.3; see, e.g., Kalams v.
Giacchetto, 268 Conn. 244, 252–53, 842 A.2d 1100 (2004)
(because plaintiff’s request to charge was not contained
in court file, court permitted rectification of record
to reflect that plaintiff’s request to charge had been
presented to court in chambers); State v. Floyd, 253
Conn. 700, 730–32, 756 A.2d 799 (2000) (hearing on
motion for rectification to determine whether state’s
witness had plea agreement providing consideration for
testifying at defendant’s trial at time of defendant’s trial,
in contravention to trial testimony); State v. Lopez, 235
Conn. 487, 491, 668 A.2d 360 (1995) (rectification to
correct court reporter’s purportedly inaccurate tran-
scription of trial court’s instruction); Nair v. Thaw, 156
Conn. 445, 455, 242 A.2d 757 (1968) (rectification could
have been pursued to clarify off record agreement
between parties); State v. Benitez, 122 Conn. App. 608,
614, 998 A.2d 844 (2010) (defendant should have availed
himself of right to seek rectification of record regarding
reconstruction of jury visit to crime scene).
It is clear that the deficiencies in the present record
are not amenable to articulation, but rather should have
been remedied by rectification. The record is not lack-
ing the factual or legal basis upon which the trial court
rendered any ruling or decision supporting the judg-
ment. Rather, the record could have been augmented
to include matters that occurred off the record. In such
circumstances, rectification is the appropriate method
of perfecting the record. See, e.g., State v. Shashaty,
251 Conn. 768, 785, 742 A.2d 786 (1999) (rectification
sought to resolve whether matter of defendant being
shackled during trial was discussed at in chambers con-
ference), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734,
146 L. Ed. 2d 653 (2000); State v. David M., 109 Conn.
App. 172, 176, 950 A.2d 599 (rectification sought to
place on record defense counsel’s statement to court
in chambers that defendant wanted to withdraw his
guilty pleas), cert. denied, 289 Conn. 924, 958 A.2d 154
(2008); State v. Pelletier, 85 Conn. App. 71, 76, 856 A.2d
435 (rectification sought was inadequate when it did
not reflect whether defendant was informed by counsel
about meeting in chambers, whether she waived her
right to be present at meeting, and whether she con-
sented to court’s decision in chambers), cert. denied,
272 Conn. 911, 863 A.2d 703 (2004); In re Christopher G.,
20 Conn. App. 101, 107, 564 A.2d 619 (1989) (defendant
should have requested trial court to place on record in
chambers discussion regarding basis for ruling or
should have sought rectification), cert. denied, 213
Conn. 814, 569 A.2d 549 (1990).
In response to the state’s contention that rectification
was required, the defendant suggests that no distinction
should be drawn between articulations and rectifica-
tions for purposes of Practice Book § 61-10 (b) because
both mechanisms serve the same ultimate function and
are addressed in tandem elsewhere in the rules of prac-
tice. We reject this suggestion. We generally deem it
significant when a term that is omitted in one rule is
included in related rules. See, e.g., State v. Valedon,
261 Conn. 381, 387, 802 A.2d 836 (2002); Connor v.
Statewide Grievance Committee, 260 Conn. 435, 440–
41, 797 A.2d 1081 (2002). Although there may be no
need to distinguish between the two mechanisms else-
where in the rules, there is a logical basis to do so in
§ 61-10 (b). As the advisory committee on appellate
rules explained in proposing this amendment, ‘‘the
existing articulation system . . . often results in an
unfair and inequitable finding that a party has forfeited
a right to obtain appellate review for failure to seek
an articulation from the trial court, there is a lack of
certainty as to when articulation is needed, and the
current system encourages trial judges to withhold the
grounds for their decisions unless an articulation is
requested.’’ (Internal quotation marks omitted.) Grimm
v. Fox, 303 Conn. 322, 332 n.12, 33 A.3d 205 (2012).
Reasonable minds may differ as to whether language
is ambiguous. An appellant may be convinced that the
pertinent aspect of the record is unambiguous, only to
have a reviewing court disagree. By contrast, it should
be readily apparent when the pertinent portion of the
record is inaccurate, incomplete or missing altogether,
as in the present case. Thus, the concerns underlying
this rule change do not support the defendant’s position.
Moreover, as our previous discussion reflects, an
essential feature of an articulation demonstrates that
the rule change was not intended to provide a safety
net for unpreserved claims. That an articulation clari-
fies the record presupposes that the factual or legal
issue on which clarification is sought related to a matter
decided by the trial court. It may be that, in fortuitous
circumstances, a litigant who has failed to preserve a
claim may be able to obtain an articulation because the
factual or legal determination at issue also is relevant
to a matter that was before the trial court. While such
a fortuity may enable a litigant to obtain an adequate
record to permit review of an unpreserved claim, it
does not change the fundamental purpose of either
an articulation or the limited exception under Practice
Book § 61-10 (b).
Finally, we note that irrespective of the limits of Prac-
tice Book § 61-10, a reviewing court may, in the exercise
of its authority under Practice Book § 60-2, order rectifi-
cation of the record regarding an unpreserved claim
when the interests of justice so demand. Absent an
extraordinary case, however, the use of such power to
remedy an inadequate record for review would plainly
subvert Practice Book § 61-10 (a). We have not been
asked to invoke such authority in the present case.
Given that the deficiencies in this record should have
been readily apparent, the present case would be an
unlikely candidate for the exercise of such authority in
any event.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.